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October 24, 1975


The opinion of the court was delivered by: HUYETT


 This matter is before us on plaintiff's post-trial motions for judgment n.o.v. or, alternatively, for a new trial, pursuant to Fed.R.Civ.P. 50(b) and 59. The case arose from injuries sustained by plaintiff, Wilfred Beron, in a fall from a forklift he was operating in the course of his employment with third-party defendant Victory Metal Manufacturing Co. (Victory). These motions pose serious questions about the present state of Pennsylvania products liability law, questions that arise as a consequence of the recent decision of the Pennsylvania Supreme Court in Berkebile v. Brantly Helicopter Corp., Pa., 462 Pa. 83, 337 A.2d 893 (1975). Berkebile, purporting to "clarify the concepts of strict liability under Pennsylvania law," 337 A.2d at 897, threatens instead to disrupt the orderly administration of justice in this litigation-prone area of the law so long as these important questions remain unanswered. Inasmuch as we have been alerted to no other courts, state or federal, which have offered a written opinion interpreting Berkebile the task has fallen to us. For these compelling reasons we have considered plaintiff's motions with the utmost care, and we conclude that the motions must be denied.


 In deciding plaintiff's motions for judgment n.o.v. or for a new trial we consider the facts and all the reasonable inferences therefrom in a light most favorable to the defendant, for whom the jury in this case returned a verdict. Dantzler v. Defender Shipping Co., 285 F. Supp. 541 (E.D.Pa. 1968), aff'd per curiam, 411 F.2d 792 (3d Cir., 1969). Mindful of this standard of review, we find that plaintiff Beron was an experienced forklift operator in the employ of Victory, a manufacturer of industrial refrigeration units. On August 12, 1970 Beron was assigned the task of rearranging the warehouse where Victory stored its inventory of refrigerator coils, packed in boxes and mounted on skids, and Beron was required to use a forklift to do such work.

 The forklift, a machine customarily used to facilitate industrial lifting and stacking, was manufactured by defendant Eaton, Yale & Towne Manufacturing Co. (Eaton Yale). In response to Victory's inquiry Eaton Yale submitted its specifications for the model in question. Included in the specifications was the price of the lift, with several "options" which Victory could elect to delete with a corresponding reduction in the purchase price. Among the options were an "overhead canopy guard," which would shield the driver from falling objects, and a "load backrest extension," a 48 inch extension of the driver's backrest which would provide support for oversized loads that extended over the driver's head. Victory declined these two options, which would have cost a total of $160, despite the suggestion, inscribed on a warning plate that was affixed to the machine and printed in an Eaton Yale brochure, that the forklift might be hazardous without them.

 Victory's refrigerator coils, weighing 250 to 300 pounds each, were delivered in cartons placed on wooden skids provided by the manufacturer of the coils, Kramer-Trenton Co. (Kramer). The coils that Kramer supplied were packed one coil to a box, two boxes to a skid. The boxes, in turn, were fastened to the skid by three metal bands. Kramer had purchased its skids from the Mt. Airy Lumber Corp.

 On August 12, 1970, Beron spent the afternoon moving refrigerator coils with the Eaton Yale forklift. After several hours of uneventful work Beron placed a skid with two boxes stacked one upon the other on the prongs of the forklift, as he had done all afternoon. Noticing nothing particularly unusual about this skid and following usual procedures, he properly tilted the load back slightly and elevated the load to a position above the level of his head. *fn1" As he was preparing to stack the boxes at this height, he heard something cracking, glanced up and saw the boxes sliding backwards toward him. Plaintiff stood up from his seat and attempted to leap from the forklift. As he did so the seat sprang up behind him, automatically turning the motor off. Hinged as it was at the bottom front of the seat, the backrest portion of the seat pinned Beron's legs momentarily between the steering wheel and the seat itself. Further complicating his hasty exit was the difficulty plaintiff had in extricating his right foot from the smaller footwell on that side of the forklift. As he leaped from the left side of the machine, Beron found his right foot trapped between the steering wheel and the seat. Consequently plaintiff fell to the ground in an awkward fashion sustaining a leg fracture and other less severe physical injuries. Neither of the falling boxes struck Beron.

 Invoking federal diversity jurisdiction, 28 U.S.C. § 1332, Beron filed suit against Eaton Yale and Kramer in this court in 1972. *fn2" Following a full and fair trial on the issue of Eaton Yale's liability, the case was submitted to the jury on plaintiff's theory that Eaton Yale was strictly liable as the seller of the forklift for the injuries sustained by Beron. Grounding his case against Eaton Yale upon Section 402A of the Restatement of Torts, Second, plaintiff maintained that the forklift contained unreasonably dangerous design defects in that it was not equipped with an overhead canopy guard or a load backrest extension as standard equipment to protect the driver from falling objects. *fn3" In the absence of these safety features, plaintiff sought to convince the jury that the forklift was sold "in a defective condition unreasonably dangerous to the user" because the driver's area was designed in such a manner that the operator could not quickly jump from the apparatus to avoid falling objects.

 Faithfully adhering to the then prevailing law of Pennsylvania, we submitted the case to the jury under careful instructions that closely parallelled the language of § 402A. *fn4" Accompanying our instructions to the jury was a set of written special interrogatories which the jury answered during their deliberations. The first interrogatory, which had to be resolved in the affirmative as a prerequisite to finding Eaton Yale liable, asked the jury to determine whether "the forklift truck involved in the accident was in a defective condition unreasonably dangerous to the user." The jury returned a verdict for the defendant, specifically answering the first special interrogatory in the negative. *fn5" Accordingly we entered judgment for defendant Eaton Yale.

 Plaintiff duly filed these motions for judgment n.o.v. or for a new trial, contending that both the jury verdict and the instructions were contrary to the evidence and the law. At the outset we deny plaintiff's motion for judgment n.o.v. A judgment n.o.v. is appropriate only in those circumstances where, without weighing the credibility of witnesses, it appears that the evidence admits of only one conclusion. There was ample evidence in this case from which a jury could have concluded that the forklift was not in a defective condition unreasonably dangerous to the user. In respect to plaintiff's motion for a new trial, the only tenable basis for granting it lies in plaintiff's contention that our instruction was contrary to the law. The decision of the Pennsylvania Supreme Court in Berkebile v. Brantly Helicopter Corp., Pa., 462 Pa. 83, 337 A.2d 893 (1975) breathed new life into plaintiff's otherwise unavailing argument that our instructions were erroneous insofar as we included the unreasonably dangerous language of § 402A. *fn6"


 The question presented is whether the Berkebile opinion renders that portion of our instruction to the jury relating to "defective condition" erroneous. At the outset we note that, if Berkebile indeed suggests that such an instruction is improper under Pennsylvania law, we are obliged to apply the changed law retroactively in this case and grant plaintiff's motion for a new trial. "Until such time as a case is no longer sub judice, the duty rests upon the federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court." Vandenbark v. Owens-Illinois, 311 U.S. 538, 543, 85 L. Ed. 327, 61 S. Ct. 347 (1941). *fn7" Inasmuch as plaintiff's motions were taken under advisement and decision was still pending in May, 1975, when Berkebile was decided, we must apply any change Berkebile works in Pennsylvania law.

 The Opinion of the Court in Berkebile is an ambitious one, striving, as it does, to clarify or restate several crucial principles of strict liability in tort. *fn8" Our focus here is a narrow one, however. We are concerned only with that portion of the Berkebile opinion which discusses "unreasonably dangerous" and "defective condition." The opinion begins with the perceived premise of § 402A, liability without fault, and it observes that there are only two elements of requisite proof for the plaintiff -- defective condition and proximate cause -- propositions that few would quarrel with. Since § 402A imposes liability without fault, the fault notions of negligence, the Court observed, are alien to the subject. Echoing sentiments expressed by the California Supreme Court in Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972), *fn9" the opinion suggests that the phrase "unreasonably dangerous" evokes the fault ...

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