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February 15, 1977

ROBERT W. BOWMAN, Executor of the Estate of GRACE G. BOWMAN
GENERAL MOTORS CORPORATION v. CLYDE E. RHODES, Third-Party Defendant and ROBERT W. BOWMAN, Fourth-Party Defendant

The opinion of the court was delivered by: BECKER


 I. Preliminary Statement

 This is a products liability case in which plaintiff alleges that the gas tank and surrounding structures of his 1966 Oldsmobile Toronado were defectively designed. *fn1" Specifically, plaintiff contends that the Toronado was uncrashworthy because, when his car was struck in the rear by another vehicle, it burst into flames, causing serious injury to his wife. After the liability phase of a bifurcated trial lasting almost five weeks, the jury found for the defendant General Motors Corporation (GM). This opinion addresses the plaintiff's motion for a new trial and/or for a judgment n.o.v. We shall not review the facts in detail, but shall summarize only so much of the evidence and of the parties' theories as is necessary to an understanding of the issues raised by plaintiff's motion. *fn2"

 On May 22, 1970, at about 11:30 p.m., plaintiff Robert Bowman was driving his Toronado east on U.S. Route 30 in Downingtown, Pennsylvania, with his wife as a passenger, when his vehicle was struck in the rear by a vehicle driven by third-party defendant Clyde Rhodes. The front of the Rhodes vehicle underrode the Toronado's rear bumper and pierced its fuel tank. An explosion and fire immediately ensued and the flames invaded the passenger cabin. Although Mr. Bowman escaped without injury, Mrs. Bowman sustained extremely serious and disfiguring burns. Mrs. Bowman died prior to trial from a disease unrelated to the accident. Mr. Bowman sues as her administrator, as well as in his own right for property damage.

 Plaintiff's crashworthiness allegation is that the Toronado was not designed to minimize the risk of injury to the vehicle's occupants in the event of accident. Factually, plaintiff's case rests on the following claims of defective design: (1) the fuel tank was positioned too close to the rear bumper; (2) the angle of the rear bumper invited a striking vehicle to underride it, thus exposing the fuel tank to trauma; and (3) openings in the Toronado's structure (especially the plenum drain) unnecessarily allowed flames to invade the passenger cabin.

 Legally, plaintiff relied on theories both of strict products liability and of ordinary negligence liability. Plaintiff's design defect claim is founded upon Restatement of Torts 2nd, § 402(A), which has been adopted in Pennsylvania, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), whose law applies to the case. Plaintiff also contended that GM was negligent in failing adequately to test the 1966 Toronado for fuel tank integrity in the event of rear end impact.

 Plaintiff's theories were advanced principally through the testimony of Derwin Severy, a pioneer in the automobile crash testing field and a highly-qualified automotive design engineer. Mr. Severy testified for three days in three major segments. First, he performed a detailed accident reconstruction during which he testified that the striking (Rhodes) vehicle was not traveling at an excessive rate of speed. *fn3" Next, he offered testimony on defective design. Finally, he testified as to what a reasonable test program for fuel tank integrity would entail. Mr. Severy opined that GM's test program was seriously deficient, that the Toronado was defectively designed in the respects noted above, and that these factors were significant causes of the fire.

 GM's trial methodology mirrored the plaintiff's. First, GM offered its own expert's accident reconstruction, which sought to establish that the Rhodes vehicle struck the Bowman vehicle at such a high rate of speed that it would have penetrated any vehicle short, perhaps, of a Sherman tank. *fn4" This was meant to prove that the cause of the fire and of the resultant injuries was the negligence of the third-party defendant and not the design of the Toronado, and to support GM's position that there are extreme hazards of the road against which it is unreasonable to expect it to design. Next, through the presentation of films of its testing program and the testimony of its able chief crash test engineer, William Cichowski, GM developed evidence that its program of crash testing, which was calculated to study, inter alia, fuel tank integrity, was extensive and adequate. Finally, GM offered the testimony of its own design engineers to the effect that the Toronado's design was safe. The main thrust of the opinion of these experts was that the rupture of the Toronado's fuel tank could not have been avoided by a repositioning of the fuel tank or by a redesign of the rear bumper, and that the underride by the Ford of the Toronado bumper, and the piercing of the fuel tank followed ineluctably from design of the striking vehicle and the nature and severity of the impact. GM expert Ron Elwell also countered Mr. Severy's testimony about the plenum drain and other openings into the passenger cabin.

 In rebuttal, the plaintiff offered the testimony of Alfred Baccini to refute Mr. Elwell. We found Mr. Baccini to be qualified in the field of fire safety and we permitted his testimony relative to fire safety matters including the mechanism of fire's entry into the passenger cabin, and design matters relating thereto. Although Mr. Baccini is a mechanical engineer, he lacked experience in the field of automotive design and had never inspected the Toronado; therefore, we did not find him qualified to testify about matters of automotive design in general. Alternatively, we ruled that because he was a rebuttal witness, he could not go over again the areas covered by Mr. Severy in plaintiff's case in chief. One of the two points briefed by the plaintiff in support of his motion for a new trial is our limitation on the scope of Mr. Baccini's testimony.

 Because that matter can be quickly disposed of, we will address it first. We will then turn to plaintiff's other major contention, founded upon the views of Chief Justice Jones and Justice Nix in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), that we erred in charging the jury that, in order to find that the Toronado was defective by reason of its design when it was sold to Mr. Bowman, they had to find not only that it was defective, but also that it was unreasonably dangerous. *fn5" We will devote the major portion of the opinion to this point, but must preface that discussion with the following perspective.

 In Bair v. American Motors Corporation, 535 F.2d 249, 250 (3d Cir. 1976) the Court of Appeals, following the incisive reasoning of our colleague Judge Daniel H. Huyett, 3rd, in Beron v. Kramer-Trenton Co., 402 F. Supp. 1268, 1277 (E.D.Pa. 1975), aff'd. mem. 538 F.2d 318 (3d Cir. 1976), stated that:

the views expressed in Chief Justice Jones' opinion in Berkebile are not the law of Pennsylvania, and that it is proper to instruct a jury that it must find that a defective condition be unreasonably dangerous to the user or consumer.

 This conclusion followed from: (1) the Pennsylvania rule that an opinion of the Pennsylvania Supreme Court representing the views of only two justices has no binding precedential value; and (2) the previous (binding) Pennsylvania precedent which required the unreasonably dangerous charge. *fn6"

 The Bair precedent is sufficient to dispose of plaintiff's objections to our charge. However, Bair was not decided until after this trial, and we could not be certain at the time of trial whether Judge Huyett's view in Beron would prevail. Plaintiff's counsel argued, not unpersuasively, that the view of two justices of the Pennsylvania Supreme Court was entitled to considerable weight on the issue of what was Pennsylvania law. At the very least it appeared to us, as we were formulating our jury charge, that Pennsylvania law was in flux, and that it was necessary to make a judgment as to what the Supreme Court of Pennsylvania would do when it definitively addressed the "unreasonably dangerous" question. The problem was exacerbated by our realization that this case might be appealed, and that the Pennsylvania Supreme Court might write on the question in the interim. Accordingly, while agreeing with Judge Huyett's Beron opinion, we ...

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