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GREINER v. VOLKSWAGENWERK A.G.

April 6, 1977

THELMA GREINER
v.
VOLKSWAGENWERK AKTIENGESELLSCHAFT and VOLKSWAGEN OF AMERICA, INC. v. JUDITH T. NICKEL



The opinion of the court was delivered by: LORD, III

 In this diversity case bottomed on Restatement of Torts 2d, Section 402(a), the facts are fully and clearly stated in the opinion of the Court of Appeals vacating the judgment and remanding. Greiner v. Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 1976). In remanding, the court's direction was plain (540 F.2d at p. 96-97):

 
"However, we must reluctantly remand for determinations by the Judge, as a matter of law, as to whether or not there was sufficient evidence for the jury to find, if charged, that the lack of warning was unreasonably dangerous and the proximate cause of the accident." (Emphasis the court's).

 Except for the widely varying estimates of the Volkswagen's speed, the facts of the accident are really not in dispute. Finding herself on her own wrong side of the road facing an oncoming car, the plaintiff's driver, Nickel, turned to her right. She immediately found herself headed for a concrete bridge railing approximately ten feet away. Her speed was between 30 and 60 miles per hour. To avoid the bridge railing, Nickel turned sharply to the left and the Volkswagen overturned. Under these circumstances, warning or not, there was no conceivable way that an accident could have been avoided. Even giving Nickel the best possible reading of the evidence, at 30 miles per hour, she would cover ten feet in approximately one-fourth of a second. It is simply not within the bounds of human reason to suppose that, had there been a warning, Nickel would have recalled it, considered it and then intentionally crashed head-on into a concrete rail. We do not, however, rest our determination on this conclusion.

 It is true that the Restatement of Torts, § 402(a), comment j, states:

 
"Where warning is given, the seller may reasonably assume that it will be read and heeded; . . ." (P. 353). *fn1"

 Implicit in that comment, however, is the assumption that the warning could have been heeded to avoid the peril. Here, it could not. Here, when Nickel found herself ten feet from the railing, a serious accident was inevitable, warning or no warning, and plaintiff made no showing that one would have been less devastating than the other. In Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (1966), the court said, at page 29:

 
"It is true that the question of proximate cause is generally for the jury. However, if the relevant facts are not in dispute and the remoteness of the causal connection between the defendant's negligence and the plaintiff's injury clearly appears, the question becomes one of law."

 We must conclude as a matter of law, that the causal connection between the lack of warning and plaintiff's injury is too remote to raise a jury question.

 Plaintiff points to several cases where recovery was held allowable absent specific evidence of proximate cause. Their factual patterns may be summarized as follows:

 1. Berkebile v. Brantly Helicopter Corp., 225 Pa. Super. 349, 311 A.2d 140 (1973). Plaintiff's decedent was killed when a seven foot piece of one of the rotor blades of his helicopter flew off after a power failure, causing the copter to crash. Plaintiff alleged, inter alia, an inadequate warning of the need for an instantaneous shift to autorotation in the event of power failure. A judgment for defendant was reversed.

 2. Tomao v. A. P. De Sanno & Son, 209 F.2d 544 (3d Cir. 1954). A grinding wheel disintegrated, partially blinding the plaintiff. The wheel was being operated at 10,000 revolutions per minute. The maximum safe speed was less than 6,000 revolutions per minute, but the wheel had no warning to this effect. A verdict for plaintiff was sustained.

 3. Maize, Admr. v. Atlantic Refining Company, 352 Pa. 51, 41 A.2d 850 (1945). A can of cleaning fluid called Safety-Kleen bore a legend that was held insufficient to warn a user to use it in a ...


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