Nevertheless, many state courts which have faced this question have answered it in the affirmative essentially on the basis of the argument that a public policy which protects the user or consumer in product liability cases should also protect the innocent bystander. See cases collected in 33 A.L.R. 3d 415 (1970).
Although Pennsylvania appellate courts have not directly faced this issue, two decisions strongly indicate that, if presented with this precise issue, they would extend the protection of the doctrine of strict liability to innocent bystanders. In Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593 (1968), the purchaser of a new tire had it mounted on the right rear wheel of his car. The next day, after being informed by a passing motorist that his right rear wheel was "wobbling," he pulled into a service station to have the tire checked. While the operator of the service station was working on and inflating the tire, an explosion occurred which seriously injured him. Although it affirmed a nonsuit entered by the trial court, the Court held that, if the plaintiff's evidence had been sufficient to establish that the tire was defective when it left the manufacturer's hands and that the defect caused the explosion of the tire, then the plaintiff could have recovered under § 402A against the manufacturer, wholesaler and retailer -- all sellers of the tire. Accordingly, the Court impliedly recognized that § 402A affords protection to innocent bystanders such as the service station operator. In Flavin v. Aldrich, 213 Pa. Super. 420, 250 A.2d 185 (1968), the Pennsylvania Superior Court indicated that it too would extend § 402A coverage to innocent bystanders. In that case, the plaintiffs' car was struck in the rear by a second car when the brakes of the second car failed. The plaintiffs brought suit against the driver and the seller of the second car based upon a theory of negligence. The case proceeded to trial and the jury returned a verdict against both defendants. In affirming the trial court, the superior court noted with approval the trial court's observation that if the case had been tried after the Pennsylvania Supreme Court, in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), had adopted § 402A as the law of Pennsylvania, then the plaintiffs "would have been entitled to a charge that [the dealer] would be strictly liable, regardless of negligence, if they found that defendant had sold the car in a defective condition." 213 Pa. Super. at 426 n.1, 250 A.2d at 188 n.1.
Thus, we have no hesitancy in holding that Pennsylvania appellate courts, if faced with this issue, would extend § 402A's coverage to innocent bystanders. See Wagner v. Studt, 60 D.&C. 2d 743, 746-752 (1973). In other words, § 402A provides coverage for a person who suffers harm proximately caused by a defective and unreasonably dangerous product, regardless of whether that person used or consumed the product.
The inquiry does not end there, however, since the facts of this case are, at first glance, different from the facts of the "normal" innocent bystander case. In the "normal" case, as in Forry and Flavin, supra, the bystander is already within the defective product's orbit of danger when the danger from the defect manifests itself and when the injury occurs. Thus, if the runaway loader had crashed into the dump truck's passenger compartment and had injured plaintiff while he was sitting in his seat, then plaintiff could have been easily characterized as an innocent bystander. But the plaintiff in this case was not within the loader's orbit of danger when the danger from the defect manifested itself, since, in effect, he placed himself in the path of the runaway loader. The question remains, therefore, whether this particular plaintiff can be said to have been an innocent bystander.
The answer to that question is an easy one, since we do not believe that plaintiff's having placed himself in the path of the loader should yield a different conclusion from that reached in the "normal" case. The critical inquiry, in both "types" of cases, is whether the party at the time of the injury was within the orbit of danger. If the answer is yes, then as a matter of law the injured party is an innocent bystander and is initially entitled to § 402A's protection. In our view, the fact that the injured party placed himself in the orbit of danger after the danger from the defect first manifested itself is only relevant to the issue of whether that person, notwithstanding the fact that he is an innocent bystander, voluntarily assumed the risk by so placing himself.
Accordingly, we hold as a matter of law that plaintiff was an innocent bystander.
Massey-Ferguson's motion for judgment notwithstanding the verdict will, therefore, be denied.
In support of its motion for a new trial, Massey-Ferguson's contention is succinctly stated in its "Brief in Support of Motion for Judgment N.O.V. and Motion for New Trial" at 37:
Massey-Ferguson joined Ray Hartman & Sons as a third party defendant demanding contribution and/or indemnity. Ray Hartman & Sons, a dealer in Massey-Ferguson construction machinery, leased this particular machine to the plaintiff's employer, Rudolph Davidge, Sr. Massey-Ferguson alleged that as a supplier of the product Ray Hartman & Sons was liable under § 402A of the Restatement of Torts, 2d. The Court, however, refused to charge the jury on this theory of liability as it pertained to Ray Hartman & Sons. This ruling and refusal to charge was erroneous.
If Massey-Ferguson had "alleged that as a supplier of the product Ray Hartman & Sons was liable under § 402A of the Restatement of Torts, 2d," it might have been entitled to a charge with respect to that theory of liability. However, an examination of Massey-Ferguson's original and amended third-party complaints reveals that Massey-Ferguson proceeded against Hartman only on a theory of negligence. Paragraph 4 of both third-party complaints reads as follows:
Although the defendant has denied plaintiff's allegations concerning the condition of said "crawler loader," should plaintiff's allegations be determined in favor of plaintiff, said condition was due to the negligence of third party defendants, Ray Hartman & Sons and/or [Hartman] in the ownership, possession, control, maintenance and leasing of said "crawler loader" or in leasing said "crawler loader" in the condition alleged by plaintiff.