decided: October 5, 1978.
ORCA C. AZZARELLO
BLACK BROTHERS COMPANY, INC., A CORPORATION, APPELLANT, PARTS PROCESSING, INC., A CORPORATION, ADDITIONAL DEFENDANT
No. 105 March Term, 1977 Order of the Superior Court at No. 401 April Term, 1976, affirming the order of the court en banc, affirming the order of the Court of Common Pleas of Allegheny County, Civil Division, at 924 April Term, 1972.
George M. Weis, Weis & Weis, Pittsburgh, for appellant.
John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, for Orca C. Azzarello.
William A. Pietragallo, Meyer, Darragh, Buckler, Bebenek & Eck, for Parts Processing, Inc.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ.
[ 480 Pa. Page 549]
OPINION OF THE COURT
This appeal raises the question of the appropriate form of jury instruction in products liability cases in this Commonwealth. In the instant case, Azzarello's right hand was pinched between two hard rubber rolls in a coating machine manufactured and sold by the defendant, Black Brothers, Inc. Azzarello brought this suit against Black Brothers Company, Inc., the manufacturer-appellant relying solely on
[ 480 Pa. Page 550]
the theory of strict liability under Section 402A of the Restatement Second of Torts.*fn1 The manufacturer, by joining appellee's employer, Parts Processing, as an additional defendant, injected into appellee's strict liability case the issue of whether the negligence of the employer was the sole or contributing cause of her injuries. Accordingly, the trial court below was faced with the difficult problem of devising instructions for the jury which required a clear exposition of the law of strict liability upon which appellee exclusively relied, and also explaining with clarity the interrelationship of the more traditional and familiar jury instructions sounding in fault and negligence, necessitated by manufacturer-appellant's theory of the case. In so doing, the trial court repeatedly instructed the jury using the phrase "unreasonably dangerous" taken verbatim from the formulation provided by Restatement Second of Torts.*fn2
[ 480 Pa. Page 551]
The trial resulted in a verdict in favor of the manufacturer and against the additional defendant, appellee's employer, in the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00). The appellee thereupon moved for a new trial asserting inter alia that the trial judge incorrectly instructed the jury that the appellee's burden of proof under Section 402A strict liability required a showing that the machine was "unreasonably dangerous."
The motion for a new trial was granted by the court en banc. That court held that the opinion announcing the judgment of the Court in the case of Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) should be followed, and that the use of the phrase "unreasonably dangerous" in the charge required the grant of a new trial.*fn3
In granting appellee's motion for a new trial, the court en banc found that this issue had not been waived and
[ 480 Pa. Page 552]
was properly before that court for resolution. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1975). We agree. The propriety of the grant of a new trial on the basis of a subsequent decision in a civil case is not a question of first impression in this Commonwealth. In the Estate of Riley, 459 Pa. 428, 329 A.2d 511 (1974), cert. denied, 421 U.S. 971, 95 S.Ct. 1966, 44 L.Ed.2d 462 (1975), this Court affirmed a lower court's grant of a motion for reconsideration and reargument of its order based on a decision of a federal district court's declaration that a District of Columbia Mortmain statute, analogous to Pennsylvania's Mortmain statute, had been held to be unconstitutional. It cannot, of course, be asserted that a federal district court's opinion as to the constitutional validity of a foreign statute is a binding precedent, but the case was sufficiently relevant to the proper resolution of the matter at issue that the lower court was commended in our per curiam affirmance for its attempt to insure the just and comprehensive resolution of the case. In Estate of Riley, supra. In the instant case, appellee's counsel made timely request for a new trial based on the subsequent decision of this Court in Berkebile, supra, which the court en banc granted to insure a just and comprehensive resolution of the case. This view does not undercut the rationale articulated by this Court in our decision in Dilliplaine v. Lehigh Valley Trust Co., supra. One of the principle considerations in reaching our result in Dilliplaine, supra, was the need to afford the trial court an opportunity to correct alleged error. An earlier objection to the "unreasonably dangerous" language would have been unavailing at the time of the trial because the instruction as given tracked the language of Section 402A of the Restatement. This Court expressly embraced Section 402A in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). It was not until after the filing of the Berkebile decision that appellee was provided with a basis for the averment of error. Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). In any event the court below had the opportunity to consider and to rectify the error and the question was not raised on appeal for the first time.
[ 480 Pa. Page 553]
The development of a sophisticated and complex industrial society with its proliferation of new products and vast changes in the private enterprise system has inspired a change in legal philosophy from the principle of caveat emptor which prevailed in the early nineteenth century market place to the view that a supplier of products should be deemed to be "the guarantor of his products' safety" Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974). The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. In an era of giant corporate structures, utilizing the national media to sell their wares, the original concern for an emerging manufacturing industry has given way to the view that it is now the consumer who must be protected. Courts have increasingly adopted the position that the risk of loss must be placed upon the supplier of the defective product without regard to fault or privity of contract.*fn4
While this expansion of the supplier's responsibility for injuries resulting from defects in his product has placed the supplier in the role of a guarantor of his product's safety, it was not intended to make him an insurer of all injuries caused by the product.*fn5 It is this distinction that
[ 480 Pa. Page 554]
rests at the core of the problem raised in this appeal. Although the expansion of the supplier's liability has been developed through a breach of warranty analysis*fn6 as well as that of tort, the Restatement elected strict liability in tort as an explanation for imposing this liability.*fn6a We must focus upon two requirements set forth in Section 402A for liability (physical injury) -- that the product be "in defective condition" and that it be "unreasonably dangerous." It is the propriety of instructing the jury using the term of "unreasonably dangerous" which forms the basis of appellee's objection to the jury instructions given below.
In an effort to assure that a supplier of chattels would not become an insurer, the authors of the Restatement described the characteristic which would justify the
[ 480 Pa. Page 555]
imposition of liability in terms of a "defect." However, this word is not limited to its usual meaning i. e., a fault, flaw or blemish in its manufacture or fabrication. Rather, the critical factor under this formulation is whether the product is "unreasonably dangerous."*fn7 Under the Restatement approach a product may be deemed to be "defective" even though it comports in all respects to its intended design. One difficulty arises from the fact that the term, "unreasonably dangerous" tends to suggest considerations which are usually identified with the law of negligence. The California Supreme Court expressed this problem as follows:
"The result of the limitation . . . [unreasonably dangerous] has not been merely to prevent the seller from becoming an insurer of his products with respect to all harm generated by their use. Rather, it has burdened the injured plaintiff with proof of an element which rings of negligence. As a result, if, in the view of the trier of fact, the 'ordinary consumer' would have expected the defective condition of a product, the seller is not strictly liable, regardless of the expectations of the injured plaintiff . . ."
"We recognize that the words, 'unreasonably dangerous' may . . . serve the beneficial purpose of preventing the seller from being treated as the insurer of its products. However, we think that such protective end is attained by the necessity of proving that there was a defect in the manufacture or design of the product, and that such defect was a [legal] cause of the injuries."
[ 480 Pa. Page 556]
Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 132-33, 104 Cal.Rptr. 433, 441, 501 P.2d 1153, 1161, 1162 (1972); in Page 556} accord, Glass v. Ford Motor Co., 123 N.J.Super. 599, 304 A.2d 562 (1973).*fn8
It must be understood that the words, "unreasonably dangerous" have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier. It is for this reason that a mere change in terminology does not supply the answer to the basic question as to what instructions should be given to the jury.*fn9 The answer to the proceeding question rests upon the more fundamental question whether the determination as to the risk of loss is a decision to be made by the finder of fact or by the court. While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is presented where a decision as to whether that condition justifies placing liability upon the supplier must be made.*fn10
[ 480 Pa. Page 557]
Furthermore, we must not lose sight of the fact that regardless of the utility of the Restatement formulation in predicting responsibility, it is primarily designed to provide guidance for the bench and bar, and not to illuminate the issues for laymen. As Dean Wade aptly observed:
"The problem here is similar to that in negligence. The Restatement of Torts has analyzed negligence, described it as a balancing of the magnitude of the risk against the utility of the risk, and listed the factors which go into determining the weight of both of these elements. This analysis is most helpful and can be used with profit by trial and appellate judges, and by students and commentators. But it is not ordinarily given to the jury. Instead, they are told that negligence depends upon what a reasonable prudent man would do under the same or similar circumstances. Occasionally, when one of the factors has especial significance, it may be appropriate for the judge
[ 480 Pa. Page 558]
to make reference to it in suitable language." (footnote omitted)
Wade, supra, 44 Miss.L.J. at 840.
Thus the mere fact that we have approved Section 402A, and even if we agree that the phrase "unreasonably dangerous" serves a useful purpose in predicting liability in this area, it does not follow that this language should be used in framing the issues for the jury's consideration. Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy. Restated, the phrases "defective condition" and "unreasonably dangerous" as used in the Restatement formulation are terms of art invoked when strict liability is appropriate. It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution. A standard suggesting the existence of a "defect" if the article is unreasonably dangerous or not duly safe is inadequate to guide a lay jury in resolving these questions.
In this case we are called upon to determine when liability should attach in cases where a "bad design" is charged. Using the standard set forth in Salvador v. Atlantic Boiler Co., supra, we must look to whether the product is safe for its intended use. There, Mr. Justice Roberts, speaking for a unanimous Court said:
"Today . . . a manufacturer . . . is effectively the guarantor of his product's safety . . . Our courts have determined that a manufacturer, by marketing and advertising his product, impliedly represents that
[ 480 Pa. Page 559]
it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect."
Salvador v. Atlantic Boiler Co., 457 Pa. at 32, 319 A.2d at 907.
Reflecting the same view, former Chief Justice Jones said in Berkebile, supra:
"The seller must provide with the product every element necessary to make it safe for use."
Berkebile v. Brantley Helicopter Corp., 462 Pa. at 100, 337 A.2d at 902.
For the term guarantor to have any meaning in this context the supplier must at least provide a product which is designed to make it safe for the intended use. Under this standard, in this type case, the jury may find a defect where the product left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.*fn11 It is clear that the term "unreasonably dangerous" has no place in the instructions to a jury as to the question of "defect" in this type of case.*fn12 We therefore agree with
[ 480 Pa. Page 560]
the court en banc that the use of the term "unreasonably dangerous" in the charge was misleading and that the appellee was entitled to a new trial.
Order of the Superior Court affirming the order of the court en banc is affirmed.