APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Aldisert, Van Dusen and Gibbons, Circuit Judges.
The principal question raised in the appeal of this products liability case is: was it error under the Pennsylvania Supreme Court's interpretation of § 402A of the Restatement (Second) of Torts (1965) for the district court to charge the jury that it had to find a product "unreasonably dangerous" before it could find the product's manufacturer, defendant Atlas Powder Co. (Atlas), liable? This court's recent decision in Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979), squarely answers this question in the affirmative. Since we conclude that this issue was not waived and that the district court's instructions were not harmless error, we reverse and remand in accordance with Baker.
Appellants James J. Bailey and his wife, Beverly, filed this diversity action in the United States District Court for the Western District of Pennsylvania for injuries which Mr. Bailey suffered from the unintended explosion of a blasting cap and dynamite. Appellee Atlas was manufacturer of both the dynamite and the cap. At the jury trial, Bailey elected to proceed exclusively under § 402A of the Restatement as adopted by the Pennsylvania courts.
With one critical exception, the facts developed at trial were not disputed. Plaintiff Bailey was a "payloader" operator at the Agway Fertilizer Plant in Union City, Pa. On March 5, 1975, while working in the Agway Plant, Bailey approached his immediate supervisor, John Klus,*fn1 to discuss a work matter. Klus, a licensed dynamite blaster, was at that time in the process of setting up an explosive apparatus to loosen caked fertilizer material so as to facilitate its removal by the "payloader."
The blasting apparatus consisted of one stick of dynamite and a blasting cap inserted therein, with two four-foot-long "leg wires" attached to the cap. Only these items were manufactured by defendant Atlas Powder Co. The apparatus also included an insulated, 50-foot "firing line;" at one end of the line were two leads to be attached to the blasting cap's "leg wires," and at the other end were two leads with alligator clips to be attached to a power source. The power source used at the Agway Plant was a six-volt battery.
Klus had inserted the blasting cap into the dynamite stick and was connecting one of the lead wires from the firing line to the blasting cap when Bailey approached him. Bailey stood nearby as Klus spliced the second lead wire. Thereupon an explosion occurred, injuring both men.
The factual controversy centers on the alligator clips at the other end of the firing line from the blasting cap and dynamite stick. Klus testified that he knew the two alligator clips were clipped together while he prepared the dynamite. The purpose of so clipping them was to close the circuit in order to prevent any outside electrical current from entering it and discharging the blasting cap and dynamite. Bailey's brother, Floyd Bailey, testified that after the explosion he had found the firing line in the debris with the alligator clips clamped together, thereby confirming Klus' testimony. In addition, both Klus and Bailey testified that the battery to which the alligator clips would attach when the apparatus was ready for detonation was unattached and outside the immediate vicinity of the apparatus.
In opposition, Atlas presented an expert witness. The gist of his testimony was that it was scientifically impossible for an explosion to have occurred with the circuit in the closed and de-energized configuration which plaintiffs' witnesses had described. The expert's opinion was that the blasting cap detonated because it was connected to the battery.
The jury returned a general verdict for Atlas, and the district court entered judgment accordingly. After the district court denied his timely motion for new trial, Bailey filed timely notice of this appeal.
Bailey claims that the district court erred in charging the jury that it had to find the product "unreasonably dangerous," as well as defective, before it could find the defendant liable under § 402A.*fn2 This court addressed an identical claim in the recent products liability case of Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979). There we held that in diversity cases, under the Pennsylvania Supreme Court's decision in Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), Reaffirming Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (opinion of Jones, C. J.), reference in a district court's jury instructions to the "unreasonably dangerous" language of § 402A is reversible error requiring a new trial. Although Azzarello had not yet been decided when the district court charged the jury in the Baker case, this court held that Azzarello nevertheless was retrospectively ...