No. 2282 October Term 1978, Appeal from the Judgment of the Court of Common Pleas of Lycoming County, Civil Action Law, at No. 73 - 1787.
Lester L. Greevy, Jr., Williamsport, for appellant.
Richard Gahr, Williamsport, submitted a brief on behalf of Thomas Takach and Mary D. Takach, appellees.
C. Edward Mitchell, Williamsport, will not file a brief on behalf of Eastern Wood Products.
Price, Spaeth and Lipez, JJ. Lipez, J., files a concurring and dissenting opinion.
[ 279 Pa. Super. Page 168]
This is a products liability case. The principal issue is whether the defendant should be granted a new trial.
Thomas Takach, an employee for Eastern Wood Products Company, operated a machine that bored holes into wooden pallets manufactured by his employer. The procedure in operating the machine was as follows: First, the operator placed a pallet on a hydraulically-operated table. Then, he pressed a footswitch to raise the table to meet the drills, which bored holes in the pallets. The drilling spindles ran continuously during the operation. Once the pallet was drilled, the table automatically returned to starting level. The operator then took the pallet off the table and placed it on a pile to one side of the machine. On March 24, 1972, Takach was working at one of these machines. He took a drilled pallet off the table, turned to his left, and caught the glove of his left hand in one of the drills. The glove flew off, taking with it part of his left thumb.
Takach filed a complaint against B.M. Root Company, manufacturer of the boring unit (rail frame, drive shaft and spindles), alleging strict liability, as stated in the Restatement (Second) of Torts § 402A, breach of warranty, negligence, and gross negligence. Root joined Eastern Wood Products as additional defendant, alleging that in installing the boring unit supplied it by Root, Eastern Wood had been
[ 279 Pa. Super. Page 169]
negligent in that it had left the drills in the unit exposed and unguarded. As against Takach, Root pleaded the defense of assumption of risk, and Eastern Wood pleaded the defense of contributory negligence, both defenses being based on Takach's use of gloves while working at the machine. The jury, by special verdict, found Root and Eastern Wood liable, and found that Takach neither assumed the risk nor acted with contributory negligence by wearing gloves. Root filed a motion for judgment n. o. v. or new trial. The lower court denied the motion, and Root has appealed.
Root argues that the trial judge erred in charging the jury on Root's defense of assumption of risk, in particular, in telling the jury that it should not find that Takach had assumed the risk of the accident unless it found that the accident would not have happened but for his use of the gloves.*fn*
The charge was as follows:
[ 279 Pa. Super. Page 170]
a reasonable person would have known of that risk. What is necessary is that he had specific awareness of that risk at that time, and fourth, was his use of the gloves cause of the accident, that is, would the accident not have happened but for his use of the gloves?
Now, if you answer all of those questions adversely to the Plaintiff, then the defense of assumption of risk would protect the Defendant from any liability. If you answer any of them favorable to the Plaintiff, then that defense would not be available, and the burden of proof is on the Defendant, B.M. Root. Let me just go over it again. Before the defense of assumption of risk could exist, you'd have to address yourself to these questions: Did the use by the Plaintiff of gloves near the exposed drills involve a substantial and unjustifiable risk of injury to him? Secondly, was his use of the gloves voluntary, his own choice? Third, was he specifically aware of the hazard, and it would not be enough that he should have known or that a reasonable person would have known. Did he specifically realize the risk of using the gloves, and fourth, was his use of the gloves the cause of the accident in that the accident would not have happened but for his use of the gloves.
(R. 78a-79a, emphasis added.)
Counsel for Root excepted to this charge, stating:
It is settled that the standard of legal causation is not "but for" but "substantial factor." See Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970), approving the Restatement (Second) of Torts § 431, which provides:
The actor's negligent conduct is a legal cause of harm to another if:
(a) his conduct is a substantial factor in bringing ...