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July 25, 1980


The opinion of the court was delivered by: TROUTMAN


Early in 1976 plaintiff, a maintenance man employed by Hofmann Industries, Inc. (Hofmann) of Sinking Spring, Pennsylvania, fell through a three-foot square opening in the concrete slab floor of a foundry building owned by his employer. Plaintiff seeks to recover for his injuries under theories of simple negligence and strict liability. Restatement (Second) of Torts § 402A. Defendant, *fn1" which manufactured and designed the sand handling system involved in plaintiff's accident, now moves for summary judgment *fn2" on the grounds that it did not design, manufacture or sell any product which caused injury to plaintiff and that his injury resulted from an alleged defect in the construction and maintenance of a building, not a "product" within the meaning of § 402A. *fn3"

 The sand handling system at issue actually consisted of a collection of conveyors, elevators, hopper and other devices arranged in a fashion to remove sand from an automatic gray iron molding machine (known as a spomatic), to recycle and return the sand to the molding machine for further use. One component of the sand handling equipment, a magnetic belt, extracted small pieces of scrap metal from the sand prior to reuse and collected these tailings in metal boxes. To enable Hofmann employees to lift these boxes out of the pit, where the magnetic belt is located, required making the opening through which plaintiff fell. *fn4" A steel plate, set into angle irons built into the concrete sides of the opening, covered it when not in use. *fn5" Hofmann purchased the automatic molding machine from a third party in 1960. *fn6" The size and complexity of the system made it necessary for Hofmann to build a substantial addition to its then-existing foundry to house the equipment. Hofmann constructed the addition, including the concrete slab floor, openings and protection therefor. Hofmann purchased the mold conveyor and sand handling equipment in 1961 from defendant, which assumed no responsibility for installation. 7 Hofmann furnished not only the one-quarter inch plate to cover the opening for the tailings boxes *fn8" but also all concrete work, anchor bolts and curb angles. *fn9" The importance of this information lies in the fact that Hofmann designed and installed the opening where plaintiff fell. *fn10" Indisputably, defendant designed and supplied only certain components for the automatic molding system, none of which it installed in the foundry. Hofmann or others designed and furnished the building, cupola, monorail and spomatic molding system. *fn11" Defendant only indicated the size and location of openings necessary for the operation of the system and the location of anchor bolts necessary to support and secure the equipment. The manner in which employees removed tailings boxes from the pit remained strictly a matter for the purchaser, Hofmann, to determine. *fn12"

 To recover under theories of either simple negligence or strict liability, plaintiff must establish that defendant manufactured a product which was defective at the time of sale in 1961 or failed in a duty to provide adequately for the guarding of that product. See Vizzini v. Ford Motor Co., 569 F.2d 754 (3d Cir. 1977). Even assuming that defendant had a legal duty to warn plaintiff or Hofmann of any dangers connected with the operation of the sand handling system and that defendant breached that duty, the apparent negligence of Hofmann and/or its employees constituted a superseding cause of plaintiff's injury. True, a jury ordinarily determines proximate cause, but where the parties do not dispute the critical facts and only their legal effect remains in issue the court properly should rule on the question. Schreffler v. Birdsboro Corp., 490 F.2d 1148 (3d Cir. 1974). A third person's failure to prevent harm may become a superseding cause

where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person . . .

 Restatement (Second) of Torts § 452(2). See Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d 116 (3d Cir. 1979). Identifying what circumstances will shift the duty requires reference to the

degree of danger and magnitude of the risk of harm, the character and position of the third person who is to take the responsibility, his knowledge of the danger and the likelihood that he will or will not exercise proper care, his relation to the plaintiff or to the defendant (and) the lapse of time . . .

 In the case at bar fifteen years elapsed between the sale of the sand handling machine and the date of plaintiff's injury. Hofmann was plaintiff's employer and as such had a duty to keep the workplace safe and free from unreasonable danger and unnecessary risk. See Industrial Union Department v. American Petroleum Institute, 448 U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010 (1980), Kimbler v. Pittsburgh & Lake Erie Railroad, 331 F.2d 383 (3d Cir. 1964), Emig v. Erie Lackawanna Railway, 350 F. Supp. 986 (E.D.Pa.1972), aff'd, 485 F.2d 679 (3d Cir. 1973). See also Occupational Safety & Health Act, 29 U.S.C. § 651 et seq., and Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. Certainly an open hole would alert the prudent employer to the need to prescribe, implement and follow sound safety regulations. In fact, Hofmann had issued regulations which its employees apparently failed to obey on the day plaintiff fell. Hofmann guarded the opening with a four-sided railing designed to fit over the opening when the steel cover was removed. This "cage" had no bottom or top so that employees could lift the tailings boxes out of the pit by means of an overhead hoist and chain arrangement. *fn13" Hofmann instructed employees to protect the opening when in use. *fn14" At least one of plaintiff's co-workers observed the cage in the vicinity of the accident but recalled that it was not then in use. *fn15"

 Moreover, Hofmann was not an unsophisticated "consumer" in the usual sense of the word. Rather, it was a large corporation engaged in the production and fabrication of steel and iron products. Hofmann employed a safety director and safety committee. *fn16" Thus, the present circumstances differed from the usual § 402A case with a "standard production item sold to the general public which malfunctioned or otherwise evidenced a manufacturing defect". Schreffler v. Birdsboro Corp., 490 F.2d at 1152. Clearly, Hofmann was or should have been aware of the manifest danger of an unprotected opening. *fn17" Cf. Gordon v. Niagara Machine & Tool Works, 574 F.2d 1182 (5th Cir. 1978) (the danger zone of a manually operated press machine). Hofmann, plaintiff's employer and owner of the machine for fifteen years, stood in a position to remedy or at a minimum cope effectively with the problem. See W. Prosser, Handbook on the Law of Torts, 273 (4th ed. 1971). In other words,

the practical means to protect the working men at the plant . . . was capable of implementation by (the employer) without any advice, knowledge or assistance from (the manufacturer). . . . (L)ending strength to the superseding cause theory is the evidence that there was (a long) interval between the date of sale and the accident, during which time (the employer) was in sole possession and control of the equipment and, in view of its obligations as an employer, justifiably would be expected to take necessary steps for the safety of its employees.

 Schreffler v. Birdsboro Corp., 490 F.2d at 1154. In the case at bar the intervention of fifteen years between the date of sale and injury, the atypical nature of the § 402A product and sale, the obvious nature of the danger, the ready ability of the employer to remedy the danger without technical assistance or advice from the manufacturer, the indisputable duty of the employer to keep the workplace safe and the employer's sole possession and control of the equipment for fifteen years created circumstances which shifted the duty from the manufacturer to the employer. As a matter of law, ...

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