Restatement (Second) of Torts § 452(2), comment f. Particularly where a substantial amount of time intervenes, the overtness of the danger, the nature of the product sold, the identity of the consumer, the relative abilities of the manufacturer and the employer to remedy the alleged defect and the nature and availability of the remedy should be considered as well as any other consideration which comports with the universally accepted policy of assigning and imposing ultimate liability for negligence upon the person primarily responsible therefor. See Roe v. Bryant & Johnston Co., 193 F. Supp. 804 (E.D.Mich.1961). Cf. Vizzini v. Ford Motor Co., 569 F.2d at 767 (" "proximate cause' . . . is a flexible concept designed to effectuate varied policies that determine whom the law holds liable for harm suffered by the plaintiff").
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.
Hofmann instructed employees to protect the opening when in use.
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.
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.
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.
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, defendant's conduct cannot be said to be the proximate cause of plaintiff's injury. Therefore, defendant's motion for summary judgment will be granted.