element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use." Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020, 1027 (1978). Clearly, then the use to which a product is put will be relevant to establishing a "defect" and for this reason is part of the plaintiff's prima facie case under § 402A.
In the instant case the Court is satisfied that its instructions to the jury adequately described these elements of the plaintiff's prima facie case and that these instructions clearly allocated to the plaintiff the burden of proving all of these elements. Moreover, the Court concludes that the evidence presented at trial was sufficient to justify a jury's conclusion that the plaintiff had met its burden of proof on these elements.
At trial plaintiff presented as an expert witness Dr. Gerald T. Horne, a metallurgical engineer with some 30 years of experience. In his testimony Dr. Horne indicated that a section of the crane's boom contained severe laminations. These laminations, which resulted from the original casting of the steel, had significantly reduced the strength of that boom. In fact, it was this laminated section of the boom which had originally broken, causing the collapse of the entire crane. Moreover, Dr. Horne testified that, in his opinion, this defective lamination in the crane's boom was the sole cause of that boom's collapse. We believe this evidence, in and of itself, is sufficient to establish plaintiff's prima facie case.
Admittedly evidence was also introduced at trial which indicated that the crane was lifting a load in excess of the maximum listed on its capacity plate at the time of the accident and that this factor may have contributed to the crane's collapse. However, from the testimony presented at trial regarding rated capacity of the crane, we conclude that the jury could reasonably have found that, at the time of the accident, the capacity rating did not address the danger of boom failure at all. Rather, given the weight of the stone being lifted and the radius of the boom, the rating only warned of the danger of the crane tipping.
Specifically, the evidence introduced at trial indicated that the instruction panel on the crane gave two distinct capacity warnings. The first of these warnings calculated the risk of the crane tipping over while attempting to lift an object. The second warning described the limits beyond which crane collapse became a risk. In the instant case the weight being lifted at the time of the accident fell within the range covered by this first warning but was far short of that necessary to trigger the second warning. Therefore, given Dr. Horne's conclusions regarding the defective construction of the boom and that boom's causal relationship to the accident, we find this equivocal evidence insufficient to justify displacing the jury's verdict.
Assuming therefore that the plaintiff had established a prima facie case under § 402A, the defendant's evidence of product misuse then goes to the question of causation. In Pennsylvania under § 402A misuse of a product can act as a superseding cause, absolving the manufacturer from liability. Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir. 1979); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1978). However, the burden of proving this superseding cause rests with the defendant. See, e.g., Baker v. Outboard Marine Corp., supra at 183-84; Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954).
In the instant case the Court instructed the jury that, if both a defect and misuse were found to be proximate causes, they must find for the plaintiff. The Court notes, however, that its instruction to the jury also stated that misuse of the crane by the plaintiff could serve as a superseding cause, exonerating the defendant, but that the defendant bore the burden of proving that misuse was a superseding cause. Therefore, we find no error in this charge. Moreover, given these instructions, the jury found for the plaintiff, thereby impliedly rejecting misuse as a superseding cause of the accident. In retrospect, considering the causation evidence introduced at trial, this Court is not prepared to supplant that conclusion. Therefore, we must deny defendant's motions insofar as those motions rest on alleged errors in allocating the burden of proof on the issue of abnormal use.
Finally, we conclude that the defendant is not entitled to a new trial or judgment n.o.v. on the grounds that the Court erred in failing to charge on assumption of risk.
Typically, assumption of risk involves the voluntary and unreasonable encountering of a known danger. Berkebile v. Brantly Helicopter Corp., supra; Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966). Moreover, it is a defense which requires a subjective appreciation on the plaintiff's part of both the character and the nature of the risk encountered. See, Dorsey v. Yoder Co., 331 F. Supp. 753, 765, aff'd 474 F.2d 1339 (E.D.Pa.1971). See also, §§ 496C, 496D and 496E of the Restatement (Second) of Torts.
In the instant case the testimony of the plaintiff's employees did not demonstrate sufficient subjective appreciation of the risks involved to justify submission of this question to the jury. At most the testimony of plaintiff's employees demonstrates that they were aware that the load being lifted was beyond the rated capacity of the crane and that violating the capacity rating created a risk of the crane tipping. The testimony did not, however, reveal any subjective appreciation by the plaintiff's employees of the precise nature of the risks involved due to the structure of the boom itself. Given these facts, a jury instruction on assumption of risk would have been inappropriate.
The defendant's motions will be denied.