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January 13, 1981

Patricia A. HOLLINGER, Administratrix of the Estate of Germaine S. Hollinger

The opinion of the court was delivered by: TROUTMAN


While drilling and blasting oversized chunks of ore in an iron mine in Morgantown, Pennsylvania, plaintiff's decedent left his helper without speaking to him and walked in the direction of a powder storage area. As he proceeded, a scooptram *fn1" operator spotted him, noted his progress, but afterward lost sight of him and assumed he had entered a manway. After passing this point, the scooptram operator, feeling resistance from the unit, lifted the bucket on the vehicle to eliminate the apparent difficulty. When he reached his destination, the water valve, he looked back and saw lying in the drift the lifeless body of plaintiff's decedent who had been struck and killed by the scooptram. *fn2" Plaintiff instituted this action to recover damages and based liability on the theory that defendant sold the scooptram in an unsafe condition as defined by the Restatement (Second) of Torts, Section 402A. *fn3" Plaintiff posited that at the time of sale defendant failed to provide the vehicle with an automatic warning device alerting persons in the area to the presence and operation of the vehicle. Defendant, now moving for summary judgment, contends that this alleged defect in the scooptram was not the proximate cause of death, that at the time of the accident the scooptram had undergone a substantial change in condition from the time defendant sold the unit, and that at the time of sale the scooptram was not in a defective and unreasonably dangerous condition.

 The Federal Rules of Civil Procedure direct the court to enter summary judgment


if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. *fn4"

 Characterized as both a "drastic" *fn5" and "extreme" *fn6" remedy, summary judgment should be used "sparingly", *fn7" for it is a "lethal weapon" *fn8" , eliminating the opportunities to assess the demeanor and credibility of witnesses *fn9" as well as to examine and cross-examine them in front of a jury. *fn10" However, where no genuine issues of material fact exist and as a matter of law the moving party deserves entry of judgment, the court should render it in order to eliminate sham issues of fact, *fn11" to allow the Court to pierce the pleadings and assess the proof to determine whether a genuine need for trial exists, *fn12" and to avoid waste of time and resources of both the litigants and the Court where trial would be a useless formality. *fn13"

 Courts resolve doubts against the moving party, *fn14" who has the burden of demonstrating the justification for the motion. *fn15" When the movant has supported his motion with proper material, the party resisting the motion must adduce "specific facts showing that there is a genuine issue for trial". *fn16" That is, he must "present countervailing evidence, by affidavit or otherwise, to show the existence of such issues". *fn17" Suspicions, *fn18" conjecture, *fn19" speculation, *fn20" conclusory statements, *fn21" and general denials *fn22" will not suffice to avoid summary judgment. Failure to do so can result in granting the motion, *fn23" which, however, will be construed in the light most favorable to the non-moving party. *fn24"

 Courts exercise discretion only in denying summary judgment in a particular situation *fn25" and use fastidious caution in granting it. *fn26" The responsibility belongs to the Court to review all facts to determine whether a genuine issue exists as to any material fact, *fn27" which may be defined as one which affects the outcome of the litigation. *fn28" Particularly where plaintiffs seek recovery under Section 402A as adopted and interpreted by Pennsylvania courts *fn29" this requirement does not encroach upon the role at trial of the factfinder, whether judge or jury. *fn30" Similarly, even though a jury ordinarily determines proximate cause "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". *fn31"

 In the case at bar defendant contends that plaintiff cannot demonstrate sufficient evidence to create a genuine issue as to the material fact that the alleged defect in the scooptram did not cause the death of plaintiff's decedent. Plaintiff predicates liability on the lack of an automatic warning device not requiring manual activation to warn persons that the scooptram was nearby. *fn32" This omission, plaintiff argues, prevented plaintiff's decedent from perceiving the presence of the unit and taking measures to avoid injury. *fn33" However, at the time that defendant sold the scooptram it had a horn, which could have been used to warn plaintiff's decedent. *fn34" Assuming for the moment that the scooptram was defective at the time of sale, plaintiff would nonetheless still need to prove that the defect constituted the proximate cause of the injuries suffered by plaintiff's decedent. *fn35" Plaintiff assumes that an automatically activated warning device would have prevented this accident. *fn36" The driver testified that the scooptram traveling through the mine, "lit up like a Christmas tree" and made noises like a diesel truck, particularly when the scrubber was as dry as it was at the time of the accident. The driver emphasized that, immediately before the accident, he saw plaintiff's decedent, whose conduct indicated that he had seen and heard the approaching scooptram. At this point the two men stood less than several hundred feet apart. In accordance with mine safety procedures *fn37" the decedent turned to face the scooptram. The driver saw the light on the helmet worn by the decedent, who, he assumed, then stepped into the water drainage manway out of the path of the scooptram. The decedent had no known hearing or seeing problems. *fn38"

 Consequently, the presence or absence of any audible or visual device, whose sole function would have been to alert the decedent that the scooptram was coming, could not have caused the accident because the decedent saw and heard the approaching scooptram. *fn39" No genuine issue exists as to this material fact, and plaintiff has not pointed to any evidence indicating the existence of a triable issue of material fact. Plaintiff cannot rely on evidence "by way of innuendo" or "possibilities" that the operator would have used a horn. *fn40" Accordingly, defendant's motion for summary judgment will be granted. *fn41"

 Alternatively, even if the absence of an audible warning device caused the scooptram to be in a defective and unreasonably dangerous condition causing the accident, plaintiff has not demonstrated sufficient evidence to create a genuine issue as to a material fact that the scooptram had been changed substantially subsequent to defendant's sale. To prevail under Section 402A, plaintiff must prove, inter alia, that the scooptram reached plaintiff's decedent "without substantial change in the condition in which it was sold". *fn42" Initially defendant has the burden of coming forward with evidence indicating that a substantial change occurred in the condition in which it sold the scooptram. *fn43" Affidavits submitted by defendant established that the scooptram had an operable horn at the time defendant sold it but that the horn had been removed sometime prior to the accident. *fn44" The scooptram was also equipped with four headlights, two of which had been removed by the time of the accident. *fn45"

 With this demonstration the burden shifted to plaintiff to show by a preponderance of the evidence that no such substantial change occurred *fn46" because plaintiff's failure "to negate substantial changes is the same as saying that (she) failed to negate the break in the causal connection between the original defect and the ultimate injury". *fn47" Defining "substantial change", one court considered the language to require "some causal connection with the accident". *fn48" Deposition testimony indicated that the scooptram had an operable electric horn at the time of sale and that sometime during the seven and one-half years between the date of sale and accident the horn had been removed. *fn49" Interestingly, the MESA report stated that the accident had been caused by the scooptram operator's loss of


visual contact with (a) man talking or standing in a haulage draft and assuming that he went into a safe area, away from the path of the (scooptram) unit. A contributory factor was the lack of communication between the (scooptram) operator and the secondary driller and blaster and his help ... *fn50"

 This report recommended that the units carry audible warning devices, such as horns, to be used in areas of restricted visibility. Similarly, the employer's mine report advised examination of the feasibility "of installing equipment for use by operators to warn all persons of start-up and movement in areas where an operator's visibility is limited to the extent that he cannot reasonably be expected to observe workers in the area". *fn51" The scooptram driver testified that he saw plaintiff's decedent several hundred feet in front of him with ample opportunity to blow a horn if one had been mounted on the vehicle at the time. *fn52" Even plaintiff's proffered expert agreed that use of the type of horn originally installed on the unit could have averted the accident. *fn53" Under the circumstances of this accident, particularly in light of plaintiff's ultimate theory of liability, removal of the horn "substantially changed" the scooptram within the meaning of Section 402A. *fn54"

 In Schreffler v. Birdsboro Corp. *fn55" a load of hot steel pushed plaintiff against a machine with which he was working. Plaintiff had been standing on a "transfer table" fastening chains around a load of steel in anticipation of a crane removing the steel. The transfer table, manufactured by the defendant, consisted originally of a series of parallel rails with openings between them. The employer, however, had added steel plates between the rails to enable workers to walk between the rails and remove steel. Safety experts had recommended installation of emergency apparatus to prevent steel from continuing to roll on the machine if a worker appeared in the vicinity. The trial court granted a directed verdict in favor of defendant. *fn56" Affirming, the Court of Appeals held that


indisputably, after the defendant relinquished control, the table was so substantially modified that it was then feasible to use the equipment in a manner different from that which would have been expected from observation of the original design ... Thus the plaintiff failed to prove a critical prerequisite that the product was in the same condition, so far as was relevant, on the date of the accident as it was at the time (the employer) acquired possession. *fn57"

 The court, also indicating that plaintiff had failed to show that the defendant's conduct regarding the alleged product proximately caused the accident, emphasized that such an issue generally lies with the jury but that the trial court should rule on the issues of proximate cause and substantial change. *fn58"

 In Hanlon v. Cyril Bath Co. *fn59" the plaintiff alleged that the manufacturer of a press brake was liable to him for injuries he suffered when he accidentally activated the press brake while attempting to remove a piece of metal that had become stuck in the press, which originally had been equipped with a manual starting mechanism consisting of a foot pedal requiring the operator to lift his foot a considerable distance and then to exert approximately sixty-five pounds of pressure to activate the machine. Plaintiff's employer replaced this manual mechanism with an easily operated electric foot switch similar to a dictaphone foot pedal. Inadvertently, plaintiff stepped on the electrical switch while his hand was in the press, which severed several of his fingers. Plaintiff alleged that the press was defective at the time it was sold by the defendant because it lacked a safety device to prevent the machine from being activated while the operator's hand was in the machine. The Court of Appeals, sustaining a jury verdict in defendant's favor, noted that "in relation to danger of accidental activation, this substitution of a significantly different and much more sensitive starting mechanism was a substantial change in which (the press brake) was sold within the meaning of Section 402A". *fn60" The court further held that defendant was entitled to a directed verdict because undisputed evidence established the substantially changed condition of the allegedly defective machine. *fn61"

 In the case at bar, subsequent to the sale of the scooptram the horn was removed and not replaced by any other warning device. The parties do not dispute this fact. *fn62" In view of the circumstances surrounding the accident and the state of the present record, the removal of the horn substantially changed the condition of the scooptram. Defendant has met successfully the threshold burden of its motion; *fn63" plaintiff has not met hers. Plaintiff responds with the contention that the scooptram should have been equipped with an automatic warning device operating independently of the driver. However, whether such a device would have been feasible and if so, would have averted this tragedy comprise suspicions or hypothetical possibilities which will not create a genuine issue as to this material fact, *fn64" particularly where the record does not support plaintiff's argument.

 For example, plaintiff has not demonstrated how such a device would operate. Her proposed expert testified at his deposition that such a device would operate independently of the operator whenever there was a blind spot. However, he conceded that there was always a blind spot on the scooptram. *fn65" This expert also confessed that he did not know how such a device could be designed. *fn66" Assuming for the moment that he would qualify as an expert, *fn67" his unsupported conclusions will not create a genuine issue as to any material fact. *fn68" More importantly, this same expert acknowledged that even if an automatically activated audible device operating independently of the driver were practicable, and even if the scooptram had been equipped therewith, he could not conclude that the accident would have been prevented by installation of one. *fn69" In short, plaintiff has not produced any evidence suggesting the feasibility of designing an automatic warning device, whether it would have had any positive effect, and whether the use of this device would have prevented the instant accident. *fn70" Accordingly, defendant's motion for summary judgment will be granted.

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