No. 1206 Pittsburgh, 1980, No. 1241 Pittsburgh, 1980, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 76-28483
William S. Schweers, Jr., Pittsburgh, for Stanley J. Smialek.
Thomas J. Reinstadtler, Pittsburgh, for Chrysler, appellee.
Donald W. Bebenek, Pittsburgh, for North Hills Passavant Hospital.
S. Asher Winicoff, Pittsburgh, for Drewel, appellee.
Cercone, President Judge, and Brosky and Hoffman, JJ. Cercone, President Judge, concurs in the result.
[ 290 Pa. Super. Page 499]
Appellant, Smialek, commenced this action against Chrysler Motors Corporation, North Hills Passavant Hospital (hereinafter Passavant) and Donald Drewel to recover damages for personal injuries suffered by his now deceased wife as a result of an automobile accident and treatment following it. A verdict was rendered in favor of Mr. Smialek and
[ 290 Pa. Super. Page 500]
against Passavant and Donald Drewel. The jury found no liability on the part of Chrysler. Post-trial motions for new trial and judgment notwithstanding the verdict filed by Mr. Smialek and Passavant were denied and these appeals, now consolidated followed. The central issue raised in Mr. Smialek's appeal is whether the lower court erred in its instruction to the jury concerning the potential strict liability of Chrysler. Finding that the instruction did erroneously suggest to the jury that a negligence standard was to be employed in this case, we reverse the order of the lower court.
Passavant raises the issue of whether the lower court erred in instructing the jury that it could assess a portion of the damages it awarded against Passavant, if the hospital were found negligent. Passavant also argues that even if an apportionment of the damages were appropriate, the facts do not support the jury's verdict. We find no merit to Passavant's claims and affirm the lower court's denial of its motion.
The facts surrounding the accident are as follows.
Appellee, Drewel, was the driver of an automobile which struck the Chrysler Cricket driven by Mrs. Smialek while that car was stopped at an intersection waiting to make a left turn. Upon impact, the tank of the Cricket was punctured, gas spilled on the highway and the Cricket caught on fire. Prior to being rescued from the automobile, Mrs. Smialek had inhaled smoke and had been exposed to heat from the flames. She was taken to Passavant Hospital where she was put on a respirator because she was having difficulty breathing. Mrs. Smialek was given Pavulon, a muscle paralyzing drug, so that she would be unable to remove the respirator tube. The respirator then became her sole mechanism for breathing. Mrs. Smialek was found at the front of her hospital bed with the tube detached. Efforts to resuscitate her failed and she was pronounced dead.
Mr. Smialek proceeded against Chrysler on a strict liability theory alleging that the design of the Cricket was defective and that the defect was a proximate cause of the injuries suffered by the decedent.
[ 290 Pa. Super. Page 501]
As the Pennsylvania Supreme Court explained in Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975).
Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff's injuries. Id., 462 Pa. at 93, 94, 337 A.2d at 898 (footnote deleted).
In Berkebile, the Supreme Court discussed the seminal case of Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), in which the court held that the seller of a product would be responsible for injury caused by his defective product even if he had exercised all possible care in its design, manufacture and distribution. In Berkebile, supra, the court held that "the 'reasonable man' standard in any form has no place in a strict liability case." Id., 462 Pa. at 96, 337 A.2d at 900 (emphasis added).
In analyzing the correctness of the charge on proximate cause given in that case, the court found error in the lower court's instruction that "such a consequence, under all the surrounding circumstances of the case must have been foreseeable by the seller." The charge was improper because, as the court explained, "To require foreseeability is to require the manufacturer to use due care in preparing his product. In strict liability, the manufacturer is liable even if he has exercised all due care." Berkebile, supra, 462 Pa. at 97, 337 A.2d at 900.
In Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), the Supreme Court explained the basis for the imposition of strict liability in products liability cases when it wrote:
The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business . . . . Courts have increasingly adopted the position
[ 290 Pa. Super. Page 502]
that the risk of loss must be placed on the supplier of the defect without regard to fault or privity of contract.
Id., 480 Pa. at 553, 391 A.2d at 1023, 1024 (footnote deleted).
In Azzarello, supra, the court explained that the question of whether a product is defective reaches the jury only after the court has weighed the relative risks and utility of the product and determined that, under plaintiff's averment of the facts, recovery would be justified. Id., 480 Pa. at 558, 391 A.2d at 1026.
In the Azzarello, supra, opinion the court discussed what it considered to be an adequate instruction. The court explained:
We believe than an adequate charge to the jury, one which expresses clearly and concisely the concept of "defect," while avoiding interjection of the "reasonable man" negligence terminology, is the jury instruction directed to the definition of a "defect," which was fashioned in large part by the Pennsylvania Supreme ...