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MONICA SHERK v. DAISY-HEDDON (08/23/82)

decided: August 23, 1982.

MONICA SHERK, ADMINISTRATRIX OF THE ESTATE OF JAMES LOUIS SHERK, DECEASED,
v.
DAISY-HEDDON, A DIVISION OF VICTOR COMPTOMETER CORPORATION, APPELLANT V. MICHAEL SAENZ, JUNE SAENZ, AND ROBERT SAENZ



No. 81-1-43, Appeal from the Order of the Superior Court at No. 12 April Term, 1979, entered March 13, 1981, reversing the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at No. 283 July Term, 1974 - Trespass, entered December 11, 1978.

COUNSEL

John W. Jordan, IV, Thompson, Rhodes & Grigsby, Pittsburgh, for appellant.

Peter J. Mansmann, Pittsburgh, for Monica Sherk.

Michael A. Donadee, Neighborhood Legal Services, Pittsburgh, for Michael and June Saenz.

Shelley Bould, Pittsburgh, for Robert Saenz.

O'Brien, C. J., and Roberts, Nix, Larsen, McDermott and Hutchinson, JJ. Flaherty, J., did not participate in the consideration or decision of this case. Hutchinson, J., joins in this opinion and files a concurring opinion. McDermott, J., concurs in the result. Larsen, J., files a dissenting opinion in which O'Brien, C. J., joins.

Author: Roberts

[ 498 Pa. Page 596]

OPINION

This is an action in trespass filed by the administratrix of the estate of James Sherk against appellant-defendant Daisy-Heddon in the Court of Common Pleas of Allegheny County on counts of strict liability, Restatement (Second) of Torts § 402A, misrepresentation, Restatement (Second) of Torts § 402B, and negligence. The administratrix, the appellee on this appeal, seeks damages for the death of James Sherk, who died after having been struck in the head by a "B-B" fired from a Daisy Power King Model 880 pump-up air rifle by Robert Saenz, a friend of the decedent. At trial appellee proceeded against appellant on the theory that

[ 498 Pa. Page 597]

    appellant, the manufacturer of the air rifle, had failed to provide an adequate warning of the rifle's lethal propensity and that the alleged failure to warn of the lethal propensity of the air rifle had caused James Sherk's death. At the close of the evidence, the trial court submitted the case to the jury with instructions on the count of strict liability, but denied appellee's request that the jury be instructed on the counts of misrepresentation and negligence.

The jury returned a verdict in favor of appellant, but on appeal a panel of the Superior Court (Lipez, J., dissenting) reversed the judgment entered upon the verdict and remanded for a new trial. 285 Pa. Super. 320, 427 A.2d 657 (1981). The Superior Court upheld the trial court's refusal to submit the count of misrepresentation to the jury,*fn1 but deemed a new trial to be necessary because, in its view, the trial court had improperly refused to charge the jury on negligence and had erroneously excluded evidence of the "community's perception" that BB guns previously marketed by appellant had been non-lethal.*fn2

Because the evidence presented at trial, including plaintiff-appellee's own evidence, precluded a finding that the allegedly inadequate warnings accompanying the Power King air rifle caused James Sherk's death, we conclude that the Superior Court erred in disturbing the judgment of the trial court. Hence, we reverse the order of the Superior

[ 498 Pa. Page 598]

Court and reinstate the judgment entered upon the jury's verdict in favor of appellant.*fn3

I

While the Superior Court properly held that a plaintiff may proceed on theories of both negligence and strict liability, see Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), it erroneously concluded that the trial court's failure to charge on negligence or to admit the challenged evidence requires a new trial. Liability in negligence or strict liability is not imposed upon a manufacturer simply for the manufacture of a defective product. Rather, the plaintiff must demonstrate that the injuries sustained were proximately caused by the product's defect. See Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also Kuisis v. Baldwin-Lima-Hamilton Corp., supra. The claimed "defect" in the Daisy Power King Model 880 pump-up air rifle was the alleged failure on the part of appellant Daisy-Heddon to provide an adequate warning of the Power King's lethal propensity. Although appellee proceeded on the theory that if the lethal propensity had been known, Robert Saenz would never have directed the Power King at James Sherk's head, appellee's proof established facts from which it must be concluded that Robert Saenz was legally chargeable with knowledge of the Power King's lethal propensity.

Robert Saenz, who was fourteen years old on the day of the shooting, testified that on that day he and James Sherk had been firing the Power King at glass bottles and tin cans from a distance of fifteen to twenty feet. Robert Saenz was aware that "depend[ing] on how many times you pumped

[ 498 Pa. Page 599]

[the rifle] up," the BBs fired from the rifle could shatter the bottles and pierce through the cans. He also testified that he had known that the air rifle was "some[what more] powerful" than the spring BB guns he had previously used. Moreover, he knew that a BB fired from the Power King could blind a person and that he should never point a gun at anyone. Indeed, Robert Saenz testified that he had expected to use the Power King to kill rabbits and rats. He had been told by his father and mother not to use the Power King until his father had instructed him in its use. On the day of the shooting, Robert Saenz used the gun without permission and without having read the instructions accompanying the Power King.*fn4

Robert Saenz was familiar with the operation of the Power King. He knew that in order for air to be pumped into the rifle, the bolt had to be opened and the manual safety device had to be pushed to the "on" position, in which position the red mark indicating that the rifle was ready to fire would not be visible. He also knew that the trigger would not fire the rifle when the bolt was open or when the safety was pushed to the "on" position. Robert Saenz admitted that, when he had directed the Power King at the decedent, he knew that the Power King had been pumped with air. He testified that he "just didn't bother" to check the position of the safety device. Instead, he pushed the safety device and "just assumed that it went on safe." In fact, he had pushed the safety from the "on" to the "off" position, thereby enabling the rifle to fire.

Robert Saenz testified that he had stood five feet from the decedent, who was sitting on the ground, and that he had pointed the barrel of the Power King at the decedent's head. He testified that he had "called Jimmy's name," intending that James Sherk would turn and look at him, and then "squeezed the trigger, thinking the safety was on." Robert Saenz further testified, "I was just horsing around,

[ 498 Pa. Page 600]

    intended to scare him. I was just fooling around." He said that, when he directed the rifle at James Sherk's head, he knew that "this was something that [he] shouldn't be doing" and "this was something that could injure [his] friend."

This evidence makes it clear that the Power King air rifle was misused by Robert Saenz in a manner that Robert Saenz knew could cause serious bodily injury. Despite his knowledge that BBs fired from the Power King could kill animals and blind a person, Robert Saenz directed the Power King from close range at James Sherk's head.

Where, as here, the lethal propensity of a gun was known or should have been known to the user, liability cannot be imposed upon the manufacturer merely because the manufacturer allegedly has failed to warn of that propensity. As stated by Dean Prosser,

"[t]here appears to be no reason to doubt that strict liability has made no change in the rule, well settled in the negligence cases, that the seller of the product is not to be held liable when the consumer makes an abnormal use of it. Sometimes this has been put on the ground that the manufacturer has assumed responsibility only for normal uses; sometimes it has gone off on 'proximate cause.'"

Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791, 824 (1966) (footnote omitted). See Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 32, 319 A.2d 903, 907 (1974) ("a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use"); Restatement (Second) of Torts § 402A comment h (1965) ("A product is not in a defective condition when it is safe for normal handling and consumption."). Thus, because this record demonstrates that Robert Saenz is legally chargeable with sufficient appreciation of the nature of the risk of his misuse of the Power King, he is exclusively responsible for the consequences of his misuse.

II

Appellee cannot prevail on the theory that if the parents of Robert Saenz had known of the Power King's lethal

[ 498 Pa. Page 601]

    propensity, they would not have permitted Robert Saenz to have possession of the Power King and thus be in a position to misuse it. The Power King was purchased by Mrs. Saenz from a mail order catalogue at the request of Robert and his older brother Wayne. Mrs. Saenz testified that she had "no knowledge of guns," and did not know "what BB guns look like." She purchased the Power King air rifle without consulting or informing her husband, at a time when her son Wayne "just hit [her] at the right moment with the proper approach." When the rifle arrived in the mail, Mrs. Saenz did not open the box or read the instructions. Instead, the box "was put away," and Mrs. Saenz directed her sons that the gun was not to be used until their father had instructed them in its use. Later that week, Mr. Saenz looked at the gun but did not read the operation and instruction manuals accompanying the Power King. Mr. Saenz testified that he had told Robert not to point the gun at anyone and not to use the gun until he had been instructed by him in its use. Mr. Saenz had intended to read the instructions and to instruct his children in the use of the gun on the upcoming Saturday, the day that the shooting took place.*fn5

[ 498 Pa. Page 602]

In Ucci v. Keane, 402 Pa. 467, 167 A.2d 147 (1961), this Court stated:

"[I]t is well established that 'Proof of injury alone, without more, or of the existence of the negligent condition without showing that it caused the injury complained of, is insufficient to establish a case of liability.' Burns v. City of Pittsburgh, 320 Pa. 92, 94, 181 Atl. 487 (1935). It is not enough that a defect exist which could not, even conceivably, have caused the accident. 'Proving that an accident happened, or the existence of an opportunity for it to happen in the manner alleged, is entirely insufficient to establish negligence: Stern v. Reading, 255 Pa. 96, 99 Atl. 367 (1916). Plaintiff must go further and show not only defendant's negligence, but that the injuries complained of were the result of such negligence.': Houston v. Rep.Ath.Assn., 343 Pa. 218, 220, 22 A.2d 715 (1941)."

Id., 402 Pa. at 471-72, 167 A.2d at 150. On this record it is clear that the alleged "defect" in the warnings accompanying the Power King air rifle did not cause James Sherk's death. Robert Saenz had possession of the Power King only because he had disobeyed his parents' directions not to use the rifle. Notwithstanding his own knowledge of the Power King's lethal propensity, his knowledge that the rifle should never be pointed at anyone, and his failure to check the position of the safety mechanism, he directed the Power King from close range at James Sherk's head. As this record establishes that James Sherk's death did not result from the allegedly inadequate warnings accompanying the

[ 498 Pa. Page 603]

Power King, appellant was entitled to a verdict in its favor on all counts.

III

Because the evidence refutes appellee's contention that James Sherk's death was caused by the allegedly inadequate warnings accompanying the Power King, the exclusion of evidence regarding the "community's perception" of BB guns other than the Power King air rifle marketed under the Daisy trademark did not adversely affect appellee's case. Thus, it is unnecessary to address the question of the admissibility of evidence of the "community's perception" of a manufacturer's products. Cf. Ucci v. Keane, supra, 402 Pa. at 472-73, 167 A.2d at 150 (plaintiff's failure to show "proximate cause as between the alleged negligence and the injuries sustained," makes it "unnecessary to discuss the standard and degree of care owing from the seller of goods to a foreseeable user").

Order of the Superior Court reversed. Judgment of the Court of Common Pleas of Allegheny County entered upon the jury's verdict in favor of appellant reinstated.

HUTCHINSON, Justice, concurring.

I join in Justice Roberts' Opinion and concur in his view that plaintiff has failed to show causation. Specifically, plaintiff has failed to establish any causal connection between the asserted inadequacy of defendant's warning and the tragic death of plaintiff's decedent. However, I wish to make clear my view that the issue we are dealing with in

[ 498 Pa. Page 604]

    this case is causation in fact, not the legal concept of proximate cause. Taking the evidence, as we must, in the light most favorable to the verdict winner, it is clear the person firing the fatal shot was well aware of the substantial risk of death or serious injury involved in pointing this gun at decedent's head and pulling the trigger. Whatever false expectations of safety the Daisy logo gave the community regarding this high powered air gun, the record shows the youth firing the shot knew the risks a warning would have alerted him to and acted without regard to them. The imposition of liability in any products case, including one based on Section 402A strict liability, requires a showing that the plaintiff's injury was caused by some defect in the product. Thus, where a finding that the product is defective within the meaning of section 402A is predicated on the theory that the manufacturer failed to provide adequate warnings of the dangerous propensities of the product the plaintiff must prove the failure to warn caused plaintiff's injury. See Annot., 13 A.L.R.3d 1085 (1967). Regardless of whether Daisy's warnings were inadequate, rendering the product defective under section 402A, plaintiff failed to establish causation because Saenz and his parents knew the risks which an adequate warning would have described and acted without regard to them. See Restatement (Second) of Torts, § 402A comment n (1965), See also Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976). Given that circumstance, the trial court's refusal to admit testimony of the Community's perception of the non-deadly nature of Daisy-Heddon air rifles, as that perception related to the adequacy of the warnings, was correct.

It is as if a man fell overboard into the ocean, immediately sinking without a trace. The failure to have a lifeboat ready is not a cause of death. See Prosser, Law of Torts § 41 (1971) citing Ford v. Trident Fisheries Co., 232 Mass. 400, 122 N.E. 389 (1919). But, c.f. Kirincich v. Standard Dredging Co., 112 F.2d 163 (3d Cir. 1940) (where there was evidence that the drowning man might have been saved). Whatever the warning furnished by Daisy, it would have

[ 498 Pa. Page 605]

    been ineffective in deterring the Saenz youth's conduct. Therefore, any inadequacy in that warning, in the sense it was not aptly designed to overcome the community's failure to appreciate the deadly nature of this particular air gun did not in fact cause plaintiff's decedent's death.

Issues of proximate cause, with its sub sets of intervening or superseding cause, involve the policy decision of selecting a cutoff limit, beyond which the law will not impose liability for the ever expanding but constantly declining force of an act setting in motion a risky set of events. They should not be reached until cause in fact is shown.

The liability imposed on manufacturers of defective products is denominated strict, or without fault, because the usual requirement that plaintiff show a breach of duty has been eliminated, or attenuated to the point of elimination. In such cases, under the principles of section 402A of the Restatement (Second) of Torts, a plaintiff is not required to prove the defendant failed to discharge his duty of care. In addition it either is assumed his duty extends to all users of the product, or that harm from the defect is foreseeable to all users. 2 Dooley, Modern Tort Law § 32.55 (1977). Thus the manufacturer may be liable to any person suffering harm even if he exercised all due care. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (plurality opinion). However, plaintiff must prove a defect existed in the product at the time of the accident and that this defect was the proximate cause of plaintiff's injuries. See Kuisis v. Baldwin-Lima-Hamilton Corp., 451 Pa. 321, 319 A.2d 914 (1974). If the policy issues relevant to proximate cause are analyzed in terms of foreseeability, distinct notions relating to cause can be easily confused with those relating to duty in the sense of scope of the risk. Extension of the duty to manufacture a product free of defects to all users may then be incorrectly thought to eliminate the requirement of proximate cause.

On the facts of this case we do not reach the issue of whether a failure to provide adequate warning was the forseeable or proximate cause of plaintiff's injuries because

[ 498 Pa. Page 606]

    such failure was not a cause in fact. Accordingly, I do not share the dissent's view that we have "overruled an entire body of Pennsylvania law concerning causation (substantial factor, proximate cause, intervening cause and superseding cause) . . ." See supra at 637 (Larsen, J., dissenting).

Strict liability for failure to warn is a means of protecting users of products from generally unrecognized risks in unavoidably dangerous useful products. By bringing the hidden risk home to the user it protects against a use in a manner likely to create that risk. Thus, the product is defective under the doctrine of strict liability if it is unreasonably dangerous without an adequate warning and no such warning is provided. Where the actor knows risk is present and still chooses to act without regard to it, the warning serves no purpose in preventing the particular harm. Imposing liability in such a case cannot be based on any connection between the failure to warn and the harm incurred. It can only follow from the assumption that a manufacturer is an insurer against all harm resulting from use of his product. Such an assumption must either be based on the inarticulated notion that no degree of social utility in a unavoidably dangerous but not defective product can prevent liability, even for fully recognized dangers; or that the degree of utility must be balanced against the nature of the risk by the fact finder. The former view makes all manufacturers insurers against all harm their products cause. The latter leaves to a jury the issue of whether the Daisy pump rifle's deadly propensities outweighed its utility. Neither seems required by our case law.

The dissent argues Daisy's marketing of the pump rifle constituted a substantial factor in causing the injury. That argument, which is superficially appealing, assumes a lethal weapon cannot be marketed without liability for all harm it causes, including harm from an unreasonable use, regardless of the nature and quality of the warnings accompanying it. Accepting this argument would eliminate the requirement that the product be defective and impose liability for harm from unavoidably dangerous propensities regardless of

[ 498 Pa. Page 607]

    warning, or knowledge, of those dangers. On that theory, Daisy's marketing of the rifle would constitute a substantial factor in causing the death of the Sherk child, when coupled with Saenz' foreseeable negligence. Such a theory was not advanced at trial, is not supported by the cases and has no relevance to the issue of admissibility of evidence of the community's perception of the deadly nature of Daisy's pump rifle. The proffered testimony was offered on the issue of the adequacy or inadequacy of Daisy's warnings. The arguable absence of adequate warnings plainly did not "cause" plaintiff's injury within any meaning of the word.

LARSEN, Justice, dissenting.

I dissent. The opinion of Mr. Justice Roberts announcing the result of the Court has, in essence, held that as a matter of law and without any need to present the issue to the jury, a subsequent negligent act of a second tortfeasor completely absolves an original tortfeasor from any responsibility for his negligent acts, even though the subsequent act of negligence was eminently foreseeable and was to be expected. (That opinion states "because this record demonstrates that Robert Saenz is legally chargeable with sufficient appreciation of the nature of the risk of his misuse of the Power King, he is exclusively responsible for the consequences of his misuse." At 618; emphasis added).

Such a position misperceives the nature of the defect inherent in the Daisy Power King, and muddles the separate concepts of cause in fact, intervening cause and superceding cause, thereby ignoring and avoiding much of the law of this Commonwealth pertaining to causation of damages. With the decision and result reached by the majority today, Pennsylvania has taken a giant step backwards in the development of negligence and products liability law.

In April, 1973, fourteen-year-old Robert Saenz purchased through a mail-order catalogue, with his parents' permission, a Model 880 "Power King" pump-up air rifle manufactured by appellant, the Daisy-Heddon Company (Daisy). On April 7, 1973, while playing with the Power King, Robert unintentionally

[ 498 Pa. Page 608]

    shot his friend, James Sherk (appellee's decedent, also fourteen), in the head with a BB. The BB penetrated James' skull and traveled five inches through his brain; ...


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