The current law in Pennsylvania is unclear as to the nature of the legal issue involved in this area of causation. In the recently filed opinion of Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982), the Supreme Court of Pennsylvania split over whether or not the issue involves proximate cause or cause in fact. That case was brought by the administratrix of the estate of James Sherk who was fatally injured when he was shot by defendant Robert Saenz who was using a pump-air rifle manufactured by defendant Daisy-Hedd. Justice Roberts, in an opinion in which Justice Hutchinson joined and Justice McDermott concurred in result, held that the plaintiff had not established that a failure to provide adequate warnings of the lethal propensity of the rifle was a proximate cause of the injury. Unfortunately for this court the opinion does not present a guideline on the determination of proximate cause. The Pennsylvania court, however, recognized that Saenz sufficiently appreciated the nature of the risk of misusing the rifle by pointing it at the decedent.
The plaintiffs in Sherk argued that had Robert Saenz's parents known of the lethal propensity of the rifle, they would not have allowed him to purchase the gun and the injury would not have occurred. The instruction manual accompanying the rifle did state "you must never point your gun toward any living thing . . . ." (Sherk, plurality opinion, footnote 5). However, the manual had not been read by either Saenz or his parents. The plurality opinion does not address whether or not the purchase would have been made had an adequate warning been present. However, it does imply that such a warning would have been irrelevant based on Mrs. Saenz's testimony over the manner in which the decision to purchase was made. Sherk, plurality opinion, 450 A.2d at 619.
Justice Hutchinson's concurring opinion points out that the plaintiff failed to show causation. But he asserts that the case deals with cause in fact rather than proximate cause. He holds that "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." Sherk, concurring opinion, 450 A.2d at 620.
In the case sub judice, plaintiffs' argument is indistinguishable. Their expert, Maurer, testified that appropriate warnings would have included the propensity of the product to become scratched and the need to use special maintenance procedures on the material. Plaintiffs allege that had Goodrich included such warnings, Hertz would not have bought the curtains and plaintiff Gerald Davis would not have been struck by the car. This argument fails for two reasons.
First, plaintiffs introduced no evidence that Hertz purchased the product for its transparency. In fact, no evidence was introduced that Hertz saw any sales literature or brochures from B.F. Goodrich or Curtron. Hertz appears to have made the purchase because the strip doors prevent the machines in the wash bay from freezing, by keeping cold air out and hot air in.
Second, just as Robert Saenz was aware of the risk of firing the rifle while pointing it toward the decedent, so was Schmidt, according to his own testimony, aware of his inability to see through the curtain before he drove through them. The lack of a warning concerning the curtain's propensity to become opaque did not in fact cause the accident. A warning would have served no purpose. It would have informed Hertz and its employees that the material could become opaque. That is information that anyone encountering the curtain would know by visual observation. The testimony of Schmidt and plaintiff Gerald Davis unequivocally establishes that each man was aware that the curtain was difficult to see through "from day one." Whether the appropriate test is proximate cause or cause-in-fact the result is the same. No causal connection exists between the accident and the lack of warnings.
Finally, even if this court were to find that an inadequate warning was the cause of the accident, plaintiff husband assumed the risk of injury. To repeat the testimony of plaintiff Davis, he was aware of the opaqueness of the curtain and, notwithstanding that knowledge, proceeded to stand behind the curtain, knowing also that automobiles would be driven through the curtain toward him.
His co-employee Schmidt, also aware of the visual limitation, drove through the curtains and struck husband plaintiff.
Plaintiffs also argue that it was false advertising that caused Hertz to buy the curtains and to fail to maintain them. However, this claim by plaintiffs is not covered under 402A which is plaintiffs' theory of liability.
Due to the disposition of Goodrich's motion for judgment n.o.v., the accompanying motion for a new trial need not be addressed. Further, this court has before it defendant Curtron's request for indemnity or contribution from B.F. Goodrich based on a Joint Tort Feasor Release Curtron executed with the plaintiffs. That request is denied based on the disposition of the judgment n.o.v.
The motion of the third-party defendant, B.F. Goodrich, for judgment n.o.v. is GRANTED.
The request of defendant Curtron for indemnification or contribution is DENIED.
Judgment is entered in favor of the third-party defendant, B. F. Goodrich, and against the plaintiffs.
IT IS SO ORDERED.