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DAVIS v. R. H. DWYER INDUS.

October 8, 1982

Gerald DAVIS and Sheila Davis
v.
R. H. DWYER INDUSTRIES, INC., Curtron Industries, Inc. and Dynaforce Corporation, Defendants, v. B. F. GOODRICH COMPANY, Third-Party Defendant



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 After a jury trial in this strict liability case a verdict was returned by the jury in favor of the plaintiffs Gerald and Sheila Davis. Presently before the court is the motion of the third-party defendant B.F. Goodrich for judgment notwithstanding the verdict or, in the alternative, for a new trial.

 Plaintiffs brought this action against Curtron Industries, Inc. ("Curtron") and two other defendants no longer a part of this case. Curtron filed a third-party complaint against B.F. Goodrich, Inc. ("Goodrich") for indemnity and/or contribution. Husband plaintiff alleged that on January 17, 1980, while engaged in the washing and drying of motor vehicles for the Hertz Corporation in a car wash operated by Hertz, was struck by an automobile moving through the car wash and operated by another Hertz employee, Edward Schmidt.

 Hanging at the entrance to the wash bay was a Curtron Strip Door. This door consisted of poly vinyl chloride ("PVC") strips that were eight inches wide and hung from a device similar to a curtain rod. Defendant Goodrich manufactured the PVC material, called "KloroKlear", into rolls and defendant Curtron, after purchasing it, incorporated PVC into its strip door. Curtron sold the strip door to Hertz. Plaintiffs contended that due to a defect in the Curtron strip door material, Schmidt was unable to see through the curtains.

 After a trial based on the theory of strict liability, the jury returned a verdict of liability against Goodrich, attributing no liability against Curtron. Damages were awarded in the amount of $200,000 for Gerald Davis and $15,000 for his wife, Sheila Davis.

 It is Goodrich's contention that "KloroKlear" is not a defective product and further, the company's failure to warn of its propensity to become opaque, even if such a warning were necessary, was not a proximate cause of the accident. It therefore asks for judgment in its favor as a matter of law.

 In deciding the defendant's motion for a judgment notwithstanding the verdict, this court must determine whether, as a matter of law, a verdict should have been directed for the defendant at the end of the trial. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir. 1970).

 Rule 50(b) of the Federal Rules of Civil Procedure provides that whenever a motion for directed verdict made at the close of all evidence is denied, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Fed.Proc., L. Ed. § 62:692. In the case sub judice, the defendant made a timely motion for directed verdict which was denied.

 To grant a motion for judgment n.o.v., the court must find as a matter of law that the facts adduced at trial fail to justify the verdict. See, Woodward and Dickerson, Inc. v. Yoo Hoo Beverage Co., 502 F. Supp. 395, 397 (E.D.Pa.1980). "Such a motion 'may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment.'" Id., quoting 5A Moore's Federal Practice § 50.07[2], at 50-77. The jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand. For the reasons that follow, the court finds that the motion for judgment n.o.v. should be granted.

 A critical factor in determining whether or not a product is defective is whether the product is "unreasonably dangerous." Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020, 1024 (1978). However, the use of the term "unreasonably dangerous" is no more than "a label to be used where it is determined that the risk of loss should be placed upon the supplier." Id. 391 A.2d at 1025. Because such a determination is a decision of social policy, it is a question of law to be decided by the judge. Id. 391 A.2d at 1026.

 The manufacturer of a product, though not an insurer, is a guarantor of the safety of his product. Id. 391 A.2d at 1024. Both parties agree that PVC appears transparent when it is new. Plaintiffs' expert, Martin Maurer, testified that no one could see through the new curtains when looking from bright sunshine into the dark garage bay. Plaintiffs allege that this occurrence is a defect in the product. The accident, however, occurred after the curtains had yellowed and became scratched. The fact that the material deteriorated, the plaintiffs contend, also supports their contention that KloroKlear was defective when it was sold by Goodrich.

 Such conditions are not defects as a matter of law. Whether the yellowing is caused by normal wear and tear or by an abnormal wear and tear, the curtain material cannot be said to be "unreasonably dangerous." It is not as though the curtain material was in a defective condition manifested by absorbing water so that the curtains became heavy and fell on the husband plaintiff. Nor is it that they adversely reacted to the heat in the wash bay and burned him. Rather, the curtains were difficult to see through from ...


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