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JOHN J. BROGLEY AND MARY ANN BROGLEY v. CHAMBERSBURG ENGINEERING COMPANY (11/05/82)

filed: November 5, 1982.

JOHN J. BROGLEY AND MARY ANN BROGLEY, HIS WIFE, APPELLANTS
v.
CHAMBERSBURG ENGINEERING COMPANY, A CORPORATION, V. JONES & LAUGHLIN STEEL CORPORATION



No. 1176 Pittsburgh, 1980, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 75-28089, Issue No. 100721.

COUNSEL

William Berger, Pittsburgh, for appellants.

Michael W. Burns, Pittsburgh, for Chambersburg, appellee.

John E. Kunz, Pittsburgh, for Jones, appellee.

Wickersham, Wieand and Beck, JJ.

Author: Wieand

[ 306 Pa. Super. Page 318]

John J. Brogley, a blacksmith employed by Jones & Laughlin Steel Corporation, was injured in an industrial accident on December 12, 1973, when a die flew off the ram of a steam hammer. The steam hammer had been manufactured by Chambersburg Engineering Company and sold to Jones & Laughlin in May, 1930, more than forth-three years before the accident. An action in trespass was commenced

[ 306 Pa. Super. Page 319]

    against Chambersburg Engineering on the grounds that the tapered key assembly by which the die was attached to the ram had been defectively designed. Chambersburg Engineering caused Jones & Laughlin to be joined as an additional defendant*fn1 on the grounds that the steam hammer had been negligently maintained and the original design altered. The case was tried before a jury which returned a verdict in favor of Brogley for $25,000 against Jones & Laughlin alone. Because Brogley could not recover damages against his employer, the trial court molded the verdict in favor of defendant. Post-verdict motions were denied, judgment was entered on the verdict, and Brogley appealed.*fn2 We affirm.

Brogley had the burden of establishing at trial that the steam hammer was defective, that the defect was the cause of his injuries, and that the defect had existed at the time the product entered the market. See: Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975); Kuisis v. Baldwin-Lima-Hamilton Corporation, 457 Pa. 321, 331-332, 319 A.2d 914, 921 (1974); Smialek v. Chrysler Motors Corporation, 290 Pa. Super. 496, 501, 434 A.2d 1253, 1256 (1981); Gill v. McGraw Electric Company, 264 Pa. Super. 368, 378, 399 A.2d 1095, 1100-1101 (1979); Cornell Drilling Company v. Ford Motor Company, 241 Pa. Super. 129, 135-136, 359 A.2d 822, 825 (1976). Chambersburg contended, however, that there had been no defect in the design or manufacture of the steam hammer and that the accident had occurred because Jones & Laughlin had negligently substituted an improperly fitting key and had failed to inspect and discover the dangerous condition which had thus been created. To support this contention and to establish the general duty of care required of an employer, Chambersburg offered in evidence and the trial court received,

[ 306 Pa. Super. Page 320]

    over objection, an OSHA regulation which required employers to "maintain all forging equipment in a condition that would insure continued safe operation." Appellant contends that this was error.

Although the courts of this state have not had occasion to rule on the admissibility of OSHA regulations as evidence of negligence, they have uniformly held admissible other safety codes and regulations intended to enhance safety. See: Groh v. Philadelphia Electric Company, 441 Pa. 345, 349-350, 271 A.2d 265, 267 (1970); Janowicz v. Crucible Steel Company of America, 433 Pa. 304, 307-308, 249 A.2d 773, 775 (1969); Heck v. Beryllium Corporation, 424 Pa. 140, 226 A.2d 87 (1966); Skoda v. West Penn Power Company, 411 Pa. 323, 330, 191 A.2d 822, 826 (1963); Kuisis v. Baldwin-Lima-Hamilton Corporation, supra 457 Pa. at 330, 319 A.2d at 920; Lambert v. PBI Industries, 244 Pa. Super. 118, 132, 366 A.2d 944, 951 (1976); Burke v. Duquesne Light Company, 231 Pa. Super 412, 416-417, 332 A.2d 544, 545-546 (1974); Berkebile v. Brantly Helicopter Corporation, 219 Pa. Super. 479, 484, 281 A.2d 707, 710 (1971). See also: Bunn v. Caterpillar Tractor Company, 415 F.Supp. 286, 292-293 (W.D.Pa.1976), aff'd, 556 F.2d 564 (1977), cert. denied, 434 U.S. 875, 98 S.Ct. 224, 54 L.Ed.2d 154 (1977); Restatement (Second) of Torts, ยง 285. The courts of other states which have considered the issue, moreover, have held that OSHA regulations are admissible as a standard of care, the violation of which is evidence of negligence. See: Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 336, 582 P.2d 500, 508 (1978); Koll v. Manatt's Transportation Co., Iowa, 253 N.W.2d 265, 269-270 (1977); DiSabatino Brothers, Inc. v. Baio, ...


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