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July 28, 1983


The opinion of the court was delivered by: TROUTMAN


 Defendant, Towmotor Corporation (Towmotor), moving for judgment notwithstanding the verdict or for a new trial, argues generally that plaintiff's *fn1" proofs are legally insufficient to support the verdict. Towmotor's primary contentions in this products liability case are that plaintiff failed to adduce any evidence of a "defect", that plaintiff's aletrnative design concept is not feasible, that the intervening negligence of a third party was the proximate cause of the accident and that plaintiff's counsel admitted to the jury that the third party's conduct was the legal cause of plaintiff's injury.

 A brief factual description of the events which gave rise to the litigation is helpful to understanding our resolution of the issues. In reciting the facts we are mindful that, as to defendant's motion for judgment notwithstanding the verdict, all inferences must be drawn in favor of the verdict winner. Marian Bank v. International Harvester Credit Corp., 550 F. Supp. 456, 460 (E.D. Pa. 1982). Defendant's motion for a new trial, on the other hand, is committed to our sound discretion and may only be granted when it is "quite clear that the jury has reached a seriously erroneous result". Id. at 463.

 Plaintiff was injured in September 1979, while working as a pipe-fitter and a burner at the Argyle Manufacturing Company. (N.T. 20-21). His injuries occurred in the following manner: Plaintiff's co-worker, Anthony "Chip" Ventere, placed a loaded "pipe buggy" on the ground near the plaintiff. (N.T. 21-22). The pipes in the buggy had to be measured but they were too long for one person to do the job. Ventere and plaintiff consequently measured the pipes together. In order to do this, Ventere had to get off the forklift which he had been driving. Unfortunately, Ventere did not set the handbrake, (N.T. 22), and failed to take any precaution to immobilize the vehicle. Worse, he stopped it on a slight, perhaps imperceptible, grade. (N.T. 23). The forklift, now driverless, slowly drifted towards Ventere and the plaintiff. Plaintiff "felt something against [his] leg" and yelled to Ventere to get out of the way. Ventere did. Unfortunately, plaintiff was unable to move with equal dispatch. The forklift struck him, (N.T. 22-23); plaintiff suffered a traumatic amputation of the right leg below the knee. (N.T. 26). The jury returned a verdict in the amount of $250,000. (N.T. 373). We added damages for delay under Pennsylvania R. Civ. P. 238 in the amount of $86,986.30 (N.T. 378). See, Hayden v. Scott Aviation, Inc., 684 F.2d 270 (3d Cir. 1982); Jarvis v. Johnson, 668 F.2d 740 (3d Cir. 1982).

 Plaintiff's theory of liability is that the forklift should have had a passive, "back-up" brake system which would have immobilized the vehicle when an operator, such as Ventere, failed to follow recommended safety procedures. Plaintiff specifically argued that the forklift should have had a seatbrake which would automatically engage the regular brake when the driver left the vehicle. Alternatively, plaintiff argued that the vehicle should have been equipped with a buzzer or alarm to alert drivers who fail to set the handbrake prior to dismounting.

 We now turn to the legal issues raised by the defendant.

 Defendant asserts that plaintiff was unable to show that the forklift was defective in that, according to Towmotor, the vehicle's design represents a fair and reasonable accommodation between the competing interests of safety, cost and utility. Defendant's argument, stripped to its essence, is that we erred in discharging our judicial function when we submitted the case to the jury. Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A. 2d 1020, 1026 (1978).

 In Azzarello the Pennsylvania Supreme Court held that trial courts must determine whether the supposedly defective product is "unreasonably dangerous". After that determination is made, the case should be submitted to the jury. The term "unreasonably dangerous" must, however, be omitted from the charge. Id. Interpreting Azzarello, Hammond v. International Harvester Co., 691 F.2d 646, 650 (3d Cir. 1982), held that when the trial court submits a case to the jury it has sub silento made the judicial determination that, under plaintiff's proofs, the product is unreasonably dangerous. Defendant's motion attacks this judicial decision made at trial.

 Defendant argues that prior to Azzarello, a proper ยง 402A charge instructed the jury that it must strike a balance between the cost, utility and safety aspects of the allegedly defective product. See, Bowman v. General Motors Corp., 427 F. Supp. 234, 244 n. 18 (E.D. Pa. 1977). According to defendant, Azzarello mandated a change in the identity of the decisionmaker who must make this determination. Azzarello did not, however, obliterate the requirement that this determination be made.

 Defendant's argument finds some support in Azzarello which requires courts, based upon consideration of "social policy" to determine if the product is "unreasonably dangerous". Azzarello v. Black Bros. Co., Inc., 391 A.2d at 1026. The inquiry is guided by whether the product is safe for its "intended use", i.e., whether the product lacked " any element necessary to make it safe . . . or possess[ed] any feature that renders it unsafe . . .". Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 at 1026-27. (quotation omitted)(emphasis added).

 We submitted the case to the jury after concluding that, under plaintiff's proofs, the forklift was "unreasonably dangerous" when it left defendant's control. Specifically, the forklift was designed and manufactured in such a way so as to allow it to drift unattended and without warning down an imperceptible slope. True, forklift manufacturers do not "intend" to have their products left unattended when not immobilized. However, the law obliges them to design safe products which will not cause harm except when used in a "truly unforeseeable" manner which is "so extraordinary as to not have been reasonably foresee[n]". Baker v. Outboard Marine Corp., 595 F.2d 176, 183 and 184 (3d Cir. 1979).

 When we submitted the case to the jury we concluded that operator error, oversight or absentmindedness are all "reasonably foreseeable" events which design standards must contemplate. Plaintiff claimed that an automatic seatbrake would have made the product safe. Alternatively, plaintiff argued that the forklift should have been equipped with a seat-activated alarm which would alert the potentially forgetful operator to immobilize the vehicle prior to dismounting. This device would assertedly be similar to buzzers on cars which remind drivers to fasten their seat belts. Based upon these considerations, and the mandate of Azzarello, we believe that we properly submitted the case to the jury.

 Defendant also contends that plaintiff failed to carry its burden of showing that the proposed safety device is feasible. Huddell v. Levin, 537 F.2d 726, 737 (3d Cir. 1977); Jeng v. Witters, 452 F. Supp. 1349, 1359 (M.D. Pa. 1978), aff'd, 591 F.2d 1335 (3d Cir. 1979). Specifically, defendant points to testimony that forklift operators frequently stand while driving and maneuvering the machines. An automatic seatbrake would preclude this type operation. Moreover, defendant adduced testimony that vehicles of this type are frequently operated over rough terrain and that the driver is bounced around and jostled in his seat. An automatic seatbrake would abruptly and repeatedly stop the vehicle under such circumstances, move the load on the forks and possibly throw the driver out of the vehicle. Finally, defendant introduced testimony that operators would rely upon the seatbrake as a primary rather than as a secondary safety system. Hence, operators might not use the handbrake. The ...

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