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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 problem would then arise when the operator remounted the vehicle using the seat to pull himself up. By doing so, he would deactivate the only engaged braking system. The forklift would then move forward well before the operator was in control of it.

 Plaintiff countered this defense testimony with evidence that similarly designed electric powered vehicles have, as a standard item, automatic seatbrakes. (N.T. 62). Plaintiff's experts opined that there is "no good reason" why gas powered forklifts do not also have such a seatbrake. (N.T. 62; 112-113). They also described a system which could hold the vehicle on an "acceptable" 5% grade, but would not activate the brake while the forklift was driven over rough terrain. (N.T. 61; 113-114; 126). One of the experts also opined that, as an alternative, manufacturers should include an audible buzzer which would remind the operator to set the handbrake. (N.T. 63-64). Echoing similar sentiments, plaintiff's second expert opined that manufacturers must anticipate some user error and design products with appropriate systems based thereon. (N.T. 89; 110).

 The jury heard this conflicting evidence and concluded that plaintiff's proffered design was safe and feasible. Specifically, a jury question is presented on this issue even where plaintiff is unable to provide a "clear and concise diagram or verbal picture of the type of device it posits". Hollinger v. Wagner Mining Equipment Corp., 667 F.2d 402, 410 (3d Cir. 1981). *fn2" Plaintiff's proofs at trial more than adequately met this standard.

 Towmotor also urges that the accident was legally caused by Ventere's misconduct in that he failed to immobilize the vehicle prior to dismounting. Indeed, defendant points to the fact that Ventere ignored the warning plate affixed to the vehicle which contains the following directions:


Parking -- Lower lifting mechanism to floor. Place directional control or transmission in neutral. Set parking brake. Turn "ON-OFF" switch off. Chock wheels if machine is on incline.

 The parties do not dispute that Ventere failed to follow any of these directions and, had he followed just one of them, the accident would not have happened. *fn3" It does not follow, however, that Ventere's misconduct relieves Towmotor of liability.

 First, although Ventere's misconduct may have "caused" the accident, an act "need not be the sole cause of an injury for it to be considered a proximate cause; it need only be a substantial factor in bringing that injury about". Murphy v. United States, 209 U.S. App. D.C. 382, 653 F.2d 637, 648-49 n. 47 (D.C. Cir. 1981). Accordingly, an event may have "more than one proximate cause". David v. Broadway Maintenance Corp., 451 F. Supp. 877, 882 (E.D. Pa. 1978). The accident may be fairly said to have had two causes; both Towmotor and Ventere are responsible.

 Second, questions of proximate cause are "ordinarily" determined by the jury. Meuller v. Jeffrey Manufacturing Co., 494 F. Supp. 275, 277 (E.D. Pa. 1980), aff'd, 649 F.2d 860 (3d Cir. 1981); David v. Broadway Maintenance Corp., 451 F. Supp. at 881.

 Third, negligent or other improper conduct by a third person will relieve the primary tortfeasor of liability only where the third person's conduct is "truly unforeseeable" or "so extraordinary as not to have been reasonably foreseeable". Baker v. Outboard Marine Corp., 595 F.2d at 18-384; Eshbach v. W.T. Grant & Co., 481 F.2d 940, 945 (3d Cir. 1973); Messenger v. Bucyrus-Erie Co., 507 F. Supp. 41, 43 (W.D. Pa. 1980); David v. Broadway Maintenance Corp., 451 F. Supp. at 882. Hence, even though Ventere may have been the immediate "cause" of the accident, the jury determined that his conduct was neither "truly unforeseeable" nor "so extraordinary as not to have been reasonably foreseeable". Baker v. Outboard Marine Corp., supra.

 Fourth, a jury question was presented as to whether the directions which relate to immobilizing the vehicle during "parking" were applicable when Ventere temporarily dismounted the forklift. For example, plaintiff's expert testified that Ventere did not "park" the forklift or leave it "unattended" within the meaning of the instructions and the applicable safety regulations. Specifically, Ventere was, at all times, within twenty-five feet of the vehicle which was purportedly in his view. (N.T. 98-99). The expert repeated this contention on cross-examination. (N.T. 119-120). Defendant's evidence was to the contrary (N.T. 210-215); its theory being that the instructions mandated that the forklift be properly immobilized every time the operator dismounts it. (N.T. 211). This question was argued to the jury by both plaintiff, (N.T. 327-328), and defendant, (N.T. 317-318), and we are unwilling to upset their determination.

 Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A. 2d 615 (1982), does not aid defendant in its theory that "product misuse" by Ventere caused the accident. In Sherk, the Pennsylvania Supreme Court absolved a B-B gun manufacturer of liability where the user thereof, knowing its dangerous propensities, pointed the gun at his friend's head and pulled the trigger. The court concluded that, in view of the user's knowledge and his purposeful, intentional conduct, liability could not be imposed upon the defendant because of any alleged failure to warn. Id. at 618. Thus, Sherk, a "failure to warn" case, sheds little illumination upon issues raised in this "defective design" case. *fn4"

 The final issue which we address is whether plaintiff's closing contained an admission that Ventere was solely responsible for plaintiff's injuries. Generally, admissions of fact made by counsel are binding upon their principals so long as they are "unequivocal". Glick v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972); Childs v. Franco, 563 F. Supp. 290, 292 (E.D. Pa. 1983). Where, however, a "doubt exists" as to the purported admission, the issue may not be removed from the jury's consideration. Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 484 (3d Cir. 1965), quoting, Oscanyan v. Arms Co., 103 U.S. 261, 263, 26 L. Ed. 539 (1880).

 Defendant asseverates that plaintiff made an unequivocal admission to the jury during closing. Specifically, defendant points to the following portion of plaintiff's closing:


Members of the jury, there is no question that Chip Ventere caused this accident. I submit to you there can be no other conclusion; that his carelessness at this moment caused the happening of this accident. He forgot to pull that handbrake. . . . I tell you he was responsible. He was careless, unfortunately, and he caused the accident.

 (N.T. 274-275).

 Immediately after this purported "admission" plaintiff attempted to rebut defendant's theory that Ventere's conduct was the sole legal cause of the accident. He stated that Ventere's conduct


is not the issue here. We are not trying this case on the question of what Chip Ventere did. That is not the issue. But there can be an argument made that his action shielded the manufacturer. The only way you can conclude that to be so is if you conclude that his conduct was truly extraordinary and not reasonably foreseeable, and I submit to you that you have heard ample testimony in this courtroom that human error, human failure, or "I forgot to set the handbrake" would not be considered a truly extraordinary and unreasonably foreseeable event by the operator of a forklift truck. So I would ask you to just consider that and you can easily put that argument to a rest.

 (N.T. 275).

 Although Ventere was referred to as a "cause" of the accident, the argument centered upon the theory that Ventere did not break the causal connection between Towmotor's design and plaintiff's injury. Plaintiff argued that although Ventere "caused" the accident, a verdict against the defendant was nevertheless warranted. The reason for this was cogently explained: Ventere's conduct could only constitute a superseding "cause" of the accident if it was so extraordinary as not to have been reasonably foreseen. The argument is supported by law. Baker v. Outboard Marine Corp., 595 F.2d at 183-84. The statement that Ventere "caused" the accident was also doubtlessly made in view of the fact that an event may have more than one proximate cause. David v. Broadway Maintenance Corp., 451 F. Supp. at 882.

 Plaintiff's argument to the jury was similar to our charge on the point. We instructed the jury that in order to find for plaintiff, it must conclude that the alleged defect was the "proximate cause" of the injuries which plaintiff suffered. (N.T. 349). We defined "proximate cause" in the following manner:


And what is proximate cause? An injury is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part or was a substantial factor in bringing about or actually causing the injury, and that the injury caused was either a direct result or a reasonable and probable consequence of the act or omission.

 (N.T. 349-50). We further instructed that the alleged defect would be a proximate cause of plaintiff's injuries if found to be a "material element and [a] substantial factor in bringing it about". (N.T. 350).

 We also addressed Ventere's conduct and instructed the jury that:


the defendant contends that the intervening conduct of the forklift operator Ventere, constitutes an intervening or superseding cause of the accident, and that any defect or defects in the machine were therefore not the proximate cause of the plaintiff's injuries. You are instructed that any conduct on the part of Ventere could serve as an intervening, superseding cause if and only if it was so extraordinary and as not to have been reasonably foreseeable by the defendant. Otherwise stated, Ventere's act or conduct must have been truly unforeseeable to the defendant to constitute an intervening cause of plaintiff's injuries.

 (N.T. 350-351).

 The parallel between plaintiff's closing and our charge need not be belabored. Both discussed Ventere's conduct, both related his conduct to the issue of causation and both concluded that the conduct would break the causal connection only if it was extraordinary and truly unforeseeable.

 Plaintiff's "admission" was an acknowledgment that Ventere's conduct was a factor in causing the accident. Even so, the "admission" does not amount to an "unequivocal" statement that Ventere was the sole legal cause of the accident. Glick v. White Motor Co., 458 F.2d at 1291. Indeed, while "admitting" that Ventere "caused" the accident, counsel also urged the jury to find that Ventere's conduct was neither "truly extraordinary" nor "reasonably unforeseeable". (N.T. 275). In light of this, plaintiff requested the jury to "put to rest" the notion that Ventere was the only legal cause of the accident. (N.T. 275). This argument was entirely proper, did not contain a binding admission and was referenced to the appropriate legal standard which emphasizes the "very limited role of third party negligence in a products liability case". Baker v. Outboard Marine Corp., 595 F.2d at 183.

 An appropriate order shall issue.



 AND NOW, this 28th day of July, 1983, IT IS ORDERED that defendant's motions for judgment notwithstanding the verdict and for a new trial are DENIED.

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