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September 23, 1983


The opinion of the court was delivered by: FULLAM


 The wife-plaintiff, Patricia Conti, was seriously injured when, as she was in the process of entering, on the passenger side, a Ford automobile being driven by her husband, the plaintiff, Richard Conti, the vehicle suddenly and unexpectedly moved backward, throwing her to the ground. Contending that the accident was caused by a defective condition of the automobile, plaintiffs brought this action against the Ford Motor Company; the case went to trial solely on the issue of strict liability under § 402A Restatement (Second) Torts. The defendant caused a severance of the husband-plaintiff's claims, and joined him as a third-party defendant, on a negligence theory.

 The automobile was equipped with a standard transmission, rather than an automatic transmission. In cars equipped with automatic transmissions, and also in standard-transmission cars manufactured by General Motors (and, until fairly recently, cars manufactured by Chrysler Corporation), it is impossible to start the engine while the transmission is engaged. But all Ford standard-transmission automobiles (as well as most foreign-make standard-transmission vehicles) lack a cutoff switch which would prevent activation of the starter while the clutch is engaged. If the starter is activated while the car is in gear, there are two possibilities: that the starter motor itself will cause the car to move; or, as occurred in this case, that activation of the starter will also start the engine of the car, which will then propel the vehicle.

 The Ford automobile involved in this case was owned by the plaintiffs, and was customarily operated by the wife-plaintiff. The husband-plaintiff more frequently drove a van which was equipped with automatic transmission. On the occasion in question, the husband-plaintiff was about to drive his wife to visit a sick relative. The car had been parked in the plaintiffs' driveway, with the gear shift lever in reverse. As wife-plaintiff was entering the car, husband-plaintiff turned the ignition key to start the engine, but neglected to depress the clutch. The engine started, moving the car suddenly backward some five or six feet, at which point husband-plaintiff succeeded in stopping the vehicle; unfortunately, the movement caused serious injuries to wife-plaintiff.

 Plaintiffs presented the jury with two possible bases for imposing § 402A liability upon Ford Motor Company: (1) that the vehicle was defective and unreasonably dangerous in its design, because of the absence of a cutoff device which would have made it impossible to start the engine while the car was in gear, unless the clutch were depressed; and (2) that the defendant failed adequately to warn users of the dangers involved in attempting to start the engine with the car in gear. The jury's answers to special interrogatories imposed liability only on the failure-to-warn theory. The defendant's post-trial motions now before the court seek, inter alia, judgment n.o.v. on the ground that, as a matter of law, the warnings were adequate, and, in any event, any deficiency in the warnings was not a proximate cause of the accident.

 The operator's manual provided by the manufacturer is a lengthy and detailed booklet. It contains approximately 81 warnings and cautions, in bold-face print, concerning various features of the vehicle. None of these warnings relate to the characteristic involved in this accident. The only relevant entry appears at pages 122-23 of the manual, in an inconspicuous portion of the text, and reads as follows:

"On manual transmission vehicles, depress the clutch pedal and place the gear shift lever in the neutral position, as starter will operate while selector is in any gear."

 It should be noted that this instruction concerning the proper method of starting the car does not, except perhaps by implication, alert the reader to the dangers involved if the start-up instructions are not precisely followed. It should also be noted that, elsewhere in the manual, the operator is warned not to rely exclusively upon the emergency brake when the vehicle is left unattended; instead, the operator is advised to park the car with the gear shift lever in reverse.

 In my view, the evidence clearly sufficed to permit the jury to conclude that the warnings given by the defendant were inadequate. It is significant that, in addition to answering the special interrogatories, the jury added the following comment:

"We, the members of the jury, sincerely recommend that Ford Motor Company should install inside the cab of their cars warnings and/or cautions stressing the possible dangers of not following the operator's instructions exactly. Also, it should put more warnings and/or cautions in the operator's manual."

 The evidence was also clearly sufficient to support the jury's finding that the absence of adequate warnings was a proximate cause of the accident. The husband-plaintiff did testify that he had read the operator's manual, and was generally aware that he should have depressed the clutch before attempting to start the engine of a stick-shift car; but, until this accident, he was totally unaware of the possibility that the engine would start and propel the car in such circumstances. In its entirety, the husband's testimony leads one to conclude that he was guilty of momentary inadvertence, either in forgetting that the car had a stick-shift, or in overlooking the necessity of depressing the clutch before turning the ignition key. It was not unreasonable for the jury to conclude that the accident would not have occurred if the manufacturer had provided warnings adequate to alert the operator to the dangers involved. While it is probably true that most persons familiar with stick-shift automobiles are aware that such vehicles can be caused to move by activating the starter alone, it cannot be ruled as a matter of law that all operators are chargeable with knowledge that the motor will start under such circumstances, and "really" move the vehicle rapidly and substantially. Moreover, there was evidence to the effect that approximately 90% of all automobiles on America's highways today are equipped with automatic transmissions. The jury might well have concluded that it was inappropriate for the manufacturer to assume widespread familiarity with stick-shift transmissions. The husband-plaintiff was not, under the evidence, consciously testing a known danger, nor was his momentary inadvertence unforeseeable, so as to constitute superseding negligence. The jury's finding of proximate cause cannot properly be disturbed.

 I have considered the various contentions urged in support of a new trial, but have concluded that the issues were fairly and properly presented to the jury, whose decision must stand. I perceive no error in permitting the jury to view a filmed re-enactment of the start-up of the vehicle; this was merely helpful demonstrative evidence, and the differences between the re-enactment and the actual accident were clearly and repeatedly explained. If the jury accepted the testimony of plaintiffs and their medical witnesses, as the jury obviously did, the verdict was not notably excessive. The evidence tended to establish that, as a result of her injuries, the wife-plaintiff suffered a neurogenic bladder, resulting in complete and permanent loss of urinary control, necessitating self-catheterization six or seven times per day and night, for the rest of her life. The jury's award of $650,000 was perhaps generous, but not so excessive as to warrant judicial intervention.

 A principal thrust of defendant's post-trial motions and, in my view, the only substantial issue remaining in this case, relates to the possible application of Pennsylvania's comparative negligence statute and/or the statute providing for contribution among joint tortfeasors. See 42 Pa. Cons. Stat. Ann. §§ 7102 (comparative negligence), 8324 (joint tortfeasors) (Purdon Supp. 1982). As noted above, the liability of the defendant was predicated solely upon § 402A of the Restatement (Second) Torts, but defendant asserted a third-party complaint against the husband-plaintiff, alleging that he was negligent and that his negligence was a proximate cause of the accident and injury. Because of uncertainty concerning the applicability of the comparative negligence and joint tortfeasors statutes in the product-liability context, and in order to establish a factual predicate for a later determination of these issues, it was agreed by all concerned that the jury should be asked to determine the "percentage of causation" as between the defendant and the husband as third-party defendant. In addition to imposing 402A liability on the defendant, the jury further found that the husband was guilty of negligence, and that his negligence represented 75% of the cause of the accident; the jury assigned 25% of the causation to the defendant manufacturer. Shortly after the conclusion of the trial, I filed a brief Memorandum reflecting my tentative conclusion that the Pennsylvania Supreme Court would probably not invoke the comparative ...

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