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PAUL BURCH v. SEARS (10/21/83)

filed: October 21, 1983.

PAUL BURCH
v.
SEARS, ROEBUCK AND COMPANY, AND GENERAL ELECTRIC COMPANY, AND TEXAS INSTRUMENTS, INCORPORATED. APPEAL OF GENERAL ELECTRIC COMPANY. PAUL BURCH V. SEARS, ROEBUCK AND COMPANY AND GENERAL ELECTRIC COMPANY AND TEXAS INSTRUMENTS, INCORPORATED. APPEAL OF SEARS, ROEBUCK AND COMPANY



Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3583 July Term, 1972. Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3583 July Term, 1972.

COUNSEL

Charles W. Craven, Philadelphia, for General Elec. Co., appellant (at No. 2330) and appellee (at No. 2367).

Keith Heinold, Philadelphia, for Sears Roebuck, Co., appellant (at No. 2367) and appellee (at No. 2330).

Louis Hinman, Philadelphia, for Burch, appellee.

James D. Wilder, Philadelphia, no appearance entered nor briefs submitted, for Texas Instruments, Inc., appellee.

Spaeth, Wieand and Hoffman, JJ. Wieand, J., files a dissenting opinion.

Author: Hoffman

[ 320 Pa. Super. Page 448]

Appellants Sears and General Electric contend that the lower court erred in this products liability action by denying their motions for judgment n.o.v. or for a new trial on grounds that the verdict was against the weight of the evidence. Appellant General Electric also contends the lower court erred in evidentiary rulings, in instructing the

[ 320 Pa. Super. Page 449]

    jury, and in requiring it to indemnify Sears. We find these contentions without merit and, accordingly, affirm.

In reviewing a denial of judgment n.o.v. we must view the evidence in the light most favorable to the verdict winner and draw all reasonable inferences and resolve all conflicts in testimony in that party's favor. Schneider v. Albert Einstein Medical Center, 257 Pa. Superior Ct. 348, 390 A.2d 1271 (1978). In reviewing a denial of a motion for a new trial we must consider all the evidence. Only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice should a new trial be granted. A lower court's decision in this regard will not be reversed absent an abuse of discretion. Yandrich v. Radic, 291 Pa. Superior Ct. 75, 435 A.2d 226 (1981). So viewed, the facts are as follows:

On August 8, 1970, appellee Paul Burch was cutting grass with an electric lawn mower. Twice the mower shut off and would not restart until he pushed the reset button. About the third time the motor shut off, he decided to unclog the rotor blade. He placed the mower on its side without disturbing the reset button, then reached in to remove clumps of grass with his left hand. The motor restarted, severely injuring his hand. His index and middle fingers were subsequently amputated, his ring finger permanently immobilized, and his thumb and little finger shortened.

On July 25, 1972, appellee sued Sears, which had originally sold the mower under its "Craftsman" brand name. Appellee alleged the lack of "deadman's switch," that would have automatically turned off the power when the operator released the controls, was a defect in the mower's design. On August 17, 1973, Sears sued General Electric, the supplier of the mower's electrical system including the reset button, motor, and on/off switch. General Electric in turn sued Texas Instruments, the manufacturer of the reset button and its thermal cut-off switch. After trial on February 7, 1979, the jury awarded appellee $20,000 plus interest against Sears. It found for Sears against General Electric

[ 320 Pa. Super. Page 450]

    and exonerated Texas Instruments. The lower court, on September 2, 1980, entered judgment in favor of Burch and requiring equal contribution between Sears and General Electric. However, on September 30, it modified that judgment to require General Electric to wholly indemnify Sears. Post-trial motions were denied, and Sears and General Electric have appealed.

Appellants raise three sets of contentions concerning judgment n.o.v. and the weight of the evidence: (1) that appellee did not prove the lack of a deadman's switch was a "defect"; (2) that appellee's placing his hand near the blade was either extraordinary consumer behavior negating defect, a superseding cause, or an assumption of the risk; and (3) that the mower was substantially changed since leaving the seller.

Several courts have held that the lack of a deadman's switch, that would automatically turn-off machinery when a user relaxes his grip on the controls, presents a jury question of a lawn mower's defective design. See Baker v. Outboard Marine Corp., 595 F.2d 176 (3d Cir.1979) (applying Pennsylvania law); Daniels v. McDonough Power Equipment Inc., 430 F.Supp. 1203 (D.Miss.1977); Schurr v. Royal Globe Ins. Co., 353 So.2d 215 (Fla.App.1977); Hubbard v. McDonough Power Equipment, Inc., 83 Ill.App.3d 272, 38 Ill.Dec. 887, 404 N.E.2d 311 (1980). See generally Annot., 41 A.L.R.3d 986 (1972 & Supp.1982). A manufacturer or seller is strictly liable if a defect in its product causes injuries to a user. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966); Restatement (Second) of Torts § 402A. A product is defective if it is unsafe for its intended use. Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978). The finding of a defect requires a balancing of the utility of the product against the seriousness and likelihood of the injury and the availability of precautions that, though not foolproof, might prevent the injury. Schell v. AMF, Inc., 567 F.2d 1259 (3d Cir.1977). When submitting the issue of defect to a jury, the court must first view the evidence in the light most favorable to the plaintiff to

[ 320 Pa. Super. Page 451]

    determine if a defect may be found. Azzarello v. Black Bros. Co., supra.*fn1 Here, appellee's expert testified the mower was unsafe because it lacked a deadman's switch, such as is used on electric saws and drills, that would have turned-off the mower's electric current when the operator relaxed his grip. The expert testified that such switches, costing less than five dollars, were available at the time of design and could prevent inadvertent restarting and the attendant risks of injury. Appellants' expert countered with testimony that a deadman's switch had been considered, tested, and rejected during the design of this mower. He asserted that the deadman's switch would interfere with an operator's keeping the cord clear of the blade, would be less durable and therefore less reliable than the existing on/off switch, and finally might have its safety advantages negated by a consumer tendency to tie it in the "on" position. Viewing this evidence in the light most favorable to the verdict, we are satisfied that the jury could reasonably conclude that failing to provide the extra safety margin afforded by the deadman's switch rendered the product unsafe. Thus, judgment n.o.v. was properly denied. Upon considering all the evidence, it is neither patently unreasonable nor shocking to the conscience that the jury would give greater weight to appellee's expert testimony. Thus, the lower court's denial of a new trial on this point was not an abuse of discretion.

Appellants contend next that appellee's reaching his hand into the stalled mower constituted either a voluntary assumption of the risk or such extraordinary consumer behavior as to negate the defect or its causal connection to the accident. Because a product is defective only if it is unsafe for its intended use, Azzarello v. Black Bros. Co., supra, a finding of defect may be precluded when the

[ 320 Pa. Super. Page 452]

    plaintiff is injured when using the product in an "abnormal" manner. Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968). An allegedly abnormal use will negate liability, however, only if it was not reasonably foreseeable by the seller. Id.; Eshbach v. W.T. Grants & Co., 481 F.2d 940 (3d Cir.1973). For instance, a plaintiff's placing his hand into the operating machinery of a glass crusher was held so abnormal and unforeseeable as to preclude a finding of defect as a matter of law. Bartkewich v. Billinger, supra. See Leach v. Jagenberg-Werke A.G., 480 F.Supp. 244 (E.D.Pa.1979). However, that a user might place a hand near apparently stopped machinery or parts has been held to be sufficiently foreseeable to sellers to raise a jury question as to defect for failure to provide adequate safeguards. E.g., Schell v. AMF, Inc., supra; Elder v. Crawley Book Machinery Co., 441 F.2d 771 (3d Cir.1971); Taylor v. Paul O. Abbe, Inc., 380 F.Supp. 601 (E.D.Pa.1974); Dorsey v. Yoder Co., 331 F.Supp. 753 (E.D.Pa.1971), aff'd mem. 474 F.2d 1339 (3d Cir.1973). The related issue of causation is raised when the plaintiff's action is so reckless that the plaintiff would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding cause. Bartkewich v. Billinger, supra; Sherk v. Daisy-Heddon Corp., 498 Pa. 594, 450 A.2d 615 (1982) (firing gun at victim's head); Dorsey v. Yoder, supra. Finally, because assumption of risk may be a defense to a strict liability claim, Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966), when the plaintiff places himself in a position of danger, while consciously aware of and appreciating the danger, and not as a result of momentary inattention or inadvertence, he may be found to have assumed the risk, thus precluding liability. E.g., Schell v. AMF, Inc., supra; Green v. Parisi, 478 F.2d 313 (3d Cir.1973). But if the plaintiff believed his hand to be in a safe position, the jury may conclude that he has not in fact assumed the risk. Id.; Greco v. Bucciconi, 407 F.2d 87 (3d Cir.1969). Here, appellee testified that the motor was completely stopped and silent as it had been on the two prior stall-outs when it would not start until he pushed the

[ 320 Pa. Super. Page 453]

    reset button. His expert testified that the extra level of safety afforded by a deadman's switch could have prevented the motor from accidently restarting regardless of what had stopped the motor. Upon resolving doubts and conflicts in testimony, we find the jury could reasonably conclude that appellants could foresee that the motor might stall and that a user might attempt to unclog the blade by placing some part of his body near the blade. Thus, the conduct does not require a new trial or judgment n.o.v. on the issues of abnormal use or superseding cause. Similarly, the jury could reasonably conclude from the record that appellee believed the motor to be stopped so that it could not be restarted except by the reset button mechanism and therefore did not voluntarily assume the risk. Thus, the lower court did not abuse its discretion by denying the motions for judgment n.o.v. or new trial on these points.

Appellants' third contention is that the mower had been substantially changed in the seven years between its manufacture and the accident. If the condition of a product is "substantially changed" before it reaches the consumer, the manufacturer or seller will not be held strictly liable. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Restatement (Second) of Torts § 402A (e.g. raw material to finished goods). Also, if a product originally reaches the consumer as manufactured, and the plaintiff alleges a defect due to a malfunction, such as failing brakes, secondary causes, such as wear, tear, and deterioration may be found to have negated the causal link between the original condition of the product and the accident. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974). Here, however, appellee asserts not an unexplained malfunction but a specific design defect -- the lack of a deadman's switch as a safeguard against inadvertent restarting. None of the changes argued by appellants affected that design. Appellants showed that the mower had a replacement electrical cord, pitting and arcing on its plug, was purchased used, and had suffered wear and tear. Appellee rebutted the seriousness of the

[ 320 Pa. Super. Page 454]

    pitting and arcing and the condition of the replacement cord. In resolving the conflicting testimony, the jury could reasonably have found that the cord and plug were not the cause of the stopping and restarting. Moreover, regardless of why the motor stalled, the jury had a basis to conclude that such stalling was foreseeable to the sellers and that the unchanged design lacking a deadman's switch failed to protect against uncontrolled restarting. Accordingly, the lower court properly denied judgment n.o.v. and new trial.

General Electric contends next that appellee's expert witness was not qualified to testify as an expert and that he lacked a factual basis on which to give competent testimony on the defectiveness of the design. The qualification of an expert witness is a matter within the discretion of the trial court. Kravinsky v. Glover, 263 Pa. Superior Ct. 8, 396 A.2d 1349 (1979). If the witness has "sufficient skill, knowledge, or experience in [the] field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth," McCormick on Evidence, supra at 30 (footnote omitted), he or she is qualified as an expert. Once the expert shows he has some basis in fact for his opinion, his testimony is admissible. Id. Appellee's expert had a Ph.D. in mechanical engineering from the University of Pennsylvania. He did consulting work on the design of machinery, including safety devices, for Scott Paper Company and taught engineering at several universities. Even though he had never specifically designed lawnmowers, he nonetheless had a reasonable pretension to relevant specialized knowledge. He examined and tested this mower and its components after the accident. Although he never obtained or tested a similar mower with a deadman's switch and several years had elapsed between the accident and his tests, the lower court acted within its discretion in determining he did indeed have a basis in fact for his opinion on the design of the mower.

General Electric contends also that it should be granted a new trial because the lower court excluded photographs of the mower ...


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