These considerations include the number of other factors which contributed in producing the injury, the extent to which they had an effect in producing it, whether the defect created a force which operated continuously and actively up to the time of the injury, and the degree to which time elapsed between the tortious conduct and the injury. Id.; see Wisniewski v. Great A. & P. Tea Co., 226 Pa. Super. at 582.
In the instant case, the court finds relevant some of the considerations mentioned in section 433 of the Restatement (Second). From the pleadings, it does indeed appear that a number of factors contributed to produce plaintiff's injuries. In addition, it is undisputed that the plaintiffs were struck by Orrach's car nearly six hours after Welland's product was spilled on the highway. However, the court cannot, from the pleadings, determine the degree to which each contributing factor had an effect upon the relevant events and it is impossible at this time to state that the six hour lapse of time has any legal significance. Moreover, a holding that the alleged defect did not, as a matter of law, create a "continuous force" would seem inconsistent with the court's obligation to construe the pleadings in plaintiffs' favor on this motion to dismiss.
It is well settled that "the determination of whether the conduct of the defendant was a substantial cause or an insignificant cause of plaintiffs' harm should not be taken from the jury if the jury may reasonably differ as to whether the conduct of the defendant was a substantial cause or an insignificant cause." Ford v. Jeffries, 474 Pa. at 595; see also Hoover v. Sackett, 221 Pa. Super. at 451. Inasmuch as the court cannot rule as a matter of law that proximate cause is absent at this point, Welland's motion to dismiss on this ground must be denied.
Superceding cause Welland next argues that even if its conduct amounted to negligence and proximately caused the plaintiffs' injuries, the conduct of defendant Orrach constitutes a superceding cause excusing the chemical company from liability. Under Pennsylvania law, "the mere happenstance" of an intervening negligent act will not relieve the original tortfeasor of liability. Sherk v. Daisy-Heddon, 498 Pa. 594, 634, 450 A.2d 615 (1982) (Larsen, J., dissenting); see Grainy v. Campbell, 493 Pa. 88, 425 A.2d 379 (1981). The Supreme Court of Pennsylvania has adopted section 447 of the Restatement (Second)
as embodying the pertinent rule of law. See Estate of Flickinger v. Ritsky, 452 Pa. 69, 74, 305 A.2d 40 (1973). The Flickinger Court summarized the rule of § 447, stating that "an intervening negligent act will not be a superceding cause . . . if that actor at the time of his negligent act should have realized that another person's negligence might cause harm; or, if a reasonable man would not regard the occurrence of the intervening negligence as highly extraordinary ; or, if the intervening act is not extraordinarily negligent." Id. at 75 (emphasis in original). Under this formulation of the relevant standard, it is clear that the court cannot rule that Orrach's conduct was a superceding cause as a matter of law. Indeed, the Flickinger Court emphasized that § 447 presents factual questions which normally must be decided by the jury.
On the instant record the court cannot exclude the possibility that, at the time of its alleged negligence, Welland "should have realized that another person's negligence might cause harm." A jury might very well find that the negligent transport of chemicals foreseeably could lead to the closing of an interstate highway and increase the likelihood of attendant traffic accidents. Accord, Grainy v. Campbell, 493 Pa. 88 at 92-93, 425 A.2d 379. Similarly, the court cannot rule that "a reasonable man" would, as a matter of law, consider the occurrence of the present accident to be "highly extraordinary." Id. Finally, the court cannot say that Orrach's conduct, as pleaded, was extraordinarily negligent, or "performed with disregard for a known and appreciated danger." See 452 Pa. at 76-77. For example, after some evidence is adduced, it may very well appear that Orrach did not even see the two firemen. For purposes of the present motion, however, it is sufficient to state that this is unclear from the pleadings. This being the case, the court cannot rule that Orrach's conduct excuses Welland from liability as a matter of law.
STRICT PRODUCTS LIABILITY
As to the strict products liability theory advanced by the plaintiffs, Welland argues that:
Plaintiffs are not within the orbit of danger created by the allegedly defective product. They did not use or consume the chemical nor did they enjoy its benefits. They did not repair or work with it. Plaintiffs were not remote users or consumers or even bystanders injured by the product. They stand outside every class of user, consumer or bystander capable of recovering damages due to product defect. The product did not injure them; Orrach did.
Brief in Support of Welland's Motion to Dismiss at 37, Document 10 of the Record. The Pennsylvania Supreme Court has adopted section 402A of the Restatement (Second) of Torts. See Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).
That section by its own terms applies to "users" or "consumers" of the allegedly defective product. The drafters of the section "expressed neither approval nor disapproval of expansion of the rule" to permit recovery by casual bystanders who come in contact with the product. See Restatement (Second) of Torts § 402A, comment o. However, in Fedorchick v. Massey-Ferguson, Inc., 438 F. Supp. 60 (E.D. Pa. 1977), aff'd, 577 F.2d 725 (3d Cir. 1978), Judge Bechtle of the Eastern District of Pennsylvania held that "Pennsylvania appellate courts, if faced with this issue, would extend § 402A's coverage to innocent bystanders." 438 F. Supp. at 63. I agree with that prediction. Of course, the bystander still must show that his injuries were proximately caused by the allegedly defective product. Id.; see Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893 (1975).
It is the purported absence of proximate causation which forms the basis for Welland's motion to dismiss the strict liability claims set forth here. Under Pennsylvania law, the seller or manufacturer is a virtual guarantor of his product's safety; once a defect is shown, "the actor is responsible for all the unforeseen consequences thereof no matter how remote, which follow in a natural sequence of events." 462 Pa. at 97 (citation omitted). This is not a case in which the court properly can rule that, as a matter of law, proximate cause is lacking. The court's analysis of the causation question in connection with the plaintiffs' negligence claims, see supra, is equally applicable in connection with their strict liability claims. Whether the plaintiffs' theory is that the chemicals were negligently transported or, as is alleged under the strict liability counts, that "Welland sold [its] product in a defective condition unreasonably dangerous in that it was not properly packaged," the court simply cannot hold on this record that Welland's alleged conduct on the product's alleged defect was not a substantial factor in causing the plaintiffs' injuries.
Regarding the question of superceding cause, Welland contends that "it has been held that in a products liability suit brought under Section 402A, the actions of a third party can relieve the manufacturer of liability if the conduct is so extraordinary as not to have been reasonably foreseeable." Brief in Support of Welland's Motion to Dismiss at 38 (citing Eshbach v. W.T. Grant's & Co., 481 F.2d 940, 945 (3d Cir. 1973)). Under this formulation of the superceding cause concept, however, it is imperative that the question of reasonable foreseeability "be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisaged the events which unfolded and caused the accident." 481 F.2d at 945 (quoting Wilson v. American Chain and Cable Co., 364 F.2d 558, 562 (3d Cir. 1966)); see also Baker v. Outboard Marine Corp., 595 F.2d 176, 183-84 (3d Cir. 1979). It appears, then, that Welland can be found not liable if Orrach's conduct constituted "highly extraordinary negligence" which, "viewing the matter with the wisdom of hindsight," could not have been anticipated. Holloway v. J.B. Systems, Ltd., 609 F.2d 1069, 1074 (3d Cir. 1979). The court cannot state that, as a matter of law, Orrach's conduct was highly extraordinary and could not have been anticipated by one with the wisdom of hindsight. Accordingly, Welland's argument will be rejected.
THE FIREMAN'S RULE
Finally, Welland urges the court to apply the so-called "Fireman's Rule" under which the plaintiffs would be denied recovery as a matter of law. To support the invocation of such a rule, Welland asserts:
Recognizing the strong public policy considerations against allowing plaintiffs such as these to recover, courts in Pennsylvania and other jurisdictions have determined that a person whose ordinary negligence causes a fireman or police officer to be present at the scene of an emergency is not liable to the fireman/police officer injured in the course of his duties. These cases have stated that the tortfeasor owes no duty to the fireman/police officer. This is known as "The Fireman's Rule."
Defendant Welland Chemical, Ltd's Reply Brief at 9, Document 24 of the Record (emphasis in original).
Inasmuch as this court sits as a Pennsylvania court in diversity cases, the question to be decided is whether the Fireman's Rule is applicable in Pennsylvania and, if so, whether it would be applied by a Pennsylvania court under the facts of this case. In undertaking this task, the court is not free to "follow [its] own inclinations," see Bruffett v. Warner Communications, Inc., 692 F.2d 910, 918 (3d Cir. 1982), but rather must work within the confines of Pennsylvania common law. Novosel v. Nationwide Ins. Co., 721 F.2d 894, slip op. at 4 (3d Cir. 1983). When the state's highest court has addressed the issue involved, it is easy to apply the law, for the best authority on the subject has spoken. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 661 (3d Cir.) cert. denied, 449 U.S. 976, 66 L. Ed. 2d 237, 101 S. Ct. 387 (1980). When a state's Supreme Court has not yet confronted the problem, the federal court is faced with a more difficult task. In such cases, the federal court must attempt to divine the manner in which the state's highest forum would decide were it faced with the same question. "Although some have characterized this assignment as speculative or crystal-ball gazing, nonetheless it is a task which we may not decline." Id. at 661-62.
In the instant case, the court is faced with a question not yet addressed by the Supreme Court of Pennsylvania. See generally Walsh v. Sun Oil Co., 437 Pa. 80, 89 & n.3, 262 A.2d 128 (1970) (Roberts, J., concurring and dissenting). Although the Commonwealth's highest court has permitted firemen to recover in the past, see, e.g., Ruhl v. Philadelphia, 346 Pa. 214, 29 A.2d 784 (1943); Drake v. Fenton, 237 Pa. 8, 85 A. 14 (1912), it evidently has not been asked to adopt the particular rule which Welland urges here.
Welland has cited two cases decided by Pennsylvania trial courts which purportedly support the application of the Fireman's Rule. One of these cases, however, see Bennett v. Kurland, 21 Pa. D. & C. 2d 587 (1959), would support only a defense predicated upon the assumption of risk doctrine. In the other case cited by Welland, see Suttie v. Sun Oil Co., 15 Pa. D. & C. 3 (1931), the court held:
Not only does the doctrine of assumption of risk defeat the plaintiff's right in this case, but weighty considerations of public policy prevent the extension of liability by an owner [of premises] to firemen engaged in an attempt to extinguish fires.
Id. at 6.
It appears then, that the Suttie decision, albeit through an alternative holding, would constitute some support for the application of the Fireman's Rule within the Commonwealth of Pennsylvania. Nevertheless, inasmuch as the Suttie case was decided by a trial court, it is not controlling here, for this court's task is to forecast the way in which the Supreme Court of Pennsylvania would decide the question. "To make this prognostication, we are not inflexibly confined by dicta or by lower state court decisions, although we should look to such statements as indicia of how the state's highest court might decide." Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981).
A primary rationale espoused in Suttie and most other cases invoking the Fireman's Rule centers upon the concept of assumption of risk. Specifically, it is felt that the risks involved in extinguishing a fire are so well known that a fireman must be taken to have assumed them in undertaking his task. See, e.g., id. at 612; see also Berko v. Freda, 93 N.J. 81, 459 A.2d 663, 665 (1983) (extending rule to policemen); Walters v. Sloan, 20 Cal. 3d 199, 571 P.2d 609, 611, 142 Cal. Rptr. 152 (1977) (same). To the extent that the Fireman's Rule stands for the position that firemen assume the risk of any and all injuries that may befall them while they are on duty, but see Berko v. Freda, 459 A.2d at 665 (holding that the rule extends only to negligence which brings firemen to scene), it cannot apply in Pennsylvania. This conclusion follows from the holding of the Pennsylvania Supreme Court in Ruhl v. Philadelphia, 346 Pa. 214, 29 A.2d 784 (1943). In Ruhl, the court, quoting the court below with approval, stated:
"It is what a fireman is doing at the time he is hurt that matters, not the mere fact that he is a fireman . . . . It is one thing to say that a fireman who has gone into a danger zone must take what he gets, and quite another to say that a person who stops short of the danger zone cannot recover because he is a fireman."