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JOANN DAMBACHER v. NICHOLAS J. MALLIS (11/27/84)

filed: November 27, 1984.

JOANN DAMBACHER, A MINOR BY HER PARENTS AND NATURAL GUARDIANS, WILLIAM J. DAMBACHER AND JOANN DAMBACHER, AND WILLIAM J. DAMBACHER AND JOANN DAMBACHER IN THEIR OWN RIGHT,
v.
NICHOLAS J. MALLIS, JR., AND SEARS, ROEBUCK & COMPANY AND COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION. APPEAL OF SEARS, ROEBUCK & COMPANY



NO. 2813 PHILA. 1981, NO. 3148 PHILA. 1981, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil No. 1948 November Term, 1977

COUNSEL

Bernard J. Smolens, Philadelphia, for appellant.

Gustine J. Pelagatti, Philadelphia, for appellees.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Johnson and Hoffman, JJ. Wieand, J., files a concurring and dissenting opinion in which Rowley, J., joined.

Author: Spaeth

[ 336 Pa. Super. Page 28]

This is a products liability case arising out of an automobile accident. The product in question is a radial tire, and the allegations are that the tire was defective because it was not embossed with a warning not to mix it with non-radial tires, and that the accident occurred because the tire was mixed with non-radial tires.

Appellees, Joann Dambacher and her parents, were the plaintiffs, and appellant, Sears, Roebuck and Company, the supplier of the tire, was one of the defendants. A jury returned a verdict in favor of appellees. The trial court denied appellant's motion for judgment n.o.v. or in the alternative for a new trial, and granted appellees' motion for a new trial limited to damages. There are two principal

[ 336 Pa. Super. Page 29]

    issues. The first issue is whether the trial court erred in ruling that certain of appellees' witnesses were qualified to express an opinion that in fact the accident did occur because the tires were mixed. We hold that the court did err, and we therefore order a new trial generally. The second issue concerns what instructions the trial court should give the jury at the new trial. We hold that the court should instruct the jury in accordance with Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). This means that the court should not instruct the jury to determine whether appellant's radial tire was "unreasonably dangerous" because it was not embossed with a warning not to mix it with non-radial tires. Nor should the court otherwise instruct the jury in negligence terms. Instead, the court should instruct the jury in terms of appellant's liability as a guarantor, responsible if the user of its product -- the radial tire -- was injured as a result of a defect in the product. The court should explain that if the jury finds that when the tire left appellant's control it lacked the warnings necessary to make it safe for its intended use, then the tire was defective, and appellant is liable for the harm caused by the defect.

Although the legal issues presented will require extended discussion,*fn1 the underlying facts may be briefly

[ 336 Pa. Super. Page 30]

    stated. On November 6, 1977, Nicholas Mallis, a sixteen year-old high school student, discovered that the right front tire of his grandfather's 1971 Plymouth Fury was flat. He replaced the flat tire with a Sears radial tire. The other tires on the Plymouth were non-radial tires. The next day Nicholas gave seven fellow students a ride home from school in the Plymouth. One of the students was Joann Dambacher. As the youngsters left school, it was drizzling and the highway was wet, with leaves on the surface. Nicholas, driving at about 20 to 25 miles per hour, failed to negotiate an S-curve. He testified:

As I went through the right-hand turn I braked. I went through the right hand turn, started going into the left hand turn, and the back of the car slid out. The back slid to the right . . . It happened quick. As best I remember, the car slid a little sideways and towards the left lane, and it went off the embankment, into a tree.

R.R. 586a.

Joann suffered a fractured dislocation of the cervical spine, and was rendered a quadriplegic who will be confined to a wheelchair for life.

Joann's parents, William J. Dambacher and Joann Dambacher, on Joann's behalf and in their own right, sued

[ 336 Pa. Super. Page 31]

Nicholas and his grandfather in negligence and Sears, in strict liability. Sears joined the Commonwealth of Pennsylvania, Department of Transportation, as an additional defendant on the theory that the S-curve was unsafe. Before trial, the Department of Transportation settled with the Dambachers for $87,500. The trial was before a jury, from May 6 to May 20, 1980. After a non-suit was entered in favor of Nicholas's grandfather, the jury returned a verdict in favor of Joann in the amount of $800,000, and in favor of her parents in the amount of $10,000, apportioning responsibility under the Pennsylvania Comparative Negligence Act 50% to Nicholas, 45% to Sears, and 5% to the Department of Transportation. Sears filed a motion for judgment n.o.v. or in the alternative for a new trial, and the Dambachers filed a motion for a new trial as to damages. The trial court, sitting en banc, denied Sears's motions, granted the Dambachers', and entered judgment against Sears as to liability, with delay damages.*fn2 Sears then filed this appeal, and only its liability is at issue, for the Department of Transportation has settled, as mentioned, Nicholas has not appealed, and the propriety of the non-suit in favor of Nicholas's grandfather is not questioned. For convenience, in the discussion that follows we shall usually refer to Sears as appellant and to the Dambachers as appellees, without distinguishing between Joann and her parents.

The admissibility of appellees' opinion evidence on causation

Appellees' theory of recovery against appellant was that appellant was strictly liable because the radial tire supplied

[ 336 Pa. Super. Page 32]

    to Nicholas's grandfather was not embossed with a warning not to mix it with non-radial tires.*fn3 In support of this theory, appellees introduced documentary evidence and the testimony of two witnesses that Nicholas's mixing of the tires caused the accident. Appellant in turn introduced evidence that if the mixing was dangerous, it was so only at high speeds, not at 20 to 25 miles per hour, the speed at which Nicholas was driving when the accident occurred.

It is settled that in a products liability case the plaintiff must prove that a defective product was the proximate cause of his injuries. Sherk v. Daisy Heddon, 498 Pa. 594, 450 A.2d 615 (1982); Agostino v. Rockwell Manufacturing Co., 236 Pa. Super. 434, 345 A.2d 735 (1975). Appellant argues that "[t]he only testimony that a mixed fitment could have caused the accident was given by two of plaintiffs' [appellees'] witnesses, . . . whom the court below permitted to testify as 'experts.' These witnesses were not qualified to give opinions on causation in this case, and therefore the verdict cannot be upheld on the basis of their opinions." Brief for Appellant at 36. Because of the trial court's error in ruling that appellees' two witnesses were

[ 336 Pa. Super. Page 33]

    qualified to express an opinion on causation, appellant argues, it is entitled not simply to a new trial but to judgment n.o.v.

-a-

It will be convenient to start with appellant's argument that it is entitled to judgment n.o.v., for in considering that argument we may assume, without deciding, that appellees' witnesses were unqualified to express an opinion on causation.

When we review an order denying a motion for judgment n.o.v., we must regard the evidence in the light most favorable to the verdict winner. Evidence supporting the verdict is to be considered, with the rest rejected, Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968), and "only when the facts are such that two reasonable persons could not fail to agree that the verdict was improper," Cummings v. Nazareth Borough, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967), should we enter judgment n.o.v. See McKnight v. City of Philadelphia, 299 Pa. Super. 327, 445 A.2d 778 (1982).

Applying these principles here, we reject the testimony of appellant's witnesses and consider, in the light most favorable to appellees, the testimony of appellees' witnesses on causation. Both of these witnesses expressed the opinion that the mixing of the radial tire with three non-radial tires was a cause of the accident. Walter VanNess Pruyn testified as follows:

Q. What is your opinion?

A. It is my opinion that this accident was precipitated by a loss of control of the vehicle by the driver.

THE COURT: What do you mean by precipitated?

THE WITNESS: Initiated, caused to occur because of a combination of circumstances triggered by the mixing of a radial tire on the right front in combination with a cross ply belted tire on the left front of the vehicle which in combination with the highway surface, highway

[ 336 Pa. Super. Page 34]

    grade, curvature, inexperience of the driver, a lack of advanced knowledge of the potentialities for loss of control, the vehicle suddenly oversteered on the left turn and at the speed at which the vehicle was traveling the driver did not have time in which to correct, to react, to recognize possible solutions and to take action in the time distance available to him from the time the oversteer condition occurred and impact with the tree.

R.R. 630a-31a.

William P. Kelly testified that with a radial on the right front and a non-radial on the left front, the chance of an accident increases. R.R. 338a. He called "ridiculous" the statement of appellant's expert witness, Sidney Bloor, that a mixed fitment of radial and non-radial tires will not cause erratic steering unless the automobile is travelling at 70 miles per hour or more, even on wet ground. R.R. 996a. Other testimony was presented regarding the weather and the condition of the road, of the tires, and of the Plymouth at the time of the accident.

This record demonstrates that appellant's argument for judgment n.o.v. has no merit. For by accepting the testimony of appellees' witnesses, and rejecting that of appellant's, the jury could find that the mixed fitment caused the accident. The trial court therefore properly denied appellant's motion for judgment n.o.v.

Appellant cites several cases in which judgment n.o.v. has been granted when expert testimony was found, on appeal, to have been incompetent. Rennekamp v. Blair, 375 Pa. 620, 101 A.2d 669 (1954); Sinkovich v. Bell Telephone Company of Pennsylvania, 286 Pa. 427, 133 A. 629 (1926); Moyer v. Ford Motor Company, 205 Pa. Super. 384, 209 A.2d 43 (1965). These cases are inapposite, for the court granted judgment n.o.v. not because it found the witness unqualified to express an opinion but because the opinion was so equivocal as to be legally insufficient. See also Niggel v. Sears, Roebuck and Co., 219 Pa. Super. 353, 281 A.2d 718 (1971); McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 129 A. 568 (1925). When the

[ 336 Pa. Super. Page 35]

    witness is unqualified, as appellant claims appellees' witnesses were, the proper remedy is a new trial, not judgment n.o.v. As our Supreme Court has said:

Manifestly it would be unfair, where a party has relied upon a favorable ruling on evidence presented by him, to enter final judgment against him without affording him the opportunity to furnish competent proof of which he might have availed himself had the evidence submitted by him been rejected. The only remedy under such circumstances is to grant a new trial.

Hershberger v. Hershberger, 345 Pa. 439, 29 A.2d 95 (1942).

See also, Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Weaverling v. Smith, 181 Pa. Super. 153, 124 A.2d 509 (1956).

-b-

In considering whether to order a new trial because of the trial court's ruling that appellees' witnesses were qualified to express an opinion on the cause of the accident, we must bear in mind that the ruling was within the sound discretion of the trial court. Accordingly, we will not order a new trial unless the ruling was such clear error as to constitute an abuse of discretion. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); George I. Reitz & Sons, Inc., 319 Pa. Super. 76, 465 A.2d 1060 (1983); Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 382, 387 A.2d 480 (1978); Flavin v. Aldrich, 213 Pa. Super. 420, 250 A.2d 185 (1968).

When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is "so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman." McCormick on Evidence 33 (3d ed. 1984) (footnote omitted). And see Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967); Commonwealth ex rel. M.B. v. L.D.B., 295 Pa. Super. 1, 11, 440 A.2d 1192, 1197 (1982). If the subject is of

[ 336 Pa. Super. Page 36]

    this sort, the next question the court should ask is whether the witness has "sufficient skill, knowledge, or experience in that 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 33 (footnote omitted). See also In Re Involuntary Termination of Parental Rights, 449 Pa. 543, 297 A.2d 117 (1972) (expert witness must show special knowledge of very question upon which he promises to express opinion); Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979) (no error in qualifying witness as expert in psychology with special focus on driving phobia similar to plaintiff's); Erschen v. Pennsylvania Independent Oil Co., 259 Pa. Super. 474, 393 A.2d 924 (1978) (witness who had no formal instruction or on-the-job training in origin of gas explosions not qualified as expert, notwithstanding qualifications as fire marshall); Taylor v. Spencer Hospital, 222 Pa. Super. 17, 292 A.2d 449 (1972) (error not to allow nurse experienced in handling psychiatric patients to testify about standards for restraints); Rule 702 of the Rules of Evidence for United States Courts and Magistrates (1979), and Advisory Committee's Note to the rule; 2 Wigmore, Evidence § 555, § 1918 (Chadbourn rev. 1979).

Without doubt, in this case the subject in question called for expert testimony. The jury had to decide whether the presence of a radial tire on the right front wheel of a 1971 Plymouth Fury could, when the other three wheels were mounted with non-radial tires, in some way cause the driver to lose control when driving between 20 and 25 miles per hour. See R.R. at 586a. This was a subject "so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman." McCormick, supra. Appellant identifies the "science, profession, business or occupation" as "physics, engineering, and vehicle road dynamics." Brief for Appellant at 39. This formulation, however, is too broad in that it may be understood as suggesting that only someone with a great deal of formal education would be qualified to testify on the

[ 336 Pa. Super. Page 37]

    causes of the accident. It is nevertheless correct to say that no opinion on the cause of the accident could aid the jury in its search for truth unless offered by someone with knowledge, however gained, whether by formal education, experience, or both, of those principles of physics and engineering pertinent to determining how a vehicle will behave in the conditions in which the accident in which appellee was hurt occurred.

One of the witnesses offered by appellees as an expert, William P. Kelly, had worked for several years as an automobile mechanic and then as a service manager for an automobile dealer. R.R. 241a, 244a, 246a, 247a. In these positions he sometimes road-tested automobiles for inspection purposes, id. at 248a, including the kind of automobile involved in this accident, a 1971 Plymouth Fury, id. at 251a. The fact that Mr. Kelly was an expert mechanic was irrelevant, however, for the subject in question did not involve mechanics but vehicle-road dynamics, and Mr. Kelly had no qualifications in that subject. He "didn't specialize in any mechanical things" whatever in high school, id. at 255a, and did not attend college, id. at 256a; he "never studied engineering of any kind," id., nor mathematics "[b]eyond trigonometry," id., nor had he "taken any courses that involved the design of tires," id., or that "dealt with the subject under whatever name of vehicle dynamics as affected by changes in the types or conditions of tires," id. at 256a, 264a. He had never worked for anyone "whose function was to test automobile performance as affected by change in the types or conditions of tires." Id. at 265a. The only technical literature Mr. Kelly had read on the subject of comparative effects on vehicle performance of radial and non-radial tires were the State Inspection Manual and service manuals put out by automobile makers such as Chrysler, the manufacturer of the Plymouth Fury. Id. at 268a-269a. He had "never read any technical articles published by a scientific or professional or engineering society or journal . . . ." Id. (Even if he had read such articles, it is

[ 336 Pa. Super. Page 38]

    apparent that neither his educational background nor his experience equipped him to understand them.)

On direct examination Mr. Kelly testified that he would not "pass an automobile for inspection that had on its front axle a radial and a bias belted tire [because of the] erratic steering conditions or erratic handling conditions that it can produce." R.R. at 285a-286a. In support of this opinion Mr. Kelly was permitted to read, without objection, from the Pennsylvania State Inspection Regulations on passing tires for inspection. The Regulations stated that "[r]adial ply tires shall not be used on the same axle with bias or belted-bias tires . . . . Mixing tires, size and type can produce dangerous and erratic steering performance including wander and fishtailing." Id. at 288a. Mr. Kelly was also permitted to read, without objection, from the Chrysler service manual for the 1971 Plymouth Fury. The manual stated that "[t]he use of radial tires is not recommended because of their harsh ride at low speeds and possible unfamiliar stability characteristics . . . . [Intermixing tires] will result in oversteer and could possibly cause spins on wet or icy roads. The safest policy is never intermix radial ply tires with bias belted tires or cross bias tires." Id. at 289a-291a. It is apparent, however, that anyone could have taken the stand to read these statements from the manuals. The manuals were evidence of what the Chrysler Company and Pennsylvania authorities thought about the possible effects of mixing tires, but they in no way qualified Mr. Kelly to say what he thought. One does not become an expert by reading manuals on a subject one is not capable of understanding.

Besides being an automobile mechanic, Mr. Kelly's other claim to being an expert on the effect of mixing tires was founded on his "personal experience in road testing 1971 Plymouth Furys . . . . that had a radial on one side of the front axle and a . . . bias belted tire on the other front axle . . . on wet ground." R.R. 333a-334a. Mr. Kelly said that

[t]he results, when we would road test this type of a car, on braking and turning would be sort of an erratic

[ 336 Pa. Super. Page 39]

    situation, where there was no predictability at any given time on braking or on turning as to what the car might do.

Id. at 335a.

A test, however, is meaningless unless the person conducting the test knows what he is doing; he must understand the principles involved, and then design and conduct a test such that its results will implicate and depend upon those principles. For example, if the person does something to a liquid, and it turns blue, he must know enough of the principles involved to exclude the possibility that the liquid turned blue not because of what he did but for some other reason, such as the temperature of the room he was working in. Mr. Kelly designed and conducted no such test. The "road tests [he made] . . . would be to determine by driving a car whether there is some mechanical problem with it that cannot be seen by visual inspection." Id. at 252a. The tests were not designed or conducted with the idea of testing the effect of mixing tires, but rather were simply incidental to State inspections. Id. at 253a. Thus, Mr. Kelly did not know whether, or how, the tires on the cars he road-tested were mixed. He could not recall a single instance of "test[ing] a car that in fact had tires not all of the same category." Id. at 254a. Furthermore, when he did road test cars, he "drove them in a normal manner." Id. at 255a. He "did not put them through any unusual or steering or other maneuvers." Id. When asked, "Did you ever undertake as an organized program of an investigation or an inquiry a program by which you made a series of test runs on any given automobile under one set of runs containing all non-radial tires and under the other set of runs some combination of radial and non-radial," he answered: "Not under any laboratory or set up test conditions, no." Id. at 267a. His testimony continued:

Q. And you've never run any series of tests with the same automobile running it eight or ten or twelve times through a particular course with all non-radials and then eight or ten or twelve times through the same

[ 336 Pa. Super. Page 40]

    course with some combination of radial and non-radial? You've never done that, have you?

A. I could have in the course of doing business.

Q. But do you remember any specific instance where you did it for the purpose of making such a comparison?

A. Names and dates I can't give you. I have made those comparisons, though.

Q. You've never done it on a 1971 Fury, to your knowledge, have you?

A. Again I couldn't give you names and dates and places, but I believe that I have.

Id. at 267a (emphasis added).

Given Mr. Kelly's testimony, it is not surprising that he did not produce any records of any sort. We are unable to escape the conclusion that he was permitted to testify as an expert because he said he was an expert. Nothing, however, justified his opinion of himself; he had never learned, either by education or by experience, the principles of vehicle dynamics. And nothing warrants the belief that what he said could have aided the jury in its search for truth. Neither he nor anyone else knew either when or how many tests he had made; or what mixture of tires was involved in the tests; or what was done in the course of the tests to determine whether the mixture had any effect on the handling of the automobile; or what that effect was. It was therefore clear error and an abuse of discretion to permit Mr. Kelly to testify: he did not have "sufficient skill, knowledge, or experience . . . to . . . aid the trier in his search for truth." McCormick, supra.*fn4

[ 336 Pa. Super. Page 41]

The cases cited by appellees are not contrary to but rather support this conclusion. In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), a products liability case, a person was struck by a load of steel pipe that fell when a brake-locking mechanism on a crane malfunctioned. The trial court excluded, as unqualified, expert testimony of a safety engineer as to the safety of the design of the brake-locking mechanism. Reversing, the Supreme Court held that the safety engineer was qualified as an expert. Said the Court:

Appellee points to the fact that Barbe was by his own admission a "safety engineer" rather than a mechanical engineer, and that he was not registered to practice mechanical engineering. From this it is argued that Barbe was not qualified to express an opinion on matters of design. But an engineer need not be registered as such in order to testify as an expert if his education and experience so qualify him. Lance v. Luzerne County Manufacturers Association, 366 Pa. 398, 77 A.2d 386 (1951). The standard of qualification is a liberal one: "If a witness 'has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his [testimony] is for the jury: [citations omitted] . . . .' McCullough v. Holland Furnace Co., 293 Pa. 45, 49, 141 A. 631, 632 [(1928)]." Id., 457 Pa. at 338-39, 319 A.2d at 924 (footnotes omitted).

Thus, the "subject under investigation" was whether a crane was safe, and the witness had "specialized knowledge" of the subject not only from experience in inspecting cranes, but also because he had been trained as an engineer and therefore knew, when he inspected a crane, what he was looking at. Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981) (plurality opinion), presented a similar situation. There, a high school

[ 336 Pa. Super. Page 42]

    student was injured when playing "jungle football" without protective equipment and while under the supervision of two football coaches. In an action against the School District alleging negligence of the football coaches, the trial court refused to allow a former football coach to testify as an expert. Reversing, the Supreme Court said that "[i]t seems clear than an experienced former coach may have knowledge of the customs and safety standards utilized by coaches of high school teams and of the rules imposed [by authorities] to insure minimum safety . . . ." Id., 496 Pa. at 598, 437 A.2d at 1202. Thus, Kuisis and Rutter show both when a witness should be held qualified, and when he should be held not qualified. In Kuisis the witness was qualified by reason of both experience and education in the subject under investigation; in Rutter, by experience. If -- like Mr. Kelly and Mr. Pruyn -- the witness has neither experience nor education in the subject under investigation, he should be found not qualified.

The conclusion that the trial court should not have admitted the testimony of Mr. Kelly and Mr. Pruyn is further supported by other cases in which the scope of a witness's experience and education was examined as it bore upon the subject under investigation.

Sometimes it may appear that the scope of the witness's experience and education embraces the subject in question in a logical, or fundamental, sense. In such a case, the witness is qualified to testify even though he has no particularized knowledge of the subject as such; for he will be able to reason from the knowledge he does have. Thus in Whistler Sportswear, Inc. v. Rullo, 289 Pa. Super. 230, 433 A.2d 40 (1981), a civil engineer was held qualified to testify on the causes of the collapse of a roof, even though his area of expertise was not specifically roof design. He was qualified because the "subject under investigation" did not require "knowledge of roofing per se, but rather . . . knowledge of engineering principles of stress and resiliency and an ability to interpret the evidence left in the aftermath of the physical collapse." Id., 289 Pa. Superior

[ 336 Pa. Super. Page 43]

Ct. at 238-39, 433 A.2d at 44. And see Jones v. Treegoob, 212 Pa. Super. 482, 243 A.2d 161 (1968), rev'd. on other grounds, 433 Pa. 225, 249 A.2d 352 (1969) (plaintiff injured during windstorm when store window blew out; expert who has B.S. in industrial engineering, twenty-two years experience as safety engineer, and considerable knowledge of wind pressure and its effects, held qualified). See also Dorsey v. Yoder Co., 331 F.Supp. 753 (1971) (witness who lacked familiarity with particular metal slitting machine but who as an engineer, in industry, armed forces, and at University of Pennsylvania where he was professor and Chairman of Graduate Division of Civil ...


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