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DAVID PRICE v. TEMPO

March 18, 1985

DAVID PRICE
v.
TEMPO, INC. and ALB, INC. v. GOODALL RUBBER COMPANY and FIRE CHEM, INC., et al.



The opinion of the court was delivered by: LUONGO

 This action has been brought by plaintiff David Price for injuries which he sustained while performing his duties as a firefighter with the Philadelphia Fire Department. Plaintiff alleges that he was injured because of defects in his firefighting gloves and coat, manufactured respectively by defendants Tempo, Inc. and Alb, Inc. Currently before me are defendants' motions for summary judgment under Fed. R. Civ. P. 56.

 On January 13, 1981, plaintiff, then an eleven-year veteran of the Philadelphia Fire Department, was called to a residential fire. When he arrived at the scene he was informed that persons might be trapped inside the burning building. In accordance with his duties as "Scott Pak man," *fn1" plaintiff entered the building to search for possible victims of the fire. He found no one inside the building. As he was moving on his hands and knees toward the exit, a flash of fire rolled across the ceiling eight to ten feet above him, producing intense heat and smoke. Before he could be rescued by his colleagues, he had sustained second and third degree burns on his face, neck, shoulders, hands and inner thighs.

 Plaintiff alleges that he was injured because his gloves, manufactured by defendant Tempo, and his coat, manufactured by defendant Alb, failed to give him adequate protection. According to Dr. Charles Beroes, a professor of chemical engineering whom plaintiff engaged to test the fire-resistant qualities of the gloves and coat, the products were defectively designed and unreasonably dangerous for their intended and foreseeable uses in firefighting. Dr. Beroes stated that if the gloves had been constructed with a vapor barrier and wool lining they would have prevented the burns to plaintiff's hands. The coat, according to Dr. Beroes, was unreasonably dangerous because of the material used for its inner lining. The inner lining was composed of a polyester material which burns rapidly and intensely, producing a hot, tarry, molten substance. Dr. Beroes opined that when plaintiff was exposed to the flash of fire the inner lining of his coat began to melt and adhere to his skin, causing the burns to the parts of plaintiff's body covered by the coat. Dr. Beroes concluded that plaintiff's injuries could have been prevented had the coat been lined with flame retardant cotton or wool, both readily available substitutes for the material used. Plaintiff also alleges in his complaint that defendants misrepresented the protective capabilities of their products and breached express and implied warranties of fitness.

 Defendants have moved for summary judgment. First, they contend that the "government contract defense" insulates them from liability because their products conformed to specifications established by the City of Philadelphia. Second, they invoke the "fireman's rule," claiming that plaintiff, while performing his duties as a fireman, assumed the risk of fire-related injury.

 I. The Government Contract Defense

 The government contract defense "shields a manufacturer from liability if the product causing the injury complied strictly with government contract specifications concerning design." Koutsoubos v. Boeing Vertol, 553 F. Supp. 340, 342 (E.D. Pa. 1982), aff'd, 755 F.2d 352 (3d Cir. 1985). Although the Pennsylvania courts have never decided whether the government contract defense should be available in a strict products liability or breach of warranty action, *fn2" the Court of Appeals for the Third Circuit has predicted that Pennsylvania would extend the defense to such actions. Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d Cir. 1982). The Third Circuit indicated, however, that courts should be cautious in permitting reliance upon the defense. The court was particularly concerned with the scenario, not present in Brown itself, "in which the [government] specifications are skeletal, the contract is negotiated, and the contractor, knowing of a high risk of serious harm, fails to install a relatively inexpensive safety device." Id. at 254 n.17. To deal with such cases, the Third Circuit has recently adopted the approach first announced by Judge Pratt in In re "Agent Orange" Product Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y. 1982). Koutsoubos v. Boeing Vertol, 755 F.2d 352, slip op. at 5 (3d Cir. 1985). Accord In re Air Crash Disaster at Mannheim, Germany, 586 F. Supp. 711, 717 (E.D. Pa. 1984); Hubbs v. United Technologies, 574 F. Supp. 96, 98 (E.D. Pa. 1983). According to Judge Pratt:

 
A supplier should not be insulated from liability for damages that would never have occurred if the military had been apprised of hazards known to the supplier. A supplier, therefore, has a duty to inform the military of known risks attendant to a particular weapon that it supplies, so as to provide the military with at least an opportunity fairly to balance the weapon's risks and benefits . . . . The court . . . concludes that a defendant in this case will be entitled to judgment dismissing all claims against it based on that defendant's having supplied "Agent Orange" to the government pursuant to a contract, if the defendant proves:
 
1. That the government established the specifications for "Agent Orange";
 
2. That the "Agent Orange" manufactured by the defendant met the government's specifications in all material respects; and
 
3. That the government knew as much as or more than the defendant about the hazards to people that accompanied use of "Agent Orange".

 Id. at 1055, quoted in part in Brown, 696 F.2d at 254 n.17. *fn3"

  Defendants Tempo and Alb argue that the government contract defense protects them because they manufactured the firefighting gloves and coat in accordance with specifications provided by the City of Philadelphia. Appended to Tempo's memorandum in support of its motion for summary judgment is a copy of the city's purchase order for Tempo gloves. The purchase order sets forth "General Specifications" relating to materials, construction, size and stitching. The affidavit of Melvin Cohen, Tempo's president, asserts that he personally examined the gloves which plaintiff was wearing when he was injured, and that those gloves complied in every respect with the city's specifications as described in the purchase order. *fn4" Tempo alleges in its memorandum that it never represented to the fire department that the gloves would protect firefighters from every conceivable fire-related injury, and that the fire department never expected absolute protection. Tempo relies upon the deposition of Captain James L. Brown of the Philadelphia Fire Department to establish that the fire department chose Tempo gloves on the basis of its own field tests, not on the basis of representations made by Tempo. Tempo also cites plaintiff's deposition, in which plaintiff stated that he had never received any information or representations from Tempo concerning the gloves.

 Defendant Alb also contends that the design of the firefighting coat was established by the city. Attached to its memorandum is a document entitled "Philadelphia Fire Department Running Coat with Detachable Liner Specifications." This document specifies the materials, construction and labelling of both the coat and its inner lining. According to the affidavit of Albert L. Bartolucci, Jr., Alb's president, Alb received these specifications from the city. Alb manufactured the coats in strict accordance with the city's design, with the exception that the coats had raglan sleeves rather than the specified set-in sleeves. The affidavit states that Alb never supplied the city with any specifications and that the city's specifications did not incorporate Alb's design for firefighting coats. Alb further claims it never warranted that the coat would provide absolute protection, and in fact it ...


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