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FRAUST v. SWIFT & CO.

May 23, 1985

GARY A. FRAUST and JUDITH L. FRAUST and JUDITH L. FRAUST, guardian of the Estate of ISAAC J. FRAUST, a minor, Plaintiffs
v.
SWIFT AND COMPANY, Defendant



The opinion of the court was delivered by: TEITELBAUM

 In this products liability action the defendant asks the Court to rule, as a matter of law, that its product is not unreasonably dangerous. The action arises from an incident in which Isaac J. Fraust, then 16 months old, choked while eating Peter Pan Creamy Peanut Butter spread on bread. As a result, Isaac suffered severe brain damage.

 It is plaintiffs' theory that the peanut butter supplied by the defendant was unsafe for its intended use because it lacked a warning that it should not be fed to children under four years of age. Plaintiffs contend peanut butter presents a particular danger to children under four years of age because of the texture and consistency of peanut butter and the immature eating and swallowing abilities of children that age. Plaintiffs contend defendant targets young children in its advertising and marketing.

 
A "defective condition" is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts ┬ž 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff's injury, the seller is strictly liable without proof of negligence.

 Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 100, 337 A.2d 893, 902 (1975).

 In a products liability case the plaintiff must prove the product was defective and the defect was a proximate cause of the plaintiff's injuries. Berkebile v. Brantly Helicopter Corp., 462 Pa. at 93-94, 337 A.2d at 898. The concept of "unreasonably dangerous" is not presented to the jury because it injects negligence concepts into their deliberations. Id. at 96-97, 337 A.2d at 900.

 It is for the court to determine as a matter of law if placing the risk of loss on the supplier furthers social policies. Azzarello v. Black Brothers, Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). "It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; . . ." Id. at 558, 391 A.2d at 1026. The words "unreasonably dangerous" "merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier." Id. at 556, 391 A2d at 1025.

 
Courts and commentators have identified various factors that a court should consider when making the social policy decision required by Azzarello, . . . Sometimes, no doubt, it will be difficult for a court to decide whether as a matter of social policy a jury should be permitted to impose strict liability. However, where inadequate warnings are alleged, the social policy decision is relatively simple. As has been said, "In the case of an inadequate warning, . . . imposing the requirements of a proper warning will seldom detract from the utility of the product." At the same time, the cost of adding a warning, or of making an inadequate warning adequate, will at least in most cases be outweighed by the risk of harm if there is no adequate warning.

 Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408, 423 (1984) (footnote and citation omitted).

 Defendant moves for summary judgment contending its product is not unreasonably dangerous as a matter of law. By this motion defendant asks this Court to make an explicit ruling on the threshold determination of social policy that Azzarello requires. See Dambacher v. Mallis, Pa.Super. , 485 A.2d at 423 n.6.

 Defendant first contends no warning was required because as a matter of law Isaac's mother knew or should have known of the potential danger associated with feeding a peanut butter sandwich to Isaac.

 Liability cannot be imposed on the seller for failure to warn of a danger associated with its product if the danger was or should have been known to the user. Brown v. Caterpillar Tractor Co., 741 F.2d 656, 661 (3d Cir. 1984). The issue of necessity of warnings must also be considered in light of any contradictory promotional activities on the part of the seller. Berkebile v. Brantly Helicopter Corp., 462 Pa. at 103, 337 A.2d at 903.

 Defendant cites Sherk v. Daisey-Heddon, 498 Pa. 594, 450 A.2d 615 (1982) and Davis v. R.H. Dwyer Industries, Inc., 548 F. Supp. 667 (E.D. Pa. ...


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