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FLETCHER CARRECTER v. COLSON EQUIPMENT CO. AND MARMON GROUP INC. (09/18/85)

filed: September 18, 1985.

FLETCHER CARRECTER, APPELLANT,
v.
COLSON EQUIPMENT CO. AND THE MARMON GROUP INC.



Appeal from the Order of July 22, 1983 in the Court of Common Pleas of Philadelphia County, Civil Action, at No. 2574 August Term, 1978.

COUNSEL

John Mattioni, Philadelphia, for appellant.

Pamela B. Gagne, Philadelphia, for appellees.

Spaeth,*fn* President Judge, and Beck and Hoffman, JJ.

Author: Beck

[ 346 Pa. Super. Page 98]

The instant appeal requires us once again to reaffirm the sharp distinction which the courts of this Commonwealth have drawn between negligence suits and products liability actions based on section 402A of the Restatement (Second) of Torts. We hold that the trial court may not invite the jury to consider the reasonableness of the defendant's conduct by instructing on the "state of the art defense."

Appellant Fletcher Carrecter Jr. appeals from a judgment in favor of appellee Colson*fn1 entered on a jury verdict in a products liability action based upon an injury allegedly caused by a Colson Model 6055 drum truck. A drum truck is a type of hand truck specially adapted for use in moving large drums or barrels. The drum truck was manually operated by sliding forks on the bottom of the truck under a barrel, tilting the truck upward, sliding a hook-like clasp over the upper edge of the barrel, and then pulling the truck handles backward so that the barrel rested on the truck and could be rolled.

Carrecter was employed as a general laborer at Acme Hardesty Company (which is not a party to the instant litigation). Three to five days each month, Carrecter's work assignment involved lifting, moving and "palletizing"*fn2 450-pound barrels using a drum truck of a type manufactured and sold by Colson between 1937 and 1957. While performing these tasks on February 14, 1977, Carrecter sustained back injuries which he attributed to his having pulled the Colson drum truck handles backwards in order to move a barrel.

In his products liability suit against Colson, Carrecter introduced evidence tending to show that the Colson drum truck, while being used to transport weights within the

[ 346 Pa. Super. Page 99]

    stated capacity of its wheels,*fn3 imposed forces on the user's spine greater than the human spine can safely support. Carrecter therefore argued that the truck was defective either because it was designed in a manner which subjected the user's spine to excessive force or because Colson did not warn of the maximum load capacity at which the truck could be maneuvered without placing undue stress on the user's back. Carrecter also adduced evidence linking his back injury to his use of the Colson truck.

In its answers to written interrogatories, the jury found that the Colson drum truck was not defective due to its design or lack of accompanying warnings, and a verdict was entered in favor of Colson. Carrecter's post-trial motions for judgment n.o.v. or a new trial were denied. Judgment for Colson was entered and this appeal followed.

Appellant argues that the trial judge erred in charging the jury that it could consider the engineering know-how available to Colson at the time the truck was manufactured in determining whether the truck was defective.*fn4 The trial court first instructed the jury that if at the time the drum truck was manufactured and left the control of Colson it "lacked any element necessary to make it safe for the use or contained any condition that made it unsafe for the use that it was intended for, then the product may be considered by you as defective and [Colson] liable for the harm caused," and that "[a] product which is designed in a manner ...


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