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filed: March 25, 1987.


Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 5817 July Term, 1978.


Harry A. Short, Jr., Philadelphia, for appellants.

Lawrence A. Katz, Philadelphia, for appellee Indus. Lift Truck Co.

Thomas E. Zenoitis, Philadelphia, for appellee Clark Equipment Co.

Cirillo, President Judge, and Wieand and Olszewski, JJ.

Author: Wieand

[ 361 Pa. Super. Page 602]

In this appeal we are called upon to examine the role of negligence concepts in tort cases where strict liability has been asserted because of a product which, allegedly, was defectively designed. Specifically at issue are jury instructions in which the trial court emphasized the importance of purging negligence concepts from the determination of design defectiveness in an action brought under the theory of strict products liability. The trial court charged the jury that the inattention of the plaintiff and the inattention of the operator of a forklift truck could not be considered in determining the cause of a collision between the two because the action was based on an alleged defect in the design of the forklift truck. We conclude that evidence which tended to illuminate the conduct of the plaintiff and the conduct of the forklift operator prior to the accident was indispensable in determining the cause of the accident. Because the jury was precluded from considering evidence relevant for this purpose, a new trial will be granted.

On April 25, 1977, William Foley was struck by a forklift truck while traversing a pedestrian crosswalk at the premises of his employer, National Rolling Mills (National). As a result of the collision, Foley sustained injuries which required the amputation of both legs.

The forklift truck involved in the accident had been designed and manufactured by Clark Equipment Company (Clark) and had been sold by Clark to Industrial Lift Truck Company (Industrial), a distributor of Clark products. Industrial, in turn, had sold the truck to Truckmen, Inc.

[ 361 Pa. Super. Page 603]

(Truckmen), a full service leasing company, which had then leased it to Foley's employer, National Rolling Mills.

The Clark forklift truck was a diesel-powered vehicle with a metal carriage attached to the front for the purpose of lifting and carrying heavy objects. The carriage consisted of a mast, chains, and hydraulic cylinder. The lattice structure of the carriage was such that it partially obstructed the view of the lift operator when the vehicle was operated in the forward mode. The operator could overcome the impairment to visibility created by the frontal structure of the truck by constantly shifting his or her eyes and head to look between the crossmembers of the carriage. It was common practice for forklift drivers at National to employ this technique when operating the trucks in the forward mode.

On the morning of the accident, the subject forklift truck was being operated by Lake Keefer, a National employee, to unload steel coils from delivery trucks which were parked at various lots within the plant. In proceeding from one lot to the next, it became necessary for Keefer to drive the forklift across a walkway. The evidence showed that as he approached the crosswalk, he operated the truck in the forward mode at its top speed of approximately five to six miles per hour. Although Keefer was aware that the roadway and crosswalk were heavily trafficked by pedestrians, he had focused his attention solely to the left by looking through a space in the left side of the truck's frontal structure. Foley had entered the crosswalk from a point to the right of the truck's path of travel. Although Foley was aware that the walkway was frequently traversed by vehicles, as well as by pedestrians, he failed to look for oncoming vehicular traffic before starting to cross. His attention remained fixed on another forklift truck which was situated several yards directly ahead of him. Neither Foley nor Keefer saw or was aware of the presence of the other before they collided.

Foley commenced a product liability action against Clark, Industrial, and Truckmen to recover for injuries he sustained

[ 361 Pa. Super. Page 604]

    in the accident. The complaint alleged that the defendants were strictly liable under Restatement (Second) of Torts ยง 402A*fn1 for selling or leasing the forklift in an unreasonably dangerous condition. More specifically, it was asserted that the forklift truck sold by Clark and Industrial and leased by Truckmen had been designed defectively because it lacked devices which would have alerted Foley to the presence of the truck or alleviated obstructions to the driver's visibility by virtue of the truck's frontal carriage. The truck was also defective, Foley maintained, in that it failed to contain a warning of the dangers attending operation of the truck in the forward mode.

After trial, a jury returned a verdict in the amount of $15,000,000 in favor of Foley and against Clark and Industrial. Foley was later awarded delay damages and the verdict was molded to the amount of $18,008,218.80. Both Clark and Industrial filed post-trial motions for judgment n.o.v. and for a new trial. On February 17, 1982, the trial court, upon motion by Industrial, granted full indemnification in favor of Industrial and against Clark. After filing exceptions to the order of indemnification, Clark settled with the plaintiff for $7,500,000. Clark thereafter withdrew its post-trial motions. On June 27, 1985, the trial court issued an order (1) overruling Industrial's post-trial motions for judgment n.o.v. and for a new trial, (2) dismissing the exceptions filed by Clark to the order of February 17, 1982 which granted indemnification in favor of Industrial, (3) entering judgment in favor of Foley and against Clark and

[ 361 Pa. Super. Page 605]

Industrial in the molded amount of $18,008,218.80, and (4) entering judgment of indemnity in favor of Industrial and against Clark. The case now comes before this Court on cross-appeals by Industrial and Clark; Industrial challenges that part of the order of June 27, 1985 which overruled its motions for judgment n.o.v. and new trial, and Clark attacks that portion of the same order dismissing its exceptions to the judgment of indemnity which was entered against it.

I. The Denial of Industrial's Motion for Judgment n.o.v.

Industrial argues that it is entitled to a judgment n.o.v. because (1) as a matter of law, the forklift truck could not be found unreasonably dangerous, (2) the evidence produced by the plaintiff was insufficient to support a finding that the forklift truck was defective, and (3) even if there had been sufficient evidence to support such a finding, the plaintiff failed to prove that any defect in the truck was a proximate cause of the accident. Constrained as we are by a narrow standard of review, we must reject these arguments.

On appeal from the denial of a motion for judgment n.o.v., we must view the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Maravich v. Aetna Life and Casualty Co., 350 Pa. Super. 392, 396, 504 A.2d 896, 898 (1986); Kearns v. Clark, 343 Pa. Super. 30, 34-35, 493 A.2d 1358, 1360 (1985). Only evidence supporting the verdict is to be considered; all other evidence must be rejected. Glass v. Freeman, 430 Pa. 21, 25, 240 A.2d 825, 827 (1968); Dambacher v. Mallis, 336 Pa. Super. 22, 33, 485 A.2d 408, 414 (1984). Judgment n.o.v. should be entered only where no two reasonable minds could differ that, as a matter of law, the party has failed to make out his or her case. Maravich v. Aetna Life and Casualty Co., supra; Dambacher v. Mallis, supra.

A claim based upon the theory of strict products liability requires two elements of proof: (1) that the product was defective; and (2) that the defect in the product was a

[ 361 Pa. Super. Page 606]

    substantial factor in causing the injury. See: Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975) (plurality opinion); Carrecter v. Colson Equipment Co., 346 Pa. Super. 95, 100, 499 A.2d 326, 329 (1985); Bascelli v. Randy, Inc., 339 Pa. Super. 254, 259, 488 A.2d 1110, 1113 (1985); Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 450, 467 A.2d 615, 618 (1983). According to the decision of our Supreme Court in Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), the determination of defectiveness is to be made in two stages. First, the trial court must weigh the relative risks and utility of the product and determine whether, as a matter of social adjustment, the imposition of liability would be justified. Id. 480 Pa. at 558, 391 A.2d at 1026. See: Lobianco v. Property Protection, Inc., 292 Pa. Super. 346, 361, 437 A.2d 417, 425 (1981). Only after this judicial determination has been made is the case submitted to the jury to determine whether the facts of the case support the averments of the complaint. Azzarello v. Black Brothers Co., supra 480 Pa. at 558, 391 A.2d at 1026. A product may be found defective if it "left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use." Id., 480 Pa. at 559, 391 A.2d at 1027.

In the instant case, evidence of defectiveness was provided by the testimony of plaintiff's expert witness, Stanley Klein. Klein, a mechanical engineer, opined that the forklift truck was unreasonably dangerous because it lacked any one of the following elements: (1) a visual warning device such as a flashing or revolving beacon commonly used on emergency vehicles; (2) a bell, alarm, siren or other audible warning signal; (3) a convex mirror to expand the operator's visibility in front of the truck; (4) devices which would make it more comfortable and convenient to operate the truck in reverse, in which direction visibility was unobstructed, including (a) a driver's seat and controls which, instead of facing forward, would be turned at an angle 45 degrees from the forward position and (b) a rear defroster and rear windshield wipers which also would facilitate operation of

[ 361 Pa. Super. Page 607]

    the truck in reverse; and (6) a warning to lift drivers that visibility may be impaired when the truck is operated in the forward mode. It was Klein's opinion, moreover, that these enumerated defects were the actual cause of the accident. In addition to Klein's testimony, Foley offered evidence that other forklift trucks manufactured by Clark had been provided with convex mirrors and 45 degrees angled seats and that a few months after the accident, warning lights and bells of the type proposed by Klein had actually been added to forklift trucks at National. Finally, two employees of National testified that, in their judgment, the trucks leased by National were safer after the addition of these warning devices.

We perceive no abuse of discretion in the trial court's determination that, as a matter of social adjustment, the imposition of strict liability against the manufacturer and distributor of the forklift truck would be justified. See generally: Annot., Products Liability: Forklift Trucks, 95 A.L.R.3d 541 (1979) (collecting cases in which strict liability was imposed against forklift manufacturers). Moreover, viewing the evidence in the light most favorable to Foley, and rejecting all contradictory evidence, it cannot be said as a matter of law that Foley's proofs were insufficient to support the verdict. The evidence adduced by Foley satisfied both elements of proof necessary to establish a prima facie case under the theory of strict products liability and, therefore, Industrial was not entitled to a judgment n.o.v.

II. The Denial of Industrial's Motion for a New Trial

The principal defense asserted by Industrial at trial was that the injuries sustained by Foley had not been caused by any defect in the forklift truck, but rather by the inattention of Foley and Keefer, the lift operator. In this regard, defense counsel sought, over objection, to ask plaintiff's expert witness during cross-examination whether it would be good safety practice for a worker traversing the crosswalk to fix his attention straight ahead. The trial court

[ 361 Pa. Super. Page 608]

    overruled the objection, but gave the following cautionary instruction to the jury:

I am telling you now at this point, however, that whether the plaintiff was careful, whether he looked, whether he heard, or any of those which might go to negligence are not against [sic] in a products liability case.

If you will submit points for charge to me in that regard -- but for purposes of continuity, I will overrule that objection, with that cautionary instruction to the jury.

N.T. at 683-684. Later, during direct examination of defense expert, Oswald S. Carliss, defense counsel inquired whether there existed any safety standards which Carliss considered germane to the instant case. Citing to Safety Standards for Powered Industrial Trucks, which had been published by the American Society of Mechanical Engineers, Carliss responded as follows:

On page 44, paragraph 604, under the heading of traveling. There is a subparagraph D, this is directed more to the operator who is in the sphere of the user, "Slow down and sound horn at cross aisles and other locations where vision is obstructed. If the load being carried obstructs forward view, travel with the load trailing." That means behind you.

F says, "Look in the direction of, and keep a clear view of the path of travel."

N.T. at 1898-1899. Although no objection thereto had been raised by plaintiff's counsel, the trial court sua sponte interjected the ...

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