Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Cumberland County at No. 3260 of 1983.
Charles E. Wasilefski, Harrisburg, for appellant.
Leslie M. Fields, York, for Books, appellees.
William F. Martson, Carlisle, for Agway, appellee.
William A. Addams, Carlisle, for Mack Truck Inc., appellee.
Susan E. Grosh, Lancaster, for Trailer Co., appellee.
Robert J. Brown, York, for Hill Mfg., appellee.
Rowley, Watkins and Roberts, JJ.
[ 362 Pa. Super. Page 102]
In this appeal from the entry of a summary judgment in favor of Mack Trucks, Inc. and Hill Manufacturing Company, appellees, Pennsylvania Power & Light Company (PPL), the appellant, presents a single issue for review: whether adequate warnings on a Mack tractor and a Hill dump trailer might have caused plaintiff to act differently at the time of his injury. In order to resolve that issue it is necessary to ascertain whether the record shows that plaintiff fully appreciated the risk of operating the tractor and dump trailer in the vicinity of overhead power lines without coming into actual contact with the lines. After having carefully considered the parties' arguments,*fn1 we find merit in PPL's contention and vacate the summary judgment.
David Books (plaintiff) and his wife filed a complaint in trespass against PPL and Agway alleging that plaintiff was electrocuted when the dump trailer he was unloading at Agway "came into contact or was caused to be electrified by the overhanging power lines owned, operated and controlled by [PPL]." R.R. 4a. No one saw the trailer hit the power lines and the record is not clear whether the accident resulted from the equipment coming in contact with the lines or whether the electrical current arced across a space between the lines and the nearby trailer. Plaintiff maintains that PPL negligently placed its power lines near a dumping site and that Agway was negligent in directing that materials be dumped near the lines.
PPL joined Mack and Hill*fn2 as additional defendants and filed a complaint against them on grounds of negligence, strict liability under the Restatement (Second) of Torts § 402A, and the breach of express and/or implied warranties. The dump trailer that plaintiff was operating was manufactured by Hill and was pulled by a tractor manufactured
[ 362 Pa. Super. Page 103]
by Mack. In its complaint, PPL alleged that Mack and Hill failed to affix a warning on their products of the danger of raising the dump trailer "in the vicinity of overhead electrical transmission lines." R.R. 20a.
After the pleadings were closed, PPL, Mack and Hill filed motions for summary judgment. They relied on the deposition testimony of plaintiff and a co-worker. Neither Mack nor Hill were represented at the deposition, presumably because it was taken prior to the filing of the complaint joining them in the action. In order to fully understand the bases of the motions, it is necessary to first set forth the facts, as viewed under the appropriate standard. The record must be examined in a light most favorable to the nonmoving party and all doubts must be resolved against the moving party. See Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). Plaintiff was directed by his employer to take a load of lime to Agway and dump it there. A second truck, also bearing lime for Agway, followed plaintiff. That truck was driven by plaintiff's co-worker, Wayne Espenshade, Jr. When they arrived at Agway, they were told to dump the lime in an area where overhead power lines were located. Plaintiff stated that he was aware of the power lines. When asked if there was any discussion about the lines, he responded, "I said, we would watch the lines, we didn't want to hit the lines." R.R. 90a. The decision was made to dump Espenshade's load first. Plaintiff testified as follows:
Q When you got out of your trucks, then, you saw that the lime was at the end of the building?
Q At that point, did you look at the wires overhead?
Q Did you have any discussion about ...