Appeals from Judgment of the court of Common Pleas, Civil Division, of Lycoming County, No. 84-00171.
Louis C. Long, Pittsburgh, for Eck, appellant (at 441) and appellee (at 473 and 474).
Richard A. Gray, Williamsport, for Powermatic, appellant (at 473) and appellee (at 441 and 474).
John P. Pietrovito, Williamsport, for Hermance, appellant (at 474) and appellee (at 441 and 473).
Wieand, Olszewski and Tamilia, JJ.
[ 364 Pa. Super. Page 181]
In the instant appeal, we are asked to determine the role of "foreseeability" in a "substantial change" defense asserted in a product liability action. The trial court charged the jury that any substantial change made to a product by a user or consumer would relieve the manufacturer and distributor of the product from liability for injuries caused thereby. Plaintiff-appellant argues that the jury should have been instructed that the manufacturer and distributor would be absolved of liability only for subsequent product modifications which were unforeseeable. We agree. Because we conclude that this erroneous instruction may have affected the verdict which the jury returned in favor of the manufacturer and distributor, we reverse and remand for a new trial.
On January 6, 1983, Barry Eck suffered injuries to his left hand when his arm came in contact with the rotating blade of an electrically-powered, tilting arbor saw. The saw had been manufactured by Powermatic Houdaille (Powermatic) and had been sold by Powermatic to Hermance Machine Company (Hermance), a commercial distributor of Powermatic saws. Hermance, in turn, had sold the saw to Joseph Shumbat for use in his construction business. The saw, as manufactured by Powermatic and sold to Hermance and Shumbat, contained a safety guard to prevent the hands of the operator from coming into contact with the blade of the saw while the saw was being operated. After purchasing the saw from Hermance, Shumbat removed the safety guard and permanently fastened a "shim" with a formica covering to the fence of the saw. This was done to prevent pieces of wood from becoming caught in the saw during operation. Shumbat subsequently sold the saw, in its altered condition, to Eck, who was operating the saw in its altered condition at the time of the accident.
Eck commenced an action against Powermatic and Hermance, alleging, inter alia, that the defendants were strictly liable for his injuries under Restatement (Second) of Torts
[ 364 Pa. Super. Page 182]
§ 402A.*fn1 Specifically, he contended that the saw had been defective because, inter alia, it could not be operated to perform certain functions without removing the guard, the guard could too readily be removed by the operator, and it contained a warped fence which caused the pieces of wood being cut to "bind," thereby increasing the possibility that the operator's hands would be drawn toward the blade of the moving saw. The defendants' primary defense was that the saw had not been defective when sold in its original form to Shumbat, but had become defective, if at all, only after Shumbat had removed the safety guard and fastened a "shim" to the fence.*fn2
With respect to the issue of substantial change, the trial court instructed the jury as follows:
A seller, manufacturer or distributor is responsible only for such defects as exists at the time the product leaves its control. The seller, manufacturer or distributor is not liable for defective conditions created by substantial changes in the product occurring after the product has been sold. So even if you find the saw in question was defective it is for you, the Jury, to then decide whether the defect originated at the time of the sale by the Defendant, Powermatic and Hermance or whether the defect originated as a result of the actions of Ernest L. Shumbat Company in removing the guard or failing to supply the manuals, and adding the shim. And I am
[ 364 Pa. Super. Page 183]
going to read that again because I think you should hear it in a cohersive [sic] manner. Even if you find the saw in question is defective it is for you, the Jury, to decide whether that defect originated at the time the sale was made by the Defendant, Powermatic and Hermance, or whether the defect resulted as a result of the actions of Ernest L. Shumbat and Company by removing the guard, failing to supply the manuals and adding the shim. If you find that the shim was permanently fastened to the fence of the saw by Ernest L. Shumbat Company, Inc. or that its agents or employees . . . constituted substantial change in the condition of the saw before it reached the Plaintiff then Hermance Machine Company and Powermatic are not liable to the Plaintiff's injuries. In other words, if you find that the fastening of the shim to the saw by Shumbat was a substantial change in the condition of the saw then the Defendants would not be liable. If you find that the removal of the guard and the failure to supply the guard to Barry Eck by Ernest L. Shumbat Company, Inc. constituted a substantial change in the condition of the saw before it reached Barry Eck then the Defendants Hermance and Powermatic are not liable for the Plaintiff's injuries if the Plaintiff's injuries were caused by the failure to have a guard. If you find the shim was permanently fastened to the fence of the saw by Ernest L. Shumbat or its agents or done in an improper manner then such alteration of the saw could constitute a substantial change in the condition of the saw.
Immediately thereafter, the trial court invited counsel to object or suggest additions to the jury instructions. The following colloquy between counsel for Eck and the trial court occurred:
I have some, your Honor. Charge to Jury that if they found a substantial change by Shumbat, and if it was a cause in the injury . . .
[ 364 Pa. Super. Page 184]
Then the Defendants are relieved of liability. I believe the proper charge is, that if a substantial change was caused by the actions of the Defendants or was anticipated by the Defendants, [then] that substantial change is not a defense.
I think we have got a real problem here.
For this reason, that if they find the Shumbat shim was a substantial factor and caused the accident, but assuming they also find that this shim was put on because of a warp condition that Shumbat didn't create, that it existed at the time of the sale, you then have a defect, but he attempted to correct the defect, the defect still existed and his intervening negligence is not a defense. That is where I think we have got a serious problem, that is why I objected yesterday because I thought we agreed it should not be a part of this proceeding. It makes it I think a serious problem.