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PHILLIP R. BRANDIMARTI v. CATERPILLAR TRACTOR CO. AND TOWMOTOR (06/03/87)

filed: June 3, 1987.

PHILLIP R. BRANDIMARTI, APPELLANT,
v.
CATERPILLAR TRACTOR CO. AND TOWMOTOR, INC., AFFILIATED CORPORATIONS, AND BECKWITH MACHINERY COMPANY



Appeal from the Judgment entered July 21, 1986, in the Court of Common Pleas of Allegheny County, Civil No. GD 83-12468.

COUNSEL

Anthony P. Picadio, Pittsburgh, for appellant.

George Yokitis, Pittsburgh, for appellees.

Brosky, Del Sole and Cercone, JJ.

Author: Del Sole

[ 364 Pa. Super. Page 28]

The underlying action in the instant case was initiated by Appellant based upon a theory of strict liability. Appellant sought damages for the injuries he suffered when the forklift he was operating overturned. Named as defendants were the manufacturer of the forklift, Towmotor, Inc., Towmotor's parent company, Caterpillar Tractor Company, and the seller of the forklift, Beckwith Machinery Co. Appellant alleged that the forklift was defectively designed and came equipped with inadequate warnings. After testimony in the case was concluded, the trial court directed a verdict in favor of Caterpillar Tractor Company. The case was subsequently submitted to the jury which returned a verdict in favor of the remaining defendants. Appellant's

[ 364 Pa. Super. Page 29]

    timely filed post-trial motions were denied by the court and this appeal ensued.

On appeal, Appellant seeks review of the court's charge to the jury, the court's ruling on several evidentiary matters and the court's directed verdict in favor of Caterpillar Tractor Company. For the reasons which follow, we find it necessary to rule that the jury was improperly charged and order a retrial. Because of our decision on the merits of this first issue, we decline to consider whether the court's evidentiary rulings were proper. We have, however, reviewed the court's action which directed a verdict in favor of Caterpillar Tractor Company and find it must also be reversed.

Appellant advances before this court a claim that the charge to the jury contained serious misstatements of the law. It is averred that the jury was instructed to balance social policy considerations which were inappropriate and that negligence, misuse, abuse and abnormal use concepts were erroneously included in the jury charge.*fn1

The primary duty of a trial judge in charging the jury is to clarify the issues so that the jury may comprehend the questions that they are to decide. Easton Nat. Bank & Trust Co. v. Union Nat. Bank & Trust Co. of Souderton, 237 Pa. Super. 316, 352 A.2d 544 (1975). As long as the trial judge chooses a form of expression which adequately and clearly covers the subject, the judge is not required to use the exact language of a requested point. McGowan v. Devonshire Hall Apartments, 278 Pa. Super. 229, 420 A.2d 514 (1980). Where the accuracy of the charge is an issue on appeal, the appellate court must review it, not to determine whether certain portions taken out of context appear erroneous, but whether the charge in its entirety, against the background of the evidence in the particular case, demonstrated that error was committed which was

[ 364 Pa. Super. Page 30]

    prejudicial to the complaining party. Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority, 507 Pa. 204, 489 A.2d 1291 (1985). After review of the charge applying these standards, we conclude that the instructions given to the jury were, indeed, improper.

Although the trial judge began by correctly outlining for the jury the roles and duties imposed upon manufacturers in Pennsylvania, the following language was employed regarding whether a product should be found defective:

In making your determination of whether the lift truck was sold in a defective condition, you should consider the following factors:

The utility and benefits of the lift truck to the operator, plaintiff's employer and to the public in general as compared to the risks of injury, including the likelihood ...


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