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HOFFMAN v. NIAGRA MACH. & TOOL WORKS CO.

February 8, 1988

Robert Hoffman and Florence Hoffman, Plaintiffs
v.
Niagra Machine and Tool Works Co., Defendant



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, S.J.

 On September 4, 1987, following four (4) days of trial, a jury returned a verdict in the above-captioned action in favor of the defendant Niagra Machine and Tool Works ("Niagra") and against the plaintiffs Robert and Florence Hoffman. Judgment was entered thereon accordingly. Presently before us is the plaintiffs' Motion For A New Trial or Judgment N.O.V. Unfortunately, plaintiff's counsel has not submitted a memorandum of law in support of his Motion. As a result thereof, and understandably so, defendant's counsel has also not submitted a memorandum of law in support of Niagra's response to the plaintiffs' Motion.

 On August 19, 1982, plaintiff Robert Hoffman, while operating a multi-purpose "punch press" at his place of employment, was severely injured when the press activated and descended while his right hand was within the area of operation, i.e., between the "die" attached to the press's "ram" and the bed of the press. The accident resulted in the amputation of the plaintiff's right ring finger, right little finger and one-half of his right middle finger. The plaintiffs instituted this action against Niagra, the manufacturer of the punch press, pursuant to the Restatement (Second) of Torts § 402A, claiming that Niagra had placed the press in the stream of commerce while in an unreasonably dangerous, defective condition. Specifically, the plaintiffs claimed that the press was defective both in its design and in the fact that proper warnings were not attached to the product.

 At trial, Niagra primarily defended the case on the theory that the press, as sold by it, was not a "completed" product, and therefore, the responsibility for installing adequate point of operation safety devices and warnings rested with someone other than it, e.g., Robert Hoffman's employer or the manufacturer of the die which was attached to the press. See, e.g., Rooney v. Federal Press Co., 751 F.2d 140, 143 n.3 (3d Cir. 1984); Heckman v. Federal Press Co., 587 F.2d 612 (3d Cir. 1978); Verge v. Ford Motor Co., 581 F.2d 384 (3d Cir. 1978); Field v. Omaha Standard, Inc., 582 F. Supp. 323 (E.D.Pa. 1983); Lesnefsky v. Fischer & Porter Co., Inc., 527 F. Supp. 951 (E.D.Pa. 1981); Powell v. E.W. Bliss Co., 529 F. Supp. 48 (E.D.Pa. 1981); and Christner v. E.W. Bliss Co., 524 F. Supp. 1122 (M.D.Pa. 1981).

 The plaintiffs, in support of their Motion For A New Trial, initially contend that we erred in permitting counsel for Niagra to introduce testimony as to trade custom and industry standards. At trial, in the form of a Motion In Limine, the plaintiffs asserted that we should preclude the introduction of such evidence based on the Pennsylvania Supreme Court's recent decision in Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (Pa. 1987). Since it is undisputed that we must apply the laws of Pennsylvania in this diversity action, we must abide by the Pennsylvania Supreme Court's decision in Lewis to the extent that it is applicable to this case.

 Despite the plaintiffs' interpretation to the contrary, we do not believe that the Lewis decision represents a complete bar to the admissibility of evidence of industry standards and trade custom. As stated by the Third Circuit Court of Appeals in Verge v. Ford Motor Co., supra, a "design defect case of this type involves two primary issues: (1) Was there a defect?; (2) If so, who is responsible for it?" 581 F.2d at 386. In Lewis, the defendant sought to introduce evidence of trade custom and industry standards with regard to the former question, i.e., in support of its contention that the hoist was not defectively designed. In the case sub judice, Niagra sought to introduce evidence of trade custom and industry standards only with regard to the latter question, i.e., in support of its contention that the press, as sold by it, was not a completed product and that the responsibility for Robert Hoffman's injuries, if any, lay with the manufacturer of the "die" attached to the press or Robert Hoffman's employer.

 At least two other federal district court judges applying Pennsylvania law have been faced with this exact same question, and in both instances, they concluded that, where a jury finds that the allegedly defective product was not a completed product when it left the defendant's control, the jury may consider such factors as trade custom, safety codes, laws and regulations, the relative expertise of the parties, and the practicalities of the situation in determining who bore the responsibility for installing "point of operation" safety devices. See Christner v. E.W. Bliss Co. (Ditter, J.), supra, and Powell v. E.W. Bliss Co. (Herman, J.), supra. In both Christner and Powell, as here, the defendant manufacturers sought to introduce evidence of trade custom and industry standards not with regard to their "reasonableness" in failing to provide adequate warnings and point of operation safety devices, but only as to the question of whom the jury should impose liability upon if they found the press had been manufactured in more than one stage.

 We find nothing in Lewis, supra, which dictates a result different from that reached by us during the trial of this matter and by the two district court judges in Christner and Powell. For the reasons stated above, we find that the evidence to which the plaintiffs object was completely admissible for the limited purpose for which the defendant introduced it.

 Likewise, we find no error in the manner in which we charged the jury on this point. In the portion of our charge in which we defined the term "defect", we specifically directed the jury that:

 
To recover on this theory and under this rule (i.e., § 402A), the Plaintiff is not required to prove that the Defendant is negligent or careless in any way. But, the Defendant can be liable to the Plaintiff even though the ...

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