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filed: April 29, 1988.


Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 83-19844


Maureen D. Harvey, Pittsburgh, for appellants.

Frederick N. Egler, Jr., Pittsburgh, for appellee.

Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Kelly, J., concurs in the result. Brosky, J., files a dissenting opinion.

Author: Tamilia

[ 373 Pa. Super. Page 436]

This is an appeal from a judgment of the Court of Common Pleas of Allegheny County in favor of the defendant, Westinghouse Electric Corporation, in a products liability action.

Appellants, William and Margaret Mackowick, are husband and wife. In December, 1982, William, a skilled electrician was installing additional capacitors in the switchgear room at Western Pennsylvania hospital. The room has high voltage warnings on its doors and is unlocked only for authorized persons. The capacitors already in use at the time were manufactured by Westinghouse and were enclosed in boxlike covers with cautionary warnings on their lids which were held on by screws.

During the installation, one of William's co-workers, Thomas McIntyre, removed the cover from a Westinghouse capacitor. On the removed lid was a warning to users that they should disconnect the breaker, wait five minutes, short the terminals and attach the terminals to the ground before handling. The top of the capacitor was approximately the height of William's waist.

[ 373 Pa. Super. Page 437]

At trial, McIntyre testified he had removed the lid of the energized capacitor to look into it to check the proper installation technique for the new capacitors. At that point, William came over with a screwdriver in his hand which he pointed into the capacitor box resulting in an explosive electrical flash, burning William. He brought this action, claiming Westinghouse's capacitor box was defective because it should have had a lockout system so that it would be de-energized whenever it was opened. His wife filed a derivative claim for loss of consortium.

Westinghouse's expert testified that flashover, or arcing as it is called in the trade, will not occur unless an object is within 40/1000's of an inch of the fuse. The trial court instructed the jury on assumption of risk though it refused to give the instruction requested by the plaintiffs. The jury returned a verdict for Westinghouse. William and his wife appealed to this Court.

Appellants present three issues for our review: (1) whether the trial court's instruction on assumption of risk was erroneous; (2) whether the court's instruction on liability was in error; and (3) whether the court erred in refusing to permit the introduction into evidence of models of alternative capacitor designs and whether the court erred in precluding certain cross-examination of Westinghouse's expert.

In the instant case, the court's jury charge provided in pertinent part:

For you to find that a plaintiff assumed the risk of his injury, you must find that the plaintiff was aware of the danger presented by defendant's product and voluntarily proceeded to encounter the danger. The plaintiff must have realized the danger, but not necessarily the specific defect itself, just the danger.

The jury charge was adequate for the purposes of this case and precisely defines the ambit of risk of the plaintiff in relation to exposing himself to a dangerous condition.

The mandate of this Court is to view the facts in the light most favorable to the defendant as verdict winner and not reverse the trial court's Order absent an abuse of discretion

[ 373 Pa. Super. Page 438]

    or error of law which controlled the outcome of the case. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985); Binder v. Jones & Laughlin Steel Corp., 360 Pa. Super. 390, 520 A.2d 863 (1987); Bryant v. Girard Bank, 358 Pa. Super. 335, 517 A.2d 968 (1986); Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984).

A careful reading of the testimony elicited at trial showed clearly that the appellant, an experienced electrician of more than thirty years, fully understood the nature of arcing (flashover). The jury obviously found the testimony of Thomas McIntyre, his co-worker, (that appellant had used a screwdriver to point down into the capacitor) to be the facts of this case, contrary to appellant's testimony that he pointed with his finger. The jury also found, necessarily, that the expert called by Westinghouse was correct in asserting that arcing would occur if one approached within forty one-thousandths of an inch to the capacitor, which was so close as to be indistinguishable from "touching" it. He estimated that distance to be equivalent to the lead of a thick lead pencil or the gap of a spark plug. It is inconceivable that an electrician with the training and experience of the appellant would not realize that arcing can occur under exactly the circumstances involved in this case.

Assumption of the risk frequently occurs with persons who have extensive experience and training and, therefore, take greater chances than persons who are either laymen or not so experienced. The jurors obviously, in light of their own exposure with modern technology, could have concluded that danger of electric shock existed to anyone putting a screwdriver into a fuse box or any other electrical connection in the home, and from their own experience would be reasonably able to infer that a condition with such obvious potential for injury or death, as contained in the switchgear room, was such that an experienced electrician should not have been so reckless as to expose himself to likelihood of ...

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