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LORETTA ELLIS v. CHICAGO BRIDGE & IRON CO. (07/01/88)

filed: July 1, 1988.

LORETTA ELLIS, ADMINISTRATRIX OF THE ESTATE OF MCHENDLY ELLIS, DECEASED
v.
CHICAGO BRIDGE & IRON CO., APPELLANT



Appeal from the Order Entered May 29, 1986 in the Court of Common Pleas of Philadelphia County Civil Division, No. 2430 November Term 1981

COUNSEL

Raymond T. Cullen, Philadelphia, for appellant.

Stanley B. Gruber, Philadelphia, for appellee.

Montemuro, Popovich and Cercone, JJ. Popovich, J., files a concurring opinion.

Author: Cercone

[ 376 Pa. Super. Page 222]

This appeal is from an order of the trial court denying appellant Chicago Bridge and Iron Company's (hereinafter "CBI") post-trial motion for judgment notwithstanding the verdict and for a new trial.

The relevant facts of the case are as follows: In December, 1979, CBI arranged for the shipment of steel plates, fabricated at its plant in Greenville, Pennsylvania, to the United Arab Emirates by barge via the Port of Philadelphia. The shipment included seventy-two (72) trapezoidal or pieshaped plates.

CBI packaged the 72 plates of steel in bundles (or drafts) of twelve sheets each. Each draft was approximately three inches thick, weighed over 7000 pounds, and was clipped together by several C-shaped steel clips. CBI packaged the steel this way in an effort to maintain its rigidity for safe shipment and to insure the safety of individuals who would be handling the steel. CBI provided no lifting or shipping instructions with the drafts, nor did CBI mark the center of gravity of each draft.

The decedent, McHendly Ellis, was a longshoreman employed by the Delaware Operating Company, a stevedoring company. Mr. Ellis normally worked as a docksman on the pier but was assigned to work aboard the barge on December

[ 376 Pa. Super. Page 22311]

, 1979. The workers used two loops of chain to lift the trapezoid-shaped drafts. At the time of the fateful incident, the workers attempted to move two bundles at one time. The workers lifted the combined weight of 14,708 pounds onto the barge. The steel did not fit into the intended space. Therefore, the crane operator lifted the drafts while the workers attempted to reposition the steel by turning it around manually. While being manipulated, the steel bumped the mast of a forklift truck located on the barge. The drafts slid out of the chains and fell onto the deck, crushing McHendly Ellis who had fallen under the steel and causing his death.

Appellee Loretta Ellis, the decedent's wife, brought actions under the wrongful death and survival acts against CBI and Atlantis Contractors, Inc. (hereinafter "Atlantis"), the shipper and exporter of the steel plates. The complaint included theories of negligence and strict liability. The negligence theory was abandoned at trial, as was the suit against Atlantis and the case proceeded solely on the theory of strict liability against CBI. The jury returned a verdict in favor of appellee in the amount of $750,000.00. Appellee moved for delay damages under Pennsylvania Rule of Civil Procedure 238, 42 Pa.C.S.A. Despite appellant's timely objection, the court awarded delay damages in the amount of $312,500.00. Judgment was entered for Loretta Ellis in the amount of $1,062,500.00. CBI moved for judgment notwithstanding the verdict and for a new trial, which motions were denied on May 20, 1987.*fn1

Appellant has raised several claims of error for our review. However, because we have determined that as a matter of law the case was improperly tried under the theory of strict liability, we need not address each claim raised.

We begin by setting forth the language in section 402A of the Restatement (Second) of Torts which was adopted by our Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966):

[ 376 Pa. Super. Page 224]

ยง 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Id., 422 Pa. at 427, 220 A.2d at 854.

The crux of appellee's count in strict liability was that appellant failed to secure "lifting eyes" or other appropriate lifting devices to the drafts, it failed to mark the center of gravity of the drafts, and that it failed to provide appropriate lifting instructions and warnings, all of which rendered the drafts of steel "defective" or "unreasonably dangerous" within the meaning of section 402A. Appellant admits that it did not attach lifting devices, mark the center of gravity, or provide lifting instructions or warnings.

The fundamental issue to be determined by this court is whether, under the undisputed facts as given, the trial court erred in allowing this case to go to the jury on the theory of strict liability. The determinative question is whether a product, not alleged to be defective for use in its intended purpose, can become defective as to intermediate shippers by the manufacturer's failure to provide lifting devices, instructions, or warnings.

Product liability law is a branch of the law of torts. The function of tort law is to shift the cost of an accident from a

[ 376 Pa. Super. Page 225]

    claimant to a defendant when the defendant is deemed "responsible" for the claimant's injuries. However, before a defendant may be deemed blameworthy, the court must identify a duty owed by that defendant which has been breached. A product seller or manufacturer should not, through the medium of tort law, be asked to pay damages merely because its product caused an injury. In failure to warn or instruct cases, recovery is sought on the theory that the product is "unreasonably dangerous" when unaccompanied by a warning with respect to nonobvious dangers inherent in the use of the product. The case at hand is not one of the use but merely one of the delivery of a product. It would have been more properly based in negligence and not strict liability.

While the manufacturer's responsibility for injuries resulting from the lack of warning as a defect in the product is an expansion of the supplier's role as a guarantor of a product's safety, it was not intended to make the manufacturer an insurer of all injuries caused by the product.*fn2 See Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). Since almost every industrial product would appear to have some potential for inflicting harm, and since instructions and warnings can not reasonably be required in the marketing of every product, a rule as to standards of conduct must be ...


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