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filed: July 1, 1988.


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


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]

§ 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 applied in determining the circumstances under which a warning or instruction is required so as to keep every product from being considered "defective" without

[ 376 Pa. Super. Page 226]

    the warning and to keep the manufacturer from assuming the role of insurer rather than guarantor of its product.*fn3

In order to prevail under strict liability a plaintiff must prove (1) that the product was defective, (2) that the defect existed when it left the hands of defendant, and (3) that the defect caused the harm. See Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 98, 337 A.2d 893, 898 (1975).

[ 376 Pa. Super. Page 227]

The pivotal question in most product liability cases involves a determination of what is a defective product. The focus of this determination is in the product and not on the conduct of the manufacturer. Accord Staymates v. ITT Holub Industries, 364 Pa. Super. 37, 527 A.2d 140 (1987); Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987). The majority of product liability cases fit in two categories: manufacture defect or design defect. A subcategory of design defect includes inadequate warning,*fn4 to the user or consumer, of the defect or dangerous propensity of the product. See Berkebile v. Brantly Helicopter Corporation, supra; Annotation, Failure to Warn as Basis of Liability Under Doctrine of Page 227} Strict Liability in Tort, 53 A.L.R.3d 239 (1973); Wade, On Product "Design Defects" and Their Actionability, 33 Vand.L.Rev. 551 (1980) (hereinafter "Wade"); and Twerski, Weinstein, Donaher and Piehler, The Use and Abuse of Warnings in Products Liability -- Design Defect Litigation Comes of Age, 61 Cornell L.Rev. 495 (1976) (hereinafter "Twerski"). Appellee frames her argument in this subcategory.

Appellee's theory at trial relied heavily on language found in Berkebile v. Brantly Helicopter Corporation, supra. In Berkebile, the plaintiff's decedent was killed in a helicopter crash. Plaintiff brought wrongful death and survival actions, including a claim in strict liability, against the manufacturer of the helicopter. In an opinion announcing the decision of the court, then Chief Justice Jones, with one Justice joining and one Justice concurring in the rationale regarding inadequate warning, used the following language:

A "defective condition" is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff's injury, the seller is strictly liable without proof of negligence.

"Comment h to the section [402-A] makes it clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a 'defective condition.'" Incollingo v. Ewing, et al., 444 Pa. 263, 287 [444 Pa. 299], 282 A.2d 206, 219 (1971).

Id., 462 Pa. at 100, 337 A.2d at 902 (emphasis added). It is based on this expansive language that appellee rests her claim in strict liability. She argues that, in Berkebile, the

[ 376 Pa. Super. Page 228]

Supreme Court of Pennsylvania left no doubt that the protection of the doctrine of strict liability was to be extended to its fullest scope in this Commonwealth.

The language quoted from Berkebile established a standard of review to be applied to the facts by the jury once the court has determined that the facts alleged would support a finding that the product was defective without adequate warnings.*fn5 It provides no useful analysis for making an initial determination whether warnings were required and, if so, what factors should be considered in determining the nature and extent of that requirement.

The issue to be addressed in the case sub judice is whether the trial court correctly concluded that the facts, as pleaded and presented by the plaintiff, were such as to make out a prima facie case in strict liability which should then have been taken to the jury.*fn6 That is, under the facts, were the drafts of steel unreasonably dangerous so as to be defective without hooks, instructions or warnings?

The instant case involves a claim that the product, although well manufactured, was defectively designed by reason of lack of warnings. The language of section 402A

[ 376 Pa. Super. Page 229]

    creates liability for a product in a defective condition which is unreasonably dangerous. In Sherk v. Daisy-Heddon, 285 Pa. Super. 320, 427 A.2d 657 (1981), rev'd on other grounds, 498 Pa. 594, 450 A.2d 615 (1982),*fn7 a panel of this Court, per Cercone, [then] P.J., set forth expansively the analysis to be applied in cases where a plaintiff claims a product is "defective" and "unreasonably dangerous" without adequate warnings. We quote:

Comment (i) to Section 402(A) elaborates on the concept of "unreasonable danger" for Section 402(A) purposes. In relevant part, comment (i) says,

"The rule stated in this section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer . . . . The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (Emphasis added.)

In keeping with comment (i), one treatise summarizes the rule for the manufacturer's duty to warn under Section 402(A) thusly:

"The rule stated in § 402(A) of the Restatement is held to apply only when the product is in a condition not contemplated by the ultimate consumer, and dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Thus, a product containing an obvious hazard is considered neither defective nor unreasonably dangerous, and therefore there is no

[ 376 Pa. Super. Page 230]

    duty to warn of such dangers, even under strict liability principles." (Emphasis added.)

Comment (j) to § 402(A) points out that some products may be defective and unreasonably dangerous within the meaning of this section if the seller does not include a warning concerning the danger with the product.*fn8 Although comment (j) focuses on warnings relative to the dangers of ingredients in food and drugs, without question this duty extends to other types of products, including equipment and household goods.*fn9

On the basis of comments (i) and (j), one treatise summarizes the rule for the duty to warn thusly:

"The test to determine whether a danger is obvious is an objective one, not dependent upon the actual knowledge of the user, or his actual awareness of the danger. It is the knowledge and realization of the danger that would be possessed by the ordinary consumer who purchases or uses the product. . . If the product is one customarily used by children, the danger must be one which children would be likely to recognize and appreciate in order to prevent them from recovering for a product related injury on the grounds that the danger was open and obvious."*fn10

Without further elaboration, it is evident that under § 402(A) the necessity of a warning by the manufacturer depends in part upon the knowledge of the "ordinary consumer who purchases it, with the ordinary knowledge

[ 376 Pa. Super. Page 231]

    common to the community" as to the characteristics of the product.*fn11

Appellee in its brief contends that the perceptions of the community regarding the product at issue have been ruled irrelevant under § 402A by the Supreme Court's decision in Azzarello v. Black Brothers, Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). Appellee's interpretation of Azzarello is incorrect. In Azzarello, the Supreme Court noted that there are two requirements set forth in Section 402A for liability -- that the product be "in a defective condition," and that it be "unreasonably dangerous." However, the Azzarello court recognized that there are difficulties inherent in giving a jury instruction using the term "unreasonably dangerous." The Azzarello court cited the California Supreme Court in Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 442, 501 P.2d 1153, 1162 (1972), in which the Cronin court disapproved the "unreasonably dangerous" terminology because it "rings of negligence." The Cronin court further said:

"We recognize that the words 'unreasonably dangerous' may also serve the beneficial purpose of preventing the seller from being treated as the insurer of its products. However, we think that such protective end is attained by the necessity of proving that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injuries. Although the seller should not be responsible for all injuries involving the use of its products, it should be liable for all injuries proximately caused by any of its products which are adjudged 'defective.'" Id. at 133, 104 Cal.Rptr. at 442, 501 P.2d at 1162. (footnote omitted).

Therefore, the Cronin court, while acknowledging that § 402A employs the term "unreasonably dangerous" to indicate that the seller should not be treated as the

[ 376 Pa. Super. Page 232]

    insurer of its product, nonetheless rejected the use of this term in a products liability case because the term "rings of negligence." The Azzarello court similarly ruled that the term "unreasonably dangerous" should not be used when instructing the jury in a products liability case because it is inadequate to guide a lay jury. Appellee would now have us extend the holding of Azzarello to new limits, arguing that since comment (i) to section 402A is captioned "Unreasonably Dangerous," and that since the consumer expectation test is discussed in comment (i), then the Azzarello decision implicitly rejected the consumer expectation test. Appellee is in error. The California courts have addressed this identical issue in cases subsequent to the Cronin decision and those decisions have delineated the importance and necessity of the consumer expectation test as one method of defining the meaning of "defective" in a products liability context.

Sherk v. Daisy-Heddon, 285 Pa. Super. at 327-30, 427 A.2d at 660-61.

We note that in the Restatement comment g, entitled "Defective condition", it is stated: "The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him."

The emphasis is upon the consumer's reasonable expectation of buying a product that is reasonably safe. The ordinary consumer evaluates a product in terms of safety, recognizing that virtually no product is or can be made absolutely safe.

The liability arising from inadequate warnings is not "strict" in the same sense as liability arising from a defect due to fault in manufacture, since a determination of whether an object is unreasonably dangerous without adequate warnings, and thus defective, necessarily involves negligence

[ 376 Pa. Super. Page 233]

    principles such as reasonableness or foreseeability.*fn12 As further indication that the rule of reasonableness applies with respect to inadequate warning cases, it has been held that liability attaches only if the supplier knew, or by the use of its special skill and knowledge should have known, of the danger,*fn13 or where the dangerous use to which the product might be put was reasonably foreseeable,*fn14 subject to the caveat that a product is not defective without warnings where the danger is obvious or where the injured person, his employer, or an expert or technically trained person under whom he was working, knew of the danger.*fn15 It is, therefore, not surprising that particular cases in which recovery has been sought under the doctrine of strict liability in tort for inadequate warning turn generally on the facts of each particular case. See generally, Korpela, supra.

In Azzarello v. Black Brothers Co., supra, the Pennsylvania Supreme Court recognized that the test of reasonableness might be appropriate in the initial determination whether warnings were required. In that case, the jury

[ 376 Pa. Super. Page 234]

    returned a judgment for defendant. Plaintiff, as appellant, argued that the use of the term "unreasonably dangerous" in the jury instructions was misleading in that the term suggested the notion of negligence which, of course, is not an allowable consideration in strict liability. The Supreme Court, affirming a Superior Court decision and following rationale set forth in Berkebile, supra, concluded that the term "unreasonably dangerous" was improperly inserted in the jury instructions and granted plaintiff a new trial. However, the Court did indicate that the term "unreasonably dangerous" is a useful starting point in the initial determination in predicting liability in this area of the law. The Supreme Court stated:

Thus the mere fact that we have approved Section 402A, and even if we agree that the phrase "unreasonably dangerous" serves a useful purpose in predicting liability in this area, it does not follow that this language should be used in framing the issues for the jury's consideration. Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy. Restated, the phrases "defective condition" and "unreasonably dangerous" as used in the Restatement formulation are terms of art invoked [to determine] when strict liability is appropriate. It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint. They do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution. A standard suggesting the existence of a "defect" if the article is unreasonably dangerous or not duly safe is inadequate to guide a lay jury in resolving these questions.

[ 376 Pa. Super. Page 235]

    dangerous" is the test to be applied. See generally, Wade, supra. A review of the plethora of cases applying inadequate warnings will reveal that, in each case, the danger was one which was latent or not apparent to the consumer or user of the product. Accord: Berkebile v. Brantly Helicopter, Corp., supra (alleged inherent defect that the time required to activate autorotation system was short and manufacturer failed to warn pilot); Azzarello v. Black Bros. Co., Inc., supra (alleged inherent defect was the lack of safety device which allowed plaintiff's hand to be caught in machine); Incollingo v. Ewing, supra (alleged failure of drug manufacturer to sufficiently warn of the dangerous effects of a certain drug); Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984) (failure to warn of nonobvious danger that radial tire, mixed with non-radial tires, might be unduly dangerous); Staymates v. ITT Holub Industries, 364 Pa. Super. 37, 527 A.2d 140 (1987) (failure to warn against nonobvious danger (latent defect) in dust collector); Carrecter v. Colson Equipment Co., supra (truck defective without adequate warning of maximum load capacity at which the truck could be maneuvered without placing undue stress on the user's back). We would suggest that the previously quoted language from Berkebile, infra at 909, cannot be used to make the initial determination as to whether inadequate warnings can be a basis of liability. That language must be limited to situations where the danger or potential of danger is not readily recognizable to the user or consumer.*fn16

[ 376 Pa. Super. Page 237]

In the case at hand the trial court specifically left the question of inadequate warnings to the jury by instructing "whether or not the defendant was required to give warnings and/or instructions in the case is for you, the jury, to determine."

The lower court erred in failing to determine whether the inherent danger of moving the drafts of steel was evident not only to the decedent (subjectively) or to the community as a whole (objectively).*fn17 We take judicial notice of the fact that the inherent danger in moving the drafts was obvious to all parties involved and we conclude that the lower court erred in denying appellant's motion for judgment notwithstanding the verdict. Accordingly, judgment is vacated and the case dismissed.

POPOVICH, Judge, concurring:

While I concur with the majority's holding that "the case was improperly tried under the theory of strict liability," I believe that the majority incorrectly declined to address the primary issue in a thorough products liability analysis:

[ 376 Pa. Super. Page 238]

    whether the injured party is an "ultimate user or consumer" and thereby entitled to pursue a strict liability claim.*fn1 Notably, this question of whether an intermediate shipper or handler of a product is considered to be an "ultimate user or consumer" has not been addressed by the courts of this Commonwealth. Instantly, I would hold that the appellee, an intermediate shipper of the product in question, is not a "user or consumer" within the meaning of § 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). For the aforementioned reason, I would find that the lower court erroneously concluded that the facts, as pleaded and presented by the plaintiff, made out a prima facie case in strict liability and, as such, should not have been sent to the jury.

The Restatement (Second) of Torts, § 402A, specifically states:

§ 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. (emphasis added).

[ 376 Pa. Super. Page 239]

The language "ultimate user or consumer" is pervasive throughout products liability case law. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 467 A.2d 615 (1983); Dickerson v. Brind Truck Leasing, 362 Pa. Super. 341, 524 A.2d 908 (1987). In Schriner v. Pa. Page 239} Power & Light Co., 348 Pa. Super. 177, 501 A.2d 1128, 1132, we stated the following:

When we distill § 402A into its constituent elements, we find the following are necessary to an appropriate application of this section:

(1) a product;

(2) a sale of that product;

(3) a user or consumer;

(4) a defective condition, unreasonably dangerous; and

(5) causation -- that the product caused physical harm to the ultimate user or consumer, or to his property.

If any of these requisite elements remains unsatisfied, § 402A has no applicability. (Emphasis added.)

While Pennsylvania case law has not addressed the issue of whether an intermediate shipper is considered an "ultimate user or consumer" of the product it is handling, common sense dictates that a longshoreman who is merely involved in shipping massive steel plates to be used in construction of a water tank in Abu Dahbi is not an ultimate consumer of those steel plates. Consequently, § 402A is not applicable to the case at bar.

The issue of the applicability of § 402A to an injured intermediate shipper was squarely addressed by a Washington appellate court in Spellmeyer v. Weyerhaeuser Corp., 14 Wash.App. 642, 544 P.2d 107 (1975). Therein, a longshoreman sued a manufacturer under a theory of strict liability for failure to prepare bales of wood pulp properly for shipping. The Washington Court of Appeals, in affirming the summary judgment granted against the strict liability claimant, stated:

Imposition of strict liability is premised on the sound policy consideration that the manufacturer who markets his product for use and consumption by the general public is best able to bear the risk of loss resulting from a defective product. The thrust of Section 402A is, accordingly, to protect the "ultimate user or consumer" of the

[ 376 Pa. Super. Page 240]

    product . . . . In the instant case Weyerhauser produced and packaged a raw material in an intermediate state, which was stored awaiting shipment to another processor. It did not harm or endanger any "ultimate user or consumer"; only expert loaders and expert carriers were required to deal with it. We therefore conclude that, because of the character of the "product" and the status of the plaintiff, the policy considerations which support imposition of strict liability in other contexts are too severely diluted here and dismissal was correct as to the strict liability theory.

Spellmeyer, 544 P.2d 109-110

Similarly, the instant appellee is not a member of the class of ultimate users and consumers which § 402A was developed to protect.

Moreover, Judge Montemuro of this Court, in his dissenting opinion in R.B. Equipment v. Williams, Sheilds, Snyder and Goas, 304 Pa. Super. 31, 450 A.2d 85 (1982), opined that a middleman handling a product does not qualify as an "ultimate user or consumer" and, therefore, § 402A is inapplicable to a middleman's claim for economic damages. 450 A.2d at 88 (The majority did not reach the issue of whether § 402A applied because the appeal was quashed as interlocutory.)

The implication that an intermediate shipper may be considered an "ultimate user or consumer" of the products which he transports is an extension of § 402A far beyond that contemplated by its drafters and our courts. Such an extension of § 402A would merely subject manufacturers to a myriad of product liability claims for injuries sustained by intermediate shippers of their product. Further, the effects of allowing such an appeal to proceed under § 402A would undermine Workman's Compensation Law. In sum, I find that § 402A is wholly inapplicable to the case at bar. As stated by the majority, "[The case] would have been more properly based in negligence and not strict liability."

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