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filed: March 28, 1989.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3732 August Term, 1980 Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3733 August Term, 1980


Craig A. Smith, Newtown, for Walton, appellant in Nos. 2274, 2275, and appellees in Nos. 2276-2278.

Brenda M. Flock, Philadelphia, for Avco, appellant in No. 2277, and appellee in No. 2274.

J. Bruce McKissock, Philadelphia, for Summa, appellant in Nos. 2276, 2278, and appellee in Nos. 2274, 2275, 2277.

Cavanaugh, Brosky and Montemuro, JJ. Brosky, J., files a concurring and dissenting opinion.

Author: Montemuro

[ 383 Pa. Super. Page 522]

This case is based upon a tragic event and brings to this Court a series of novel issues in the area of strict products liability. On September 1, 1978, Dennis Earl McCracken was piloting a helicopter near Robbinsville, North Carolina. McCracken was ferrying a passenger, Billy James Tincher, who was an employee of the owner of the helicopter, Phillips and Jordan, Inc. The helicopter had been designed, manufactured and sold by Hughes Helicopter, Inc. (Hughes), a division of Summa Corporation. Hughes*fn1 had incorporated an engine manufactured by the Avco Corporation (Avco) into the helicopter. Sadly, both McCracken and Tincher lost their lives when the engine in the helicopter seized in mid-flight, causing the aircraft to fall and crash. A subsequent investigation revealed that the accident had occurred due to the failure of an oil pump which was a component of the engine manufactured by Avco.

In November of 1980, complaints were filed against both Avco and Hughes*fn2 by Glenda C. Walton, as Administratrix of the Estate of Dennis Earl McCracken and Glenda D. McCracken and Dana Marie McCracken, minors, by Glenda C. Walton, their parent and natural guardian, (hereinafter "Waltons"), and by Maeburl Tincher, as Administratrix of the Estate of Billy James Tincher, and James Barry Tincher, Larry Bill Tincher, Kristie Leann Tincher, and Gregory Wayne Tincher, minors, by Maeburl Tincher, their parent and natural guardian, and by Maeburl Tincher in her own right, (hereinafter "Tinchers"). After extensive pretrial

[ 383 Pa. Super. Page 523]

    proceedings, the cases were consolidated for trial in the Philadelphia Court of Common Pleas in September of 1985. Although the suits against Avco and Hughes were originally brought on a number of legal theories, the case was ultimately submitted to the jury on strict products liability theories alone. The jury, finding both Avco and Hughes strictly liable, awarded $891,203.00 to the Waltons and $415,902.00 to the Tinchers. Numerous post-trial motions were filed on behalf of the parties involved in this litigation in November of 1985. The trial court resolved these posttrial motions in a series of orders entered on July 16, 1987. This appeal followed.*fn3

There is no dispute in the present case concerning the claim by the Waltons and the Tinchers, and the subsequent jury finding, that the engine manufactured by Avco was a defective product under Section 402A of the RESTATEMENT (Second) OF TORTS.*fn4 It is also undisputed that

[ 383 Pa. Super. Page 524]

    when Avco became aware of the defective construction of its engine, it issued Service Instruction 1341 on July 30, 1976. This service instruction advised of the specific defect in the Avco engine which eventually caused the crash of the McCracken helicopter and detailed a procedure whereby this specific defect could be remedied.*fn5 Avco listed the time for compliance with Service Instruction 1341 as the next overhaul of the aircraft. Hughes received service instructions from Avco. Unfortunately, Hughes never forwarded or advised Phillips and Jordan, Inc. concerning the contents of Service Instruction 1341, nor did Hughes advise its authorized helicopter service centers about Service Instruction 1341. Phillips and Jordan, Inc. had the McCracken helicopter overhauled on September 14, 1977, thirteen and one half months after Avco had issued Service Instruction 1341. The overhaul was performed by Executive Helicopters, an authorized Hughes Service Center located in Atlanta, Georgia.*fn6 Due to the fact that Hughes had not advised Executive Helicopters of Service Instruction 1341, the defect in McCracken's helicopter engine was not remedied. See supra at n. 2.

In addition to determining that the Avco engine's defective design was a substantial contributing factor in causing the deaths of McCracken and Tincher, the jury in the instant case also determined that Hughes had failed to warn Phillips and Jordan, Inc. and Executive Helicopters of the engine's defective design and that this failure to warn was a substantial contributing factor in causing the untimely

[ 383 Pa. Super. Page 525]

    deaths of the two men. This brings us to the first issue which we will address in the appeal.


Following the trial, Hughes sought a judgment n.o.v., contending that it may not properly be held strictly liable for its failure to warn of the defective design of the Avco helicopter engine because "the issue of 'failure to warn' is addressed . . . only when a product is designed and manufactured without defect, but nevertheless there are risks arising out of its use which require instructional warnings to make the use safe." Brief for Hughes at 20. At trial, Hughes requested that the jury be instructed that Hughes could only be found to be strictly liable for failure to warn or instruct if the Avco engine was not otherwise defective. We disagree with Hughes' construction of the strict products liability law of this Commonwealth. The trial court correctly concluded that Hughes, as the manufacturer of the helicopter, could be held strictly liable for the defective nature of the helicopter when it failed to warn of defects in the design of the helicopter's engine which were discovered and publicized after the sale of the aircraft.*fn7

[ 383 Pa. Super. Page 526]

"As between an innocent user of a product and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from the use of the product shall be borne by the manufacturer and/or seller." Majdic v. Cincinnati Machine Company, 370 Pa. Super. 611, 617, 537 A.2d 334, 337 (1988) (en banc). The test for determining whether or not a product has reached the hands of the user or consumer in a "defective condition" is whether the product is "equipped with every element necessary to make it safe for use." Id., 370 Pa. Superior Ct. at 623, 537 A.2d at 340. It is by now settled that a product may be rendered defective because it lacks necessary warnings or instructions which the seller should have supplied but neglected to do so. In Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 337 A.2d 893 (1975), the then Chief Justice Jones, writing the plurality opinion for the Court, opined:

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 warnings 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 ยง 402A, comment h. If the product is defective absent

[ 383 Pa. Super. Page 527]

    such warnings, and the defect is a proximate cause of the plaintiff's injury, the seller is strictly liable without proof of negligence . . . Where warnings or instructions are required to make a product non-defective, it is the duty of the manufacturer to provide such warnings in a form that will reach the ultimate consumer and inform of the risks and inherent limits of the product. The duty to provide a non-defective product is non-delegable . . . .

Id., 462 Pa. at 100-103, 337 A.2d at 902-903 (citations omitted). In Dambacher By Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984), this Court stated that in an inadequate warnings case, which is based upon strict products liability, ". . . the jury . . . is to consider whether the product was safe in the absence of warnings or in light of the warnings that were given." Id., 336 Pa. Superior Ct. at 57, 485 A.2d at 426.

In view of the evidence before the jury in the present case, we have no difficulty in concluding that the jury could, without legal error, impose strict liability upon Hughes. The fact that Avco was also found to be strictly liable because it designed, manufactured, and sold a defectively designed helicopter engine does not preclude a finding that Hughes was also strictly liable. It is quite clear that the jury found Hughes to be the supplier of a defective product because, apart from being in the chain of distribution of a defective component part, Hughes had sold its own product -- a Hughes helicopter -- without adequate warnings concerning its design and safety for consumer use. Hughes had been notified of the defect in the design of the Avco engine but, nevertheless, failed to issue warnings and service instructions to persons who had previously purchased a Hughes helicopter and were presumably flying it. In addition, Hughes failed to distribute Avco's Service Instruction 1341 to its authorized helicopter service centers. The idea that a product supplier can face strict liability for events which transpire subsequent to the sale of his product is not novel in this Commonwealth. In Majdic v. Cincinnati Machine Co., supra, the appellant, Henry Majdic, was

[ 383 Pa. Super. Page 528]

    injured while operating a power press which had been designed, manufactured, and sold by Cincinnati Machine Company. Majdic commenced an action against Cincinnati Machine to recover for his injuries which was ultimately tried solely on a strict liability theory. During the trial, Cincinnati Machine conceded that it had been aware of the hazards associated with the use of the power press but argued that because its power press was incorporated as a component part of a larger metal forming system by Majdic's employer, National Standard, it was National Standard's obligation to provide necessary safety features and warnings consistent with the use it made of the power press. This Court disagreed with the contentions advanced by Cincinnati Machine and recognized the following:

Although Cincinnati may have indeed expected its buyers to correct any safety hazards associated with the power press once it was consolidated within their manufacturing systems, a manufacturer's duty to warn of the dangers may nevertheless continue when it becomes cognizant that its buyers are not making the necessary safety adjustments to its product. It would be a question of fact for the jury to determine whether the product was safe absent sufficient instructions to its purchasers that safety guards and warnings should be attached to the power press upon implementation into a larger metal forming system.

Id. 370 Pa. Super. at 625, 537 A.2d at 341.

[ 383 Pa. Super. Page 529]

Most jurisdictions which have considered the post-sale obligations of a manufacturer/seller have been willing to impose a post-sale duty to warn.*fn8 See Allee, Post-Sale Page 529} Obligations of Product Manufacturers, 12 Fordham Urb. L.J. 625 (1984) (collecting cases); and Royal, Post Sale Warnings: A Review and Analysis Seeking Fair Compensation Under Uniform Law, 33 Drake L.Rev. 817 (1983) (collecting cases).*fn9 The first case which marked the path to the recognition of a post-sale duty to warn of product defects was Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959). Comstock involved defects in the power brakes of 1953 Buick automobiles. General Motors was aware of the defect and sent written notice of the problem to dealers in November of 1953. No notice was sent to car purchasers. Plaintiff Robert Comstock was seriously injured when he was struck by a 1953 Buick car after the brakes in the car failed to operate. The Comstock Court stated, "[w]e believe a . . . duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market." Id., 358 Mich. at 176, 99 N.W.2d at 634. The Court concluded that General Motors had been negligent because warnings to car owners could have "easily" prevented the plaintiff's injuries. Id. at 178, 99 N.W.2d at 635.

We have reviewed the development of case law in other jurisdictions following the Comstock decision. We note particularly the opinion of the Supreme Court of Wisconsin

[ 383 Pa. Super. Page 530]

    in Kozlowski v. John E. Smith's Sons Company, 87 Wis.2d 882, 275 N.W.2d 915 (1979), which we believe presents a factual background similar to the case at bar. Andrew Kozlowski was killed in an industrial accident when he inhaled ammonia while cleaning a sausage stuffing machine. The Wisconsin Supreme Court reversed the directed verdict which had been entered in favor of manufacturer of the machine. As in the case presently before this Court, one theory of liability in Kozlowski was strict products liability under Section 402A of the RESTATEMENT (Second) OF TORTS.*fn10 The question concerning a post-sale duty to warn by the manufacturer of the sausage stuffing machine, Smith, arose because after the sale of the machine to Kozlowski's employer, Smith developed a safety by-pass valve which later became standard on all of Smith's sausage stuffing machines. Incorporation of this by-pass valve would have presumably prevented the accident which resulted in Kozlowski's death. Whether there could be a continuing duty on the part of Smith to issue safety warnings to the users of its machine was characterized by the Wisconsin Supreme Court as "the most troublesome aspect of th[e] case." Id. 87 Wis.2d at 900, 275 N.W.2d at 923. The Court held that a continuing duty to warn could be charged to Smith but, in so doing, the Court was careful to limit its holding to the particular facts before it:

The sale of the sausage stuffer is to a limited market wherein the manufacturer should know of all companies that own its product. Therefore, whether based upon a theory of strict liability in tort or a common law duty, a jury could find it persuasive that prior to the accident, a Smith's sales representative made only two visits to the Cudahy plant [where Kozlowski was employed]. On each occasion he failed for one reason or another to inform Cudahy of the safety by-pass valve and the hazard it was designed to prevent. The representative's own testimony

[ 383 Pa. Super. Page 531]

    is that these sales calls were made after 1971 when the safety by-pass valve had become standard equipment on all new machines.

We do not in this decision hold that there is an absolute continuing duty, year after year, for all manufacturers to warn of a new safety device which eliminates potential hazards. A sausage stuffer and the nature of that industry bears no similarity to the realities of manufacturing and marketing household goods such as fans, snowblowers or lawn mowers which have become increasingly hazard proof with each succeeding model. It is beyond reason and good judgment to hold a manufacturer responsible for a duty of annually warning of safety hazards on household items, mass produced and used in every American home, when the product is 6 to 35 years old and outdated by some 20 newer models equipped with every imaginable safety innovation known in the state of art. It would place an unreasonable duty upon these manufacturers if they were required to trace the ownership of each unit sold and warn annually of new safety improvements over a 35 year period.

Id. at 900-901, 275 N.W.2d at 923-924.

In reaching our decision that Hughes may be held strictly liable for its failure to issue post-sale warnings about the safety of the engine it had installed in its helicopters, we are cognizant of the nature of the helicopter manufacturing industry. A helicopter is not a household good, commonly found in almost any home in this country. It is, instead, a unique and costly product which is manufactured, marketed, and sold to a specialized group of consumers. We believe that Hughes could have communicated safety information and service instructions with relative ease by contacting purchasers of its helicopters, as well as authorized Hughes service centers, through the mail or otherwise. Certainly, product repair and maintenance businesses represent a convenient contact point between a product supplier and a product owner. Our tort law should encourage product suppliers such as Hughes to develop systems of

[ 383 Pa. Super. Page 532]

    identifying product owners and their locations. Suppliers should be capable of formulating procedures to update these product owner lists at appropriate intervals. When Hughes was advised of the defect in Avco's engine, it certainly had the technical knowledge and the experience to understand the significance of that information. We are not as willing to believe that owners of Hughes' helicopters would possess the same level of technical knowledge. Moreover, even if a particular consumer has advanced technical education or training, the consumer of a Hughes helicopter will not have access to the kind of information which Hughes received from Avco in this case. The consumer is not a part of the industry's communication network which continually allows Hughes to receive product safety information and instructions from its component part manufacturers. A consumer, from which Hughes has derived its profits, has a right to rely on Hughes to warn him when Hughes learns that its helicopter is not safe, as originally sold, for continued use an aircraft. Simply stated, Hughes had the superior position and the know-how to receive, comprehend, and disseminate information regarding the safety of its products. This is why Hughes may be held strictly liable for the damages which have resulted from the deaths of McCracken and Tincher.

Many issues regarding a manufacturer's post-sale duty to warn are not implicated and thus are not answered by our decision here. We leave for future cases the task of formulating the boundaries of a product manufacturer's post-sale legal obligations. We are convinced, however, that boundaries must indeed be recognized. Strict products liability is justified by the belief that it encourages manufacturers and sellers to provide the public with safe products. In order for post-sale strict products liability to achieve this goal, we should be aware that, with the recognition of a legal duty, there must also be a means whereby a manufacturer may effectively discharge or satisfy this ...

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