involves a certain level of unavoidable risk.
There are some products which, in the present state of human knowledge are quite incapable of being made completely safe for their intended and ordinary use. . . . The seller of such products. . . ., is not to be held to strict liability for unfortunate consequences in its use, merely because he has undertaken to supply the product with an apparently useful and desirable product, attendant with a known but apparently reasonable risk.
It has been stated over and over by the Pennsylvania Courts that a product is not defective simply because accidents may occur during its use. E.g. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (A knife cannot be found defective merely because it cuts; its utility outweighs the risk involved in normal use.); Pegg v. General Motors Corp., 258 Pa. Super. 59, 391 A.2d 1074 (1978) ("It is important to distinguish a product that is defective from a product that is inherently dangerous . . . whether a product is inherently dangerous is a function of the extent to which the dangers are technologically unavoidable and the public need for the product great").
Defendant offered statistical evidence (which is heretofore discussed in this opinion) that the actual injury rate at Fox was one accident per 12.4 years of assembly work, and Fox's successor company, Wetterau experienced only two foot and leg accidents during the 1.6 million work hours that 547 Crown Pallet Trucks were in use in grocery warehousing, which was equivalent of only one accident for 400 work years.
The evidence presented by defendant showed that practically all of the accidents in question were foot and leg accidents and none of said accidents were life threatening.
Here again, although requested to do so, the plaintiff offered no evidence on this factor.
As to this second factor, this Court finds that the relative chances that the product will cause injury compared to the many work years of injury free use, along with the fact that the injuries sustained are not life threatening, causes this Court to weigh this part of the social policy consideration against the finding that the product in question is "unreasonably dangerous".
THREE: THE AVAILABILITY OF A SUBSTITUTE PRODUCT WHICH WOULD MEET THE SAME NEED AND NOT BE AS UNSAFE.
The question of whether a safer substitute product was available was raised by the Court and was addressed by the defendant. Again, the plaintiff refused to present evidence on the subject, although requested to do so.
The evidence presented by defendant as to the relative utility of a conveyor system, (the only product which has been suggested to this Court as an alternative to the use of pallet trucks in assembling groceries in a warehouse for distribution to super market stores) has been heretofore discussed in this opinion.
This Court concludes after a careful consideration of the evidence presented, that the conveyor system because of logistical and financial problems encountered in its potential installation; maintenance problems after installation; and greater risks of more numerous and serious injuries including death; that there is no product presently available that can be properly installed in the user's warehouse facility that will be as safe as the pallet truck and will meet the need of the user to assemble groceries as well as the defendant's pallet trucks. Again social policy and economic considerations in the consideration of the third factor weigh heavily in favor of the Defendant Crown.
FOURTH: THE MANUFACTURER'S ABILITY TO ELIMINATE THE UNSAFE CHARACTER OF THE PRODUCT WITHOUT IMPAIRING ITS USEFULNESS ON MAKING IT TOO EXPENSIVE TO MAINTAIN ITS UTILITY.
This factor is the only one of Dean Wade's seven suggested factors which this Court should consider in making the economic and social policy decisions required by Azzarello, that was addressed by the plaintiff with expert opinion evidence. The defendant also presented expert opinion evidence on this issue.
Earlier on in this opinion, this Court discussed the expert opinion evidence offered on the subject of using longer steering handles, lowering the truck platform, adding rubber guards, and redesigning the coast control device on the pallet trucks as a means of eliminating the unsafe character of said pallet trucks.
This Court concludes after a careful analysis of all of the expert testimony given and after an "on site" view of the pallet trucks in operation that none of the suggested changes of the pallet truck would eliminate any alleged unsafe character of the pallet truck, but to the contrary, installation of longer handles in fact would cause the pallet truck to be much more unsafe than is presently the case.
This Court finds that by a preponderance of evidence from the defendant's evidence presented that lowering of the platform of the pallet truck, adding a rubber guard or redesigning the coast control, would not in any way improve the safety of said truck. On the other hand, the plaintiff offered no evidence of any kind on the risk, safety, and/or utility of lowered platforms, installing rubber guards, or redesigning the coast control of said pallet truck.
Here again, as to the consideration of this fourth factor, social policy and economic considerations weigh heavily against a finding by this Court that the Crown Pallet Truck in these cases was unreasonably dangerous.
NOTE: The confusion in this case as to where the burden of proof lies when this Court is deciding the threshold questions of "unreasonably dangerous" - "risk-utility" and "social economic policy" prior to presenting any evidence to a jury, is academic in this case, since the defendant proved by a fair preponderance of the evidence that the manufacturer did not have the ability to make the product more safe than what it is at the present. The plaintiff was invited to rebut the defendant's evidence in whole or in part, but completely failed to do so. See dicta in Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, at 409 (3d Cir. 1981) compare Huddell v. Levin 537 F.2d 726, 736 (3d Cir. 1976) interpreting New Jersey law of strict liability; Jeng v. Witters applied New Jersey law as an interpretation of Pennsylvania law. 452 F. Supp. 1349, affirmed, 591 F.2d 1335 (3d Cir. 1979) compare Dambacher approved by the Pennsylvania Supreme Court, cited supra which cites with approval the California case of Barker v. Lull Engineering Co., cited supra, whereas California Courts place the burden of proof as to the seven factors involved in the pre-jury trial risk-utility analysis on the defendant, once the plaintiffs have made a prima facie showing that the alleged injury was proximately caused by product's design. However, the ultimate burden of proving a defective product and the existence of an alternate safe design is on the plaintiff, if the trial judge finds that the product is "unreasonably dangerous" and allows the plaintiff to submit evidence to the jury after a risk-utility analysis based on a factual hearing record and not on the bare allegations in the plaintiffs' complaint. See Ellis v. Chicago Bridge and Iron Co., 376 Pa. Super., 220, 545 A.2d 906, 914, 915 (1988) Hon v. Stroh Brewery Co. 835 F.2d 510, 512 (3d Cir. 1987).
FIFTH: THE USER'S ABILITY TO AVOID DANGER BY THE EXERCISE OF CARE IN THE USE OF THE PRODUCT.
There is no doubt that the plaintiff-users of the pallet truck could have avoided the danger that brought about their injuries.
Each plaintiff was struck by the front corner in front of the pallet truck while it was moving forward and each plaintiff was the operator and it was each plaintiff operator who controlled where he placed himself in relationship to the moving pallet truck. Each plaintiff ignored the instructions given by his employer. Each plaintiff put himself in a position of obvious danger and the evidence conclusively indicated there was absolutely no reason for an operator to ever place himself in front of a moving pallet truck. In addition, each plaintiff received full workmen's compensation benefits
-- these injuries were not, thus of a type for which the plaintiffs were not insured, and therefore, not protected.
The evidence presented by Defendant Crown at the hearings clearly established that there are no risks involved in the use of the pallet trucks if an operator stays at its side. Therefore, the benefits clearly outweighed the risks involved in the use of the Crown Pallet Truck because the risks can be controlled by common sense in its operation -- simply do not step in the path of the pallet truck when it is moving.
SIXTH: THE USER'S ANTICIPATED AWARENESS OF THE DANGERS INHERENT IN THE PRODUCT AND THEIR AVOIDABILITY, BECAUSE OF GENERAL PUBLIC KNOWLEDGE OF THE OBVIOUS CONDITION OF THE PRODUCT, OR OF THE EXISTENCE OF SUITABLE WARNINGS OR INSTRUCTION.
It is common knowledge that any motorized vehicle such as the pallet truck or automobiles, certain drug products and various other products in use today carry significant risks to the user. An automobile is not unreasonably dangerous simply because it is designed to travel at speeds in excess of 55 miles per hour. Indeed, it cannot be denied that an automobile would no doubt be safer (and thousands of lives would be saved each year) if it were designed to travel only at speeds less than 10 miles per hour. Society accepts the additional dangers created by an automobile's speed capabilities because of the corresponding benefits inherent therein. Neither the general public, the plaintiffs, or a judge and a jury would need evidence as to the benefits inherent in an automobile's speed capabilities to determine that an automobile is not unreasonably dangerous or defective because of its speed.
Similarly the general public knows beyond doubt that material handling equipment is not "unreasonably dangerous" merely because it may run into and damage people and/or other physical objects when it is allowed to coast along the aisle of a grocery warehouse without being steered or otherwise controlled.
The plaintiff-operator allowed the pallet truck to coast without said operators in control (an undeniable utilitarian feature) and each injured plaintiff walked in front of said pallet truck when he/she knew and/or should have known that the pallet truck was coasting in the direction of said plaintiff immediately before the accident in question . [ILLEGIBLE WORDS] operator and in total disregard of the instructions he had been given and in disregard of common sense. If a pedestrian steps in front of a moving automobile, no court could be fooled into accepting a claim that the car was unreasonably dangerous or defective simply because the pedestrian is injured (or for that matter, by the fact that 500 pedestrians were injured under similar circumstances).
It is also common knowledge by users and the public generally that pallet trucks, because they are motorized vehicles which move, may be involved in accidents no matter what features are incorporated in their design.
The plaintiff-user is aware of the physical dangers to one's person inherent in allowing an unattended motorized vehicle (the pallet trucks) to coast in a relatively narrow aisle in a direction where the plaintiff-user is standing, thereby causing accidents which are "technologically unavoidable", the "pallet truck" in question is not "unreasonably dangerous" or "defective" in the manner in which it was manufactured. The danger is created by the plaintiff-user when the unattended pallet truck is allowed to coast in a narrow aisle in the grocery warehouse in and about where the plaintiff-user, who necessarily is aware of the danger, is standing.
SEVEN: THE FEASIBILITY, ON THE PART OF THE MANUFACTURER OF SPREADING THE LOSS OF SETTING THE PRICE OF THE PRODUCT OR CARRYING LIABILITY INSURANCE.
This Court finds as a matter of sound, social and economic policy, a manufacturer should not have to spread the economic loss caused by the injuries in question by raising the price of the product (the pallet trucks) or by carrying liability insurance when the danger of injuries is caused not by a defective product, but to the contrary, is caused by the plaintiff-users who assume personally the risk of injury by failing to properly attend to said vehicle while walking beside it and/or by allowing an unattended vehicle (the pallet trucks) to coast in and about a narrow aisle in a grocery warehouse at a place where the plaintiff-user is standing with total inattention to the movements of said vehicle and where the plaintiff-user is covered by Workers Compensation insurance if he/she is injured.
The mere fact that there may be inherent dangers when an operating pallet truck is improperly attended and/or unattended in the course of being used, does not mean that it is defective in design or unreasonably dangerous. As many cases have emphasized, the issue which is now resolved is that the dangers inherent in the use of pallet trucks as above-noted, are "technologically unavoidable" and the "public need" for these pallet trucks is great. See also, Restatement of Torts (Second) Sec. 402.A, comment k (" Unavoidably Unsafe Products.")
Based on this Court's consideration of the seven factors hereinabove discussed, the factual evidence adduced at the hearings and the legal authorities referred to in this opinion, this Court finds as a matter of law that the utility of the pallet trucks manufactured by Defendant Crown, far outweighs the risk of harm involved with their use. This Court further finds as a fact and as a matter of law that pallet trucks are not "unreasonably dangerous" to the users of the same and at the time of their delivery from the defendant manufacturer, Crown to the user, they were not in a "defective condition" and therefore all of the complaints in the above-captioned cases will be dismissed with prejudice.
AND NOW, this 13th day of July, 1989, after consideration of the pleadings, testimony, evidence adduced at hearings, briefs, arguments and contentions of the parties and for the reasons set forth in the accompanying Opinion, this Court finds as a fact and as a matter of law that the pallet trucks, which are the subject matter of the above-captioned litigation, are not "unreasonably dangerous" to the users of the pallet trucks, and further, at the time of the delivery of the pallet trucks from the defendant manufacturer Crown, to Fox, the users the pallet trucks had not been manufactured in a "defective condition."
IT IS THEREFORE ORDERED that all of the complaints of the plaintiffs in each of the above-captioned cases be and the same are hereby DISMISSED with prejudice.