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July 13, 1989


The opinion of the court was delivered by: SIMMONS


 These eight cases come before this Court on complaints filed by certain employee plaintiffs and their spouses against the defendant. Each complaint alleges that the plaintiffs were injured while using a Crown Controls Rider Pallet Truck, Model 60 PE, while in the course of their employment at Fox Grocery. Each employee plaintiff is a warehouse picker for Fox Grocery and in performing their job are required to use these pallet trucks to gather groceries for shipping to the stores supplied by Fox Grocery. The injuries occurred to the various plaintiffs when the pallet truck allegedly ran over a foot of said plaintiff. (specific descriptions of the injuries are set forth in each complaint.)

 Although plaintiffs asserted causes of action based on negligence, breach of warranty and strict products liability, their counsel has advised that plaintiffs intend to proceed at trial only on a cause of action based on strict products liability or Restatement of Torts Second Section 402A.

 The elements of a Sec. 402A case in Pennsylvania are set forth succinctly in Schriner v. Pennsylvania Power & Light Co., 348 Pa. Super. 177, 501 A.2d 1128 (1985). To prevail, a plaintiff must establish the following:

1. a product;
2. a sale of product;
3. a user or consumer;
4. defective condition, unreasonably dangerous and
5. causation.
If any of these requisite elements remains unsatisfied, Sec. 402A has no applicability. Id. at 1132


 Prior to submitting the case to a jury, the trial judge must determine whether the product is "unreasonably dangerous".

 Whether or not a product is "unreasonably dangerous" is a social policy matter that is determined by the trial judge and is now settled law in Pennsylvania.

"When a products liability claim is pleaded the trial judge makes a threshold determination whether as a matter of social policy the case is appropriate for treatment under the rubric of products liability. In making this determination the judge acts as a combination social philosopher and risk-utility economic analyst. Carrecter v. Colson Equipment Co., 346 Pa. Super. 95 at 101 n. 7, 499 A.2d 326 at 330 n.7 (1985) ".

 See also footnote No. 6, in Ellis v. Chicago Bridge & Iron Co., 376 Pa. Super. 220, 545 A.2d 906 (1988).

 These threshold judicial determinations spring from an analysis of the Supreme Court of Pennsylvania's decision in the case of Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 391 A.2d 1020 (1978).

 The Pennsylvania Superior Court in the case of Brandimarti v. Caterpillar Tractor Co. 364 Pa. Super. 26 at 31, 364 Pa. Super. 26, 527 A.2d 134 (1987), in discussing Azzarello stated:

"In Azzarello the Supreme Court was asked to consider whether it was proper to instruct the jury using the term 'unreasonably dangerous ' and the Court concluded that the jury should not be so instructed. The Court stated '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. Id. at 558, 391 A.2d at 1026.
'While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is presented where a decision as to whether that condition justifies placing liability upon the supplier must be made.
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 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.'

 Id. at 556, 558, 391 A.2d at 1025, 1026 (footnote omitted).

Courts and commentators have expressed some criticism of the principle espoused in Azzarello to the effect that public policy concerns in a strict liability case are for the courts to consider rather than the jury. See McKay v. Sandmold Systems Inc. 333 Pa. Super. 235, 482 A.2d 260 (1984). Nevertheless, the court in McKay recognized that the present state of the law is as set forth in Azzarello and it is not within this court's province to change existing Law. Id. at 245, 482 A.2d at 266. More recently, this court sitting en banc in Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984), allocatur granted, appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985), reiterated the rule of Azzarello. Therein, it was noted that it is often difficult for a court to decide whether as a matter of social policy a jury should be permitted to impose strict liability. In a footnote the court listed factors a trial judge should consider when making his social policy decision. Id. at 50, 485 A. 2d at 423."

 Pennsylvania Courts have apparently followed the lead of the Courts in California in promulgating appropriate factors and procedures for the trial court to follow in making the required threshold social policy decisions above-noted.

 In the case of Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22 at 50, 485 A.2d 408 allocatur granted, appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985), the Superior Court stated:

"Courts and commentators have identified various factors that a court should consider when making the social policy decision required by Azzarello, and made in Lobianco.5
(1) The usefulness and desirability of the product -- its utility to the user and to the public as a whole.
(2) The safety aspects of the product -- the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the use of the product.
(6) 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 instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss of setting the price of the product or carrying liability insurance.
Wade, supra at 837-38 (footnote omitted). "

 Further, as pointed out in the Dambacher case, supra, at page 51, the defendant manufacturer has the procedural privilege of moving the trial court to make specific fundings of fact as to its threshold ruling on the social policy that Azzarello requires when the Superior Court stated in footnote 6, the following:

"6. Nothing in Azzarello precludes a supplier or manufacturer, by appropriate motion, from asking the trial court to make explicit its ruling on the threshold determination of social policy that Azzarello requires. In the absence of such a motion, it will be presumed that the court, by permitting the case to go to the jury, resolved the threshold determination against the defendant."

 In these cases at bar, the Defendant Crown has moved this trial court to make specific rulings on the threshold questions of social policy as the same pertains to this case.

 If a request is made by a party, the trial judge should be required to articulate the reasons for his/her decision on the question of "social policy" and to identify the facts upon which the decision is based so that said judicial decision can be tested to determine if it is arbitrary or capricious.

 In light of the Defendant Crown's requests for special findings of fact and conclusions of law in regard to the social policy issue, and further in light of the requirement that this trial judge should identify certain facts that this trial judge should first consider in order to properly make the social policy decisions, a fact hearing relating to the concepts of "unreasonably dangerous" and "risk-utility" was held in order to properly determine the social policy question.

 As stated in Hon v. Stroh Brewery Co. 835 F.2d 510, 512 (3rd Cir. 1987) the trial court first must take the allegations of the complaint to be true preliminary to making a determination as to whether the plaintiff makes a prima facie showing that the claimed injury was proximately caused by the product's design.

 This trial judge after examining the pleading of the plaintiff determined that a prima facie showing was made that the alleged injuries were proximately caused by the product's design and shifted the burden of proving the legal efficacy of the risk-utility issue and whether the product was "unreasonably dangerous" to the defendant.

 At the hearing, this trial court indicated that it was relying on Barker v. Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978) as authority for its holding that the ultimate burden of proof on the risk-utility issue is shifted to the defendant. (Barker was cited with approval in Dambacher).

 The precise holding of Barker and the rationale for that holding is clearly set forth within the Barker Court's opinion.

"Because most of the evidentiary matters which may be relevant to the determination of the adequacy of a product's design under the 'risk-benefit' standard -- e.g., the feasibility and cost of alternative designs -- are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer, we conclude that once the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove in light of the relevant factors, that the product is not defective." 573 P. 2d at 455.

 As above noted, the well-grounded reasoning of the California Courts in Barker has been followed by Judge Spaeth's exhaustive opinion in Dambacher, cited supra which has been ...

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