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WILLIAM A. LEAPHART AND JONNIE LEAPHART v. WHITING CORPORATION (07/27/89)

filed: July 27, 1989.

WILLIAM A. LEAPHART AND JONNIE LEAPHART, HIS WIFE, APPELLANTS,
v.
WHITING CORPORATION, CONTROLLED MOTIONS, INC., MATX, INC., AND A.C. KUHN AND SON, INC., ESTEP ELECTRICAL SERVICE COMPANY, AND ELECTRO LIFT, INC., V. HARVEY HUBBELL, INCORPORATED, APPELLEES, WILLIAM A. LEAPHART AND JONNIE LEAPHART, HIS WIFE, V. WHITING CORPORATION, CONTROLLED MOTIONS, INC., MATX, INC., AND A.C. KUHN AND SON, INC., ESTEP ELECTRICAL SERVICE COMPANY, AND ELECTRO LIFT, INC., V. HARVEY HUBBELL, INCORPORATED AND SQUARE D COMPANY, APPELLEES APPEAL OF CONTROLLED MOTIONS, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Cumberland County, Civil Division at No. 1067 Civil 1983.

COUNSEL

Joseph Lurie, Philadelphia, for Leaphart, appellants (at 333) and appellees (at 346).

Thomas J. Williams III, Carlisle, for Harvey Hubbell, Inc., appellee.

John B. Mancke, Harrisburg, for Controlled Motions, Inc., appellant (at 346) and appellee (at 333).

Wieand, Popovich and Hester, JJ. Hester, J., files a dissenting opinion.

Author: Popovich

[ 387 Pa. Super. Page 257]

The appellants, William and Jonnie Leaphart, appeal from the judgment entered in favor of the appellees following a jury trial. This action arose after William Leaphart received an electrical shock and then fell from the superstructure of the overhead crane which he was repairing at the foundry where he was employed. As a result of the shock and fall, the appellant now suffers from permanent paraplegia. Although we sympathize with the appellants, we are unable of discern any reversible error committed by the trial court. Accordingly, judgment is affirmed.

On appeal, the appellants allege:

I. The trial court erred in charging the jury that "even wrongful or negligent conduct by defendant is not a defense."

II. The trial court erred in granting the defendants twenty peremptory challenges and the appellants only eight jury challenges.

III. The trial court erred by refusing to allow the appellants to cross-examine an expert witness as to bias, interest and compensation.

IV. The trial court erred by allowing evidence of industry standards to be admitted against the appellants in a strict liability case.

V. The trial court erred in permitting a defendant to present a witness who had not been previously identified.

VI. The trial court erred in admitting into evidence an exhibit when the appellants had been advised through discovery that said exhibit was unavailable.

VII. The trial court erred in barring evidence of postaccident modification of the defective product by a nonparty.

The record reveals the following facts: In 1975, Controlled Motions, Inc. sold two five ton overhead cranes to Frog Switch Manufacturing Company which then were installed in Frog Switch's foundry located in Carlisle, Pennsylvania.

[ 387 Pa. Super. Page 258]

Whiting Corporation, a manufacturer of cranes and their component parts, sold a substantial portion of the cranes' parts to Controlled Motions which assembled the cranes. The cranes' ballast resistor was manufactured by Harvey Hubbell, Inc and installed in the cranes by Controlled Motions. The runways for the cranes were constructed by Matx, Inc., and the cranes' electrical wiring was performed by Estep Electrical Service Company, in accordance with the wiring diagrams supplied by Controlled Motions. Each crane had a disconnect switch located approximately eighteen feet off the floor, and a master disconnect switch controlling the power to both cranes simultaneously was located at floor level.

On the date of the accident, May 19, 1982, William Leaphart was employed by Frog Switch as an electrician and was directed to perform routine maintenance work on one of the cranes. To allow the operation of one crane while he serviced the other, William Leaphart climbed the crane under repair in order to throw the upper disconnect switch and de-energize the crane. As he reached out to trip the switch, he placed his hand upon the cover of ballast resistor to steady himself. This caused the cover of the resistor to touch the energized resistor wires, as a result of which William Leaphart suffered a severe electrical shock, lost his balance and fell eighteen feet to the ground. William Leaphart, due to the fall, is a permanent paraplegic, confined to a wheelchair.

William and Jonnie Leaphart brought suit against Whiting, Controlled Motions, Matx and Estep. The Leapharts initially proceeded to trial on both strict liability and negligence theories against Whiting and Controlled Motion. Harvey Hubbell was joined as an additional defendant by Controlled Motions. During the course of the trial, the appellants withdrew the negligence claims against the Whiting and Controlled Motions. At the completion of evidence, a compulsory non-suit was entered in favor of Estep and Matx on the appellants' negligence claims. The case then went to the jury solely on the strict liability claims against

[ 387 Pa. Super. Page 259]

Whiting and Controlled Motions and the indemnification claim of Controlled Motions against Hubbell.

In sum, the appellants maintained that the crane manufactured by Whiting was defective, that Controlled Motions assembled, sold and installed the defective crane and that Hubbell manufactured the defective ballast resistor which Controlled Motions installed in the defective crane.

Following deliberations, the jury returned a verdict in favor of Whiting, Controlled Motions and Hubbell. The appellants then filed a motion for a new trial, and Controlled Motions filed a protective motion for a new trial against Harvey Hubbell. Both motions were denied. Judgment was then entered on May 16, 1988, and this appeal followed.

First, the appellant alleges that the trial court erred when instructing the jury, as follows:

The focus in this type of a product liability case is on the product. Even wrongful or negligent conduct by a defendant is not a defense. The issue is whether the use of the product by the plaintiff was foreseeable to the manufacturer or suppler [sic], whether the product was defective when it left the manufacture's [sic] or supplier's hands, and whether a defective product was a substantial factor in causing the accident and injury to the plaintiff. Trial transcript, p. 946 (emphasis added).

Following completion of the charge, the appellants objected, correctly pointing out that the charge should have read: "Even wrongful or negligent conduct by the plaintiff is not a defense." Thus, the jury would have been advised that, even if William Leaphart was contributorily negligent, he could still recover for his injuries. When alerted to the error, the trial judge refused to correct the error.*fn1

[ 387 Pa. Super. Page 260]

To constitute reversible error, a jury instruction must not only be erroneous, but also harmful to the complaining party. Anderson v. Hughes, 417 Pa. 87, 90, 208 A.2d 789, 791 (1965); Spearing v. Starcher, 367 Pa. Super. 22, 29, 532 A.2d 36, 40 (1987); Mickey v. Ayers, 336 Pa. Super. 512, 514, 485 A.2d 1199, 1201 (1984). Whether harmful error has been committed must be determined by reading the jury charge in its entirety, not merely isolated excerpts quoted out-of-context. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 575, 475 A.2d 1314, 1316 (1984); Spearing, 532 A.2d at 40; Mickey, 485 A.2d at 1199. Having reviewed the charge in its entirety, we find that reversible error was not committed by the lower court. With the sole exception of failing to instruct the jury properly that contributory negligence is not a defense to strict liability, the lower court correctly instructed the jury on strict liability. Furthermore, the defendants did not attempt to prove that William Leaphart was contributorily negligent. Finally, the lower court gave the following curative instruction in response to allegedly improper comments concerning William Leaphart's conduct made during the closing argument of Controlled Motion:

Counsel can comment on what he feels the facts show as to what caused this accident. I will ultimately charge you that any wrong-doing or negligence that you may find Mr. Leaphart did that resulted in his accident is not a defense in this case with any of these defendants and I'll explain that to you when I charge you.

Trial court op., p. 11.

Instantly, the appellants have not sustained their burden of proving that the erroneous instruction harmed their case. Since we find that the erroneous instruction ...


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