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ROBERT J. SNYDER v. CITY PHILADELPHIA (10/02/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 2, 1989.

ROBERT J. SNYDER, JR.,
v.
CITY OF PHILADELPHIA, PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION, COLT INDUSTRIES, FIREARMS DIVISION AND SMITH AND WESSON. APPEAL OF LAMAR J. SLEMMER ET AL. LAMAR J. SLEMMER V. CITY OF PHILADELPHIA, PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION, COLT INDUSTRIES, FIREARMS DIVISION, SMITH AND WESSON, REMINGTON ARMS COMPANY INC. AND STURM-RUGER AND COMPANY. APPEAL OF LAMAR J. SLEMMER ET AL. THOMAS MILLS V. CITY OF PHILADELPHIA, PENNSYLVANIA CHIEFS OF POLICE ASSOCIATION, COLT INDUSTRIES, FIREARMS DIVISION AND SMITH AND WESSON, REMINGTON ARMS COMPANY, INC., STURM-RUGER AND COMPANY. APPEAL OF LAMAR J. SLEMMER ET AL.

Appeal from Common Pleas Court, Philadelphia County; Honorable Nelson A. Diaz, Judge.

COUNSEL

Thomas B. Grier, Fine and Staud, Philadelphia, for appellants.

Anne G. Kimball and James P. Door, of counsel, Wildman, Harrold, Allen & Dixon, Chicago, Ill., Joan A. Yue, Pepper, Hamilton & Scheetz, Audrey L. Jacobsen, Marshall, Dennehey, Warner, Coleman and Goggin, Philadelphia, for appellees.

Ellen Brown Furman, Goldfein & Josephs, Philadelphia, for Colt Industries.

Ralph G. Wellington, Schnader, Harrison, Segal & Lewis, Philadelphia, for Smith and Wesson.

Robert St. Leger Goggin, Audrey L. Jacobsen, Charles W. Craven, Philadelphia, for Remington Arms Co.

Thomas D. Caldwell, Jr., Caldwell & Kearns, Harrisburg, for Pa. Chiefs of Police Ass'n.

Joan A. Yue, Philadelphia, for Sturm-Ruger and Co.

Crumlish, Jr., President Judge, McGinley, J., and Narick, Senior Judge.

Author: Crumlish

LaMar Slemmer, Robert Snyder and Thomas Mills (police officers) appeal a Philadelphia County Common Pleas Court order sustaining preliminary objections filed by certain gun manufacturers*fn1 to their strict liability and negligence complaints.*fn2 We reverse and remand.

Police officers are Bristol Township policemen who attended handgun and firearm proficiency classes conducted by the City of Philadelphia and the Pennsylvania Chiefs of Police Association from 1963 through 1976. While participating in these mandatory training sessions, the police officers used the manufacturers' handguns and were repeatedly

[ 129 Pa. Commw. Page 93]

    exposed to "intense noise resulting from gunfire."*fn3 The police officers allege that they suffered permanent high frequency hearing loss because they were not provided with protective hearing devices while participating in these training sessions. Their amended complaint alleges that the manufacturers are strictly liable for distributing a defective product*fn4 and negligent in failing to warn of the firearms' propensity to cause hearing loss.

The common pleas court sustained the manufacturers' demurrer, holding that the police officers had failed to state a cause of action in either strict liability or negligence.

The police officers contend that the common pleas court erred in concluding as a matter of law that the handguns' propensity to cause hearing loss was common knowledge. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (where strict liability was alleged due to inadequate manufacturer's warning, adequacy of warning was question for jury). Police officers argue that they should be permitted to demonstrate that, in the absence of manufacturers' warnings, it was not obvious or commonly known that long-term, intermittent exposure to gunfire noise without use of protective devices could result in high frequency hearing loss.

Preliminary objections in the nature of a demurrer will be sustained only where the averred facts clearly fail to state a claim under any theory of law. A demurrer admits as true all well-pleaded material facts and all inferences reasonably deducible, but not conclusions of law. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402

[ 129 Pa. Commw. Page 94]

(1985). A demurrer may not be sustained unless the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970).

In products liability cases alleging strict liability, the plaintiff must establish that the product causing the injury was defective and that the injuries sustained were proximately caused by the product's defect. Sherk v. Daisy-Heddon, 498 Pa. 594, 450 A.2d 615 (1982). Although inadequate warnings as to a product's dangerous propensity may be sufficient to render that product defective, inadequate warnings will not be considered the injury's proximate cause where "the potentiality of that danger is generally known and recognized." 462 Pa. at 103, 337 A.2d at 903. The Court's function is to decide only whether the factual averments could justify recovery under the applicable law. Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978).

Thus, in this case, we must decide if the trial court erred in concluding that, as a matter of law, the handguns' propensity to cause hearing loss was obvious or generally recognizable. Berkebile.

Here, the police officers' complaint alleges they were exposed to "intense noise" resulting from the gunfire. Absent, however, is any allegation that the gunfire noise caused immediate physical pain or discomfort. Because intense noise by itself, though unpleasant, is not necessarily painful or harmful, we cannot assume from the averred facts that the police officers experienced auditory sensations that would make obvious the possibility of permanent hearing loss. Thus, the trial court could not conclude as a matter of law that hearing loss due to intermittent longterm exposure to gunfire noise was an obvious or generally recognizable danger. Rather, it is conceivable that further discovery will disclose that the risk of hearing loss from incidental gunfire noise was not obvious but latent.

[ 129 Pa. Commw. Page 95]

The lack of adequate warnings and instructions as to a product's latent risks and inherent limitations may constitute a defect of that product. Berkebile. When inadequate warnings are alleged to constitute the defective condition, the product must be found to be "unreasonably dangerous." Azzarello, 480 Pa. at 555, 391 A.2d at 1024. A product is considered unreasonably dangerous where the danger is "latent or not apparent to the consumer or user of the product." Ellis v. Chicago Bridge and Iron Co., 376 Pa. Superior Ct. 220, 236, 545 A.2d 906, 914 (1988). Thus, because we conclude that the police officers have stated a cause of action in strict liability, they should be allowed to present evidence establishing that the risk of hearing loss was not generally known. Fravel v. Suzuki Motor Co., 337 Pa. Superior Ct. 97, 486 A.2d 498 (1984).

The police officers' complaint also alleges that the manufacturers were negligent. Specifically, they aver that, despite the fact that manufacturers knew or should have known about the handguns' dangerous propensity to cause hearing loss, they failed to use due care in providing warnings of any type.

In warning cases, there is some apparent confusion over the difference between strict liability and negligence theories.*fn5 In practical terms, one commentator has noted that "in strict liability the manufacturer's knowledge of the product's inherent danger is assumed, while in negligence such knowledge must be proved." Callaghan, Modern Tort Law ยง 27.37. In negligence, the duty to warn is but another aspect of the manufacturer's duty to exercise due care and a manufacturer must warn of a product's dangerous propensity of which it has knowledge. Hence, the manufacturers may owe consumers a duty to exercise reasonable care by providing warnings as to the handguns' proper use in order to make them reasonably safe. Thus,

[ 129 Pa. Commw. Page 96]

    police officers have also stated a cause of action in negligence. Fravel.

Accordingly, the common pleas court order sustaining the manufacturers' preliminary objections and dismissing the police officers' complaint in strict liability and negligence is reversed.*fn6 The police officers' complaint is reinstated, and the case is remanded to the lower court for proceedings consistent with this opinion.

Order

No. 125 C.D. 1989

The Philadelphia County Common Pleas Court order, No. 4693 November Term 1986, dated August 11, 1988, is reversed. Robert J. Snyder, Jr.'s complaint is reinstated. This case is remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

Order

No. 126 C.D. 1989

The Philadelphia County Common Pleas Court order, No. 1448 July Term 1987, dated August 11, 1988, is reversed. LaMar J. Slemmer's amended complaint is reinstated. This case is remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.

Order

No. 127 C.D. 1989

The Philadelphia County Common Pleas Court order, No. 1396 March Term 1988, dated August 11, 1988, is reversed.

[ 129 Pa. Commw. Page 97]

Thomas D. Mills' complaint is reinstated. This case is remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.


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