judgment as a matter of law. Fed. R. Civ. P. 56(e).
I. STRICT PRODUCT LIABILITY
of the Restatement (Second) of Torts provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Rhodes presents several arguments as to why the principles of strict product liability underlying § 402A do not apply to the instant action.
First, Rhodes contends that it was neither a seller of the Cuboid D in this market nor was it a seller with respect to the machine which is the subject of this action for the purposes of § 402A. Although Rhodes bases its argument on not being a seller in this market, that is the United States market, there is simply no support for the proposition that one must be a seller in a particular market to be subject to liability under 402A. Since Rhodes is engaged in the business of manufacturing and selling metal forming machines, including the Cuboid D, it is undoubtedly a seller, regardless of whether it primarily sells machines outside of the United States. Therefore, this court need only determine whether the Cuboid D which is the subject of this action was sold by Rhodes.
Although the two machines were provided to Teledyne for the purpose of executing the licensing agreement between Rhodes and Teledyne, the facts clearly indicate that the machines were sold by Rhodes to Teledyne. The fact that Rhodes may have charged Teledyne the domestic price rather than the higher export price is immaterial. Based on the foregoing, there is ample evidence to establish that Rhodes was a seller for the purpose of determining liability under 402A.
B. User or Consumer
Rhodes also argues that the machine was not sold to a consumer and that at the time of the accident Rodney Zeger was not a user or consumer of the Cuboid D. Rhodes contends that because the machines were sold to Teledyne as part of the licensing agreement, Teledyne is not a consumer. Whether or not Teledyne is a consumer is inapposite. Assuming Rhodes is a seller, the ensuing issue would be whether the plaintiff, Rodney Zeger, is either a user or consumer.
Rhodes argues that Zeger was neither a user nor a consumer as defined by § 402A at the time of the accident because he was participating in the fabrication of a product at the time of his injury. See Scott v. Thunderbird Industries, Inc., 651 P.2d 1346 (Okla. Ct. App. 1982)(injured employee participating in the fabrication of a product is not within the class of persons protected as user or consumers). However, in the instant case, Rodney Zeger was not injured while fabricating the Cuboid D. On the contrary, the machine was complete at the time it left Rhodes' facility in England. In addition, plaintiffs have presented evidence indicating that Rodney Zeger was injured while calibrating the machine pursuant to routine maintenance instructions contained in a manual provided by Rhodes.
Moreover, the comments to § 402A contain an extremely broad definition of user. "'User' includes those who are passively enjoying the benefit of a product, as in the case of passengers in automobiles or airplanes, as well as those who are utilizing it for the purpose of doing work upon it, as in the case of an employee of the ultimate buyer who is making repairs upon the automobile which he has purchased." Restatement (Second) of Torts § 402A cmt. 1. There is little doubt that a jury could determine that Rodney Zeger is included in the latter portion of this definition.
C. Intended Use
Finally, Rhodes maintains that Zeger's injuries did not result from the intended use of the machine. However, the fact that the precise activity which Zeger was engaged in, calibrating the back gauges of the machine, was specified in the routine maintenance instructions contained in a manual provided by Rhodes, refutes this argument. Therefore, despite the peculiar circumstances of this case, Rodney Zeger may proceed to trial on the theory of strict product liability pronounced by § 402A of the Restatement (Second) of Torts.
II. FAILURE TO WARN
Rhodes contends that various safety features described in a manual provided to Teledyne by Rhodes would have prevented the injury to Rodney Zeger. Plaintiffs maintain that these safety features should have been mentioned in the Routine Maintenance section of the manual, but were not. Moreover, Joel Peters, a Rhodes-trained Teledyne Landis employee, has indicated that he would have calibrated the back gauges in the same manner as Zeger. Viewing these facts in a light most favorable to the plaintiffs, this court cannot hold, as a matter of law, that Rhodes's warnings were adequate. Consequently, Rhodes' motion for partial summary judgment will be denied.
James F. McClure, Jr.
United States District Judge
ORDER - August 27, 1992, Filed
August 27, 1992
For the reasons stated in the accompanying memorandum, it is Ordered that:
1. Motion denied. The motion of defendant Joseph Rhodes, Ltd. (record document #23, filed May 15, 1992), for partial summary judgment is denied.
2. Trial list. The case is placed on the November 1992 Williamsport trial list.
3. Jury selection. Jury selection will be November 9, 1992, Courtroom No. 1, Federal Building, 240 West Third Street, Williamsport, Pennsylvania.
4. Pretrial conference. A pretrial conference will be held on November 6, 1992, at a time to be announced, in Chambers, Federal Building, 240 West Third Street, Williamsport, Pennsylvania.
5. Motions in limine. Any additional motions in limine shall be filed on or before October 16, 1992, with supporting briefs attached. All opposing briefs shall be filed on or before October 26, 1992.
James F. McClure, Jr.
United States District Judge