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KERN v. NISSAN INDUS. EQUIP. CO.

September 30, 1992

PAUL J. KERN and JOYCE A. KERN, his wife, Plaintiffs
v.
NISSAN INDUSTRIAL EQUIPMENT COMPANY and NPC LEASING CORP., Defendants



The opinion of the court was delivered by: SYLVIA H. RAMBO

MEMORANDUM

 Before the court is Plaintiffs' motion in limine to preclude Defendant from introducing evidence that plaintiff Paul Kern's co-worker was negligent. Defendants have submitted a response, and the motion is now ripe for consideration.

 Background

 Plaintiff Paul J. Kern alleged in his complaint that on July 28, 1989, he was injured at his work place when a fellow employee -- Mr. Charles Kessler -- backed up a Nissan forklift over his feet. Complaint at P 11. He allegedly backed over Mr. Kern's legs a second time in an attempt to move the forklift. Defendant's brief at 3. These injuries precipitated the captioned action against the maker and the lessor of that forklift. Plaintiffs assert that defects in the forklift -- lack of auditory or visual warning systems -- caused Mr. Kern's injuries. Complaint at PP 7, 8, 10. Defendant submitted an amended answer asserting in its third and fourth defenses that Mr. Kessler's negligence rather than any alleged defect may have proximately caused these injuries.

 Defendants intend to introduce evidence that Mr. Kessler's negligence proximately caused Mr. Kern's injuries. Specifically they plan to show that Mr. Kessler backed up the subject forklift without looking behind him and failed to see Mr. Kern until after running over his feet. Exacerbating the injuries, he ran over Mr. Kern's legs again in an attempt to extricate his co-worker.

 Originally, Plaintiffs brought the captioned action under several legal theories, one of which was negligence. Upon a request from this court to specify exactly which legal theories are now being asserted, Plaintiffs have limited their claim against Defendants to strict liability, breach of warranty, loss of consortium, and punitive damages; they dropped their claim sounding in negligence.

 I. Negligence principles in product liability cases.

 In 1966, Pennsylvania adopted § 402A of the Restatement (Second) of Torts imposing strict liability upon manufacturers of defective products. Webb v. Zern, 422 Pa. 424, 220 A.2d 853, 854 (Pa. 1966). Section 402(A) 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.

 Restatement (Second) Torts § 402A (1965).

 Since adopting this rule, Pennsylvania case law has consistently precluded use of negligence principles in strict liability litigation. As one court has forcefully concluded, "The Pennsylvania Supreme Court, perhaps more than any other state appellate court in the nation, has been emphatic in divorcing negligence concepts from product-liability doctrine." Conti v. Ford Motor Co., 578 F. Supp. 1429, 1434 (E.D. Pa. 1983), rev'd on other grounds, 743 F.2d 195 (3d Cir. 1984), cert. denied, 470 U.S. 1028, 84 L. Ed. 2d 784, 105 S. Ct. 1396 (1985) (citations omitted). See, e.g., Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 900 (Pa. 1975) (plurality opinion) (trial court erroneously used reasonable man standard in product liability action); McCown v. Int'l Harvester Co., 463 Pa. 13, 342 A.2d 381, 382 (Pa. 1975) (contributory negligence defense inapplicable in strict liability action as would conflict with purposes of § 402A); Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 594 (Pa. 1987) (evidence of industry standards impermissibly injected negligence theory into defective product action); Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020, 1027 (Pa. 1978) (trial court erroneously instructed jury to consider whether defect was "unreasonably dangerous").

 Likewise, Pennsylvania's Superior Court has followed the direction of the Supreme Court. See, e.g., Staymates v. ITT Holub Indus., 364 Pa. Super. 37, 527 A.2d 140, 143 (Pa. Super. 1987) (comparative negligence principles inapplicable in product liability suit); Carrecter v. Colson Equip. Co., 346 Pa. Super. 95, 499 A.2d 326, 330-31 (Pa. Super. 1985) (state of the art defense improper in defective design suit).

 The federal courts interpreting Pennsylvania law in diversity actions, as well, have prohibited introduction of negligence principles in strict liability actions. See, e.g., Dorney Park Coaster Co. v. General Electric Co., 669 F. Supp. 712, 716 (E.D. Pa. 1987) (negligence per se not permissible defense in product liability action); Vizzini v. Ford Motor Co., 569 F.2d 754, 768 (3d Cir. 1977) (non-use of seatbelts inadmissible in product liability action); Baker v. Outboard Marine Corp., 595 F.2d 176, 182 (3d Cir. 1979) (reversible error to instruct jury that liability attaches only if defect "unreasonably dangerous"); ...


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