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MALLOY v. CONVEYOR

April 15, 1993

RAYMOND MALLOY & MARGARET MALLOY husband and wife, Plaintiffs,
v.
DOTY CONVEYOR, et al. Defendants, v. ZINIZ CORPORATION, Third Party Defendant, v. DARNELL CORPORATION and DANIEL BINGENHEIMER, Jr. t/a BING ENGINEERING, Fourth Party Defendants.



The opinion of the court was delivered by: BY THE COURT; ROBERT F. KELLY

 R.F. KELLY, J.

 APRIL 15, 1993

 Plaintiffs, Raymond and Margaret Malloy, filed this personal injury action after Plaintiff-husband ("Mr. Malloy") was injured while working at the Federal Express depot at the Philadelphia International Airport. Plaintiffs allege that on July 18, 1989 Mr. Malloy, while walking on a caster deck, *fn1" was injured when his right foot was caught in an opening surrounding one of the casters. This caused Mr. Malloy to fall forward and his left foot to slip off the edge of the caster deck. An approaching dolly filled with cargo pinned his left foot against the deck's edge. As a result of this accident, Mr. Malloy suffered injuries to his left foot which eventually necessitated transmetatarsal amputation.

 Before the Court is the Motion of Defendant Doty Conveyor ("Doty") for Summary Judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. *fn2" Summary judgment is properly granted if, viewing the evidence in a light most favorable to the non-moving party, the court is convinced that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). For the reasons set forth below, summary judgment is granted in favor of Doty.

 I. STRICT LIABILITY

 Doty contends that it cannot be held strictly liable under § 402A of the Restatement (Second) of Torts, as adopted by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (Pa. 1966), because an installer does not come within the purview of § 402A. Plaintiffs maintain that § 402A is applicable to Doty because "Pennsylvania courts have rejected a restrictive, static reading of § 402A." Plaintiffs Brief at 4. The issue presented to this Court is whether strict products liability should be extended to installers of defective products. The Pennsylvania Supreme Court has yet to rule on this matter, and therefore this Court must predict the course that it would take if confronted with this issue. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983)

 Section 402A states:

 (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 the 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 changes 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 ...


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