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BRANTNER v. BLACK & DECKER MFG. CO.

August 23, 1993

THOMAS S. BRANTNER and LINDA BRANTNER, his wife, Plaintiff
v.
BLACK & DECKER MFG. CO., a/k/a BLACK & DECKER (U.S., Inc.), Defendant



The opinion of the court was delivered by: BY THE COURT; D. BROOKS SMITH

 SMITH, District J.

 Plaintiffs Thomas and Linda Brantner have filed a complaint alleging the standard trilogy of causes of action -- strict liability, negligence, and breach of warranties -- against a manufacturer, defendant Black & Decker. Before the court is defendant's motion for summary judgment on the strict liability causes of action, docket no. 20.

 On April 5, 1990, Thomas Brantner (Brantner), age 50, had been working at the F. L. Smithe Company for approximately ten years. On that day, Brantner had drilled a 1/2" hole in a 1 1/2" - thick steel plate. While widening the hole to 5/8", Brantner's right wrist was allegedly injured when his drill bit caught and caused the drill to twist in a counterclockwise direction.

 There are several hotly contested factual issues in this matter, from the question whether the plaintiffs have located the drill that Brantner was actually using in light of the delay before plaintiffs sought legal attention and attempted to determine what drill Brantner had been using, to Brantner's alleged failure to seek to mitigate damages. For purposes of this motion, however, it is my function under Rule 56 and Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1025-26 (1978) to determine "whether, under plaintiff's averment of facts, recovery would be justified[.]"

 Black and Decker seeks summary judgment on three grounds: (1) the product was substantially altered after it left Black & Decker's hands in 1960; (2) the plaintiff assumed the risk of injury; and (3) the balancing required by Azzarello weighs against imposing liability on the manufacturer of this drill. I address only the first.

 Section 402A of the Restatement (2d) 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 ...

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