the evidence in the light most favorable to plaintiff and giving him the advantage of every fair and reasonable inference, the Court concludes that a jury could find evidence of a malfunction, based on plaintiff's testimony that the saw performed in an abnormal way leading to his injury.
However, such showing is insufficient for plaintiff to carry his burden to establish a prima facie case under the malfunction theory. As discussed above, plaintiff's case-in-chief must also have been free of secondary causes or abnormal use which could account for the accident. Based on plaintiff's own evidence, there is at least one secondary cause which could account for the accident. Specifically, there was evidence in plaintiff's case-in-chief of wear and tear of the saw. Plaintiff testified that he had used the saw for five or six months prior to the time of the accident, at a rate of about four to five times a week, that the blade that he had attached to the saw shortly before the accident was not new, and that dull blades may be a cause of kickbacks. Also, plaintiff stated that the saw was dirty at the time and that he did not know how long it had been since it had been cleaned. The Court determines that because plaintiff did not negate the evidence pointing to a reasonable, secondary cause for the accident, i.e., wear and tear, plaintiff failed to establish a prima facie case. Rogers, 565 A.2d at 755.
Defendant also argues that plaintiff should not be permitted to present his case to the jury because he failed to offer expert testimony of how the accident occurred. It is true that expert testimony is needed where the subject is beyond the purview of the ordinary lay jury's experience and knowledge. See, e.g., Papandrea v. Hartman, 352 Pa. Super. 163, 507 A.2d 822, 827-28 (Pa. Super. 1986). The question is whether in this case any of the elements of plaintiff's claims would require the assistance of an expert to avoid jury speculation and conjecture. Plaintiff contends that under the Pennsylvania Superior Court's decision in Agostino v. Rockwell Manufacturing Co., 236 Pa. Super. 434, 345 A.2d 735 (Pa. Super. 1975), the evidence of malfunction alone is sufficient to submit the case to the jury, even in the absence of expert testimony. Although Agostino may indeed support the proposition that there is no per se rule requiring expert testimony before a malfunction case may be submitted to the jury, Agostino itself was specifically premised on the lack of any evidence of abnormal use or secondary causes. See Agostino, 345 A.2d at 740. As such, Agostino is distinguishable from the present case. Here, there has been evidence of at least one reasonable, secondary cause, wear and tear, and therefore plaintiff must offer more than in Agostino in order to get his case to the jury. In the absence of expert guidance, the jury in this case would be left to guess whether wear and tear or a defect caused the accident.
Defendant also claims that the case cannot get to the jury because plaintiff did not establish that the saw was a new product. In Agostino, the Superior Court distinguished between cases in which an alleged defect manifests itself shortly after purchase and cases in which an alleged defect does not manifest itself until after some period of ordinary wear and tear. Agostino represented the former type of case, as the product was "new" (only a month old at the time of the accident), had been used approximately ten times, had only been used by the plaintiff, and had never been sent out to a repair shop. See Agostino, 345 A.2d at 740-41. By way of contrast, the Agostino court pointed to the earlier Pennsylvania case of Stein v. General Motors Corp., 58 Pa. D. & C.2d 193 (Ct. C.P. Bucks County), aff'd, 222 Pa. Super. 751, 295 A.2d 111 (Pa. Super. 1972), wherein compulsory nonsuit was granted and affirmed in an action for alleged defect of a car that was 26 months old at the time of the accident, that had been driven over 17,000 miles, and that had at least one trip to the repair shop. See Agostino, 345 A.2d at 740. The Agostino court observed that the court in Stein had recognized that more often than not, where a product is new, the party injured, "along with an objective observer," would have reason to believe that there was a defect at the time of sale. Agostino, 345 A.2d at 740 (quoting Stein, 58 Pa. D. & C.2d at 206). Significantly for purposes of the present case, the Agostino court stated, "This case [Agostino ], therefore, is not like Stein, where ordinary wear and tear or faulty repair could have caused the defect." Agostino, 345 A.2d at 741. In sum, the age of the saw does not bar recovery, but instead may be considered as evidence of ordinary wear and tear over time.
Therefore, as to the strict liability count, judgment as a matter of law is appropriate at this time.
D. Negligence Claim
In addition to plaintiff's claim for strict liability, plaintiff asserted a claim for negligence. The elements of a claim of negligence are the existence of a legal duty, a breach of that duty, and a causal connection between the breach and the resulting injury, in addition to actual damage. See Griggs v. BIC Corp., 981 F.2d 1429, 1434 (3d Cir. 1992). However, plaintiff failed to present any evidence at trial which would allow a jury to find reasonably in plaintiff's favor on this count. Consequently defendant is entitled to judgment as a matter of law on the negligence count.
E. Breach of Warranty Claim
Judgment as a matter of law is also appropriate on plaintiff's breach of warranty count. Plaintiff explicitly abandoned his claim of breach of express warranty during the course of oral argument over defendant's Rule 50(a) Motion. Plaintiff instead is proceeding on the claim of breach of an implied warranty of fitness for a particular purpose. Under the Pennsylvania Uniform Commercial Code, 13 Pa. C.S.A. § 2315, such a warranty exists when a "seller at the time of contracting has reason to know: (1) any particular purpose for which the goods are required; and (2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods." 13 Pa. C.S.A. § 2315; see also Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992). Assuming, arguendo, that plaintiff has standing as a "buyer" of the saw at issue,
he has failed to present sufficient evidence of the statutory elements under the Code for his claim of implied warranty. Moreover, even if he had generally satisfied the statutory elements, plaintiff has failed to prove any defect, which is a predicate for a claim of breach of implied warranty. See Altronics, 957 F.2d at 1105; see also Walker v. General Elec. Co., 968 F.2d 116, 119-20 (1st Cir. 1992) (discussing Third Circuit application of Pennsylvania malfunction law and affirming district court's granting of defendant's Rule 50(a) motion, where even with expert testimony, plaintiff's case-in-chief failed to negate evidence of wear as a reasonable, secondary cause for alleged malfunction of toaster-oven).
Defendant's Rule 50(a) Motion for judgment as a matter of law on all counts of the Complaint is granted. The jury is discharged from duty. I will enter a written Order of Judgment promptly, and the parties will have ten days from the entry of judgment to file any post-trial motions.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.
AND NOW, this 29th day of October, 1993, Having granted defendant's Motion for judgment as a matter of law on all counts of the Complaint pursuant to Federal Rule of Civil Procedure 50(a), JUDGMENT is hereby ENTERED in favor of defendant Milwaukee Electrical Tool Corp. and against plaintiff Eric Schlier on all counts of plaintiff's Complaint.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.