perfect condition, the plaintiff would have sustained the eye injury. The defect in the glasses did not in any way contribute to the eye injury. Although the Pennsylvania Supreme Court speaks of proximate causation, I read Berkebile only to require a court to admit evidence tending to show that the defect was not a "but for" cause of the accident or injury.
In the case at bar, the defendant does not allege that the evidence it seeks to introduce shows that the allegedly defective condition was not a "but for" cause of the plaintiff's injuries. The plaintiff has alleged that the forklift was defectively designed because it failed to provide adequate protection to the operator from the hazard of a lower limb crush injury from the rear. Specifically, the plaintiff has identified experts who opine that the fact that the defendant did not make its optional rear door or operator platform a standard feature of its forklift renders the forklift defective. The defendant now seeks to introduce evidence that this alleged defect did not cause the plaintiff's injuries, which instead were caused by his failure to look in the direction of travel and/or the fact that he put his foot outside the operator's compartment. Under Berkebile, the defendant may not introduce evidence that the plaintiff's failure to look in the direction of travel caused his injuries except to support an argument that the alleged defect in the operator's compartment was not even a "but for" cause of the injuries. That is, the defendant may only introduce such evidence to support an argument that, even if the operator's compartment had had a rear door or operator platform, the plaintiff nonetheless would have suffered his lower limb injuries. The defendant does not propose to make such an argument, and on the record before the court would not appear to be able to make such an argument. Thus Berkebile is not authority for the admission of evidence that the plaintiff was not looking in the direction of travel.
Nor may the defendant introduce evidence to show that the plaintiff's conduct in putting his foot outside the operator's compartment caused his injuries. The plaintiff's main argument is that the forklift was defective precisely because it failed to have a safety mechanism to prevent his foot from coming out of the operator's compartment in the event of an accident. The defendant cannot then refute plaintiff's allegation by showing that the plaintiff put his foot outside the operator's compartment. Cf. Berkebile, 337 A.2d at 900-901 (holding that, because the plaintiff's allegation was that the rotor system was defective because it did not allow enough time for the average pilot to go into autorotation, the trial court erred in instructing the jury that the plaintiff's failure to go into autorotation within the necessary time constituted an "abnormal use" of the system).
For the above reasons, it is hereby ORDERED and DIRECTED that:
1. The defendant's motion for reconsideration of the October 23, 1993 order is DENIED; and
2. The defendant's motion for an amendment of the October 23, 1993 order to allow interlocutory appeal is DENIED.
DECEMBER 1, 1993
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