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December 13, 1993


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


 Plaintiff in this products liability case, a forklift operator with over 40 years experience, was operating a forklift at a warehouse in Philadelphia on November 11, 1991 when he stopped the forklift and dismounted to manually pick up a box containing a television. As plaintiff was lifting the box, he looked up and saw the forklift coming at him. The forklift struck and injured plaintiff.

 This case followed against defendant, the manufacturer of the forklift, based on a claim that the accident would not have occurred had the forklift come equipped with a "dead man's switch."

 The trial lasted four days, beginning on March 8, 1993. Defendant moved for a directed verdict at the close of plaintiff's case on two separate grounds: first, based on the Pennsylvania Supreme Court's decision in Azzarello v. Black Bros., 480 Pa. 547, 391 A.2d 1020 (1978), as a matter of public policy, strict liability should not attach in this case, and second, that plaintiff had not satisfied his burden of showing a safer design alternative. I denied defendant's motion for a directed verdict. Defendant did not renew its motion for a directed verdict at the close of all the evidence.

 The jury found in favor of plaintiff, and awarded $ 400,000 in damages. I have before me defendant's post-trial motions, which include a motion for a judgment notwithstanding the verdict and a motion for a new trial.

 The law of this circuit is clear that a judgment notwithstanding the verdict may not be granted if no directed verdict motion was made at the close of all the evidence. See Keith v. Truck Stops Corp. of America, 909 F.2d 743, 744 (3d Cir. 1990); Lowenstein v. Pepsi Cola Bottling Co. of Pennsauken, 536 F.2d 9 (3d Cir. 1976).

  However, the ordering of a new trial is a matter committed to the sound discretion of the trial court. Bonjorno v. Kaiser Aluminum and Chemical Corp., 752 F.2d 802, 812 (3d Cir. 1984) cert. denied, 477 U.S. 908, 91 L. Ed. 2d 572, 106 S. Ct. 3284 (1986). A court may grant a new trial if doing so is required to prevent injustice or to correct a verdict that was against the weight of the evidence. See, e.g., Grace v. Mauser-Werke GMBH, 700 F. Supp. 1383, 1388 (E.D. Pa. 1988).

 After hearing and considering all the evidence in this case, I am convinced that the imposition of strict liability, and a verdict in plaintiff's favor should not have been allowed as a matter of law. However, in that defendant did not move for a directed verdict at the close of all the evidence, defendant's motion for a judgment notwithstanding the verdict is not properly before the court at this time. Therefore, for the reasons stated below, I will order a new trial.

 I. Public Policy

 Under the Azzarello ruling, a court applying the law of Pennsylvania in a strict liability case must determine, prior to submission to a jury, whether a defendant owed any duty to plaintiff as a matter of public policy. Many courts have struggled with the Azzarello ruling over the years, and some have attempted to offer a framework for analyzing the Azzarello "public policy" determination. See e.g., Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984); see also Shetterly v. Crown Controls Corp, 719 F. Supp. 385 (W.D. Pa. 1989), aff'd without opinion, 898 F.2d 139 (3d Cir. 1990).

 The varying interpretations of Azzarello have not succeeded in providing any consistent approach. The Court of Appeals for this circuit has observed that the appellate courts of the Commonwealth of Pennsylvania appear to have taken differing approaches in attempting to explain what Azzarello means. See Griggs v. BIC Corporation, 981 F.2d 1429, 1439 (3d Cir. 1992); Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992).

 What a trial court is left with then is the bare language of the Azzarello ruling, that a product is "unreasonably dangerous" if, and only if, the product "left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use." Azzarello, supra, 391 A.2d at 1027, quoted in Griggs, supra, 981 F.2d at 1433. In this case, it is the first part of the above-quoted language which is at issue. Plaintiff's case is based on the allegation that the forklift at issue lacked an element necessary to make it safe for its intended use, namely, a dead man's switch which would have placed the forklift into neutral when plaintiff dismounted.

 It is a commentary on the current state of the law of Pennsylvania with regard to products liability that while plaintiff objected to any testimony on the subject, plaintiff did not feel the need to even dispute the following:

1. The forklift was equipped with a parking brake. Testimony of Ballarini, N.T. March 8, 1993 at 106.
2. Plaintiff did not apply the parking brake before stepping down from the forklift, immediately prior to the accident. Testimony of Ballarini, N.T. March 8, 1993, at 106.
3. Had plaintiff applied the parking brake, the accident would not have occurred. Testimony of Clauser, N.T. March 9, 1993 at 106. *fn1"

 Plaintiff's objections to any and all questions regarding the existence of a parking brake were based on the Court of Appeals' decision in Dillinger, in which the Court of Appeals held that evidence of plaintiff's conduct was inadmissable to negate the "causation" element of a strict liability case. See Dillinger, supra, 959 F.2d at 444.

 In Dillinger, plaintiff was injured when the Caterpillar dumpster he was driving up a hill stalled-out, due to a rupture of the dumpster's hydraulic hoses. After stalling, the dumpster began to roll back down the hill, and without hydraulics, plaintiff was unable to brake the dumpster to a halt. The dumpster rolled backwards off an embankment, and plaintiff was severely injured. Id. at 432-33. At the time of the accident, plaintiff had been operating the dumpster in question for approximately six months. Id. at 434.

 At trial, the defense maintained that plaintiff's injuries were caused by his failure to use the dumpster's alternative braking systems, his failure to read the operator's manual, and his lack of experience in operating the dumpster. Id. at 440. Evidence was undisputed that even after the rupture of the hydraulic hoses, plaintiff would not have been able to tell by pumping the brake pedal that the hydraulics were no longer operable. Id. at 433.

 The Dillinger decision studied the mixed signals the Pennsylvania courts have transmitted concerning the meaning of Azzarello. Specifically, the Court of Appeals carefully distinguished cases in which plaintiff's conduct actively contributed to the cause of the accident, (see Bascelli v. Randy, Inc., 339 Pa. Super. 254, 488 A.2d 1110 (1985); Foley v. Clark Equipment Co., 361 Pa. Super. 599, 523 A.2d 379, (1987) allocatur denied, 516 Pa. 614, 531 A.2d 780 and 516 Pa. 641, ...

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