Appeal from the United States District Court for the Western District of Pennsylvania. (D.C. Civ. No. 92-cv-00031J).
Before: Becker, Mansmann and Scirica, Circuit Judges.
Fifteen month old Matthew Metzgar was tragically asphyxiated to death on a purple half-column Playskool building block. In resolving his parents' civil action against the manufacturer and the retailer of the toy, brought under Pennsylvania's negligence and strict product liability rules of law, the district court entered summary judgment for the defendants on all four counts of the complaint.
We address the district court's application of the traditional risk-utility analysis which the district court utilized in resolving the negligence product liability cause of action. We disagree with the district court on its determination that the statistical risk of injury from the Playskool block to children like Matthew is so small as to preclude a finding of unreasonably defective design. We also address the district court's construction of the "intended user" element of the strict liability cause of action. We reject the district court's determination that the age guideline on the product packaging precludes the manufacturer's liability for safety when used by children, like Matthew, who may be shown to be developmentally within the age category, although chronologically slightly younger. We also reject the district court's dismissal of the failure to warn claims, brought both in strict liability and negligence. We cannot agree that the danger of a small child choking on the block was obvious so as to negate any duty by Playskool to so warn.
On the morning of February 12, 1990, Matthew's father, Ronald, was babysitting Matthew and had placed Matthew, awake and healthy, in his playpen. Ronald left the room for just five minutes and upon his return, he found Matthew lifeless. His efforts to revive his son, after he called "911" and removed the Playskool block lodged in Matthew's throat, were to no avail.
The block which caused Matthew's untimely death is a cylindrical column, 7/8" wide by 1-3/4" long, the smallest block among the 49 brightly colored and variously shaped wood blocks marketed by Playskool, Inc.*fn1 Playskool did not place any warning of a choking hazard on the box containing the blocks, but clearly and boldly imprinted on the front, back and top of the box are the words, "Ages 1-1/2 - 5." The size and shape of the block satisfied existing federal standards and regulations for risk mitigation and cautionary labeling promulgated and enforced by the Consumer Products Safety Commission, 16 C.F.R. § 1501.4, under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-77. The Playskool block also met the small toy and toy part standard established by the American Society for Testing Materials.
On February 6, 1992, Mr. Metzgar and Maureen Ingram, Matthew's mother, filed a complaint against Playskool, Inc. and K-Mart Corp., the retailer, setting forth essentially four counts under Pennsylvania law: negligent design, manufacture and sale of a toy block of a size and shape which made the block susceptible of being swallowed and causing a child to choke; strict liability under § 402A of the Restatement (Second) of Torts for manufacturing and selling a toy block in a defective condition, unreasonably dangerous to intended users, which the plaintiffs alleged includes a child of fifteen months; negligent failure to warn of the hazard to children of the toy block; and strict liability for failing to warn of the product hazard potential. Matthew's parents alleged that the manufacturer's age span recommendation on the box was inadequate to warn of the block's inherent danger.*fn2
In ruling upon the defendants' motion for summary judgment, the district court found with regard to the plaintiffs' negligent design and manufacture cause of action, that although the danger of choking was foreseeable, "the historical risk of choking from the Playskool blocks is so small that, even ignoring the issue of parental supervision, the risk from the design as a matter of law is not unreasonable." District Court Opinion of Sept. 9, 1993 at A. 21. The court dismissed this cause of action. Further, in light of the explicit age designation on the box, the district court found that Playskool did not subjectively intend a fifteen month old child to use this particular Playskool product. Thus the court also dismissed the plaintiffs' defective design strict liability cause of action, holding that "if the concept of intended use . . . is to retain any meaning whatsoever, it necessarily means that use intended from the point of view of the manufacturer putting a product into the marketplace." District Court Opinion of Sept. 9, 1993 at A. 13 (citing Griggs v. Bic Corp., 981 F.2d 1429 (3d Cir. 1992) (product not defective unless it possesses a feature which renders it unsafe for its intended use); Brantner v. Black & Decker, C.A. No. 93-1J, slip op. at 7-12 (W.D. Pa. Aug. 23, 1993)). Further, reasoning that no warning is necessary where a risk of danger is obvious, the district court concluded as a matter of law that the likelihood of a young child choking on a small block is too obvious for the court to sustain the plaintiffs' failure to warn strict liability and negligence causes of action;*fn3 (citing Mackowick v. Westinghouse Electric Corp., 525 Pa. 52, 575 A.2d 100, 102 (1990); Dauphin Deposit Bank and Trust Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 596 A.2d 845, 849 (1991)). Thus the district court granted summary judgment in favor of the defendants on all pending claims.
Our review of the district court's summary judgment order is plenary, and we will utilize the same tests and standards which the district court was constrained to apply.*fn4 We will address each cause of action seriatim.
We are troubled by the district court's summary judgment Disposition of the plaintiffs' negligent design and strict liability design defect causes of action. With regard to the negligence claim, the district court properly engaged in a risk-utility analysis. Griggs, 981 F.2d at 1435-36 (negligence law requires balancing of risk in light of social value of interest at stake, and potential harm, against value of conflicting interest) (citing W. Page Keeton et al., Prosser and Keeton on Torts § 31, at 173 (5th ed. 1984); Benson v. Pennsylvania Cent. Transp. Co., 463 Pa. 37, 342 A.2d 393, 397 (1975); Clewell v. Pummer, 384 Pa. 515, 121 A.2d 459, 462 (1956)); see also Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1369-70 (3d Cir. 1993) (the classic risk-utility analysis is used to determine whether a risk is unreasonable in a negligence cause of action). In performing this analysis, the district court relied heavily on the statistical fact that the general population of small children suffer a mortality rate from choking on small toys or toy parts of approximately only one per 720,000 children. We note also that according to Playskool's representative, Charles Fischer, over the past twenty years, the Playskool block in question, of which easily hundreds of thousands have been sold, has not generated any complaints of choking deaths or injuries. A. 286; 299. Nevertheless, the plaintiffs' expert, E. Patrick McGuire, reported for the record that in one year studied, 1988, there were eleven deaths due to aspiration of small toys or toy parts by children. A. 79. The record does not indicate the current infant mortality rate due to ...