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MONAHAN v. TORO CO.

June 30, 1994

HARRY T. MONAHAN, Executor of the Estate of Janice L. Monahan, Deceased, and HARRY T. MONAHAN in his own right
v.
THE TORO COMPANY



The opinion of the court was delivered by: J. WILLIAM DITTER, JR.

 Ditter, J.

 This case involves a tragic, fatal accident in which a lawn tractor overturned and the plaintiff's wife was killed. The defendant, the Toro Company, moved for summary judgment, asserting that the lawn tractor at issue in this case was not unreasonably dangerous as a matter of law and that Toro was not negligent with respect to the tractor's design or safety warnings. I heard oral argument on the motion. For the reasons set forth below, defendant's motion is being granted.

 I. FACTS

 On May 19, 1992, Janice Monahan ("Mrs. Monahan") was mowing the lawn of the Monahan family home using a Wheelhorse *fn1" Model 416-8 garden tractor. The tractor overturned and landed upside down on Mrs. Monahan, who died as a result of mechanical asphyxiation due to compression of her chest. Consultants determined that the tractor had been moving down a slope in reverse when the rollover occurred.

 The tractor was manufactured by Wheelhorse Products, Inc. ("Wheelhorse") in 1988. The tractor is powered by a 16 horsepower engine and has a 48-inch mower deck. It is offered only in two-wheel drive. The weight of the mower is disputed. Toro claims that the tractor weighs about 670 pounds with the mower deck, while plaintiff claims that the weight of the tractor is 740 pounds. *fn2" The Model 416-8 lawn tractor is not equipped with a Roll Over Protection System ("ROPS"); the significance of Toro's failure to provide a ROPS is a major point of contention in this lawsuit.

 Plaintiff filed suit against Toro, alleging negligence, strict liability, and breach of warranty. Toro's negligence, Mr. Monahan claims, consists of failing to design and install a sufficiently safe braking system; failing to design a sufficiently stable lawn tractor; failing to equip the tractor with a ROPS; and failing to warn Mrs. Monahan adequately of the risks involved in operating the tractor. Plaintiff's strict liability claim rests on the ground that the tractor was defective for these reasons. The breach of warranty claim alleges that the tractor was not merchantable and not fit for its ordinary, intended use.

 Toro moved for summary judgment, claiming both that its tractor was not unreasonably dangerous as a matter of law, and that it was not negligent with regard to either the tractor's design or warnings. Summary judgment is appropriate because, where there are disputed issues of material fact, I have accepted plaintiff's version of them. Neither side disputes that Pennsylvania law governs this case.

 II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT: WAS THE LAWN TRACTOR "UNREASONABLY DANGEROUS"?

 Pennsylvania has adopted Section 402A of the Restatement (Second) of Torts. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (Pa. 1966). That section provides, "One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused to the ultimate user or consumer . . . ." Griggs v. BIC Corp., 981 F.2d 1429, 1431 n.3 (3d Cir. 1992). "Unreasonably dangerous" is not an independent concept under Pennsylvania law. Rather, it represents a judicial determination that, as a matter of policy, the risk of loss should be placed on the supplier of a product. Id. at 1432 n.4, 1433 (citation omitted). State law is clear that the court, not the jury, decides the threshold question of whether a product is "unreasonably dangerous." Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020, 1026 (Pa. 1978). If the court determines that the risk of loss should be placed on the manufacturer, the factfinder then decides whether the product was sold in a defective condition as alleged. Id. at 1025-26. Thus, unless the trial court resolves the issue of "unreasonably dangerous" in the plaintiff's favor, the issue of defectiveness is not submitted to the jury. Shetterly v. Crown Controls Corp., 719 F. Supp. 385, 389 (W.D. Pa. 1989), aff'd, 898 F.2d 142 (3d Cir. 1990). The court determines unreasonable dangerousness using a risk-utility analysis. Id. at 389; Jordon by Jordon v. K-Mart Corp., 417 Pa. Super. 186, 611 A.2d 1328, 1330 (Pa. Super. 1992).

 State and federal courts have adopted seven factors which a trial judge should consider in analyzing whether a product is unreasonably dangerous. Shetterly, 719 F. Supp. at 387; Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408, 423 n.5 (Pa. Super. Ct. 1984). The seven factors are: (1) the usefulness and desirability of the product to the user and the public as a whole; (2) safety aspects, meaning the likelihood of injury and the probable seriousness of injury; (3) the availability of a substitute meeting the same need without being as unsafe; (4) the manufacturer's ability to eliminate the unsafe characteristic of the product without impairing usefulness or raising the cost; (5) the user's ability to avoid the danger by exercising care; (6) the user's anticipated awareness of the product's inherent dangers and their avoidability, either because of general public knowledge or the existence of suitable warnings; and (7) the feasibility on the part of the manufacturer of spreading the loss by higher product cost or insurance. Shetterly, 719 F. Supp. at 387 (citing John W. Wade, "On the Nature of Strict Tort Liability for Products," 44 Miss. L.J. 825, 837-38 (1973)). The burden of proof as to these seven factors is on the defendant, although the ultimate burden of proving a defective product at trial is, of course, on the plaintiff. Id. at 401. I will discuss the Model 416-8 in the context of these seven factors.

 A. Usefulness and Desirability of the Product

 B. Safety Aspects

 The next factor to consider is the likelihood of injury and the probable seriousness of injury. That some injuries may occur does not mean that a lawn tractor is defective. See Shetterly, 719 F. Supp. at 400. The Consumer Product Safety Commission ("CPSC") estimates that an average of 19,100 injuries per year involving riding mowers required emergency room treatment, and an estimated 7.65 million riding mowers per year were in use during the four years under CPSC study. This implies, according to the CPSC, that 2.5 out of every 1000 ride-on mowers were associated with an injury that required treatment in an emergency room. *fn3" (Def.'s Reply to Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J., Ex. D). The CPSC reported 75 deaths per year in the four-year period studied. *fn4" This means that one death occurred for every 102,000 riding mowers in operation. *fn5" I find that the likelihood of the most serious injury -- death -- is low: these statistics show that the risk of injury from tractor mowers is slight and that the risk of death from "tipping/sliding" is .00049 percent. *fn6"

 C. Availability of a Substitute

 The next Shetterly factor to consider is the availability of a substitute product meeting the same need as the riding mower without being as unsafe. A walk-behind lawnmower may arguably be safer than a riding mower in some ways (though arguably more dangerous in other ways), but does not address the same need -- mowing a large area with less labor expended -- as a riding mower. Plaintiff has not suggested a substitute product that would meet the need of lawn tractors without being as unsafe and, indeed, does not appear to suggest that lawn tractors are obsolete or have no utility because of alternative products. *fn7" The fact that there is no substitute product that would fulfill the same consumer needs, but more safely, than a lawn tractor, is further evidence of its utility and that it is not unreasonably dangerous.

 D. Manufacturer's Ability to Eliminate Unsafe Character of Product Without Impairing Usefulness or Making it ...


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