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EZENWA v. GALLEN

October 17, 1995

IFEANYI O. EZENWA and ANN EZENWA, Plaintiffs
v.
EDWARD J. GALLEN, AND SEVERAL UNNAMED AGENTS, and BARRINGER, INC., Defendants


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

October 17, 1995

 BACKGROUND:

 On May 10, 1995, plaintiffs Ifeanyi O. Ezenwa and Ann Ezenwa initiated this action with the filing of a complaint pursuant to 42 U.S.C. § 1983. An amended complaint was filed on June 6, 1995. Plaintiffs allege the violation of Ifeanyi Ezenwa's civil rights by named and unnamed agents of the United States Customs Service, in conjunction with defendant Barringer Technologies, Inc. (named as Barringer, Inc.; designated in this memorandum as "Barringer"). The United States has been substituted as defendant for the Customs Service agents with respect to the common law tort claims asserted by plaintiffs.

 Barringer is the manufacturer of a device, called an "Ionscan," sold to the government for use in detecting the presence of illegal drugs and certain other substances. Plaintiffs allege that the product was defectively designed or manufactured, so that Barringer would be liable under the Pennsylvania law of strict products liability.

 Before the court are motions to dismiss filed by Barringer and by the United States pursuant to Fed. R. Civ. P. 12(b)(6).

 DISCUSSION:

 I. STANDARD OF REVIEW

 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). "It is the settled rule that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Leone v. Aetna Casualty & Surety Co., 599 F.2d 566, 567 (3rd Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99, (1957)). The complaint must be read in a light most favorable to the plaintiff with every doubt resolved in plaintiff's favor. In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 422 (E.D. Pa. 1981).

 II. FACTS ALLEGED IN THE AMENDED COMPLAINT

 On November 30, 1993, a shipment of bath oil, soaps, and cosmetics from Spain, addressed to Ifeanyi Ezenwa, was received at the Harrisburg International Airport. The Ionscan was used by agents of the Customs Service to test for the presence of illegal drugs, and it issued a false reading that one of the bath oil products contained heroin.

 On December 2, 1993, Ezenwa was arrested after returning from the airport to his place of business with the products in his possession. The arrest was made by agents of the Customs Service as well as drug enforcement agents from several state agencies, and occurred on the street in front of Ezenwa's business premises. The arrest was the result of the false reading from the Ionscan. Ezenwa remained in jail from December 2, 1993, through December 6, 1993, before the erroneous reading was detected.

 The warrant for Ezenwa's arrest was issued pursuant to a request by a customs agent named Edward Gallen. Gallen applied based on the reading from the Ionscan and the erroneous belief that Ezenwa was an individual previously suspected of drug smuggling. Gallen also requested and obtained a warrant for the search of Ezenwa's home.

 Barringer moves to dismiss because plaintiff has failed to allege the "physical harm" necessary to support a claim of strict products liability. It is important to distinguish such a claim from those asserted against the federal defendants. The law of torts generally requires a plaintiff to plead and prove a compensable "injury." Friedman v. F.E. Myers Co., 706 F. Supp. 376, 379 (E.D. Pa. 1989) (citing Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir.), cert. denied sub nom. Reading Co. v. Schweitzer, 474 U.S. 864, 88 L. Ed. 2d 152, 106 S. Ct. 183 (1985); W. Prosser and P. Keeton, Prosser and Keeton on Torts (5th ed. 1984) at 165). The question of whether an injury is compensable depends on the particular tort. Compare Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 483 A.2d 456, 461 (Pa. Super. 1984) (in a defamation action, injury to reputation is compensable), with Giffear v. Johns-Manville Corp., 429 Pa. Super. 327, 632 A.2d 880 at 880-881, 886 (Pa. Super. 1993) (in products liability action, "subclinical" or "asymptomatic" physical condition or disease is not compensable, while "manifest" condition or disease caused by the same product is compensable), allocatur granted, 539 Pa. 651, 651 A.2d 539 (Pa. 1994) (table).

 It also is important to distinguish the tort implicated in the claim against Barringer, strict products liability, and the constitutional torts alleged to have been committed by the federal defendants. The Fourth Amendment is violated when an individual's person or property is searched or seized by a law enforcement officer unreasonably and/or without probable cause. See generally Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991) (no violation of the Fourth Amendment because there was no seizure). In such a case, the search or seizure is itself actionable.

 In this case, plaintiffs acknowledge that the operation of the Ionscan did not cause Ezenwa an immediate, direct injury in the form of a burn or a cut. Plaintiffs' Brief in Opposition to Barringer's Motion to Dismiss at 3. Instead, plaintiffs contend that such a concept of injury is too restrictive, and that his arrest, search, and confinement constitute physical injury for purposes of the strict products liability claim.

 The Supreme Court of Pennsylvania has expressly adopted the Restatement (2d) of Torts § 402A as the law of strict products liability in the Commonwealth. Webb v. Zern, 422 Pa. 424, 220 A.2d 853, 854 (Pa. 1966). That section reads:

 
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
 
(a) the seller is engaged in the business of selling such a product, and
 
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
 
(2) The rule stated in Subsection (1) applies although
 
(a) the seller has exercised all possible care in the preparation and sale of his product, and
 
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

 Restatement (2d) of Torts § 402A (emphasis added).

 The terms "injury" and "harm" are defined elsewhere in the Restatement as follows:

 
(1) The word "injury" is used throughout the Restatement of this Subject to denote the invasion of any legally protected interest of another.
 
(2) The word "harm" is used throughout the Restatement of this Subject to denote the existence of loss or detriment in fact of any kind to a person resulting from any cause.
 
(3) The words "physical harm" are used throughout the Restatement of this Subject to denote the physical impairment of the human body, or of land or chattels.

 Restatement (2d) of Torts § 7.

 As indicated in the emphasized portion of § 402A, a plaintiff must show a "physical harm" (defined in § 7) to recover under a theory of strict products liability. The term is further explained as follows:

 
The words "physical harm" are used to denote physical impairment of the human body, or of tangible property, which is to say land or chattels. Where the harm is impairment of the body, it is called "bodily harm," as to which see § 15.

 Restatement (2d) of Torts § 7 Comment e. The term "bodily harm" is in turn described further:

 
Bodily harm is any physical impairment of the condition of another's body, or physical pain or illness.
 
Comment:
 
a. There is an impairment of the physical condition of another's body if the structure or function of any part of the other's body is altered to any extent even though the alteration causes no other harm. ...

 Restatement (2d) of Torts § 15 and Comment a. The Restatement definitions, of course, control over the ordinary definition or usage of the terms. See, e.g., In re One Meridian Plaza Fire Litigation, 820 F. Supp. 1460, 1476-1477 (E.D. Pa.)(applying definitions set forth in § 7), rev'd on other grounds sub nom. Federal Insurance Co. v. Richard I. Rubin & Co. Inc., 12 F.3d 1270 (3d Cir. 1993), cert. denied sub nom. Ejay Travel, Inc. v. Algemeen Burgerlijk Pensioenfonds, 128 L. Ed. 2d 663, 114 S. Ct. 2101 (1994).

 We think it evident that there has been no "physical harm" in the form of "bodily harm" as the terms are used in the Restatement. Ezenwa points out that he was arrested and handcuffed, strip searched, and held in custody for approximately four days. Certainly, these are not events any reasonable person would want to experience. However, they do not entail an alteration of the structure or function of any part of the body, and so do not fall within the type of harm which is compensable under § 402A.

 Ezenwa also points to the search of his property by customs agents. Again, this is not the type of harm which is compensable under § 402A. "'Harm' implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing." Restatement (2d) of Torts § 7, Comment b. The fact of a search does not constitute a loss or detriment, and so is not "harm" as the term is used in the Restatement. Even if the search resulted in some broken property or disorder, this is not the type of harm contemplated by § 402A, since the harm must be causally related to the defect in the product. In such an instance, the damaged or disorderly property would be the result of the manner in which the search was conducted, and not the fact of the search. The damage or disorder would be too attenuated from the working of the product to be causally related.

 Plaintiffs in their brief go to great lengths in describing the injury suffered by Ezenwa. At the beginning of this section, we contrasted the type of harm contemplated by § 402A to other causes of action. The purpose of doing so was to limit the issue that is before the court: whether Ezenwa may recover under a theory of strict products liability. We conclude that he cannot. Although plaintiffs contend that this is an artificial restriction, see Plaintiffs' Brief in Opposition to Barringer's Motion to Dismiss at 3, this argument is rebutted by the language of the Restatement itself:

 
...Frequently, where "harm" is used in this Restatement, it is qualified by some limiting adjective, such as bodily harm, physical harm, pecuniary harm, and the like. In each such case the intent is to limit the rule stated to the particular kind of harm specified. ...

 Restatement (2d) of Torts § 7, Comment b.

 A further example of this again is provided by plaintiffs themselves. They argue:

 
Under such an argument, an indecent or sexual assault would not be characterized as a "physical harm," because, once the assault was completed, there might not be visible wounds. The physical outrage of being assaulted in such a manner, as well as the outrage of being wrongly seized, bound and confined, are clearly physical harm.

 Plaintiffs' Brief in Opposition to Barringer's Motion to Dismiss at 5 n. 3. And elsewhere:

 
Similarly, under Defendant's theory, a battery, which is recognized as an offensive or harmful touching of a person's being, would be characterized as solely an economic or emotional harm, unless the offensive touching was also "harmful" in the sense of inflicting a wound. The law of the Commonwealth of Pennsylvania has long recognized that a battery is not simply an emotional harm, but a cause of action based ...

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