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Surace v. Caterpillar

April 22, 1997






On Appeal From the United States District Court For the Eastern District of Pennsylvania

D.C. Civ. No. 94-cv-01422

Before: BECKER, STAPLETON, Circuit Judges, and WARD, District Judge. *fn1

BECKER, Circuit Judge.

Argued: July 31, 1996

Filed April 22, 1997


This is a products liability case, Restatement of Torts 2d Section(s) 402A, arising out of a construction accident in which the treads of a huge road profiler machine ran over the foot of plaintiff Michael Surace. Surace brought suit against CMI Corporation ("CMI"), the manufacturer of the machine, in the district court for the Eastern District of Pennsylvania. *fn2 The district court, concluding that the evidence contained in the summary judgment record failed to demonstrate that the profiler's risks outweighed its utility, and also that the profiler presented an obvious risk which could have been avoided had Surace exercised reasonable care, granted summary judgment in favor of CMI. Surace appealed.

Resolution of the appeal requires us to explore the contours of the Pennsylvania Supreme Court's decision in Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978), which established that, for purposes of strict liability, whether a product's condition justifies placing the risk of loss on the supplier is a threshold question of law for the court to determine. *fn3 That Court has also made clear that the threshold question turns on a social policy determination to be made by the trial judge. In post-Azzarello defect cases, the Pennsylvania Superior Court has determined that this requirement may be fulfilled by performing a risk-utility analysis, and that the multi-factor list developed by Dean John Wade may be employed in doing so. See John Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973). Though with some diffidence, we predict that the Pennsylvania Supreme Court would adopt that approach.

The appeal then requires that we apply the risk-utility factors to our plenary review of the district court's judgment. When we do so, we find that the risk-utility balance weighs in favor of the plaintiff. In particular, we conclude that the district court erred: (1) in determining that the gravity of the risk of harm and the ability to eliminate it through use of a lockout/tagout device, identified by Surace's expert as the design solution to the defect, were factors weighing in favor of CMI; (2) in relying on Surace's own conduct to determine that the profiler was not unreasonably dangerous; and (3) in weighing the issue of causation as a factor in resolving that question. We also conclude that putative alternative grounds for upholding the summary judgment for CMI do not pass muster. Accordingly, we will reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.

However, we will affirm the district court's judgment insofar as it excluded Surace's expert witness Harold Brink from testifying under Fed. R. Evid. 702. We agree that Brink lacks the expertise required to testify regarding the central issue of design defect in the case -- habituation. Accordingly, the district court properly excluded Brink's testimony.


On the night of September 16, 1992, Surace, an employee of SJA Construction Company, was working on the New Jersey side of the Betsy Ross Bridge. The work crew was using a PR-450 pavement profiler, which had been manufactured by CMI for Caterpillar, Inc., to mill rumble strips at the base of the bridge. The profiler had been equipped with a conveyor assembly which picked up and carried debris generated by the profiler to a waiting receptacle. However, due to space constraints, the crew was operating the profiler without the conveyor assembly. Consequently, the crew was required to level manually the piles of debris left behind by the profiler.

On the night of the accident, Surace was working as a left-side sensor man. In this position, he was responsible for signaling the profiler's operator, William Snyder, when to start and stop the profiler, and in which direction to move it. Although the profiler was equipped with horns on the side specifically designed for signaling the operator, Surace was using hand signals to signal Snyder. The profiler's design contained a "blind spot," i.e., the operator's view of the area directly behind the machine was obstructed.

The profiler was equipped with a number of warning devices, including a sign prominently posted on its rear alerting the crew to stay at least 25 feet clear of the machine, an automatic back-up alarm, flashing back-up lights, and a rotating overhead beacon light which signaled when the profiler was in operation. These warning or signaling devices were all in working condition on the night of the accident. Surace was wearing earplugs to protect his ears from the considerable noise created by the machine.

After the first pass of the profiler, Surace signaled Snyder to stop. After moving the profiler forward, Snyder did so. Surace then noticed a pile of debris in the reverse pathway of the profiler which the machine had generated. Surace picked up a broom or shovel, and, with his back to the machine, began to level the debris. While Surace was behind the machine, and without any signal from Surace, Snyder put the profiler into reverse. Although the back-up alarms and signals were activated, Surace neither heard nor saw them, nor did he hear the shouts from his crew workers to move out of the way. The profiler backed into Surace and snared his right foot under the treads. As a result of the accident, Surace sustained serious injuries, necessitating the amputation of part of his right foot.

Surace and his wife Alice (Surace) filed suit against Caterpillar and CMI alleging negligence and strict liability for defective design. *fn4 Surace subsequently dropped the negligence claim and, by stipulation of the parties, Caterpillar was dismissed from the action. The complaint alleged that the profiler was defectively designed because its warning devices were inadequate. Specifically, Surace alleged that the back-up alarms were prone to "habituation," a phenomenon by which a person becomes immune to a particular stimulus through constant repetition and exposure, and that without a "lockout/tagout" device, which would prevent the machine from reversing unless activated by the ground crew, the profiler was unreasonably dangerous.

Following a period of discovery, CMI moved in limine to exclude the testimony of Surace's liability experts, Joseph Lambert, Harold Brink and Paul Stephens, pursuant to Fed.R.Evid. 702, 703, and 403. Both Dr. Lambert, a psychologist and specialist in human factors analysis, and Brink, an electromechanical engineer, were to testify that the profiler's warning devices were defective because they were prone to habituation. Stephens, a mechanical and safety engineer, was to testify that the warning devices were inadequate, and that the failure to equip the machine with additional safety devices caused the accident. After conducting an in limine hearing, the district court denied the motion with respect to Lambert and Stephens, but granted it with respect to Brink. Surace v. Caterpillar, Inc., No. CIV.A.94-1422, 1995 WL 303895 (E.D. Pa. May 16, 1995). The court's ruling was predicated largely on the fact that Brink's opinion hinged on habituation, a field, the court found, in which Brink lacked experience and for which he relied exclusively on Dr. Lambert for support.

CMI then moved for summary judgment, arguing, inter alia, that the profiler was safe for its intended use. As noted above, the district court granted summary judgment for CMI on the grounds that the evidence failed to demonstrate that the profiler's risks outweighed its utility, and that the profiler presented an obvious risk which could have been avoided if Surace had exercised reasonable care. Surace v. Caterpillar, Inc., No. CIV.A.94-1422, 1995 WL 495123 (E.D. Pa. Aug. 18, 1995).

We exercise plenary review in determining the propriety of summary judgment. Childers v. Joseph, 842 F.2d 689, 693 (3d Cir. 1988). Summary judgment is proper only if there is no genuine issue of material fact. Id. "An issue is `genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Id. at 693-94.


A. Introduction

Pennsylvania early on adopted the Restatement (Second) of Torts as the law of strict products liability in Pennsylvania. Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (Pa. 1966). Section 402A of the Restatement provides in relevant part:

(1) 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, 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.

Restatement (Second) of Torts (1965). To establish a case under the strict liability doctrine, a plaintiff must prove that the product was defective, and that the defect proximately caused the plaintiff's injuries. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975).

In Azzarello v. Black Bros Co., 480 Pa. 547, 558, 391 A.2d 1020, 1026 (1978), the Pennsylvania Supreme Court held that "the phrases `defective condition' and `unreasonably dangerous' as used in the Restatement formulation are terms of art invoked when strict liability is appropriate." The Court also announced that the threshold determination as to whether the product's condition justifies placing the risk of loss on the manufacturer or supplier is a question of law for the court to resolve. Id., 391 A.2d at 1026. If the court determines that the product is defective under the facts as alleged, then the case is submitted to the jury to determine whether the facts indicate that when the product left the manufacturer's control it "lack[ed] any element necessary to make it safe for its intended use or possess[ed] any feature that renders it unsafe for the intended use." Id. at 559, 391 A.2d at 1027. The court in Azzarello, however, did not articulate the standard for determining whether the risk of loss should be placed on the manufacturer, except to note that it was a matter of social policy:

Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensities? When does the utility of a product outweigh the unavoidable danger it may pose? These are questions of law and their resolution depends upon social policy.

Id. at 558, 391 A.2d at 1026; see also Ellen Wertheimer, Azzarello Agonistes: Bucking the Strict Products Liability Tide, 66 Temp. L. Rev. 419, 424 (1993) ("Azzarello indisputably failed to provide courts with guidelines for determining precisely when and why strict liability should attach."); David G. Owen, Rethinking the Policies of Strict Products Liability, 33 Vand. L. Rev. 681, 686-87 (1980) (Azzarello "did very little to help clarify the meaning of defectiveness and its proper standards of measure") ("the [Azzarello] court nowhere ...

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