On Appeal from the United States District Court for the Western District of Pennsylvania
Before plaintiff's conduct can be admitted it must be viewed in context with the societal policies that lie behind strict liability and that assist in determining causation under Dillinger.
Argued: February 11, 1997
Edith J. Parks (Mrs. Parks) appeals from the April 1, 1996, order of the United States District Court for the Western District of Pennsylvania denying her a new trial in a strict products liability tort action. She asserts that the district court erred in instructing the jury as to causation and contributory negligence, and in failing to take sufficient steps to ensure that defendants complied with discovery orders. We agree and will reverse and remand for a new trial.
Mrs. Parks alleges that defective visibility features on AlliedSignal's Gradall G-600 excavating machine caused her husband's death. Leslie Parks (Mr. Parks) was a general laborer for Allegheny Sand, Inc. Mrs. Parks is his widow. Mr. Parks was killed while working with the Gradall machine, an excavator with two separate cabs that is used for breaking boulders into smaller pieces. One cab is in the front, as in an ordinary truck, and is occupied by the driver of the vehicle. The second cab, at the rear, is attached to and controls the excavating arm.
The second cab, the arm, and the arm's counterweight are all in one line. The counterweight keeps the machine from tipping when the arm is used off-center. When the second cab operator moves the arm as if tracing a circle, the machine's entire arm (including the counterweight) swings around a central point. The operator sits in the middle, swinging along with the arm. The operator's seat faces the excavating arm, and the counterweight swings out behind his back. The cab has no mirrors, so the operator has no view to the area behind him and only limited side visibility while operating the controls.
On the morning of the accident, Mr. Parks and two co-workers, at the direction of their supervisor, endeavored to break some blocks of carbon. The machine's regular shovel had been replaced by Mr. Parks' employer with a chipper attachment used for carbon-breaking. From outside the machine, Mr. Parks directed his co-workers, who occupied the two cabs and controlled the truck. Alan McMunn, sitting in the front cab, drove the machine to the back of a shed where the carbon was stored. William Kline, in the second cab, operated the excavator arm and boom.
Mr. Parks walked to the back of the shed. As McMunn pulled the machine into the shed, Mr. Parks directed him. Mr. Parks told Kline to swing the boom to the left. The instruction sent the excavating arm's counterweight on a collision course with Mr. Parks. Mr. Parks was pressed between the counterweight and the wall, causing his death.
Mrs. Parks sought to hold AlliedSignal liable on the theory that it failed to install a rear-view mirror or alternative safety device on the Gradall machine. She alleged that this omission made the product "unreasonably dangerous" because it caused the vision of the second cab's operator to be needlessly circumscribed. Over objections by Mrs. Parks, the district court admitted evidence concerning Mr. Parks' conduct immediately prior to his death. The district court refused to charge the jury that Mr. Parks' conduct could be viewed as a legal cause of his death only if it were unforeseeable.
The jury found that the product was indeed defective, but nevertheless returned a verdict for the manufacturer. The verdict was presumably based on the finding of the jury that the defect was not "a substantial factor" in causing the death. Parks' motion for a new trial was denied. Mrs. Parks argues that the district court erred when it failed to charge the jury that if Mr. Parks' conduct were foreseeable, such conduct could not have broken any chain of causation linking the alleged defect to his death.
In addition, during the trial Mrs. Parks sought to compel disclosure of information that she had requested during pre-trial discovery, but which allegedly had not been divulged. That information concerned other accidents involving similar machines and the placement of mirrors on those machines. The district court granted the motion to compel, *fn1 but the record on appeal raises serious questions as to whether defendants properly complied with discovery orders.
The district court exercised jurisdiction pursuant to 28 U.S.C. Section(s) 1332 (1993), diversity of citizenship. We have jurisdiction over this appeal pursuant to 28 U.S.C. Section(s) 1291 (1993). Concerning the propriety of the charge delivered to the jury, our standard of review is plenary, as we are reviewing whether the district court erred in formulating a legal precept. See Hook v. Ernst & Young, 28 F.3d 366, 370 (3d Cir. 1994)(citing Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir. 1993)(citing Rotondo v. Keene Corp, 956 F.2d 436, 438 (3d Cir. 1992))). We review the supervision of discovery by the district court for abuse of discretion. See United States v. 27.93 Acres of Land, 924 F.2d 506, 510 (3d Cir. 1991); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir. 1983).
We initially review two key questions raised on this appeal. First, what must a plaintiff show in order to recover in a strict products liability tort action under Pennsylvania law, which incorporates section 402A of the Restatement (Second) of Torts? Second, having admitted evidence of a decedent's conduct immediately before an accident, what must a district court do to fulfill its obligation to explain to a jury the appropriate use of such information?
Section 402A, which was adopted by the Supreme Court of Pennsylvania in Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966), "imposes strict liability for injuries caused by defective product design." *fn2 Pacheco v. Coats Co., Inc., 26 F.3d 418, 421 (3d Cir. 1994)(citing Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590, 592 (Pa. 1987)). See also Phillips v. A-Best Products Co., 665 A.2d 1167, 1170 (Pa. 1995)(acknowledging Pennsylvania's adoption of section 402A). In the words of the Pennsylvania Supreme Court, "Section 402A . . . requires only proof that a product was sold in a defective condition unreasonably dangerous to the user or consumer, and that the defect was the proximate cause of plaintiff's injuries." Walton v. Avco Corp., 610 A.2d 454, 458 (Pa. 1992). "Manufacturers are held as guarantors upon a finding of defect and causation." Id. at 462.
In order to prevail in a section 402A action, the plaintiff must show that a product is "unreasonably dangerous to intended users for its intended use." Pacheco, 26 F.3d at 422 (emphasis omitted). In interpreting the phrase "intended use", we have held that "the intended use of a product `includes all those [uses] which are reasonably foreseeable to the seller.' " Id. (quoting Sheldon v. West Bend Equip. Corp., 718 F.2d 603, 608 (3d Cir. 1983)(alteration added)). Under the strict liability test, therefore, a defendant is liable for causing injury to a person who was behaving in a foreseeable manner. This principle is reflected in the jury instruction recommended by Pennsylvania's Committee for Proposed Standard Jury Instructions, which the Pennsylvania Supreme Court endorsed in Azzarello v. Black Bros. Co., Inc.:
The product must . . . be provided with every element necessary to make it safe for [its intended] use, and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant's control, lacked any element necessary to make it safe for [its intended] use or contained any condition that made it unsafe for[its intended] use, then the product was defective, and the defendant is liable for all harm caused by such defect.
391 A.2d 1020, 1027 n.12 (Pa. 1978). See also Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590, 593 (Pa. 1987).
Section 402A liability cannot be found if, at the time of the accident, the product was being used in an unforeseeable manner. The requirement of foreseeability therefore enables strict liability to exist without transforming manufacturers into absolute insurers of their products. The importance of this rule has been repeatedly demonstrated in the courts. In Sheldon, 718 F.2d at 608, we held that "the district court[should not] fail to instruct the jury to the effect that the intended use of a product includes any use which is reasonably foreseeable to the seller." See also Schell v. AMF, Inc., 567 F.2d 1259, 1263 (3d Cir. 1977)(quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914, 921 n.13 (Pa. 1974))("whether a particular use of a product is abnormal depends on whether the use was reasonably foreseeable by the seller."). In Eck v. Powermatic Houdaille, 527 A.2d 1012, 1019 (Pa. Super. 1987), the Superior Court of Pennsylvania reversed a trial court on the grounds that "the established rule of law . . . requires consideration of `foreseeability' " in the jury instruction in a strict products liability action.
The concept of foreseeability is relevant to strict products liability cases for the purpose of determining whether the use that was made of a product at the time of the accident was one that the manufacturer could have reasonably anticipated. See Schell, 567 F.2d at 1263. In order to prevail in a section 402A products liability action, then, the plaintiff must show that: (1) a product defect (2) caused a harm (3) while the product was being used in a foreseeable manner.
As the Pennsylvania Superior Court held in Sweitzer v. Dempster Sys., 539 A.2d 880, 882 (Pa. Super. 1988)(citing Salvador v. Atlantic Steel Boiler Co., 319 A.2d 903, 907 (Pa. 1974)(emphasis added)):
The role of foreseeability in a product liability case is consistent with the broad and sound social policy underlying Section(s) 402A; that is, as between an innocent user of a product and a manufacturer or seller who is engaged in the business of manufacturing or selling a product, risk of loss for injuries resulting from the use of a defective product shall be borne by the manufacturer and/or seller.
Of course, a defect may produce manufacturer liability in a given case only when the harm caused is of the type threatened by the defect.
2. "Substantial Factor" Causation as it Relates to Foreseeability
In determining how the elements of foreseeability and causation may properly be demonstrated in the instant case, we are again guided by Pennsylvania law. When addressing causation, Pennsylvania has rejected the "but for" test and adopted the "substantial factor" test as embodied in the Restatement (Second) of Torts Section(s) 431, which provides:
The actor's negligent conduct is a legal cause of harm to another if: (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence resulted in the harm.
See Trude v. Martin, 660 A.2d 626, 632 (Pa. Super. 1995)(citing Whitner v. Von Hintz, 263 A.2d 889 (Pa. 1970)).
The courts of other states following the Restatement have defined a "substantial factor" as one that is not "merely negligible." ACandS v. Asner, 686 A.2d 250, 260 (Md. 1996). "Stated differently, `[l]iability attaches not only to the dominating cause but also to any cause which constitutes at any event a substantial factor in bringing about the injury.' " Dawson v. Bunker Hill Plaza Assocs., 673 A.2d 847, 853 (N.J. Super. App. Div. 1996)(quoting Peer v. City of Newark, 176 A.2d 249 (N.J. Super. App. Div. 1961)(emphasis added)). The substantial factor test has replaced the "but for" causation test in strict liability contexts precisely because in design defect cases it is typically a matter of speculation whether the presence of a safety device would, in a given instance, have actually prevented a harm. See Yukon Equip., Inc. v. Gordon, 660 P.2d 428, 433 (Alaska 1983)(stating that "but for" causation jury instruction was improper in manufacturer's design defect case), overruled on other grounds, Williford v. L.J. Carr Invs., Inc., 783 P.2d 235 (Alaska 1989).
Our review of Pennsylvania law dictates that a plaintiff's conduct may be introduced to undermine a plaintiff's claim that the defect caused his accident only insofar as the plaintiff's conduct was unforeseeable to the defendant, even where the plaintiff played some part in setting the accident in motion. Evidence concerning a decedent's possible role in bringing about his or her own death is admissible only to support defendant's claim that the conduct was so "extraordinary" or "[un]foreseeable" that it would be unjust to hold the defendant liable for the harm. See. e.g., Holloway v. J.B. Sys., Ltd., 609 F.2d 1069, 1074 (3d Cir. 1979). When courts admit such testimony, they must elucidate the limited permissible uses of that evidence, as it is highly susceptible to misinterpretation by the jury.
In determining causation, therefore, the task of the jury is not simply to determine whether the plaintiff played a part in causing the accident. Rather, the threshold question is whether the plaintiff's actions were foreseeable. As noted above, the manufacturer is responsible for making the product safe for all foreseeable uses. Decorative Precast Stone Erectors, Inc. v. Bucyrus-Erie Co., 493 F. Supp. 555, 557 (W.D. Pa. 1980), aff'd, 642 F.2d 441 (3d Cir. 1981), informs us that under Pennsylvania products liability law, if both a manufacturer's defect and a plaintiff's conduct are found to be proximate causes, the plaintiff will recover unless the defendant meets the burden of proving that plaintiff's conduct was so unforeseeable as to constitute a superseding cause. See infra, Sec. III.A.3. If foreseeable, the jury must find for the plaintiff unless it finds that the defect did not play even a substantial, or more than negligible, role in causing the plaintiff's injury. In Schell, 567 F.2d at 1263 (citing Barkewitch v. Billinger, 247 A.2d 603, 605)(Pa. 1968)), we explained that recovery is allowed where the absence of a safety device caused an injury of the type that could be expected from the foreseeable use of the product. *fn3 The element of causation, while required, is not the primary focus of section 402A cases. Causation may be shown by process of elimination or circumstantial evidence. In cases dealing with product malfunction, for instance, Pennsylvania appellate courts have consistently reversed trial courts for not sending to the jury cases in which causation had not been directly demonstrated. See, e.g., Ducko v. ...