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06/17/97 FRANCIS SPINO AND LOUISE SPINO v. JOHN S.

June 17, 1997

FRANCIS SPINO AND LOUISE SPINO, H/W, APPELLANTS
v.
JOHN S. TILLEY LADDER COMPANY, AND M.A. BUTEN AND SON, INC., APPELLEES



Appeal from the Superior Court Order at 03175 Phila. 1994 entered February 9, 1996 affirming the Court of Common Pleas, Philadelphia County, at October Term, 1988, No. 913 Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Cappy files a Concurring opinion.

The opinion of the court was delivered by: Nigro

JUSTICE NIGRO

DECIDED: June 17, 1997

The issue before this Court is whether the trial court erred when it admitted "lack of prior claims" evidence. We conclude the Superior Court properly affirmed the trial court's decision to admit such evidence, and therefore, we affirm.

Appellants, Francis and Louise Spino ("the Spinos") purchased a type 3 ordinary household ladder in 1986 from a paint store. The ladder was manufactured by Appellee John S. Tilley Ladder Company ("Tilley") and was designed to accommodate ordinary household use restricted to a 200 pound weight bearing load. *fn1 Francis Spino testified that he purchased the ladder for a painting project and later used the ladder for household projects. Louise Spino testified that she used the ladder two or three times a year to wash windows or hang curtains.

In November 1986, Louise Spino brought the ladder into her kitchen, placed a bucket of water on the ladder shelf and climbed the ladder. At trial, Mrs. Spino testified that while she reached her arm up in an attempt to clean the kitchen ceiling, she heard a cracking sound, the ladder shook, and the next thing she remembers she was on the floor. Mrs. Spino was then taken to the emergency room and underwent hospitalization and surgery to repair a fractured tibia and fibula. *fn2 As a result, the Spinos instituted a product liability action against Appellees for Louise Spino's injuries and Francis Spino's loss of consortium. It was their assertion that the ladder leg cracked since it lacked an anti-split device. The Spinos initially asserted two theories of liability, common law negligence and strict liability pursuant to § 402(A), Restatement (Second) of Torts. At the outset of trial, Appellants dismissed M.A. Buten and Son, Inc. from the case and abandoned any negligence claims, proceeding against Tilley on strict liability.

Prior to trial, the Spinos filed a Motion in Limine seeking preclusion of the admission of evidence provided by Tilley's President, Robert Howland. Mr. Howland was expected to testify that there had been no similar accidents or claims with respect to this particular product in his thirty years of employment with the company and neither he, nor anyone at the company, had ever been informed of a failure similar to the one alleged by the Spinos. The Spinos maintained that allowing such evidence impermissibly injected negligence principles into a § 402(A) strict liability products liability action, and therefore, it is per se inadmissible. In response, Tilley maintained that the evidence was relevant to prove that the ladder had not failed as alleged and was not intended to prove that Tilley had been free of negligence in continuing to manufacture and market the type 3 ladder without providing an anti-split device.

The trial court denied the motion, finding that since this was a product design case, Mr. Howland's testimony constituted relevant rebuttal evidence to the Spinos' claim that the alleged defect was common to all type 3 household ladders manufactured by Tilley. Moreover, the trial court noted that "a sufficient proffer was made during the course of trial, in camera, to satisfy the Court of the reliability of Mr. Howland's testimony." (Trial Court Opinion dated 12/5/94, p. 13). *fn3 After an in camera review, the trial Judge found that Tilley maintained a chronological log of reported claims covering Tilley's ladder products, including the type 3 ladder. The court was satisfied that the log was an authentic business record and was "comprehensive in its recording of all reports and claims of problems which the Company had received from any source." *fn4 Id. None of the log entries reported a leg split of a type 3 ladder. *fn5

At trial, the parties presented conflicting expert testimony. The Spinos' expert maintained that a split in the ladder leg occurring at the time of the accident caused the injuries, and further, the ladder's design was defective in its failure to include an anti-split device of the type found on Tilley's commercial and construction ladders. Furthermore, their expert testified that the lack of the anti-split device in the design of Tilley's type 3 household ladder rendered the ladder unsafe for its intended use. In contrast, Tilley's expert witness testified that the type 3 household ladder was not defectively designed, and based upon his examination of the same ladder, the crack in the ladder leg had occurred at some time prior to the accident.

At the Conclusion of a three-day trial before the Honorable John W. Herron, the jury returned a verdict in favor of Tilley, finding there was no defect in the ladder which made it unsafe for its intended use. Following the verdict, the Spinos filed a Motion for Post-Trial Relief which the trial court denied. On appeal, the Superior Court affirmed, finding that Howland's "no prior claims" evidence was relevant as to the issue of causation and the trial Judge properly admitted such testimony. Spino v. John S. Tilley Ladder Company, 448 Pa. Super. 327, 671 A.2d 726 (1996). This Court granted the Spinos' Petition for Allowance of Appeal limited to the issue of whether the trial court erroneously allowed Tilley to introduce the "no prior claims" evidence of leg splitting.

Instantly, the Spinos argue that admission of the no prior claims testimony improperly injected negligence issues of due care into a strict liability action, warranting the award of a new trial. *fn6 Further, they argue that this Court should adopt a per se rule whereby absence of prior claims evidence is inadmissible in § 402(A) actions. In opposition, Tilley argues the lack of prior claims evidence should not be per se inadmissible as it is relevant to rebut evidence of causation. Tilley maintains that Mr. Howland's testimony was offered solely to rebut the Spinos evidence as to causation and was admissible for that purpose.

Evidence of due care by a defendant is both irrelevant and inadmissible in a products liability case since a manufacturer may be strictly liable even if it used the utmost care. see Lewis v. Coffing Hoist Division, Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590 (1987)(industry standards and practices are inadmissible in strict liability actions because they improperly inject negligence principles); Majdic v. Cincinnati Machine Company, 370 Pa. Super. 611, 537 A.2d 334 (1988). However, while evidence can be found inadmissible for one purpose, it may be admissible for another. Bialek v. Pittsburgh Brewing Company, 430 Pa. 176, 185, 242 A.2d 231, 235 (1968). *fn7

It is well-established that the concept of strict liability allows a plaintiff to recover where a product in "a defective condition unreasonably dangerous to the consumer or user" causes harm to the plaintiff. § 402(A), Restatement (Second) of Torts; see also Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966). Pennsylvania law requires that a plaintiff prove two elements in a product liability action: that the product was defective, and that the defect was a substantial factor in causing the injury. Berkebile v. Brantly, 462 Pa. 83, 337 A.2d 893 (1975). Specifically, in a design defect case, the question is whether the product should have been designed more safely. Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984), appeal denied 508 Pa. 643, 500 A.2d 428 (1985).

In a plaintiff's case-in-chief in a product liability action, our appellate courts have analyzed the admissibility of prior accidents testimony and have found such evidence relevant and admissible. In DiFrancesco v. Excam, Inc., 434 Pa. Super. 173, 185, 642 A.2d 529, 535 (1994), appeal dismissed as improvidently granted 543 Pa. 627, 674 A.2d 214 (1996), the Superior Court determined that evidence concerning other accidents involving the instrumentality that causes the present harm is relevant to show the product was unsafe, to prove causation, and/or to show that a defendant had actual or constructive knowledge of a condition that could cause harm. However, while such evidence may be admissible, the other accidents must be sufficiently similar to plaintiff's accident. Lynch v. McStome & Lincoln Plaza Assoc., 378 Pa. Super. 430, 548 A.2d 1276 (1988). Similarly, in Majdic, 370 Pa. Super. at 623, 537 A.2d at 340, the Superior Court affirmed the trial court's refusal to admit into evidence prior accidents involving the product at issue since plaintiff had failed to demonstrate that those accidents were sufficiently similar to plaintiff's accident. The Majdic Court further emphasized that the admission of such evidence is "tempered by judicial concern that the evidence may raise ...


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