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VAN BUSKIRK EX REL. VAN BUSKIRK v. WEST BEND CO.

June 24, 1999

GERALD JOSEPH VAN BUSKIRK, III, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, GERALD J. VAN BUSKIRK, JR. AND LORI ANN VAN BUSKIRK, AND IN THEIR OWN RIGHT, PLAINTIFFS,
v.
THE WEST BEND COMPANY DEFENDANT, V. LORI ANN VAN BUSKIRK ADDITIONAL DEFENDANT.



The opinion of the court was delivered by: Robert F. Kelly, District Judge.

MEMORANDUM

Presently before the Court is the Motion of Defendant, The West Bend Company ("West Bend" or "Defendant"), for Summary Judgment against Plaintiffs. Plaintiffs instituted this product liability action against West Bend for injuries sustained by their six and one-half month old son, Gerald Joseph Van Buskirk, III ("Gerald"), on February 3, 1995. Plaintiffs claim design defects in West Bend's Four Cup Deep Fryer ("Four Cup Fryer") proximately caused Gerald's injuries. For the reasons which follow, West Bend's Motion is granted.

I. FACTS.

On February 3, 1995, Mrs. Van Buskirk was home with Gerald and decided to make herself lunch consisting of chicken nuggets and french fries. She placed the french fries in the Four Cup Fryer atop a microwave oven which sat on a wheeled microwave cart next to the kitchen counter. Mrs. Van Buskirk previously used the Four Cup Fryer on the counter top,*fn1 but on this occasion, she placed it on the microwave oven.

The final time she checked whether the food was cooked, she placed Gerald in his walker in the living room, went back into the kitchen, and heard a whooshing noise behind her, indicating Gerald had entered the kitchen in his walker. Without turning around, she told him to leave the kitchen and then heard him scream. Immediately, she turned and saw his head and upper torso covered in hot oil. She picked him up from his walker and ran water over his head in the sink. Gerald sustained severe burns to his head and upper torso.

II. STANDARD.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505.

To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine issue of material fact, then summary judgment is proper. Id. at 322, 106 S.Ct. 2548; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).

In the product liability context, the court must decide, as a threshold matter, "whether the evidence is sufficient, for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous, not whether the evidence creates a genuine issue of fact for the jury." Surace v. Caterpillar, Inc., 111 F.3d 1039, 1049 n. 10 (3d Cir. 1997).

III. DISCUSSION.

Pennsylvania law governs this case because, in a diversity action, the applicable law is the substantive law of the state where the court is sitting. Wallace v. Tesco Eng'g, Inc., No. 94-2189, 1996 WL 92081, *1 (E.D.Pa. Mar.1, 1996) (citation omitted), aff'd, 101 F.3d 694 (3d Cir. 1996). The Pennsylvania Supreme Court adopted the Restatement (Second) of Torts, section 402A ("section 402A"), and made it a part of Pennsylvania's substantive law. Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966); Restatement (Second) of Torts § 402A. Section 402A makes a seller of products "strictly liable for the physical harm caused by a product sold in a defective condition unreasonably dangerous to the user." Jordon by Jordon v. K-Mart Corp., 417 Pa. Super. 186, 189, 611 A.2d 1328, 1330 (1992) (citing Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 94, 337 A.2d 893, 899 (1975)). Section 402A requires the plaintiff to prove that: (1) the product was defective; (2) the defect existed when it left the hands of the manufacturer; and (3) the defect caused the harm. Ellis v. Chicago Bridge & Iron Co., 376 Pa. Super. 220, 226, 545 A.2d 906, 909 (1988) (citing Berkebile, 462 Pa. at 98, 337 A.2d at 898).

A. INTENDED USERS OF THE FRYER.

In order for section 402A strict liability to apply in this case, Gerald has to be an intended user of the Four Cup Fryer. "In strict liability, the focus is on a defect in the product, regardless of fault, and that defect is determined in relation to a particular subset of the general population: the intended user who puts the product to its intended use." Griggs v. BIC Corp., 981 F.2d 1429, 1438 (3d Cir. 1992) (citation omitted). Despite Mrs. Van Buskirk's testimony at her deposition that she was not preparing the french fries for her son's use and enjoyment, but rather for herself, (Dep. of Lori Ann Van Buskirk of 3/14/97 at 81, 101), Plaintiffs state in their response to Defendant's Motion for Summary Judgment that Mrs. Van Buskirk was preparing the french fries "for her son's lunch. That fact is not in dispute." (Brief of Pls. in Supp. of Resp. in Opp'n to Mot. Summ. J. of Def. at 11-12.) Just as "[n]o one would reasonably anticipate that a two year old [child] would be using or given free access to a fondue pot" Rock v. Oster Corp., 810 F. Supp. 665, 667 n. 1 (D.Md. 1991), aff'd, 983 F.2d 1057, 1993 WL 5896 (4th Cir. 1993), it is unreasonable to anticipate that a six and one-half month old child would be using a deep fryer. This Court finds persuasive the statement that "[a]ny ordinary person could expect a child to injure himself, . . . if left unattended near a container of hot food. . . . [W]hen a small child is left unattended and within reach of potentially harmful items such as knives, appliances or containers of hot food or liquids, accidental injuries can occur." Kelley By and Through Kelley v. Rival Mfg. Co., 704 F. Supp. 1039, 1044 (W.D.Okla. 1989) (child burned pulling crock pot containing hot baked beans from kitchen table). Plaintiffs contend that because there was no age restriction in the instruction booklet, children could use the Four Cup Fryer. (Brief of Pls. in Supp. of Resp. in Opp'n to Mot. Summ. J. of Def. at 13.) This Court is not persuaded by Plaintiffs' argument and finds that it is not reasonable to anticipate that a six and one-half month old child would be using or given free access to a deep fryer.

Plaintiffs, in arguing that Gerald is a user of the Four Cup Fryer, rely on the definition of "user" found in the commentary to section 402A. A user is defined therein as "includ[ing] those who are passively enjoying the benefit of the product, as in the case of passengers in automobiles or airplanes, as well as those who are utilizing it for the purpose of doing work upon it. . . ." Riley v. Warren, 455 Pa.Super. at 395, 688 A.2d at 227; Restatement (Second) of Torts ยง 402A, comment (l). Thus, Plaintiffs contend that Gerald was a "passive beneficiary" of the Four Cup Fryer and compare Gerald to a passenger in an automobile who passively enjoys the benefit of the motor vehicle. (Brief of Pls. in Supp. of Resp. in Opp'n to Mot. Summ. J. of Def. at 12.) Defendant correctly argues ...


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