consumer; (4) defective condition, unreasonably dangerous; and
(5) causation — that the product caused physical harm to the
ultimate user or consumer or to his property." Riley v. Warren
Mfg., Inc., 455 Pa. Super. 384, 395, 688 A.2d 221, 226 (1997)
(citation omitted). Courts applying Pennsylvania law must
"determine, initially and as a matter of law, whether the product
in question is `unreasonably dangerous.'" Riley v. Becton
Dickinson Vascular Access, Inc., 913 F. Supp. 879, 881 (E.D.Pa.
1995) (citations omitted). Otherwise, "[w]ithout a showing of a
defect, the supplier of a product has no liability under Section
402A." Jordon, 417 Pa.Super. at 189, 611 A.2d at 1330 (citing
Berkebile, 462 Pa. at 94, 337 A.2d at 899).
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 § 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 that Gerald was not "passively
enjoying" the benefits of the deep fryer since he was only old
enough to eat Gerber jar foods and cereal (Dep. of Lori Ann Van
Buskirk of 3/14/97 at 80), not french fries.
Gerald was not a passive beneficiary, he was a bystander. "Thus
far the courts, in applying the rule stated in this Section
[402A], have not gone beyond allowing recovery to users and
consumers. . . ." Riley v. Warren, 455 Pa.Super. at 395, 688
A.2d at 227. As a bystander, Gerald is precluded from recovery
under section 402A because "[c]asual bystanders, and others who
may come in contact with the product, as in the case of employees
of the retailer, or a passer-by injured by an exploding bottle,
or a pedestrian hit by an automobile, have been denied recovery."
Id. at 397, 688 A.2d at 227. Because Gerald was not an intended
user of the Four Cup Fryer, strict liability does not apply and
Defendant's Motion for Summary Judgment is granted. For purposes
of this Motion, however, this Court must also determine whether
the fryer was unreasonably dangerous or defective under the facts
B. UNREASONABLY DANGEROUS PRODUCT: AZZARELLO ANALYSIS.
The Pennsylvania Supreme Court set forth the standard for
determining whether a product is "unreasonably dangerous" when it
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.
It is a judicial function to decide whether, under
plaintiff's averment of the facts, recovery would be
justified; and only after this judicial determination
is made is the cause submitted to the jury to
determine whether the facts of the case support the
averments of the complaint.
Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 558,
391 A.2d 1020, 1026 (1978). Thus, Pennsylvania law requires an initial
determination by this Court whether strict liability applies,
decided under the following seven factor risk-utility analysis:
(1) the usefulness and desirability of the product —
its utility to the user and the public as a whole;
(2) the safety aspects of a product — the likelihood
that it will cause injury and the probable
seriousness of the injury;
(3) the availability of a substitute product which
would meet the same need and not be as unsafe;
(4) the manufacturer's ability to eliminate the
unsafe character of the product without impairing its
usefulness or making it too expensive to maintain its
(5) the user's ability to avoid danger by the
exercise of care in the use of the product;
(6) the user's anticipated awareness of the dangers
inherent in the product and their avoidability,
because of general public knowledge of the obvious
condition of the product, or of the existence of
suitable warnings or instructions; and
(7) the feasibility, on the part of the manufacturer,
of spreading the loss of setting the price of the
product or carrying liability insurance.
Fitzpatrick v. Madonna, 424 Pa. Super. 473, 476, 623 A.2d 322,
324 (1993) (citing Dambacher by Dambacher v. Mallis,
336 Pa. Super. 22, 50 n. 5, 485 A.2d 408, 423 n. 5 (1984) and John W.
Wade, On the Nature of Strict Tort Liab. for Prods., 44
Miss.L.J. 825, 837-38 (1973)). Even minors like Gerald must prove
the requisite elements of causation and show a defect which makes
the product unreasonably dangerous. Colosimo v. May Dep't Store
Co., 466 F.2d 1234 (3d Cir. 1972). An examination of each
risk-utility factor follows.