The opinion of the court was delivered by: Robert F. Kelly, District Judge.
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.
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.
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).
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).
In order for section 402A to apply, therefore, there must be:
"(1) a product; (2) a sale of that product; (3) a user or
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 ...