The opinion of the court was delivered by: Judge Conti
MEMORANDUM ORDER ON PLAINTIFFS' MOTIONS IN LIMINE
I. Plaintiffs' Motion in Limine to Exclude Evidence relating to the "Negligent Conduct" of William Sohngen, and Michael Durish
Plaintiffs state that they anticipate that the Defendants may attempt to argue that the Plaintiff-husband and/or the Plaintiff-husband's employer, Michael Durish, were negligent in allegedly improperly setting the angle of the ladder, in using the ladder when the pads had allegedly previously come off, in allegedly deviating from the ladder's on-board instructions, in allegedly not checking for damaged/missing components, or in allegedly not having a co-worker hold the ladder. Plaintiffs argue that any attempt to inject comparative negligence principles into this strict products liability cause of action is improper as comparative negligence is not a defense to a product liability action. In addition, Plaintiffs argue that permitting contributory negligence evidence in a strict liability action defeats the very premise upon which the doctrine of strict liability is based. Plaintiffs do concede that evidence of Plaintiffs' ordinary negligence may be admitted if it is shown that the accident was solely the result of Plaintiffs' conduct and not related in any way to alleged defects in the product. Plaintiffs argue that because the defense's expert reports do not specifically state that negligent conduct was the sole cause of the accident, Defendants cannot attempt to inject negligence principles into this strict liability case.
Defendants respond that Plaintiffs' continuing prosecution of their negligence claims permits the introduction of negligence principles as they relate to that claim. Further, as to the strict liability claim, Defendants contend that they intend to offer evidence of the causal fault of Plaintiff-husband and Durish.
First, Plaintiffs' negligence count permits the introduction of evidence relating to negligence principles as they relate to that claim. See 42 Pa. Con. Stat. Ann. § 7102.
Second, as to Plaintiffs' strict liability claim, Plaintiffs are correct in their assertion that negligence concepts may not be introduced into a strict liability case. Kimco Development v. Michael D's Carpet, 637 A.2d 603 (Pa. 1993); Childers v. Power Line Equip. Rentals, 681 A.2d 201 (Pa. Super. 1996). The Pennsylvania courts, however, have carved out exceptions to this general rule when a plaintiff's conduct relates to the issue of causation, a necessary element in a strict liability case. See Childers, 681 A.2d at 207; Walton v. Avco Corp., 610 A.2d 454, 458 (Pa. 1992).
Here, Defendants submit that they will show "that no condition of the extension ladder, as supplied by Defendants, caused or contributed to Mr. Sohngen's accident. Rather, this accident resulted from the failure to use the ladder as directed by its on-product warnings." (Defendants' Omnibus Response in Opposition to Plaintiffs' Motions in Limine, Doc. No. 76 at 2) (footnote omitted). This is precisely the set of circumstances surrounding a plaintiff's conduct that directly impacts the issue of causation and recognized by the Pennsylvania courts as admissible in a strict liability case. See Childers, 681 A2d at 207; Surowiec v. General Motors Corp., 672 A.2d 333 (Pa. Super. 1996); Gallagher v. Ing, 532 A2d 1179 (Pa. Super. 1987); Bascelli v. Randy, Inc., 488 A.2d 1110 (Pa. Super. 1985).
In addition, the fact that Defendants' experts do not opine that Plaintiffs' conduct was the sole cause of the accident is not a basis for excluding this evidence. Causation is an issue for the fact-finder, not an expert witness. See Bascelli, 488 A.2d at 1113.
Therefore, Plaintiffs' Motion in Limine to Exclude Evidence relating to the "Negligent Conduct" of William Sohngen, and Michael Durish is denied.
II. Plaintiffs' Motion in Limine to Exclude Evidence that Plaintiff-Husband "Misused" the Ladder
Plaintiffs state that they anticipate that the defense may attempt to argue that the Plaintiff-husband "misused" the ladder by allegedly improperly setting the angle of the ladder, using the ladder when the pads had allegedly previously come off, allegedly deviating from the ladder's on-board instructions, allegedly not checking for damaged/missing components, or in not having a co-worker hold the ladder. Plaintiffs again argue that these allegations inject contributory negligence concepts (masquerading as misuse) into this strict liability case.
Defendants again respond that they intend to introduce evidence that Plaintiff-husband erected the ladder at too shallow an angle, which reduced the ability of the ladder's rubberized soles to retard movement at the ladder's base. Defendants continue that Plaintiffs cannot counter, or exclude this evidence, with evidence or argument that erecting the ladder at too shallow an angle is foreseeable, and therefore does not constitute misuse of the ladder. Defendants indicate that this argument will fail because a foreseeable misuse of a product will not support a strict liability claim under Pennsylvania law. See Pennsylvania Depart't of Gen. Servs. v. United States Mineral Products Co., 898 A.2d 590, 600-601 (Pa. 2006). Instead, Defendants insist that this evidence is relevant to show that Plaintiff-husband's conduct was the sole cause of the accident and thereby admissible in a strict products liability claim. Further, as to Plaintiffs' negligence claim, Defendants contend that this evidence is relevant to show that Plaintiff-husband engaged in conduct that the ladder's warnings specifically cautioned against.
Plaintiffs concede that "Pennsylvania Courts have unequivocally stated that evidence of a plaintiff's misuse of a product consisting of his ordinary negligence is not admissible with regard to causation in a strict liability action unless it is shown to have been the sole cause of the accident." (Plaintiffs' Motions in Limine, Doc. No. 72 at ¶ 27, citing Charlton v. Toyota Industrial Equip., 714 A2d 1043, 1047 (Pa. Super. 1998); Wilson v. Vermont Castings, Inc., 170 F.3d 391, 396 (3d Cir. 1999).) As discussed above, this is precisely the theory that Defendants intend to pursue during trial: Plaintiffs' failure to comply with on-product warnings, as opposed to any condition of the product, was the sole cause of the Plaintiff-husband's accident.
Therefore, Plaintiffs' Motion in Limine to Exclude Evidence that Plaintiff-Husband "Misused" the Ladder is denied.
III. Plaintiffs' Motion in Limine to Exclude Evidence relating to the Plaintiff-Husband's alleged Assumption of the Risk
Plaintiffs also anticipate that the Defendants will attempt to assert the defense of assumption of the risk. Plaintiffs argue that Defendants can present no evidence to suggest that Plaintiff-husband subjectively knew of the existence of a defect and the danger created by it.
Defendants respond that Plaintiff-husband's assumption of the risk is a proper defense in both negligence and strict liability actions. Defendants also contend that a plaintiff's subjective assumption of the risk may be evidenced by circumstantial evidence, and that here, Plaintiff-husband's training on the appropriate manner and angle at which to erect an extension ladder evidences his subjective appreciation of the danger inherent in erecting the ladder at an angle other than that described on the ladder warning.
In Pennsylvania, voluntary assumption of the risk is an affirmative defense in a products liability case. Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 901 (1975). In order to submit this theory to a jury, a defendant must produce evidence that a plaintiff fully understood the risk in issue, and yet voluntarily chose to encounter the risk. Mucowski v. Clark, 590 A.2d 348, 350 (Pa. Super. 1991); Fish v. Gosnell, 463 A.2d 1042, 1048 (Pa. Super. 1983). A plaintiff's knowledge and understanding of the risk may be shown by circumstantial evidence. Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652, 657 (3d Cir. 1989); Robinson v. Goodrich Tire Co., 664 A.2d 616, 618 (Pa. Super. 1995); Mucowski, 590 A.2d at 350. Proving subjective awareness of a risk by circumstantial evidence requires evidence "sufficient to permit an inference that the plaintiff was aware [of] and understood the risk." Wagner, 890 F.2d at 657 (quoting Staymates v. ITT Holub Industries, 527 A.2d 140, 146 (Pa. Super. 1987)). "To imply assumption of the risk from the plaintiff's conduct, the conduct 'must be such as fairly to indicate that the plaintiff is willing to take his chances.'" Wagner, 890 F.2d at 657 (quoting Restatement (Second) of Torts § 496C, comment h.) "Whether the plaintiff knows of the existence of the risk and whether he appreciates its magnitude and unreasonable character are questions of fact to be determined by a jury." Wagner, 890 F.2d at 657 (citing Staymates, 527 A.2d at 146).
The record reflects evidence of Plaintiff-husband's training sufficient to permit an inference that Plaintiff-husband knew of the dangers associated with erecting an extension ladder at an improper angle. See Wagner, 890 F.2d at 657-58 (plaintiff's training alerted him to dangers in not using available clip -on air chuck in order to avoid personal injury when inflating wheel assembly from close range).
Therefore, Plaintiffs' Motion in Limine to Exclude Evidence relating to the Plaintiff-Husband's alleged Assumption of the Risk is denied.
IV. Plaintiffs' Motion in Limine to Exclude Evidence Relating to "Open and Obvious"
Plaintiffs indicate that they expect Defendants to argue that the condition of the shoes was "open and obvious" and therefore there is no duty to warn of the danger. The parties agree that unlike the defense of assumption of the risk, a determination of whether a danger is open and obvious is an objective one; that is, what would be known by the ordinary consumer who purchases or uses the product. Plaintiffs anticipate that the defense appears to be that because Plaintiff-husband could see the condition of the pads, that the Defendants had no duty to warn him that the condition was dangerous. Plaintiffs argue that the dangerous condition of the pads was not open and obvious.
Defendants reiterate their position that no condition of the ladder as supplied by them, caused or contributed to Plaintiff-husband's accident. Instead, Defendants emphasize that Plaintiff-husband's accident resulted from failures to use and erect the ladder in accordance with on-product warnings and Plaintiff-husband's prior ...