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Berrier v. Simplicity Manufacturing

April 21, 2009; as amended April 23, 2009


Appeal from the United States District Court for The Eastern District of Pennsylvania (Civil Action No. 04-cv-00097). District Court: Hon. Legrome D. Davis.

The opinion of the court was delivered by: McKEE, Circuit Judge


Argued: January 8, 2007

Before: McKEE, AMBRO, and FISHER Circuit Judges


The primary issue in this appeal is whether Pennsylvania's strict products liability law extends to a child who was injured when her grandfather backed over her foot while using a riding mower that lacked "back-over" protection. The Pennsylvania Supreme Court has never expressly determined if one who is merely a bystander and not a user of a product can bring a products liability claim against a manufacturer to recover for injuries that occur while an intended user is using the manufacturer's product. We predict that if the Pennsylvania Supreme Court were confronted with this issue, it would adopt the Restatement (Third) of Torts, §§ 1 and 2, and thereby afford bystanders a cause of action in strict liability under the circumstances here.*fn1 Accordingly, we will reverse the district court's grant of summary judgment in favor of the manufacturer on the strict products liability claim. We will also reverse the district court's grant of summary judgment in favor of the manufacturer on the plaintiffs' negligence claim.


A. The Accident Wayne Berrier and Brenda Gregg are the parents of Ashley Berrier, a minor. On May 7, 2003, Ashley was visiting her grandparents at their home in Honeybrook, Pennsylvania. Her grandfather, Melvin Shoff, was mowing his yard with his Simplicity Regent Model riding mower. Shoff had purchased the mower new from a retailer in 1994.

According to Shoff, Ashley came into the yard and attempted to hand him a flower while he was mowing. Shoff disengaged the mower blades and told her to go inside. Believing she had done as instructed, Shoff then re-engaged the blades and placed the mower in reverse to turn the mower around. As he was backing up with the blades engaged, he backed over Ashley's left leg. Although Ashley received prompt medical attention at a prominent children's hospital, her left foot had to be amputated.

Thereafter, Ashley's parents brought this action in their own right and on Ashley's behalf (plaintiffs are collectively referred to as the "Berriers") against Simplicity. They argued that Simplicity was liable for negligently designing the mower and also strictly liable because the design was defective. Both claims centered on the absence of any back-over protection, such as a "no mow in reverse" device or roller barriers.

The Simplicity mower Shoff was using was a Regent 12 HP Hydrostatic lawn tractor, model number 1692403. It had been manufactured in 1994 and was equipped with a 36-inch steel mower deck that housed two rotating blades. The mower was intended to be operated only by an adult and designed accordingly. The operator could control the mower's movement and blade engagement. The operator could therefore move the mower forward or in reverse, with or without the blades engaged. The blades could be engaged or disengaged using a "PTO [power take off] lever" on the left side of a control panel. No physical barriers obstructed the operator's view. Information that accompanied the mower clearly warned that it should not be operated while anyone was within the mower's area of operation.

Simplicity equipped the mower with three electrical safety systems to prevent the engine from starting unless the transmission and blade controls are in "stopped" positions. This stopped the engine and blades if the operator left the seat without disengaging the blades, and the configuration automatically stopped the engine if the operator left the seat without first setting the parking brake. However, the mower was not equipped with any "no mow in reverse" ("NMIR") device nor any kind of roller barrier at the rear of the mowing deck.*fn2

The mower came equipped with warnings and instructions printed in bold black letters against a yellow background, located at the operator's position on the machine that warned of "serious injury or death" that could occur if the machine was operated "WHEN CHILDREN OR OTHERS ARE AROUND." Additional warnings and safety rules pertaining to the danger of amputation and the risk of accident were placed on the deflector shield. Similar warnings were also printed in the Operator's Manual, and Shoff admitted that he read and understood them.

B. History of Back-Over Protection on Riding Mowers

In the 1970's and 80's, a series of studies warned about the extreme dangers associated with operating riding mowers in reverse with blades engaged. These studies were conducted by the Consumer Product Safety Commission ("CPSC")*fn3 and others. The studies cited back-over blade contact accidents, comprising between nine and eleven percent of reported accidents involving riding mowers, as the most tragic type of lawnmower accidents. These accidents almost always involved children under the age of five, and almost always resulted in amputation or death. Calculations based on these studies demonstrated that back-over accidents happened at a rate of more than 100 per year, and one such accident occurred for each 5-6,000 riding mowers sold in the United States. App. 550, 555. In December of 1974, a study commissioned by the CPSC recommended that all riding mowers be equipped with a mechanism that would automatically stop the blade while the mower was in neutral or reverse. The Consumers' Union of the United States ("CU") echoed the call for this requirement in a proposed standard issued on July 17, 1975.*fn4

In 1977, the CPSC published a "Proposed Safety Standard" in the Federal Register that would have required all riding mowers to include back-over protection in the form of a device that would disengage the blades while the mower was in reverse. In 1984, following requests from the industry trade association, certain sections of the proposed mandatory CPSC requirements were withdrawn. The withdrawn sections included the requirement that an NMIR device be incorporated into the design of riding mowers. The withdrawal was premised on the CPSC's belief that a voluntary standard developed by the industry with comment and assistance by the CPSC would be "a more efficient use of the commission's resources." App. 575.

Nonetheless, the CPSC continued to recognize that "based on engineering judgment, riding mowers meeting these requirements [including reverse operations with the blade disengaged] should be safer than those that do not." App. 576. Accordingly, the CPSC sent a letter to the Outdoor Power Equipment Institute ("OPEI") requesting that an NMIR feature with an option for manual override be included in any revised American National Standards Institute ("ANSI") standard for riding mowers.*fn5 The Commission's rationale included the following statement:

These provisions offer a reasonable means to begin to address young children backed over during reverse mowing. While these accidents are infrequent, the population at risk and the severe mental trauma to the child's family fully support the need to take immediate steps . . . . Overall, the requirement can address the serious back up hazard while still permitting maximum freedom to designers.

App. 548-49.

In 1994, the CPSC further articulated industry concerns regarding the efficacy of NMIR devices, including issues relating to how fast the blade should stop to avoid blade contact injuries, whether consumers would accept a mower that does not mow while backing up, and whether the safety change could be incorporated into the product without diminishing customer satisfaction. Those and similar concerns ultimately lead to the defeat of attempts to incorporate a mandatory NMIR design into riding mowers.

C. The Effectiveness of Back-Over Protection Devices

In the wake of discussions about lawn mower design, different types of NMIR devices have been designed to prevent the motor from powering the blade if an operator shifts a riding mower into reverse.*fn6 In fact, in 1976, Simplicity received two patents for mechanical and electrical interlocks that prevent blades from spinning while a riding mower is backing up. App. 588-89.

NMIR devices often include an "override" feature that conditions reverse mowing upon a series of maneuvers (e.g., an override button) that compel the operator to focus his/her attention on backing up and take some action to power the blades while the mower is operating in reverse. However, even with such an option, the blades will automatically stop when the mower is shifted into reverse in normal operation. App. 557.

In 2003, the new ANSI standards, drafted by OPEI, required an NMIR design. App. 578-80. Thereafter, in September 2004, Simplicity incorporated NMIR devices into its riding mowers.*fn7

D. Alternative Designs Suggested by the Berriers

The Berriers suggest several alternative designs that could have been incorporated into Simplicity's mower. The first is an NMIR feature that prevents the blades from being powered by the motor when the mower is shifted into reverse. App. 374. However, even with loss of power, momentum causes the blades to continue to spin for a short time as the mower is backing up. Id. The feature requires disengagement and re-engagement of the blades each time the mower reverses direction. App. 35. This design was being used by one lawn mower manufacturer, MTD Products Inc., when Shoff's mower was manufactured.*fn8 App. 767.

The Berriers also suggest an NMIR feature that utilizes the aforementioned "override" switch that would allow the operator to choose to mow in reverse as needed or for an entire mowing session. ("Override Device") App. 375. This design is now required by the 2003 ANSI standards. App. 579.

The final alternative design suggested by the Berriers is roller-guards on the back of the mowing deck. They create a barrier that greatly reduces the risk of any "foreign object" slipping under the deck (i.e. blade housing) as the mower is backing up. A Simplicity engineer and the Berriers' design expert both testified that roller-barriers reduce injuries. App. 593-96, 553-54. In fact, Simplicity asked OPEI to adopt this design based on testing it had conducted that supported the effectiveness of the roller-barrier in preventing back-over injuries.*fn9 App. 593-94, 597-98.


Following Ashley's injury, the Berriers filed this action against Simplicity in the Court of Common Pleas of Philadelphia County. The complaint contained one count of strict products liability based on Section 402A of the Restatement (Second) of Torts (Count I), and a second count sounding in negligence (Count II). As noted earlier, both counts alleged a cause of action based on an allegedly defective design.*fn10

Simplicity removed the case to the district court based on diversity of citizenship, 28 U.S.C. § 1332, and filed an answer. Sometime thereafter, Simplicity filed a third-party complaint against Mr. and Mrs. Shoff, which was later amended, alleging claims of negligent supervision and of failure to follow instructions. Simplicity's third-party complaint sought contribution from the Shoffs in the event that it was found liable.

In time, Simplicity and the Shoffs, the third-party defendants, filed motions for summary judgment. Simplicity sought summary judgment on the strict liability and negligence claims. The Shoffs sought partial summary judgment on the negligent supervision and failure to follow instructions contribution claims.

The district court granted summary judgment to Simplicity on both counts and dismissed the Berriers' complaint. Berrier v. Simplicity Corp., 413 F. Supp.2d 431 (E.D. Pa. 2005). The court ruled that Pennsylvania strict products liability law does not permit recovery for injuries to anyone other than the intended user. Because Ashley was a bystander and not an intended user of the mower, she could not recover in an action against Simplicity. Id. at 437-43.

Since the court also concluded that, under Pennsylvania law, Simplicity did not owe a duty to bystanders, it dismissed the negligence claim as well. Id. at 443-49.

The court also ruled that the award of summary judgment "moots the contribution claim against [the Shoffs], and, hence, the need to resolve [the Shoffs'] motion for summary judgment." 413 F. Supp.2d at 449. Nonetheless, it decided the Shoffs' motions "in the event plaintiffs are successful on a motion for reconsideration or on appeal, and because Simplicity has not argued for dismissal based on mootness." Id. The court then denied the Shoffs' motion for summary judgment on Simplicity's negligent supervision claim, but granted summary judgment in favor of Mrs. Shoff only on Simplicity's failure- to-follow-instructions claim. Id. at 449-52.

This appeal followed.


The district court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. "The standard of review applicable to the District Court's order granting summary judgment is plenary." Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005). We apply "the same test employed by the District Court under Federal Rule of Civil Procedure 56(c)." Id. The non-moving party "is entitled to every favorable inference that can be drawn from the record." Id. At the summary judgment stage, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987).


A. Bystander Recovery Under Pennsylvania's Strict Products Liability Law

The district court relied primarily upon Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), in holding that Ashley could not recover in strict liability under Pennsylvania law because she was not an intended user of the mower. However, as we discuss in detail below, we believe the district court's reliance on Phillips was misplaced because bystander liability was not an issue in that case; moreover, no other decision of the Court specifically addresses the issue.

In the absence of a controlling decision by the Pennsylvania Supreme Court, a federal court applying that state's substantive law must predict how Pennsylvania's highest court would decide this case.*fn11 See Nationwide Mutual Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). "In predicting how the highest court of the state would resolve the issue, [we] must consider 'relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'"*fn12

Id. (quoting McKenna v. Ortho Pharm Corp., 622 F.2d 657, 663 (3d Cir. 1980)). Although the Pennsylvania Supreme Court has not yet expressly recognized a bystander's right to recover under products liability law, it has not expressly rejected such a claim either.

The "modern era" of products liability law in Pennsylvania began with Webb v. Zern, 220 A.2d 853 (Pa. 1966). There, Webb's father bought a keg of beer from Zern (a beer distributor), and Webb's brother subsequently tapped the keg and drew beer from it. Webb was injured when the keg exploded. Id. at 426. Webb relied on a theory of "exclusive control" to sue both Zern, the brewer who filled the keg, and the manufacturer of the keg. The trial court dismissed the action pursuant to the defendants' demurrers. That court ruled that the doctrine of exclusive control did not apply because Webb had not joined his father and brother and either or both of them could have done something that caused the explosion.

On appeal, the Supreme Court adopted the Restatement (Second) Torts, Section 402A as a "new basis of liability." Id. at 426-27. Section 402A provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.*fn13

Restatement (Second) of Torts § 402A.

The Court did not fully explain its rationale for adopting Section 402A. Rather it simply referred to the concurring and dissenting opinions in Miller v. Preitz, 221 A.2d 320 (Pa. 1966), which was issued the same day as Webb, stating: "[o]ne will . . . find there citations to modern case law and commentaries which extend and recommend the extension of the law of strict liability in tort for defective products." 220 A.2d at 854.

In his concurring and dissenting opinion in Miller, Justice Jones recited the history of product liability law in Pennsylvania prior to Webb. Miller, 221 A.2d at 328-35 (Jones, J., concurring in part and dissenting in part). He explained that a person injured by a defective product could sue either in negligence or in assumpsit based upon a breach of implied warranty arising from the sale of an allegedly defective product. Id. at 329. However, under either theory the injured person was required to establish privity, id. at 329, 330, and, in a negligence action, the injured person had to prove the specific acts of negligence by the manufacturer. Id. at 330.

In his recitation, Justice Jones noted that following the landmark case of MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y. 1916), Pennsylvania had eliminated the requirement of privity in negligence actions for damages arising from a defective product. Id. at 329. However, in an assumpsit action based on a breach of warranty, privity was still required. Id. at 330. As a result of the privity requirement, a manufacturer's liability in a breach of warranty action was limited to his immediate purchaser, who was generally a retailer who sold the product directly to the consumer. Id. at 332. The retailer was therefore normally only liable to the actual purchaser and not to subsequent users of the product. Id. at 332-33. Therefore, Justice Jones recommended abolishing the privity requirement, adopting Section 402A, and thereby allowing product liability actions in tort. Id. at 333. He explained that the adoption of Section 402A would protect the consuming public by forcing manufacturers to "stand behind their products," and make the "burden of injuries caused by defects in . . . products fall upon those who make and market the products." Id. at 334.

Although the Supreme Court in Webb did not expressly recognize a distinct cause of action for bystanders under Section 402A, Webb can be read as standing for the proposition that, under Pennsylvania law, there is a distinct cause of action for bystanders under Section 402A.*fn14 Webb was a bystander who simply had the misfortune of being in the same room as the keg when it exploded. Of course, it is possible that the Court viewed Webb as a user or consumer since he may well have walked into the room to draw beer from the keg. However, the Court did not rely upon any such status in allowing Webb to amend his complaint to include a cause of action under Section 402A, and nothing in the opinion suggests that the Court was concerned with whether Webb was a user of the keg.*fn15

Eight years after Webb, the Court decided Salvador v. Atlantic Steel Boiler Co., 319 A.2d 903 (Pa. 1974). There, an employee was severely injured when a steam boiler exploded at his place of work. He brought an assumpsit action against his employer, the retailer of the boiler and its manufacturer. Id. at 904. The trial court dismissed the complaint because the employee had not alleged a contractual relationship with the defendants and thus horizontal privity was lacking.*fn16 Id.

On appeal, the Pennsylvania Superior Court reversed, and the Supreme Court subsequently affirmed the reversal. Id.

The Supreme Court noted that its earlier adoption of Section 402A in Webb eliminated the necessity of horizontal privity in breach of ...

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