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Durkot v. Tesco Equipment

September 9, 2009

MARICA DURKOT
v.
TESCO EQUIPMENT, LLC



The opinion of the court was delivered by: Jacob P. Hart United States Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Marcia Durkot filed this action in the Philadelphia Court of Common Pleas on August 22, 2008, seeking damages for injuries she sustained on September 27, 2006, while working as a catering agent for U.S. Air at the Philadelphia International Airport. Plaintiff sustained her injury while using a catering lift truck manufactured by Defendant TESCO. The action was removed to this Court based on diversity jurisdiction. Defense Counsel for TESCO submitted a letter to the Court on July 15, 2009, asking for guidance as to which Restatement will be applied in this case and Plaintiff's counsel issued a response. After a telephone conference regarding this issue, Defendant has now filed a Memorandum of Law in Support of the Application of Restatement (Third) of Torts: Products Liability §§ 1 and 2, to which Plaintiff has filed opposition. As explained below, Defendant's Application will be denied.

I. Factual Background

Plaintiff was employed by US Air for 18 years and worked as a catering agent for over seven years, including the 2 3/4 years she had been working at the Philadelphia International airport. The TESCO catering lift truck Plaintiff was operating when she was injured was delivered to US Air's PHL ground support equipment department in approximately mid-August 2006. It was identified by US Air as vehicle FL-211. The vehicle was built with "a scissors-lift mechanism which is mounted to a rear chassis of a truck, and used to raise the van body, or catering lift box to the height desired by the operator. The lift-boxes on catering trucks, including Truck FL-211, are raised and lowered from inside the lift-box, by one of the catering agents' use of the control buttons located in the 'front' or plane-side of the catering lift box, near the front door of the lift-box, from which a built in ramp extends to provide a walk-way into the side door of the aircraft. The catering agent operating the lift mechanism is required to continuously hold down two buttons to raise the catering lift box until it reaches its desired height. The agent is likewise required to continuously depress the single 'down' button in order to lower the lift-box."

Defendant notes that according to John Yutzy, US Air's Regional Safety Manager at the time of the incident, US Air required the rear doors of the catering truck to remain closed whenever the lift box was being raised or lowered to provide fall protection for the employees and equipment inside the box and failure to do so was grounds for discipline. According to Defendant, on the day of the incident, Plaintiff opened the rear door of the catering lift truck while the box was still descending and started to exit before the box reached its full rest position. According to Plaintiff, this was the first day using a TESCO lift for both her and her co-worker. Her co-worker was the one operating the controls of the lift and she believed the truck had been completely lowered before she opened the door and began to exit. The parties agree that she stepped down on the lower frame of the scissors lift assembly, believing she was stepping onto one of the steps built into the truck's bumper. As the lift continued its descent, her left foot became entrapped between the upper and lower frame of the scissors lift assembly, causing her foot to be crushed as the lift lowered. Plaintiff required amputation of the great toe and second toes of her left foot.

Plaintiff's Product Liability Claim

Defendant anticipates that Plaintiff's strict liability claim will allege that the catering truck was defectively designed because it does not protect a user from inadvertently getting caught in the "pinch point" created by the gap between the upper and lower frame of the scissor lift mechanism, any time the lift-box is raised above its full rest position. TESCO denies that the truck was defectively designed. TESCO's operation and maintenance manual warns users that the lift trucks should only be operated by trained personnel. Defendant argues that when the truck was sent to the airport TESCO sent representatives to train US Air's catering personnel in proper use of the vehicle, which would include keeping the rear door closed any time the lift box is raised from the full rest position. TESCO argues that Plaintiff's injuries are a result of her failure to follow TESCO's recommended procedures and US Air's policies, by exiting the vehicle while it was not in full rest position.

II. Discussion

In a diversity case, such as this, a federal district court is required to apply the law of the state in which the claim arose. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). The parties agree that Pennsylvania law is to be applied in this case.

The Pennsylvania Supreme Court adopted Section 402A of the Restatement (Second) of Torts in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Since that time, the Court has interpreted the section, leaving Pennsylvania strict liability law unclear in certain areas. Specifically, there has been some confusion as to the extent that negligence principles, such as reasonableness are to be considered by the jury. See Azzarello v. Black Brothers Co., Inc., 391 A.2d 1020, (Pa. 1978).

In Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009), the Third Circuit predicted that the Pennsylvania Supreme Court would adopt the Third Restatement. In Berrier, the plaintiffs sought damages for injuries sustained by a minor when her grandfather was operating a riding lawnmower and backed over her leg while the mower blades were engaged. The District Court had granted summary judgment in favor of the defendant, finding that under Pennsylvania strict products liability law, recovery was not permitted by anyone other than the intended user of the product. After finding that there were no Pennsylvania Supreme Court decisions addressing the specific issue of a manufacturer's liability for injuries sustained by a bystander, the Third Circuit made a prediction as to how the Pennsylvania Supreme Court would decide that issue. The Third Circuit noted that the Pennsylvania Supreme Court had just recently granted a petition for allowance of appeal in Bugosh v. I.U. North America Inc., 942 A.2d 897 (2008) and had framed the issue as "whether this Court should apply § 2 of the Restatement (Third) of Torts in place of 402A of the Restatement (Second) of Torts." Berrier, 563 F.3d at 57. The Third Circuit relied upon Justice Saylor's concurring opinion in Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), speculating that there would be enough votes on the court to adopt the Restatement (Third) in Bugosh.

However, after hearing extensive oral argument in Bugosh, the Pennsylvania Supreme Court declined to adopt the Restatement (Third). Instead, the Court dismissed the appeal as improvidently granted. Bugosh v. I.U. North America, Inc., 971 A.2d 1228, 1229 (Pa. 2009).

Defendant urges this Court to apply the Restatement (Third) because it claims that the Third Circuit's prediction in Berrier is precedential and binding upon this Court. Plaintiff urges the Court to apply Section 402(a) of the Restatement (Second). Plaintiff argues that the Third Circuit's prediction was based upon the specific facts of Berrier, i.e. liability to a bystander, which is not at issue in this case. Furthermore, plaintiff argues that since the Pennsylvania Supreme Court declined to adopt the Restatement Third in Bugosh, the Third Circuit's prediction did not hold true and is not binding upon this court.

The federal court may not impose its view of what the state law should be, but must apply existing state law as interpreted by the state's highest court in an effort to determine how the state court would decide the precise legal issue before the federal court. Koppers Co., Inc. v. Aetna Casualty and Surety Co., 98 F.3d 1440, 1445 (3d Cir.1996). "[W]here a federal court of appeals in a given case has ascertained and applied what it apprehends to be the pertinent state law, such ascertainment of the local law is binding upon the trial court at the retrial of the case unless it is clearly made to appear by subsequent statute, no more than declaratory, or by binding state court decision that the law of the state was other than what the federal appellate court had understood it to be." Lennig v. New York Life Ins. Co., 130 F.2d 580, 581 (3d Cir. 1942) (emphasis added). The Third Circuit has not made it entirely clear when its predictions are binding upon the district court. See Carrasquilla v. Mazda Motor Corp., 197 F. Supp. 2d 169, 173 (M.D. Pa. 2002) ("The Third Circuit has not given very much guidance on the subject, but has suggested that the only law binding on a federal court is the jurisprudence of the state supreme court, and that even a decision by a federal court of appeals does not bind a district court."); see also Hollingsworth v. State Farm Fire & Cas. Co., 2005 WL 563414, * 6 (E.D. Pa. March 9, 2005) (stating that the court "need not consider the debatable question of whether a federal district court is ...


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