Appeal from the Order of the Superior Court entered September 21, 2010 at No. 2 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 109 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 112 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 113 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011
The opinion of the court was delivered by: Mr. Justice Baer
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
We granted allowance of appeal in this case to determine, as a matter of first impression for this Court, whether a defendant in a products liability action must plead and prove as an affirmative defense that an injured party's alleged "highly reckless conduct" was the sole or superseding cause of the plaintiff's injuries. For the reasons that follow, we agree with the Superior Court that, in order to avoid liability, a defendant raising a claim of highly reckless conduct must indeed plead and prove such claim as an affirmative defense. Moreover, this evidence must further establish that the highly reckless conduct was the sole or superseding cause of the injuries sustained. We therefore affirm the order of the Superior Court.
In January of 2003, Douglas Reott, brother of the Plaintiff-Appellee, Duane Reott,*fn1 ordered two identical Remington-branded tree stands from The Sportsman's Guide, a mail-order and online catalog of outdoors products. Douglas gave the tree stands to Appellee, who in turn paid Douglas for them. For approximately the next two years, Appellee used one of the tree stands on multiple occasions, while leaving the second sealed in the box. On September 25, 2005, Appellee took the second, previously unused tree stand to his other brother Daniel's house, intending to install the second stand in a tree in the vicinity.
Appellee and his brother Daniel assembled the tree stand at Daniel's house, selected a suitable tree, and Appellee utilized a "ladder stick" to climb twenty to twenty-five feet to install the stand in the tree. Upon placing the stand in the tree, Appellee cinched the locking strap around the tree's trunk to secure the stand. Appellee then climbed onto the platform of the tree stand and, while bear hugging the tree, raised himself on his toes and came down on the platform. According to Appellee, this self- taught maneuver, known as "setting the stand," is used to secure the stand firmly in the tree by taking any slack out of the locking strap. Appellee had performed this maneuver, in his estimation, hundreds of times on other stands before September 25, 2005. This time, however, when Appellee came down onto the stand's platform, the locking strap broke, and Appellee fell to the ground. Daniel assisted his brother back to his residence. He subsequently sought medical attention, which revealed that the fall had resulted in a crushed vertebra and fractured wrist. When Appellee and his brother Daniel examined the tree stand, they discovered that the locking strap had been only glued, rather than like a seatbelt, which is glued and stitched.
Appellee, together with his wife, sued four entities, Asia Trend, Inc., Remington Arms Company, Inc., RA Brands, LLC, and The Sportsman's Guide (collectively, Appellants), in strict products liability pursuant to Section 402A of the Restatement (Second) of Torts, alleging that Appellee's injuries were caused by a manufacturing defect in the tree stand, namely, that the locking strap was defectively manufactured in that it was held together only with glue, rather than with glue and stitching. All Appellants filed answers denying the allegations, as well as new matters, which placed responsibility for the incident on Appellee.*fn2
Upon the conclusion of the introduction of evidence at trial, Appellee moved for a directed verdict, arguing to the trial judge that uncontroverted evidence existed that the tree stand was defective, and that the defect caused Appellee's injuries. See Webb v. Zern, 220 A.2d 853 (Pa. 1966); Hadar v. Avco Corp., 886 A.2d 225 (Pa. Super. 2005) (each providing that a plaintiff in a Section 402A action must prove two things: (1) that the product was defective; and (2) that the defect in the product was a substantial factor in causing the injuries sustained)). The trial court agreed with Appellee that the product was defective, and granted a partial directed verdict on that sub-issue only. The court denied the motion for directed verdict regarding causation, and permitted that question to go to the jury.
Appellants presented evidence to the jury that Appellee's self-taught "setting the stand" maneuver constituted highly reckless conduct, which negated Appellee's contention that the defect in the locking strap caused his fall and resultant injuries. After deliberations, the jury returned a verdict in favor of Appellants. Appellee filed for post-trial relief seeking, inter alia, judgment notwithstanding the verdict (JNOV), contending error in the trial court's denial of Appellee's motion for a directed verdict. The trial court denied the post-trial relief, finding that evidence concerning Appellee's highly reckless conduct raised a jury question concerning Appellee's proof of causation, which the jury, as exhibited by the verdict, resolved against Appellee.
Appellee filed a timely appeal to the Superior Court, alleging that the trial court erred when it determined that a defendant may present evidence of highly reckless conduct merely to rebut evidence of causation, thus leaving the plaintiff with the sole burden of proof, consistent with the two-part inquiry of Webb and Hadar (that the tree stand was defective and that the defect was a substantial factor in Appellee's injuries). See Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010).
The court began its analysis by noting that, while evidence of a plaintiff's conduct, especially contributory negligence, is generally not permitted in a Section 402A case, "[i]n certain limited circumstances, evidence of a plaintiff's conduct may be admissible, specifically where the defendant alleges that the plaintiff's voluntary assumption of the risk, product misuse, or highly reckless conduct is relevant to the issue of causation." Id. at 836 (citing Gaudio v. Ford Motor Co., 976 A.2d 524, 540 (Pa. Super. 2009), appeal denied, 989 A.2d 917 (Pa. 2010)). The panel then related that highly reckless conduct occurs when "the plaintiff knew or had reason to know of facts which created a high degree of risk of physical harm to himself and that he deliberately act[s], or fail[s] to act, in conscious disregard of that risk." Id. (citing Charlton v. Toyota Indus. Equip., 714 A.2d 1043, 1047 (Pa. Super. 1998)).
The panel then conducted a survey of Pennsylvania products liability law and determined that assumption of the risk, product misuse, and highly reckless conduct "are all affirmative defenses for which the defendant asserting them bears the burden of proof." Id. at 837 (emphasis in original) (citing, e.g., Falyk v. Pa. R. Co., 100 A. 961, 963 (Pa. 1917) (noting, in a pre-Section 402A case, that assumption of the risk generally is an affirmative defense); Gaudio, 976 A.2d at 541 (in a Section 402A case, highly reckless conduct claim requires a "defendant to prove that the use was so extraordinary and unforeseeable to constitute a superseding cause."); Charlton, 714 A.2d at 1047 (in a Section 402A action defendant was required to show that plaintiff knew or should have known that his actions were highly reckless); Childers v. Power Line Equip. Rentals, Inc., 681 A.2d 201, 208 (Pa. Super. 1996), appeal denied, 690 A.2d 236 (Pa. 1997) (in an action for products liability, product misuse and highly reckless conduct are affirmative defenses)).*fn3 In accord with these cases, the court also held that a defendant had the burden of proving that a plaintiff's highly reckless conduct was the sole or superseding cause of his injuries.
Concluding that a two-part burden is placed on defendants alleging highly reckless conduct (i.e., affirmative proof that the plaintiff acted in a highly reckless manner and that such conduct was the sole or superseding cause of the injuries), the panel proceeded to examine the evidence presented at trial. Regarding, first, Appellee's conduct, the panel concluded that it reasonably could have been "within [the] jury's province" to conclude that Appellee knew, understood, and appreciated that his conduct carried a risk of falling. Reott, 7 A.3d at 838. However, the panel noted that Appellants presented no evidence at trial to show that the force with which Appellee set the stand was sufficient, in and of itself, to cause the stand to fall from the tree. Accordingly, the panel determined that the trial court should have granted Appellee's request for JNOV on the issue of causation, because "the evidence introduced at trial was insufficient as a matter of law to support [Appellants' affirmative] defense of highly reckless conduct." Id. at 839. As Appellants did not satisfy their burden, the Superior Court directed that judgment be entered in favor of Appellee, and a new trial be held limited to the issue of damages. Id. at 841.
Appellants filed a joint petition for allowance of appeal to this Court, which we granted pertaining to two issues:
1. Did the Superior Court err in its determination that the assertion of highly reckless conduct is an affirmative defense contrary to prior decisions of this Court and of the Superior Court which classify such assertion as a denial of causation?
2. Did the Superior Court err in its determination to expand the requirements for proof of highly reckless conduct in contravention of prior decisions of that same [c]court?
Reott v. Asia Trend, Inc., 20 A.3d 1187 (Pa. 2011) (per curiam).
We initially note that this case comes before us from the Superior Court's reversal of the trial court's decision to deny Appellee's motion for JNOV regarding causation. We will reverse a trial court's grant or denial of a JNOV only when we find an abuse of discretion or an error of law. Dooner v. DiDonato, 971 A.2d 1187, 1193 (Pa. 2009). The questions currently before us, namely whether an assertion of highly reckless conduct is an affirmative defense and, assuming arguendo that it is, whether a defendant in proving it must demonstrate that the highly reckless conduct is the sole or superseding cause of the incident, are pure questions of law. Thus, our standard of review is de novo and our scope of review is plenary. Id.
Concerning, first, the Superior Court's conclusion that highly reckless conduct is an affirmative defense, Appellants argue that this results in a legal impossibility. Appellants note that Pennsylvania procedural law provides that affirmative defenses, in general, defeat causes of action despite a defendant's admission of all of the allegations contained within a complaint. See Appellants' Joint Brief at 11 (citing, e.g., Pisiechko v. Diaddorio, 326 A.2d 608, 610 (Pa. Super. 1975) (affirmative defenses may be raised as a new matter to a complaint, which, "taking all of the allegations of the complaint to be true, is nevertheless a defense to the action.")).
On the facts of this case, Appellants contend that should they be required to allege highly reckless conduct as an affirmative defense, they would be forced to admit as true the allegations in Appellee's complaint (i.e., that the locking strap was defective and this defect was the cause of the injury), while then simultaneously being required to prove that Appellee's highly reckless conduct caused his injuries. In Appellants' view, these two positions are mutually exclusive, and thus the Superior Court erred as a matter of law in forcing them into arguing a legal impossibility.
Appellants also point to this Court's 1975 plurality decision in Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa. 1975), as evidence that we have previously permitted evidence of highly reckless conduct to be admitted to rebut causation, rather than as an affirmative defense. There, a helicopter crash killed the pilot, and his estate filed a wrongful death suit against the helicopter's manufacturer under Section 402A. The ...