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High v. Pennsy Supply, Inc.

Superior Court of Pennsylvania

January 13, 2017


         Appeal from the Order Entered February 18, 2016 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2013-CV-6181-CV, 2013-CV-6206-CV

          BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS [*] , P.J.E.


          STEVENS, P.J.E.

         Appellants Jeffrey and Charles High (collectively "the High brothers") appeal from the order entered by the Court of Common Pleas of Dauphin County granting Appellee Pennsy Supply Inc.'s Motion for Summary Judgment. The High brothers claim that the trial court erred in refusing to allow a jury to decide as factfinder whether wet concrete is a defective product unreasonably dangerous to the consumer pursuant to the standards set forth in Tincher v. Omega Flex, 628 Pa. 296, 104 A.3d 328 (2014).[1]After careful review, we reverse and remand for further proceedings.

         The underlying lawsuit arose from injuries the High brothers sustained in an incident that occurred on November 9, 2012. Jeffrey High had ordered the delivery of four cubic yards of concrete from Pennsy Supply to create a floor in a three-foot high crawlspace in the basement of his residence. Mike Holley, a Pennsy Supply supervisor, had advised Jeffrey to purchase flowable fill concrete, which is characterized as self-leveling. Given the tight space in which the floor would be poured, the men agreed that flowable fill concrete would work better than regular concrete in this case as it would involve less work to create a level floor in the tight space. After this conversation, Jeffrey believed he had ordered flowable fill concrete.

         On the day of the scheduled delivery, Jeffrey arranged for his brother, Charles High, to assist him as the concrete floor was poured. When the concrete truck arrived, the driver for Pennsy Supply presented Jeffrey with a delivery ticket that contained the following warning:

Contains Portland Cement. Avoid contact with eyes and prolonged contact with skin. Wear rubber boots and gloves. In case of contact with skin or eyes, flush thoroughly with water. If irritation persists, get medical attention. Keep children away.

         Pennsy Supply Delivery Ticket, 11/9/12. Jeffrey placed his signature below this warning and also signed the bottom of the ticket to authorize the charges for the concrete delivery. Charles did not see the warning on the delivery ticket but admitted he was aware of similar warnings about possible skin irritation from his prior use of bagged concrete. In those instances, Charles recalled his skin coming into direct contact with concrete; however, this exposure only caused Charles's skin to be a "little dry" and did not cause any burns or noticeable injury. Deposition of Charles High (Charles High Dep.), 47:18-48:1, January 14, 2015.

         In preparation for the delivery, Jeffrey did not wear gloves or rubber boots as he believed the concrete's self-leveling property would minimize the need to have direct contact with the concrete. Charles wore work gloves, several layers of clothes, and leather shoes with plastic bags on top. Charles indicated he wore the bags on his shoes so that his pants and shoes would be easier to clean after the task was completed.

         After the first section of concrete was poured from the delivery truck, the High brothers noticed that the concrete surface was wavy, but they assumed that it took time to level. After the men observed that the second poured section of concrete also was not level, Jeffrey questioned the delivery driver, David Smith, about the set and dry time of the concrete. In talking with Smith, Jeffrey realized that the truck was carrying regular concrete, not flowable fill concrete. Nevertheless, at that point, Jeffrey felt he had no choice but to accept the remaining concrete and try to level it with tools he had available. The men admitted to using rakes, boards, and their forearms to smooth the concrete, kneeling in the concrete at times in the confined space. After the High brothers worked in the crawlspace for approximately ninety minutes, their clothes became saturated with wet concrete.

         On a break, when Jeffrey washed his hands with a hose and wiped his hands, he observed his skin peel off. At this discovery, the men stopped the concrete work. Charles went into the shower to get the concrete from his body and realized the skin on his legs was turning black. The brothers did not seek medical treatment immediately. Charles attempted to treat his injuries by soaking in a tub with water, vinegar, and sea salt as directed by Jeffrey, who found this suggestion on the internet.

         Both brothers were subsequently taken by ambulance for medical care and admitted at Lehigh Valley Medical Center for inpatient treatment as they had sustained both second and third degree chemical burns, which required surgery for the excision of the third degree burns with allograft placement. Charles and Jeffrey respectively allege that they sustained burns to approximately 15.0% and 10.77% of their total body surface area. Charles's medical records indicate that his attempt to treat his injuries with a bath mixed with vinegar and sea salt caused an exothermic reaction that worsened his symptoms.

         On July 17, 2013, the High brothers filed separate strict products liability actions claiming the concrete Pennsy Supply had sold Jeffrey High was a product in a defective condition unreasonably dangerous to consumers. Specifically, the High brothers alleged that the concrete delivered by Pennsy Supply had a pH of 12.4 and noted that "alkalis with a pH greater than 11.5 produce severe tissue injury [chemical burns] through liquefaction necrosis." Jeffrey High Compl. at ¶ 6, 8; Charles High Compl. at ¶ 6, 8. On September 17, 2013, Pennsy Supply filed an answer containing new matter, alleging, inter alia, that the High brothers were aware of the dangers of concrete, did not adhere to the warnings on the delivery ticket, and caused their injuries by their misuse or abuse of the product. Pennsy Supply also alleged it was not liable to Charles High as he was a sophisticated user of concrete. On September 27, 2013, the High brothers filed replies to Pennsy Supply's new matter. On October 15, 2013, Pennsy Supply filed a complaint joining Charles High as a defendant, alleging that Charles was a sophisticated user of concrete and was negligent in failing to take adequate precautions and in encouraging careless use of the concrete by Jeffrey High. On June 16, 2014, the trial court consolidated the actions.

         On June 30, 2015, Pennsy Supply filed a motion for summary judgment, claiming the High brothers could not prove the concrete was in a defective condition unreasonably dangerous to the intended user. Specifically, Pennsy Supply asserted that the High brothers did not present expert reports showing that there was any defect in the concrete, anything unusual about this particular batch of concrete, any manufacturing defect, or any indication that Pennsy Supply's warnings were inadequate. Rather, Pennsy Supply suggested that the high pH of concrete is an inherent property that is necessary for the product to perform as expected.

         Both brothers filed similar responses, asserting the concrete was in a defective condition unreasonably dangerous to the intended user as the danger created by the concrete's high pH was unknowable and unacceptable to the average consumer. While Jeffrey High acknowledged Pennsy Supply's delivery ticket contained a warning, he suggested the given statement was inadequate as it only warned of mere skin irritation and did not inform the user of the possibility of sustaining third-degree chemical burns. Jeffrey also claimed he had no reason to believe he should wear protective clothing, as a Pennsy Supply representative had assured him he would not have much exposure to self-leveling concrete. Jeffrey argued that the men were forced to work with the concrete in the confined crawlspace after discovering the product was not self-leveling. Similarly, Charles High claimed he was unaware of the danger of the concrete's high pH as he was not provided with any warning by Pennsy Supply. Charles sustained third degree burns from his exposure to the concrete despite wearing gloves, several layers of clothing, and plastic bags over his leather shoes.

         Thereafter, the trial court entered an order granting summary judgment to Pennsy Supply, after concluding the High Brothers could not prove that wet concrete is in a defective condition unreasonably dangerous to consumers. On March 11, 2016, the High Brothers filed this appeal.

         Appellant Jeffrey High raises the following question for review:

Whether the lower court committed an error of law when it determined as a matter of law that [Appellant] Jeffrey High cannot prevail on a claim for defective product under the Consumer Expectations Standard when he relied on [Pennsy Supply] to supply self-leveling concrete, [Appellant Jeffrey High] was not a professional contractor, and neither [Pennsy Supply], its written warning, or its agents ever notified [Appellant Jeffrey High] of a risk of chemical burns?

Brief for Jeffrey High, at 5.

         Appellant Charles High phrases a similar challenge in terms of the following issues:

A. Whether the lower court committed an error of law because it did not properly apply Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014).
B. Whether the lower court made findings of fact that should have been reserved for the jury.
C. Whether the lower court failed to properly apply the Consumer Expectations test from Tincher when it determined as a matter of law that the concrete at issue was not a defective product.
D. Whether the lower court committed an error of law when it determined as a matter of law that the concrete at issue was ...

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