DENNIS A. RENNINGER AND PATSY D. RENNINGER Appellants
A&R MACHINE SHOP AND CASS HUDSON COMPANY Appellee
from the Judgment Entered November 12, 2015 In the Court of
Common Pleas of Clarion County Civil Division at No: 645 CD
BEFORE: LAZARUS, STABILE, and STRASSBURGER, [*] JJ.
Dennis A. Renninger and his wife, Patsy D. Renninger, appeal
from the judgment of November 12, 2015. We affirm.
25, 2007, Appellant Dennis Renninger was at work in the
Clarion, Pennsylvania plant of his employer, Commodore Homes
("Commodore"), a manufacturer of modular homes,
when he sustained a serious injury to his foot. While under
construction, each modular home moves along an assembly on
wheeled casters attached to its underside. Mr. Renninger was
injured when a caster ran over his foot. Appellants sued
Appellees A&R Machine Shop
("A&R") and Cass Hudson Company ("Cass
Hudson") as the designers, manufacturers and suppliers
of the casters. Appellants alleged causes of action for
strict products liability, negligence, breach of implied
warranty, and loss of consortium causes of action, claiming
the casters should have included toe guards. The case
proceeded to a June 22-25, 2015 jury trial on Appellants'
strict products liability/design defect claim. The jury returned
a defense verdict, finding Cass Hudson did not supply a
defective product. Appellants filed timely post-trial motions
on June 30, 2015. The trial court denied those motions on
November 3, 2015. The verdict was reduced to judgment on
November 12, 2015, and this timely appeal followed.
raises seven assertions of error, which we have reordered for
clarity of analysis:
I. Whether in its November 3, 2015 order, the trial court
erred in denying [Appellants'] motion for post-trial
relief which requested in the alternative either: (1) an
order of a judgment notwithstanding the verdict setting aside
the jury's verdict and issuing an award for [Appellants],
or (2) ordering a new trial in this matter, where the
issuance of such an order was clearly supported by the
evidentiary record and controlling case law and the denial of
such request deprived [Appellants] of an adequate statutory
or legal remedy and was clearly contrary to the applicable
II. Whether in its November 3, 2015 order, the trial court
erred in finding that it properly allowed evidence and
testimony of industry standards and employer conduct to be
considered by the jury.
III. Whether the trial court erred in its April 17, 2015
order on motions in limine where it expressly stated
that the Pennsylvania Supreme Court's ruling in
[Tincher allowed for the introduction of the
following at trial:
(a) Industry safety standards;
(b) OSHA safety standards;
(c) Employer conduct; and
(d) Conduct of third parties, including but not limited to
assumption of risk by [Mr. Renninger].
IV. Whether in its November 3, 2015 order, the trial court
erred in finding that it properly instructed the jury on the
question of defective design of a product. Specifically,
whether the court erred when it instructed the jury on the
factors to consider in applying the risk utility analysis
required pursuant to the Pennsylvania Supreme Court decision
in [Tincher], when it instructed the jury to
consider a seven-part test which was not adopted by the
V. Whether the trial court erred when it failed to properly
craft a jury verdict question and failed to place such jury
questions in a sequence that resulted in the jury deciding
the case before being asked to apply the risk utility
analysis required by [Tincher]. Specifically, jury
questions 1 and 2, which were generic questions that did not
require the application of the risk utility analysis, and
consequently this case was decided without the application of
risk utility by the jury.
VI. Whether in its November 3, 2015 order, the trial court
erred in finding that it properly disallowed a jury
instruction on the doctrine of intended use in the context of
products liability design defect cases pursuant to the
Pennsylvania Supreme Court decision in [Tincher].
VII. Whether the trial court erred in its January 27, 2011
order on [Appellees'] motions for summary judgment where
it misapplied Pa.R.C.P. [No.] 1035.2, in that it relied upon
an affidavit to prematurely grant summary judgment in favor
of [Appellees] before the close of discovery and dismissed
certain counts of [Appellants'] amended complaint; and
more importantly used that same affidavit to conclude that
the third party/employer was the designer of the subject
product, and that neither [Appellee] designed the wheeled
caster assemblies at issue.
Appellants' Brief at 4-6.
we analyze Appellants' legal arguments, we will review
the facts introduced at trial. Mr. Renninger's job at
Commodore was to help build and finish roofs. N.T Trial,
6/22/15, at 60. Mr. Renninger's plant built roughly ten
to twelve homes at one time. N.T. Trial, 6/23/15, at 21. The
homes under construction moved around the assembly line on
casters bolted to their undersides. Id. at 22, 24.
Originally, Commodore positioned the casters several feet
inside of the home's outer frame, such that a moving
caster could not run over the foot of a person standing
alongside a moving home. Id. at 22-23, 92, 114-15;
N.T. Trial, 6/24/15, at 96. Commodore repositioned the
casters to the outer edge of the homes to prevent bowing in
the floor joists. Id.; N.T. Trial, 6/24/15, at 58.
Commodore modified twenty casters to accommodate the new
location. R 796-802. Cass Hudson and A&R Machine
subsequently supplied additional casters fabricated to meet
the new specifications. Id. The twenty modified
casters remained in use at the time of Mr. Renninger's
accident, and it was not possible to distinguish the casters
Commodore modified from the unmodified casters subsequently
supplied by Cass Hudson. Id.
Renninger's accident occurred while he was on the plant
floor speaking to his foreman. N.T. Trial, 6/23/15, at 26-28.
Mr. Renninger testified that Commodore never trained its
employees on Occupational Safety and Health Administration
("OSHA") regulations regarding the plant floor.
Id. at 85. Mr. Renninger was not aware of any OSHA
regulation requiring the use of steel-toed boots on the plant
floor, and he did not own steel-toed boots on the date of the
accident. Id. at 83-85. He was wearing tennis shoes
when the accident occurred, and he was aware that the casters
did not have a guard to prevent the wheel from running over a
foot. Id. at 80. Mr. Renninger also testified that
the plant floor was not level, such that some of the wheels
underneath a moving modular home would touch the ground while
others did not. Id. at 85-86. Mr. Renninger believed
a toe guard on the caster would have prevented his injury.
Id. at 96-97. Mr. Renninger did not believe a
steel-toed boot would have prevented his injury. Id.
Guzicki an employee of Appellee Cass Hudson who helped handle
the Commodore account, testified that Cass Hudson is a
distributor of casters and wheels. N.T. Trial, 6/24/15, at 5.
Cass Hudson consults with its customers to determine an
appropriate caster for their needs. Id. at 5, 17.
Dale Toney, director of special operations for Commodore,
testified that he relied on Guzicki to supply an appropriate
wheel for the height and weight. Id. at 80, 83, 110.
According to Guzicki, Cass Hudson does not advise customers
on the need for toe guards in a given application, and does
not analyze the safety needs at a customer's plant.
Id. at 43-45. Likewise, Cass Hudson personnel did
not visit the plant where the accident occurred. Id.
at 47. Thus, Cass Hudson had no opportunity to observe the
condition of the plant floor.
Miller, one of the owners of A&R Machine Shop
("A&R"), testified that A&R fabricated the
brackets that held the casters to the modular homes. N.T.
Trial, 6/24/15, at 57. Cass Hudson is one of A&R's
largest customers. Id. at 67-68. Like Guzicki,
Miller never visited the plant where the accident occurred.
Id. at 69.
parties produced expert witnesses. Paul Dreyer, a mechanical
engineer and Appellants' expert witness, described the
roles of Commodore, Cass Hudson, and A&R:
Okay. Commodore is the manufacturer of the modular homes, so
they know modular homes. A&R Machine is basically a
machine shop that builds metal fabricated parts, things that
drill holes and a certain size and shape. They supplied a
metal fabric part which they called a bracket to Cass Hudson.
And Cass Hudson took the bracket and mounted it to the caster
assembly and then supplied it directly to Commodore to be
used underneath the modular home.
N.T. Trial, 6/23/15, at 114. Dreyer testified that the
casters attached to the outer edge of the modular homes were
defective because they lacked a toe guard. Id. at
[T]he main reason why a toe guard is important for this
particular application is because this is a very large wheel
with a very heavy load. That can be very dangerous. And
because of that circumstance, it needed to be-the workers
needed to be protected from the possible movement of that
very heavy load onto their foot.
Id. at 117-18.
For this particular caster assembly to have, like I
mentioned, a large wheel which has no guarding, no
protection, which is-could instill a very serious injury on a
worker who is paying attention to his job and not thinking
that there's an imminent hazard, imminent danger right
below him until obviously after it occurred. And if this
caster had a guard assembly, a toe guard assembly, it might
have pinched his foot but pushed it out of the way so it
wouldn't be ridden completely over and
partially-according to the documents, partially up his ankle
before they could get it off of his foot and cause that
Id. at 120. In Dreyer's opinion, the toe guard
was preferable to using another worker as a spotter, and it
was also preferable to using a buzzer or beeper on a moving
modular home. Id. at 121. A spotter may not see
everything, and a buzzer might not get the attention of a
worker wearing ear protection. Id. Multiple homes
moving along the assembly line and beeping could cause
stated that Cass Hudson's suppliers offer toe guards for
sale in their catalogues, but he acknowledged that a toe
guard for the casters Commodore purchased would have needed
to be custom designed. Id. at 118. A custom designed
toe guard would have increased the cost of each caster by 10
to 12 percent. Id. at 123-25. Dreyer said it should
have been obvious to Cass Hudson that a toe guard was
necessary, once the casters were moved to the outer edge of
the modular homes. Id. at 206.
believed the use of a toe guard would have been in accord
with industry standards. "The caster industry has done
that analysis and come up with a couple of different toe
guard designs, and I have my faith in their industry that
that design minimizes injury." Id. at 161.
Commodore's compliance, or lack thereof, with OSHA
regulations was not relevant to Dreyer's analysis of the
product design. Id. at 201, 209.
defense expert, Gary Hutter, testified that no industry
standard requires heavy-duty casters to have toe guards. N.T.
Trial, 6/24/15, at 167-68.
Q. Is that a standard that exists in the wheel supply
A. No, it is not. It's not a standard in the wheel supply
industry, nor is it a requirement by OSHA. I'm on an ANSI
[American National Standards Institute] committee that's
involved with casters. I voted on two of their standards.
It's not a requirement in those standards either.
Q. Do you know of any law, any regulation, any standard or
any literature that coincides with Mr. Dreyer's opinion
that all ...