Amaris Elliott-Engel

04-22-2009

In a potential curtain raiser on the future of Pennsylvania products liability law, the 3rd U.S. Circuit Court of Appeals predicted Tuesday in a ruling that the Pennsylvania Supreme Court will import negligence concepts into the strict liability doctrine by adopting portions of a torts legal treatise.

The 3rd Circuit panel of Judges Theodore A. McKee, Thomas L. Ambro and D. Michael Fisher predicted that, because Pennsylvania's products liability law is a confused affair, the Supreme Court will adopt Sections 1 and 2 of the American Law Institute's Restatement (Third) of Torts . The ALI restates common law and distills caselaw in order to propose what form law should take, and courts often use the ALI's work in their rulings.

The 3rd Circuit even counted heads in predicting that parts of the Third Restatement will be adopted by the Supreme Court in regard to design-defect cases. In a footnote, the 3rd Circuit said four of seven justices have voiced support for adopting the Third Restatement . Those justices include Chief Justice Ronald D. Castille and Justices J. Michael Eakin, Max Baer and Thomas G. Saylor.

The Supreme Court is considering whether concepts of negligence should be imported into Pennsylvania's products liability law by the application of Section 2 of the Restatement (Third) of Torts in place of Section 402A of the Restatement (Second) of Torts . Oral arguments were heard in Bugosh v. I.U. North America Inc., an asbestos case, last December.

In Berrier v. Simplicity Manufacturing , the 3rd Circuit had to consider the permissible scope of bystander recovery for a little girl whose left foot was mangled by a lawn mower driven by her grandfather.

McKee, writing for the panel in Berrier , said that restricting strict products liability claims to "'intended users'" because of the concern about polluting strict liability claims with the negligence concept of foreseeability does not protect bystanders injured by a defective product.

"We find nothing in Pennsylvania law to suggest that the Supreme Court would deny recovery under a strict liability theory to spectators at a sporting event who are injured by an airplane that crashes into a stadium because a wing was defectively designed," McKee wrote. "We do not think that policy considerations ... would allow strict liability claims to the passengers and deny it to the spectators simply because they happened to be underneath the falling debris and not inside of it."

Attorneys involved in Berrier predicted that the 3rd Circuit's decision will compel the state court to address the similar products liability legal questions in Bugosh .

James Beck of Dechert, who wrote an amicus brief for the Product Liability Advisory Council, a defense-oriented group, said the 3rd Circuit made a ruling on an issue that is the prerogative of the Pennsylvania Supreme Court.

"I think the Supreme Court will want to go and take its prerogative back," Beck said.

Beck argued for the adoption of the Third Restatement and use of a negligence standard in products liability law. The current law is confused, Beck said.

People think in terms of negligence, and even judges end up using concepts of negligence, even though there is supposed to be a divide between negligence and strict liability, Beck said.

The plaintiffs attorney, Alan Feldman of Feldman Shepherd Wohlgelernter Tanner & Weinstock, said the 3rd Circuit has set up the issue in such a way that it will be difficult for the Supreme Court to walk away from directly accepting the panel's reasoning or refuting the panel's reasoning.

"Judge McKee in his opinion has offered a blueprint for ... strict product liability law that is rational, coherent and consistent with Pennsylvania's bedrock policy of protecting innocent victims from unsafe products," Feldman said. "It will be much harder to retreat to the ambiguity and imprecision of existing law."

While there is some dissension over whether consumers would be best served by the Third Restatement , Feldman said that lawyers and litigants need predictability in the state's law of strict liability. Under current law, lawyers find it hard to advise clients on whether they have a meritorious products liability claim, Feldman said.

The 3rd Circuit had exercised a rarely used mechanism that federal courts may use to consult state courts about purely state questions of law when it asked the Supreme Court to address the permissible scope of bystander recovery in Berrier. Last October, the state Supreme Court denied the 3rd Circuit's request that the justices address that question of law.

Even without the guidance from the Supreme Court, the 3rd Circuit predicted that the state court would find that a bystander injured by a consumer product and who is not the intended user of a product used in an intended manner may pursue a strict liability claim against the manufacturer.

The 3rd Circuit's decision reversed U.S. District Court Judge Legrome D. Davis, who granted summary judgment in favor of lawn mower manufacturer Simplicity Manufacturing June 29, 2005.

Davis relied upon the state Supreme Court's 2003 decision in Phillips v. Cricket Lighters in making his ruling. In that case, the justices found that a butane lighter manufacturer could not face a strict liability claim in the case of a 2-year-old who used a lighter to start an accidental fatal fire that killed the toddler, the toddler's mother and another child.

In the Phillips case, former Chief Justice Ralph J. Cappy said that in strict liability claims for defective product designs, plaintiffs must establish that the products are unsafe for an intended user, not just any reasonably foreseeable user. Negligence concepts can't be imported into strict liability law, Cappy said.

When Davis granted summary judgment he seemed to decry his perceived lack of an innocent bystander exception to the intended use doctrine requiring manufacturers to make products safe for intended users. But he said in his opinion summary judgment should be granted under Pennsylvania law.

The 3rd Circuit said Davis' reliance on Phillips was misplaced. McKee wrote that the Supreme Court has not recognized, nor yet rejected, a bystander's right for recovery under products liability law in Phillips or any other case.

McKee referenced Saylor's thinking on this issue several times in the opinion. McKee said Saylor's concurrence in Phillips "foreshadows" the adoption of the Third Restatement . Saylor's concurrence was joined by Castille and Eakin.

Saylor's concurrence in Phillips only addressed Section 2(b) of the Third Restatement , which addresses when a product is defectively designed, McKee said. Section 1 addresses whom a manufacturer faces liability for, the judge said. McKee said that justices who would adopt Section 2 of the Third Restatement would likely adopt Section 1.

The Third Restatement is consistent with the law in Wisconsin, California, Mississippi, Arizona, Missouri, Michigan, Iowa, Alabama, Utah and Vermont, McKee said.

Kline & Specter's Shanin Specter, who wrote an amicus brief on behalf of the Pennsylvania Association for Justice, said the 3rd Circuit's logic is very important.

Under the panel's reasoning, manufacturers must make their products safe for users of their products and for bystanders who could be injured by their products, Specter said.

"We need to encourage manufacturers to keep those users and bystanders safe," Specter said.

Nancy Shane Rappaport of DLA Piper, counsel for Simplicity Manufacturing, said the 3rd Circuit's decision was disappointing for her clients and they were reviewing their options.

Rappaport said the 3rd Circuit was clearly predicting what they think the Supreme Court will do, despite the Supreme Court's decision to deny the 3rd Circuit's petition for advice on this area of law.

In the Berrier case, Melvin Shoff, the grandfather of Ashley Berrier, 4 at the time, backed over Berrier's foot with the lawn tractor's mowing deck while mowing the lawn of his Honey Brook, Chester County, home on May 7, 2003, according to court papers. Berrier's foot was later amputated.

Berrier's parents brought strict products liability and negligence claims against Simplicity Manufacturing, the Wisconsin-based maker of the Simplicity Regent lawn mower operated by Shoff, alleging that Simplicity was negligent in its design of the lawn tractor, according to the January 2004 complaint.

Berrier's parents also alleged in the complaint that Simplicity faced a strict products liability claim because the mower was allegedly a defective product that was unreasonably dangerous to use.

According to court papers, Simplicity challenged the claim that the mower was unreasonably dangerous to intended users by countering that Berrier was not an intended user of the product and that the plaintiffs could not show that a safer lawn tractor design exists that would have prevented Berrier's amputation.

The 3rd Circuit panel found that there was a genuine issue of fact over whether an alternative design would have prevented Berrier's injuries, so the plaintiffs-appellants could survive the summary judgment stage and move on to further proceedings.

Daniel J. Mann of Feldman Shepherd was co-counsel for the plaintiff-appellants.

James M. Brogan of DLA Piper and Donald H. Carlson of Crivello Carlson & Mentkowski of Milwaukee, Wis., are co-counsel for Simplicity Manufacturing.

John F. Lewis of Swartz Campbell is counsel for third parties Susie and Melvin Shoff. Lewis did not respond to a request for comment Tuesday afternoon.

(Copies of the 73-page opinion in Berrier v. Simplicity Manufacturing, PICS No. 09-0692, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for more information. Some cases are not available until 1 p.m.)

Related Information:

• To read the court's opinion, click here. (PDF)