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HomeMy WebLinkAbout90-3750 CivilDAVID NEUMAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. HIGH REACH COMPANY, INC. and JLG INDUSTRIES, INC., CIVIL ACTION - LAW Defendants V. McCLURE COMPANY, Additional Defendant NO. 3750 CIVIL 1990 IN RE: DEFENDANT JLG'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER and OLER. JJ. ORDER OF COURT AND NOW, this 31 if day of August, 1993, upon careful consideration of Defendant's Motion for Summary Judgment, as well as the briefs and oral arguments submitted on the matter, Defendant's Motion is GRANTED. BY THE COURT, I - &,�� �2, nz Z Larry B. Selkowitz, Esq. tjWesley Oler, Jr.,0 J. 127 State Street Harrisburg, PA 17101 Attorney for Plaintiff Alan R. Boynton, Jr. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-11766 Attorney for Defendant High Reach Company, Inc. Arthur H. Stroyd, Esq. Mellon Square 435 Sixth Avenue Pittsburgh, PA 15219 Attorney for Defendant JLG Industries, Inc. Pamela S. Parascandola, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Additional Defendant, McClure Company :rc DAVID NEUMAN, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. HIGH REACH COMPANY, INC. and JLG INDUSTRIES, INC., CIVIL ACTION - LAW Defendants V. McCLURE COMPANY, Additional Defendant NO. 3750 CIVIL 1990 IN RE: DEFENDANT JLG'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER and OLER. JJ. OPINION AND ORDER OF COURT Oler, J. At issue in the present case is a motion for summary judgment filed by JLG Industries, Inc. (Defendant), in a strict liability action commenced by David Neuman (Plaintiff). For the reasons set forth in this Opinion, Defendant's motion is granted. Pennsylvania Rule of Civil Procedure 1035 provides that summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on such a motion, the court is to view the record "in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Furthermore, "[s]ummary judgment maybe entered only in cases where the right is clear and free from doubt." Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). Pursuant to this standard, the facts of No. 3750 Civil 1990 this case may be summarized as follows: Beginning in the early spring of 1988,1 Plaintiff was employed by AC&S, a subcontractor hired to perform construction work at the New Cumberland Army Depot.' During this time, Plaintiff was involved in installing insulation inside the warehouse at the Depot,' and "[a]s part of the regular and normal performance of his job, [he] was required to utilize [personal lifts] in order to ascend and descend from the rafter area of the warehouse."' On November 17, 1988, Plaintiff was using an 80 -foot Lift Work Platform allegedly manufactured and sold by Defendant three years earlier.' At the end of his shift on the aforementioned date, Plaintiff "docked the basket [of the lift] up to the landing" and exited the lift.' At this time, Plaintiff was told by his foreman to turn the key off at the base of the lift.' In order to do so, Plaintiff had to descend a ladder 1 Deposition of David Neuman, July 30, 1991, N.T. 13 (hereinafter N.T. --). 2 Plaintiffs Complaint, paragraph 11. 3 N.T. 14. ' Plaintiff's Complaint, paragraph 12. 5 Plaintiff's Complaint, paragraphs 6, 16. The record is unclear as to whether Plaintiff was in fact using a lift manufactured by Defendant. In his deposition, Plaintiff stated that he thought the unit was manufactured by Defendant, but he "couldn't say for sure." N.T. 79. 6 N.T. 45. 7 N.T. 64. No. 3750 Civil 1990 to the ground floor of the warehouse.' While Plaintiff was descending the ladder, he noticed that "[t]here was oil everywhere,"' and as Plaintiff was walking toward the front of the lift, he slipped and fell on the fluid which had accumulated on the concrete floor. io With respect to the slippery substance on the floor, Plaintiff stated in his deposition that he could tell that it was hydraulic fluid," and that hydraulic fluid was substantially more slippery than motor oil.12 Moreover, Plaintiff stated that he was aware that the fluid on the floor created a hazardous condition in that it was slippery and created the possibility that he could fall." Plaintiff also stated that he knew the lift was leaking oil and that he had informed his foreman of this fact.14 However, Plaintiff also stated that he had never seen anybody repairing the leak; nor, according to his testimony, was he ever told that the leak had been repaired." Despite this 8 N.T. 45. It is apparent in Plaintiff"s deposition that it was not necessary for him to descend the ladder or proceed through the oil in order to exit the subject lift. 9 N.T. 47. 10 N.T. 45. 11 N.T. 61. 12 N.T. 62. 13 N.T. 85. 14 N.T. 36, 40. 15 N.T. 40. 3 No. 3750 Civil 1990 awareness of the fluid, Plaintiff contends that he proceeded through it because he felt that "[f]ailure to [do so] could [have led] to termination from his employment.i18 Plaintiff has commenced the present strict liability action against Defendant, alleging that the "lift ... was defective in design and or manufacture, which defective condition resulted in the oil leak which caused [P]laintiff to fall.t17 Following discovery in this case, Defendant filed the instant motion for summary judgment, contending that 1) when the subject lift was sold by Defendant three years prior to Plaintiffs accident, it was inspected for defects, and any defects found were corrected;18 and that 2) Plaintiff was aware of the hydraulic fluid beneath the subject lift and "deliberately walked into it, knowing its slippery propensities."19 Consequently, Defendant is requesting this Court to enter summary judgment in its favor and against Plaintiff. It is well settled in Pennsylvania that "[a] manufacturer or seller is strictly liable if a defect in its product causes injury to a user." Burch u. Sears, Roebuck and Co., 320 Pa. Super. 444, 450, 467 A.2d 615, 618 (1983), citing Restatement (Second) of Torts 16 Plaintiff"s Brief, at 22. 17 Plaintiff's Complaint, paragraph 24. Plaintiff had also contended that the lift was defective in that it failed to carry appropriate warning signs." Plaintiff's Complaint, paragraph 25. However, during oral argument, Plaintiff's counsel indicated that this legal theory was no longer being pursued. 18 Defendant's Motion for Summary Judgment, paragraphs 1-3. 19 Id., paragraphs 7-8. 4 No. 3750 Civil 1990 §402A (1965). To succeed with such a cause of action, a plaintiff must prove that the defect in the product existed at the time the product left the defendant's control. Toth v. Economy Forms Corp., 391 Pa. Super. 383, 571 A.2d 420 (1990), allocatur denied, _ Pa. _, 593 A.2d 422 (1991). Generally, the fact that a malfunction occurred with a product can be presented as circumstantial evidence that the product was defective when it left the manufacturer's control. D'Antona v. Hampton Grinding Wheel Co., 225 Pa. Super. 120, 310 A.2d 307 (1973). However, "if a product originally reaches the consumer as manufactured, and the plaintiff alleges a defect due to a malfunction, ... secondary causes, such as wear, tear and deterioration may be found to have negated the causal link between the original condition of the product and the accident." Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 453, 467 A.2d 615, 620 (1983). For this reason, "[t]o succeed on a malfunction theory, [the plaintiff has] to present a case -in -chief evidencing the occurrence of the malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction." O'Neill v. Checker Motors Corp., 389 Pa. Super. 430, 435, 567 A.2d 680, 682 (1989). With respect to eliminating the secondary causes of the malfunction, the Supreme Court of Pennsylvania has held that "[t]he question of when and where a defect originated should be left to the finder of fact so long as 'reasonable and well balanced minds [could] be satisfied from the evidence adduced that the defective R No. 3750 Civil 1990 condition existed when the machine was delivered [citations omitted]."' Kuisis v. Baldwin -Lima -Hamilton Corp., 457 Pa. 321, 334, 319 A.2d 914, 922 (1974), quoting Greco v. Buccieoni Engineering Co., 407 F.2d 87, 90 (3d Cir. 1969). Moreover, "[t]he age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact." Id. at 336, 319 A.2d at 923. In light of the foregoing authority, we cannot say as a matter of law that Defendant is entitled to judgment in its favor based upon its contention that no defects were discovered in the lift before it was delivered, three years prior to Plaintiffs accident. The mere passage of time does not, in and of itself, insulate a manufacturer from liability for a potentially defective product. As indicated in Kuisis, the age of the lift must be weighed with other factors such as its expected useful life and the stress to which it has been subjected since Defendant sold it, and the weighing of these factors is a matter to be left to the trier of fact. With respect to Defendant's contention that "Plaintiff saw the pool of hydraulic fluid before the accident and ... deliberately walked into it, knowing its slippery propensities," it should be noted that, in "cases brought pursuant to 402A (strict liability theory), ... assumption of the risk remains a viable affirmative defense." Howell v. Clyde, _ Pa. _, _ n.10, 620 A.2d 1107, 1113 n.10 (1993). In this regard, "when the plaintiff places himself in a position of danger, while consciously aware of [e No. 3750 Civil 1990 and appreciating the danger, and not as a result of momentary inattention or inadvertence, he may be found to have assumed the risk, thus precluding liability." Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 452, 467 A.2d 615, 619 (1983). Thus, if the plaintiff "knows of the defect and voluntarily and unreasonably proceeds to use the product or encounter a known danger, this should preclude recovery and constitute a complete defense to the action even in cases of strict liability." Ferraro v. Ford Motor Co., 423 Pa. 324, 327, 223 A.2d 746, 748 (1966) (emphasis in original). In his brief, Plaintiff contends that since operating the lift and turning off the key was part of his employment, and since failure to do so might have resulted in his termination, he could not have voluntarily assumed the risk.20 In so contending, Plaintiff relies upon the holding of Draper v. Airco, Inc.," in which the Third Circuit Court of Appeals stated that "[o]ne who undertakes a dangerous work task for fear of being fired if he or she refuses can hardly be said to have undertaken the risk voluntarily." Draper v. Airco, Inc., 580 F.2d 91, 102 (3d Cir. 1978). Our research on this issue, however, has revealed a case decided in the Court of Common Pleas of Philadelphia County which we believe to be more applicable to the facts of the present case: Muller v. Midstates Equipment Service, Inc., 11 Pa. D. & C.3d 115 (Philadelphia Co. 1979). The Court in Muller recognized a manufacturer's 20 See Plaintiff's Brief, at 22. 21 580 1F.2d 91 (3d Cir. 1978). 7 No. 3750 Civil 1990 affirmative defense of assumption of the risk, despite the plaintiff's contention that he was compelled to confront the risk for fear of loss of employment. In that case, the Court stated that "we do not believe that economic coercion can vitiate the voluntariness component of assumption of risk, at least in a situation where the defendant raising the defense was not plaintiffs employer." Id. at 123-24. While recognizing that economic duress may vitiate the voluntariness element of the defense under certain circumstances, the Court in Muller reasoned that "[i]f any economic duress was exerted against [the plaintiff], it was by his employer, and [the manufacturer] should not be required to have foreseen such coercion or bear responsibility for it." Id. at 126. Based upon the reasoning of Muller, as well as the facts contained in the record, we are constrained to grant Defendant's motion for summary judgment on its assumption of the risk defense. As Plaintiff stated in his deposition, he had noticed that there was hydraulic fluid on the floor as he was approaching the base of the lift. Plaintiff stated that he was aware of the slippery nature of the hydraulic fluid and that its presence on the floor created a hazardous condition. In this regard, Plaintiff argues that, although he was aware of the dangerous condition on the floor, he was told by his foreman to turn off the lift, and his "[f]ailure to ... follow the foreman's instructions E:3 No. 3750 Civil 1990 could [have led] to termination from his employment."' In accordance with Muller, however, we cannot say that Defendant can be required to have foreseen and bear responsibility for any alleged coercion by Plaintiff's employer. For this reason, the following Order will be entered: ORDER OF COURT AND NOW, this 3 j st day of August, 1993, upon careful consideration of Defendant's Motion for Summary Judgment, as well as the briefs and oral arguments submitted on the matter, Defendant's Motion is GRANTED. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Larry B. Selkowitz, Esq. 127 State Street Harrisburg, PA 17101 Attorney for Plaintiff Alan R. Boynton, Jr. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-11766 Attorney for Defendant High Reach Company, Inc. zz Plaintiff's Brief at 22. It should be noted that, based upon our review of the record, we cannot find any evidence which would lead to the conclusion that Plaintiff would have been terminated had he refused to proceed through the hydraulic fluid. D No. 3750 Civil 1990 Arthur H. Stroyd, Esq. Mellon Square 435 Sixth Avenue Pittsburgh, PA 15219 Attorney for Defendant JLG Industries, Inc. Pamela S. Parascandola, Esq. 2931 North Front Street Harrisburg, PA 17110 Attorney for Additional Defendant, McClure Company :rc 10