In its recent decision in the case of Zimmerman v. Andrew, No. 662 WDA 2017 (Pa. Super. June 1, 2018
Bowes, J., Panella, J. and Stabile, J.) (Op. by Bowes, J.), the Pennsylvania
Superior Court reversed a trial court’s entry of summary judgment in favor of a
Defendant in a products liability case.
According to the Opinion, the Plaintiff was injured when a
safety harness he was utilizing while cutting down a tree allegedly failed when
the Plaintiff was 35 feet up in a tree and the Plaintiff fell to the ground and
sustained personal injuries.
The record before the court indicated that the Plaintiff had
gone to the home of his friend to cut down a dead tree at the request of the
friend. The friend had obtained the
harness from another friend who had purchased the harness but never used
it. The harness came with paper instructions.
The Plaintiff skimmed the instructions but did not thoroughly read the
instructions. The Plaintiff also
admittedly saw a warning label on the harness itself but did not read it
completely.
The Plaintiff, who had limited personal experience using a
harness in construction work and from seeing them used on television programs
featuring people cutting trees, thought the use of the harness was
self-explanatory.
However, the Plaintiff and his friend put the harness on the
Plaintiff backwards.
Thereafter, when the Plaintiff utilized the harness to bear his weight high up in the tree, the harness failed and the Plaintiff fell to the ground.
Thereafter, when the Plaintiff utilized the harness to bear his weight high up in the tree, the harness failed and the Plaintiff fell to the ground.
The Plaintiff sued the manufacturer of the harness under
claims of strict product liability, negligence, and breach of warranty.
The Plaintiff more specifically alleged that the harness was
sold with insufficient strength and durability such that it was unreasonably
dangerous. The Plaintiff also asserted that the harness was sold with inadequate warnings regarding the proper
use of the device.
In its defense, the Defendant asserted the defenses of misuse of the
product and comparative negligence.
More specifically, the Defendant asserted that the harness was intended for use on construction projects by workers trained on how to use it and that the Plaintiff’s use of the device in a tree without training was a misuse, not an intended use, and further was not foreseeable. The defense also asserted that the Plaintiff was wearing the harness backwards.
More specifically, the Defendant asserted that the harness was intended for use on construction projects by workers trained on how to use it and that the Plaintiff’s use of the device in a tree without training was a misuse, not an intended use, and further was not foreseeable. The defense also asserted that the Plaintiff was wearing the harness backwards.
The trial court had entered summary judgment after finding that
“[t]here is absolutely nothing that we would make a manufacturer think that”
someone would use the product as the Plaintiff did and that “it would be a
waste of time to take this to a jury” because the jury would have to find in
favor of the Defendant if they followed the court’s instructions as to the
law.
On appeal, the Pennsylvania Superior Court reviewed the current status of
Pennsylvania strict liability law under §402A of the Restatement (Second) of Torts
as well as under general negligence principles given the Plaintiff’s separate claims in
this regard. The Superior Court confirmed
that, under the current status of Pennsylvania law, the Plaintiff’s use of the
harness in an unforeseeable or highly reckless manner could serve to defeat the
Plaintiff’s §402A claim.
Citing to Reott v. Asia Trend,
Inc., 55 A.3d 1088, 1097 (Pa. 2012), the Superior Court noted that the
Pennsylvania Supreme Court had recognized that product misuse and
highly-reckless conduct are affirmative defenses to a strict liability
claim. According to Reott, to establish a misuse of the
product, the Defendant must show that the use was “unforeseeable or
outrageous.”
The Reott court
had noted that highly reckless conduct is akin to evidence of misuse and requires the
Defendant to prove that the Plaintiff would have been injured despite the
curing of the alleged product defect, or that the misuse of the product by the plaintiff was so extraordinary and
unforeseeable as to constitute a superseding cause.
The court in this Zimmerman case went on to note, citing other precedent, that it is
“well-settled that a plaintiff’s misuse of
a product cannot be grounds for granting summary judgment in favor of the
manufacturer under a designed defect theory unless it is established that the
misuse solely caused the accident
while the design defect did not contribute to it.” See Op.
8. [emphasis in Zimmerman].
In this Zimmerman
decision, the court pointed to various issues of fact, along with issues raised
by the parties' experts, to conclude that
the Plaintiff tendered sufficient evidence that, if accepted by the jury, would
establish that the harness was defective, that the Defendant was negligent in
the product’s design and instructions, and that these deficiencies were
a proximate cause of the Plaintiff’s injuries.
As such, the Superior Court found that it was error for the trial court to rule on the record before it that the Plaintiff’s misuse of the harness was the sole cause of the accident.
The Superior Court also ruled that there were material issues of fact relative to the negligence issues such that the Plaintiff’s negligence claims should also be allowed to proceed to the jury.
As such, the Superior Court found that it was error for the trial court to rule on the record before it that the Plaintiff’s misuse of the harness was the sole cause of the accident.
The Superior Court also ruled that there were material issues of fact relative to the negligence issues such that the Plaintiff’s negligence claims should also be allowed to proceed to the jury.
In light of the its other conclusions, the Superior Court
additionally allowed the Plaintiff’s breach of warranty claim to also proceed
to the jury.
Anyone wishing to review a copy of this decision may click
this LINK.
I send thanks to Attorney Kenneth T. Newman of the
Pittsburgh office of Thomas Thomas & Hafer for bringing this case to my
attention.
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