Issues of Fact Allow Strict Liability Case Involving Ladder to Proceed Forward

In the case of Kallok v. Wing Enterprises, Inc., No. 2:21-CV-00805-PLD (W.D. Pa. Sept. 19, 2023 Dodge, M.J.), a federal magistrate judge denied a Defendant’s Motion for Summary Judgment in a Plaintiff’s strict liability, negligence and breach of warranty action over a collapsed ladder.

The court found that the Plaintiff’s liability expert’s testimony was sufficiently reliable and created genuine issues of material fact as to whether or not the ladder was defective at the time of sale, whether the Defendant’s quality control procedures met the expected standard of care, and as to how the ladder was set up.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 5, 2023).

Federal Court Addresses Daubert Motion Relative to Expert Testimony and Motion for Summary Judgment in Products Case

In the case of DiDonato v. Black & Decker (U.S.), Inc., No. 20-CV-4425-JMY (E.D. Pa. Feb. 9, 2022 Younge, J.), the court denied a Motion for Summary Judgment and a Motion regarding the admissibility of expert testimony under Rule 702 in a products liability case.

According to the Opinion, the Plaintiff was allegedly injured while cleaning a vehicle and using a power buffer/polisher manufactured by the Defendant.  

Relative to the issues raised by the defense with respect to the Plaintiff’s expert testimony, the court found that the Plaintiff’s expert’s testimony about an alternative design was admissible under Rule 702. The court noted that the reliability analysis with respect to an expert testimony looks at the reliability of the methodology as opposed to the conclusions of the expert. To be admissible, the expert’s testimony must also assist the trier of fact in resolving a factual dispute.

The court noted that it is not essential that an expert be able to recreate the facts of the accident. The court reasoned in this case that, while the accident in this case happened quickly while the Plaintiff was allegedly distracted while using the Defendant’s power tool, those facts did not preclude the Plaintiff’s expert from opining on the issue of causation.

In another important ruling, the court noted that experts are allowed to rely upon the testimony of witnesses, even where that testimony is disputed.

The court ultimately found that, since the Plaintiff’s expert’s testimony was admissible, the Plaintiff’s risk/utility theory of a designed defect survived the Motion for Summary Judgment.  However, summary judgment was granted with respect to the Plaintiff's claims of a manufacturing defect, and with regards to the breach of express warranties and failure to warn claims.

The court additionally noted that the extent to which the Plaintiff’s alleged carelessness and alleged failure to follow instructions caused the accident was an issue for the jury to decide.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck from the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source of image (not the device in question):  Photo by Khunkorn Laowisit from www.pexels.com.

Summary Judgment Granted in Part and Denied in Part Under Tincher Analysis

In the case of Mercurio v. Louisville Ladder, Inc., No. 3:16-CV-412 (M.D. Pa. May 31, 2018 Mariani, J.), the court granted summary judgment in part and denied it in part in a design defect products liability case. 

The case arose out of a Plaintiff's fall from a ladder.

In this decision, the court noted that the admissibility of the Plaintiff’s design defect expert required a Daubert hearing on the Defendant's Motion in Limine seeking to preclude the Plaintiff's expert from testifying. 

The court additionally found that there was no basis for the Plaintiff’s expert’s opinion that the warnings on the product at issue were defective.  The court noted that the expert’s opinion in this regard was a spur of the moment comment during depositions.    The court additionally found that the Plaintiff’s expert was not qualified to evaluate the warnings at issue.  

Judge Robert D. Mariani
M.D. Pa.

Judge Mariani also concluded that, under the new post-Tincher law, compliance with industry standards by the defense is evidence that a jury may consider as relevant to a product’s risk/utility defect test.  

The court also reaffirmed that the Azzarello case was overruled by the Tincher decision.  

Judge Mariani also confirmed that, under the current status of Pennsylvania products liability law, there is no longer a bright line between negligence and strict liability theories in a given case.  

In the end, the court denied the Defendant's Motion for Summary Judgment relative to the design defect and breach of implied warranty claims.  However, the court did grant the Defendant summary judgment on the claims of a manufacturing defect, inadequate warning, and breach of express warranty.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order entered in the case.

I send thanks for Attorney James M. Beck of the Reed Smith Law Firm in Philadelphia, Pennsylvania for bringing this case to my attention.  

Summary Judgment Reversed in Alleged Misuse of a Safety Harness in a Products Liability Case

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.  

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.

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.  

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.

Summary Judgment Granted in Fall From Ladder Products Liability Case

In the case of White v. The Home Depot, Inc., No. 5:17-cv-4174 (E.D. Pa. May 10, 2018 Leeson, Jr., J.), the court granted Defendants’ Motion for Summary Judgment in Plaintiff’s action for strict liability, negligence, and breach of warranty due to the Plaintiff’s fall off of a ladder while painting his bathroom. 

According to the Opinion, the Defendants contended that the Plaintiff tried to move the ladder while still standing on it.   It was the Plaintiff’s contrary assertion that he did not feel the ladder move before he fell and that he did not know what happened.  

The court noted that the Plaintiff did not allege that there was any mechanically wrong with the ladder, its structure or its design.  

As part of these proceedings, the Defendants moved to exclude the testimony of the Plaintiff’s experts opining that the warnings on the ladder were inadequate.  The court found that this expert testimony was inadmissible because it did not satisfy the reliability and fit requirements.   According to the Opinion, the Plaintiff’s expert did not inspect the ladder or the bathroom floor, did not conduct any witness interviews, and did not reconstruct the accident or even perform any test on the ladder.  

Accordingly, the court held that the Plaintiffs’ claims failed because no reasonable jury could conclude that the ladder was defective.   To the contrary, the court stated that the Defendants did warn of the dangers of the ladder slipping on the surface below and that the Plaintiff knew or that warning.  As the Plaintiff never testified as to any additional warnings he felt that he needed with respect to the ladder and otherwise failed to explain while the general warning not to set the ladder on a loose or slippery surface was inadequate, the court entered summary judgment.  

To review this decision, click this LINK.

Federal Court Dismisses Products Case (in part) Due to Failure to Complete Service and Statute of Limitations Issues

The failure to complete service under the applicable statute of limitations was the issue reviewed in the case of Ginzburg v. Electrolux Home Products, No. 17-3384 (E.D. Pa. Jan. 19, 2018 Quinones Alejandro, J.).   In this matter, the Federal Court granted a Defendant’s Motion to Dismiss due to the Plaintiff’s failure to complete service of process within the applicable statute of limitation. 

In this matter, the case originally was brought in the state court but was removed to federal court.   The Federal Court noted that, even though initial service of process may have been improper in a matter, under 28 U.S.C.§1448, a Plaintiff is permitted to reserve the right to correct such deficiencies once a case has been removed to Federal Court.  

Although the Plaintiff did reserve such rights, the court found that dismissal was still proper on the grounds of improper service of process.  

More specifically, the court ruled that, under Pennsylvania law, Plaintiff’s failure to serve the Defendant properly within ninety (90) days of a filing a Praecipe for Writ of Summons precluded the Writ from tolling the statute of limitations.   Given that the two (2) year tort statute of limitations had expired, the court found that all of the Plaintiff’s products liability and tort claims must be dismissed.

In its Opinion, the court noted that a defective attempt of service at the last minute to the wrong address did not amount to proper service, or even a good faith attempt at service.   The court emphasized that the Defendant never received actual notice of the suit until after the statute of limitations had expired.  

On the breach of warranty claims, the court noted that only the filing of a actual Complaint, and not the defective service of the Writ, could serve to toll the four (4) year statute of limitations applicable to that type of cause of action.  

In this matter, the Complaint did not allege the date that the product was delivered and, as such, the Complaint was deemed to be deficient in pleading the warranty claims.  Accordingly, the court dismissed the breach of warranty claim without prejudice to the Plaintiff’s right to amend the Complaint with allegations of a delivery of the product within the four (4) year period.  

Anyone wishing to review a copy of this decision may click this LINK.  The court's companion Order can be viewed HERE.

I send thanks to Attorney James M. Beck of the Philadelphia office of the law firm of Reed Smith for bringing this case to my attention.