Products Liability; Manufacturer’s Defect; Evidence; Industry and Government Standards
Sullivan v. Werner Company, 253 A.3d 730 (Pa. Super. 2021), allocatur granted June 8, 2022, appeal docket 18 EAP 2022
Michael Sullivan (Sullivan) brought this strict products liability action after falling through a scaffold made by Werner Company and sold by Lowe’s Companies, Inc. (collectively, manufacturers). A jury determined that a design defect caused the accident and awarded Sullivan $2.5 million in damages. On appeal to Superior Court, manufacturer argued that the trial court erred in precluding industry standards evidence.
The relevant factual history is as follows:
Sullivan was working as a union carpenter at a Bucks County Elementary school being renovated. Along with his apprentice Michael Bentzley, Sullivan’s job that day was to install an exterior sheathing called DensGlass to the outdoor walls. Sullivan went to the work site’s container box and retrieved a brand-new Werner SRS 72 scaffold that his foreman bought at a Lowe’s store. As a carpenter with 17 years’ experience, Sullivan had assembled “hundreds” of scaffolds. Sullivan took the scaffold out of the box, read the instructions and assembled the scaffold with help from Bentzley. After setting the scaffold at its tallest height of six feet, Sullivan placed the platform within the side rails and rotated the deck pins to secure the platform. Sullivan and Bentzley then rolled the scaffold through the school, down a ramp and over outdoor asphalt to the wall where they would be working.
At the wall, Sullivan did not need the scaffold to install the bottom two rows of DensGlass pieces, which were eight-by-four feet and about 40 pounds per piece. Sullivan, however, needed the scaffold to install the rip row. After placing the scaffold six inches from the wall, he climbed the rungs to get on the platform and take measurements because the DensGlass pieces were too big for the top row. Sullivan then relayed the measurements to Bentzley at a nearby cutting station. Bentzley would cut the pieces based on the measurements, walk the pieces to the scaffold, rest them on the platform, and slide them up to Sullivan. Sullivan then lifted up the pieces and installed them to the wall with a screw gun.
Sullivan installed the first two pieces with no problems. Each time, he installed the piece, climbed off the platform, unlocked the wheels, rolled the scaffold about eight feet to the next section, relocked the wheels and then climbed back up on the platform. While installing the third piece, Sullivan fell through the scaffold and crashed to the ground, landing on his backside. At trial, Sullivan testified that the platform collapsed beneath him like a “trapdoor.” Bentzley heard the crash and rushed over and saw the same thing. Sullivan told him that he “fell through the scaffold, that the scaffold plank gave way.”
Despite the accident, Sullivan got up after a few minutes and continued working on the scaffold. Later that night, however, he went to the hospital. X-rays revealed that he injured his lumbar vertebrae and fractured his sacrum. Having suffered permanent injuries requiring continual medical treatment, Sullivan has been unable to return to work as a carpenter since the accident.
Slip op. at 3-4. Sullivan initiated a products liability action alleging that the scaffold was defective because of a design defect and failure-to-warn.
Prior to trial, Sullivan filed a motion in limine to bar the admission of any government or industry standards evidence at trial, arguing that courts have generally barred such evidence in strict liability cases. Sullivan further argued that this prohibition was not affected by the Supreme Court’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), which erased the strict distinction between negligence and strict liability. Manufacturers countered arguing that government and industry standard evidence was admissible in strict liability cases following the Supreme Court’s decision in Tincher. The trial court, however, agreed with Sullivan and prohibited Manufacturers from introducing evidence that scaffolds from other manufacturers had deck pins similar to those used in the Werner SRS-72 scaffold.
After a two-week jury trial, the jury returned a verdict in favor of Sullivan and awarded him $2.5 million in damages. Thereafter Manufacturers appealed, challenging the preclusion of industry standard evidence.
Manufacturers argued that Tincher substantially changed the law in strict liability cases, permitting evidence of industry standards. Manufacturer cited three federal district court cases for the proposition that “post-Tincher, government and industry standards is admissible in strict liability cases.” Slip op. at 13. Conversely, Sullivan argued that Tincher did not affect the evidentiary prohibition, pointing to Superior Court’s decision in Webb v. Volvo Cars of North America, LLC, 148 A.3d 474 (Pa. Super. 2016). According to Sullivan, Superior Court’s decision in Webb reestablished the evidentiary prohibition of industry standards evidence in strict liability cases.
To address the issue of using industry and government standards evidence in strict liability cases, Superior Court reviewed the caselaw on this topic. The prohibition on industry standards evidence in strict liability actions began with the Supreme Court’s decision in Azarello v. Black Bros., Co., 393 A.2d 1020 (Pa. 1978). There, the Supreme Court held that “it was improper to introduce negligence concepts into a strict liability case; it was for the court, not a jury, to determine whether a product was ‘unreasonably dangerous’ under the Second Restatement.” Slip op. at 13 n.5. Following Azzarello, the Supreme Court was again confronted with the issue of industry standards evidence in Lewis v. Coffing Hoist Division, Duff-Norton Company, Inc., 528 A.2d 590 (Pa. 1987). There, the Supreme Court concluded that because the product itself is on trial and not the manufacturer’s conduct, industry standards evidence “improperly focuses on the quality of the defendant’s conduct in making its design choice, and not on the attributes of the product itself.” Slip op. at 15 (citing Lewis, 528 A.2d at 594) (internal quotations omitted). Finally, Superior Court, in Gaudio v. Ford Motor Company, 976 A.2d 524 (Pa. Super. 2009), held that the trial court applied Lewis correctly in precluding evidence of a manufacturer’s compliance with industry standards relating to seatbelts. Superior Court extended the Lewis rationale for excluding industry standards evidence to also prohibit government standards evidence. Thus, both Lewis and Gaudio established the prohibitions against both industry and government standards in strict liability actions.
Following these cases, the Supreme Court in Tincher sought to address criticisms of Azzarello’s strict liability approach and to address agitation to adopt Restatement (Third) of Torts: Prods. Liab. §§ 1-4. The Supreme Court, finding that “the separation between negligence and strict products liability neither reflected the realities of practice nor served the interests of justice,” overruled Azzarello, to the extent that it was in tension with the principles outlined in Tincher. Although overruling Azzarello, the Tincher Court declined to adopt the Third Restatement and held that:
[A] plaintiff may prove a product is defective by showing that either: (1) the danger is unknowable and unacceptable to the average or ordinary consumer (consumer expectations standard); or (2) a “reasonable person” would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions (risk-utility standard).
Slip op. at 18 (quoting Tincher, 104 A.3d at 385-91) (internal quotations omitted). Despite overruling Azzarello, the Supreme Court did not overrule Lewis or Gaudio
Addressing the Supreme Court’s decision in Tincher in Webb, Superior Court agreed that the Lewis/Gaudio evidentiary prohibition remained good law because Tincher did not expressly overrule either case, and noted that the Tincher decision did not provide the Webb court with a sufficient basis for disregarding the evidentiary prohibition announced in Lewis and Gaudio.
After reviewing the caselaw, Superior Court observed that while the Supreme Court’s overruling of Azarello in Tincher did cast doubt on Lewis/Gaudio, “no Pennsylvania court has held that Tincher in overruling Azarello paradigm, has implicitly overruled Lewis/Gaudio just because our Supreme Court disavowed the strict separation of negligence concepts from strict products liability law.” Slip op. at 28. Superior Court went on to conclude that it is irrelevant if a product is designed with all possible care including whether it complies with industry and government standards and that therefore “evidence of industry standards may be excluded because those standards do not go to the safety of the product itself but to the manufacturers’ ‘possible care in preparation of product,’” which is not relevant to whether a product is unsafe or whether strict liability is established. Slip op. at 30. Accordingly, Superior Court concluded that the trial court’s decision to exclude industry standards evidence was not unreasonable.
The Supreme Court granted allocatur to consider the following issue:
Was it an error of law, under the product liability principles this Court established in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), to prevent the jury from considering the product’s compliance with pertinent industry and governmental safety standards, where this exclusion of evidence:
(1) was contrary to Tincher’s expressed intent to provide juries with greater, rather than less, ability to decide if an unreasonably dangerous defect exists in a product;
(2) was contrary to Tincher’s recognition that strict liability and negligence substantially overlap in product liability cases, particularly as to the “risk/utility” defect theory plaintiffs pursued in this case; and
(3) would once again leave Pennsylvania product liability law in a distinct minority position, concerning admissibility of compliance evidence.
For more information, contact Kevin McKeon or Dennis Whitaker.