Berkebile v. Brantly Helicopter Corp.
Berkebile v. Brantly Helicopter Corp.
Opinion of the Court
OPINION
This case is before us on a grant of allocatur.
Brantly manufactured the small, two-person, B-2 model helicopter in October of 1961. Addressing itself to the general aviation market, the advertising described the helicopter as “safe, dependable,” not “tricky to operate,” and one that “beginners and professional pilots alike agree ... is easy to fly.” Brantly had experienced some difficulties in designing its rotor blades and autorotation in the development stage and modified the system to some degree prior to its distribution. In January, 1962, Mr. Berkebile, a businessman, purchased the
*91 (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused thereby to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product; and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
The defendant, denying the existence of any defective condition in its product, theorized that the helicopter’s rotor blade had. fractured due to an abnormal use brought about by power failure resulting from fuel exhaustion, followed by a failure on decedent’s part to push down the collective pitch in time to go into autorotation and to effect a proper emergency landing.
Plaintiff contends on appeal that the trial court erred in charging the jury on' the law to be applied to these facts and erred in several of its evidentiary rulings. A review of the record and of the court’s charge in particular, when taken as a whole, demonstrates a basic confusion concerning the principles of strict liability in torts. Despite the diligent efforts of the trial judge to conform his charge to the law, this case has been tried twice and, regretfully, must be tried for the third time. Although we have recognized strict liability recovery since our decision in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), it is apparent that the lack of clearly articulated standards has generated much misinterpretation.
“Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective article in the stream of commerce and then to avoid responsibility for damages caused by the defect.”
Strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the de
The crucial difference between strick liability and negligence is that the existence of due care, whether on the part of seller or consumer, is irrelevant. The seller is responsible for injury caused by his defective product even if he “has exercised all possible care in the preparation and sale of his product.” Restatement (Second) of Torts, § 402A(2)(a). As we declared in Salvador, supra, 457 Pa. at 32, 319 A.2d at 907, the seller “may not preclude an injured plaintiff’s recovery by forcing him to prove negligence in the manufacturing process.” What the seller is not permitted to do directly, we will not allow him to do indirectly by injecting negligence concepts into strict liability theory. In attempting to articulate the definition of “defective condition” and to define the issue of proximate cause, the trial court
Section 402A recognizes liability without fault and properly limits such liability to defective products. The seller of a product is not responsible for harm caused by such inherently dangerous products as whiskey or knives that despite perfection in manufacture, design or distribution, can cause injury. See Restatement (Second) of Torts, § 402A, comment i. At first glance, however, it would appear that the section does impose a contradictory burden of proof in that the defect also be “unreasonably dangerous.” An examination of comment i indicates that the purpose of the drafters of the clause was to differentiate those products which are by their very nature unsafe but not defective from those which can truly be called defective.
“The result of the limitation . . . has not been merely to prevent the seller from becoming an insurer of his products with respect to all harm generated by their use. Rather, it has burdened the injured plaintiff with proof of an element which rings of negligence. As a result, if, in view of the trier of fact, the ‘ordinary consumer’ would have expected the defective condition of a product, the' seller is not strictly liable, regardless of the expectations of the injured plaintiff.
“We recognize that the words ‘unreasonably dangerous’ may . . . serve the beneficial purpose of preventing the seller from being treated as the insurer of its products. However, we think that such protective end is attained by the necessity of proving that there was a defect in the manufacture or design of the product, and that such defect was a proximate cause of the injuries.”
Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 132-33, 104 Cal.Rptr. 433, 441, 501 P.2d 1153, 1161 (1972); in accord, Glass v. Ford Motor Co., 123 N.J.Super. 599, 304 A.2d 562 (1973).
We hold today that the “reasonable man” standard in any form has no place in a strict liability case. The salutary purpose of the “unreasonably dangerous” qualification is to preclude the seller’s liability where it cannot be said that the product is defective; this purpose can be met by requiring proof of a defect.
The trial court further confused the standards of strict liability in its charge on proximate cause. The court charged that, in order for it to be said that a defect caused plaintiff’s injury, “such a consequence, under all the surrounding circumstances of the case, must have been foreseeable by the seller.” To require foreseeability is to require the manufacturer to use due care in preparing his product. In strict liability, the manufacturer is liable even if he has exercised all due care. Restatement (Second) of Torts, § 402(A)(2)(a). Foreseeability is not a test of proximate cause; it is a test of negligence. Hoover v. Sackett, 221 Pa.Super. 447, 451, 292 A.2d 461, 463 (1972). Because the seller is liable in strict liability regardless of any negligence, whether he could have foreseen a particular injury is irrelevant in a strict liability case. In either negligence or strict liability, once the negligence or defective product is shown, the actor is responsible for all the unforeseen consequences thereof no matter how remote, which follow in a natural sequence of events. Hoover, supra.
The trial court further erred in charging the jury separately on the issue of “abnormal use.” On this issue the court charged in part:
“The defendant is not liable if the product is used in an abnormal manner, or in a way in which it was not*98 designed to be used. ... If you take a helicopter and use it abnormally . . ., and such improper use was the proximate cause of the accident, that does not make the helicopter defective. ... It must be used normally and properly in order for it to be defective and dangerous. ... If you push the collective lever down and go into autorotation within the necessary time, then you are using it normally, but if you do not do it then you are not using it normally.”
On plaintiff’s theory that the helicopter was designed defectively in that there was not enough time for the average pilot to effect autorotation safely, the question of “necessary time” to go into autorotation was the plaintiff’s entire case. Under this theory, plaintiff agreed that the decedent did not achieve autorotation but argued that this was because of the defect in that system’s design. When the trial judge drew the factual and legal conclusions for the jury that if plaintiff’s decedent did not place the helicopter in autorotation there could be no recovery, it was tantamount to his directing a verdict against plaintiff on this theory. Such charge was error.
The evidence such as was introduced by the defense in this case under the guise of “abnormal use” was admissible but for a different purpose. Plaintiff must prove a defect existing in the product at the time the product left the seller’s hands and he must prove proximate cause. If the seller can prove the defect arose from use after sale he would not be liable. Plaintiff contended that the blade fractured because of a defect in manufacture; defendant’s contention that the blade fractured from impact with the “stops” rebutted the contention of this defect. Plaintiff contended the autorotation system was defective because it gave a pilot insufficient time to activate it. The autorotation system is a safety device existing for the sole purpose of preventing a crash in the event of engine failure for any reason. The reason the engine failed is irrelevant. Even defendant’s argument
The trial court’s charge on “abnormal use” permitted the jury to conclude that an alleged failure on decedent’s part to determine the amount of gas available
A “defective condition” is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff’s injury, the seller is strictly liable without proof of negligence.
“Comment h to the section [402-A] makes it clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a ‘defective condition.’ ” Incollingo v. Ewing, et al., 444 Pa. 263, 287, 282 A.2d 206, 219 (1971).
The question for the jury concerning warnings was whether the warnings appearing in the flight manual and the cockpit placard were sufficient to make Mr. Berkebile aware of the dangers of power failure and delayed autorotation, and whether said warnings adequately conveyed the urgency of the situation and the need to react almost instantaneously. If the jury determines that the helicopter was in a defective condition by the failure to provide sufficient warnings and directions for use, the seller is liable for all harm caused thereby.
It must be emphasized that the test of the necessity of warnings or instructions is not to be governed by the reasonable man standard. In the strict liability context we reject standards based upon what the “reasonable” consumer could be expected to know, or what the “reasonable” manufacturer could be expected to “foresee” about the consumers who use his product. Compare Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945); Thomas v. Avron Products Co., 424 Pa. 365, 227 A.2d 897 (1967) (negligence actions where we recognize the affirmative duty of a seller to give warnings but base it on the reasonable man standard). Rather, the sole question here is whether the seller accompanied his product with sufficient instructions and warnings so as to make his product safe. This is for
Where warnings or instructions are required to make a product nondefective, it is the duty of the manufacturer to provide such warnings in a form that will reach the ultimate consumer and inform of the risks and inherent limits of the product. The duty to provide a non-defective product is non-delegable. Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 130 (9th Cir. 1968); see, e. g., Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 26-27, 68 A.2d 517 (1949).
The trial judge refused to charge the jury separately on the issue of misrepresentation under Restatement (Second) of Torts, § 402B, stating that the advertising claims were part of the warning issue under Section 402A rather than a separate issue under Section 402B. Plaintiff contended that brochures stating that “you are assured of a safe, dependable helicopter” and that the helicopter was “easy to operate” were a misrepresentation of material facts concerning the character or quality of a chattel. Misrepresentation must be distinguished from mere “puffing.” We find these statements do not constitute misrepresentations of material
The order of the Superior Court is affirmed.
. This case was tried
. § 402A Special Liability of Seller of Products for Physical Harm to User or Consumer.
. The term “seller” is used generically to include all suppliers of products who, because they are engaged in the business of selling or supplying a product, may be said to have “undertaken and assumed a special responsibility” toward the consuming public and who are in a position to spread the risk of defective products. Restatement (Second) of Torts § 402A, comment c. The actual form of the transactions of such suppliers, whether by sale, lease or bailment, should not alter their obligations. Occasional suppliers who are not in the business of selling or supplying such products are not “sellers” subject to strict liability.
. This concept is not entirely a new one. For example, in state and federal food and drug law we have long recognized the imposition of even criminal responsibility on the part of one who handles adulterated or mislabelled products despite all due care and good intention on his part. This imposition of criminal liability in food and drug law without fault is analogous to the civil liability without fault imposed upon the seller of defective products under § 402A.
. The history of the drafting of the comments to § 402A reveals that the drafters particularly had in mind here products which are ingested. An examination of the comment shows that it reads that “[m]any products cannot be made entirely safe for all consumption, and any food or drug necessarily involves some risk Of harm, if only from over-consumption.”
. The Restatement commentary suggests an objective test looking to the reasonable expectations of the “ordinary consumer ., with the ordinary knowledge common to the community as to [the product’s] characteristics.” Restatement (Second) of Torts, § 402A, comment i. Others suggest an objective test looking instead to the reasonable seller, submitting as the issue whether he, if he had known of the condition of the product,
. Plaintiff also contended that the rotor blade was defective, since, if it fractured as defendant contended when it struck the “stops,” it should have been designed or manufactured in such a manner as to withstand this impact. Because this also assumes engine failure, the circumstances leading to such engine failure are irrelevant.
. Plaintiff additionally contended that, if the decedent failed to activate the autorotational system in time to avoid loss of control, such failure was caused by a defect in the warnings and instructions accompanying the aircraft. If the jury found such to be the case, the decedent’s failure to activate the safety system would not insulate the defendant from liability.
. Since a new trial is required, we note several of the trial court’s rulings on evidence.
The trial judge excluded a memorandum of defendant’s chief test pilot to the defendant’s president dated January 24, 1960, as hearsay. The memorandum was written by Captain Erickson while he was an agent of defendant in the course of his duties and within the scope of his authority, and thus is admissible as substantive evidence against the defendant. Also, any letters from defendant to the FAA, if relevant at the new trial, are admissible as admissions if the proper foundation for their admission is laid. Any certified copies of FAA records and documents such as airworthiness directives, if relevant, are not inadmissible on the basis of hearsay if a foundation is also laid. See P.L.E., Evidence, § 191; Paxos v. Jarka, 314 Pa. 148, 171 A. 468 (1934).
Concurring Opinion
(concurring).
It is by now settled that a product which is perfectly made may nonetheless be “unreasonably dangerous” if adequate warnings of the dangers involved in the use of the product are required and are not given by the seller. Restatement (Second) of Torts, § 402A, comment h; Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 209 (1971). See also Patch v. Stanley Works (Stanley Chemical Co. Div.), 448 F.2d 483 (2nd Cir. 1971); Prosser on Torts, 659 (4th Ed., 1971; 63 Am.Jur.2d, Products Liability, § 42 at 53. I concur in the decision of the Court affirming the grant of a new trial because I am satisfied that the trial judge in his charge did not suffi
While the portion of the charge dealing with this subject was in general correct as far as it went, it failed to apprise the jury that where a product contains inherent dangers to human life there is a mandatory duty on the seller of the product to give warnings to the user or consumer which are adequate to inform him of such dangers, and that when such a product is sold without adequate warnings, the product is sold in a “defective condition” within the meaning of the law on strict liability.
The deficiency of the charge in this regard was, in my view, sufficiently serious to require a new trial.
. A charge substantially to this effect was requested by appellee but refused by the trial court.
. Defendant introduced expert testimony to the effect that a precise statement of time within which to achieve autorotation could not be given because the time required depended on a number of variables, such as weight of the aircraft (which is in turn related to the amount of fuel on board), the power setting and the pitch of the blades when the power failed, the angle of ascent and the reaction time of an “average” pilot.
Concurring Opinion
(concurring).
The trial court instructed the jury that if the pilot of the helicopter failed to place the helicopter in autorotation in time to prevent a crash, he used the helicopter in an abnormal manner and his estate would be barred from recovery. Because this instruction improperly withdrew from the jury’s consideration one of appellant’s theories of recovery — that the helicopter was defectively designed so as to make it impossible for the pilot to place the helicopter in autorotation — I concur in the majority’s decision affirming the Superior Court’s grant of a new trial.
Reference
- Full Case Name
- Catherine K. BERKEBILE, Executrix Under the Will of Cloyd C. Berkebile v. BRANTLY HELICOPTER CORPORATION, Appellant
- Cited By
- 412 cases
- Status
- Published