Bascelli v. Randy, Inc.
Bascelli v. Randy, Inc.
Opinion of the Court
In this action to recover for personal injuries sustained in a one vehicle accident allegedly caused by the defective front end assembly of a motorcycle, the trial court excluded evidence of a post-accident admission made by the plaintiff-cyclist that the accident had not been caused by a defective motorcycle but by his loss of control while travelling at 100 miles per hour. A jury returned a verdict in favor of the cyclist and against the manufacturer for $1,750,000.00, on which judgment was entered following denial of post-trial motions. On appeal, we reverse and remand for a new trial.
On October 30, 1976, James Bascelli and Dana Tegler were driving their chopper-style motorcycles on Route 291, a four lane divided highway in Delaware County, when
The front end assembly had been manufactured by Randy, Inc., the appellant. It consisted of a handlebar, two risers and two cap screws. The assembly was sold to Bascelli with a container of Locktite, a screw-locking compound, in October, 1972, by East Coast Cycle Supply.
During pre-trial depositions, Anthony Pierantozzi, the retailer of the .front end assembly, described a conversation which he and Bascelli had had several months after the
Before a manufacturer can be found strictly liable for damages caused by his product, it must be shown that his product was defective and that the defect was a substantial factor in causing plaintiff’s injuries. Sherk v. Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d 615, 617 (1982) (plurality opinion); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975) (plurality opinion); Swartz v. General Electric Co., 327 Pa.Super. 58, 66, 474 A.2d 1172, 1176 (1984). “The progress of the law in extending liability without fault to product suppliers [has not been] in disregard of fundamentals pertaining to the tort law of causation.” Oehler v. Davis, 223 Pa.Super. 333, 334, 298 A.2d 895, 895 (1972).
In the instant case, the cause for Bascelli’s losing control of his motorcycle was an issue of fact for the jury. An admission by Bascelli that he had lost control of the cycle while going 100 miles per hour was significantly relevant and extremely important evidence. It was admissible to show the cause of the accident;
Because the evidence was relevant to show the cause of the accident it could not properly be excluded, as the trial
Appellee, hard pressed to justify the exclusion of this relevant evidence, argues that appellant’s offer of proof was inadequate. This argument is lacking in merit. The record shows that as soon as appellant’s counsel had asked Pierantozzi about a meeting with Bascelli, the latter’s counsel asked for a side-bar conference, where he requested an offer of proof. When appellant’s counsel referred to the testimony which Pierantozzi had given during pre-trial depositions, he was interrupted before he had completed the offer of proof which Bascelli’s counsel had requested. No sooner had appellant’s counsel mentioned Bascelli’s admission that he had been going a hundred miles per hour than Bascelli’s counsel interjected, “So what?”. Appellant’s counsel answered this interjected question by saying that
The offer of proof, however, had contained a clear statement that Bascelli’s admission of excessive speed was being offered to show the cause of the accident. Such an offer was certainly sufficient “to state the purpose [of the evidence] in a manner that the court [could] perceive its relevancy.” Societa Palmolese Di Protezione E Beneficenza v. Maiale, 143 Pa.Super. 403, 407, 17 A.2d 925, 927 (1941). Accord: Martin v. Johns-Manville Corp., 322 Pa. Super. 348, 356, 469 A.2d 655, 658 (1983), appeal docketed, 33 W.D. Appeal Dkt. 1984 (April 2, 1984). Thus, even though appellant’s counsel was interrupted before completing his statement of the offer so as to include the entirety of Bascelli’s admission, the trial court had enough informa
Appellant has asserted additional trial errors which also have merit. The evidence at trial showed that when the front end assembly had been sold to Bascelli, it had come with a container of Locktite. Appellant offered to show that the properties of Locktite were such that it was a recommended screw-locking device. The trial court refused to allow the evidence on grounds that it was irrelevant to the condition of the assembly when it left the manufacturer. This was error.
One who sells a product in a defective condition unreasonably dangerous is subject to liability for physical harm caused thereby if “it is expected to and. does reach the user or consumer without substantial change in the condition in which it is sold.” Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966), quoting Restatement (Second) of Torts § 402A(l)(b) (1965). If a product is altered to make it safer after leaving the manufacturer but before reaching the consumer, the change is clearly relevant. In the instant case, the manufacturer was charged, inter alia, with defectively designing a product which lacked a locking device that would prevent a screw from being loosened by the jolting and bouncing to which a motorcycle would foresee-ably be subjected. It was relevant, in view of this claim, to show that when the front end assembly had been sold
It was also error to remove from the jury the issue of Bascelli’s voluntary assumption of the risk. If either screw had been of inadequate length, this fact should have been readily observable by the person who installed the front end assembly and who inserted and tightened the screws. In this case, the front end assembly had been installed by Bascelli himself. He had previously worked in his father’s machine shop and admittedly had been aware that bolts came in different sizes and were susceptible to disengagement because of vibration. It was arguable, therefore, that Bascelli had knowingly made use of an inadequate screw to install the front end assembly on his motorcycle. There was also evidence from which, if believed, a jury could infer that he had used Locktite only on one screw.
In Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966) the Supreme Court held unequivocally that if a buyer knows of a defect and voluntarily and unreasonably proceeds to use the product or encounter a known danger, this will constitute a defense to and preclude recovery in an action based on strict liability under Section 402A of the Restatement (Second) of Torts. Id., 423 Pa. at 327, 223 A.2d at 748. Accord: Berkebile v. Brantly Helicopter
This was not a case in which the issue of voluntary assumption of the risk could properly be taken from the jury and decided by the court. The issue should have been submitted to the jury upon proper instructions. There was evidence from which a jury could have inferred that Bascelli had voluntarily assumed a known risk or danger.
Because the case must be retried before another jury, we do not decide whether the amount of the verdict was excessive. Granting or refusing a new trial in the face of such an argument, it may nevertheless be observed, is within the discretion of the trial court whose exercise thereof will not be reversed in the absence of a clear abuse of that discretion. Dougherty v. Sadsbury Township, 299 Pa.Super. 357, 360, 445 A.2d 793, 795 (1982).
Reversed and remanded for a new trial. Jurisdiction is not retained.
. This was the fictitious name under which Anthony D. and Patricia R. Pierantozzi conducted a retail parts business in Delaware County.
. The evidence was conflicting as to whether the two cap screws supplied with the assembly had been of unequal length. The manufacturer contended that Bascelli had used a screw different than the screws supplied by the manufacturer.
. The evidence was not offered to impeach the trial testimony of the witness by showing a prior inconsistent statement; and, therefore, we have not considered its admissibility for that purpose.
. The record discloses the following:
MR. BOGDANOFF: ... in this deposition he said that the plaintiff was in his place, the plaintiff told him at the time of this accident he was going a hundred miles an hour—
MR. RICHARD: So what?
MR. BOGDANOFF: —the jury is entitled to know the circumstances under which this accident happened to determine for themselves what the cause of the accident was.
MR. RICHARD: Your Honor, speed would be at best evidence of contributory negligence and nothing more and that would be the worst prejudicial error in this case.
MR. BOGDANOFF: The cause of the accident, sir, is being hidden from this jury in a systematic fashion by excluding each and every one of the issues dealing with why the accident happened.
THE COURT: I will sustain the objection to this line of questioning. (N.T. 676-677).
. The author of the dissenting opinion suggests that our determination creates a second problem with respect to whether appellant’s counsel could elicit Bascelli’s admission from Pierantozzi by the use of leading questions. This is not an issue in the present appeal. Appellant’s counsel was not permitted to inquire regarding Bascelli’s admission by any questions whatsoever, leading or nonleading. Because it was not an issue in the trial court, it also is not an issue and has not been argued in this Court.
Dissenting Opinion
dissenting:
I respectfully dissent. The majority concludes that the offer of proof was “adequate”. After reviewing the record and the briefs, I am constrained to disagree.
It seems clear from the record before us that appellant’s offer failed of its essential purpose. The lower court in its opinion stated:
In addition the Defendant contends that it was precluded from showing that Plaintiff also admitted to Mr. Pierantozzi that there was nothing wrong with the motorcycle and that he simply lost control of the cycle. The record clearly shows that the offer of proof for Randy, Inc. was simply to elicit testimony from Mr. Pierantozzi that the Plaintiff allegedly admitted to him that he had been travelling 100 m.p.h. at the time of the accident. No mention was made of anything else in this offer of proof.
As plaintiff explained, speed as evidence of contributory negligence “would be the worst prejudicial error in this case.”
I note that appellant nowhere introduced or attempted to introduce the deposition into evidence. Nor did he explain that he wanted testimony of speed not to show contributory negligence but rather to establish an independent cause for the accident. Admission or exclusion of evidence lies within the sound discretion of the trial judge. Finding no abuse of that discretion, I would dismiss appellant’s first claim.
In rejecting the claim, I am mindful of the important ends served by an offer of proof. Backlogged courts should not be required to repeat trials, especially civil trials, because
A second problem follows the majority’s resolution of appellant’s first claim. The majority assumes without deciding that one defendant, under guise of cross-examination of a co-defendant, may establish a defense common to both. Counsel for defendant East Coast Supply had called Pierantozzi to the stand. When he concluded, appellant’s counsel questioned the witness. Our Supreme Court has held that prejudicial error results when counsel for one defendant is permitted to introduce a defense, common to both, through leading questions directed to another defendant who is, in fact, part and parcel of the same cause. In re Rogan Estate, 404 Pa. 205, 171 A.2d 177 (1961). “The fact that it was counsel for a defendant, other than the party-defendant being interrogated, is of no moment. The substantialities of the situation must be considered, not mere technicalities.” Id., 404 Pa. at 215, 171 A.2d at 181.
With respect to the remaining issues, I adopt the thoughtful and well-reasoned opinion of the Honorable William Toal, Jr.
I would affirm the order of the court below.
Reference
- Full Case Name
- James BASCELLI v. RANDY, INC., and Anthony D. Pierantozzi and Patricia R. Pierantozzi, Ind. and T/A East Coast Cycle Supply. Appeal of RANDY, INC.
- Cited By
- 34 cases
- Status
- Published