{"id":37434,"date":"2016-03-31T19:25:28","date_gmt":"2016-04-01T00:25:28","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/pretrial-determinations-of-product-safety-is-the-tide-turning.html"},"modified":"2016-05-12T08:16:59","modified_gmt":"2016-05-12T13:16:59","slug":"pretrial-determinations-of-product-safety-is-the-tide-turning","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/litigation-disputes\/pretrial-determinations-of-product-safety-is-the-tide-turning.html","title":{"rendered":"Pretrial Determinations Of Product Safety: Is The Tide Turning?"},"content":{"rendered":"
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For years, Pennsylvania product liability law<\/a> has required a trial court to make an initial determination of whether the design defects alleged, if proven, could be deemed to have rendered the product "unreasonably dangerous" to intended users. Azzarello v. Black Bros. Co., Inc.<\/i>, 480 Pa. 547, 558, 391 A.2d 1020 (1978). For just as long, it seemed many trial judges treated the mandated Azzarello<\/i> analysis as an inconsequential threshold rather than a substantive, risk-value hurdle. Recently, however, some courts have reinvigorated the Azzarello<\/i> analysis by dismissing cases involving consumer misuse or products with high social value.<\/p>\n

Background<\/b><\/p>\n

Under Section 402A of the Restatement (Second) of Torts, sellers are strictly liable for injuries caused by products determined to be in a "defective" and "unreasonably dangerous" condition. In Azzarello<\/i>, the Pennsylvania Supreme Court removed from a jury’s consideration the question of whether a product is "unreasonably dangerous," ruling that the question of social policy was best decided by judges. As the Superior Court later explained, this recognized that there are "certain products [and] certain risks that as a matter or law, or social policy, cannot support the imposition of strict liability." Dambacher by<\/i> Dambacher v. Mallis<\/i>, 336 Pa. Super. 22, 485 A.2d 408 (1984) (en banc), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985). In fact, the phrase "unreasonably dangerous" was included in $402A "specifically to obviate any contention that a manufacturer of a product with inherent possibilities of harm would become automatically responsible for every harm that could conceivably happen from the use of a product." Riley v. Warren Manufacturing, Inc<\/a>.,<\/i> 455 Pa. Super. 384, 397, 688 A.2d 221 (1997).<\/p>\n

In conducting the required Azzarello<\/i> determination, the trial court is to balance the product’s social utility against its unavoidable risks. In so doing, "the judge acts as a combination social philosopher and risk-utility analyst." Ellis v. Chicago Bridge & Iron Co.,<\/i> 376 Pa. Super. 220, 545 A.2d 906 (1988). Azzarello<\/i> entitles defendants to a pretrial judicial review in which the court must balance the nature and usefulness of the product (including its safety features) against the nature and manner of its use (or misuse) by the particular plaintiff.<\/p>\n

Generally, seven factors frame the analysis:<\/p>\n

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  1. What is the overall usefulness and desirability of the product both to the user and to the public as a whole?<\/li>\n
  2. What are the safety aspects of the product, and how likely and serious is the harm it could cause?<\/li>\n
  3. Are there any substitute products which would meet the same need without being unsafe?<\/li>\n
  4. Can the manufacturer eliminate the unsafe character of the product without impairing its usefulness and without making it too expensive to be socially useful?<\/li>\n
  5. Can the user avoid danger by the exercise of care?<\/li>\n
  6. Do users know of the dangers inherent in the product either by warnings and instructions or the obvious condition of the product?<\/li>\n
  7. How feasible is it for the manufacturer to spread the risk of the loss?<\/li>\n<\/ol>\n

    Recent Decisions<\/b><\/p>\n

    A notable trend toward serious consideration of Azzarello<\/i> motions has developed in both state and federal courts. Perhaps the tide began to turn with the summary judgment<\/a> in Fireman’s Fund Ins. Co. v. Xerox Corp.,<\/i> 30 F.Supp.2d 823 (M.D. Pa. 1998), where the plaintiff sued a photocopier maker, contending a fire started due to the copier’s lack of certain safety devices. The Court found that because of the unique and high social value of photocopiers, the lack of available substitutes, and the low incidence of similar incidents, the product was not "unreasonably dangerous". Thereafter, in VanBuskirk v. The West Bend Co<\/i>., 1999 U.S. Dist. LEXIS 9310 (E.D. Pa. 1999), the U.S. District Court dismissed an action involving a tabletop hot oil fryer. It ruled that the low ratio of accidents per units produced, plus the manufacturer’s thoughtful election against proposed alternate designs (due to safety considerations) meant that the product was not "unreasonably dangerous" as a matter of law. Likewise, in dicta, in Kent v. Howell Electric Motors<\/i>, 1999 U.S. Dist. LEXIS 10940 (E.D. Pa. 1999), the Court suggested that the claims against a floor sander could not pass Azzarello<\/i> muster because the plaintiff (or his employer) easily could have avoided injury by using the product carefully, and because the plaintiff could not suggest safer substitute products.<\/p>\n

    Federal courts are not alone in renewing the Azzarello<\/i> analysis. The Pennsylvania Superior Court affirmed summary judgement for an auto maker where the driver had overloaded a hatchback sedan with heavy, bulky canisters. The court affirmed that under Azzarello<\/i>, the car was not "unreasonably dangerous" because transporting such a large object was not an "intended use" of such a small car. Weiner v. American Honda Motor Co., Inc.<\/a><\/i>, 718 A.2d 305 (Pa. Super. 1998). Similarly, in Riley v. Warren Mfg<\/i>., 688 A.2d 221 (Pa. Super. 1998), the Superior Court affirmed a directed verdict for the manufacturer of a bulk feed trailer sued by the parents of a child who lost fingers in the unit’s discharge tube. Conducting the Azzarello<\/i> analysis at the close of the plaintiffs’ case, the trial court dismissed the claims, holding that putting one’s hand in the machine while it was operating was not an "intended use," and that the child was not an "intended user". In unreported decisions, judges of the Philadelphia Common Pleas Court have relied on Azzarello<\/i> in dismissing claims involving a ladder on a cement mixer truck (Shmanek v. McNelius Truck & Manufacturing, Inc.,<\/i> Phila. 1999) , a pallet jack (Mitchell v. Modern Handling Equip. Co., Inc.,<\/i> Phila. 1998, affirmed, 720 A.2d 827 (Pa. Super. 1999) (unpublished)), and a forklift (Marko v. Eastern Lift Truck Co., Inc.,<\/i> Phila. 1998, affirmed, 724 A.2d 967 (Pa. Super. 1999) (unpublished)).<\/p>\n

    After years of relative dormancy, it now appears that Azzarello<\/i> motions are being taken seriously in many courts. Strategic considerations will dictate whether and when to present an Azzarello<\/i> motion, but for manufacturers<\/a> who can document a low incidence of similar accidents, the consideration of potential alternate designs, and the lack of suitable substitute products, Azzarello<\/i> may now be a sharper arrow in the defendant’s quiver.<\/p>\n","protected":false},"excerpt":{"rendered":"

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