MacKowick v. Westinghouse Electric Corp.

BROSKY, Judge,

dissenting:

I must respectfully dissent. I concur in appellant’s claim that the trial court’s jury instruction on assumption of the risk misstated the law, and constitutes reversible error.

A trial judge has wide latitude in charging a jury, as long as the language used adequately and fully conveys the law applicable to the case. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 545, 488 A.2d 21, 26 (1985). Not every misstatement of the law is grounds for reversal. The appellate court must consider the charge in its entirety and determine whether the error was prejudicial to the complaining party. Reilly By Reilly v. Southeastern Pa. Transp. Authority, 507 Pa. 204, 489 A.2d 1291, 1305 (1985).

In Bascelli v. Randy, Inc., 339 Pa.Super. 254, 488 A.2d 1110 (1985), this Court explained the doctrine of implied assumption of the risk. If a person knows that a product is defective and voluntarily proceeds to use the product, his actions constitute a defense to an action for strict products liability. Id, 339 Pa.Superior Ct. at 264, 488 A.2d at p. 1115.

Moreover, our courts have consistently stated that the plaintiff must have known of “the specific defect” which caused his injury. Walasavage v. Marinelli, 334 Pa.Super. 396, 408, 483 A.2d 509, 515 (1984). See also Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 901 (1975) (plaintiff precluded from recovery only if he knows of *444specific defect); Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746, 748 (1966) (plaintiff unaware of specific defect so elements of defense not present); Davis v. Dwyer Ind., Inc., 548 F.Supp. 667, 670 (E.D.Pa.1982) (plaintiff precluded from recovery if he knows of the specific defect).

However, use of the term “defect”, with its mechanical and technological connotations, has caused much confusion among members of the bench and bar. Some have argued that a plaintiff is aware of a specific defect only if he understands the mechanical process which causes the item to be dangerous. This interpretation is an overly technical misstatement of the law. For assumption of the risk to apply, a plaintiff needn't understand the mechanical process, but must be subjectively aware of the nature, character, and extent of the danger posed by the specific attribute which is allegedly defective; this requires more than a general awareness by the plaintiff that the product is somehow dangerous. Ferraro, supra; Crance v. Sohanic, 344 Pa.Super. 526, 530, 496 A.2d 1230, 1232 (1985).

For example, in Crance, a visitor to a home was attacked and bitten by a dog belonging to another visitor. The injured party had been warned to be careful around the dog, but had not been told of its propensity to bite. Our Court ruled that an instruction on assumption of the risk was unwarranted. The plaintiff had had a general awareness that the dog might be dangerous, but had not known of the specific danger of biting posed by the animal. Id., 344 Pa.Superior Ct. at 530, 496 A.2d at 1232.

Similarly, in Ferraro, the plaintiff’s truck had had problems with locking wheels, as well as with a dislodging of the accelerator pedal. However, he had continued to use the vehicle until the two malfunctions occurred simultaneously, causing an accident in which he was injured. The Supreme Court found that assumption of the risk was inapplicable. The plaintiff had not been specifically aware of the danger that the two problems might occur at the same time. Ferraro, supra, 223 A.2d at p. 748.

Finally, in Davis, the plaintiff sued the manufacturer of a plastic material used to form a strip curtain in a car wash, *445for injuries he had suffered when someone had driven through the curtain. The plaintiff had been standing behind the curtain. He claimed that the product was defective because it was opaque and thus, the other driver had not been able to see him. The court held that the plaintiff had assumed the risk of standing behind the curtain. He had been aware of the specific defect which had caused his injury, i.e. that a person could not see through the curtain. Therefore, he had known of the specific danger caused by the specific defect at issue. The court explained that the plaintiff need not have known “the technological cause of the defect.” Davis, supra.

In the instant case, the court’s jury charge provided in pertinent part:

For you to find that a plaintiff assumed the risk of his injury, you must find that the plaintiff was aware of the danger presented by defendant’s product and voluntarily proceeded to encounter the danger. The plaintiff must have realized the danger, but not necessarily the specific defect itself, just the danger. (Emphasis supplied.)

This charge misstates the law and, based upon the facts of this case, constitutes prejudicial error. Appellant’s claim was that the capacitor in question was defective due to the failure of the fuses to automatically deactivate upon opening of the lid, and that the specific danger posed by this defect was the danger of electrical flashover. Thus, for appellant to have assumed the risk in this case, he would have had to have known of the specific danger of flash-over. The above charge, however, would have left the jury with the impression that appellant need only have had a general awareness that the live fuses were dangerous if touched, to have assumed the risk of injury. This impression was misleading. If appellant thought he was safe from danger unless he actually touched a fuse, he was unaware of the specific danger presented.

This is not to say that appellant need have understood the mechanical process by which electricity “arcs”, or the variables involved in “arcing”, such as humidity, atmospheric *446pressure, insulation of the electrical source, the shape of the approaching object, or even the precise distance at which an “arc” can occur, in order to have assumed the risk. He need only have known that the possibility of “arcing” was presented by his situation.

This Court has previously recognized that the dangers presented by actually touching a live electrical source, and by coming close enough to an electrical source so as to permit flashover or “arcing”, are two distinct dangers, which present distinct theories of causation.

In Books v. Pennsylvania Power and Light Co., 362 Pa.Super. 100, 523 A.2d 794 (1987), the plaintiff filed a trespass action against PPL for injuries he had sustained when the dump trailer he had been operating either came into contact with, or came too close to, some overhead power lines owned by PPL, thereby electrocuting him. PPL then joined Mack Trucks and Hill Manufacturing Co., alleging that Mack and Hill had failed to affix a warning on their products indicating the danger of raising the dump trailer “in the vicinity of overhead electrical transmission lines.” Id., 523 A.2d at p. 795. The trial court denied PPL’s motion for summary judgment, but entered summary judgment in favor of Mack and Hill on the basis that the plaintiff had admitted, in deposition testimony, that he had known of the danger of electrocution presented by contact with the lines. In reversing, our Court noted the following:

From the inception of the case, plaintiff advanced alternate theories of how the accident occurred: either the equipment came into contact with the power lines, or the equipment was somehow electrified by the lines. PPL advanced the same alternate theories when, in its complaint joining Mack and Hill to the action, it alleged that Mack and Hill should have placed warnings on their products of the danger of operating the equipment in the vicinity of power lines. The trial court recognized the importance of the alternate theories when it agreed that plaintiff assumed the risk of contact, but denied PPL’s motion for summary judgment because the accident could have occurred when electrical current arced *447from the power lines to the equipment. This theory would not require the equipment to come in contact with the power lines. However, the trial court disregarded this possibility when it found that a warning would have been limited to the danger of contact with the power lines. The trial court was unduly restrictive when it created such a warning since PPL alleged that the warning should have been broader and included the danger of working near the power lines.
There is evidence in the record before us from which a jury could find the plaintiff raised the dump trailer near power lines. Whether the electrical charge that injured plaintiff was the result of the trailer coming into contact with the power lines or was the result of the phenomenon known as arcing is a material fact that is yet to be determined. The trial court recognized this when in its opinion, it noted that, “electricity may have somehow ‘arced’ from the power lines to the truck bed as the dumping trailer approached the lines.” Trial court’s op. at 4. Although plaintiff testified that he was aware of the danger from contact between the trailer and the power lines, there is no evidence in the record to suggest that he was aware of the danger in allowing the trailer to be operated near the power lines. Because there is no evidence to suggest that plaintiff was aware of the danger of operating the dump trailer near the power lines, a genuine issue of material fact exists as to whether the type of warning suggested by PPL would have caused plaintiff to act differently.

Id., 523 A.2d at pp. 798-99. (Emphasis supplied.)

While the Books holding pertains to the erroneous entry of summary judgment on the “failure to warn” question, it cannot be overlooked that the holding is premised upon the fact that distinct theories of causation are presented by the contact theory, and the flashover or “arcing” theory. As I find the reasoning of Books persuasive, I would find, as did the Books panel in dicta, that the theories are distinct for purposes of assumption of the risk in the current context as well.

*448The majority, of course, makes much of the fact that appellant would have had to have come so close to the fuses for flashover to occur so as to be virtually touching them anyway, which would not have been reasonable behavior on the part of a skilled electrician with thirty years of experience and a general knowledge of “arcing”. This, however, is not the issue in assumption of the risk. If appellant should have realized the danger, but did not, he did not assume the risk, but was contributorily negligent. Carrender v. Fitterer, 310 Pa.Super. 433, 456 A.2d 1013, 1015 (1983), rev’d on other grounds, 503 Pa. 178, 469 A.2d 120 (1983). To assume the risk, a person must actually know of its existence, and not merely possess general knowledge from which he should have reasonably ascertained the danger presented. Id.

As the trial court’s instruction on assumption of the risk would have permitted the jury to conclude that appellant had assumed the risk, even if unaware of the specific danger of flashover, I find prejudicial error. I would reverse and remand for a new trial.