Takach v. B. M. Root Co.

LIPEZ, Judge,

concurring and dissenting:

The majority recognize that the “but for” standard is less exacting than the “substantial factor” standard, (and hence should require a lesser burden of proof); nevertheless by making certain assumptions as to the jurors’ understanding (which obviously is not of record) the less exacting becomes the more demanding. Such illogic should not stand and I therefore dissent.

I shall now consider the issues raised by appellant in light of what the record alone shows.

1.

I agree that the trial court erred in charging the jury that, in order to find that Takach has assumed the risk of his injury, they must first find that the accident would not have happened but for the fact that he was wearing gloves. See *175Whitner v. Von Hintz, 437 Pa. 448, 453-60, 263 A.2d 889, 892-95 (1970). The correct formulation would have indicated to the jury that, in the determination of whether he had assumed the risk, they would be required to find that the wearing of the gloves was a substantial factor in bringing about the accident.1 I conclude, however, that the error was actually favorable to Root and at most harmless. Since “assumption of risk” is an affirmative defense, 27 P.L.E. § 191 at 281, and since a cause in the “but for” sense may yet be “so significant that no ordinary mind would think of it as a cause for which [an actor] should be held responsible[,]” Ford v. Jeffries, 474 Pa. 588, 594-95, 379 A.2d 111, 114 (1977), (that is, as a legal cause, or substantial factor) the charge to the jury utilizing the “but for” test actually required that Root have shown less than the “substantial factor” standard.

The majority, by indulging in what they think might be jurors’ thought processes, substitute “but for” for “only reason”, and finally, “sole cause.” Of course, given the proper premise, the result can be predicted. I see no reason for a court to indulge in such speculation. I give the composite thinking of jurors more credit for their understanding of the meaning of plain words, as well as their good common sense, than the majority is willing to do.

2.

Root asserts that section 402A2 does not apply to the facts of the instant case because Root did no more than sell, *176to Eastern parts which Eastern later incorporated into a completed machine (thereby changing substantially the nature of the items sold), and so the court below erred in denying Root’s motions for summary judgment and for non-suit. The issue whether the items sold by Root were substantially changed by Eastern was one of fact, however, and for the jury. They were instructed thereon, and, having apparently found against Root on this issue, properly applied section 402A. Denial of Root’s motions was therefore proper.

3.

Root’s claim that the trial court improperly refused eleven of its requested points for charge is without merit.

Denial of the two requested binding points was proper, since, upon review of the record, I conclude that there was evidence on which the jury could properly find for Takach. No separate charge on superseding or intervening cause was required.

“Intervening” or “superseding” cause has been one of the most confusing of legal concepts for jurors to grasp. But, in the final analysis, it is merely another manner of distinguishing between factual and legal cause.
The basic rule . . . that the legal cause is any substantial contributing factor, takes into account all situations envisioned by any charge on superseding cause. . . .
*177Because substantial contributing factor remains the test of causation, and because a charge on superseding cause will serve only to confuse the jury, no additional charge on intervening cause should be given.

[Pa.Std. Jury Instructions § 3.28.]

Root’s requested points seven, eight, and nine, in effect, would have had the court instruct the jury that, as a matter of law, Root was merely a supplier of parts which Eastern assembled into the subject machine, and that the responsibility for installing appropriate safeguards was therefore upon Eastern and not Root.

Since the evidence raised the issues (a) whether the absence of the safety features in the unit manufactured by Root constituted a design defect; and (b) whether the substantial change concept applied at all, these questions of fact were properly left to the jury’s consideration.

Point number eleven asked that the court charge the jury that the parts sold by Root to Eastern contained no “latent defects.” A trial court, in charging a jury, need not use exactly the language requested by counsel. Boyle v. Penna. Railroad Co., 403 Pa. 614, 170 A.2d 865 (1961). I agree with Judge Raup that this request

was also covered by the Court. The Court described the defects as being generally of three types, defect in manufacture, defect in design and defect in failure to warn or adequately inform users of risks. Examples were given of each of these three types of defects and the jury was advised that the only type of defect alleged to have existed in this case was a defect in design.

[Opinion of Raup, J.]

The definition of “unreasonably dangerous” suggested by Restatement of Torts 2d § 402A (comment i) has been disapproved by the Supreme Court of Pennsylvania, Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 95-97, 337 *178A.2d 893, 899-900 (1975), and the trial court’s denial of Root’s request therefor was proper. The record shows that the charge of the court below on “intended use or purpose” and “defective condition” was correct and adequate. Root is not entitled to a verbatim reading from the Restatement on those points.

4.

Root’s claim that the Court below erred “in charging the jury that the manufacturer of products, where the product is not a completed product, but only a part thereof, was the ‘guarantor of the safety of the product’ and that the product would have been defective if it ‘lacked any element’ necessary to make it safe” is meritless. The issue whether the items sold by Root constituted a completed product or only parts thereof was, as above, for the jury, and the court’s charge properly comported with section 8.02 of the Pennsylvania Standard Jury Instructions and Berkebile v. Brantly Helicopter Corp., supra.

5.

It cannot be concluded from the record that Takach assumed a risk as a matter of law. It is clear that the evidence presented dispute on the questions whether: (1) Takach had been warned not to wear gloves; (2) before his injury, Takach had seen a jacket worn by a fellow employee become entangled in the machine in question, requiring the submission of both issues to the jury.

I would affirm the order of the trial court.

. Root challenges also the court’s use of the word “accident,” maintaining that “injury” should have been used, because Takach’s hand would have touched the spindle regardless of whether he had worn a glove, but the harm would probably have been less severe. “Accident” is used in the Pennsylvania Standard Jury Instruction on legal cause, Pa.Std. Jury Instructions § 3.25, and we find no error in the trial court’s adhering thereto.

. § 402A. Special Liability of Seller of Product for Physical Harm to User of Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject *176to liability for physical harm thereby caused 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.