481 F.

2d 940

Deborah A. ESHBACH, a minor, by her parent and natural

guardian, Marlin Eshbach, Appellant,
v.
W. T. GRANT'S AND COMPANY
v.
E. T. RUGG, a division of Mid-Con, Inc., Third-Party
Defendant.
No. 71-2128.

United States Court of Appeals,

Third Circuit.
Argued Jan. 18, 1973.
Decided June 15, 1973.
1

James E. Colleran, Philadelphia, Pa., for appellant.

John W. Walter, Francis E. Marshall, Marshall, Dennehey & Warner,

Philadelphia, Pa., for appellee.

Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District
Judge.

OPINION OF THE COURT

4

BARLOW, District Judge.

The plaintiff, Deborah A. Eshbach, a minor, by her parent and natural guardian,
Marlin Eshbach, appeals from a jury verdict in favor of the defendant, W. T.
Grant's and Company.

In April of 1967, Marlin Eshbach, the father of the infant plaintiff, Deborah A.
Eshbach, bought a riding, or sit-on type, 24-inch lawnmower from the
defendant, W. T. Grant's and Company. Mr. Eshbach used the mower without
incident between the date of its purchase and September 5th, 1968. On that day,
however, Mr. Eshbach's son, Marlin, Jr., age 9, removed the mower from its
storage spot, started it and proceeded to mow the lawn. Young Marlin had been

instructed in the use of the mower and had previously operated it three times, in
the presence of his father. The infant plaintiff, Deborah, had, on two prior
occasions, jumped on the back of the mower behind her father while the mower
was in use. She was warned by her father not to do so. On this occasion,
however, while her brother operated the mower, out of his father's presence and
without his knowledge, Deborah jumped on the mower behind her brother.
While the mower was circling a tree, Deborah's foot slipped into the unguarded
chain and sprocket of the machine and became entangled. Marlin, Jr., hearing
the cries of his sister, stopped the machine by taking his foot off the pedal. The
machine had neither brakes nor an ignition switch.
7

As a result of the accident, Deborah suffered severe injuries to her left foot.

Plaintiff thereafter commenced a diversity action pursuant to 28 U.S.C. Sec.

1332, solely upon the theory of strict liability, Sec. 402A, Restatement of Torts
(Second), alleging that the unguarded chain and sprocket, along with the
absence of an ignition switch and key device, represented a defective design
condition which caused the infant plaintiff's injuries.

The case was tried before a jury, the plaintiff's case included expert testimony
as to the defective design of the machine. The defense offered no testimony.

10

Following the judge's instructions and after deliberation, the jury returned a
verdict for the defendant, and it is from the judgment entered thereon that the
plaintiff appeals.

I.
11

Plaintiff-appellant's initial contention is that the frequent use of the concept of

foreseeability in the charge of the court, as well as those instructions of the
court defining the limits of the responsibility of the seller in terms of a
"reasonable man" or an "ordinarily intelligent man" introduced negligence
terms which were peculiarly inappropriate to a strict liability claim. Defendantappellee insists that the District Court's charge in its totality represents a
permissible expression of the applicable law.

12

We agree with the plaintiff that the charge, taken as a whole, improperly
introduced concepts having their origin and primary applicability in negligence
law. Cf. James v. Continental Insurance Co., 424 F.2d 1064 (3rd Cir. 1970);
Friedman v. General Motors Corporation, 411 F.2d 533 (3rd Cir. 1969).

13

When the trial judge here stated that liability under Sec. 402A was dependent
upon "whether the injury could be foreseen by an ordinarily intelligent man as
the natural and probable outcome of the act complained of.", he improperly
introduced due care as a standard upon which the liability of the seller might
depend. This is clearly not so.1 Liability under Sec. 402A is merely dependent
upon the injury resulting from a condition of the product, that condition being
unreasonably dangerous, and that condition being in existence at the time the
product left the seller's control.2 Accordingly, an instruction that the defendant
is responsible only if an "ordinarily intelligent man" or a "reasonable man . . .
would infer that his acts create an appreciable danger of causing injury to
another" substantially diminishes the extent of a seller's liability and
responsibility and is inconsistent with a strict liability theory which explicitly
imposes a much higher degree of responsibility on sellers of goods.3 Sec. 402A,
Comment a.

14

Moreover, the term "foreseeability", as it is used throughout the charge, is

improper. Negligence is, of course, tested in terms of foreseeability. Speyer,
Inc. v. Humble Oil and Refining Company, 403 F.2d 766 at 771 (3rd Cir.
1968), cert. den. 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed.2d 41 (1969). The
focus of Sec. 402A, however, is not directed to the foreseeability of a given
injury, but to whether "the product is, at the time it leaves the seller's hands, in
a condition not contemplated by the ultimate consumer, which will be
unreasonably dangerous to him". Sec. 402A, Comment G. In actions brought
pursuant to Sec. 402A "[t]he duty of a manufacturer or supplier is limited to
foreseeing the probable results of the normal use of the product or a use which
can be reasonably anticipated." Kaczmarek v. Mesta Machine Company, 463
F.2d 675 at 679 (3rd Cir. 1972). Thus, the proper limits of responsibility for the
defendant-seller here is whether the "use" to which the product was put was
intended or foreseeable (objectively reasonable) by the defendant. Van Dorpe
v. Koyker Farm Implement Company, 427 F.2d 91 at 93 (7th Cir. 1970), cf.
Oehler v. Davis, 223 Pa.Super. 333, 298 A.2d 895 (Pa.Super. 1972).

15

The use of foreseeability in the court's instructions here does not reflect this
limitation. When the court instructed the jury that Grant's was to be liable only
if it-in substance-anticipated or foresaw the individualistic behavior patterns of
the Eshbach children when using the lawnmower for the purpose for which it
was designed-to cut grass-it subverted the intention of Sec. 402A by permitting
a vendor to avoid liability on the basis of being unable to anticipate the precise
manner in which the injury occurred.

16 fact that the actor could not foresee the particular manner in which the harm
"The
has occurred is immaterial. See Diakolios v. Sears, Roebuck & Co., 387 Pa. 184,

127 A.2d 603 (1956); Vereb v. Markowitz, 379 Pa. 344, 108 A.2d 774 (1954);
Restatement, Torts, 2d Sec. 435(i). Dyson v. General Motors Corporation, 298 F.
Supp. 1064 (E.D.Pa.1969)." Dorsey v. Yoder Company, 331 F.Supp. 753 at 768
(E.D.Pa.1971).
17

Similarly, the use of foreseeability by the trial court with reference to the
"foreseeability" of injury or harm is improper, for it is foreseeability as to the
use of the product which establishes the limits of the seller's responsibility.

18

Furthermore, even if the trial judge was attempting to discuss causation, by way
of the intervening negligence of other parties-in this case, Mr. Eshbach-the
proper thrust is not to the foreseeability of the intervenor's conduct but whether
the movements of the lawnmower which did, in fact, occur were foreseeable in
that they were within the range of movements normally expected of the
machine. Frankel v. Lull Engineering Company, 334 F.Supp. 913 at 925
(E.D.Pa.1971), aff'd, 470 F.2d 995 (3rd Cir. 1973).

19

Thus, the manufacturer or seller is not required to foresee, for example, that a
lawnmower-which is designed to cut grass-will be used to cut logs or to cut
pipe. Yet, he is required to foresee an injury resulting from a defect, which
injury occurs during the use of the mower for a purpose for which it was
intended, even if the injury did not occur in the particular manner one might
expect.4 It is to this extent, then, and to this extent only, that foreseeability
enters into the strict liability equation. The use of the word foreseeability
without the limits imposed by strict liability concepts improperly distorts the
balance between the manufacturer and consumer embodied in Sec. 402A.

20

While it is true that the trial judge, after misstating the standards by which the
seller's liability was to be tested, as indicated above, also correctly explained
the seller's responsibility in a strict liability sense, we believe that the
juxtaposition, as well as the fundamental differences between the two
explanations, constituted error, for it only could have produced confusion
amongst the jury.II.

21

Of equal concern are the questions presented by the plaintiff's assertion that the
trial judge erred by his refusal to instruct the jury that Mr. Eshbach's negligence
was not to be considered- that his negligence was not in the case. During the
cross-examination of Mr. Eshbach. defense counsel established that he
recognized that the lawnmower was a dangerous machine and that for that
reason he had instructed his children not to operate it. Further, in response to
questions put to him by defense counsel, Mr. Eshbach admitted that he had

never removed the sparkplugs from the mower to render it inoperable and to
prevent his children from either starting or using the mower. All of these
questions, and many others of like import, were obviously designed to suggest
the negligence of Mr. Eshbach.
22

During the course of the cross-examination, plaintiff's counsel objected to

certain of these questions, contending that negligence was not an issue in the
case. The trial judge overruled the objections, stating, equivocally, that whether
or not negligence was in issue "remains to be seen."

23

Again, during the Fed.R.Civ.P. 51 application, plaintiff's written points for

charge requested that the trial judge instruct the jury that, in substance, Mr.
Eshbach's negligence was not an issue in the case. The trial judge declined to
do so. Accordingly, much of the thrust of defense counsel's summation was
directed to the negligence-or lack of due care-on the part of Mr. Eshbach.
Following the charge of the court, the plaintiff once again objected to the trial
judge's failure to remove the question of Mr. Eshbach's negligence from the
case. The judge again refused to do so, stating, in effect, that it was unnecessary
so to do because negligence was not in the case!5

24

The trial court here, then, permitted the issue of Mr. Eshbach's negligence to
enter the case-indirectly, through cross-examination-and permitted, as well,
defendant's counsel, during summation, to allude at length to Mr. Eshbach's
conduct. In such circumstances, the trial judge was required, we think, to either
instruct the jury as to the application which such negligence would have in
terms of providing a defense to the infant plaintiff's products liability claim, or
to instruct the jury specifically that Mr. Eshbach's negligence was not to be
considered by them.

25

Preliminarily, it is clear that Mr. Eshbach's negligence, if any, could not be

imputed to his infant daughter and thereby defeat her claim against the
defendant.

26

However, since causation remains an element in 402A actions 6 -because that

Section requires that the plaintiff, in addition to establishing that the defect in
the defendant's product was unreasonably dangerous, also establish that the
defect caused the ultimate harm-Mr. Eshbach's negligence is significant only if
it constitutes an intervening cause. Nonetheless, even in that restricted causation
sense, its application is questionable here, for:

". . . under the principles relating to causation set forth in the Restatement (Second)
27

of Torts (Secs. 430-462) which have been or would likely be adopted as law in
Pennsylvania, Whitner v. Lojeski, 437 Pa. 448, 458, 461, 263 A.2d 889 (1970), it
appears that where the actor's conduct increases the risk of some particular harm the
fact that the harm is ultimately brought about only by the intervention of another
force does not relieve the actor from liability. Restatement (Second) of Torts, Sec.
442B (1969)." Frankel v. Lull Engineering Company, supra, 334 F.Supp. at 925.
28

Further, a negligent intervening act, to relieve defendant of accountability, must

be:

29. . so extraordinary as not to have been reasonably foreseeable, and . . . whether

".
the act was reasonably foreseeable [is] to be determined by following retrospectively
the sequence of events and looking back from the harm to the negligent act rather
than by considering whether the defendant should prospectively have envisaged the
events which unfolded and caused the accident. Wilson v. American Chain and
Cable Co., 364 F.2d 558, 562 (3rd Cir. 1966). See also Shimer v. Bangor Gas Co.,
410 Pa. 92, 97, 188 A.2d 734 (1963)." Dorsey v. Yoder Company, supra, 331
F.Supp. at 764.
30

In any event, the failure of the trial judge to either remove the question of Mr.
Eshbach's negligence from the case entirely or, if it was to be considered, to
instruct the jury as to the limits of its application, had the obvious capacity of
suggesting to the jury either that Mr. Eshbach was alone responsible for his
daughter's injuries-notwithstanding any accountability of the defendant on the
plaintiff's products liability claim-or, in some fashion, permitting the jury to
conclude that Mr. Eshbach's negligence could be imputed to his daughter.
Either conclusion was clearly prejudicial to the infant plaintiff's claim against
the defendant and was error.7

31

The judgment of the trial court is reversed, and the case is remanded for a new
trial.

Comment F to Sec. 402A; MacDougall v. Ford Motor Co., 214 Pa.Super. 384
at 391, 257 A.2d 676 at 680 (1969)

In order for liability to be established under Sec. 402A and Pennsylvania law,
the plaintiff must demonstrate only that:
"(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 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." Webb v. Zern, 422 Pa. 424, 220 A.2d 853
(1966).
3

The court's instructions included the following language:

"Liability depends on antecedent probability, not the mere possibility of
harmful results therefrom. The general test of liability is whether the injury
could be foreseen by an ordinarily intelligent man as the natural and probable
outcome of the act complained of . . . An actor should recognize that his
conduct involves a risk of causing an invasion of another's interest if he
possesses such knowledge of pertinent matters and surrounding circumstances
that a reasonable man acting on such knowledge would infer that his acts create
an appreciable danger of causing injury to another. A normal human being is
held to foresee those injuries which are the consequences of his act or omission
or commission which he as a reasonable human being should have foreseen."
"You can consider . . . whether this defendant should have anticipated -we are
back to foreseeability again-that a nine-year-old boy would operate the machine
and that a five-year-old child would jump on it while it was being operated. . .
."

Foreseeable use does not mean unintended use. Dyson v. Geperal Motors
Corporation, supra, 298 F.Sapp. at p. 1068; LaGorga v. Kroger Company, 275
F. Supp. 373 (W.D.Pa.1967)

The colloquy was as follows:

"MR. COLLERAN: [defense counsel] All right, Your Honor, I except to the
fact that Your Honor did not tell the jury that the negligence or lack of it on the
part of Mr. Eshbach is not an issue in this case.

THE COURT: You may have an exception. I purposely did not charge on
negligence except there was no contributory negligence. I don't know why you
would expect me to tell the jury something that is not in the case, * * *"
6

To recover, plaintiff is required to show "not only that the 'defective' condition
was dangerous but also that such condition was a proximate cause of the
mishap." Colosimo v. May Department Store Company, 466 F.2d 1234, at 1235
(3rd Cir. 1972). Also see Speyer v. Humble Oil & Refining Company, supra, n.
16, 403 F.2d at 772

Since there is to be a new trial, we call the District Court's attention to our
previously stated view that it is unfortunate to indicate that the jury need be
convinced of the certainty of the facts they find in describing the burden of
proof in a civil personal injury action. See Burch v. Reading Co., 240 F.2d 574,
579 (3rd Cir. 1957). At 213a (N.T. 206), the judge charged the jury: "The
plaintiff has the burden of proof to convince you that the position which he
takes in this case is correct." (Emphasis supplied.)