Question of Law on Bystander Recovery Sent to PA High Court

In the rare exercise of a mechanism that the federal courts may use to consult state courts about purely state questions of law, the Third U.S. Circuit Court of Appeals has asked the Pennsylvania Supreme Court to address the permissible scope of bystander recovery under Pennsylvania's product liability law for a little girl whose left foot was mangled by a lawn mower driven by her grandfather.

The petition for certification of a question of law in Berrier v. Simplicity Manufacturing Inc. is only the 10th time since 1999 that a federal court has submitted a petition for certification to the Pennsylvania court system, according to Irene Bizzoso, a state supreme court deputy prothonotary.

The Case

The case involves the question of whether a bystander injured by a consumer product ' and who is not the intended user of a product used in an intended manner ' may pursue a strict liability claim against the manufacturer. Melvin Shoff, the grandfather of Ashley Berrier, 4 years old at the time, backed over Berrier's foot with the lawn tractor's mowing deck while mowing the lawn of his Honey Brook, PA, home on May 7, 2003, according to court papers. The child's foot was later amputated.

'We are persuaded that the proper scope of strict liability remains unresolved where a bystander, who is neither a 'user' nor a 'consumer' of an allegedly defective product, is injured when that product is being used as intended,' Judge Theodore A. McKee wrote Jan. 17 for the unanimous panel that included Judges Thomas L. Ambro and D. Michael Fisher. 'The question is an important 'social policy determination' … that remains unresolved in Pennsylvania.'

Berrier's parents brought a lawsuit against Simplicity Manufacturing, the Wisconsin-based maker of the Simplicity Regent lawnmower operated by Shoff, alleging that Simplicity was negligent in its design of the lawn tractor, including failing to create a no-mowing-in-reverse device or install a physical barrier on the mower deck that would prevent an object being struck by the mower's rotating blades, according to the January 2004 complaint.

Berrier's parents also alleged in the complaint that Simplicity faced strict product liability because the mower was allegedly a defective product that was unreasonably dangerous to use. According to court papers, Simplicity challenged the claim that the mower was unreasonably dangerous to intended users by countering that Berrier was not an intended user of the product and that the plaintiffs could not show that a safer lawn tractor design exists that would have prevented Berrier's amputation.

Federal Court

The case was removed to federal court by Simplicity on the basis of diversity, McKee said. The Circuit Court panel examined a number of opinions, including the 2003 Phillips v. Cricket Lighters and the 2006 Pennsylvania Department of General Services v. United States Mineral Products Co., and opined that the proper scope of strict product liability for injured bystanders was unresolved in Pennsylvania law.

When Judge Legrome D. Davis of the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment on June 29, 2005 in favor of Simplicity Manufacturing and dismissed the plaintiffs' strict liability and negligence claims, Davis said that no Pennsylvania appellate court has carved out an innocent bystander exception to the intended use doctrine requiring manufacturers to make products safe for intended users, and the silence on the issue cannot be interpreted as implicit approval of the exception, according to court papers.

Davis seemed to challenge the lack of exception, but he said in his opinion it was the current state of Pennsylvania law, and summary judgment should be granted. Davis dismissed the plaintiffs' argument that a Pennsylvania strict liability claim does not require that the person injured was the intended user of the product.

Phillips v. Cricket Lighters

Davis relied heavily on Phillips v. Cricket Lighters. In that case, the Pennsylvania Supreme Court found that a butane lighter manufacturer could not face a strict liability claim in the case of a 2-year-old who used a lighter to start an accidental fatal fire that killed the toddler, his mother and another child.

Former Chief Justice Ralph J. Cappy said in the Phillips opinion that in strict liability claims for defective product designs, plaintiffs must establish that the products are unsafe for an intended user, not just any reasonably foreseeable user, McKee said. To do otherwise ”would import negligence concepts into strict liability law,” Cappy wrote, according to McKee's opinion.

'This court fails to understand what principled distinction exists between an unintended consumer who suffers injuries through use (or misuse) of an allegedly defective product and a bystander who suffers injuries through proximity to an allegedly defective product,' Davis said. 'It would be patently unfair to deny recovery to a two-year child who is injured during her use of an allegedly defective adult product, while at the same time, permitting the guardian of a two-year child to recover when an allegedly defective adult product malfunctions in the child's presence, causing injury.

'This court expresses grave doubts as to the logic of preventing an innocent bystander from recovering for injuries caused by an allegedly defective product, particularly when the American Law Institute, through the Restatement (Third) of Torts: Product Liability has retreated from the very genesis of the 'intended user' doctrine (i.e., Section 402A's ultimate user or consumer standard). However, as reiterated by the Phillips decision, the 'intended user' doctrine, and its various permutations, remains the law of Pennsylvania.'

Proving Four Elements

The Pennsylvania Supreme Court has adopted '402A of the Second Restatement of Torts, requiring that plaintiffs prove four elements, including that the product was unreasonably dangerous to 'the ultimate user or consumer' and the product defect caused the injuries to them, Davis said. The Third Restatement of Torts simplified the standard for strict liability and appears to be sanctioning recovery under strict liability to all people injured by a defective product, Davis said.

Simplicity Manufacturing, if it is found liable for Berrier's amputation, has asked that Susie and Melvin Shoff be found responsible for a contribution claim, alleging that they failed to supervise their granddaughter, Davis said.

The mower itself and the operator's manual include several warnings that mowing should not be conducted when children are around and that the mower's drivers should look down and behind them before backing up the mower, according to Davis' and McKee's opinions. The mower's operator controls the engagement of the mower blades, Davis said.

Alan Feldman of Feldman Shepherd Wohlgelernter Tanner & Weinstock, one of the plaintiffs' attorneys, believes that Davis misapplied Pennsylvania law and that the supreme court's interpretation of the Third Circuit's question of law will decide whether innocent bystanders are protected by strict liability law. He called strict liability law an important social policy to protect users from the dangers of products that could be controlled by proper design by manufacturers.

Nancy Shane Rappaport, of counsel at DLA Piper and counsel for Simplicity, said that the district court judge's interpretation of Pennsylvania law was correct because otherwise concepts of negligence would be imported into strict liability and manufacturers would face the untenable requirement of designing products that must be safe for any foreseeable users.

Under the Phillips v. Cricket Lighters holding, 'negligence concepts have no place in strict liability law,' Rappaport said. 'The plaintiff must establish the product was unsafe for its intended user. There was no question in this case the child who was injured was not an intended user of the product. In our minds, the law was clear and the law applied to the case and the lower court made the proper ruling.'

Rappaport said the question by the Third Circuit panel seems to show its interest over whether the state supreme court would adopt the Third Restatement and turn the current law on its head. Rappaport and Feldman both said it was the court panel's decision and not an attorney suggestion to send the case for certification to the Pennsylvania supreme court.

Shanin Specter of Kline & Specter, who prepared an amicus brief in the case on behalf of statewide trial lawyers' group the Pennsylvania Association of Justice, said the clarification of the scope of bystander recovery is important. He argues that bystanders should be able to bring claims under the strict liability doctrine.The state supreme court has discretion in whether to accept the certification request from the Third Circuit. If the supreme court does accept the certification, the court can ask the parties to file briefs as to whether the certification should have been requested.

Amaris Elliott-Engel is a reporter for The Legal Intelligencer, a sister publication of this newsletter, in which this article first appeared.

In the rare exercise of a mechanism that the federal courts may use to consult state courts about purely state questions of law, the Third U.S. Circuit Court of Appeals has asked the Pennsylvania Supreme Court to address the permissible scope of bystander recovery under Pennsylvania's product liability law for a little girl whose left foot was mangled by a lawn mower driven by her grandfather.

The petition for certification of a question of law in Berrier v. Simplicity Manufacturing Inc. is only the 10th time since 1999 that a federal court has submitted a petition for certification to the Pennsylvania court system, according to Irene Bizzoso, a state supreme court deputy prothonotary.

The Case

The case involves the question of whether a bystander injured by a consumer product ' and who is not the intended user of a product used in an intended manner ' may pursue a strict liability claim against the manufacturer. Melvin Shoff, the grandfather of Ashley Berrier, 4 years old at the time, backed over Berrier's foot with the lawn tractor's mowing deck while mowing the lawn of his Honey Brook, PA, home on May 7, 2003, according to court papers. The child's foot was later amputated.

'We are persuaded that the proper scope of strict liability remains unresolved where a bystander, who is neither a 'user' nor a 'consumer' of an allegedly defective product, is injured when that product is being used as intended,' Judge Theodore A. McKee wrote Jan. 17 for the unanimous panel that included Judges Thomas L. Ambro and D. Michael Fisher. 'The question is an important 'social policy determination' … that remains unresolved in Pennsylvania.'

Berrier's parents brought a lawsuit against Simplicity Manufacturing, the Wisconsin-based maker of the Simplicity Regent lawnmower operated by Shoff, alleging that Simplicity was negligent in its design of the lawn tractor, including failing to create a no-mowing-in-reverse device or install a physical barrier on the mower deck that would prevent an object being struck by the mower's rotating blades, according to the January 2004 complaint.

Berrier's parents also alleged in the complaint that Simplicity faced strict product liability because the mower was allegedly a defective product that was unreasonably dangerous to use. According to court papers, Simplicity challenged the claim that the mower was unreasonably dangerous to intended users by countering that Berrier was not an intended user of the product and that the plaintiffs could not show that a safer lawn tractor design exists that would have prevented Berrier's amputation.

Federal Court

The case was removed to federal court by Simplicity on the basis of diversity, McKee said. The Circuit Court panel examined a number of opinions, including the 2003 Phillips v. Cricket Lighters and the 2006 Pennsylvania Department of General Services v. United States Mineral Products Co., and opined that the proper scope of strict product liability for injured bystanders was unresolved in Pennsylvania law.

When Judge Legrome D. Davis of the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment on June 29, 2005 in favor of Simplicity Manufacturing and dismissed the plaintiffs' strict liability and negligence claims, Davis said that no Pennsylvania appellate court has carved out an innocent bystander exception to the intended use doctrine requiring manufacturers to make products safe for intended users, and the silence on the issue cannot be interpreted as implicit approval of the exception, according to court papers.

Davis seemed to challenge the lack of exception, but he said in his opinion it was the current state of Pennsylvania law, and summary judgment should be granted. Davis dismissed the plaintiffs' argument that a Pennsylvania strict liability claim does not require that the person injured was the intended user of the product.

Phillips v. Cricket Lighters

Davis relied heavily on Phillips v. Cricket Lighters. In that case, the Pennsylvania Supreme Court found that a butane lighter manufacturer could not face a strict liability claim in the case of a 2-year-old who used a lighter to start an accidental fatal fire that killed the toddler, his mother and another child.

Former Chief Justice Ralph J. Cappy said in the Phillips opinion that in strict liability claims for defective product designs, plaintiffs must establish that the products are unsafe for an intended user, not just any reasonably foreseeable user, McKee said. To do otherwise ”would import negligence concepts into strict liability law,” Cappy wrote, according to McKee's opinion.

'This court fails to understand what principled distinction exists between an unintended consumer who suffers injuries through use (or misuse) of an allegedly defective product and a bystander who suffers injuries through proximity to an allegedly defective product,' Davis said. 'It would be patently unfair to deny recovery to a two-year child who is injured during her use of an allegedly defective adult product, while at the same time, permitting the guardian of a two-year child to recover when an allegedly defective adult product malfunctions in the child's presence, causing injury.

'This court expresses grave doubts as to the logic of preventing an innocent bystander from recovering for injuries caused by an allegedly defective product, particularly when the American Law Institute, through the Restatement (Third) of Torts: Product Liability has retreated from the very genesis of the 'intended user' doctrine (i.e., Section 402A's ultimate user or consumer standard). However, as reiterated by the Phillips decision, the 'intended user' doctrine, and its various permutations, remains the law of Pennsylvania.'

Proving Four Elements

The Pennsylvania Supreme Court has adopted '402A of the Second Restatement of Torts, requiring that plaintiffs prove four elements, including that the product was unreasonably dangerous to 'the ultimate user or consumer' and the product defect caused the injuries to them, Davis said. The Third Restatement of Torts simplified the standard for strict liability and appears to be sanctioning recovery under strict liability to all people injured by a defective product, Davis said.

Simplicity Manufacturing, if it is found liable for Berrier's amputation, has asked that Susie and Melvin Shoff be found responsible for a contribution claim, alleging that they failed to supervise their granddaughter, Davis said.

The mower itself and the operator's manual include several warnings that mowing should not be conducted when children are around and that the mower's drivers should look down and behind them before backing up the mower, according to Davis' and McKee's opinions. The mower's operator controls the engagement of the mower blades, Davis said.

Alan Feldman of Feldman Shepherd Wohlgelernter Tanner & Weinstock, one of the plaintiffs' attorneys, believes that Davis misapplied Pennsylvania law and that the supreme court's interpretation of the Third Circuit's question of law will decide whether innocent bystanders are protected by strict liability law. He called strict liability law an important social policy to protect users from the dangers of products that could be controlled by proper design by manufacturers.

Nancy Shane Rappaport, of counsel at DLA Piper and counsel for Simplicity, said that the district court judge's interpretation of Pennsylvania law was correct because otherwise concepts of negligence would be imported into strict liability and manufacturers would face the untenable requirement of designing products that must be safe for any foreseeable users.

Under the Phillips v. Cricket Lighters holding, 'negligence concepts have no place in strict liability law,' Rappaport said. 'The plaintiff must establish the product was unsafe for its intended user. There was no question in this case the child who was injured was not an intended user of the product. In our minds, the law was clear and the law applied to the case and the lower court made the proper ruling.'

Rappaport said the question by the Third Circuit panel seems to show its interest over whether the state supreme court would adopt the Third Restatement and turn the current law on its head. Rappaport and Feldman both said it was the court panel's decision and not an attorney suggestion to send the case for certification to the Pennsylvania supreme court.

Shanin Specter of Kline & Specter, who prepared an amicus brief in the case on behalf of statewide trial lawyers' group the Pennsylvania Association of Justice, said the clarification of the scope of bystander recovery is important. He argues that bystanders should be able to bring claims under the strict liability doctrine.The state supreme court has discretion in whether to accept the certification request from the Third Circuit. If the supreme court does accept the certification, the court can ask the parties to file briefs as to whether the certification should have been requested.

Amaris Elliott-Engel is a reporter for The Legal Intelligencer, a sister publication of this newsletter, in which this article first appeared.