Opinion
No. 2333 C.D. 2009
04-13-2012
Robert A. Bibbs v. Southeastern Pennsylvania Transportation Authority (SEPTA) v. Precision Fleet Industrial Service, Inc. Appeal of: Precision Fleet Industrial Service, Inc.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION OPINION BY JUDGE BROBSON
Precision Fleet Industrial Service, Inc. (Precision) appeals a judgment entered by the Court of Common Pleas of Philadelphia County (trial court) on December 8, 2008. The trial court entered judgment against Precision in the amount of $2,500,000 after a jury returned a verdict in favor of Robert A. Bibbs (Plaintiff) on his strict products liability claim under Section 402A of the Restatement (Second) of Torts. Precision also appeals from an order of the trial court dated July 28, 2009. The trial court granted Southeastern Pennsylvania Transportation Authority's (SEPTA) motion for directed verdict, entering judgment against Precision in the amount of $496,575.51 based on an indemnification clause in a contract between Precision and SEPTA. For the reasons that follow, we reverse.
Section 402A provides:
(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
RESTATEMENT (SECOND) OF TORTS § 402A (1965).(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.
At all times relevant to this appeal, Precision and SEPTA were engaged in a contractual relationship whereby Precision provided maintenance and repair services for SEPTA's material loaders, including forklifts. Under the contract, Precision agreed to provide a free loaner forklift to SEPTA in the event that an inoperable SEPTA forklift could not be repaired within three (3) calendar days. (Reproduced Record (R.R.) at 885a.) Responding to a SEPTA request for contract service, Precision sent mechanics to SEPTA's Liberty Yard on February 7 and February 8, 2006, to repair SEPTA forklift #6661 (#6661). (Id. at 916a, 956a-57a.) Ultimately, Precision determined that #6661 needed to be "shopped" for more extensive repairs. (Id. at 913a.) To replace #6661, Precision delivered Precision forklift PFR202 (PFR202) to Liberty Yard on February 17, 2006. (Id. at 958a.) It is undisputed that PFR202 was missing three lug nuts from its rear-left wheel when it was delivered to Liberty Yard. It is also undisputed that Plaintiff, SEPTA, and Precision were all aware that PFR202's rear-left wheel was missing three lug nuts when it was delivered. Precision's mechanic made plans to replace the missing lug nuts, but did not return to Liberty Yard until February 22, 2006. (Id. at 731a, 775a, 920a, 958a.)
While Precision does not dispute that it provided PFR202 to SEPTA as a loaner forklift, Precision disputes that it loaned PFR202 under the contract between Precision and SEPTA. Instead, Precision asserts that PFR202 was loaned to SEPTA pro gratis as a favor to SEPTA's manager at Liberty Yard.
Based on our review of the photographic evidence in the record, PFR202's rear-left wheel was designed with holes for a total of twelve lugs. (Plaintiff's Exhibit P-16.)
Before the trial court, much of the testimony focused on whether Precision's mechanic instructed SEPTA's Liberty Yard employees not to use PFR202 and whether Precision's mechanic physically "tagged" PFR202 out of service. Precision's theory was that PFR202 was not placed in the stream of commerce because Precision instructed SEPTA not to use PFR202.
SEPTA used PFR202 on February 20 and February 21, 2006, without incident. (Id. at 699a.) Then, on February 22, 2006, Plaintiff, a SEPTA employee, was operating PFR202 when the rear-left wheel fell off, causing Plaintiff injuries. Prior to the accident, Plaintiff had been using PFR202 consistently for two or three hours. (Id. at 717a.) At some point, Plaintiff was called upon to unload concrete barricades from a truck. (Id. at 717a, 734a.) Before unloading the barricades, Plaintiff attempted to test the load by lifting two barricades at once, but they were too heavy, and PFR202 tipped forward. (Id. at 718a, 733a-34a.) Upon releasing the two barricades, PFR202 bounced back onto its rear wheels. (Id. at 734a.) Plaintiff then proceeded to unload one barricade at a time. (Id. at 718a, 734a.) After unloading 8 to 10 barricades, Plaintiff was travelling back to the truck to pick up another load when PFR202's rear-left wheel fell off. (Id. at 719a, 734a.)
The nature and extent of Plaintiff's injuries are not in dispute.
Describing a barricade, the Plaintiff testified: "I believe it's made of cement, I'm not sure, but it's a brick wall, somewhere between [4] and 5 feet long, approximately [3], maybe 4 feet high." (R.R. at 717a.)
On March 13, 2007, Plaintiff filed a complaint against SEPTA under the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51-60, claiming that his injuries were caused by SEPTA's negligence. In response, SEPTA filed an answer and new matter to Plaintiff's complaint and joined Precision as an additional defendant. On July 24, 2007, SEPTA filed a joinder complaint against Precision, claiming that Precision was liable for Plaintiff's injuries under theories of negligence, breach of contract, breach of warranty, and strict products liability. SEPTA also claimed that it was entitled to contractual indemnification from Precision on Plaintiff's claims against SEPTA. Precision filed an answer, new matter, and counterclaim in response to SEPTA's joinder complaint on November 9, 2007. On November 20, 2007, SEPTA filed preliminary objections to Precision's answer, new matter, and counterclaim. Precision voluntarily filed an amended answer and new matter on December 7, 2007. Notably, Precision's amended pleading no longer included a counterclaim against SEPTA. On December 17, 2007, SEPTA filed preliminary objections to Precision's amended answer and new matter, requesting that all allegations as to SEPTA's gross negligence and recklessness be stricken. The trial court sustained SEPTA's preliminary objections on February 21, 2008. Finally, on September 4, 2008, Plaintiff and SEPTA entered into a settlement agreement in the amount $375,000, releasing SEPTA as to all claims filed by Plaintiff against SEPTA. On October 20, 2008, SEPTA requested leave to amend its pleadings, and on October 28, 2008, SEPTA filed the settlement agreement as new matter.
Paragraph XIII of the contract between SEPTA and Precision provides, in pertinent part:
XII. INDEMNIFICATION(R.R. at 837a.)
In addition to all other obligations of Indemnification specified herein, [Precision] agrees to release and be liable for and to defend, indemnify and save harmless SEPTA . . . from and against any and all loss, cost, damage, liability and expense, including consequential damages, counsel fees, whether or not arising out of any claim, suit or action at law, in equity, or otherwise, of any kind or nature whatsoever, including negligence, arising out of the performance of the work by reason of any accident, loss or damage of property, including the work site, property of SEPTA and [Precision], or injury, including death, to any person or persons, including employees of SEPTA, [Precision], subcontractors at any tier or any person working on [Precision]'s behalf, caused by [Precision], which may be sustained either during the term of the Contract, or upon or after completion of the Project, whether brought directly by these persons or by anyone claiming under or through them including heirs, dependents and estates.
A jury trial began in the trial court on November 21, 2008. Plaintiff proceeded against Precision solely on a strict products liability claim under Section 402A. In addition, SEPTA proceeded against Precision on its contractual indemnification claim, which, under SEPTA's theory, was dependent upon Precision being found liable on Plaintiff's strict products liability claim. At the close of Plaintiff's case, Precision moved for compulsory nonsuit under Pa. R.C.P. No. 230.1, arguing that Plaintiff failed to establish a right to relief under Section 402A. (Id. at 749a-55a.) Specifically, Precision contended, inter alia, that Plaintiff failed to establish causation due to the lack of expert testimony. (Id.) The trial court denied Precision's motion. (Id. at 755a.) At the close of all the evidence, Precision renewed its arguments by way of a motion for directed verdict under Pa. R.C.P. No. 226, which the trial court denied. (Id. at 792a.) After the jury returned a verdict in favor of Plaintiff, Precision moved for judgment notwithstanding the verdict, which the trial court also denied. (Id. at 808a-09a.) SEPTA then moved for directed verdict on its contractual indemnification claim, which the trial court granted. (Id. at 810a.)
Although SEPTA, not Plaintiff, raised the strict products liability claim against Precision, Plaintiff's case may proceed on the claims contained in SEPTA's joinder complaint just as if Plaintiff had filed those claims directly against Precision. See Pa. R.C.P. No. 2255(d) ("The plaintiff shall recover from an additional defendant found liable to the plaintiff alone or jointly with the defendant as though such additional defendant had been joined as a defendant and duly served and the initial pleading of the plaintiff had averred such liability.").
In moving for directed verdict, SEPTA relied solely on the indemnification provision of the contract between Precision and SEPTA. SEPTA offered no other evidence. (R.R. at 772a, 809a.)
On December 8, 2008, the trial court entered judgment against Precision in the amount of $2,500,000 based on the jury's verdict. (Id. at 808a-10a.) In addition, the trial court issued an order granting SEPTA's motion for directed verdict on its contractual indemnification claim and entering judgment against Precision in the amount of $457,831.78. (Id. at 445a.) On July 28, 2009, the trial court issued an order supplementing its order granting SEPTA's motion for directed verdict, awarding SEPTA an additional $38,743.73, for a total of $496,575.51. (Id. at 447a.) On December 16, 2008, Precision filed a motion for post-trial relief under Pa. R.C.P. No. 227.1, seeking judgment notwithstanding the verdict and/or a new trial. As the trial court failed to rule on Precision's motion within 120 days, SEPTA and Precision filed praecipes for entry of final judgment under Pa. R.C.P. No. 227.4 on August 4, 2009, and August 5, 2009, respectively. Precision timely appealed to the Superior Court on August 12, 2009. By order dated October 20, 2009, the Superior Court transferred Precision's appeal to this Court.
On appeal, Precision argues, inter alia, that the trial court erred in denying its motions for compulsory non-suit, directed verdict, and judgment notwithstanding the verdict as to Plaintiff's strict products liability claim because Plaintiff failed to establish causation under Section 402A. Specifically, Precision contends that expert testimony was necessary to prove that a defect in PFR202 caused Plaintiff's injuries. In addition, because SEPTA's contractual indemnification claim depended upon the jury's return of a favorable verdict on Plaintiff's strict products liability claim, Precision argues that the trial court erred in granting SEPTA's motion for directed verdict. Plaintiff and SEPTA counter that expert testimony was unnecessary because the cause of Plaintiff's injuries was obvious and a matter of common experience. Specifically, Plaintiff and SEPTA maintain that "because it is within the common knowledge of the average layperson that the absence of the lug nuts on the wheel (whether it is a car, wagon, bicycle, or a forklift) could potentially cause a problem—the wheel coming off—it was not necessary to establish this point through expert testimony." (Plaintiff's Brief at 46; SEPTA's Brief at 53.)
An appellate court's standard of review over a trial court's denial of a motion for compulsory non-suit is as follows:
A motion for compulsory non-suit allows a defendant to test the sufficiency of a [plaintiff's] evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action; it is the duty of the trial court to make this determination prior to the submission of the case to the jury.
To make out a strict products liability action under Section 402A, a plaintiff must demonstrate not only (1) that the product was defective, but also (2) that the defect caused the injury. Reott, 7 A.3d at 835. The word "caused," as it is used in Section 402A, refers to "legal cause" (also known as "proximate cause"), which requires a defendant's conduct to have been "a substantial factor in bringing about the harm." RESTATEMENT (SECOND) OF TORTS §§ 402A, 430-31; see also Ford v. Jeffries, 474 Pa. 588, 594-95, 379 A.2d 111, 114 (1977) (explaining legal causation under the Restatement (Second) of Torts). Here, while it is obvious that Plaintiff's injuries were caused by PFR202's rear-left wheel falling off, it is not obvious that PFR202's rear-left wheel fell off because of the missing lug nuts. Accordingly, accepting, arguendo, that the absence of three lug nuts (out of a total of twelve) from PFR202's rear-left wheel rendered PFR202 defective, Plaintiff's duty was to establish that the missing lug nuts were a substantial factor in causing PFR202's rear-left wheel to fall off.
Under Rule 702 of the Pennsylvania Rules of Evidence, expert testimony is generally necessary where the subject matter at issue is beyond the knowledge of the average person. Young v. Dep't of Transp., 560 Pa. 373, 376-77, 744 A.2d 1276, 1278 (2000). While the average person may understand that the purpose of a lug nut is to secure a wheel onto a vehicle, the mechanics and proper functioning of the wheel assembly of a forklift, including, but not limited to, the load capabilities and tensile strengths of its components, are surely matters beyond the scope of a jury's common knowledge. Moreover, a forklift is a highly specialized piece of machinery, the operation of which the average person is not familiar. Contra Vrabel v. Dep't of Transp., 844 A.2d 595, 598 (Pa. Cmwlth. 2004) ("[B]ecause the use of motor vehicles is so common, courts do not restrict testimony about the operation of motor vehicles to expert witnesses."), appeal denied, 581 Pa. 709, 867 A.2d 525 (2005). Accordingly, this Court agrees with Precision that Plaintiff was required to present expert testimony to establish that PFR202's defect—the missing lug nuts—was the legal cause of Plaintiff's injuries. The trial court, therefore, erred in denying Precision's motions for compulsory non-suit, directed verdict, and judgment notwithstanding the verdict as to Plaintiff's strict products liability claim. Furthermore, as SEPTA's contractual indemnification claim was dependent upon the success of Plaintiff's strict products liability claim, the trial court erred in granting SEPTA's motion for directed verdict.
Rule 702 of the Pennsylvania Rules of Evidence provides:
If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
In support of their argument that expert testimony was unnecessary to establish causation, Plaintiff and SEPTA cite to Camp Construction Corporation v. Lumber Products Company, 457 A.2d 937 (Pa. Super. 1983). There, in attempting to establish that plywood purchased from the defendant was manufactured in a defective manner, the plaintiff submitted the testimony of two witnesses who, despite having extensive experience in the construction industry, were not qualified as experts. Determining that the witnesses' opinion testimony was competent, the Superior Court stated:
Blumenfeld and Kish could express their opinion about the "unfitness" of the plywood, which was not a subject beyond the "ken of the average layman." Even the trial court stated, "[w]e are not talking about a highly sophisticated piece of machinery; we are talking about a 4 by 8 piece of plywood."
Precision also argues that the trial court erred in denying its motions for compulsory non-suit, directed verdict, and judgment notwithstanding the verdict as to Plaintiff's strict products liability claim because Precision was not a seller under Section 402A; Precision was not in the business of selling forklifts; and Plaintiff assumed the risk by operating a knowingly defective forklift. In addition, Precision argues that the trial court erred in granting SEPTA's motion for directed verdict as to SEPTA's contractual indemnification claim because SEPTA failed to establish that PFR202 was delivered pursuant to the contract between Precision and SEPTA, and SEPTA failed to establish that it is entitled to indemnification as a settling defendant. Finally, Precision argues, in the alternative, that it is entitled to a new trial because the trial court should have permitted the jury to consider SEPTA's proportionate liability; the trial court should have permitted the jury to consider whether Precision sold PFR202; the trial court should have permitted the jury to consider whether Precision was in the business of selling forklifts; the trial court should have permitted the jury to consider whether Precision loaned PFR202 pursuant to the contract between Precision and SEPTA; the trial court should have permitted Precision to introduce the settlement agreement between Plaintiff and SEPTA for purposes of impeachment; the trial court should not have permitted Plaintiff to introduce the testimony of Dr. Randall Smith; the trial court should not have permitted Plaintiff to introduce the testimony of Rosalyn Pierce; the trial court should not have allowed SEPTA to participate at the trial; the trial court should have permitted the jury to consider Plaintiff's assumption of the risk and/or reckless conduct; and the jury's verdict was excessive. Having determined that Plaintiff failed to establish causation under Section 402A due to the lack of expert testimony, and that, as a result, the trial court erred in denying Precision's motions for compulsory non-suit, directed verdict, and judgment notwithstanding the verdict as to Plaintiff's strict products liability claim, and in granting SEPTA's motion for directed verdict as to SEPTA's contractual indemnification claim, we need not address Precision's remaining arguments. --------
Accordingly, we reverse the trial court's entry of judgment in favor of Plaintiff and against Precision. In addition, we reverse the trial court's grant of directed verdict in favor of SEPTA and against Precision.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 13th day of April, 2012, the judgment entered by the Court of Common Pleas of Philadelphia County (trial court) in favor of Robert A. Bibbs (Plaintiff) and against Precision Fleet Industrial Service, Inc. (Precision) in the above-captioned matter is hereby REVERSED. In addition, the order of the trial court, dated July 28, 2009, granting Southeastern Pennsylvania Transportation Authority's (SEPTA) motion for directed verdict and entering judgment in favor of SEPTA and against Precision is hereby REVERSED.
/s/_________
P. KEVIN BROBSON, Judge
Church v. Tentarelli, 953 A.2d 804, 807 (Pa. Super. 2008) (alteration in original) (quoting Mahan v. Am-Gard, Inc., 841 A.2d 1052 (Pa. Super 2003), appeal denied, 579 Pa. 712, 858 A.2d 110 (2004)). Furthermore, an appellate court's standard of review over a trial court's denial of a motion for directed verdict and/or a motion for judgment notwithstanding the verdict is as follows:
In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. Our standard[s] of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We will reverse a trial court's grant or denial only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa. Super. 2010) (alteration in original) (quoting Campisi v. Acme Markets, Inc., 915 A.2d 117, 119 (Pa. Super. 2006)).
There are two bases upon which judgment N.O.V. can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Id. at 941 (citations omitted) (alteration in original). We, however, appreciate the distinction between an ordinary piece of plywood, which does not involve multiple components or moving parts, and a forklift, or its wheel assembly.