(Civil Action No. 68-2437). APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Van Dusen and Adams, Circuit Judges, and 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.
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. § 1332, solely upon the theory of strict liability, § 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.
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.
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. Defendant-appellee insists that the District Court's charge in its totality represents a permissible expression of the applicable law.
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).
When the trial judge here stated that liability under § 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.*fn1 Liability under § 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.*fn2 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 ...