Appeal From the United States District Court for the Eastern District of Pennsylvania.
Hunter, Biggs and Garth, Circuit Judges.
This suit presents difficult questions under Pennsylvania law of evidence and strict tort liability. Jurisdiction is grounded on diversity. On this record we must decide whether Pennsylvania law would admit evidence of the drinking of alcoholic beverage by an auto driver involved in a collision with another vehicle. Further we must determine whether the District Court properly charged the jury on Pennsylvania strict liability precedent.
On Saturday evening, April 29, 1972, the appellant, Thelma Greiner, with two other passengers, was in a 1966 Volkswagen Beetle ("VW") driven by Judith Nickel. The group was proceeding north toward a stone bridge on a two-lane rural highway in Delaware County, Pennsylvania. The roadway south of the bridge curves to the right and then curves left over the bridge. Nickel was cautioned about the dangerous approach to the bridge but nonetheless she drove at a speed between 30 and 60 miles per hour.*fn1 Approaching the other side of the bridge was a car driven by James Cunningham. He observed the VW's fast approach to the bridge and therefore, in fear of an accident, brought his car to a halt. Nickel was in the opposite lane as she approached the bridge. As soon as she saw the headlights of Cunningham's car, she swerved the VW to the right; then realized she was heading for a concrete bridge railing and swerved to the left. It is not clear whether the car hit the bridge curb.*fn2 The VW rolled over on its side, coming to tragic repose with its roof against the front of Cunningham's car. Greiner, a passenger, was so seriously injured in the accident that she was rendered permanently paraplegic. State Trooper Koper, who appeared on the scene very soon after the accident, estimated that Nickel was driving in excess of the speed limit and at about 50 miles per hour. Koper gave Nickel a summons for driving in excess of the speed limit and to this charge Nickel pleaded guilty.
On January 11, 1974, Greiner filed a complaint in the United States District Court for the Eastern District of Pennsylvania against appellees Volkswagenwerk Aktiengeselleschaft, Volkswagen of America, Inc., and Volkswagen Atlantic, Inc.*fn3 The complaint alleged that the appellees negligently designed, manufactured and sold the VW. The complaint also alleged breach of warranty and strict liability in tort for selling a defective product unreasonably dangerous to users. The appellees answered and cross-claimed against Nickel and her employer, the owner of the VW. The employer third-party claim was dismissed with prejudice on the day the trial began. The Nickel claim was dismissed by the final judgment.
The case was tried to a jury beginning on April 7, 1975. Greiner put on the stand two expert witnesses, who described the design and handling characteristics of a 1966 VW. Both testified that the VW had a tendency to overturn. These witnesses concluded that this tendency, in their opinion, was the cause of the overturning of the VW. On the other hand, the appellees put on the stand their own expert witnesses, who concluded that the overturning of this vehicle was caused by "tripping".*fn4 There was also evidence that Nickel, the driver, had imbibed two alcoholic drinks prior to the accident.
Before trial counsel for Greiner informed the court that he would proceed under a theory of strict liability alone. Transcript of Final Pretrial Conference, p. 3. At the end of trial Greiner requested the court to submit an interrogatory to the jury on the issue as to whether the VW was defective because of the appellees' failure to warn. The court refused to submit this issue to the jury, apparently finding that the warning would have been ineffective in the context of this accident or, in the alternative require a finding by the jury of design defect and thus amount to a superfluous additional basis of liability. Notes of Trial, pp. 10-120 to 10-123. The trial Judge instructed the jury, over the appellant's objection, on the issue of whether the VW was being put to normal or abnormal use under Pennsylvania strict liability law. Appellant objects here to the Judge's charge because it required the jury to find any defect "unreasonably dangerous" in normal use as a predicate to liability.
The court submitted the following interrogatories to the jury and received the following answers in favor of the appellees:
1. Was the Volkswagen, at the time it was sold in 1966, by reason of its design, in a defective condition, unreasonably dangerous for normal use?
2. If your answer to the previous question was yes, was such defective design a substantial factor in causing the accident?
3. Do you find that the Volkswagen was defective by reason of the fact that it malfunctioned, that is, overturned?
4. If your answer to the previous question was yes, was such malfunction a substantial factor in causing the accident?
5. Do you find that Judith Nickel was negligent in the operation of her Volkswagen?
6. If your answer to the previous question was yes, was her negligence a substantial factor in causing the accident?
A. Issue of Drinking by Nickel
There was evidence that Nickel had consumed two alcoholic drinks prior to driving the VW on its disastrous trip. Greiner early moved to suppress any testimony regarding Nickel's drinking on the night of the accident. The trial Judge, however, denied the appellant's motion and ruled that evidence of Nickel's drinking, since it was coupled with other evidence of reckless driving, could be used by the jury to consider the issue of whether Nickel's driving was a substantial cause of the accident. Greiner contends that the admission of this evidence was contrary to the established rules. We disagree.
The trial Judge in interpreting the Pennsylvania cases stated: "I believe that in essence the rule is this: That evidence of drinking standing alone is inadmissible unless there is evidence that would permit a conclusion of intoxication resulting in a lack of fitness to drive. However, where there is other evidence of reckless driving, evidence of drinking is then admissible to be considered by the jury in connection with all of the evidence. . . ." The court then stated: "I will therefore admit that evidence as to Judith Nickel, since I believe, on the facts given to me, there is evidence of reckless driving; mainly, the length of the skid marks, the fact that she admitted she was driving on the wrong side of the road, the . . . proffered evidence of the two Cunninghams, and the admission of excessive speed in a  mile an hour zone." Notes of Trial, p. 8.
Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), compels us to follow the law of Pennsylvania. Greiner argues that Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956), established a "black letter rule" in her favor, saying, ". . . while proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive." 386 Pa. at 148, 125 A.2d at 476. Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969) (Roberts, J.).
However, drinking evidence insufficient to establish intoxication can come in if it is coupled with other evidence supporting an inference of intoxication.*fn5 In Commonwealth v. Cave, 219 Pa.Super. 512, 515, 281 A.2d 733, 734 (1971), the Pennsylvania Superior Court stated: "It is true that the 'mere' drinking of intoxicating liquor is inadmissible to prove that a driver was under the influence of intoxicating liquor and unfit to drive an automobile. However, it is also true that if in addition to the drinking, facts are shown from which a conclusion reasonably follows that the driver was under the influence of intoxicating liquor, all the evidence, the drinking and the surrounding circumstances are admissible for the consideration of the trier of facts to determine whether or not the drinking was wholly or partly the cause of an accident for which he is being held responsible." See also Critzer v. Donovan, 289 Pa. 381, 137 A. 665 (1927). Subsequent Superior Court cases have held that this foundation for drinking evidence not establishing intoxication must go to the issue of fitness to drive. Sentz v. Dixon, 224 Pa.Super. 70, 302 A.2d 434 (1973); Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973).*fn6 Evidence permitting inference of unfitness has included: high rate of speed, crossing a solid dividing line on the highway, and inability of the other party to the accident to avoid collision, despite precautionary measures. Cave, supra. Only such evidence supporting an inference of unfitness due to intoxication is sufficient to outweigh possible prejudice. The Pennsylvania courts have been vigilant in curbing such prejudice. Wentworth v. Doliner, 399 Pa. 356, 160 A.2d 562 (1960); Kriner, supra, 223 Pa.Super. at 533, 302 A.2d at 394.
On this record the question is whether a proper foundation had been presented for the admissibility of Nickel's drinking, which, standing alone, did not establish intoxication. In Miles v. Ryan, 484 F.2d 1255 (3d Cir. 1973), this Circuit faced a similar problem, emphasizing the importance of a proper foundation under Pennsylvania law. Id. at 1257-58. There the Court held that the District Judge had not committed reversible error in refusing to admit evidence of drinking. In Miles there was more alcohol consumed, but, as in our case, insufficient in this Court's judgment to establish intoxication. See Dissenting Opinion, id. at 1260. However, Miles is distinguishable from our case here because the foundation for admissibility was weaker there.
In Miles the evidence as to drinking pertained to a witness who accompanied the defendant. The evidence of number of drinks consumed apart, it is not clear what foundation evidence supporting the inference of the witness' unfitness to observe and remember appeared in this record. 484 F.2d at 1257-58; 338 F. Supp. at 1066-67. Not only is this foundation evidence missing, but the manner in which the drinking evidence itself was obtained, as well as its relevance, was open to question. The evidence was given by the witness to a police officer after the accident, while he apparently was in some pain and wished to be left alone. It was contradicted by the witness' subsequent deposition. Further, at the time the admission decision was made, there was some question whether either the Joint-liability or credibility of the witness would ever be at issue during the subsequent trial. 484 F.2d at 1257-58.
Here, as in Cave, supra, the evidentiary foundation was firmer. Erratic, reckless behavior inferring unfitness to drive due to intoxication was presented. Nickel was speeding on an unknown road, rural in character; she was on the wrong side going around a curve. She was oblivious to a cautionary warning by one of her passengers, who knew the road. Further, Nickel testified and her credibility was a major issue in the case. We think under Pennsylvania law there was adequate foundation for admission of evidence of Nickel's drinking.
Our result is supported by the substantial presumption we give to the correctness of the exercise of the trial Judge's discretion in these matters. Kane v. Ford Motor Co., 450 F.2d 315 (3d Cir. 1971) (per curiam). In addition, Rule 43, FRCP, in effect at the time of this trial, required the Judge to adopt the most liberal rule available in favor of admission.
B. Issue of Defect Due to Failure to Warn
Greiner contends that one of her bases of liability, VW defect due to failure to warn of possible dangerous propensity, should have been submitted to the jury. She argues that the Pennsylvania courts' interpretation of section 402A of the Restatement of the Law, Torts 2d*fn7 compels such a charge.
A threshold issue is the weight to give the Pennsylvania Supreme Court's treatment of Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (Berkebile II). Berkebile II was decided on May 19, 1975. The case at bar went to the jury on April 22, 1975, and judgment was entered on April 24, 1975. The trial Judge did not have the advantage of the advices of the Justices of the Supreme Court of Pennsylvania.
The Superior Court opinion, Berkebile v. Brantly Helicopter Corp., 225 Pa.Super. 349, 311 A.2d 140 (1973) (Berkebile I), had held that, under Pennsylvania strict liability law "it [was] imperative that a jury hearing a case of strict liability in tort be aware of its duty to find liability where inadequate warnings exist, even in the absence of a defect in design, manufacture, or preparation of the product." 225 Pa.Super. at 354, 311 A.2d at 143. The Superior Court went on to note language from Tomao v. A. P. DeSanno & Son, 209 F.2d 544, 546 (3d Cir. 1954), to the effect that "'latent limitations'" of a perfectly made article, dangerous to the user without notice, require warning by the manufacturer.
In Berkebile II the Supreme Court failed to articulate a majority view on this part of the Berkebile I holding, although it did affirm the lower court's order. An opinion was written by Chief Justice Jones, concurred in by Justice Nix, which argued that a defect exists when the seller fails to warn as to "the possible risks and inherent limitations of [the] product." 337 A.2d at 902. Such a defect was independent of any design or manufacture defect, an independent basis of liability. Three other Justices concurred in the result, filing no opinion. Justice Roberts filed a concurring opinion, which did not address the warning issue and was limited to approving the result on the basis of another issue. 337 A.2d at 903-04. Justice Pomeroy filed a concurring opinion, arguing "it is by now settled that a product which is perfectly made may nonetheless be 'unreasonably dangerous' if adequate warnings of the dangers involved in the use of the product are required and are not given by the seller." 337 A.2d at 904. Thus it can be said that three of seven Pennsylvania Supreme Court Justices have argued that failure to warn is an independent basis of strict liability under Pennsylvania law.
Since less than a majority of the court held the Berkebile II Jones view, his opinion must be treated only as an expression of the views of a minority of the court. Bair v. American Motors Corp., 535 F.2d 249 (3d Cir. 1976) (per curiam); Beron v. Kramer-Trenton Co., 402 F. Supp. 1268, 1276-77 (E.D. Pa. 1975), appeal filed, No. 75-2407 (3d Cir., filed Nov. 25, 1975). See Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250, 256 n.12 (S. Ct. 1976).
However, Berkebile I was affirmed and is good precedent until the Pennsylvania Supreme Court gives us further guidance. It, as well as prior Supreme Court precedent, compel us to find that the trial Judge erred by not submitting the failure to warn question to the jury. We do so reluctantly, for obviously the law of Pennsylvania is very far from clear.
Berkebile I, aside, we think the Supreme Court's holding in Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) supports our result. The full court in Incollingo adopted comments h and j to section 402A which provide that a product which requires adequate warning of danger involved in its use is defective if sold without such a warning. In Incollingo, the Supreme Court applied the warning requirement to a prescription drug. Incollingo was decided approximately four years before Berkebile and the Justices concurring and concurring-in-the-result in Berkebile II did not attempt to distinguish it or to limit the rule relating to warnings. Justice Pomeroy's concurring opinion specifically reaffirmed Incollingo, 337 A.2d at 904. It therefore appears that the Pennsylvania law requires us to conclude that a product which contains inherent dangers, is defective when sold, if not accompanied by a sufficient warning to the consumer of possible risks and limitations of the product.*fn8 Indeed, in their brief and oral argument appellees do not take issue with the requirement of a warning under section 402A, but contend that Greiner did not present sufficient evidence to require jury submission of a no-warning defect charge.
It remains to examine the record to determine whether the 1966 VW colorably could be characterized as having "inherent dangers," so as to justify submitting the question of no-warning to the jury.
Greiner presented two expert witnesses who described the VW's design and handling characteristics. Each expressed the opinion that it was designed in a defective manner and was an unstable vehicle with a tendency to overturn. Both witnesses testified that the design defect was the cause of the overturn. The expert witnesses presented by the appellees testified to the contrary that it was a safe vehicle. The appellees contended that the overturn was due solely and completely to Mrs. Nickel's manner of operation and that it was in no way attributable to any characteristic of the car. Some of the appellant's experts' testimony should be presented here. O'Shea testified in part as follows on direct examination:
"Q. Now, Mr. O'Shea, as a result of your investigation in this case, your study, your analysis, your background in the study of the 1966 Volkswagen Type 1 sedan, do you or do you not have an opinion as to whether that vehicle as designed and sold was or was not stable insofar as its propensity to upset or overturn was concerned?
"A. Yes, I have an opinion.
"Q. What is your opinion?
"A. It was not stable in that connotation.
"Q. As a result of your investigation, study, analysis and operation of the 1966 VW Type 1 sedan, do you have an opinion as to whether the vehicle as designed and sold was or was not defective and dangerous from the standpoint of ability to upset or overturn?
"A. Yes, I have an opinion.
" Mr. Madeira [counsel for VW]: I object to the form of the question.
"By Mr. Bernstein [counsel for Greiner]:
"Q. What is your opinion, sir?
"A. My opinion is that it is defective and dangerous because it will allow this rollover to take place and it will get you into the situation . . ...