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SHARON V. CHILDERS v. KENNETH W. JOSEPH (03/22/88)

filed: March 22, 1988.

SHARON V. CHILDERS, ADMINISTRATRIX OF THE ESTATE OF WILLARD EDGAR CHILDERS, DECEASED, APPELLANT,
v.
KENNETH W. JOSEPH, T/D/B/A SUNRISE EQUIPMENT AND SUPPLY COMPANY; SUNRISE EQUIPMENT AND SUPPLY COMPANY; OHIO EDISON, A CORPORATION; GENERAL MOTORS CORPORATION; PITMAN MANUFACTURING COMPANY; A. B. CHANCE COMPANY; EMERSON ELECTRIC COMPANY, A CORPORATION; TOOMBS TRUCK AND EQUIPMENT COMPANY; HUGH L. STRICKLAND, INC. APPELLEES V. POWER LINE EQUIPMENT RENTALS, INC., SANDRA L. SIMPSON, T/A E & S SERVICE & REPAIR, AND HOWARD P. FOLEY CO., THIRD-PARTY DEFENDANTS



On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 84-1145.

Sloviter and Cowen, Circuit Judges, and Debevoise, District Judge*fn*

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

This is a complex, multi-defendant products liability and negligence case in which the plaintiff alleges that Willard Childers, her deceased husband, was killed as a result of defects in the digger/derrick truck he was operating at the time of his death. We will affirm the district judge's order dismissing plaintiff's negligence claim against defendant Ohio Edison by way of summary judgment, because we believe that the plaintiff did not set forth evidence of record sufficient to establish that claim against that defendant. However, because the district judge erred in ruling that in certain respects the digger/derrick truck was not unreasonably dangerous" under Pennsylvania products liability law, and erred in dismissing products liability claims against defendants Hugh L. Strickland, Inc. and Toombs Truck and Equipment Co., we will remand this case to the district court for a new trial against the remaining defendants.

l.

This case arises from the accidental death of Willard Childers. Childers was employed by the Howard P. Foley Company ("Foley"), an electrical contractor, and was engaged in the task of unloading wooden utility poles from a flat bed trailer at the time of the accident. Childers was killed when the digger/derrick truck he was operating from a rear operators' station moved backward, crushing him between the truck and the flat bed trailer from which he was removing utility poles. Sharon Childers, his widow and administratrix of his estate, brought products liability claims against a number of defendants who had participated in the manufacture, sale or distribution of the digger/derrick truck, or some part of the truck, and negligence claims against defendant Ohio Edison, which had owned and operated the truck for eleven years.

The digger/derrick truck was manufactured and sold in two parts: a truck cab and chassis, and the digger/derrick unit which was attached to the cab and chassis base. The cab and chassis, a 1970 Chevrolet Model C-60, was manufactured by defendant General Motors Corporation ("General Motors"), and sold by defendant Hugh L. Strickland, Inc. ("Strickland"), a General Motors dealer. The digger/derrick unit, a Pitman Polecat, was manufactured by defendant Pitman Manufacturing Company,*fn1 ("Pitman") and sold by Toombs Truck and Equipment Company ("Toombs"), a Pitman dealer.

Ohio Edison purchased the digger/derrick truck from the defendant dealers, requesting that it be built to particular specifications. Relevant here is that Ohio Edison specified that the truck not be equipped with a back-up alarm. Ohio Edison used the truck for eleven years, and sold it to defendant Kenneth Joseph (t/d/b/a Sunrise Equipment and Supply Company), who specialized in the reconstruction of this type of equipment. Joseph, after rebuilding the digger/derrick truck, sold it to third party defendant Power Line Equipment Company ("Power Line"). Power Line then leased the truck to the deceased's employer, the third-party defendant Howard P. Foley Company.

Childers initially instituted separate actions in the United States District Court for the District of Ohio, and in the United States District Court for the District of Western Pennsylvania. She brought the Ohio action against defendant Ohio Edison, alleging that Ohio Edison had been negligent in formulating specifications when ordering the digger/derrick truck, and in failing to provide appropriate warnings to the subsequent purchasers. She sued the remaining defendants in the Western District of Pennsylvania, asserting product liability claims. Childers alleged that the digger/derrick truck was defective because (1) it lacked a back-up alarm; (2) the rear remote throttle/operator station, which the decedent was using at the time of the accident, was improperly located; (3) the truck lacked an interlock which would prevent operation in gear from the rear remote station; (4) the truck had inadequate brakes; and (5) the transmission and gear selector was defective.

Each defendant filed cross-claims against the other defendants for contribution and indemnity, and defendant Pitman also filed a third-party complaint against the Power Line Equipment Company.*fn2

The two cases were consolidated in the United States District Court for the Western District of Pennsylvania. Before discovery was completed, Ohio Edison moved for summary judgment. See section II, infra. The district court, after considering briefs and affidavits filed by Ohio Edison, a brief submitted by the plaintiff, and oral argument, granted Ohio Edison's motion.

The district court also dismissed Childers' claims against defendants Hugh L. Strickland, Inc. and Toombs Truck and Equipment Company upon oral motion at a pre-trial conference. These motions were not briefed, and were solicited by the district court at the time of the conference, although similar motions had been filed earlier in the case by these defendants.

During the trial, the district judge, upon motions of the remaining defendants, ruled that evidence regarding the alleged brake defect, lack of a back-up alarm, and the alleged improper placement of the rear operator station would not be admissible. These issues were not submitted to the jury. Additionally, the district court granted third-party defendant Power Line's motion for a directed verdict at the end of its case.

The jury thus considered only two of the defects alleged by Childers -- the lack of an interlock device, and the alleged defects in the transmission and gear selector -- against defendants General Motors, Pitman, and Joseph. The jury returned a verdict in favor of the defendants. Childers appeals the above evidentiary rulings of the district court, and also asserts that the jury charge was defective.

II.

The first district court ruling appealed from is the grant of summary judgment in favor of Ohio Edison. Childers primarily argues on this appeal that the trial judge improperly found there to be no genuine issue of material fact.*fn3 Our review of this ruling is plenary. Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 142 (3d Cir. 1987).

Summary judgment is granted only when there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). An issue is "genuine" only if a reasonable jury, considering the evidence presented, could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, , 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). Under the Supreme Court's 1986 decision in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), the party moving for summary judgment has the initial burden of identifying evidence which it believes demonstrates the absence of a genuine issue of material fact. Id. at , 106 S. Ct. at 2553 "However, where the nonmoving party bears the burden of proof, it must by affidavits or by the depositions and admissions on file 'make a showing sufficient to establish the existence of [every] element essential to that party's case.'" Equimark, 812 F.2d at 144 (quoting Celotex, 477 U.S. at , 106 S. Ct. at 2552-53).

Childers sued Ohio Edison under a negligence theory; because Ohio Edison did not manufacture or market the digger/derrick truck, she could not allege that Ohio Edison was strictly liable under a products liability theory. Instead, Childers asserted that Ohio Edison was negligent in ordering the truck without a backup alarm, in not ...


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