Andrews v. City of Pittsburgh

41 Pa. D. & C.3d 520, 1984 Pa. Dist. & Cnty. Dec. LEXIS 37
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedApril 30, 1984
Docketno. G.D. 78-14417
StatusPublished
Cited by2 cases

This text of 41 Pa. D. & C.3d 520 (Andrews v. City of Pittsburgh) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrews v. City of Pittsburgh, 41 Pa. D. & C.3d 520, 1984 Pa. Dist. & Cnty. Dec. LEXIS 37 (Pa. Super. Ct. 1984).

Opinion

LOUIK, J.,

This matter is currently before the court upon plaintiffs’ motion to remove the compulsory nonsuit which was entered by the trial court on January 25, 1983. The factual background to this matter is as follows: On July 8, 1977, plaintiffs, Melody Andrews and her husband, Steven Andrews, purchased from Ted McWilliams Porsche Audi, Inc. (hereinafter Ted McWilliams), a 1977 Porsche automobile, manufactured by the-Porsche Audi Division of Volkswagen of America, Inc. (hereinafter Porsche Audi). On August 24, .1977, plaintiffs and one Kevin Quinlan, Mrs. Andrews’ driving instructor, were taking a summer [521]*521night’s drive in the Porsche. Mr. Andrews was dropped off at plantiffs’ residence, and Mrs. Andrews and Mr. Quinlan continued their drive to the East Liberty section of the city (Mrs. Andrews only possessed a driving permit at this time, and was required to have a licensed driver with her when driving). Shortly before midnight, Mrs. Andrews and Mr. Quinlan entered Highland Park; and continued through the park onto Reservoir Road. Reservoir Road, at the time of the incident, was being prepared for resurfacing, and the blacktop had been scraped from the extreme right and left lanes; this left only the center two lanes, open for travel, and covered with a certain amount of loose debris and gravel from the scraping operations (additionally, Reservoir Road had been officially closed to vehicular traffic since 11:00 p.m., or one hour before the entry by wife-plaintiff and Mr. Quinlan).

While rounding one of the sharp curves on Reservoir Road, the Porsche went into á lateral slide upon the loose gravel, and impacted with á solid curb (the speed at which the Porsche was travelling is uncertain). At this point, the rear suspension system, unable to endure the impact, collapsed, causing the Porsche to jump the curb and continue on into a tree. Mrs. Andrews was not wearing any lap or shoulder restraint and, hence, was ejected from her seat, across to the passenger’s side, where her head protruded from the open passenger window and struck the tree. Mrs. Andrews sustained serious head and facial injuries from this impact.

Plaintiffs filed suit naming Porsche Audi, Ted McWilliams, and the City of Pittsburgh (hereinafter city) as defendants, alleging Restatement (Second) of Torts §402 (A) strict liability against Porsche Audi and Ted McWilliams, and negligent roadway maintenance against the city. By agreement of all [522]*522counsel, the trial was bifurcated. After two weeks of trial, plaintiffs rested their case on liability and all defendants moved for a compulsory nonsuit or, in the alternative, for the striking of testimony rendered by Richard J. Erdlac, plaintiffs’ automotive design expert; additionally, city requested that the testimony of Robert Golding, plaintiffs’ engineering expert, be stricken. The trial judge found that a prima facie case had not been made against any defendant and granted all three motions for nonsuit; as a result, the trial judge found it unnecessary to rule upon the competency of either Erdlac or Golding. Plaintiffs now seek to remove the entry of nonsuit as erroneous. Their grounds are primarily three-fold:

(1) that sufficient expert and lay testimony upon the presence of a “defect” was submitted to satisfy a prima facie burden under section 402 (A) strict liability, and, thus, entitled plaintiffs to a jury determination upon whether the “defect” caused Mrs. Andrews injuries;

(2) that the entry of a prima facie case in (1) against Porsche Audi, combined with Ted McWilliams’ own stipulation that the suspension system was unchanged by the consumer after sale, satisfied the section 402 (A) requisites for liability on the part of a seller of defective merchandise; and

(3) finally, that the evidence established a prima facie case against the City of Pittsburgh of failure to maintain a public roadway in a manner commensurate with public safety.

With due respect to plaintiffs’ reminder that, a nonsuit is only justified in the clearest of cases, see Korpa v. Stuyvesant Life Ins. Co., 236 Pa. Super. 581, 351 A.2d 682 (1975), we fail to find merit to the above contentions, and now elect to uphold the entry of nonsuit by the trial court.

[523]*523With regard to the initial contention, the establishment of a prima facie §402 (A) case against Porsche Audi, plaintiffs primarily rely upon the decision of Barris v. Bob’s Drag Chutes and Equipment, 685 F.2d 94 (3rd Cir., 1982), which contains , the following language:

“To submit a §402 (A) strict liability case to a jury, it must be shown that the product was defective, that the defect existed while the product was in the control of the manufacturer or retailer, and that the defect was the proximate cause of . . . injuries. Berkibile v. Brantly Helicopter Corp. 462 Pa. 83, 93 337 A.2d 893, 898-899 (1975). (Cite omitted.) A product is defective when it is not fit for, the intended use for which it is sold. Azzarello v. Black Bros. Co., Inc. 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978) . . . .” (Cite omitted.) Barris, supra, at 98-99.

Plaintiffs maintain that sufficient testimony (expert and lay alike) was presented at trial to support the following findings of fact: (1) that a defect was present in the rear suspension system of the Porsche, (2) that the defect was present when the automobile left' Porsche Audi, and (3) that the defect disabled the suspension system from performing in accordance with one intended use of an automobile, the endurance of crash impact. Hence, plaintiffs are adamant that a jury determination of the issue of causation (i.e., whether the defect caused Mrs.. Andrews’ injuries) was warranted. While recognizing the authority of Barris in its recitation of the Berkebile-Azzarello standards for strict liability litigation, and the proposition that an accident is “. . . incidental to the normal and intended use of motor vehicles . . . ,” see Dyson v. General Motors Corp., 298 F.Supp. 1064, 1073 (E.D., Pa. 1969), we nonetheless find plaintiffs’ heavy reliance upon Bams to be misplaced. In Barris, a sprint car [524]*524racer was killed when, upon colliding with another car, his shoulder harness failed because of inferior stitching, resulting in decedent’s death when the car proceeded to flip end over end. Clearly, in Barris the decedent’s injuries were brought about when the defective, shoulder harness did not meet with its intended use: the prevention of injury upon loss of vehicular control. This is patently distinguishable from the factual situation presented in Andrews; even if we presume a defect in the suspension system, it simply cannot be said, and was not evidenced at trial, that the purpose or “intended use” of a rear suspension system is the provision of á “buffer,” or to prevent a vehicle from jumping over a solid curb when an impact occurs during an uncontrolled slide. While the Barris and Andrews accidents are conceivably alike in that the defect in question did not, per se, cause the accident, the analogy falters when the intended purpose of each piece of automotive equipment is considered.

Rather, we are in accord with defendant Porsche Audi that a routine strict-liability issue is not before us.

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41 Pa. D. & C.3d 520, 1984 Pa. Dist. & Cnty. Dec. LEXIS 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrews-v-city-of-pittsburgh-pactcomplallegh-1984.