Bomboy v. Erie Airways Inc.

6 Pa. D. & C.4th 338, 1988 Pa. Dist. & Cnty. Dec. LEXIS 9
CourtPennsylvania Court of Common Pleas, Erie County
DecidedSeptember 12, 1988
Docketno. 4237-A-1983
StatusPublished

This text of 6 Pa. D. & C.4th 338 (Bomboy v. Erie Airways Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Erie County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bomboy v. Erie Airways Inc., 6 Pa. D. & C.4th 338, 1988 Pa. Dist. & Cnty. Dec. LEXIS 9 (Pa. Super. Ct. 1988).

Opinion

JIULIANTE, J.,

-Richard Bomboy was seriously injured on February 17, 1982, when he fell from an extension ladder during the course of his employment. In this action, Richard and Alice Bomboy sued defendant Erie Airways Inc. for negligence and defendants Scranton Aluminum Manufacturing Company and 84 Lumber Company on theories of negligence and strict liability in the design, manufacture and sale of the accident ladder. Utica Metal Products was joined as an additional defendant because it was the supplier of the original feet on the ladder. A jury trial occurred in May 1987. A directed verdict was entered as to additional defendant, Utica Metal Products, at the close of the defendants’ case and the jury reached a verdict of no liability as to the remaining defendants. Plaintiffs thereafter filed timely post-trial motions in regard to the verdict for defendants Erie Airways Inc., Scranton Aluminum Manufacturing Company and 84 Lumber Company. The directed verdict in favor of Utica Metal Products has not been appealed nor is it the subject of post-trial motions.

Errors in the Case Against Scranton Aluminum

At trial, plaintiffs proceeded against Scranton on the theory that Richard Bomboy fell because the ladder slipped out from under him. Plaintiffs alleged at trial that defendant Scranton had manufactured the ladder with inadequate slip resistance and lack [340]*340of warnings of this defect. On the issue of low slip resistance, plaintiffs presented the testimony of Professor Howard Wilson, who stated his opinion that a new Scranton ladder equipped with the original feet did not provide an adequate margin of safety, that the accident ladder was dangerous because it had a low coefficient of friction and that the accident ladder with the original feet would have been defective in the area of slip resistance. Scranton presented evidence that Scranton ladders equipped with the original feet passed slip resistance tests designed and sanctioned by the American National Safety Institute.

Initially, Scranton’s evidence of compliance with ANSI test standards, even if inadmissible in Scranton’s case in chief, appears to be proper rebuttal where plaintiffs first put in evidence .of testing in accordance with ANSI standards. However, even in its case in chief, the defendant’s evidence of ANSI test standards is properly admissible on the issue of causation: Plaintiffs’ theory at trial was that the accident ladder, equipped with replacement feet, slipped during normal use. By bringing in evidence of testing with the original feet, plaintiffs attempted to prove that the ladder would have slipped regardless of this substantial alteration in the product. Defendant then offered evidence of compliance with ANSI testing standards, not for the purpose of showing lack of .defect, but for the purpose of showing that the accident ladder did not slip, defective or not. The import of Scranton’s testimony was that in its original condition, the accident ladder would not have slipped under the conditions present at the time and place of Richard Bomboy’s accident. Defendant’s position was that even if the ladder was defective, the defect did not cause the accident.

[341]*341This court is aware that in Lewis v. Coffing Hoisting Division, 515 Pa. 334, 528 A.2d 590 (1987), decided after the trial of this-case, the Supreme Court of Pennsylvania held that evidence of industry standards as to the design of the product at issue there was properly excluded at trial. The court’s concern in Lewis was the defendant’s attempt to defeat a claim of defect in its product by establishing that over 90 percent of manufacturers were using the same design. Such evidence is not only inconclusive on the issue of whether the manufacturer was reasonable and therefor not negligent in its design choice, but also tends to focus the jury on the conduct of defendant rather than the attributes of the product it makes.

Without deciding the retroactive effect of the Lewis decision, the present holding does not offend the reasoning of the court in Lewis. First of all, evidence of standards of the American Society of Mechanical Engineers in Lewis was excluded as irrelevant because “the ASME publication was totally silent on the subject of the design and guarding of buttons on the control pendants of electric hoists,” the particular defect asserted in Lewis, supra. The expert testimony that “at least 90 percent of the electric hoists made in this country had control boxes devoid of any type of guard around the activating buttons” was excluded as improperly injecting negligence concepts into a case based entirely on strict liability under section 402A of the Restatement (Second) of Torts. Lewis, supra.

It is apparent that the exclusion of this expert testimony regarding industry custom served as the basis for the court’s opinion. As Justice Larsen said in his concurrence, the court made clear in Lewis that a manufacturer of unsafe products cannot escape liability because “the other guys do it too.” [342]*342Id. Therefore, defendant manufacturer in Lewis would not be permitted to argue that his unsafe product was on a par with all others available. In the present case, Lewis would apply if Scranton had proven at trial that their ladder, despite having slipped while Bomboy was working on it, was nonetheless safe because it was in compliance with ANSI standards or because it was as good as other ladders. But here, defendant proved that its ladder would not slip and in effect rebutted the plaintiffs testimony that the low slip resistance of the ladder caused the fall. We conclude that it was not error to permit evidence of compliance with ANSI test standards as it was relevant to the issue of causation.

Plaintiffs next assign error to the court’s having permitted testimony regarding the contributory negligence of plaintiff Richard Bomboy. The court permitted the testimony and instructed the jury regarding contributory negligence on the authority of Foley v. Clark Equipment Company, 361 Pa. Super. 599, 523 A.2d 379 (1987), alloc. den. 531 A.2d 780 (1987). Plaintiff in Foley was injured when he was struck by a forklift. Plaintiff claimed defective design of the forklift which hampered the operator’s visibility. The defense asserted was that the accident was caused by the ináttentiveness of either plaintiff, the forklift operator, or both. The defendant in Foley argued on appeal that the trial court erred in excluding testimony regarding plaintiffs actions prior to the collision. The Superior Court said:

“The trial court correctly concluded, under existing law, that negligence principles generally are not to be injected into an action based upon the theory of strict products liability. . . . This does not mean, however, that evidence concerning the negligence of the plaintiff and of other individuals involved in a [343]*343product-related accident cannot be considered for any purpose. On the contrary, evidence of another’s negligent conduct is admissible where it is relevant to establish causation.” 361 Pa. Super, at 626, 523 A.2d at 393 (1987). (citations omitted) Thus, the court in Foley

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Related

Marshall v. Southeastern Pennsylvania Transportation Authority
587 F. Supp. 258 (E.D. Pennsylvania, 1984)
Foley v. Clark Equipment Co.
523 A.2d 379 (Supreme Court of Pennsylvania, 1987)
Hawthorne v. Dravo Corp., Keystone Div.
508 A.2d 298 (Supreme Court of Pennsylvania, 1986)
Staymates v. ITT Holub Industries
527 A.2d 140 (Supreme Court of Pennsylvania, 1987)
Reilly v. Southeastern Pennsylvania Transportation Authority
489 A.2d 1291 (Supreme Court of Pennsylvania, 1985)
Carrender v. Fitterer
469 A.2d 120 (Supreme Court of Pennsylvania, 1983)
Bentivoglio v. Ralston
288 A.2d 745 (Supreme Court of Pennsylvania, 1972)
Ortiz v. Ra-El Development Corp.
528 A.2d 1355 (Supreme Court of Pennsylvania, 1987)
Lewis v. Coffing Hoist Div., Duff-Norton
528 A.2d 590 (Supreme Court of Pennsylvania, 1987)
McCann v. Amy Joy Donut Shops
472 A.2d 1149 (Supreme Court of Pennsylvania, 1984)
Farnese v. Southeastern Pennsylvania Transportation Authority
487 A.2d 887 (Supreme Court of Pennsylvania, 1985)

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Bluebook (online)
6 Pa. D. & C.4th 338, 1988 Pa. Dist. & Cnty. Dec. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bomboy-v-erie-airways-inc-pactcomplerie-1988.