Eljizi v. Dorney Park Coaster Co.

34 Pa. D. & C.4th 494, 1996 Pa. Dist. & Cnty. Dec. LEXIS 124
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJune 19, 1996
Docketno. 92-C-2322
StatusPublished

This text of 34 Pa. D. & C.4th 494 (Eljizi v. Dorney Park Coaster Co.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eljizi v. Dorney Park Coaster Co., 34 Pa. D. & C.4th 494, 1996 Pa. Dist. & Cnty. Dec. LEXIS 124 (Pa. Super. Ct. 1996).

Opinion

GARDNER, J.,

This matter is before the court on the motion of defendant for reconsideration of defendant’s motion for partial summary judgment filed December 11, 1995. For the reasons expressed below, we deny the motion.

This is an action for personal injuries allegedly suffered by plaintiff Aref Eljizi as a patron on the “Hercules” roller coaster ride at defendant amusement park on August 18, 1991. Plaintiffs allege, in part, that the injury was caused by the defective manufacture and design of the seat belt on the ride.

In a previous motion for partial summary judgment with respect to plaintiffs’ claims asserted on a theory of strict liability, defendant amusement park argued, in part, that a defective seat belt cannot be the subject [496]*496of a strict liability or products liability action. Defendant argued that because plaintiff purchased a service, not a product, when he purchased a ticket to ride the roller coaster, he cannot recover on a strict liability or products liability theory.

On December 1, 1995 the undersigned denied defendant’s motion for partial summary judgment. We ruled, in part, that as a park patron Mr. Eljizi purchased the use of these products (the roller coaster and seat belt) to use for his enjoyment in a ride. We also ruled that a user does not have to have purchased the product to have a strict liability cause of action. We incorporate here the reasons expressed in footnote 1 to our order of December 1, 1995.

In its motion for reconsideration of that ruling, defendant claims that the recent opinion of the Supreme Court of Pennsylvania in Cafazzo v. Central Medical Health Services Inc., 542 Pa. 526, 668 A.2d 521 (1995) makes it “abundantly clear that this honorable court misinterpreted applicable Pennsylvania law in ruling that a viable strict liability claim could be asserted against defendant in the context of this action.” We disagree.

In Cafazzo plaintiff underwent surgery for implantation of a mandibular prosthesis. He sued the physician who performed the surgery and the hospital where the operation took place. He argued that they should be held strictly liable as having “provided, sold or otherwise placed in the stream of commerce” the defective implant. The Supreme Court affirmed the granting of a demurrer. It ruled that the doctor and the hospital were not sellers of the prosthesis, rather they were providers of medical services. The court also reasoned that medical services are significantly different in kind [497]*497from the retail marketing enterprise at which section 402A of the Restatement (Second) of Torts is directed.

First, Cafazzo is distinguishable because it concerns whether a hospital and a physician can be held strictly liable under section 402A of the Restatement for defects in a product provided incidental to the provision of medical services. The instant case involving an amusement park ride obviously does not concern the provision of medical services, or remotely related services.

Second, the substance of the Supreme Court’s opinion makes it clear that it is intended to apply only to cases involving professional medical services with the incidental sale of medical products, not to other cases involving other services. In Cafazzo the court extensively reviewed the prior case law of other states regarding the sale of products incidental to the provision of medical services.

The Supreme Court noted that the medical services cases from other states which have held that strict liability does not apply, have been labeled by some as a “service exception” to section 402A. The court indicated that such a characterization is misleading because it presupposes that the distinction drawn where medical personnel are involved, is an artificial one. The cases from other states make clear, however, “that the provision of medical services is regarded as qualitatively different from the sale of products.” Cafazzo, supra at 532, 668 A.2d at 524.

The meaningful distinction is based on a difference of primary function. That is, the medical providers “could not be liable under a theory of strict liability because (they were) not in the business of selling the (implant), its use was only incident to [the doctor’s] primary function of providing medical services, and the medical services could not have been rendered with[498]*498out the use of this product.” Id. at 533, 668 A.2d at 524-25, quoting Podrat v. Codman-Shurtleff Inc., 384 Pa. Super. 404, 410, 558 A.2d 895, 898 (1989), alloc. denied, 524 Pa. 609, 569 A.2d 1368 (1989). The Supreme Court further explained that this distinction is made clearer by the fact that case law also supports the application of section 402A “where what has been provided is not medical service or products connected with diagnosis and treatment, but rather materials related to mechanical or administrative functions” such as hospital gowns, or defective products sold in the hospital gift shop. Cafazzo, supra at 533, 668 A.2d at 525.

There is nothing in the Cafazzo opinion to indicate that the court was also ruling that the provision of services in general is excluded from section 402A or, more specifically, that a defective seat belt on a roller coaster ride in an amusement park could not be the subject of a strict liability action. Moreover, unlike the medical situation, we find that the amusement park is more akin to marketing its product, that is its roller coaster, including the component parts, its roller coaster car and the seat belt which is part of the car.

Finally, we find persuasive the analysis of the Court of Common Pleas of Dauphin County, en banc, in Coopersmith v. HERCO Inc., 116 Dauph. 1 (1996). In Coopersmith plaintiff was injured while riding on an allegedly defective raft on a waterslide ride at HersheyPark amusement park.

The Coopersmith court concluded that an amusement park could be interpreted to be a “seller” or “supplier” under Restatement (Second) of Torts §402A, given the broad application of the term “supplier.” The common pleas court noted that the term has been defined to include “anyone who, as a supplier, enters into the business of supplying the public with products which [499]*499may endanger them.” Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 371-72, 562 A.2d 279, 281 (1989). Pennsylvania courts include in the definition of “seller” “all suppliers ... in the chain of distribution, whether retailer, partmakers, assemblers, owners, sellers, lessors, or any other relevant category . . . .” Burch v. Sears, Roebuck and Co., 320 Pa. Super. 444, 456, 467 A.2d 615, 621 (1983).

This broad interpretation is needed to effectuate the policy behind strict liability, which is to protect the public against defective products. The Supreme Court stated:

“What is crucial to the rule of strict liability is not the means of marketing but rather the fact of marketing, whether by sale, lease, or bailment, for use and consumption by the public. . . .

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Related

Burch v. Sears, Roebuck and Co.
467 A.2d 615 (Supreme Court of Pennsylvania, 1983)
Cafazzo v. Central Medical Health Services, Inc.
668 A.2d 521 (Supreme Court of Pennsylvania, 1995)
Wood v. Conneaut Lake Park, Inc.
209 A.2d 268 (Supreme Court of Pennsylvania, 1965)
Francioni v. Gibsonia Truck Corp.
372 A.2d 736 (Supreme Court of Pennsylvania, 1977)
Musser v. Vilsmeier Auction Co., Inc.
562 A.2d 279 (Supreme Court of Pennsylvania, 1989)
Podrat v. Codman-Shurtleff, Inc.
558 A.2d 895 (Supreme Court of Pennsylvania, 1989)
Webb v. Zern
220 A.2d 853 (Supreme Court of Pennsylvania, 1966)

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34 Pa. D. & C.4th 494, 1996 Pa. Dist. & Cnty. Dec. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eljizi-v-dorney-park-coaster-co-pactcompllehigh-1996.