Lynch v. McStome & Lincoln Plaza Associates

46 Pa. D. & C.3d 115, 1987 Pa. Dist. & Cnty. Dec. LEXIS 167
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedNovember 9, 1987
Docketno. 82-13492
StatusPublished

This text of 46 Pa. D. & C.3d 115 (Lynch v. McStome & Lincoln Plaza Associates) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lynch v. McStome & Lincoln Plaza Associates, 46 Pa. D. & C.3d 115, 1987 Pa. Dist. & Cnty. Dec. LEXIS 167 (Pa. Super. Ct. 1987).

Opinion

YOHN, J.,

Plaintiff, Clare Lynch, sued McStome and Lincoln Plaza Associates, Montgomery Elevator Company and General Elevator Company Inc. on negligence grounds only for injuries she received at Oxford Valley Mall when the escalator-upon which she was riding came to an allegedly sudden and abrupt stop.

The subject escalator was manufactured by additional defendant, Montgomery Elevator Company in 1973. In that same year, the escalator was purchased by defendants McStome and Lincoln Plaza Associates and installed at the Oxford Valley Mall owned by them. The escalator has been maintained by additional defendant General Elevator Company, since the date of installation. The accident in question occurred on June 26, 1982.

The action was tried before the undersigned and a jury; and on August 6, 1986, the jury returned a [116]*116verdict in favor of defendants. The jury found that Montgomery was not negligent and that the negligence of the mall and General was not a substantial factor in bringing about plaintiff’s harm.

Plaintiff filed a motion for post-trial relief on August 15, 1986. Plaintiff then filed supplemental post-trial motions on March 13, 1987, but did so in violation of Montgomery County Rule 252. On July 27, 1987, after oral argument, this court in two separate orders denied plaintiffs motions for post-trial relief and thereafter judgment was entered upon the findings of the jury in favor of defendants. It is from this judgment that plaintiff appeals.

In this instant appeal plaintiff raises the following issues:

(1) Plaintiff contends that the court erred in refusing to admit under a negligence theory evidence as to the possibility of a retrofit of the brake on the subject escalator by defendant Montgomery Elevator Company and reports of accidents to said defendant subsequent to the date of manufacture of the subject escalator but prior to the date of plaintiffs accident in the category of “stopped abruptly” and said defendant’s failure to perform or consult studies regarding safe stopping distances subsequent to the subject escalator’s manufacture in 1973 but prior to plaintiffs accident.

(2) Plaintiff contends that the court erred in refusing to exclude as evidence videotapes manufactured and produced by additional defendant Montgomery Elevator Company on the basis that said videotapes lacked probative value because of the dissimilarity in testing conditions and also whatever value said test may have had, same was outweighed by the risk that its admissibility was misleading and prejudicial.

[117]*117(3) Plaintiff contends that the court erred in refusing plaintiffs charge to the jury on the doctrine of res ipsa loquitur as to defendants McStome & Lincoln Plaza Associates and General Elevator Company, based on applicable Pennsylvania law.

(4) Plaintiff contends that the court erred in charging the jury on negligence of plaintiff in the absence of any evidence of same, circumstantial or otherwise.

(5) Plaintiff contends that the court erred in charging that the jury could draw on adverse inference if it determined that plaintiffs expert witness, Lester Moskowitz, did not satisfactorily explain his failure to produce a videotape since such a videotape could not be admissible as evidence.

(6) Plaintiff contends that the court erred in denying plaintiffs motion to file additional reasons in support of its motion for a new trial under local rule 252.

We will address these issues accordingly.1

DUTY TO RETROFIT

Plaintiff first contends that the court erred in not allowing into evidence reports from other escalator owners given to Montgomery subsequent to its manufacture of the instant escalator concerning accidents on other escalators due to the escalator stop[118]*118ping abruptly. She also asserts that the court should have allowed into evidence proof that Montgomery failed to perform or consult studies about safe stopping distances of escalators available after the date of manufacture but prior to the date of the accident. Plaintiff asserts that Montgomery is a “common carrier” and as a result, owes the highest degree of care to plaintiff. Plaintiff concludes, therefore, that the aforesaid evidence would have established a duty on Montgomery to retrofit the brakes on the escalator which it manufactured in 1973. Plaintiffs contentions in this regard are without merit and-contrary to Pennsylvania law.

Plaintiff has failed to provide the court with any statutory or case law in Pennsylvania imposing upon a manufacturer a duty to retrofit an instrumentality which is a common carrier.

Courts in other jurisdictions that have addressed the issue have held a manufacturer has no duty to retrofit. For example, in Smith v. Firestone Tire and Rubber Company, 755 F.2d 129 (Eighth Cir. 1985) plaintiff sought to recover for personal injuries she received as a result of an exploding tire rim manufactured by defendant. At the close of trial, plaintiff requested that the court instruct the jury that defendant was negligent in not recalling and/or retrofitting the rim. Id. at 134. The trial court denied plaintiffs request. In affirming the trial court’s ruling the Eighth Circuit stated:

. “[Plaintiff] provides no statute or case law to support their position that [defendant] was under a legal duty to recall the rims. While such a duty may have existed had the Department of Transportation ordered a recall, .... no such notification of defect and remedy order had been given pertaining to these rims. Since no duty to recall was established, [119]*119a fundamental prerequisite to establishing negligence was absent. ...” Id. at 135 (citations omitted).

In Syrie v. Roll International, 748 F.2d 304 (Fifth Cir. 1984), plaintiff was injured when the back of the. stool she was sitting on fell off and the stool rolled out from underneath her. She contended that defendant was negligent in not warning her of the hazards discovered years after the stool had been manufactured and sold and failing to recall the stools to correct these deficiencies. Id at 310. In affirming the trial court’s rejection of plaintiffs claims the Fifth Circuit in its opinion cited to a criticism in another case and stated:

“No authority is cited by the court and none exists for the proposition that, once a manufacturer designs and markets an improved component for its new products, it then assumes a duty to complete the remedy by causing the substitution of the improved component in used products that are already on the market.” Id. at 311 (emphasis added).

These cases clearly demonstrate that a manufacturer such as Montgomery has no duty to install all new developments with reference to its products on all of its old products.

Perhaps, most important in this discussion of Montgomery’s alleged duty to retrofit the brakes on its escalator is the argument made by plaintiffs counsel at trial. Mr. Woods stated that if Montgomery “were not a common carrier, ... I think the duty is more or less cut off at either the time of manufacture or sale. ” Thus, plaintiffs contention is bottomed on her conclusion that Montgomery, even though a manufacturer, is a common carrier.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hopkins v. E. I. Du Pont De Nemours & Co.
199 F.2d 930 (Third Circuit, 1952)
Pitman Manufacturing Co. v. Henkels & McCoy Inc
673 F.2d 1301 (Third Circuit, 1981)
Vargus v. Pitman Manufacturing Co
673 F.2d 1304 (Third Circuit, 1981)
Josey P. Syrie, Et Vir. v. Knoll International
748 F.2d 304 (Fifth Circuit, 1984)
Gilbert v. Korvette's Inc.
327 A.2d 94 (Supreme Court of Pennsylvania, 1974)
Commonwealth v. Jones
327 A.2d 10 (Supreme Court of Pennsylvania, 1974)
Kelly v. General Electric Co.
110 F. Supp. 4 (E.D. Pennsylvania, 1953)
Commonwealth v. Light
326 A.2d 288 (Supreme Court of Pennsylvania, 1974)
Commonwealth v. Miller
407 A.2d 860 (Superior Court of Pennsylvania, 1979)
Vargus v. Pitman Manufacturing Co.
510 F. Supp. 116 (E.D. Pennsylvania, 1981)
Reilly v. Southeastern Pennsylvania Transportation Authority
489 A.2d 1291 (Supreme Court of Pennsylvania, 1985)
Dunlap v. Larkin
493 A.2d 750 (Supreme Court of Pennsylvania, 1985)
Commonwealth v. Scott
389 A.2d 79 (Supreme Court of Pennsylvania, 1978)
Heffernan v. Rosser
215 A.2d 655 (Supreme Court of Pennsylvania, 1966)
Williams v. Philadelphia Transportation Co.
203 A.2d 665 (Supreme Court of Pennsylvania, 1964)
House of Pasta, Inc. v. Mayo
449 A.2d 697 (Supreme Court of Pennsylvania, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
46 Pa. D. & C.3d 115, 1987 Pa. Dist. & Cnty. Dec. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-mcstome-lincoln-plaza-associates-pactcomplmontgo-1987.