By Leah S. Poniatowski, J.D.
A Pennsylvania appellate court interpreted a recent state high court decision on the distinction between negligence and strict liability claims premised on the same facts.
An injured worker failed to support his argument on appeal to establish that the lower court erred in its rulings against his negligence and products liability-based claims against a tractor manufacturer, a state appellate court in Pennsylvania ruled in an unpublished opinion. The appellate court also determined that his challenges to a jury instruction and evidence-related issues were without merit, affirming the lower court (Timmonds v. AGCO Corp., April 12, 2021, Lazarus, A.).
A golf course maintenance company worker was performing irrigation work when the company’s AGCO tractor, model number MF-451, he was operating failed to start. The worker climbed down from the tractor in order to directly start the ignition using a "rigging method" in which he touched a wire to the tractor’s solenoid. Once he made the contact, the tractor “immediately took off and ran over" him, seriously injuring his left foot. He filed a negligence and strict products liability lawsuit against AGCO Corporation and M.M. Weaver & Sons, Inc., and a negligence claim against "turf defendants" Sporting Valley Turf Farms, Inc., Hummer Sports Surfaces, LLC, and Hummer Turfgrass Systems, Inc. At trial, the jury returned a verdict in favor of AGCO and Weaver, and the worker was denied his motion for a new trial. He filed the present appeal.
Simultaneous claims. As an initial matter, the state appellate court clarified that the recent ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), did not proscribe plaintiffs from proceeding with simultaneous common law negligent design claims and strict liability claims under section 402A of the Restatement (Second) of Torts. Under Tincher, the Pennsylvania Supreme Court declined to adopt the Restatement (Third) of Torts: Products Liability and held that it will continue to follow the Restatement (Second) of Torts. However, the state high court overruled its decision in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), which had created a strict separation between negligence and strict liability theories under Pennsylvania law [see Products Liability Law Daily’s November 21, 2014 analysis].
AGCO asserted that the case law supporting the worker’s claims was not applicable because it was informed by the ruling in Azzarello and, thus, the worker could "no longer proceed on the strict liability and negligence claims on the same facts." The appellate court was not persuaded, stating that although the "doctrinal wall between strict liability and negligence concepts erected by the Azzarello court" were eliminated in Tincher, there was nothing in that ruling to suggest the high court’s intention to eliminate negligence-based product-design causes of action. Thus, Tincher did not bar the worker from asserting claims under both strict liability and negligence.
Duty under negligence. The trial court issued a directed verdict to AGCO on the negligent design claim upon concluding that the worker did not meet the requirements of a common law negligence claim because he did not establish what duty of care was warranted. The worker’s expert testified that AGCO was obligated to incorporate an "occupant presence control" into the tractor which, as support for a claim under section 402A, was distinct from the common law negligence requirements. The lower court pointed out that the expert even conceded that AGCO did not breach any "technical, manufacturing or industry standards," and did not provide any testimony as to the relevant standard of care.
In the case at bar, the worker stated that he was a foreseeable user of the tractor and although he correctly recited the applicable legal principle, he did not "[apply] it to the record in such a way as to facilitate appellate review of his claim." The appellate court explained that it was outside of its duty to determine whether a duty existed as a matter of law. Accordingly, the appellate court determined that the worker thus waived his claim as to the lower court’s directed verdict on his negligence-based cause of action.
Jury instruction. The worker argued that the trial court improperly instructed the jury as to the elements of a products liability claim and, thus, he should be granted a new trial. He contended that the instructions that the court gave were not consistent with the law post-Tincher by omitting the factors that the jury should consider when conducting the risk-benefit analysis. The appellate court observed that the worker did not specify which factors had been omitted, how the evidence supported their inclusion, or how he was prejudiced by those omissions. Accordingly, his improper jury instructions claim was waived.
Further, the worker’s counsel agreed with the proposed jury instruction during the jury charge conference on the risk-utility factors, and did not make an objection on the record. Because issues not preserved by specific objection in the lower court are waived, the worker’s claim could not survive.
Remaining issues. The appellate court determined that the remaining two issues presented by the worker also were not persuasive. First, the worker asserted that the lower court erred when it allowed evidence concerning the negligence of his employer. The worker contended that a provision of the state Workers’ Compensation Act barred the evidence, but the appellate court explained that the statute simply precludes a third party from bringing an action or seeking apportionment against an employer. Additionally, the case law upon which he relied was distinguishable.
Second, the worker argued that the lower court erred when it barred his counsel from impeaching AGCO’s expert witness with evidence that the expert purportedly referenced. However, after reviewing the trial transcripts, the appellate court concluded that the worker mischaracterized the expert’s testimony and, thus, there was no prejudice from the lower court’s ruling. Therefore, the worker’s remaining claims failed and, thus, the lower court’s ruling was affirmed.
The case is No. 2916 EDA 2019.
Attorneys: Michael A. Budner (Saltz Mongeluzzi Barrett & Bendesky, PC) for Michael Timmonds. Dean F. Murtagh (German, Gallagher & Murtagh, PC) for AGCO Corp. d/b/a And Or f/k/a Massey Ferguson, Inc. and M.M. Weaver & Sons, Inc.
Companies: AGCO Corp. d/b/a and f/k/a Massey Ferguson, Inc.; M.M. Weaver & Sons, Inc.
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