Metzgar v. Playskool, Inc. , 30 F.3d 459 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-22-1994
Metzgar v. Playskool, Inc.
Precedential or Non-Precedential:
Docket 93-3508
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-3508
___________
RONALD W. METZGAR
MAUREEN INGRAM, co-administrators of
estate of MATTHEW C. METZGAR, deceased,
Appellants
vs.
PLAYSKOOL INC., a corporation
K MART CORP., a corporation
___________
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 92-cv-00031J)
___________
Argued
April 11, 1994
Before: BECKER, MANSMANN and SCIRICA, Circuit Judges.
(Filed July 22, 1994)
___________
Kevin R. Lomupo, Esquire
Gilardi & Cooper
310 Grant Street
808 Grant Building
Pittsburgh, Pennsylvania 15219
Alfred S. Pelaez, Esquire (ARGUED)
Duquesne University School of Law
900 Locust Street
Pittsburgh, Pennsylvania 15282
COUNSEL FOR APPELLANTS
Edward A. Yurcon, Esquire (ARGUED)
William M. Adams, Esquire
Anstandig, Levicoff & McDyer
2200 Gulf Tower
Pittsburgh, Pennsylvania 15219
COUNSEL FOR APPELLEES
1
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
Fifteen month old Matthew Metzgar was tragically
asphyxiated to death on a purple half-column Playskool building
block. In resolving his parents' civil action against the
manufacturer and the retailer of the toy, brought under
Pennsylvania's negligence and strict product liability rules of
law, the district court entered summary judgment for the
defendants on all four counts of the complaint.
We address the district court's application of the
traditional risk-utility analysis which the district court
utilized in resolving the negligence product liability cause of
action. We disagree with the district court on its determination
that the statistical risk of injury from the Playskool block to
children like Matthew is so small as to preclude a finding of
unreasonably defective design. We also address the district
court's construction of the "intended user" element of the strict
liability cause of action. We reject the district court's
determination that the age guideline on the product packaging
precludes the manufacturer's liability for safety when used by
children, like Matthew, who may be shown to be developmentally
within the age category, although chronologically slightly
younger. We also reject the district court's dismissal of the
failure to warn claims, brought both in strict liability and
negligence. We cannot agree that the danger of a small child
2
choking on the block was obvious so as to negate any duty by
Playskool to so warn.
I.
On the morning of February 12, 1990, Matthew's father,
Ronald, was babysitting Matthew and had placed Matthew, awake and
healthy, in his playpen. Ronald left the room for just five
minutes and upon his return, he found Matthew lifeless. His
efforts to revive his son, after he called "911" and removed the
Playskool block lodged in Matthew's throat, were to no avail.
The block which caused Matthew's untimely death is a
cylindrical column, 7/8" wide by 1-3/4" long, the smallest block
among the 49 brightly colored and variously shaped wood blocks
marketed by Playskool, Inc.0 Playskool did not place any warning
of a choking hazard on the box containing the blocks, but clearly
and boldly imprinted on the front, back and top of the box are
the words, "Ages 1-1/2 - 5." The size and shape of the block
satisfied existing federal standards and regulations for risk
mitigation and cautionary labeling promulgated and enforced by
the Consumer Products Safety Commission, 16 C.F.R. § 1501.4,
under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-77.
The Playskool block also met the small toy and toy part standard
established by the American Society for Testing Materials.
On February 6, 1992, Mr. Metzgar and Maureen Ingram,
Matthew's mother, filed a complaint against Playskool, Inc. and
0
The blocks are manufactured and packaged for Hasbro,
Inc. by Strauser Manufacturing, Inc. according to Hasbro
specifications and are sold under the Playskool name.
3
K-Mart Corp., the retailer, setting forth essentially four counts
under Pennsylvania law: negligent design, manufacture and sale
of a toy block of a size and shape which made the block
susceptible of being swallowed and causing a child to choke;
strict liability under § 402A of the Restatement (Second) of
Torts for manufacturing and selling a toy block in a defective
condition, unreasonably dangerous to intended users, which the
plaintiffs alleged includes a child of fifteen months; negligent
failure to warn of the hazard to children of the toy block; and
strict liability for failing to warn of the product hazard
potential. Matthew's parents alleged that the manufacturer's age
span recommendation on the box was inadequate to warn of the
block's inherent danger.0
In ruling upon the defendants' motion for summary
judgment, the district court found with regard to the plaintiffs'
negligent design and manufacture cause of action, that although
the danger of choking was foreseeable, "[t]he historical risk of
choking from the Playskool blocks is so small that, even ignoring
the issue of parental supervision, the risk from the design as a
matter of law is not unreasonable." District Court Opinion of
Sept. 9, 1993 at A. 21. The court dismissed this cause of
action. Further, in light of the explicit age designation on the
box, the district court found that Playskool did not subjectively
intend a fifteen month old child to use this particular Playskool
0
An additional cause of action based on breach of
unspecified express and implied warranties was withdrawn by
letter dated April 13, 1993.
4
product. Thus the court also dismissed the plaintiffs' defective
design strict liability cause of action, holding that "[i]f the
concept of intended use . . . is to retain any meaning
whatsoever, it necessarily means that use intended from the point
of view of the manufacturer putting a product into the
marketplace." District Court Opinion of Sept. 9, 1993 at A. 13
(citing Griggs v. Bic Corp., 981 F.2d 1429 (3d Cir. 1992)
(product not defective unless it possesses a feature which
renders it unsafe for its intended use); Brantner v. Black &
Decker, C.A. No. 93-1J, slip op. at 7-12 (W.D. Pa. Aug. 23,
1993)). Further, reasoning that no warning is necessary where a
risk of danger is obvious, the district court concluded as a
matter of law that the likelihood of a young child choking on a
small block is too obvious for the court to sustain the
plaintiffs' failure to warn strict liability and negligence
causes of action;0 (citing Mackowick v. Westinghouse Electric
Corp., 525 Pa. 52, 575 A.2d 100, 102 (1990); Dauphin Deposit Bank
and Trust Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 596 A.2d
845, 849 (1991)). Thus the district court granted summary
judgment in favor of the defendants on all pending claims.
Our review of the district court's summary judgment
order is plenary, and we will utilize the same tests and
0
As a preliminary matter, the district court decided
that neither the Federal Hazardous Substances Act, 15 U.S.C.
§§1261-77, nor general principles of implied preemption, preempt
Pennsylvania's labeling or design and manufacturing regulations.
The district court's holding on this issue has not been appealed
and is not, therefore, before us for review.
5
standards which the district court was constrained to apply.0 We
will address each cause of action seriatim.
II.
We are troubled by the district court's summary
judgment disposition of the plaintiffs' negligent design and
strict liability design defect causes of action. With regard to
the negligence claim, the district court properly engaged in a
risk-utility analysis. Griggs, 981 F.2d at 1435-36 (negligence
law requires balancing of risk in light of social value of
interest at stake, and potential harm, against value of
conflicting interest) (citing W. Page Keeton et al., Prosser and
Keeton on Torts § 31, at 173 (5th ed. 1984); Benson v.
Pennsylvania Cent. Transp. Co., 463 Pa. 37, 342 A.2d 393, 397
(1975); Clewell v. Pummer, 384 Pa. 515, 121 A.2d 459, 462
(1956)); see also Kleinknecht v. Gettysburg College, 989 F.2d
1360, 1369-70 (3d Cir. 1993) (the classic risk-utility analysis
is used to determine whether a risk is unreasonable in a
negligence cause of action). In performing this analysis, the
district court relied heavily on the statistical fact that the
general population of small children suffer a mortality rate from
choking on small toys or toy parts of approximately only one per
720,000 children. We note also that according to Playskool's
representative, Charles Fischer, over the past twenty years, the
0
The district court exercised diversity jurisdiction
over these claims. 28 U.S.C. § 1332. Our jurisdiction arises
from the final order of the district court. 28 U.S.C. § 1291.
6
Playskool block in question, of which easily hundreds of
thousands have been sold, has not generated any complaints of
choking deaths or injuries. A. 286; 299. Nevertheless, the
plaintiffs' expert, E. Patrick McGuire, reported for the record
that in one year studied, 1988, there were eleven deaths due to
aspiration of small toys or toy parts by children. A. 79. The
record does not indicate the current infant mortality rate due to
small toy related asphyxiation, but the plaintiffs submitted a
CPSC estimate reported in the House Congressional Record0 that in
each year from 1980-88, an average of 3,200 small children were
treated in hospital emergency rooms for toy related ingestion and
aspiration injuries. A. 476. The CPSC also reported that
between 1980 and 1991, 186 children choked on small toys, toy
parts, and other children's products.
We share the district court's concern that without "at
least a realistic threshold of risk," District Court Opinion of
Sept. 9, 1993 at A. 21, n.10, courts should avoid intrusion into
product design by too readily weighing risk-utility factors
against the defendant, even in those cases where a grievous
injury has been suffered. Nonetheless, we believe that an annual
mortality rate of eleven is a "realistic threshold of risk" in
this case. The fact that the Playskool purple half-column block
has not been a contributor to the infant mortality rate until now
may be simply happenstance from which we cannot conclude that the
0
138 Cong. Rec. H8264 (daily ed. September 10, 1992)
(statement of Rep. Collins concerning bill (H.R. 4706) to amend
Consumer Product Safety Act to, among other things, extend
authorization of appropriations under the Act).
7
block will be safe for future reasonably foreseeable users. We
note that although the purple half-column was in technical
compliance with CPSC and ASTM standards, the block only minimally
met the required standards by protruding in length slightly
beyond the ASTM test cylinder. The block's width, however, was
slightly narrower than the test cylinder. It appears that a
slight modification to the block design could virtually eliminate
the choking potential without detracting from the block's
utility. We do not believe that the evidence demonstrates,
therefore, that the risk of a reasonably foreseeable user choking
on the block is so relatively small -- measured against the
block's decreased utility by modifying its present design -- as
to permit summary judgment for the defendants on the basis of a
risk-utility analysis. Therefore, we will vacate the summary
judgment order as it pertains to the claim of negligent design.0
0
Judge Scirica would affirm the grant of summary
judgment to Playskool on the negligent design claim on the basis
of the district court's risk-utility analysis, which noted that
the purple block exceeded the CPSC minimum size for toys for
children under three. Where there is utility to the toy's size,
the toy is safe for children of certain ages or under
supervision, it is accompanied by adequate warnings, and the
statistical probability of the risk is extremely low, the risk-
utility analysis may preclude a negligent design claim.
Otherwise, it would appear that every marble would be subject to
a negligent design claim. The only evidence on the risk posed by
the block consisted of statistics on children's choking injuries
and deaths from congressional testimony, but there was no
evidence the choking incidents in the statistics involved objects
of comparable size to the purple block. Indeed, Congresswoman
Collins cited the statistics as evidence that children were
choking on toys that were, unlike the purple block, smaller than
the CPSC minimum. 138 Cong. Rec. H8264.
While Judge Becker believes that Judge Scirica's
argument has considerable force, he adheres to the opinion of the
8
III.
We turn now to the district court's summary judgment
disposition of the plaintiffs' strict liability design defect
claim. We quite agree with the district court's reiteration that
"a product is not defective unless it possesses ``any feature that
renders it unsafe for the intended use,'" and that the concept of
intended use "``encompasses the participation of an intended
user.'" District Court Opinion of September 9, 1993 at A.10
(citing Griggs v. BIC Corp., 981 F.2d 1429, 1433 (3d Cir. 1992)
and Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020,
1027 (1978)). We are much less certain, however, that Matthew,
at age fifteen months, was not an intended user of this
particular product. The eighteen month to five year
recommendation boldly marked on the Playskool box is not, to our
minds, an unequivocal indication that these blocks are unsuitable
for use by a child who is just three months shy of eighteen
months, particularly given the potential disparities among young
children in the relation of their chronological age to their
court because he believes that the statistical evidence
concerning the magnitude of the risk of asphyxiation and related
injures to children under the age of six may support a finding
that all intended and likely users of the blocks are exposed to
an unreasonable risk of asphyxiation. That is, to the extent
that legally adequate warnings would leave no real market for the
product (because, for example, the warning would have to include
all children under the age of six and children over the age of
six would have no real interest in the blocks), the plaintiffs
could prevail on the negligent product design claim. Judge
Becker notes in this regard that, were it unreasonable, given the
nature of the particular product in light of its intended use, to
expect an adult to engage in constant supervision of a child
playing with it, a warning that the product should be used only
with adult supervision would be legally inadequate.
9
physical and mental "developmental age." Moreover, the
plaintiffs produced several experts who concluded that
Playskool's age guideline pertained to the intended user's
developmental stage.0
We must emphasize that under Pennsylvania's
interpretation of section 402A strict liability,0 an "intended
user" of a product is not so broad a class as to encompass every
user reasonably foreseeable to the manufacturer. Foreseeability
pertains to a duty analysis under negligence tort law, but
strictly speaking does not form a part of the appropriate
analysis under Pennsylvania strict products liability law.
Griggs, 981 F.2d at 1435 (". . . the ``duty' analysis in strict
liability eschews foreseeability as an element"). See also
Azzarello, 391 A.2d at 1025; Berkebile v. Brantly Helicopter
0
The plaintiffs submitted three expert reports to the
district court, including that of Sylvan E. Stool, M.D., A.69,
Theodora Briggs Sweeney, A.70-73, and E. Patrick McGuire. A.77-
81. All three experts concurred that the age guideline served
primarily as a developmental gauge, and did not convey safety
hazard information based solely or primarily on the child's
chronological age.
0
In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the
Pennsylvania Supreme Court adopted the Restatement (2d) Torts
Section 402A as the law of Pennsylvania. Section 402A provides:
(1) One who sells any product in a defective
condition unreasonably dangerous to the user
or consumer . . . is subject to liability for
physical harm thereby caused to the ultimate
user or consumer, or to his property, if
(a) the seller is engaged in the business of
selling such a product, and
(b) it is expected to and does reach the user
or consumer without substantial change in the
condition in which it is sold.
10
Corp., 462 Pa. 83, 337 A.2d 893, 900 (1975) (plurality opinion)
("Foreseeability is not a test of proximate cause [under strict
liability]; it is a test of negligence."); Lewis v. Coffing Hoist
Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987) (".
. . negligence concepts [such as foreseeability] have no place in
a case based on strict liability").0 Furthermore, it is the
0
Prior to Griggs, in our reported decisions we did not
carefully distinguish the role of foreseeability in negligence
and in strict liability, and the concept has become blurred in
the two contexts. See Fleck v. KDI Sylvan Pools, Inc., 981 F.2d
107, 119 (3d Cir. 1992) ("The inquiry is whether the product is
defective for ordinary use and foreseeable misuse"), cert.
denied, 113 S.Ct. 1645 (1993); Sheldon v. West Bend Equip. Corp.,
718 F.2d 603, 608 (3d Cir. 1983) (". . . the intended use of a
product includes any use which is reasonably foreseeable to the
seller"); Schell v. AMF, Inc., 567 F.2d 1259, 1263 (3d Cir. 1977)
("``. . . whether a particular use of a product is abnormal
depends on whether the use was reasonably foreseeable by the
seller'") (citing Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa.
321 n.13 (1974)); Eshbach v. W. T. Grant's & Co., 481 F.2d 940,
943 (3d Cir. 1973) ("``the duty of a manufacturer . . . is limited
to foreseeing the probable results of the normal use of the
product or a use which can be reasonably anticipated'") (citing
Kaczmarek v. Mesta Machine Co., 463 F.2d 675 at 679 (3d Cir.
1972)). In Griggs, in attempting to retain the important
distinction between negligence and strict liability, we rejected
the term "foreseeability" in the context of a strict liability
analysis.
We note some difference in the panel's view here: Judge
Mansmann would emphasize Griggs' sensitivity to keeping the
terminology of negligence and strict liability distinct, and also
reaffirm an objective standard to determine the manufacturer's
intent in a strict liability analysis. See also, Pacheco v. The
Coats Co., Inc., No. 93-1791, Slip op. at 8 (3d Cir. June 6,
1994) (acknowledging that "foreseeability" is a term of
negligence, although an objective standard is appropriate to a
strict liability analysis of manufacturer's intent). Judge
Becker and Judge Scirica believe that, at least insofar as Griggs
rejected a forseeability analysis in context of the intended use
(as opposed to the intended user) analysis, Griggs departed from
prior Third Circuit caselaw just cited on the role played by
foreseeability in strict liability cases, and to that extent
carries no precedential weight. See O. Hommel Co. v. Ferro, 659
11
court which decides the threshold determination of the product's
intended use based upon the parties' averments, and as part of
that determination, whether the injured party was an "intended
user." Griggs, 981 F.2d at 1432-33. Thus, the district court
was obliged to focus on the intent of the manufacturer of the
Playskool blocks in determining whether Matthew was an "intended
user" for purposes of resolving the summary judgment motion. The
court properly reasoned that a "foreseeable user" such as Matthew
is not by strict definition coincident with an "intended user."
Logic and prudence lend weight to the court's unwillingness to
conflate the "intended user" with the "foreseeable user" in
strict liability, especially where children are concerned,
because so many varied and necessary products are hazards in the
unintended but foreseeable hands of children, but cannot be
"childproofed" without being rendered significantly less useful
or even useless. This is not only true of inherently dangerous
products, but is, to some extent, true even of toy products.
Children are inherently vulnerable and in many circumstances, the
product design cannot replace the adult supervision of a child.
Our concern here pertains to the fact that unlike the
circumstances in Griggs involving the use of a BIC lighter by a
three year old child -- clearly an unintended user -- here the
record shows a lack of clear indication of who exactly the
F.2d 340, 354 (3d Cir. 1981) ("[A] panel of this court cannot
overrule a prior panel precedent . . . . To the extent that [the
later case] is inconsistent with [the earlier case, the later
case] must be deemed without effect."), cert. denied, 455 U.S.
1017, 102 S. Ct. 1711 (1982); Pfeiffer v. School Bd. for Marion
Ctr. Area, 917 F.2d 779, 781 (3d Cir. 1990) (same).
12
manufacturer intended to use the Playskool building blocks.
Without sufficient evidence demonstrating that Playskool intended
that the "Ages 1-1/2 - 5" user recommendation on the box only
pertains to children who are chronologically 1-1/2 to 5 years old
rather than the broader category of children who are
developmentally 1-1/2 to 5 years old, we decline to accept the
district court's interpretation of the age guideline indicated on
the box as a strict chronological age category of intended users,
which would exclude Matthew. It is possible that the indications
on the package refer more broadly to the physical and mental
aptitude of small children and do not contain any strict
chronological age implication. A developmental age category
might be shown to include Matthew.
We believe that the "intended user" must be determined
in the context of the knowledge and assumptions of the ordinary
consumer in the relevant community, at least, as here, in the
absence of explicit warnings. Thus, although foreseeability is
not a term that should be associated with strict liability, the
concept, to the extent it implies an objective test, is not
entirely foreign to a strict liability analysis, although it is
applied in a more narrow sense than in negligence law. The
court's inquiry into the intent of the manufacturer asks what the
consumer could reasonably have understood the manufacturer's
intent to be. Unless the use giving rise to a strict liability
cause of action is a reasonably obvious misuse, or the user a
reasonably obvious unintended user, as was the case in Griggs, or
unless the particular use or user is clearly warned against, the
13
manufacturer is not obviously exonerated. We do not believe that
here Matthew's parents were clearly alerted to the fact that the
product presented a special danger to Matthew; nor do we believe
that it was objectively unreasonable for them to have assumed
that Matthew was an intended user. The plaintiffs' experts
testified that the ordinary consumer in the present case would
interpret the age guideline to be a developmental age
recommendation. Moreover, Charles Fischer, the defendants'
witness, testified that the "Ages 1-1/2 - 5" guideline
represented the stage in which "the child has the coordination
and will derive play value from [the blocks] . . . ," suggesting
that those years were chosen for their correspondence to a
child's physical and mental developmental age. A. 301.
Furthermore, the evidence of record does not establish that the
blocks posed a substantially greater risk of choking a fifteen
month old than an eighteen month old; thus it may be that, even
assuming that Matthew was an unintended user from the subjective
perspective of the manufacturer, because it was not shown that
the block posed a substantially greater risk to the unintended
user, the manufacturer's subjective intent would not in justice
be dispositive.
Because we are not convinced that there was sufficient
indication to a reasonable consumer that Matthew was not an
intended user, we will vacate and remand the summary judgment
order as it pertains to the claim of defective design.
IV.
14
We turn finally to the remaining claims brought in both
strict liability and negligence on the theory that the defendants
failed to warn of the hazard potential of their product. The
district court reasoned that the risk of a small child choking on
an object such as one of Playskool's smaller blocks is so
objectively obvious as to preclude the requirement for a
cautionary warning as a constituent of the product design, or the
creation of a duty to provide an express warning of that fact.
See Dauphin, 408 Pa. Super. 256, 596 A.2d 845, 850 (1991)
(Pennsylvania law imposes no duty to warn of obvious risks);
Mucowski v. Clark, 404 Pa. Super. 197, 590 A.2d 348 (1991)
(standard of obviousness of danger for claim in strict liability
is virtually identical for purposes of claim in negligence under
Pennsylvania's application of Restatement (Second) Torts § 388).
We will vacate the district court's ruling and remand on the
ground that the question of obviousness in this case was not a
proper subject of summary judgment.
We note that although the standard of obviousness is
the same in strict liability and in negligence, the role of the
court differs according to the legal theory governing the cause
of action. In strict liability, an inadequate warning is a
species of product defect, and hence is properly decided
initially by the court as a matter of law. Mackowick, 525 Pa.
52, 575 A.2d 100, 102 (1990) ("The determinations of whether a
warning is adequate and whether a product is 'defective' due to
inadequate warnings are questions of law to be answered by the
trial judge.") For a risk to be deemed obvious for purposes of a
15
failure to warn claim, however, there must be general consensus
within the relevant community. We cannot see how the purple
Playskool block can be deemed as a matter of law an obvious
safety hazard in the eyes of the relevant community, when
Playskool itself believed the block was safe for its intended
use. Furthermore, Matthew's parents and his aunt, who purchased
the Playskool blocks for Matthew, testified that they did not
believe that the product posed an obvious threat of asphyxiation
to Matthew. A. 200-01, 376, 442. Moreover, the defendant did
not proffer any evidence tending to show that the danger of
asphyxiation was obvious.
Under a negligence theory, although a failure to warn
claim may be defeated if the risk was obvious or known, the
question of obviousness is more properly submitted to a jury than
disposed on motion for summary judgment. See Laaperi v. Sears,
Roebuck & Co., 787 F.2d 726, 731 (1st Cir. 1986) (whether danger
of smoke detector's malfunction was obvious is question for
jury); Mucowski v. Clark, 590 A.2d 348, 351 (Pa. Super. 1991)
(whether absence of warning is legal cause of injury is usually
matter for trier of fact; but court may decide where only
reasonable conclusion is that plaintiff's foolhardiness, not lack
of warning, legally caused injury). The court's role in deciding
a motion for summary judgment is merely to decide whether there
is a genuine issue of material fact for trial. The district
court's dismissal of Metzgar's negligent claim on the basis of
its determination that the danger to Matthew was obvious was
16
tantamount to holding that no reasonable jury could conclude
otherwise. Based on the evidence of record, we cannot agree.
V.
We will vacate and remand that portion of the district
court's summary judgment order of September 9, 1993 which
disposes of the plaintiffs' failure to warn claims brought in
negligence and strict liability. We will also vacate that
portion of the district court's summary judgment order of
September 9, 1993 which disposes of the plaintiffs' defective
design claims brought in negligence and strict liability, and
remand for trial on the merits of the complaint.
17