Urbieta, E. v. All-American Hose ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ERIC URBIETA AND KRISTI URBIETA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellants
v.
ALL-AMERICAN HOSE, LLC; DAVIS
STANDARD CORPORATION; HAGERTY
PRECISION TOOL, INC.; FASTENAL
COMPANY; ERIE COMMERCE, LLC;
LEWCO, INC.; LEWCO INTERNATIONAL,
LLC; PERFORMANCE FIBERS, INC.;
T/D/B/A DURAFIBER TECHNOLOGIES;
PERFORMANCE FIBERS OPERATIONS,
INC., T/D/B/A DURAFIBER
TECHNOLOGIES; DURAFIBER
TECHNOLOGIES,
Appellees No. 1224 WDA 2018
Appeal from the Order Entered July 31, 2018
In the Court of Common Pleas of Erie County
Civil Division at No(s): 11413-2015
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 26, 2019
Appellants, Eric Urbieta and Kristi Urbieta, appeal from the trial court’s
July 31, 2018 order, granting summary judgment in favor of Appellees, All-
American Hose, LLC (“AAH”); Davis Standard Corporation (“Davis”); Hagerty
Precision Tool, Inc. (“Hagerty”); Fastenal Company (“Fastenal”); Erie
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Commerce, LLC;1 Lewco, Inc.; Lewco International, LLC;2 Performance Fibers,
Inc., t/d/b/a Durafiber Technologies; Performance Fibers Operations, Inc.,
t/d/b/a Durafiber Technologies; and Durafiber Technologies.3 We affirm.
The trial court aptly summarized the background of this case as follows:
[Mr.] Urbieta … suffered a traumatic brain and right shoulder
injury when he was struck by an industrial hose on May 3, 2013,
while working at [AAH] as a temporary employee supplied by
Remedy Intelligent Staffing, Inc. (“Remedy”). At the time of the
accident, [Mr.] Urbieta was working as a hose “normalizer.”
Normalization is a quality control process in which high pressure
steam is injected into the hose, made by [AAH], to test it for leaks.
[Mr.] Urbieta was responsible for placing an adapter inside one
end of a hose. He then had to clamp the hose fabric between the
adapt[e]r and a “bell and cable system.” [Hagerty] manufactured
the adapt[e]r using [AAH’s] specifications. The bell and cable
system consisted of various parts, including nuts made by
[Fastenal]. During testing, the hose was stretched out on a non-
motorized roller table made by [Lewco]. The table was equipped
with a safety strap designed and installed by [AAH].
On the day of the accident, before steam was injected into the
hose as part of the normalization process, [Mr.] Urbieta was
tasked with inserting the adapt[e]r into the hose and clamping the
bell and cable system around [the] adapt[e]r and hose end. [Mr.]
Urbieta found a stripped screw or bolt on the bell and cable
system. Instead of obtaining a new screw or bolt, the
maintenance man, Mike Sammons, drove to [AAH’s] Union City
[p]lant and retrieved a new bell and cable system. This bell and
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1 Based on our review of the docket, it appears that a stipulation of voluntary
discontinuance of Erie Commerce, LLC, with prejudice, was entered on
December 5, 2016.
2 We refer to Lewco, Inc., and Lewco International, LLC, collectively as
“Lewco.”
3 We refer to Performance Fibers, Inc., t/d/b/a Durafiber Technologies;
Performance Fibers Operations, Inc., t/d/b/a Durafiber Technologies; and
Durafiber Technologies collectively as “Durafiber.”
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cable system was smaller than the ones provided at the Erie plant
because the hoses manufactured in Union City were smaller. It is
unknown whether [Mr.] Urbieta was aware of the difference in
sizes. [Mr.] Urbieta affixed the new bell and cable system. The
hose was filled with pressurized steam and the[n,] suddenly, the
bell and cable system and the adapt[e]r blew off the end of the
hose. The hose, powered by the steam coursing through it,
whipped around striking [Mr.] Urbieta and violently throwing him
across the room. [Mr.] Urbieta sustained serious injuries.
Prior to the accident, [Mr.] Urbieta had only been in the
normalizing position for less than a week. He was a temporary
employee hired out by Remedy on a “temp-to-hire” basis.
Remedy reviewed [Mr.] Urbieta’s work history, training and
educational background and classified him in order to place him
with an appropriate employer. Remedy forwarded [Mr.] Urbieta’s
résumé to its client, [AAH], for its consideration. [AAH] selected
[Mr.] Urbieta, among others, to work in its Erie plant. [Mr.]
Urbieta reported directly to [AAH] each work day. No one from
Remedy accompanied new hires to [AAH]. No one from Remedy
was present at the [AAH] job site. [Mr.] Urbieta received all work
assigned for [AAH]. [Mr.] Urbieta began his employment at [AAH]
doing maintenance work. On approximately April 25, 2013, [AAH]
assigned [Mr.] Urbieta to work as a hose normalizer. He was
trained and directed on how to do the job solely by representatives
of [AAH]. [AAH] provided [Mr.] Urbieta with all equipment
necessary for the job including gloves, eye protection, hearing
protection and tools. [AHH] had the power to promote or reject
[Mr.] Urbieta as an employee. If unsatisfied with [Mr.] Urbieta’s
work, [AAH] could return him to Remedy. [AAH] also had the
power to hire [Mr.] Urbieta to full[-]time status.
Procedurally, [the Urbietas] initially brought suit against [AAH]
only[] at Docket No. 10646-2015. They subsequently filed a
second lawsuit against [AAH] and the other [Appellees] at the
above[-]noted Docket No. 11413-2015. Pursuant to a stipulation
with [AAH], [the Urbietas] elected to abandon the action at Docket
No. 10646-2015 in favor of pursuing this case. [The Urbietas’]
claims sound in negligence, strict liability, breach of warranty, and
loss of consortium. [The Urbietas] have filed two expert reports
with their pretrial narratives. Discovery is now closed and each
[remaining Appellee] has filed a Motion for Summary Judgment.
[]Hagerty joined in [the Urbietas’] Responses in Opposition to
[AAH]’s Motion for Summary Judgment under the theory that the
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adapt[e]r Hagerty manufactured was designed by [AAH] and
subsequently altered by [AAH].
***
[AAH] investigated the accident and did not find that any of the
component parts of the normalization process had failed. The bell
and cable system was still secured together and the nuts were still
fastened to the bolts. Rather, [AAH] found that the adapter and
bell and cable system had slipped off the end of the hose. [AAH]
concluded that the wrong sized bell and cable system was
obtained by another [AAH] employee and erroneously provided to
[Mr.] Urbieta. [AAH] also concluded that [Mr.] Urbieta did not
affix the seat belt type strap used to secure the hose to the table
and that [Mr.] Urbieta failed to properly secure the bell and cable
system around the hose and adapt[e]r assembly.
[The Urbietas’] experts, James L. Glancey, Ph.D.[,] and Jack R.
Vinson, Ph.D., submitted two expert reports: (1) Engineering
Letter Report, June 20, 2017; and (2) Supplemental Engineering
Report, August 10, 2017. [The Urbietas’] experts conclude that,
“[b]y all accounts, the [b]ell and [c]able system that was used to
secure the normalizing hardware to the hose failed.” In their June
20, 2017 report, [the Urbietas’] experts identify specific
shortcomings of Lewco, the manufacturer of the non-motorized
table, and Fastenal, the maker of the nuts used to secure the bell
and cable system together. In their August 10, 2017 report, [the
Urbietas’] experts also cite specific shortcomings on the part of
Hagerty, the manufacturer of the adapt[e]r.
[The Urbietas’] experts do not mention [Davis], the manufacturer
of the extruder machine that applied a coating to the hose, nor do
[the Urbietas] mention … Durafiber…, manufacturers of the
yarn/fibers used to construct the hose. Furthermore, [the
Urbietas’] experts do not make any findings that implicate the
hose, its fibers, or its coating as contributing factors or sources of
the accident.
Trial Court Opinion (“TCO”), 7/31/2018, at 2-5 (footnote and internal citations
omitted).
As mentioned by the trial court, AAH, Davis, Hagerty, Fastenal, Lewco,
and Durafiber each filed a motion for summary judgment. On July 31, 2018,
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the trial court issued an opinion and order, granting summary judgment in
favor of each of these Appellees. That same day, it entered judgment
accordingly. On August 27, 2018, the Urbietas filed a timely notice of appeal.
The trial court directed the Urbietas to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and they timely complied. In
their Rule 1925(b) statement, the Urbietas asserted errors pertaining to only
Hagerty and Lewco. Consequently, on November 26, 2018, AAH, Davis,
Fastenal, and Durafiber filed an application for relief with this Court,
requesting that we dismiss them from the appeal because there was no appeal
or claimed error involving them before us. On December 10, 2018, this Court
entered a per curiam order, dismissing the appeal as to those parties.
Presently, the Urbietas raise the following issues for our review:
1. Did the trial court err in finding that [the Urbietas] failed to
produce evidence that Hagerty’s adapter failed?
2. Did the trial court err by deciding issues of fact in holding that
[Lewco was] not aware of the use of its table in the normalization
process and therefore was not required to affix proper warnings?
3. Did the trial court err by deciding issues of fact in holding that
[Lewco was] not required to supply proper guards for its tables?
Urbietas’ Brief at 4.
At the outset, we acknowledge our standard of review for orders
granting summary judgment:
It is well settled that summary judgment is appropriate only in
those cases where the record clearly demonstrates that there is
no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. In ruling on such a
motion, the trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving
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party and resolve all doubts as to the existence of a genuine issue
of material fact against the moving party. Where the non-moving
party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers in order to survive summary
judgment. [F]ailure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. Thus, a proper grant of
summary judgment depends upon an evidentiary record that
either (1) shows the material facts are undisputed or (2) contains
insufficient facts to make out a prima facie cause of action or
defense.
On appeal, this Court
may reverse a grant of summary judgment if there has been
an error of law or an abuse of discretion. But the issue as
to whether there are no genuine issues as to any material
fact presents a question of law, and therefore, on that
question our standard of review is de novo. This means we
need not defer to the determinations made by the lower
tribunals.
To the extent that this Court must resolve a question of law, we
shall review the grant of summary judgment in the context of the
entire record.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts
are undisputed or contains insufficient evidence of facts to
make out a prima facie cause of action, such that there is
no issue to be decided by the fact-finder. If there is
evidence that would allow a fact-finder to render a verdict
in favor of the non-moving party, then summary judgment
should be denied.
Dunlap v. Federal Signal Corp., 194 A.3d 1067, 1069-70 (Pa. Super. 2018)
(footnote, internal quotation marks, and internal citations omitted).
In their first issue, the Urbietas argue that the trial court erred by finding
as a matter of law that they failed to produce evidence that Hagerty’s adapter
failed. See Urbietas’ Brief at 18. They explain that they produced expert
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reports wherein their experts identified multiple defects in the drawings used
by Hagerty to machine the adapter. Id. at 16. The Urbietas claim that,
“[d]espite these deficiencies, Hagerty failed to contact [AAH] before
machining a final product, and ultimately produced a defective product.” Id.
According to the Urbietas, “[t]he defect in the final product materially
contributed to the adapter failing and injuring Mr. Urbieta.” Id. Thus, they
assert that Hagerty defectively designed the adapter and should be liable
under Section 402A of the Restatement (Second) of Torts. Id. at 18-20.
Our Supreme Court has stated that Pennsylvania “remains a Second
Restatement jurisdiction….” Tincher v. Omega Flex, Inc., 104 A.3d 328,
400 (Pa. 2014).4 Section 402A of the Second Restatement provides:
(1) One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property 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.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the
preparation and sale of his product, and
(b) the user or consumer has not bought the product from
or entered into any contractual relation with the seller.
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4 Our Supreme Court cautioned us, however, that “[t]he language of a
restatement … is not necessarily susceptible to ‘statutory’-type construction
or parsing.” Id. at 401.
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Restatement (2D) of Torts § 402A (1965).
This Court has explained that:
To prevail in an action under [S]ection 402A, the plaintiff must
prove that the product was defective, the defect existed when it
left the defendant’s hands, and the defect caused the harm. The
threshold inquiry in all products liability cases is whether there is
a defect. This threshold
can be crossed … either by proving a breakdown in the
machine or a component thereof, traditionally known as a
manufacturing defect; or in cases where there is no
breakdown, by proving that the design of the machine
results in an unreasonably dangerous product, traditionally
known as a design defect.
A third doctrine recognized under [S]ection 402A is the “failure-
to-warn” theory, under which the plaintiff may recover for the
defendant’s failure to provide adequate instructions to the user on
how to use the product as the product was designed. To succeed
on a claim of inadequate or lack of warning, a plaintiff must prove
that the lack of warning rendered the product unreasonably
dangerous and that it was the proximate cause of the injury.
Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 354-55 (Pa. Super.
2015) (internal citations and some quotation marks omitted).
With respect to Hagerty, the Urbietas only challenge the trial court’s
granting of summary judgment in favor of Hagerty on their defective design
claim against it. See Urbietas’ Brief at 18-20. For design defects,
[t]he plaintiff may prove defective condition by showing either
that (1) the danger is unknowable and unacceptable to the
average or ordinary consumer, or that (2) a reasonable person
would conclude that the probability and seriousness of harm
caused by the product outweigh the burden or costs of taking
precautions. The burden of production and persuasion is by a
preponderance of the evidence.
… Whether a product is in a defective condition is a question of
fact ordinarily submitted for determination to the finder of fact;
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the question is removed from the jury’s consideration only where
it is clear that reasonable minds could not differ on the issue.
Tincher, 104 A.3d at 335.
In granting summary judgment in favor of Hagerty, the trial court
explained:
Hagerty is a tool and die business that manufactured the adapt[e]r
used to cap the end of the hose. Hagerty machined the adapt[e]r
to the precise specifications provided by [AAH]. In their August
10, 2017 report, [the Urbietas’] experts note that they reviewed
the mechanical drawings provided by [AAH] to Hagerty. Based on
their review of the drawings, [the Urbietas’] experts opine that the
drawings are defective in that: (1) there is a missing dimension in
the drawing[;] (2) there is an improper call out for a [threaded]
hole[;] (3) there is no specification for surface finish; and (4)
Hagerty used a different steel alloy than specified by the drawings.
However, [the Urbietas’] experts do NOT say that any of the
imperfections in the drawings actually caused the adapt[e]r to fail.
On the contrary, they specify that it was the “Bell and Cable
System” used to secure the normalizing hardware (i.e.[,] the
adapt[e]r) to the hose that failed. Consequently, [the Urbietas’]
claims against Hagerty, based on negligence, products liability,
and warranty theories all fail for lack of any evidence evincing
proximate cause.
TCO at 14 (emphasis in original).
We agree with the trial court. While the Urbietas do not contest that
evidence of proximate cause is required, they fail to point to specific evidence
establishing that any purported defect in the adapter caused Mr. Urbieta’s
harm. Specifically, with respect to causation, the Urbietas argue:
The [June 20, 2017] Engineering Letter Report does note that the
bell and cable system used to secure the normalizing hardware,
including the at[-]issue adapter, failed. R.R. 1403. However,
there is nothing in the June 20, 2017 Report that exculpates …
Hagerty from liability in this matter. Rather, a fair reading of the
June 20, 2017 Report and August 10, 2017 Supplemental Report,
reveals that the issues identified in the Supplemental Report
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caused or contributed to [the] overall failure of the bell and cable
system and Mr. Urbieta’s injuries.
Urbietas’ Brief at 22-23. Problematically, the Urbietas do not cite to where
their experts opined that the purported defects in the adapter caused or
contributed to the overall failure of the bell and cable system and Mr. Urbieta’s
harm, nor do they develop an argument — with citations to specific evidence
— to otherwise support this proposition. As Hagerty persuasively discerns,
“[t]here exists no genuine issue of material fact for a jury to decide. Nowhere
in either of [the] Urbietas’ expert reports does the expert say that Hagerty’s
adapter caused [Mr.] Urbieta’s accident. Reasonable minds cannot differ.
Summary judgment was appropriate.” Hagerty’s Brief at 11. We concur.
Accordingly, we conclude that the trial court did not err in entering summary
judgment in favor of Hagerty on this basis.
In their second issue, the Urbietas advance that the trial court “erred by
deciding issues of fact in holding that [Lewco] was not aware of the use of its
table in the normalization process and therefore was not required to affix
proper warnings.” Urbietas’ Brief at 24 (unnecessary emphasis omitted).
They contend that Lewco “had a legal duty to warn of dangerous propensities
of [its] products, a legal duty that [Lewco has] made impossible to fulfill based
on their online ordering system,” and aver that Lewco failed to provide
warnings “regarding the amount of weight or force that could be exerted on
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the machine, despite sufficient knowledge to do so.” Id. at 28.5 They argue
that “[a] portion of the conveyor supplied by Lewco … was functionally
destroyed during the incident which injured [Mr. Urbieta],” and claim that
“[t]he combined weight and force exerted by the hose exceeded the conveyor
table’s physical capabilities and ultimately caused the conveyor table to fail.
If that at[-]issue conveyor table did not totally break down during the at[-
]issue incident, [Mr. Urbieta] would not have been injured.” Id. at 27, 28.
Thus, the Urbietas advance that Lewco was negligent in failing to warn users
of the recommended weight and force to be exerted on the table. See id. at
24, 26-27.
It is well established that:
Negligence is the absence of ordinary care that a reasonably
prudent person would exercise in the same or similar
circumstances. To prove a negligence claim, the plaintiff must
prove the following four elements: (1) a legally recognized duty
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5 By way of background, with respect to Lewco’s online ordering system, the
Urbietas explain that Lewco’s online configurator “allowed customers to input
necessary parameters for a required conveyor, such as the length, width,
roller diameters, roll centers, light support, elevations[,] and other pertinent
information, and the configurator would generate a quote with options for the
customer.” Urbietas’ Brief at 9. However, they say that “a customer is unable
to enter information about an end user’s application in which the conveyor
would be used.” Id. Moreover, the Urbietas note that Lewco does not “sell
[its] products directly to end users. Rather, [its] products are sold only to
resellers….” Id. As a result, the Urbietas assert that Lewco purposely avoids
learning of how their conveyors will be used. See id. at 24 (“It is clear [that]
… Lewco [is] attempting to escape liability for [its] products by[] 1) selling
[its] products through a third party, and 2) designing and running an online
configurator that protects them from knowledge they would need to warn
those who would come into contact with their products.”).
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that the defendant conform to a standard of care; (2) the
defendant breached that duty; (3) causation between the conduct
and the resulting injury; and (4) actual damage to the plaintiff.
Zimmerman v. Alexander Andrew, Inc., 189 A.3d 447, 452-53 (Pa. Super.
2018) (internal citations and quotation marks omitted).
Initially, the Urbietas do not adequately develop an argument to
demonstrate that Lewco had a duty to warn AAH of the table’s weight and
force limitations.6 To support that Lewco had a duty, the Urbietas cite to two
cases for seemingly general propositions, but fail to discuss those cases and
analyze them in light of the circumstances in the case sub judice. See
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6 We note that the trial court did not examine whether Lewco was negligent
in failing to warn AAH of the weight/force capacity of the conveyor table, but
instead focused its analysis on whether Lewco was negligent for failing to warn
AAH not to use the table without guarding. See TCO at 11, 13; see also
Urbietas’ Brief in Opposition to Lewco’s Motion for Summary Judgment, dated
6/11/2017, at 9 (“There was no warning or instruction on the at[-]issue
conveyor belt system which informed users of the recommended weight and
force to be exerted on the machine, a warning that, if present, would have
shifted liability to the user for using the conveyor belt against Lewco’s
warnings and instructions.”). Nevertheless, that the trial court did not
specifically address this argument does not preclude our review because “we
can look to the record to ascertain the reasons for the order.”
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (citation
omitted). We surmise that the trial court did not address it in light of the
Urbietas’ expert report, which proffers opinions on the conveyor table’s guards
and safety features, but not its weight/force capabilities. See TCO at 8
(determining that expert testimony is required in this case because “the cause
of this accident is not within the ability of the average person of ordinary
intelligence to determine on their own”). Despite the content of their expert
report, the Urbietas do not raise a negligent failure to warn argument
pertaining to guarding on appeal, and therefore we do not address it. See
Urbietas’ Brief at 24-28 (making argument that Lewco was negligent for failing
to warn of the amount of weight or force that could be exerted on the conveyor
table).
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Urbietas’ Brief at 24.7 We decline to perform that analysis for them. See
Pa.R.A.P. 2119(a) (“The argument shall be … followed by such discussion and
citation of authorities as are deemed pertinent.”); Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to present
arguments that are sufficiently developed for our review. The brief must
support the claims with pertinent discussion, with references to the record and
with citations to legal authorities. Citations to authorities must articulate the
principles for which they are cited.”) (citations omitted).
Furthermore, setting aside that the Urbietas failed to establish that
Lewco had a duty to warn, the Urbietas also failed to prove that the lack of
warnings regarding the weight/force capacity of the table proximately caused
Mr. Urbieta’s injuries. In their brief, the Urbietas state that if the table did not
break down during the incident, Mr. Urbieta would not have been injured.
Urbietas’ Brief at 28. However, they provide no citation to record evidence,
particularly their expert reports, to support this proposition. See Pa.R.A.P.
2119(c) (“If reference is made to the … evidence … or any other matter
appearing in the record, the argument must set forth, in immediate connection
therewith, or in a footnote thereto, a reference to the place in the record where
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7 We note that one of these cases — Harsh v. Petroll, 840 A.2d 404, 415
(Pa. Cmwlth. 2003) — is a decision from the Commonwealth Court, which is
not binding on this Court. See In re Barnes Found., 74 A.3d 129, 134 n.2
(Pa. Super. 2013) (citation omitted). Additionally, the other citation provided
by the Urbietas is to a portion of a dissenting opinion from a Supreme Court
case. See Urbietas’ Brief at 24 (citing Sherk v. Daisy-Hedon, A. Div. of
Victor Comptometer Corp., 450 A.2d 615, 626 (Pa. 1982)).
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the matter referred to appears….”); see also TCO at 8 (noting that expert
testimony is necessary in the case at bar because “the cause of this accident
is not within the ability of the average person of ordinary intelligence to
determine on their own”); Lewco’s Brief at 10 (“The facts of this case revealed
that … Lewco[’s] actions relative to the sale of the conveyor were not the
proximate cause of [Mr. Urbieta’s] injuries. … [The Urbietas have] not
produced an expert report to support any other conclusion.”). Our own review
of the Urbietas’ expert report shows that their experts rendered opinions on
Lewco’s failure to provide or recommend a guarding system, not its failure to
warn AAH of the weight/force capacity of the table. Thus, we conclude that
the Urbietas did not demonstrate that Lewco’s failure to warn AAH of the
table’s weight/force capacity proximately caused Mr. Urbieta’s injuries. See
Sherk, 450 A.2d at 617 (determining that the evidence presented precluded
a finding that the allegedly inadequate warnings caused the harm).
Accordingly, the trial court did not err in entering summary judgment in favor
of Lewco on this basis.
In their final issue, the Urbietas claim that the trial court erred by
deciding that Lewco was not required to supply proper guards for its tables.
Urbietas’ Brief at 28. By not supplying guarding, the Urbietas argue that
Lewco provided a defective conveyor table. See id. at 33. In advancing this
argument, the only case reference they provide is to Tincher, which they
briefly point to for the principle that “a product is in a defective condition if ‘a
reasonable person would conclude that the probability and seriousness of
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harm caused by the product outweigh the burden or costs of taking
precautions.’” Id. at 29 (quoting Tincher, 104 A.3d at 335). Relying on this
tenet, they contend that “the probability and seriousness of harm caused by
an unguarded conveyor plainly outweighs the burden or costs of taking
precautions, such as providing or recommending guarding.” Id. at 31. In
support, they explain that “it cannot be claimed that there is [an]
unreasonable burden [on Lewco] in recommending guarding for its conveyors,
especially when the same is recommended on a daily basis. Nor can Lewco …
claim the cost of recommending or supplying guarding would be prohibitive,
especially where [it is] the seller[] of the product and could expect the
customer to reasonably pay for the additional guarding to the conveyor table.”
Id. at 32 (citing deposition testimony of Lewco’s corporate designee wherein
he represented that he recommends guarding on a daily basis).
We deem this argument waived. “[A]rguments not raised initially before
the trial court in opposition to summary judgment cannot be raised for the
first time on appeal.” Krentz v. Consolidated Rail Corp., 910 A.2d 20, 37
(Pa. 2006) (citations omitted). This rule “is consistent with our Supreme
Court’s efforts to promote finality, and effectuates the clear mandate of our
appellate rules requiring presentation of all grounds for relief to the trial court
as a predicate for appellate review.” Id. (citation and quotation marks
omitted). Here, in their response to Lewco’s summary judgment motion, the
Urbietas did not argue that the probability and seriousness of the harm caused
by an unguarded conveyor outweigh the burden or costs of taking precautions.
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They also did not raise therein that, because Lewco recommends guarding on
a daily basis, it would not be burdensome for it to do so. Likewise, they did
not aver in their response that it would not be cost-prohibitive for Lewco to
supply guarding, as users would bear the cost of buying the additional
guarding from Lewco. Rather, the Urbietas countered Lewco’s motion for
summary judgment by arguing that Lewco was strictly liable because the
conveyor table purportedly lacked the strength to hold the weight and force
of the hose. See Urbietas’ Brief in Opposition to Lewco’s Motion for Summary
Judgment, dated 6/11/2017, at 10-14.8 We will not permit the Urbietas to
raise new arguments on appeal. Accordingly, based on the foregoing, we
affirm the trial court’s granting summary judgment in favor of Lewco.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2019
____________________________________________
8 The Urbietas also do not examine and discuss other design defect cases that
have applied a risk-utility analysis. See Hardy, supra. Given the relatively
recent changes to products liability law in Pennsylvania, as well as the
complexity of this area of the law, more than a generic, meager cite to
Tincher is warranted.
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