DocketNumber： 1401
Judges： Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich, Johnson
Filed Date： 4/29/1988
Status： Precedential
Modified Date： 10/19/2024
This is an appeal from a judgment of the Court of Common Pleas of Allegheny County in favor of the defendant, Westinghouse Electric Corporation, in a products liability action.
Appellants, William and Margaret Mackowick, are husband and wife. In December, 1982, William, a skilled electrician was installing additional capacitors in the switchgear room at Western Pennsylvania hospital. The room has high voltage warnings on its doors and is unlocked only for authorized persons. The capacitors already in use at the time were manufactured by Westinghouse and were enclosed in boxlike covers with cautionary warnings on their lids which were held on by screws.
During the installation, one of William’s co-workers, Thomas McIntyre, removed the cover from a Westinghouse capacitor. On the removed lid was a warning to users that they should disconnect the breaker, wait five minutes, short the terminals and attach the terminals to the ground before handling. The top of the capacitor was approximately the height of William’s waist.
Westinghouse’s expert testified that flashover, or arcing as it is called in the trade, will not occur unless an object is within 40/iooo’s of an inch of the fuse. The trial court instructed the jury on assumption of risk though it refused to give the instruction requested by the plaintiffs. The jury returned a verdict for Westinghouse. William and his wife appealed to this Court.
Appellants present three issues for our review: (1) whether the trial court’s instruction on assumption of risk was erroneous; (2) whether the court’s instruction on liability was in error; and (3) whether the court erred in refusing to permit the introduction into evidence of models of alternative capacitor designs and whether the court erred in precluding certain cross-examination of Westinghouse’s expert.
In the instant case, the court’s jury charge provided in pertinent part:
For you to find that a plaintiff assumed the risk of his injury, you must find that the plaintiff was aware of the danger presented by defendant’s product and voluntarily proceeded to encounter the danger. The plaintiff must have realized the danger, but not necessarily the specific defect itself, just the danger.
The jury charge was adequate for the purposes of this case and precisely defines the ambit of risk of the plaintiff in relation to exposing himself to a dangerous condition.
The mandate of this Court is to view the facts in the light most favorable to the defendant as verdict winner and not reverse the trial court’s Order absent an abuse of discretion
A careful reading of the testimony elicited at trial showed clearly that the appellant, an experienced electrician of more than thirty years, fully understood the nature of arcing (flashover). The jury obviously found the testimony of Thomas McIntyre, his co-worker, (that appellant had used a screwdriver to point down into the capacitor) to be the facts of this case, contrary to appellant’s testimony that he pointed with his finger. The jury also found, necessarily, that the expert called by Westinghouse was correct in asserting that arcing would occur if one approached within forty one-thousandths of an inch to the capacitor, which was so close as to be indistinguishable from “touching” it. He estimated that distance to be equivalent to the lead of a thick lead pencil or the gap of a spark plug. It is inconceivable that an electrician with the training and experience of the appellant would not realize that arcing can occur under exactly the circumstances involved in this case.
Assumption of the risk frequently occurs with persons who have extensive experience and training and, therefore, take greater chances than persons who are either laymen or not so experienced. The jurors obviously, in light of their own exposure with modern technology, could have concluded that danger of electric shock existed to anyone putting a screwdriver into a fuse box or any other electrical connection in the home, and from their own experience would be reasonably able to infer that a condition with such obvious potential for injury or death, as contained in the switchgear room, was such that an experienced electrician should not have been so reckless as to expose himself to likelihood of injury. Additionally, any person on the jury could conclude from experience with automobiles, once reference was made to a spark plug, that arcing occurs when a test is made to
The appellant makes much of the fact that he would have had to know not only of the danger but was required to understand what specific danger existed. The problem with the rationale of the appellant is that he attempts to isolate the danger from the objective and subjective knowledge he had about the nature of the electrical equipment in the switchgear room. It is uncontested that the appellant had removed the lid to one of the Westinghouse capacitors several weeks prior to his accident when he and the foreman were in the switch gear room reviewing the upcoming installation job. In doing so, he had to unfasten two bolts between which was the following warning: “THIS CAPACITOR CONTAINS BUILT-IN DISCHARGE RESISTERS. CAUTION: WAIT FIVE MINUTES AFTER DISCONNECTING. THEN SHORT CIRCUIT THE TERMINALS AND GROUND THE CAPACITOR BEFORE HANDLING.” The testimony in the record establishes that not only did the appellant know of the specific danger, but the reason he went over to the box on the day of his accident was to point out to co-worker McIntyre the high voltage and extreme danger in going into the capacitor box. He testified he knew the capacitor was there and that it contained four thousand volts and that he could get killed. His testimony was that he was concerned McIntyre might touch something or drop the lid inside and he was concerned that the capacitor was open. By his own testimony, appellant established he knew of the specific danger and, with the subjective knowledge that a person of his experience would have, it is inescapable that in pointing into the box with the screwdriver (or his finger), he subjected himself to the probability that arcing would occur and he would be injured. Even if he believed it was necessary to touch the fuse or capacitor to produce flashover, the uncontested expert testi
This is not the type of product liability case in which a defect exists, unknown to the victim, upon which strict liability may be posited. Here, the product was not mechanically defective and the only manufacturing defect that could be alleged is inadequate warning as to the danger inherent in the product if not properly used. The warning contained on the lid of the capacitor box was designed to alert those professional persons, who had a reasonable basis for going into the box, of the specific steps necessary to discharge the capacitor before it could be touched. This warning was designed for electricians and was adequate to alert electricians to the specific danger — that is, the capacitor stored electricity and could not be handled safely even after the electricity was shut off until the necessary steps were taken to drain it of its charge. Under these conditions, with the current flowing, for an electrician to stick a screwdriver into the box, so close to the fuse that it would arc, can only be classified as an assumption of the risk.
Whether or not he knew of the specific danger and assumed the risk or acted as a reasonable person under the facts of this case was a jury question. The charge given to the jury to aid them in this determination, as well as all of the other instructions given to them by the trial judge, was more than adequate for this purpose. The charge as a whole, including that portion which refers to abnormal use, gave the jury appropriate direction and alternatives to guide them in their determination and provides no basis for reversal. Boyle v. Pennsylvania Railroad Company, 403 Pa. 614, 170 A.2d 865 (1961); Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986); McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980); also see Commonwealth v. Rodriguez, 343 Pa.Super. 486, 495 A.2d 569 (1985).
Having resolved the first issue, assumption of the risk, in favor of the appellee, as to the following issues, whether the court’s instruction on liability was in error, whether the court erred in refusing to permit the introduction into evidence the models of an alternative capacitor design, and whether the court erred in restricting certain cross-examination of the Westinghouse expert, we also find in favor of the appellee and accordingly affirm the jury verdict.
As to the refusal of the trial court to permit the use of a model by appellant’s counsel to illustrate a possible alternative design which might have prevented this accident, it was properly denied by the trial judge as within his discretion on the basis that this was the introduction “of a specific design that this witness invents to show that he could make a better product than Westinghouse made.” (T.T. 1/14-17/86, p. 158.) That was not the issue before the jury; the issue was whether the design in question was or was not defective.
The appellee’s expert, while precluded from introducing the model, testified extensively as to all the information
In a similar vein, appellant attempted to show, through cross-examination of appellee’s expert, that a cutoff switch was employed in a switchgear room to prevent anyone from going in until the switchgear was turned off and that a similar application should have been contained in the product design of the capacitor box. In refusing to permit this line of cross-examination of appellee’s expert, the court properly limited exploration of a different product, designed for a different purpose, as not being relevant to the issue of the adequacy of the design of the capacitor system. We see no error in this holding.
Other issues may be construed as a battle between experts — Dr. Robert J. Cunitz, a psychologist in the field of human factors, and Robert T. Innis, a Westinghouse design engineer, who, among other things, designed capacitors. Conflicting testimony was given as to the adequacy of warnings, design and construction of the equipment in question. The jury heard them all and, within their perogative as jurors, selected the data that carried the greatest weight and credibility to them. Thompson v. Motch & Merryweather Machinery, 358 Pa.Super. 149, 516 A.2d 1226 (1986); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); see also Heiney Will, 455 Pa. 574, 318 A.2d 700 (1974). In addition, the expert for appellant testified that the warning and lockout system he would design as safe in 1986 was available in 1962, when the product was installed. The appellee’s expert, on the other hand, testified the design suggested by appellant’s expert was not desirable and, in some respects, was more likely to produce harm and that he was unaware that this product introduced in 1922, with more than 75,000 units in use, had ever had a failure attributable to a design defect.
Judgment affirmed.