High, J. v. Pennsy Supply, Inc. v. High, C., II.

J-A25035-16
2017 Pa. Super. 10
JEFFREY HIGH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PENNSY SUPPLY, INC. : No. 411 MDA 2016
v. :
:
:
CHARLES W. HIGH, II :
Appeal from the Order Entered February 18, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2013-CV-6181-CV,
2013-CV-6206-CV
CHARLES W. HIGH, II : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PENNSY SUPPLY, INC. : No. 416 MDA 2016
v. :
:
:
JEFFREY HIGH :
Appeal from the Order Entered February 18, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2013-CV-6181-CV,
2013-CV-6206-CV
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED JANUARY 13, 2017
*Former Justice specially assigned to the Superior Court.
J-A25035-16
Appellants Jeffrey and Charles High (collectively “the High brothers”)
appeal from the order entered by the Court of Common Pleas of Dauphin
County granting Appellee Pennsy Supply Inc.’s Motion for Summary
Judgment. The High brothers claim that the trial court erred in refusing to
allow a jury to decide as factfinder whether wet concrete is a defective
product unreasonably dangerous to the consumer pursuant to the standards
set forth in Tincher v. Omega Flex, 628 Pa. 296, 104 A.3d 328 (2014).1
After careful review, we reverse and remand for further proceedings.
The underlying lawsuit arose from injuries the High brothers sustained
in an incident that occurred on November 9, 2012. Jeffrey High had ordered
the delivery of four cubic yards of concrete from Pennsy Supply to create a
floor in a three-foot high crawlspace in the basement of his residence. Mike
Holley, a Pennsy Supply supervisor, had advised Jeffrey to purchase flowable
fill concrete, which is characterized as self-leveling. Given the tight space in
which the floor would be poured, the men agreed that flowable fill concrete
would work better than regular concrete in this case as it would involve less
work to create a level floor in the tight space. After this conversation,
Jeffrey believed he had ordered flowable fill concrete.
____________________________________________
1
The author of this opinion was a member of the Pennsylvania Supreme
Court that decided the Tincher case and has now been specially assigned to
the Superior Court. We note that the parties seek to apply the principles set
forth in Tincher to a particular set of facts and do not in any way question
the validity of the Tincher decision.
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On the day of the scheduled delivery, Jeffrey arranged for his brother,
Charles High, to assist him as the concrete floor was poured. When the
concrete truck arrived, the driver for Pennsy Supply presented Jeffrey with a
delivery ticket that contained the following warning:
WARNING: IRRITATING TO SKIN AND EYES.
Contains Portland Cement. Avoid contact with eyes and
prolonged contact with skin. Wear rubber boots and
gloves. In case of contact with skin or eyes, flush
thoroughly with water. If irritation persists, get medical
attention. Keep children away.
Pennsy Supply Delivery Ticket, 11/9/12. Jeffrey placed his signature below
this warning and also signed the bottom of the ticket to authorize the
charges for the concrete delivery. Charles did not see the warning on the
delivery ticket but admitted he was aware of similar warnings about possible
skin irritation from his prior use of bagged concrete. In those instances,
Charles recalled his skin coming into direct contact with concrete; however,
this exposure only caused Charles’s skin to be a “little dry” and did not cause
any burns or noticeable injury. Deposition of Charles High (Charles High
Dep.), 47:18–48:1, January 14, 2015.
In preparation for the delivery, Jeffrey did not wear gloves or rubber
boots as he believed the concrete’s self-leveling property would minimize the
need to have direct contact with the concrete. Charles wore work gloves,
several layers of clothes, and leather shoes with plastic bags on top. Charles
indicated he wore the bags on his shoes so that his pants and shoes would
be easier to clean after the task was completed.
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After the first section of concrete was poured from the delivery truck,
the High brothers noticed that the concrete surface was wavy, but they
assumed that it took time to level. After the men observed that the second
poured section of concrete also was not level, Jeffrey questioned the delivery
driver, David Smith, about the set and dry time of the concrete. In talking
with Smith, Jeffrey realized that the truck was carrying regular concrete, not
flowable fill concrete. Nevertheless, at that point, Jeffrey felt he had no
choice but to accept the remaining concrete and try to level it with tools he
had available. The men admitted to using rakes, boards, and their forearms
to smooth the concrete, kneeling in the concrete at times in the confined
space. After the High brothers worked in the crawlspace for approximately
ninety minutes, their clothes became saturated with wet concrete.
On a break, when Jeffrey washed his hands with a hose and wiped his
hands, he observed his skin peel off. At this discovery, the men stopped the
concrete work. Charles went into the shower to get the concrete from his
body and realized the skin on his legs was turning black. The brothers did
not seek medical treatment immediately. Charles attempted to treat his
injuries by soaking in a tub with water, vinegar, and sea salt as directed by
Jeffrey, who found this suggestion on the internet.
Both brothers were subsequently taken by ambulance for medical care
and admitted at Lehigh Valley Medical Center for inpatient treatment as they
had sustained both second and third degree chemical burns, which required
surgery for the excision of the third degree burns with allograft placement.
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Charles and Jeffrey respectively allege that they sustained burns to
approximately 15.0% and 10.77% of their total body surface area.
Charles’s medical records indicate that his attempt to treat his injuries with a
bath mixed with vinegar and sea salt caused an exothermic reaction that
worsened his symptoms.
On July 17, 2013, the High brothers filed separate strict products
liability actions claiming the concrete Pennsy Supply had sold Jeffrey High
was a product in a defective condition unreasonably dangerous to
consumers. Specifically, the High brothers alleged that the concrete
delivered by Pennsy Supply had a pH of 12.4 and noted that “alkalis with a
pH greater than 11.5 produce severe tissue injury [chemical burns] through
liquefaction necrosis.” Jeffrey High Compl. at ¶ 6, 8; Charles High Compl. at
¶ 6, 8. On September 17, 2013, Pennsy Supply filed an answer containing
new matter, alleging, inter alia, that the High brothers were aware of the
dangers of concrete, did not adhere to the warnings on the delivery ticket,
and caused their injuries by their misuse or abuse of the product. Pennsy
Supply also alleged it was not liable to Charles High as he was a
sophisticated user of concrete. On September 27, 2013, the High brothers
filed replies to Pennsy Supply’s new matter. On October 15, 2013, Pennsy
Supply filed a complaint joining Charles High as a defendant, alleging that
Charles was a sophisticated user of concrete and was negligent in failing to
take adequate precautions and in encouraging careless use of the concrete
by Jeffrey High. On June 16, 2014, the trial court consolidated the actions.
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On June 30, 2015, Pennsy Supply filed a motion for summary
judgment, claiming the High brothers could not prove the concrete was in a
defective condition unreasonably dangerous to the intended user.
Specifically, Pennsy Supply asserted that the High brothers did not present
expert reports showing that there was any defect in the concrete, anything
unusual about this particular batch of concrete, any manufacturing defect, or
any indication that Pennsy Supply’s warnings were inadequate. Rather,
Pennsy Supply suggested that the high pH of concrete is an inherent
property that is necessary for the product to perform as expected.
Both brothers filed similar responses, asserting the concrete was in a
defective condition unreasonably dangerous to the intended user as the
danger created by the concrete’s high pH was unknowable and unacceptable
to the average consumer. While Jeffrey High acknowledged Pennsy Supply’s
delivery ticket contained a warning, he suggested the given statement was
inadequate as it only warned of mere skin irritation and did not inform the
user of the possibility of sustaining third-degree chemical burns. Jeffrey also
claimed he had no reason to believe he should wear protective clothing, as a
Pennsy Supply representative had assured him he would not have much
exposure to self-leveling concrete. Jeffrey argued that the men were forced
to work with the concrete in the confined crawlspace after discovering the
product was not self-leveling. Similarly, Charles High claimed he was
unaware of the danger of the concrete’s high pH as he was not provided with
any warning by Pennsy Supply. Charles sustained third degree burns from
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his exposure to the concrete despite wearing gloves, several layers of
clothing, and plastic bags over his leather shoes.
Thereafter, the trial court entered an order granting summary
judgment to Pennsy Supply, after concluding the High Brothers could not
prove that wet concrete is in a defective condition unreasonably dangerous
to consumers. On March 11, 2016, the High Brothers filed this appeal.
Appellant Jeffrey High raises the following question for review:
Whether the lower court committed an error of law when it
determined as a matter of law that [Appellant] Jeffrey High
cannot prevail on a claim for defective product under the
Consumer Expectations Standard when he relied on [Pennsy
Supply] to supply self-leveling concrete, [Appellant Jeffrey High]
was not a professional contractor, and neither [Pennsy Supply],
its written warning, or its agents ever notified [Appellant Jeffrey
High] of a risk of chemical burns?
Brief for Jeffrey High, at 5.
Appellant Charles High phrases a similar challenge in terms of the
following issues:
A. Whether the lower court committed an error of law because it
did not properly apply Tincher v. Omega Flex, 104 A.3d 328
(Pa. 2014).
B. Whether the lower court made findings of fact that should
have been reserved for the jury.
C. Whether the lower court failed to properly apply the
Consumer Expectations test from Tincher when it determined
as a matter of law that the concrete at issue was not a
defective product.
D. Whether the lower court committed an error of law when it
determined as a matter of law that the concrete at issue was
not a defective product.
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E. Whether the lower court committed an error of law when it
applied and/or relied upon cases from out-of-state
jurisdictions as it analyzed the Consumer Expectations test
and its applicability to the facts of this case.
F. Whether the lower court’s decision is against public policy.
Brief for Charles High, at 5.
In reviewing a trial court’s decision to grant summary judgment, our
standard review is as follows:
As has been oft declared by this Court, 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.
When considering a motion for summary judgment, the trial
court must take all facts of record and reasonable inferences
therefrom in a light most favorable to the non-moving party. In
so doing, the trial court must resolve all doubts as to the
existence of a genuine issue of material fact against the moving
party, and, thus, may only grant summary judgment where the
right to such judgment is clear and free from all doubt.
On appellate review, then, an appellate 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.
Allen-Myland, Inc. v. Garmin Int'l, Inc., 140 A.3d 677, 682 (Pa.Super.
2016) (quoting Summers v. Certainteed Corp., 606 Pa. 294, 307, 997
A.2d 1152, 1159 (2010) (internal citations and quotation marks omitted)).
Our courts have provided that plaintiffs seeking relief under a strict
product liability cause of action must prove that “the product was defective,
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the defect existed when it left the defendant's hands, and the defect caused
the harm.” Barton v. Lowe's Home Centers, Inc., 124 A.3d 349, 354–55
(Pa.Super. 2015). A product may be found to be defective based on proof of
any one of three conditions: a manufacturing defect in the product itself, a
defect in the product's design, or a failure of the manufacturer to warn of
the product’s danger or to instruct on the proper use of the product.
Weiner v. Am. Honda Motor Co., 718 A.2d 305, 307 (Pa.Super. 1998).
As an initial matter, we note that much of the confusion in this case
appears to come from the fact that the High brothers never expressly
identified the specific theory of strict liability they wish to pursue. At first
glance, the High brothers appear to raise a design defect claim by
contending the trial court erred in refusing to follow the dictates of Tincher,
which involved a design defect claim. Tincher, 628 Pa. at 390, 104 A.3d at
384, n.21 (clarifying that the decision is “limited to the context of a ‘design
defect’ claim by the facts of this matter, albeit the foundational principles
upon which we touch may ultimately have broader implications by analogy”).
However, while the High brothers have suggested that they are
raising a design defect claim, the High brothers’ argument is centered on
their assertion that the concrete was defective because Pennsy Supply failed
to warn them of the concrete’s potential to cause third degree burns.2 The
____________________________________________
2
We note that the Supreme Court granted allocatur in Amato v. Bell &
Gossett, ___Pa.___, 130 A.3d 1283 (Pa. February 1, 2016) to decide
(Footnote Continued Next Page)
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trial court does not clarify this distinction in granting summary judgment.
Pennsy Supply raised defenses to both theories, claiming the concrete does
not have a design defect and asserting that it gave adequate warnings of the
dangers of concrete. As a result, we will address both theories of liability.
The law governing strict products liability actions in Pennsylvania has
been developed based upon the principles outlined in Section 402A of the
Second Restatement of Torts, which provides as follows:
§ 402A Special Liability of Seller of Product for Physical
Harm to User or Consumer
(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
_______________________
(Footnote Continued)
“[w]hether, under the Court's recent decision in Tincher v. Omega Flex,
Inc. 628 Pa. 296, 104 A.3d 328 (Pa. 2014), a defendant in a strict-liability
claim based on a failure-to-warn theory has the right to have a jury
determine whether its product was “unreasonably dangerous?” However, on
November 22, 2016, the Supreme Court dismissed the appeal as
improvidently granted. Amato v. Bell & Gossett, ___Pa.___, ___ A.3d
___, 2016 WL 6873043 (Pa. November 22, 2016).
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(b) the user or consumer has not bought the product
from or entered into any contractual relation with the
seller.
Restatement (Second) of Torts, § 402A (1965) (emphasis added) (adopted
in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)). We recognize that in
its recent decision in Tincher, our state Supreme Court explicitly declined to
move Pennsylvania products liability theory from the Second Restatement
construct to adopt the Restatement (Third) of Torts. Tincher, 628 Pa. at
415, 104 A.3d at 399.
The Tincher Court significantly altered the common law framework for
strict products liability claims in Pennsylvania by overruling its precedent in
Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978). In
Azzarello, the Supreme Court created a distinct divide between strict
liability and negligence claims, by suggesting that negligence concepts have
no place in Pennsylvania strict liability doctrine. Specifically, the Azzarello
Court had deemed the phrase “unreasonably dangerous” to be negligence
rhetoric that would mislead jurors in a strict liability case. Although the
Supreme Court reasoned that a jury was permitted to determine whether
the product was defective or to resolve any “dispute as to the condition of a
product,” the Supreme Court established that the threshold question of
whether a product was unreasonably dangerous was to be determined by
the trial court. Id. at 556, 391 A.2d 1025.
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The Tincher Court rejected this standard set forth in Azzarello as
confusing and impracticable, and “incompatible with the basic principles of
strict liability,” explaining as follows:
First, the notion that a legal inquiry into “whether that condition
justifies placing liability upon the supplier” (product is
unreasonably dangerous) is, albeit distinguishable, entirely
separable from a factual inquiry into the predicate “condition of a
product” (defective condition of product) when determining
whether to affix liability upon a supplier is incompatible with
basic principles of strict liability. In a jurisdiction following the
Second Restatement formulation of strict liability in tort, the
critical inquiry in affixing liability is whether a product is
“defective”; in the context of a strict liability claim, whether a
product is defective depends upon whether that product is
“unreasonably dangerous.” Yet, Azzarello divorced one inquiry
from the other: under the Azzarello scheme, the trial court
serves as the gate-keeper of one question with the apparent
task of deciding as a matter of law and policy whether a product
is one even susceptible to a strict liability claim. As a practical
matter, the Azzarello decision did not indicate at which point of
the trial the court should consider the question, nor what
pleadings or evidence would be relevant to the inquiry; the Court
did suggest, however, that the matter “d[id] not fall within the
orbit of a factual dispute.” [Azzarello, 480 Pa. at 558,] 391
A.2d 1026.
Second, the practical reality, as exemplified by the matter before
us, is that trial courts simply do not necessarily have the
expertise to conduct the social policy inquiry into the risks and
utilities of a plethora of products and to decide, as a matter of
law, whether a product is unreasonably dangerous except
perhaps in the most obvious of cases (e.g., where injury is
caused by a knife), where a gate-keeper's function is hardly
necessary.
Tincher, 628 Pa. at 382-83, 104 A.3d at 380. Accordingly, the Tincher
Court concluded that the question of whether a product is in a defective
condition unreasonably dangerous to the consumer is a question of fact that
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should generally be reserved for the factfinder, whether it be the trial court
or a jury.
After overruling Azzarello, the Tincher Court was tasked with filling
the gap in our strict liability jurisprudence. The Court first clarified that “a
person or entity engaged in the business of selling a product has a duty to
make and/or market the product ... free from a defective condition
unreasonably dangerous to the consumer or [the consumer's] property.”
Id. at 388, 104 A.3d at 383. In order to demonstrate a breach of this duty,
the Court provided that a plaintiff must show the seller placed on the market
a product in a “defective condition.” Id. at 389, 104 A.3d at 384.
In order to prove a product is in a “defective condition” in the context
of a design defect claim, the Supreme Court set forth two alternative
standards: (1) the consumer expectations standard (whether the danger of
the product is “unknowable and unacceptable to the average or ordinary
consumer”), or (2) the risk-utility standard (whether “a reasonable person
would conclude that the probability and seriousness of harm caused by the
product outweighs the burden or costs of taking precautions”). Id. at 309,
104 A.3d at 335. The Supreme Court clarified that “[t]he burden of
production and persuasion is by a preponderance of the evidence.” Id.
Further, the Court clarified that it was establishing a “composite standard”
that allows a plaintiff to present proof, in the alternative, of either the
ordinary consumer’s expectations or of the risk-utility of a product. Id. at
417, 104 A.3d at 401. As noted above, “[w]hether a product is in a
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defective condition is a question of fact ordinarily submitted for
determination to the finder of fact; the question is removed from the jury's
consideration only where it is clear that reasonable minds could not differ on
the issue.” Id. at 309, 104 A.3d at 335.
Although the trial court in this case found that the High brothers failed
to show a defective condition under both the consumer expectations and
risk-utility standards, the High Brothers solely focus their efforts on showing
they presented sufficient evidence to allow a jury to conclude that wet
concrete is unreasonably dangerous under the consumer expectations test.
The Tincher Court outlined the consumer expectations test as follows:
The consumer expectations test defines a “defective condition”
as a condition, upon normal use, dangerous beyond the
reasonable consumer's contemplations. The test offers a
standard of consumer expectations which, in typical common law
terms, states that: the product is in a defective condition if the
danger is unknowable and unacceptable to the average or
ordinary consumer. The test has been described as reflecting
the “surprise element of danger.”
The product is not defective if the ordinary consumer would
reasonably anticipate and appreciate the dangerous condition of
the product and the attendant risk of injury of which the plaintiff
complains (e.g., a knife). The nature of the product, the identity
of the user, the product's intended use and intended user, and
any express or implied representations by a manufacturer or
other seller are among considerations relevant to assessing the
reasonable consumer's expectations.
Id. at 394–95, 104 A.3d at 387 (internal citations omitted).
The Supreme Court formulated the consumer expectations standard
based upon the commentary found in Section 402A of the Second
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Restatement, which provides further analysis of the phrase “unreasonably
dangerous” in comment i:
i. Unreasonably dangerous. The rule stated in this Section
applies only where the defective condition of the product makes
it unreasonably dangerous to the user or consumer. Many
products cannot possibly be made entirely safe for all
consumption, and any food or drug necessarily involves some
risk of harm, if only from over-consumption. Ordinary sugar is a
deadly poison to diabetics, and castor oil found use under
Mussolini as an instrument of torture. That is not what is meant
by “unreasonably dangerous” in this Section. The article sold
must be dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with
the ordinary knowledge common to the community as to its
characteristics. Good whiskey is not unreasonably dangerous
merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a
dangerous amount of fuel oil, is unreasonably dangerous. Good
tobacco is not unreasonably dangerous merely because the
effects of smoking may be harmful; but tobacco containing
something like marijuana may be unreasonably dangerous.
Good butter is not unreasonably dangerous merely because, if
such be the case, it deposits cholesterol in the arteries and leads
to heart attacks; but bad butter, contaminated with poisonous
fish oil, is unreasonably dangerous.
Restatement (2nd) of Torts, § 402A, comment i.
In this case, the trial court reasoned the High Brothers could not prove
Pennsy Supply delivered a product in a “defective condition” under the
consumer expectations test as they failed to show the danger of wet
concrete was unknowable and unacceptable to the average or ordinary
consumer. After noting there is no Pennsylvania precedent considering
whether wet concrete is unreasonably dangerous as a result of its caustic
nature, the trial court relied on decisions from other jurisdictions to reach its
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finding that “the caustic properties of concrete are common knowledge and
not subject to liability.” Trial Court Opinion (T.C.O.), 2/18/16, at 3 (citing
Katz v. Arundel-Brooks Concrete Corp., 220 Md. 200, 151 A.2d 731
(1959); Simmons v. Rhodes & Jamieson, Ltd., 46 Cal. 2d 190, 293 P.2d
26 (Cal. 1956); Dalton v. Pioneer Sand & Gravel Co., 37 Wash.2d 946,
227 P.2d 173 (Wash. 1951)); Gary v. Dyson Lumber & Supply Co., 465
So. 2d 172 (La.Ct.App. 1985); Huff v. Elmhurst-Chicago Stone Co., 419
N.E.2d 561 (Ill. App. 1981); Baker v. Stewart Sand & Material Co., 353
S.W.2d 108 (Mo.Ct.App. 1961)).
On appeal, the High brothers argue that the trial court’s grant of
summary judgment conflicts with Tincher as the trial court removed the
question of whether the product was “unreasonably dangerous” from the
province of the jury. The High brothers challenge the trial court’s reliance
on case law from other jurisdictions to reach its finding that the caustic
properties of concrete are common knowledge and not subject to liability.
See Gray, supra; Katz, supra; Huff, supra; Baker, supra; Simmons,
supra; Dalton, supra. In response, the High brothers cite to several
decisions in which other jurisdictions have found that the dangers of
concrete are not common knowledge to the average consumer. See
Jowers v. Commercial Union Ins. Co, 435 So. 2d 575 (La.Ct.App. 1983)
(finding seller of concrete liable for its failure to warn of the dangerous
propensity of wet concrete as “the ordinary “do-it-yourself” home improver
would have no knowledge of the burn risk of wet concrete”); Young v.
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Elmira Transit Mix, Inc., 52 A.D.2d 202 (N.Y.App.Div. 1976) (affirming
judgment against concrete supplier in negligence for failing to warn a “do-it-
yourself” consumer who “would not know that concrete is dangerous by
looking at it”); Sams v. Englewood Ready-Mix Corp., 259 N.E.2d 507
(Ohio Ct.App. 1969) (reversing trial court’s decision to sustain concrete
supplier’s demurrer in negligence action, stressing that “the caustic and
corrosive qualities of concrete” are not “matters of common knowledge so as
to relieve defendants of a duty to warn”).
Pennsy Supply argues that the trial court properly granted summary
judgment in its favor, echoing the trial court’s rationale that the High
brothers could not prove the concrete was defective under the consumer
expectations standard as the danger of concrete’s high pH was knowable
and acceptable to the average person. The Pennsylvania Aggregates and
Concrete Association has filed an amicus brief including the same arguments
raised by Pennsy Supply, adding that the trial court’s decision is in
accordance with public policy as the “utility of concrete far outweighs the
risks associated with its use.” Amicus Brief, at 9.3
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3
Pennsy Supply does not argue that the High brothers should have been
required to prove that concrete is defective under the risk-utility standard
articulated in Tincher. As noted above, the Supreme Court adopted a
composite standard allowing a plaintiff to present proof, in the alternative, of
either the consumer expectations standard or the risk-utility standard.
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After reviewing the record, we agree that the trial court erred in
entering summary judgment based on its finding that concrete is not
defective after finding that “the caustic properties of concrete are common
knowledge and not subject to liability.” T.C.O. at 3. Rather, we find a
genuine issue of material fact exists as to whether an ordinary consumer
would reasonably anticipate and appreciate the dangerous condition of
concrete and the attendant risk of injury. The trial court’s recitation of case
law supporting its finding does not convince us that the entry of summary
judgment was proper as the High brothers have presented case law from
other jurisdictions that have reached the opposite conclusion.4 See Jowers,
supra; Young, supra; Sams, supra.
Further, while the trial court based its conclusion on the
aforementioned rationale, it failed to address any of the factors set forth
under the consumer expectations standard, namely, “the nature of the
product, the identity of the user, the product's intended use and intended
user, and any express or implied representations by a manufacturer or other
____________________________________________
4
While the High brothers have identified case law holding that the caustic
nature of concrete is not common knowledge to the average consumer, we
note that none of the cases cited involve design defect claims, but impose
liability through a failure to warn theory. However, the High brothers also
cite to Netzel v. State, 186 N.W.2d 258 (Wis. 1971), in which the
Wisconsin Supreme Court found that the plaintiff had presented sufficient
evidence to allow a jury to decide whether the concrete delivered by a
supplier had an unreasonably dangerous defect when eight workers were
burned by the concrete on the same day.
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seller.” See Tincher, supra. For example, while the High brothers’ defect
claim centers on the danger posed by the high pH of concrete, the trial court
did not discuss the expert testimony submitted by Pennsy Supply discussing
the nature of concrete.5 Moreover, the trial court did not offer any
discussion of the product’s intended use or intended user and did not discuss
any of the express or implied representations made by Pennsy Supply to the
High brothers.
As stated above, in reviewing a motion for summary judgment, “the
trial court must resolve all doubts as to the existence of a genuine issue of
material fact against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free from all doubt.”
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5
In support of its motion for summary judgment, Pennsy Supply attached
the report of Dr. Barry E. Sheetz, Ph.D., an expert in geochemistry and civil
engineering, who thoroughly explained that when dry concrete is mixed with
water, the hydration process produces calcium hydroxide, which in turn
raises the pH of the concrete. Specifically, Dr. Sheetz opined:
The concrete purchased by the plaintiff is a routine formulation
that complies with industrial ASTM standards. The chemical
reactions that took place in the concrete once water was added
and the mixture begins the hydration process contains nothing
out of the ordinary from the millions of cubic yards of cement
that are manufactured and placed each year in the United
States. On the contrary, if the pH of this mixture would not
reach values in excess of 11.5, the physical and mechanical
properties that the plaintiff desired in the end product would not
have been achieved.
Scheetz expert report, 6/23/15, at 4-5.
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Allen-Myland, Inc., supra. The determination of whether the concrete
was in a defective condition unreasonably dangerous to the consumer should
have been left to the jury to decide as reasonable minds can clearly disagree
on this issue. Accordingly, we conclude that the trial court erred in granting
summary judgment to Pennsy Supply on the High brothers’ design defect
claims.
Moreover, as previously mentioned, the High brothers’ arguments can
be construed to raise a strict liability claim under the theory that the
concrete delivered was defective as Pennsy Supply failed to adequately warn
them of the inherent danger of concrete to cause severe burns. Our
Supreme Court has held that “[a] product is defective due to a failure-to-
warn where the product was distributed without sufficient warnings to notify
the ultimate user of the dangers inherent in the product.” Phillips v. A-
Best Prod. Co., 542 Pa. 124, 131, 665 A.2d 1167, 1171 (1995). A plaintiff
can show a product was defective under this theory by showing that “a
warning of a particular danger was either inadequate or altogether lacking,
and that this deficiency in warning made the product ‘unreasonably
dangerous.’” Id.
Although this specific theory of liability appears to be the exact
formulation of the High brothers’ argument in this case, it is not clear from
the record if either plaintiff is pursuing this claim. We also note that while
Charles High’s claims are largely based on Pennsy Supply’s failure to inform
him that concrete can cause severe burns, he stated in his brief on appeal
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that “the case at bar is not based upon the failure to warn, that theory.”
Appellate Brief for Charles High, at 32. The trial court does not discuss the
High brothers’ challenge to the representations and warnings made by
Pennsy Supply through its representatives. To the extent that the High
brothers have properly raised a failure-to-warn theory in the trial court, we
remand for the trial court to resolve these claims.
For the foregoing reasons, we conclude that the trial court erred in
granting Pennsy Supply’s motion for summary judgment.
Order reversed. Remand for further proceedings consistent with this
decision. Jurisdiction relinquished.
PJE Ford Elliott has joined the Opinion.
Judge Shogan files a Concurring and Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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