J-A23029-16

                                   2017 PA Super 98



DENNIS A. RENNINGER AND PATSY D.                        IN THE SUPERIOR COURT OF
RENNINGER                                                     PENNSYLVANIA

                            Appellants

                       v.

A&R MACHINE SHOP AND CASS HUDSON
COMPANY

                            Appellee                        No. 1896 WDA 2015


            Appeal from the Judgment Entered November 12, 2015
               In the Court of Common Pleas of Clarion County
                      Civil Division at No: 645 CD 2009


BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

OPINION BY STABILE, J.:                                      FILED APRIL 11, 2017

        Appellants, Dennis A. Renninger and his wife, Patsy D. Renninger,

appeal from the judgment of November 12, 2015. We affirm.

        On May 25, 2007, Appellant Dennis Renninger was at work in the

Clarion,    Pennsylvania      plant    of      his   employer,   Commodore   Homes

(“Commodore”), a manufacturer of modular homes, when he sustained a

serious injury to his foot.       While under construction, each modular home

moves along an assembly on wheeled casters attached to its underside. Mr.

Renninger was injured when a caster ran over his foot.              Appellants sued

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A23029-16


Appellees A&R Machine Shop (“A&R”)1 and Cass Hudson Company (“Cass

Hudson”) as the designers, manufacturers and suppliers of the casters.

Appellants alleged causes of action for strict products liability, negligence,

breach of implied warranty, and loss of consortium causes of action, claiming

the casters should have included toe guards. The case proceeded to a June

22-25, 2015 jury trial on Appellants’ strict products liability/design defect

claim.2     The jury returned a defense verdict, finding Cass Hudson did not

supply a defective product.         Appellants filed timely post-trial motions on

June 30, 2015. The trial court denied those motions on November 3, 2015.

The verdict was reduced to judgment on November 12, 2015, and this timely

appeal followed.

       Appellant raises seven assertions of error, which we have reordered

for clarity of analysis:

       I.     Whether in its November 3, 2015 order, the trial court
              erred in denying [Appellants’] motion for post-trial relief
              which requested in the alternative either: (1) an order of
              a judgment notwithstanding the verdict setting aside the
              jury’s verdict and issuing an award for [Appellants], or (2)
              ordering a new trial in this matter, where the issuance of
              such an order was clearly supported by the evidentiary
              record and controlling case law and the denial of such
____________________________________________


1
  Appellants and A&R reached a settlement agreement prior to trial. A&R is
not participating in this appeal.
2
    The trial court entered summary judgment in Appellees’ favor on
Appellants’ manufacturing defect and failure to warn products liability causes
of action.   Appellants withdrew the negligence and breach of implied
warranty claims prior to trial.



                                           -2-
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              request deprived [Appellants] of an adequate statutory or
              legal remedy and was clearly contrary to the applicable
              case law.

       II.    Whether in its November 3, 2015 order, the trial court
              erred in finding that it properly allowed evidence and
              testimony of industry standards and employer conduct to
              be considered by the jury.

       III.   Whether the trial court erred in its April 17, 2015 order on
              motions in limine where it expressly stated that the
              Pennsylvania Supreme Court’s ruling in [Tincher3] allowed
              for the introduction of the following at trial:

              (a)    Industry safety standards;
              (b)    OSHA safety standards;
              (c)    Employer conduct; and
              (d)    Conduct of third parties, including but not limited to
                     assumption of risk by [Mr. Renninger].

       IV.    Whether in its November 3, 2015 order, the trial court
              erred in finding that it properly instructed the jury on the
              question of defective design of a product. Specifically,
              whether the court erred when it instructed the jury on the
              factors to consider in applying the risk utility analysis
              required pursuant to the Pennsylvania Supreme Court
              decision in [Tincher], when it instructed the jury to
              consider a seven-part test which was not adopted by the
              [Tincher] decision.

       V.     Whether the trial court erred when it failed to properly
              craft a jury verdict question and failed to place such jury
              questions in a sequence that resulted in the jury deciding
              the case before being asked to apply the risk utility
              analysis required by [Tincher].           Specifically, jury
              questions 1 and 2, which were generic questions that did
              not require the application of the risk utility analysis, and
              consequently this case was decided without the application
              of risk utility by the jury.


____________________________________________


3
    Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).



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J-A23029-16


      VI.    Whether in its November 3, 2015 order, the trial court
             erred in finding that it properly disallowed a jury
             instruction on the doctrine of intended use in the context
             of products liability design defect cases pursuant to the
             Pennsylvania Supreme Court decision in [Tincher].

      VII.   Whether the trial court erred in its January 27, 2011 order
             on [Appellees’] motions for summary judgment where it
             misapplied Pa.R.C.P. [No.] 1035.2, in that it relied upon an
             affidavit to prematurely grant summary judgment in favor
             of [Appellees] before the close of discovery and dismissed
             certain counts of [Appellants’] amended complaint; and
             more importantly used that same affidavit to conclude that
             the third party/employer was the designer of the subject
             product, and that neither [Appellee] designed the wheeled
             caster assemblies at issue.

Appellants’ Brief at 4-6.

      Before we analyze Appellants’ legal arguments, we will review the

facts introduced at trial.   Mr. Renninger’s job at Commodore was to help

build and finish roofs. N.T Trial, 6/22/15, at 60. Mr. Renninger’s plant built

roughly ten to twelve homes at one time. N.T. Trial, 6/23/15, at 21. The

homes under construction moved around the assembly line on casters bolted

to their undersides.   Id. at 22, 24. Originally, Commodore positioned the

casters several feet inside of the home’s outer frame, such that a moving

caster could not run over the foot of a person standing alongside a moving

home. Id. at 22-23, 92, 114-15; N.T. Trial, 6/24/15, at 96. Commodore

repositioned the casters to the outer edge of the homes to prevent bowing in




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J-A23029-16


the floor joists.4     Id.; N.T. Trial, 6/24/15, at 58.     Commodore modified

twenty casters to accommodate the new location. R 796-802. Cass Hudson

and A&R Machine subsequently supplied additional casters fabricated to

meet the new specifications. Id. The twenty modified casters remained in

use at the time of Mr. Renninger’s accident, and it was not possible to

distinguish the casters Commodore modified from the unmodified casters

subsequently supplied by Cass Hudson. Id.

         Mr. Renninger’s accident occurred while he was on the plant floor

speaking to his foreman.          N.T. Trial, 6/23/15, at 26-28.   Mr. Renninger

testified that Commodore never trained its employees on Occupational

Safety and Health Administration (“OSHA”) regulations regarding the plant

floor.    Id. at 85.    Mr. Renninger was not aware of any OSHA regulation

requiring the use of steel-toed boots on the plant floor, and he did not own

steel-toed boots on the date of the accident. Id. at 83-85. He was wearing

tennis shoes when the accident occurred, and he was aware that the casters

did not have a guard to prevent the wheel from running over a foot. Id. at

80. Mr. Renninger also testified that the plant floor was not level, such that

some of the wheels underneath a moving modular home would touch the

ground while others did not.         Id. at 85-86.   Mr. Renninger believed a toe
____________________________________________


4
   The record indicates that Commodore switched from mobile to modular
homes the year before Mr. Renninger’s accident. The interior placement of
the casters worked for mobile homes but caused bowing in the floors of the
modular homes.



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guard on the caster would have prevented his injury.      Id. at 96-97.   Mr.

Renninger did not believe a steel-toed boot would have prevented his injury.

Id. at 97.

       Richard Guzicki an employee of Appellee Cass Hudson who helped

handle the Commodore account, testified that Cass Hudson is a distributor of

casters and wheels. N.T. Trial, 6/24/15, at 5. Cass Hudson consults with its

customers to determine an appropriate caster for their needs. Id. at 5, 17.

Dale Toney, director of special operations for Commodore, testified that he

relied on Guzicki to supply an appropriate wheel for the height and weight.

Id. at 80, 83, 110.        According to Guzicki, Cass Hudson does not advise

customers on the need for toe guards in a given application, and does not

analyze the safety needs at a customer’s plant.      Id. at 43-45.   Likewise,

Cass Hudson personnel did not visit the plant where the accident occurred.

Id. at 47. Thus, Cass Hudson had no opportunity to observe the condition

of the plant floor.5

       Delbert Miller, one of the owners of A&R Machine Shop (“A&R”),

testified that A&R fabricated the brackets that held the casters to the

modular homes. N.T. Trial, 6/24/15, at 57. Cass Hudson is one of A&R’s



____________________________________________


5
    We observe that the plant closed shortly after the accident. Cass
Hudson’s legal team never had an opportunity to examine the plant, the
floor, or the caster that caused the injury.



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J-A23029-16


largest customers. Id. at 67-68. Like Guzicki, Miller never visited the plant

where the accident occurred. Id. at 69.

      Both parties produced expert witnesses.      Paul Dreyer, a mechanical

engineer and Appellants’ expert witness, described the roles of Commodore,

Cass Hudson, and A&R:

             Okay. Commodore is the manufacturer of the modular
      homes, so they know modular homes. A&R Machine is basically
      a machine shop that builds metal fabricated parts, things that
      drill holes and a certain size and shape. They supplied a metal
      fabric part which they called a bracket to Cass Hudson. And
      Cass Hudson took the bracket and mounted it to the caster
      assembly and then supplied it directly to Commodore to be used
      underneath the modular home.

N.T. Trial, 6/23/15, at 114. Dreyer testified that the casters attached to the

outer edge of the modular homes were defective because they lacked a toe

guard. Id. at 117.

            [T]he main reason why a toe guard is important for this
      particular application is because this is a very large wheel with a
      very heavy load. That can be very dangerous. And because of
      that circumstance, it needed to be—the workers needed to be
      protected from the possible movement of that very heavy load
      onto their foot.

Id. at 117-18.

      Further:

            For this particular caster assembly to have, like I
      mentioned, a large wheel which has no guarding, no protection,
      which is—could instill a very serious injury on a worker who is
      paying attention to his job and not thinking that there’s an
      imminent hazard, imminent danger right below him until
      obviously after it occurred. And if this caster had a guard
      assembly, a toe guard assembly, it might have pinched his foot
      but pushed it out of the way so it wouldn’t be ridden completely


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J-A23029-16


     over and partially—according to the documents, partially up his
     ankle before they could get it off of his foot and cause that
     serious injury.

Id. at 120.   In Dreyer’s opinion, the toe guard was preferable to using

another worker as a spotter, and it was also preferable to using a buzzer or

beeper on a moving modular home.       Id. at 121.   A spotter may not see

everything, and a buzzer might not get the attention of a worker wearing ear

protection. Id. Multiple homes moving along the assembly line and beeping

could cause confusion. Id.

     Dreyer stated that Cass Hudson’s suppliers offer toe guards for sale in

their catalogues, but he acknowledged that a toe guard for the casters

Commodore purchased would have needed to be custom designed.          Id. at

118. A custom designed toe guard would have increased the cost of each

caster by 10 to 12 percent. Id. at 123-25. Dreyer said it should have been

obvious to Cass Hudson that a toe guard was necessary, once the casters

were moved to the outer edge of the modular homes. Id. at 206.

     Dreyer believed the use of a toe guard would have been in accord with

industry standards. “The caster industry has done that analysis and come

up with a couple of different toe guard designs, and I have my faith in their

industry that that design minimizes injury.”    Id. at 161.    Commodore’s

compliance, or lack thereof, with OSHA regulations was not relevant to

Dreyer’s analysis of the product design. Id. at 201, 209.




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J-A23029-16


      The defense expert, Gary Hutter, testified that no industry standard

requires heavy-duty casters to have toe guards. N.T. Trial, 6/24/15, at 167-

68.

            Q.    Is that a standard that exists in the wheel supply
      industry?

            A.    No, it is not. It’s not a standard in the wheel supply
      industry, nor is it a requirement by OSHA. I’m on an ANSI
      [American National Standards Institute] committee that’s
      involved with casters. I voted on two of their standards. It’s not
      a requirement in those standards either.

            Q.    Do you know of any law, any regulation, any
      standard or any literature that coincides with Mr. Dreyer’s
      opinion that all heavy-duty casters must contain guards?

            A.    No, I’m not aware of anything like that.

            Q.    Have you ever heard any person or any expert offer
      that opinion at any other time than in this case?

            A.    No, I have not.

            Q.    Can you tell us what the standard is with regard to a
      reasonable seller of a caster dolly and wheels such as that we’re
      dealing with here?

            A.     Well, in essence, the caster dolly is a component in a
      product, the product being the—this house that’s being made,
      and it’s a component someone’s buying—

            [At this point, Appellants’ Counsel successfully objected to
      Hutter’s characterization of the caster as a component of the
      modular home]

            Q.   Setting aside components, what is the—what is the
      standard of what a reasonable seller is expected to comply with
      when they are selling a caster dolly as was sold in this particular
      case.

           A.    In essence, that it would be compliant with codes
      and standards, that it would be reasonably safe, that it would


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J-A23029-16


       perform the utility as they understood the utility to be, those
       kinds of things.

            Q.    And in this particular case, is it your opinion that
       Cass Hudson complied with the standard—the applicable
       standard that you just indicated or that it did not comply?

              A.     Yes, that it did.[6]

Id. at 169-71.

       Hutter further elaborated on the ANSI standards:

              Now, wheels have been around for a long time; and most
       of the wheels we encounter do not have any kind of wheel
       bearings on them. Now, in some situations, maybe a wheel
       bearing makes sense; but let’s see if the codes and standards
       require wheel bearings. When I went to the ANSI code—and
       ANSI is American National Standards Institute. They have codes
       on casters and wheels. I voted on their standards on those
       issues. They do not require that wheel guard or any wheel
       guard is mandatory on—on this kind of product. You go to the
       codes and standards and you look. Well, what do we need? And
       I’ve said this repeatedly. You have a trained person. You have
       spotters. You—you have safety shoes. You make sure the area
       is clean. In addition, you might use a horn. You might use a
       light. You might use other kinds of communication. You make
       sure that there isn’t going to be a problem because this would be
       like driving a heavy forklift truck and not being able to see
       what’s in front of you.

Id. at 226.     As we will explain below, Appellants have not developed any

argument challenging Hutter’s testimony that Appellee’s casters met

industry and ANSI standards.




____________________________________________


6
  Given this testimony, Appellee’s assertion that it introduced no evidence of
industry standards is incorrect. See Appellee’s Brief at 11.



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J-A23029-16


       Hutter confirmed that Cass Hudson was not in the fabrication business

and could not have fabricated a toe guard for Commodore’s casters. Id. at

174. It would have been impossible to design an appropriate guard without

knowing the contours of the floor:

              Well, first of all, there’s been some discussion about the
       undulation of the floor of the building where this is being
       manufactured; and if you have a guard and then try to—I
       believe Mr. Toney […] wanted it to be close to the floor obviously
       so that a toe or foot can’t get underneath there; but because the
       floor goes up and down—which normally a floor would because it
       would have drains in it, because concrete is never made
       perfectly flat, because there are expansion joints and all those
       kinds of things, that if he put it too close to the floor, it would be
       a problem. And it would gouge into the floor. And if he put it,
       obviously, too high, it’s not going to protect too many people
       unless they have a very big shoe on or something like that. So
       you’d have to know that information about the floor.

Id. at 175

       Hutter believed Cass Hudson did not have the information it needed to

make a safety recommendation, and was not aware that spotters and safety

shoes were not in use, as its personnel never visited the plant. Id. at 212,

219.   Hutter also stated that toe guards present their own risk of injury,

including running over electric cords or hoses.      Id. at 182. Hutter opined

that toe guards did not pass his risk-utility analysis because they would not

necessarily protect a worker’s foot and they pose additional hazards. Id. at

196-97, 224-25.      Hutter would not have recommended the use of a toe

guard on the casters in question. Id. at 213. Hutter did not believe it was

certain that a toe guard would have prevented Mr. Renninger’s accident. Id.



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J-A23029-16


at 191, 196.          Mr. Renninger’s soft tennis shoes could have slipped

underneath a toe guard, depending on where he stood and the gap between

the toe guard and the floor at that location. Id. at 196.

        Hutter testified that utility carts used to carry thousands of pounds of

steel, concrete, or brick generally do not have toe guards on the wheels. Id.

at 187. Similarly, the industrial carts at retailers such as Home Depot do not

have toe guards. Id. at 188. Hutter claimed the use of a spotter and safety

shoes are the most successful methods of preventing the injury Mr.

Renninger sustained.      Id. at 192-93, 201-02.        The toe of a typical safety

shoe rises two inches above the sole, such that a caster would be unlikely to

roll over the wearer’s foot. Id. at 208. The wheel would bump the safety

shoe and the wearer would have time to move his foot clear of the wheel’s

path.    Id. at 208-09.         Persons operating the machine that pushes the

modular home are required to comply with government safety standards.

Id. at 194. In sum, Hutter did not believe Cass Hudson supplied defective

casters. Id. at 198. Hutter believed an unsafe workplace, rather than the

lack of a toe guard, caused Mr. Renninger’s injury. Id. at 198-99.

        We now turn to Appellants’ legal arguments. Appellants argue the trial

court    erred   in   denying    their   motion   for   a   new   trial   or   judgment

notwithstanding the verdict (“JNOV”). “Our standard of review regarding a

trial court’s denial of a motion for a new trial is limited. The power to grant

a new trial lies inherently with the trial court and we will not reverse its


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J-A23029-16


decision absent a clear abuse of discretion or an error of law which controls

the outcome of the case.”     Kaplan v. O'Kane, 835 A.2d 735, 737 (Pa.

Super. 2003) (quoting Siegal v. Stefanyszyn, M.D., 718 A.2d 1274, 1275

(Pa. Super. 1998)).   The following governs our review of the trial court’s

denial of JNOV:

           JNOV is the proper remedy in a civil case where the
     evidence presented at trial was insufficient to sustain the verdict.
     Nonetheless, JNOV is an extreme remedy which is properly
     entered by the trial court only in a case where, after viewing the
     evidence in the light most favorable to the verdict winner, the
     facts are so clear that no two reasonable minds could fail to
     agree that the verdict, as rendered by the jury, was improper.
     JNOV, however, may not be employed to invade the province of
     the jury. Thus, when there is a question of fact to be resolved, it
     is within the sole purview of the jury. JNOV should not be
     entered where evidence is conflicting upon a material fact.
     Thus, where the jury has been presented with conflicting
     evidence, a motion for JNOV should be denied.

Rohm & Haas Co. v. Cont'l Cas. Co., 732 A.2d 1236, 1248 (Pa. Super.

1999) (emphasis in original), affirmed, 781 A.2d 1172 (Pa. 2001).

     Appellants’ first three assertions of error challenge the trial court’s

decision to admit evidence of industry safety standards, OSHA safety

standards, and Mr. Renninger’s alleged assumption of risk.          “Questions

concerning the admission and exclusion of evidence are within the sound

discretion of the trial court and will not be reversed on appeal absent an

abuse of discretion.” B & L Asphalt Indus., Inc. v. Fusco, 753 A.2d 264,

270 (Pa. Super. 2000).




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J-A23029-16


       For many years, our law prohibited the introduction of industry

standards evidence in a strict liability case, the rationale being that under

§ 402A of the Restatement (Second) of Torts,7 “it is the product itself which

is on trial, and not the manufacturer’s conduct.”     Lewis v. Coffing Hoist

Div., Duff-Norton Co., Inc., 580 A.2d 590, 593 (Pa. 1987).             Industry

standards evidence “improperly focuses on the quality of the defendant’s

conduct in making its design choice, and not on the attributes of the product

itself.”   Id. at 594 (citing Lenhardt v. Ford Motor Co., 683 P.2d 1097

____________________________________________


7
    Section 402A provides:

       § 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

              (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.



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(Wash. 1984)).      Furthermore, “if a manufacturer’s product has design

attributes which make it unsafe for its intended use, there is no relevance in

the fact that such a design is widespread in the industry.” Id.

      In   other   words,   Lewis   espoused   a   strict   separation   between

negligence principles and strict liability causes of action. The Lewis Court

gleaned that principle from Azzarello v. Black Bros., Co., 391 A.2d 1020,

1023 (Pa. 1978), which our Supreme Court in Tincher expressly overruled.

Tincher, 104 A.3d at 335. Under Azzarello, the trial court decided, as a

matter of social policy, whether a product was unreasonably dangerous,

within the meaning of § 402A. Id. at 367. If the trial court found a product

unreasonably dangerous, it submitted the case to a jury, which then

determined whether plaintiffs proved the allegations in their complaint by a

preponderance of the evidence. Id. The Tincher Court noted: “[f]ollowing

Azzarello, decisional focus in strict liability cases shifted to reflect an

increasing concern with segregating strict liability and negligence concepts.”

Id.   The Tincher Court went on to discuss Lewis in detail, but it did not

expressly overrule Lewis, or any case other than Azzarello.          See id. at

368-69. The Supreme Court wrote:

            We recognize—and the bench and bar should recognize—
      that the decision to overrule Azzarello and articulate a standard
      of proof premised upon alternative tests in relation to claims of a
      product defective in design may have an impact upon other
      foundational issues regarding manufacturing or warning claims,
      and upon subsidiary issues constructed from Azzarello, such as
      the availability of negligence-derived defenses, bystander
      compensation, or the proper application of the intended use

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      doctrine. These considerations and effects are outside the scope
      of the facts of this dispute[.]

Id. at 409 (emphasis added).

      Ultimately, the Tincher Court held that a plaintiff may show a

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.”    Id. at 335.    These tests present issues of fact for a jury,

except where it is clear that reasonable minds cannot differ on an issue. Id.

      Presently at issue in this design defect case is the second of these

tests, known as the risk-utility test.    Throughout its Tincher opinion, the

Supreme Court noted that the risk-utility test is derived from negligence

principles.     Specifically, the Court quoted then-Justice Saylor:                “In

application to design defect claims, the concurrence […] observed, courts in

Pennsylvania recognized ‘an integral role for risk-utility (or cost-benefit)

balancing, derived from negligence theory.’” Id. at 371 (quoting Phillips v.

Cricket   Lighters,    841     A.2d   1000      (Pa.   2003)   (OAJC)   (Saylor,    J.

concurring)); see also id. at 373-74 (quoting Bugosh v. I.U. North Am.,

Inc., 971 A.2d 1228 (Pa. 2009) (Saylor, J., joined by Castille, C.J.,

dissenting)).    Justice Saylor opined that a higher threshold of fault is

appropriate in design defect cases, where a plaintiff’s verdict suggests that

an entire product line is defective.     Id.    Further, the Court noted that the

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J-A23029-16


Lewis Court’s distinction between negligence and strict liability principles

was in “harmony” with Azzarello. Id. at 368.

       Despite the Supreme Court’s apparent recognition that the effects of

Tincher would be far reaching, and despite its analysis of the negligence

underpinnings of the risk-utility test Appellants rely upon in this case,

Appellants largely sidestep the issue: “Nowhere in the Tincher decision did

the Pennsylvania Supreme Court allow for the consideration of negligence

principles in products liability cases.” Appellants’ Brief at 13. Appellants cite

pages 399 and 410 of Tincher as evidence that the Supreme Court

“specifically refused to adopt a theory of products liability which included

negligence theory and principles.” Id. at 15. On page 399 of Tincher, the

court recognized the limits of Dean Wade’s seven-part analysis, and

recognizes the shortcomings of the risk-utility test.    Tincher, 104 A.3d at

399.   Nowhere does the Court state that negligence principles will not be

relevant in a case where a plaintiff relies on risk-utility to establish a

defective product. Likewise, on page 410, the Tincher Court explains some

of its reasons for declining to adopt the Third Restatement.        Id. at 410.

Nothing on page 410 supports a conclusion that the Tincher Court intended

to maintain a strict division between negligence and strict liability principles

in the risk-utility test.   Indeed, on the prior page (quoted above with

emphasis added) the Supreme Court recognized that its holding could have




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an impact on, among other things, the availability of negligence-based

defenses. Id. at 409.

       With this background, we now turn to the specifics of Appellants’

argument.     Appellants’ filed a pretrial motion in limine seeking to exclude

evidence of industry standards applicable to casters of the type at issue in

this case and OSHA standards applicable to the Commodore plant where Mr.

Renninger worked.         The trial court denied the motion, reasoning that

“[industry] standards may supply the jury with a useful starting point from

which to evaluate the caster’s design.” Trial Court Opinion, 4/17/2015, at

21.8   As described above, Appellee introduced evidence of ANSI standards

governing casters.       Hutter testified that no industry standard required the

use of toe guards on casters.           Appellee, through Hutter, also introduced

evidence     of   OSHA     violations    at    Commodore,   and   safety   measures

Commodore could have taken to prevent Mr. Renninger’s injury, and

evidence of Mr. Renninger’s assumption of risk.


____________________________________________


8
   Appellee argues in its brief that Appellants opened the door to industry
standards evidence because their expert was the first to address it at trial.
This argument is not well taken. After their unsuccessful motion in limine,
Appellants had the right to devise an appropriate trial strategy.           See
Sprague v. Walter, 656 A.2d 890, 906 (Pa. Super. 1995) (“Having received
an unfavorable ruling on its motion to exclude all such evidence, [the party]
was entitled to use that evidence to its best advantage in order to try to win
the case, and not be forced to wait for possible vindication of the trial court’s
adverse ruling.”).




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       Surprisingly, Appellants do not address Hutter’s discussion of industry

standards governing casters, or even cite to portions of the record where

Hutter offered that testimony.             Appellants used the phrase industry

standards in their question presented and again in their brief, but they

confined the substance of their record citations and legal argument to the

evidence of Commodore’s conduct and OSHA violations.9 Appellants’ Brief at

12, 21. We will therefore do the same. See Pa.R.A.P. 2119(c) (requiring

appellants to support arguments with pertinent citations to the record).


____________________________________________


9
   This argument is consistent with Appellants’ counsel’s argument during
the colloquy on the proposed points for charge:

       APPELLEE’S COUNSEL: We do request 25 and 26 or an amalgam
            of the two so that they realize it is relevant to consider the
            industry standards that they’ve heard about. It’s not a
            dispositive, but it’s relevant as to whether or not a seller
            acted reasonably.

       APPELLANTS’ COUNSEL: Compliance with industry standards,
            you were talking about industry standards with regard to
            workplace not with regard to the product.

       APPELLEE’S COUNSEL: No. We talked about it with regard to
            the product too. It doesn’t violate any industry standards.
            That was pretty clearly said by Dr. Hutter.

       APPELLANTS’ COUNSEL: No.

       APPELLEE’S COUNSEL: No, it wasn’t.

       APPELLANTS’ COUNSEL:               He   covered   employer   employer
            employer.

N.T. Trial, 6/25/2015 a.m., at 30-31.



                                          - 19 -
J-A23029-16


      Concerning Commodore’s conduct, and the alleged OSHA violations,

Appellants cite three specific portions of the trial transcript. Appellants’ Brief

at 12, 21. First, at pages 178 through 181 of the June 24, 2015 transcript,

Hutter discussed the lack of safety shoes, trained industrial truck operators,

and spotters, the uneven floor, and other potential hazards at the

Commodore plant. N.T. Trial, 6/24/15, at 178-81. Hutter also explained his

reasons for opining that a toe guard would not necessarily prevent the type

of injury Mr. Renninger sustained. Id.

      Next, Appellants cite pages 191 to 196 of the June 24, 2015 transcript.

Appellants’ Brief at 12, 21. On these pages, Hutter further elaborated on his

reasons for believing a toe guard would not necessarily prevent a foot injury.

N.T Trial, 6/24/15, at 191-92, 195-96. Likewise, Hutter further elaborated

on his opinion that Commodore failed to provide proper supervision and

footwear. Id. at 193. Hutter stated that Commodore was cited for an OSHA

violation as a result of these deficiencies. Id. at 193-195.

      Finally, Appellants cite pages 198-99 of the June 24, 2015 transcript,

wherein Hutter testified that Mr. Renninger’s injury was a result of

Commodore’s     OSHA    violations   and   Mr.   Renninger’s   own   negligence.

Appellants’ Brief at 12, 21; N.T. Trial, 6/24/15, at 198-99. As noted above,

in none of these portions of the transcript did Hutter reference industry

standards applicable to casters.




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J-A23029-16


     Appellants rely in part on Sheehan v. Cincinnati Shaper Co., 555

A.2d 1352 (Pa. Super. 1989), appeal denied, 564 A.2d 1261 (Pa. 1989). In

Sheehan, as in the instant case, the defendant argued that the plaintiff’s

employer’s OSHA violations were relevant to causation. The defendant sold

a shear to the plaintiff’s employer and argued that OSHA regulations

required the employer to provide safety guards for use with the shear. Id.

at 1354. We rejected the defendant’s argument:

           Although Shaper attempts to couch its argument in terms
     of causation, it fails to explain how OSHA standards are relevant
     to that issue. The essence of Shaper’s argument is that Shaper
     acted reasonably by designing the shear without a safety guard
     since OSHA standards place the responsibility of providing a
     safety guard on the buyer/employer.

                                   [***]

           We conclude that the OSHA regulations proffered would
     introduce into a strict liability action the reasonableness of
     Shaper’s failure to provide the new safety device for this
     machine, an issue irrelevant to whether liability attaches.
     Accordingly, the trial court did not err by sustaining Sheehan's
     objections to the introduction of this evidence.

Id. at 1354-55. Thus, the Sheehan Court employed the strict separation

between negligence and strict liability, set forth in Lewis in “harmony” with

Azzarello.    See Tincher, 104 A.3d at 368 (discussing Lewis and

Azzarello).

     Likewise, Appellants cite Majdic v. Cincinnati Mach. Co., 537 A.2d

334 (Pa. Super. 1988) (en banc), to support their argument that a plaintiff’s

employer’s conduct is not relevant in a strict products liability action. The



                                   - 21 -
J-A23029-16


plaintiff operated a power press used for “the punching, stamping, bending,

or sheering of metal.” Id. at 336. There, the defendant provided a press

brake, which plaintiff’s employer then incorporated into its manufacturing

system.     Id. at 336-37.    Plaintiff alleged the press brake was defective

because “it did not contain a guard which would have prevented the

operator’s hands from entering the point of operation.”            Id. at 336.   The

defendant    argued   that    “the    press      brake   was   a   general   purpose,

multifunctional unit which was unequipped with dies and had no point of

operation when sold.” Id. at 337. Thus, “only [plaintiff’s employer], which

incorporated the press brake into its manufacturing system, could determine

and install the guards and warnings necessary for the particular function

assigned to the press.”      Id.     The defendant introduced evidence of ANSI

standards for power presses and evidence that it was industry custom for

the purchaser of a press brake to provide the necessary safety devices. Id.

at 338.    Citing Lewis, decided the year before Majdic, the Majdic Court

held that the trial court erred in permitting the ANSI evidence and evidence

of industry custom.     Id. at 338-39.           The Majdic Court rejected such

evidence because it implicated the reasonableness of the manufacturer’s

conduct.

     Appellants do not address whether Tincher has any implications for

the continued vitality of Sheehan or Majdic.             Assuming without deciding

that the trial court erred in admitting evidence of Commodore’s conduct


                                        - 22 -
J-A23029-16


under those two cases, we conclude the trial court’s error was harmless. “To

constitute reversible error, a ruling on evidence must be shown not only to

have been erroneous but harmful to the party complaining.” B & L Asphalt

Indus., Inc. 753 A.2d at 270. “An evidentiary ruling which did not affect

the verdict will not provide a basis for disturbing the [fact-finder]’s

judgment.” Id. 270-71.

     The trial court instructed the jury that Commodore’s conduct was

relevant only if the jury deemed it a superseding cause of Mr. Renninger’s

accident. N.T. Trial, 6/25/2015 p.m., at 15; Verdict Slip, Question 3. We

presume that juries follow the trial court’s instructions. Maya v. Johnson

and Johnson, 97 A.3d 1203, 1222 (Pa. Super. 2014), appeal denied, 112

A.3d 653 (Pa. 2015).     Question one on the verdict slip asked the jury

whether the caster was defective. Question three on the verdict slip asked

the jury to assess whether Commodore’s or Mr. Renninger’s conduct was a

cause of the accident. The jury answered question one in the negative, and

therefore left question three blank.   Given the foregoing, we will presume

that the jury did not consider the evidence of Commodore’s conduct or Mr.

Renninger’s alleged assumption of risk.

     In addition, the record contains a significant body of evidence

supporting the jury’s verdict.   As we have already explained, the jury had

before it Appellee’s introduction of ANSI standards governing casters, which

Appellants have not challenged on appeal.    Further, the jury had before it


                                    - 23 -
J-A23029-16


Appellee’s evidence that toe guards would not have protected Mr. Renninger,

given the uneven flooring in Commodore’s plant. The jury also had before it

Appellee’s evidence that toe guards would pose risks such as severing

electric cords draped across the floor. Given all of this evidence, and given

the trial court’s instruction that Commodore’s and Mr. Renninger’s conduct10

was relevant only to causation, we conclude that any error in admitting

evidence of Commodore’s conduct was harmless.

       We pause here to address the parties’ arguments under Tincher.

Appellants take a very narrow reading of Tincher, seemingly concluding that

it overruled Azzarello but did little else. Even a cursory reading of Tincher

belies that argument. The Supreme Court’s opinion in Lewis, providing for

a strict separation between negligence and strict liability, was, according to

the Tincher Court, a result in harmony with Azzarello. The Tincher Court,

as we have explained, did not expressly overrule Lewis, and had no

occasion to do so based on the arguments the parties presented to it. The

Tincher Court did anticipate that its holding would have significant ripple

effects to be addressed case by case as they arise:

            This Opinion does not purport to either approve or
       disapprove prior decisional law, or available alternatives
       suggested by commentators or the Restatements, relating to
____________________________________________


10
    The parties disputed the admissibility of Mr. Renninger’s alleged
assumption of risk under Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa.
2012) and/or Clark v. Bil-Jax, Inc., 763 A.2d 920 (Pa. Super. 2000),
appeal denied, 782 A.2d 541 (Pa. 2001).



                                          - 24 -
J-A23029-16


     foundational or subsidiary considerations and consequences of
     our explicit holdings.      In light of our prior discussion, the
     difficulties that justify our restraint should be readily apparent.
     The common law regarding these related considerations should
     develop within the proper factual contexts against the
     background of targeted advocacy.

Tincher, 104 A.3d at 410 (emphasis added).

     Ordinarily, this Court is bound by Supreme Court precedent, as well as

the published decisions of prior en banc and three-judge panels of this

Court. In the wake of Tincher, however, the bench and bar must assess

the Tincher opinion’s implications for a large body of post-Azzarello and

pre-Tincher case law.

     In this case, Appellee argues that the Tincher Court’s reliance on

California case law, particularly Barker v. Lull Engineering Co., 573 P.2d

443 (Ca. 1978) reveals the Supreme Court’s intent to admit evidence of

industry standards because California does so. Appellee’s Brief at 12-13. In

fact, admission of industry standards evidence is still in controversy in

California, and the issue is currently pending before the California Supreme

Court. Kim v. Toyota Motor Corp., 197 Cal. Rptr. 3d (Cal. Ct. App. 2016),

review granted and opinion superseded, 368 P.3d 311 (Cal. 2016).

     In Kim, the plaintiffs filed a motion in limine to preclude evidence of

industry custom and practice concerning the design of their 2005 Toyota

Tundra pickup truck. Id. at 652. Plaintiffs argued that electronic stability

control (“ESC”) could have prevented their accident.        Toyota’s product

manager acknowledged that Toyota engineers recommended making ESC

                                   - 25 -
J-A23029-16


standard on the 2005 Tundra. Id. at 653. Toyota instead offered it as an

option, noting that no other manufacturer of full-size pickup trucks offered

ESC as a standard feature in 2005. Id. The Kim Court noted two lines of

California case law arriving at different conclusions on the admissibility of

industry standards evidence, and devised a middle ground approach. Id. at

655-61. The California Supreme Court has yet to render a decision in Kim.

      Kim is illustrative of some of the competing arguments for and against

industry standards evidence in strict products liability/design defect cases.

Other states, including Illinois, hold that evidence of a product’s compliance

with industry standards is relevant, but not a complete defense.          See

Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1154 (Ill. 2011). Neither

party to the instant appeal has offered any substantive argument for or

against the admission of such evidence in Pennsylvania after Tincher.

Given the arguments before us, we do not have occasion to express an

opinion. In light of all of the foregoing, Appellants’ first three arguments do

not merit relief.

      Appellants’ next three assertions of error address the trial court’s jury

instruction.

            We will reverse for improper jury instructions only where
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. […] We will
      not reverse for isolated inaccuracies; the charge as a whole must
      be shown to have caused prejudicial error. Thus, to constitute
      reversible error, a jury instruction must be erroneous and
      harmful to the complaining party.


                                    - 26 -
J-A23029-16


Schaaf v. Kaufman, 850 A.2d 655, 666 n.10 (Pa. Super. 2004) (internal

citations and quotation marks omitted).

       Appellants argue that the trial court erred in instructing the jury on the

so-called “Dean Wade” factors.11               Dean Wade developed seven factors

relevant to application of the risk-utility theory of recovery.       The Tincher

Court referenced the Dean Wade test, noted its limitations, and did not

expressly adopt it.      Tincher, 104 A.3d at 389-90. As both the trial court

and Appellee note, Appellants failed to object to the jury instruction in

question.    Appellants’ do not cite the place of preservation of this issue in

accord with Pa.R.A.P. 2117(c), and our review of the transcript does not

reveal any specific objection to a charge containing the seven Dean Wade

factors. Appellee’s proposed points for charge number 22 included six of the

Dean Wade factors, and when the parties addressed that point the trial court

simply noted it was covered in the court’s risk utility instruction. N.T. Trial,

6/25/2015 a.m., at 30. The Dean Wade factors were mentioned during the

colloquy, but it is not clear that Appellants’ objected to a charge containing

the seven factors. Id. at 29. At the conclusion of its charge, the trial court

offered the parties the opportunity to raise “any matters concerning the

charge” and Appellants offered nothing.            N.T. 6/25/2015 p.m., at 27.   As

such, they have waived this argument. “Objections to jury instructions must
____________________________________________


11
    Dean John W. Wade was the Dean of Vanderbilt Law School and a widely
cited expert on tort law.



                                          - 27 -
J-A23029-16


be made before the jury retires to deliberate, unless the trial court

specifically allows otherwise.      Pa.R.C.P. [No.] 227(b).”      Passarello v.

Grumbine, 87 A.3d 285, 292 (Pa. 2014).              “[W]here a party fails to

specifically object to a trial court’s jury instruction, the objection is waived

and cannot subsequently be raised on appeal.” Cruz v. Ne. Hosp., 801 A.2d

602, 610–11 (Pa. Super. 2002) (quoting Randt. v. Abex Corp., 671 A.2d

228, 232 (Pa. Super. 1996)).         Furthermore, Appellants’ brief does not

address any particular factor or factors and explain how it prejudiced their

case.

        Next, Appellants argue the sequencing of the trial court’s instructions

was erroneous because it permitted the jury to reach a decision on product

defect without considering the risk-utility test.      Once again, the record

reveals that Appellants failed to lodge a timely objection.

        In their sixth assertion of error, Appellants claim the trial court erred

in declining to instruct the jury on the intended-use doctrine.      The parties

dispute whether the intended use doctrine—which holds that a product must

be safe for its intended use by its intended user—applies after Tincher.

Instantly, there is nothing to suggest that Mr. Renninger’s injury occurred

during an unintended use of the caster, or that the persons moving the

home along the plant floor were unintended users.             To the extent they

believe the alleged conduct of Commodore and/or Mr. Renninger was offered

as evidence of an unintended use of the caster (see Appellants’ Brief at 14-


                                      - 28 -
J-A23029-16


15), we have already explained that the jury never considered that

evidence.       As noted above, Appellants cannot obtain relief unless they

demonstrate that the trial court’s instruction was erroneous and harmful.

Appellants have not explained how the court’s instruction harmed their case,

and that omission is fatal to this argument.

          Finally, Appellants argue that the trial court erred in entering summary

judgment on Appellants’ failure to warn and manufacturing defect causes of

action.      Appellants’ argument on this point is puzzling, in that Appellants

address an evidentiary dispute as to which party was responsible for the

design of the caster assembly. Appellants’ Brief at 23-24. Appellants fail to

explain how this evidentiary dispute was relevant to their failure to warn and

manufacturing defect claims, or precisely why the trial court erred in

entering summary judgment on those claims. This argument does not merit

relief.

          In summary, we have concluded that none of Appellants’ assertions of

error merits relief. We therefore affirm the judgment.

          Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017

                                        - 29 -
