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.



                                           -2-
J-A25035-16



      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.


                                     -3-
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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.

                                     -4-
J-A25035-16



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.

                                      -5-
J-A25035-16



      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

                                       -6-
J-A25035-16



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.

                                     -7-
J-A25035-16



      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,

                                     -8-
J-A25035-16



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)


                                           -9-
J-A25035-16



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).



                                           - 10 -
J-A25035-16



            (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.




                                    - 11 -
J-A25035-16



      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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J-A25035-16



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.

                                    - 16 -
J-A25035-16



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




____________________________________________


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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J-A25035-16



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.”


____________________________________________


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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