                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-1994

Metzgar v. Playskool, Inc.
Precedential or Non-Precedential:

Docket 93-3508




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                            No. 93-3508
                            ___________

         RONALD W. METZGAR
         MAUREEN INGRAM, co-administrators of
         estate of MATTHEW C. METZGAR, deceased,
                               Appellants

                           vs.

          PLAYSKOOL INC., a corporation
          K MART CORP., a corporation
                           ___________

          Appeal from the United States District Court
            for the Western District of Pennsylvania
                  (D.C. Civ. No. 92-cv-00031J)
                          ___________

                              Argued
                          April 11, 1994
     Before:   BECKER, MANSMANN and SCIRICA, Circuit Judges.

                      (Filed July 22, 1994)
                           ___________

Kevin R. Lomupo, Esquire
Gilardi & Cooper
310 Grant Street
808 Grant Building
Pittsburgh, Pennsylvania 15219

Alfred S. Pelaez, Esquire (ARGUED)
Duquesne University School of Law
900 Locust Street
Pittsburgh, Pennsylvania 15282

  COUNSEL FOR APPELLANTS

Edward A. Yurcon, Esquire (ARGUED)
William M. Adams, Esquire
Anstandig, Levicoff & McDyer
2200 Gulf Tower
Pittsburgh, Pennsylvania 15219

  COUNSEL FOR APPELLEES


                                 1
                              ___________

                         OPINION OF THE COURT
                              __________

MANSMANN,    Circuit Judge.
            Fifteen month old Matthew Metzgar was tragically

asphyxiated to death on a purple half-column Playskool building

block.    In resolving his parents' civil action against the

manufacturer and the retailer of the toy, brought under

Pennsylvania's negligence and strict product liability rules of

law, the district court entered summary judgment for the

defendants on all four counts of the complaint.

            We address the district court's application of the

traditional risk-utility analysis which the district court

utilized in resolving the negligence product liability cause of

action.     We disagree with the district court on its determination

that the statistical risk of injury from the Playskool block to

children like Matthew is so small as to preclude a finding of

unreasonably defective design.     We also address the district

court's construction of the "intended user" element of the strict

liability cause of action.     We reject the district court's

determination that the age guideline on the product packaging

precludes the manufacturer's liability for safety when used by

children, like Matthew, who may be shown to be developmentally

within the age category, although chronologically slightly

younger.    We also reject the district court's dismissal of the

failure to warn claims, brought both in strict liability and

negligence.    We cannot agree that the danger of a small child



                                   2
choking on the block was obvious so as to negate any duty by

Playskool to so warn.

                                 I.

          On the morning of February 12, 1990, Matthew's father,

Ronald, was babysitting Matthew and had placed Matthew, awake and

healthy, in his playpen.   Ronald left the room for just five

minutes and upon his return, he found Matthew lifeless.   His

efforts to revive his son, after he called "911" and removed the

Playskool block lodged in Matthew's throat, were to no avail.

          The block which caused Matthew's untimely death is a

cylindrical column, 7/8" wide by 1-3/4" long, the smallest block

among the 49 brightly colored and variously shaped wood blocks

marketed by Playskool, Inc.0   Playskool did not place any warning

of a choking hazard on the box containing the blocks, but clearly

and boldly imprinted on the front, back and top of the box are

the words, "Ages 1-1/2 - 5."   The size and shape of the block

satisfied existing federal standards and regulations for risk

mitigation and cautionary labeling promulgated and enforced by

the Consumer Products Safety Commission, 16 C.F.R. § 1501.4,

under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-77.

The Playskool block also met the small toy and toy part standard

established by the American Society for Testing Materials.

          On February 6, 1992, Mr. Metzgar and Maureen Ingram,

Matthew's mother, filed a complaint against Playskool, Inc. and


0
          The blocks are manufactured and packaged for Hasbro,
Inc. by Strauser Manufacturing, Inc. according to Hasbro
specifications and are sold under the Playskool name.


                                 3
K-Mart Corp., the retailer, setting forth essentially four counts

under Pennsylvania law:     negligent design, manufacture and sale

of a toy block of a size and shape which made the block

susceptible of being swallowed and causing a child to choke;

strict liability under § 402A of the Restatement (Second) of

Torts for manufacturing and selling a toy block in a defective

condition, unreasonably dangerous to intended users, which the

plaintiffs alleged includes a child of fifteen months; negligent

failure to warn of the hazard to children of the toy block; and

strict liability for failing to warn of the product hazard

potential.    Matthew's parents alleged that the manufacturer's age

span recommendation on the box was inadequate to warn of the

block's inherent danger.0

             In ruling upon the defendants' motion for summary

judgment, the district court found with regard to the plaintiffs'

negligent design and manufacture cause of action, that although

the danger of choking was foreseeable, "[t]he historical risk of

choking from the Playskool blocks is so small that, even ignoring

the issue of parental supervision, the risk from the design as a

matter of law is not unreasonable."     District Court Opinion   of

Sept. 9, 1993 at A. 21.     The court dismissed this cause of

action.   Further, in light of the explicit age designation on the

box, the district court found that Playskool did not subjectively

intend a fifteen month old child to use this particular Playskool


0
          An additional cause of action based on breach of
unspecified express and implied warranties was withdrawn by
letter dated April 13, 1993.


                                  4
product.    Thus the court also dismissed the plaintiffs' defective

design strict liability cause of action, holding that "[i]f the

concept of intended use . . . is to retain any meaning

whatsoever, it necessarily means that use intended from the point

of view of the manufacturer putting a product into the

marketplace."    District Court Opinion of Sept. 9, 1993 at A. 13

(citing Griggs v. Bic Corp., 981 F.2d 1429 (3d Cir. 1992)

(product not defective unless it possesses a feature which

renders it unsafe for its intended use); Brantner v. Black &

Decker, C.A. No. 93-1J, slip op. at 7-12 (W.D. Pa. Aug. 23,

1993)).    Further, reasoning that no warning is necessary where a

risk of danger is obvious, the district court concluded as a

matter of law that the likelihood of a young child choking on a

small block is too obvious for the court to sustain the

plaintiffs' failure to warn strict liability and negligence

causes of action;0 (citing Mackowick v. Westinghouse Electric

Corp., 525 Pa. 52, 575 A.2d 100, 102 (1990); Dauphin Deposit Bank

and Trust Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 596 A.2d

845, 849 (1991)).    Thus the district court granted summary

judgment in favor of the defendants on all pending claims.

            Our review of the district court's summary judgment

order is plenary, and we will utilize the same tests and



0
          As a preliminary matter, the district court decided
that neither the Federal Hazardous Substances Act, 15 U.S.C.
§§1261-77, nor general principles of implied preemption, preempt
Pennsylvania's labeling or design and manufacturing regulations.
The district court's holding on this issue has not been appealed
and is not, therefore, before us for review.

                                 5
standards which the district court was constrained to apply.0 We

will address each cause of action seriatim.



                               II.

          We are troubled by the district court's summary

judgment disposition of the plaintiffs' negligent design and

strict liability design defect causes of action.   With regard to

the negligence claim, the district court properly engaged in a

risk-utility analysis.   Griggs, 981 F.2d at 1435-36 (negligence

law requires balancing of risk in light of social value of

interest at stake, and potential harm, against value of

conflicting interest) (citing W. Page Keeton et al., Prosser and

Keeton on Torts § 31, at 173 (5th ed. 1984); Benson v.

Pennsylvania Cent. Transp. Co., 463 Pa. 37, 342 A.2d 393, 397

(1975); Clewell v. Pummer, 384 Pa. 515, 121 A.2d 459, 462

(1956)); see also Kleinknecht v. Gettysburg College, 989 F.2d

1360, 1369-70 (3d Cir. 1993) (the classic risk-utility analysis

is used to determine whether a risk is unreasonable in a

negligence cause of action).   In performing this analysis, the

district court relied heavily on the statistical fact that the

general population of small children suffer a mortality rate from

choking on small toys or toy parts of approximately only one per

720,000 children.   We note also that according to Playskool's

representative, Charles Fischer, over the past twenty years, the


0
          The district court exercised diversity jurisdiction
over these claims. 28 U.S.C. § 1332. Our jurisdiction arises
from the final order of the district court. 28 U.S.C. § 1291.


                                6
Playskool block in question, of which easily hundreds of

thousands have been sold, has not generated any complaints of

choking deaths or injuries.      A. 286; 299.   Nevertheless, the

plaintiffs' expert, E. Patrick McGuire, reported for the record

that in one year studied, 1988, there were eleven deaths due to

aspiration of small toys or toy parts by children.       A. 79.   The

record does not indicate the current infant mortality rate due to

small toy related asphyxiation, but the plaintiffs submitted a

CPSC estimate reported in the House Congressional Record0 that in

each year from 1980-88, an average of 3,200 small children were

treated in hospital emergency rooms for toy related ingestion and

aspiration injuries.   A. 476.    The CPSC also reported that

between 1980 and 1991, 186 children choked on small toys, toy

parts, and other children's products.

          We share the district court's concern that without "at

least a realistic threshold of risk," District Court Opinion of

Sept. 9, 1993 at A. 21, n.10, courts should avoid intrusion into

product design by too readily weighing risk-utility factors
against the defendant, even in those cases where a grievous

injury has been suffered.   Nonetheless, we believe that an annual

mortality rate of eleven is a "realistic threshold of risk" in

this case.   The fact that the Playskool purple half-column block

has not been a contributor to the infant mortality rate until now

may be simply happenstance from which we cannot conclude that the

0
          138 Cong. Rec. H8264 (daily     ed. September 10, 1992)
(statement of Rep. Collins concerning     bill (H.R. 4706) to amend
Consumer Product Safety Act to, among     other things, extend
authorization of appropriations under     the Act).


                                   7
block will be safe for future reasonably foreseeable users.     We

note that although the purple half-column was in technical

compliance with CPSC and ASTM standards, the block only minimally

met the required standards by protruding in length slightly

beyond the ASTM test cylinder.   The block's width, however, was

slightly narrower than the test cylinder.   It appears that a

slight modification to the block design could virtually eliminate

the choking potential without detracting from the block's

utility.   We do not believe that the evidence demonstrates,

therefore, that the risk of a reasonably foreseeable user choking

on the block is so relatively small -- measured against the

block's decreased utility by modifying its present design -- as

to permit summary judgment for the defendants on the basis of a

risk-utility analysis.   Therefore, we will vacate the summary

judgment order as it pertains to the claim of negligent design.0

0
          Judge Scirica would affirm the grant of summary
judgment to Playskool on the negligent design claim on the basis
of the district court's risk-utility analysis, which noted that
the purple block exceeded the CPSC minimum size for toys for
children under three. Where there is utility to the toy's size,
the toy is safe for children of certain ages or under
supervision, it is accompanied by adequate warnings, and the
statistical probability of the risk is extremely low, the risk-
utility analysis may preclude a negligent design claim.
Otherwise, it would appear that every marble would be subject to
a negligent design claim. The only evidence on the risk posed by
the block consisted of statistics on children's choking injuries
and deaths from congressional testimony, but there was no
evidence the choking incidents in the statistics involved objects
of comparable size to the purple block. Indeed, Congresswoman
Collins cited the statistics as evidence that children were
choking on toys that were, unlike the purple block, smaller than
the CPSC minimum. 138 Cong. Rec. H8264.

          While Judge Becker believes that Judge Scirica's
argument has considerable force, he adheres to the opinion of the


                                 8
                                III.

            We turn now to the district court's summary judgment

disposition of the plaintiffs' strict liability design defect

claim.    We quite agree with the district court's reiteration that

"a product is not defective unless it possesses `any feature that

renders it unsafe for the intended use,'" and that the concept of

intended use "`encompasses the participation of an intended

user.'"    District Court Opinion of September 9, 1993 at A.10

(citing Griggs v. BIC Corp., 981 F.2d 1429, 1433 (3d Cir. 1992)

and Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020,

1027 (1978)).    We are much less certain, however, that Matthew,

at age fifteen months, was not an intended user of this

particular product.    The eighteen month to five year

recommendation boldly marked on the Playskool box is not, to our

minds, an unequivocal indication that these blocks are unsuitable

for use by a child who is just three months shy of eighteen

months, particularly given the potential disparities among young

children in the relation of their chronological age to their


court because he believes that the statistical evidence
concerning the magnitude of the risk of asphyxiation and related
injures to children under the age of six may support a finding
that all intended and likely users of the blocks are exposed to
an unreasonable risk of asphyxiation. That is, to the extent
that legally adequate warnings would leave no real market for the
product (because, for example, the warning would have to include
all children under the age of six and children over the age of
six would have no real interest in the blocks), the plaintiffs
could prevail on the negligent product design claim. Judge
Becker notes in this regard that, were it unreasonable, given the
nature of the particular product in light of its intended use, to
expect an adult to engage in constant supervision of a child
playing with it, a warning that the product should be used only
with adult supervision would be legally inadequate.


                                 9
physical and mental "developmental age."   Moreover, the

plaintiffs produced several experts who concluded that

Playskool's age guideline pertained to the intended user's

developmental stage.0

          We must emphasize that under Pennsylvania's

interpretation of section 402A strict liability,0 an "intended

user" of a product is not so broad a class as to encompass every

user reasonably foreseeable to the manufacturer.    Foreseeability

pertains to a duty analysis under negligence tort law, but

strictly speaking does not form a part of the appropriate

analysis under Pennsylvania strict products liability law.

Griggs, 981 F.2d at 1435 (". . . the `duty' analysis in strict

liability eschews foreseeability as an element").   See also

Azzarello, 391 A.2d at 1025; Berkebile v. Brantly Helicopter

0
          The plaintiffs submitted three expert reports to the
district court, including that of Sylvan E. Stool, M.D., A.69,
Theodora Briggs Sweeney, A.70-73, and E. Patrick McGuire. A.77-
81. All three experts concurred that the age guideline served
primarily as a developmental gauge, and did not convey safety
hazard information based solely or primarily on the child's
chronological age.
0
          In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the
Pennsylvania Supreme Court adopted the Restatement (2d) Torts
Section 402A as the law of Pennsylvania. Section 402A provides:

          (1) One who sells any product in a defective
          condition unreasonably dangerous to the user
          or consumer . . . 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.


                               10
Corp., 462 Pa. 83, 337 A.2d 893, 900 (1975) (plurality opinion)

("Foreseeability is not a test of proximate cause [under strict

liability]; it is a test of negligence."); Lewis v. Coffing Hoist

Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987) (".

. . negligence concepts [such as foreseeability] have no place in

a case based on strict liability").0   Furthermore, it is the
0
          Prior to Griggs, in our reported decisions we did not
carefully distinguish the role of foreseeability in negligence
and in strict liability, and the concept has become blurred in
the two contexts. See Fleck v. KDI Sylvan Pools, Inc., 981 F.2d
107, 119 (3d Cir. 1992) ("The inquiry is whether the product is
defective for ordinary use and foreseeable misuse"), cert.
denied, 113 S.Ct. 1645 (1993); Sheldon v. West Bend Equip. Corp.,
718 F.2d 603, 608 (3d Cir. 1983) (". . . the intended use of a
product includes any use which is reasonably foreseeable to the
seller"); Schell v. AMF, Inc., 567 F.2d 1259, 1263 (3d Cir. 1977)
("`. . . whether a particular use of a product is abnormal
depends on whether the use was reasonably foreseeable by the
seller'") (citing Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa.
321 n.13 (1974)); Eshbach v. W. T. Grant's & Co., 481 F.2d 940,
943 (3d Cir. 1973) ("`the duty of a manufacturer . . . is limited
to foreseeing the probable results of the normal use of the
product or a use which can be reasonably anticipated'") (citing
Kaczmarek v. Mesta Machine Co., 463 F.2d 675 at 679 (3d Cir.
1972)). In Griggs, in attempting to retain the important
distinction between negligence and strict liability, we rejected
the term "foreseeability" in the context of a strict liability
analysis.

          We note some difference in the panel's view here: Judge
Mansmann would emphasize Griggs' sensitivity to keeping the
terminology of negligence and strict liability distinct, and also
reaffirm an objective standard to determine the manufacturer's
intent in a strict liability analysis. See also, Pacheco v. The
Coats Co., Inc., No. 93-1791, Slip op. at 8 (3d Cir. June 6,
1994) (acknowledging that "foreseeability" is a term of
negligence, although an objective standard is appropriate to a
strict liability analysis of manufacturer's intent). Judge
Becker and Judge Scirica believe that, at least insofar as Griggs
rejected a forseeability analysis in context of the intended use
(as opposed to the intended user) analysis, Griggs departed from
prior Third Circuit caselaw just cited on the role played by
foreseeability in strict liability cases, and to that extent
carries no precedential weight. See O. Hommel Co. v. Ferro, 659


                                11
court which decides the threshold determination of the product's

intended use based upon the parties' averments, and as part of

that determination, whether the injured party was an "intended

user."   Griggs, 981 F.2d at 1432-33.   Thus, the district court

was obliged to focus on the intent of the manufacturer of the

Playskool blocks in determining whether Matthew was an "intended

user" for purposes of resolving the summary judgment motion.    The

court properly reasoned that a "foreseeable user" such as Matthew

is not by strict definition coincident with an "intended user."

Logic and prudence lend weight to the court's unwillingness to

conflate the "intended user" with the "foreseeable user" in

strict liability, especially where children are concerned,

because so many varied and necessary products are hazards in the

unintended but foreseeable hands of children, but cannot be

"childproofed" without being rendered significantly less useful

or even useless.   This is not only true of inherently dangerous

products, but is, to some extent, true even of toy products.

Children are inherently vulnerable and in many circumstances, the

product design cannot replace the adult supervision of a child.

          Our concern here pertains to the fact that unlike the

circumstances in Griggs involving the use of a BIC lighter by a

three year old child -- clearly an unintended user -- here the

record shows a lack of clear indication of who exactly the

F.2d 340, 354 (3d Cir. 1981) ("[A] panel of this court cannot
overrule a prior panel precedent . . . . To the extent that [the
later case] is inconsistent with [the earlier case, the later
case] must be deemed without effect."), cert. denied, 455 U.S.
1017, 102 S. Ct. 1711 (1982); Pfeiffer v. School Bd. for Marion
Ctr. Area, 917 F.2d 779, 781 (3d Cir. 1990) (same).


                                12
manufacturer intended to use the Playskool building blocks.

Without sufficient evidence demonstrating that Playskool intended

that the "Ages 1-1/2 - 5" user recommendation on the box only

pertains to children who are chronologically 1-1/2 to 5 years old

rather than the broader category of children who are

developmentally 1-1/2 to 5 years old, we decline to accept the

district court's interpretation of the age guideline indicated on

the box as a strict chronological age category of intended users,

which would exclude Matthew.    It is possible that the indications

on the package refer more broadly to the physical and mental

aptitude of small children and do not contain any strict

chronological age implication.   A developmental age category

might be shown to include Matthew.

          We believe that the "intended user" must be determined

in the context of the knowledge and assumptions of the ordinary

consumer in the relevant community, at least, as here, in the

absence of explicit warnings.    Thus, although foreseeability is

not a term that should be associated with strict liability, the

concept, to the extent it implies an objective test, is not

entirely foreign to a strict liability analysis, although it is

applied in a more narrow sense than in negligence law.   The

court's inquiry into the intent of the manufacturer asks what the

consumer could reasonably have understood the manufacturer's

intent to be.   Unless the use giving rise to a strict liability

cause of action is a reasonably obvious misuse, or the user a

reasonably obvious unintended user, as was the case in Griggs, or

unless the particular use or user is clearly warned against, the


                                 13
manufacturer is not obviously exonerated.   We do not believe that

here Matthew's parents were clearly alerted to the fact that the

product presented a special danger to Matthew; nor do we believe

that it was objectively unreasonable for them to have assumed

that Matthew was an intended user.   The plaintiffs' experts

testified that the ordinary consumer in the present case would

interpret the age guideline to be a developmental age

recommendation.   Moreover, Charles Fischer, the defendants'

witness, testified that the "Ages 1-1/2 - 5" guideline

represented the stage in which "the child has the coordination

and will derive play value from [the blocks] . . . ," suggesting

that those years were chosen for their correspondence to a

child's physical and mental developmental age.   A. 301.

Furthermore, the evidence of record does not establish that the

blocks posed a substantially greater risk of choking a fifteen

month old than an eighteen month old; thus it may be that, even

assuming that Matthew was an unintended user from the subjective

perspective of the manufacturer, because it was not shown that

the block posed a substantially greater risk to the unintended

user, the manufacturer's subjective intent would not in justice

be dispositive.

          Because we are not convinced that there was sufficient

indication to a reasonable consumer that Matthew was not an

intended user, we will vacate and remand the summary judgment

order as it pertains to the claim of defective design.



                               IV.


                                14
          We turn finally to the remaining claims brought in both

strict liability and negligence on the theory that the defendants

failed to warn of the hazard potential of their product.     The

district court reasoned that the risk of a small child choking on

an object such as one of Playskool's smaller blocks is so

objectively obvious as to preclude the requirement for a

cautionary warning as a constituent of the product design, or the

creation of a duty to provide an express warning of that fact.

See Dauphin, 408 Pa. Super. 256, 596 A.2d 845, 850 (1991)

(Pennsylvania law imposes no duty to warn of obvious risks);

Mucowski v. Clark, 404 Pa. Super. 197, 590 A.2d 348 (1991)

(standard of obviousness of danger for claim in strict liability

is virtually identical for purposes of claim in negligence under

Pennsylvania's application of Restatement (Second) Torts § 388).

We will vacate the district court's ruling and remand on the

ground that the question of obviousness in this case was not a

proper subject of summary judgment.

             We note that although the standard of obviousness is

the same in strict liability and in negligence, the role of the

court differs according to the legal theory governing the cause

of action.    In strict liability, an inadequate warning is a

species of product defect, and hence is properly decided

initially by the court as a matter of law.     Mackowick, 525 Pa.
52, 575 A.2d 100, 102 (1990) ("The determinations of whether a

warning is adequate and whether a product is 'defective' due to

inadequate warnings are questions of law to be answered by the

trial judge.")    For a risk to be deemed obvious for purposes of a

                                  15
failure to warn claim, however, there must be general consensus

within the relevant community.    We cannot see how the purple

Playskool block can be deemed as a matter of law an obvious

safety hazard in the eyes of the relevant community, when

Playskool itself believed the block was safe for its intended

use.   Furthermore, Matthew's parents and his aunt, who purchased

the Playskool blocks for Matthew, testified that they did not

believe that the product posed an obvious threat of asphyxiation

to Matthew.   A. 200-01, 376, 442.    Moreover, the defendant did

not proffer any evidence tending to show that the danger of

asphyxiation was obvious.

           Under a negligence theory, although a failure to warn

claim may be defeated if the risk was obvious or known, the

question of obviousness is more properly submitted to a jury than

disposed on motion for summary judgment.    See Laaperi v. Sears,

Roebuck & Co., 787 F.2d 726, 731 (1st Cir. 1986) (whether danger

of smoke detector's malfunction was obvious is question for

jury); Mucowski v. Clark, 590 A.2d 348, 351 (Pa. Super. 1991)

(whether absence of warning is legal cause of injury is usually

matter for trier of fact; but court may decide where only

reasonable conclusion is that plaintiff's foolhardiness, not lack

of warning, legally caused injury).    The court's role in deciding

a motion for summary judgment is merely to decide whether there

is a genuine issue of material fact for trial.    The district

court's dismissal of Metzgar's negligent claim on the basis of

its determination that the danger to Matthew was obvious was



                                 16
tantamount to holding that no reasonable jury could conclude

otherwise.    Based on the evidence of record, we cannot agree.

                                  V.

             We will vacate and remand that portion of the district

court's summary judgment order of September 9, 1993 which

disposes of the plaintiffs' failure to warn claims brought in

negligence and strict liability.       We will also vacate that

portion of the district court's summary judgment order of

September 9, 1993 which disposes of the plaintiffs' defective

design claims brought in negligence and strict liability, and

remand for trial on the merits of the complaint.




                                  17
