J-S36027-15


                                  2015 PA Super 203

TREDD BARTON                                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

LOWE’S HOME CENTERS, INC.,
HUSQVARNA CONSUMER OUTDOOR
PRODUCTS, NA, INC. AND KOHLER, CO.

                            Appellees                    No. 1814 WDA 2014


                     Appeal from the Order October 3, 2014
              In the Court of Common Pleas of Washington County
                       Civil Division at No(s): 2011-6625

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

OPINION BY JENKINS, J.:                             FILED SEPTEMBER 24, 2015

        Tredd Barton brought this products liability action against Husqvarna

Consumer Outdoor Products, N.A., Inc. (“Husqvarna”), Kohler Co. (“Kohler”)

and Lowe’s Home Centers, Inc. (“Lowe’s”) (collectively “appellees”) after

Barton’s new lawnmower allegedly caught fire and burned down his barn.

The trial court sustained appellees’ preliminary objections to Barton’s third

amended complaint and dismissed it with prejudice for failure to state a

cause of action. Barton filed a timely appeal, and both Barton and the trial

court complied with Pa.R.A.P. 1925.            We reverse and remand for further

proceedings.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      Barton commenced this action in September 2011 via writ of

summons.      He reissued the writ in August 2012 and filed his original

complaint in April 2013. Lowe’s and Husqvarna filed preliminary objections

to Barton’s original complaint, prompting Barton to file an amended

complaint. The trial court sustained preliminary objections of Husqvarna and

Lowe’s to Barton’s amended complaint and directed Barton to file a second

amended complaint “alleg[ing] some basis upon which the [appellees’]

product was defective.”     Order, 11/15/13.     Subsequently, the trial court

sustained all appellees’ preliminary objections to Barton’s second amended

complaint and directed Barton to state his claims with greater specificity and

correct other defects.   Order, 4/9/14.

      Barton filed a third amended complaint (mislabeled as his “second”

amended complaint), which is the subject of this appeal. Barton alleged that

Husqvarna    manufactured    and   distributed   a   riding   lawnmower   which

contained an engine manufactured and provided by Kohler. Third Amended

Complaint, ¶¶ 11, 23.       On June 30, 2010, Lowe’s, a retailer, sold a

Husqvarna lawnmower to Barton. Id., ¶ 5. On July 3, 2010, Barton used

the lawnmower for the first time to cut grass on his property and then stored

the lawnmower in his barn. Id., ¶ 6. Inside the barn, “the engine and/or

the riding mower itself caught fire and/or exploded[,] causing the barn to

burn down ... [T]he engine ran too hot and melted the fuel lines on the




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mower, [which] cause[d] fuel to leak onto the hot engine or muffler and

therefore caused the fire ...”1         Id.    Based on these allegations, Barton

asserted claims of negligence, strict liability and breach of warranty against

each defendant.

       All appellees filed preliminary objections in the nature of demurrers.

The trial court sustained the preliminary objections and dismissed the third

amended complaint with prejudice. Barton filed a timely notice of appeal,

and both Barton and the trial court complied with Pa.R.A.P. 1925.

       Barton raises three issues in this appeal:

       Did the trial court commit an error of law or abuse of discretion
       in granting the appellees’ demurrers to [Barton’s] strict liability
       counts when [Barton] alleged, inter alia, that the Husqvarna
       lawnmower he purchased on June 30, 2010 caught fire and/or
       exploded after its first use on July 3, 2010, and when such fire
       and/or explosion was expressly attributed by [Barton] to the
       engine running too hot, which caused melting of the fuel lines
       and the leakage of fuel?

       Did the trial court commit an error of law or abuse of discretion
       in granting the appellees’ demurrers to [Barton’s] breach of
       warranty counts when [Barton] alleged, inter alia, that the
       Husqvarna lawnmower he purchased on June 30, 2010 caught
       fire and/or exploded after its first use on July 3, 2010, and when
       such fire and/or explosion would naturally render the Husqvarna
       incapable of mowing lawns and, thus, unfit for its intended
       purpose?


____________________________________________


1
  The trial court stated in its Pa.R.A.P. 1925(a) opinion that the fire occurred
at or around 1:00 a.m. on July 4, 2010, information that is not within the
third amended complaint. Therefore, we will not factor this detail into our
review of this appeal.



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     Did the trial court commit an error of law or abuse of discretion
     in granting the appellees’ demurrers to [Barton’s] negligence
     counts when [Barton] alleged, inter alia, that the appellees
     either manufactured, sold, assembled or otherwise placed the
     Husqvarna riding mower into the stream of commerce, thereby
     laying the factual predicate for the trial court’s recognition of the
     widely accepted inherent and implied duty all manufacturers and
     sellers owe to their consumers?

     Initially, we note the scope and standard of review applicable to this

appeal:

     A preliminary objection in the nature of a demurrer is properly
     granted where the contested pleading is legally insufficient.
     Preliminary objections in the nature of a demurrer require the
     court to resolve the issues solely on the basis of the pleadings;
     no testimony or other evidence outside of the complaint may be
     considered to dispose of the legal issues presented by the
     demurrer. All material facts set forth in the pleading and all
     inferences reasonably deducible therefrom must be admitted as
     true.

     In determining whether the trial court properly sustained
     preliminary objections, the appellate court must examine the
     averments in the complaint, together with the documents and
     exhibits attached thereto, in order to evaluate the sufficiency of
     the facts averred. The impetus of our inquiry is to determine the
     legal sufficiency of the complaint and whether the pleading
     would permit recovery if ultimately proven. This Court will
     reverse the trial court’s decision regarding preliminary objections
     only where there has been an error of law or abuse of discretion.
     When sustaining the trial court’s ruling will result in the denial of
     claim or a dismissal of suit, preliminary objections will be
     sustained only where the case i[s] free and clear of doubt.

     Thus, the question presented by the demurrer is whether, on the
     facts averred, the law says with certainty that no recovery is
     possible. Where a doubt exists as to whether a demurrer should
     be sustained, this doubt should be resolved in favor of overruling
     it.




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Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-09

(Pa.Super.2012) (citations omitted).

       Barton first argues that the third amended complaint states a cause of

action against the appellees for strict liability, because it alleges the

existence of a defect in the lawnmower.2 We agree.

       In Webb v. Zern, 220 A.2d 853 (Pa.1966), our Supreme Court

formally adopted Section 402A of the Restatement (Second) of Torts as the

law governing strict products liability actions. This section provides:

       (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.



____________________________________________


2
  The third amended complaint includes a strict liability claim against
Husqvarna in Count II, against Kohler in Count V and against Lowe’s in
Count VIII.



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Restatement (Second) of Torts, § 402A (1965).         To prevail in an action

under section 402A, the plaintiff must prove that the product was defective,

the defect existed when it left the defendant’s hands, and the defect caused

the harm.      Riley v. Warren Manufacturing, Inc., 688 A.2d 221, 224

(Pa.Super.1997).     The threshold inquiry in all products liability cases is

whether there is a defect. Id. This threshold

      can be crossed ... either by proving a breakdown in the machine
      or a component thereof, traditionally known as a manufacturing
      defect; or in cases where there is no breakdown, by proving that
      the design of the machine results in an unreasonably dangerous
      product, traditionally known as a design defect.

Id. A third doctrine recognized under section 402A is the “failure-to-warn”

theory, under which the plaintiff may recover for the defendant’s failure to

provide adequate instructions to the user on how to use the product as the

product was designed. Weiner v. American Honda Motor Co., Inc., 718

A.2d 305, 309 (Pa.Super.1998).        “To succeed on a claim of inadequate or

lack of warning, a plaintiff must prove that the lack of warning rendered the

product unreasonably dangerous and that it was the proximate cause of the

injury.” Id.

      The trial court gave the following reasons for dismissing Barton’s strict

liability claims against all appellees:

      Despite this [c]ourt’s order [sustaining preliminary objections to
      the second amended complaint] directing [Barton] to plead the
      precise nature of the defect -- whether it was a defect in
      manufacture or design -- Barton has pled only his ‘belief’ that
      the engine runs too hot[,] causing the fuel lines to leak. To
      begin, the alleged overheating of the engine is not a defect -- it

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      is a symptom that might indicate a defect, but could also
      indicate other problems unrelated to a manufacturing or design
      defect such as insufficient oil levels or a clogged air intake. At
      any rate, such an averment, even if construed as alleging a
      defect, is insufficient as a matter of law to sustain a products
      liability action because, under Riley, Barton must specifically
      plead either a manufacturing or design defect, and by failing to
      do so -- even after four amendments -- his claim must be
      dismissed as legally insufficient.

Pa.R.A.P. 1925(a) Opinion, p. 6.

      The trial court applied too onerous a standard to Barton’s third

amended complaint.     The trial court seems to suggest that a plaintiff can

only have a design defect action or a manufacturing defect action under

section 402A, but not both. In fact, it is accepted practice for a plaintiff to

proceed under more than one defect theory.           See, e.g., Sikkelee v.

Precision     Airmotive    Corporation,     876    F.Supp.2d    479,   490-92

(M.D.Pa.2012) (applying Pennsylvania law) (plaintiff adduced sufficient

evidence to proceed to jury on section 402A claims for both design defect

and failure to warn); Giehl v. Terex Utilities, 2012 WL 1183719, *9-10

(M.D.Pa., Apr.9, 2012) (applying Pennsylvania law) (denying motion to

dismiss design defect and manufacturing defect claims).

      We conclude that Barton’s third amended complaint expressly alleges

design, manufacturing, and failure-to-warn defects against the appellees.

The factual averments of this pleading, accepted as true, demonstrate that

(1) Barton purchased a Husqvarna lawnmower (with a Kohler engine) from

Lowe’s; (2) just three days later, he used the lawnmower for the first time to


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cut grass on his property and then stored the lawnmower in his barn; (3)

later that day, the engine or mower caught fire and/or exploded inside the

barn, because the engine ran too hot and melted the fuel lines, causing fuel

to leak onto the hot engine or muffler; and (4) the barn burned down.

Based on these         factual averments, Barton explicitly asserts design,

manufacturing and failure-to-warn defects against Husqvarna for failing to

“design and/or utilize proper designs or procedures” for “the manufacture,

assembly and sale of the riding mower (excluding the engine)”, and failing to

adequately “inform or warn” users of the riding mower as to proper

maintenance, inspection, assembly and repair. Third Amended Complaint, ¶

9(a, e, f).    Similarly, Barton explicitly asserts design, manufacturing and

failure-to-warn defects against Kohler for failing to “design and/or utilize

proper designs or procedures” for “the manufacture, assembly and sale of

the engine”, and failing to adequately “inform or warn” users of the riding

mower as to proper maintenance, inspection, assembly and repair of the

engine. Id., ¶ 21(a, e, f). In addition, Barton asserts manufacturing and

failure-to-warn defects against Lowe’s for “failing to properly assemble and

inspect the riding mower, including the engine,” and failing to warn

purchasers of the mower’s inherent design defect, including those in the

engine. Id., ¶ 30(a, c).3

____________________________________________


3
    Although paragraphs 9, 21 and 30 are within the negligence counts of the
(Footnote Continued Next Page)


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      These allegations are enough to survive preliminary objections.

Experience teaches that when a brand new lawnmower catches fire or

explodes after its first use, it could be the result of a defect in its design or

manufacture, or in the failure of the retailer or manufacturer to provide

proper warnings as to its use or maintenance. A more precise identification

of the design defect, manufacturing defect or failure-to-warn defect is a

matter for discovery and reports from experts (and perhaps a fire marshal).

But in a complaint, it is only necessary to state the material facts “in a

concise and summary form.” Pa.R.Civ.P. 1019(a). Barton’s third amended

complaint accomplishes this task by furnishing a concise overview of the

defects that he intends to prove.

      While the trial court correctly observes that the fire or explosion might

have resulted from causes unrelated to a manufacturing or design defect,

“such as insufficient oil levels or a clogged air intake,” Pa.R.A.P. 1925(b)

opinion, at 6, this is no reason to dismiss Barton’s case at the pleadings

stage. The plaintiff need not rule out all other possible causes of harm in his

complaint; he need only allege a cause (or causes) of harm for which the

defendant is liable under the law.               Barton fulfills this mission by alleging

concisely that the appellees are liable under section 402A for various defects

in the lawnmower.         The possibility that this accident resulted from other
                       _______________________
(Footnote Continued)

third amended complaint, Barton incorporates them by reference into his
strict liability counts. Third Amended Complaint, ¶¶ 10, 22, 31.



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causes, or that the lawnmower had no defects at all, are issues for the

parties to litigate during discovery, at summary judgment, and, if necessary,

at trial.4




____________________________________________


4
  Several other issues require brief attention. Barton argues in his brief that
he has the right to proceed under the so-called “malfunction” theory of strict
liability, under which the occurrence of a malfunction of machinery in the
absence of abnormal use and reasonable secondary causes is circumstantial
evidence of a defect within the meaning of section 402A. Barnish v. KWI
Building Co., 980 A.2d 535, 541-42 (Pa.2009). Barton has waived his
reliance on the malfunction theory by failing to raise it below in response to
the appellees’ preliminary objections. Cornerstone Land Development
Co. of Pittsburgh LLC v. Wadwell Group, 959 A.2d 1264, 1270
(Pa.Super.2008) (failure to raise argument in brief in opposition to
preliminary objections results in waiver on appeal). Barton also has waived
this issue by failing to raise it in his Pa.R.A.P. 1925(b) statement.
Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa.Super.2006) (failure to
include issue in Rule 1925(b) statement waives that issue for purposes of
appellate review). We express no opinion whether Barton has the right on
remand to file another amended complaint which adds the malfunction
theory to his section 402A counts. We leave it to the trial court to address
this question if Barton elects to raise it.

Second, in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa.2014), our
Supreme Court reaffirmed the viability of section 402A and declined to adopt
the Restatement (Third) of Torts’ treatment of strict products liability. The
appellees do not contend that Tincher provides any support for their
position. Indeed, Kohler states that “the question of retroactivity of Tincher
is irrelevant to the issues of this case.” Brief For Kohler, at 14 n. 2.
Because the appellees do not rely on Tincher, we will not examine whether
it has any bearing on this case. The parties are free to address Tincher’s
relevance, or lack thereof, on remand.



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       In Barton’s second argument on appeal, he contends that the third

amended complaint states a cause of action against the appellees for breach

of warranty.5 We agree.

       Under Pennsylvania law, contract claims for breach of the implied

warranty of merchantability and fitness for a particular purpose may also fall

within the sphere of products liability actions. French v. Commonwealth

Associates, Inc., 980 A.2d 623, 633 (Pa.Super.2009). In cases involving a

breach of the implied warranty of merchantability, any party injured by the

defective product may sue any party in the distributive chain. Id.

       Implied warranties are implied by law to protect buyers from loss

where goods purchased are below commercial standards. Goodman v. PPG

Industries, Inc., 849 A.2d 1239, 1245 (Pa.Super.2004).              The implied

warranty of merchantability is codified in Pennsylvania’s Commercial Code

and provides: “[A] warranty that the goods shall be merchantable is implied

in a contract for their sale if the seller is a merchant with respect to goods of

that kind.” 13 Pa.C.S. § 2314(a). Section 2314 prescribes:

       Goods to be merchantable must be at least such as:

       (1) pass without objection in the trade under the contract
       description;
       (2) in the case of fungible goods, are of fair average quality
       within the description;
____________________________________________


5
 The third amended complaint includes a breach of warranty claim against
Husqvarna in Count III, against Kohler in Count VI and against Lowe’s in
Count IX.



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      (3) are fit for the ordinary purposes for which such goods are
      used;
      (4) run, within the variations permitted by the agreement, of
      even kind, quality and quantity within each unit and among all
      units involved;
      (5) are adequately contained, packaged, and labeled as the
      agreement may require; and
      (6) conform to the promises or affirmations of fact made on the
      container or label if any.

13 Pa.C.S. § 2314(b). These six factors

      do[] not purport to exhaust the meaning of ‘merchantable’ nor to
      negate any of its attributes not specifically mentioned in the text
      of the statute, but arising by usage of trade or through case law.
      The language used is ‘must be at least such as ...,’ and the
      intention is to leave open other possible attributes of
      merchantability.

13 Pa.C.S. § 2314, Comment, ¶ 6.

      The concept of merchantability does not require that the goods be of

the best quality or the “best obtainable,” but it does require that

      they have an inherent soundness which makes them suitable for
      the purpose for which they are designed, that they be free from
      significant defects, that they perform in the way that goods of
      that kind should perform, and that they be of reasonable quality
      within expected variations and for the ordinary purpose for which
      they are used.

Gall by Gall v. Allegheny County Health Department, 555 A.2d 786,

789 (Pa.1989) (citations omitted).

      The third amended complaint alleges that the lawnmower was not

merchantable under section 2314(b) because it burst into flames after its

first use. Third Amended Complaint, ¶¶ 19, 28, 37. More specifically, the

third amended complaint alleges that the lawnmower was “not of fair


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average quality”, “not fit for its ordinary purpose,” and not of “even kind and

quality” in violation of subsections 2314(b)(2), (3) and (4), respectively.

The trial court justified its dismissal of these claims as follows:

      Barton has not pled that the mower was unfit to cut grass, the
      ordinary purpose for which such a good is used ... He also has
      not pled that the mower suffers from any legally cognizable
      defect, beyond his belief that the engine runs too hot. Rather,
      he asks us to infer that the mower was unmerchantable because
      his barn burned down while the mower was inside, even though
      he has not identified a particular defect to which he can attribute
      the blaze. Because he has failed to plead that the mower was
      defective or unfit for its ordinary purpose, this claim must be
      dismissed as legally insufficient.

Pa.R.A.P. 1925(a) Opinion, at 7.

      We detect two errors in this analysis. First, as discussed in the context

of Barton’s section 402A claims, the third amended complaint adequately

identifies   design,   manufacturing     and    failure-to-warn   defects   in   the

lawnmower.      Second, the trial court defines the lawnmower’s “ordinary

purpose” too narrowly. Implicit in this standard is that a good “perform[s] in

the way that goods of that kind should perform” and is “of reasonable

quality.” Gall, 555 A.2d at 789. It certainly is reasonable for a purchaser to

expect a lawnmower to cut grass efficiently, but it also is reasonable to

expect that it will not burst into flames after its first day of use, as it sits idly

in the barn. The “ordinary purpose” of a lawnmower is to cut grass without

self-destructing after normal use.      Under the circumstances alleged in the

third amended complaint, we conclude that Barton states a valid cause of

action for breach of warranty.

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       In his final argument, Barton contends that the third amended

complaint states a cause of action against the appellees for negligence.6 We

agree in part.

       The third amended complaint alleges that Kohler was negligent with

regard to the lawnmower engine for failing to use proper design procedures,

failing to use proper manufacturing procedures, failing to test the component

parts, and failing to warn purchasers or ultimate users about proper

procedures for assembling, inspecting, repairing and maintaining the

lawnmower.       The third amended complaint makes the same allegations

against Husqvarna with regard to all components of the lawnmower other

than the engine. Finally, the third amended complaint alleges that Lowe’s

was negligent for failing to include proper instructions as to the lawnmower’s

use and maintenance. The trial court held that the third amended complaint

failed to identify any duty that these appellees breached.

       In one respect, the trial court is correct: the claims against Husqvarna

and Kohler for negligent failure to test the product are not viable, because

such claims are encompassed within either a claim for strict liability or

negligence in design. Viguers v. Philip Morris USA, Inc., 837 A.2d 534,

541 (Pa.Super.2003).

____________________________________________


6
  The third amended complaint includes a negligence claim against
Husqvarna in Count I, against Kohler in Count IV and against Lowe’s in
Count VII.



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      We turn to Barton’s claims of negligent design and negligent

manufacturing against Husqvarna and Kohler.        To prevail in a negligence

action, the plaintiff must show that the defendant had a duty to conform to a

certain standard of conduct, that the defendant breached that duty, that

such breach caused the injury in question, and actual loss or damage.

Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa.2003)). The court

must weigh five factors in determining whether the defendant has a duty to

the plaintiff: (1) the relationships between the parties; (2) the social utility

of the defendant’s conduct; (3) the nature of the risk imposed and

foreseeability of the harm incurred; (4) the consequences of imposing a duty

upon the defendant; and (5) the overall public interest in the proposed

solution. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa.2000). No one of

these factors is dispositive. Rather, “a duty will be found to exist where the

balance of these factors weighs in favor of placing such a burden on a

defendant.” Phillips, 841 A.2d at 1008–09.

      With regard to Husqvarna and Kohler, we evaluate the five Althaus

factors as follows.   First, there is a relationship between Husqvarna and

Kohler, on one hand, and Barton on the other, because Barton is the

purchaser of the lawnmower (and engine).         This weighs in favor of the

existence of a duty to Barton.     Phillips, 841 A.2d at 1009 (in action for

negligent design of butane lighter, “there was clearly a relationship between

Robyn, as the purchaser of the butane lighter, and [the manufacturers].


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Thus, as to the negligence claim springing from Robyn’s death, this prong

weighs in favor of finding a duty”).

       Second, the utility of lawnmowers is obvious, but a lawnmower

outfitted with safeguards against overheating has even greater utility. This

weighs in favor of the existence of a duty to Barton. Cf. Phillips, 841 A.2d

at 1010 (social utility of butane lighter was clear, but lighter which

prevented small children from creating a flame would have even greater

utility).

       The third prong of the duty analysis requires the court to balance the

social utility of a design against the extent and foreseeability of the harm

that would result in its absence. Althaus, 756 A.2d at 1170. “A duty arises

only   when    one   engages     in   conduct   which    foreseeably   creates    an

unreasonable risk of harm to others.” R.W. v. Manzek, 888 A.2d 740, 747

(Pa.2005).    Given Barton’s allegations that the lawnmower caught fire or

exploded after its first use while it stood in a barn, it is fair to say, at least at

the pleadings stage, that the design or manufacture of the lawnmower or

engine foreseeably creates an unreasonable risk of harm to others.               This

weighs in favor of the existence of a duty to Barton.

       The fourth Althaus factor requires us to consider the consequences of

imposing a duty on Husqvarna or Kohler. At least at the pleadings stage, it

seems reasonable to conclude that alternative design or manufacturing

safeguards against overheating would not be cost-prohibitive, and that these


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appellees could spread the additional costs to its consumers. This weighs in

favor of the existence of a duty to Barton.

      The fifth Althaus factor, the public interest, weighs in favor of the

existence of a duty to Barton, because the public has a strong interest in

minimizing the risk of harm that lawnmowers present to persons and

property.

      Because all five factors favor the existence of a duty to Barton, the

third amended complaint adequately alleges that Husqvarna has a duty to

design and manufacture a safe lawnmower, and Kohler has a duty to design

and manufacture a safe engine.

      For much the same reasons, the third amended complaint adequately

alleges that all appellees have a duty to include instructions as to the

lawnmower’s proper use and maintenance. There is a relationship between

the appellees on the one hand and Barton, as the purchaser, on the other.

A lawnmower with instructions as to proper use and maintenance has

greater utility than a lawnmower without such instructions. The lack of such

instructions foreseeably creates a risk of harm to others through fire loss.

The cost to the appellees of including instructions is not great.     Finally,

inclusion of instructions will benefit the public’s interest in minimizing the

risk of harm that lawnmowers present to persons and property.            See

generally Lance v. Wyeth, 85 A.3d 434, 459-60 (Pa.2014) (“the law of

negligence establishes a duty, on the part of manufacturers, which can be


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viewed on a continuum from the requirements of: a warning of dangers,

through a stronger warning if justified by the known risks, through non-

marketing or discontinuance of marketing when it becomes or should

become known that the product simply should not be used in light of its

relative risks. We agree ... that this entire continuum is within the scope of

the general framework of the applicable duty of care”).

     While the third amended complaint adequately pleads breach of the

foregoing duties of care, this does not foreclose the appellees from

challenging the existence of a duty of care, or a breach thereof, at summary

judgment or at trial.   Phillips held that the butane lighter presented a

foreseeable risk of harm, the third Althaus factor, based in part on evidence

adduced during discovery that fires caused by children playing with butane

lighters caused 120 deaths and 750 other injuries per year. Phillips, 840

A.2d at 1009.     The Phillips court’s focus on this detail indicates that

evidence submitted during discovery or trial potentially can affect the

determination of whether the appellees have a duty of care towards Barton

or whether they breach this duty.

      For these reasons, we reverse the order sustaining the appellees’

preliminary objections and dismissing the third amended complaint with

prejudice, and we remand for further proceedings in accordance with this

opinion.




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      Order reversed. Case remanded for further proceedings in accordance

with this opinion. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2015




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