                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-1996

LeJeune v. Bliss-Salem, Inc.
Precedential or Non-Precedential:

Docket 95-1741




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Recommended Citation
"LeJeune v. Bliss-Salem, Inc." (1996). 1996 Decisions. Paper 148.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/148


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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               __________

                            No. 95-1741
                             __________

               EDWARD C. LEJEUNE; DEBORAH LEJEUNE,
                                                            Appellants
                                   v.

              BLISS-SALEM, INC.; E.W. BLISS COMPANY;
                      GENERAL ELECTRIC CO.,
                                                            Appellees
              ______________________________________

          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                 D.C. Civil Action No. 94-cv-06729
               _____________________________________

                     Argued:     March 19, 1996

Before:   BECKER, McKEE and McKAY, Circuit Judges

(Filed    June 10, l996)

                           Michael J. McCaney, Jr. (ARGUED)
                           Heller, Kapustin, Gershman & Vogel
                           486 Norristown Road, Suite 230
                           Blue Bell, PA 19422

                           Attorney for appellant


                           Keith D. Heinold (ARGUED)
                           Craig S. Hudson

                           Marshall, Dennehey, Warner,
                             Coleman & Goggin
                           1845 Walnut Street
                           Philadelphia, PA 19103

                           Attorneys for appellee General

                                            Electric Co.


                           John R. McHaffie (ARGUED)
                           Frayne & Hatzell
                           2005 Market Street, Suite 3150
                           Philadelphia, PA 19103
                         Attorney for appellee Bliss-
                                                    Salem, Inc.

                         _______________

                        OPINION OF THE COURT
                          _______________

McKAY, Circuit Judge.

         Appellants Edward and Deborah LeJeune appeal from the district
court's
grant of summary judgment for the Appellees Bliss-Salem, Inc. and General
Electric Co.
The LeJeunes brought this negligence and strict products liability action
against
Appellees when Mr. Lejeune was injured while working on a piece of
machinery
Appellees had repaired. For the reasons that follow, we affirm the
district court.

                                I.
         Mr. LeJeune, a Pennsylvania resident, worked at a Delaware steel
mill as an
"oiler" or "lube man." As such, he was responsible for checking the oil
and lubrication of
various machines. Mr. LeJeune's accident occurred on a piece of machinery
known as a
"table." Tables consist of a frame which holds large steel cylinders
weighing two to five
tons each. The cylinders, powered by motors, are rotated in order to
transport hot steel
slabs from one processing machine to another. Gaps, approximately two
inches in width,
exist between cylinders. Mr. LeJeune, believing a certain table was
deactivated, jumped
on top of the cylinders in order to do his maintenance work. The
cylinders were
activated, and, as they began to roll, Mr. LeJeune was caught in the gap
between them.
His injuries were serious and extensive.
         Appellees' involvement with the steel mill began when CitiSteel,
the owner
of the mill, hired Appellees in 1988 to refurbish the steel mill
machinery. The mill had
been shut down for two years and had deteriorated into a serious state of
disrepair.
General Electric employees were on-site for eight months repairing
equipment. Some
refurbishing work took place at a General Electric shop in Pennsylvania.
Bliss-Salem
performed most of its refurbishing work at its Ohio plant. Appellees
finished their work
at the steel mill approximately three years before Mr. LeJeune's accident
occurred.
         Basing their claim on tort theories of negligence and strict
products liability,
Appellants argue that the contracts between CitiSteel and Appellees
created a duty
requiring Appellees to redesign the steel mill equipment, eliminating any
safety problems.
They argue that this duty included a duty to warn of any hazards inherent
in the
machinery. Appellees argue that the contracts simply required them to put
the mill
machinery back into working order and that any duty on their part did not
extend to
reevaluating the safety aspects of the various machinery involved.

                               II.
         Before we address the tort issues in this case, we must first
decide which
state's law applies. In choosing which law applies, a federal court
sitting in diversity
must apply the choice-of-law rules of the forum state. Klaxon v. Stentor
Electric Mfg.
Co., 313 U.S. 487, 496 (1941); Shuder v. McDonald's Corp., 859 F.2d 266,
269 (3d Cir.
1988). Appellants brought this action in the United States District Court
for the Eastern
District of Pennsylvania. Thus, we must apply Pennsylvania's choice-of-
law rules.
         Pennsylvania choice-of-law analysis consists of two parts.
First, the court
must look to see whether a false conflict exists. Then, if there is no
false conflict, the
court determines which state has the greater interest in the application
of its law. SeeCipolla v. Shaposka, 439 Pa. 563, 565 (1970); Lacey v.
Cessna Aircraft Co., 932 F.2d
170, 187 & n.15 (3d Cir. 1991) (applying Pennsylvania choice-of-law rules
for purposes
of forum non conveniens analysis). A false conflict exists where "only
one jurisdiction's
governmental interests would be impaired by the application of the other
jurisdiction's
law." Lacey, 932 F.2d at 187. Here, no false conflict exists.
Pennsylvania law
recognizes strict products liability to protect its citizens from
defective products and to
encourage manufacturers to produce safe products. Delaware law, however,
does not
recognize strict products liability based on the rationale that such
claims are preempted by
the Uniform Commercial Code. Cline v. Prowler Indus. of Maryland, Inc.,
418 A.2d 968
(Del. 1980). Applying Delaware law would impair Pennsylvania's interest
in protecting
its citizen, Mr. LeJeune.
         On the other hand, Delaware's interests would be impaired if
Pennsylvania
law were applied. Delaware has an interest in prescribing the rules
governing torts
occurring nonfortuitously within its borders. Under Pennsylvania choice
of law analysis,
a false conflict exists "where the accident is fortuitous and the state
where the accident
occurred has no interest in the regulatory standard at issue." Reyno v.
Piper Aircraft Co.,
630 F.2d 149, 170 (3d Cir. 1980), rev'd on other grounds, 454 U.S. 235
(1981); accordKuchinic v. McGrory, 422 Pa. 620, 624 (1966) (holding that
false conflict existed
because Georgia had no recognizable interest when accident's occurrence in
that state was
wholly fortuitous).
         Here the occurrence of the accident in Delaware was not
fortuitous.
Delaware was the site of the accident (as well as the place where much of
the alleged
negligent conduct took place) because of the steel mill's fixed location
in that state. If
Pennsylvania law were applied, Delaware's interest in regulating
purposeful economic
activity within its borders would be impaired. We cannot agree with
Appellants' assertion
that Delaware has no interest in this case simply because Appellees have
limited contacts
with that state. A state's interest in enforcing its tort law is not
constrained to protecting
residents from harm or suit. See Schmidt v. Duo-Fast, Inc., No. 94-6541,
1995 WL
422681, at *1-2 (E.D. Pa. July 5, 1995) (holding that New Jersey law
applied when New
Jersey was the nonfortuitous site of accident even though defendant, which
benefited
from New Jersey law, was Illinois corporation). A state could have a host
of reasons for
limiting liability, including encouraging economic activity in the state
(such as the
rebuilding of the steel mill), and lowering costs to consumers (such as
CitiSteel). Also
without merit is Appellants' argument that, because Delaware's rejection
of strict liability
is based on its minority view that the Uniform Commercial Code preempts
such a claim,
its rejection of strict liability reflects no policy choice by the state.
Delaware's decision to
adopt and maintain the Uniform Commercial Code in light of this
interpretation is
obviously a policy choice. Thus, a false conflict does not exist in this
case.
           We must next examine which state has a greater interest in having
its law
applied.    In making this determination, we look
           to see what contacts each state has with the accident, the
           contacts being relevant only if they relate to the "policies and
           interest underlying the particular issue before the court."
           When doing this it must be remembered that a mere counting
           of contacts is not what is involved. The weight of a particular
           state's contacts must be measured on a qualitative rather than
           quantitative scale.

Cipolla v. Shaposka, 439 Pa. 563, 566 (1970) (citations omitted). In this
case,
Pennsylvania's only contact with the accident is the fact that Mr. LeJeune
is a
Pennsylvania resident and that a small portion of General Electric's work
took place at a
shop in Pennsylvania. The Delaware contacts, however, are more
substantial. The
accident occurred in Delaware, and most of the alleged negligent conduct
took place there
as well. Additionally, as pointed out before, the accident's occurrence
in Delaware was
not fortuitous. Where the site of an accident is not fortuitous, "the
place of injury
assumes much greater importance, and in some instances may be
determinative." Shields
v. Consolidated Rail Corp., 810 F.2d 397, 401 (3d Cir. 1987); Shuder v.
McDonald's
Corp., 859 F.2d 266, 272 (3d Cir. 1988). Looking at these contacts
qualitatively, we
believe that Delaware has the greater interest in having its law applied.
Delaware's
contacts with the accident relate to substantive aspects of the case such
as how and why
certain conduct occurred. Pennsylvania's contact arises not from
substantive matters in
the litigation but rather from Mr. LeJeune's residence. Thus, we hold
that Delaware law
applies to this case.

                               III.
         Applying Delaware law, we can immediately dispose of Appellants'
product liability claim. Appellants' claim fails because Delaware does
not recognize
strict products liability. Cline v. Prowler Indus. of Maryland, Inc., 418
A.2d 968 (Del.
1980). Thus, we proceed to consider Appellants' remaining claim of
negligence.
Essentially, the parties dispute whether Appellees owed any duty to Mr.
LeJeune.
Appellants propose several theories under which a duty would arise in this
case. They
argue that a duty was created by the contracts between the steel mill
owner and
Appellees, by the foreseeability of harm, and by public policy.
Appellants also argue that
a duty was created under Restatement Second of Torts   404. Because these
theories of
liability are all predicated on a duty, and because the only way the
Appellees could have
created a duty in this case is through contract, we believe that a
discussion of duty under
section 404 will dispose of all the claims brought by Appellants. Where,
as here, a
contract is unambiguous, it is appropriate for the court to determine its
meaning as a
matter of law at the summary judgment stage. See Pellaton v. Bank of New
York, 592
A.2d 473, 478 (Del. 1991).
         Before addressing section 404, we point out that the Delaware
Supreme
Court has never addressed the applicability of this particular section of
the Restatement
Second of Torts. We do not need to decide, however, whether the court
would adopt the
section because, even assuming that it would, we do not believe it creates
a duty in this
case. Section 404 provides:
         One who as an independent contractor negligently makes,
         rebuilds, or repairs a chattel for another is subject to the same
         liability as that imposed upon negligent manufacturers of
         chattels.

Although this language sweeps broadly, it does not impose liability on an
independent
contractor for work which the independent contractor did not undertake to
perform. Seesection 404 Comment a (independent contractor required to do
competently everything
"which he undertakes . . . ."). Rather, it is the scope of the
undertaking, as defined in the
contract, which gives shape to the independent contractor's duty in tort.
         Appellants argue that the contracts entered into by Appellees
required them
either to warn of safety defects in the machinery or to redesign the
machinery in such a
way as to eliminate potential hazards. Appellants point to broad language
in the contracts
such as "General Electric will check the delineated apparatus, analyze,
and report
findings" and "[w]hereas [CitiSteel] desires to refurbish and revamp the
equipment . . .
and [Bliss-Salem] is qualified and willing to do the work as specified . .
. ." App., Vol. II,
at 583 (General Electric contract); id. at 628 (Bliss-Salem contract). In
particular,
Appellants make much of the term "revamp" in the contract. Because
Webster's
Unabridged Dictionary defines that term as "to renovate, redo, or revise,"
they argue,
Appellees assumed a duty to redesign defective parts of the plate mill.
However, not only
does "renovate, redo, or revise" not necessarily mean "redesign," our
version of Webster'slists "to put in repair" as the first definition of
"revamp." This definition is entirely
consistent with Appellees defense: that their undertaking was limited to
"repairing" the
mill. In any event, the contract simply states, as a preamble, that
Appellant "desires to
refurbish and revamp the equipment."   The scope of work that Appellee (as
opposed to
Appellant) agreed to undertake (as opposed to merely desired) is described
later in Article
I.
         The contracts contain, moreover, much more specific language
indicating
that Appellees were hired to do repair work only. Each contract fills
several pages with
detailed descriptions of repair work for each machine. For example, the
General Electric
contract provides the following "scope" for repair of a water pump:
         External aluminum oxide blast clean.
         Disassemble, clean & visual plus dimensional     inspection. *
         Assemble (new bearings, gaskets, "O" rings, bolts).
         Report.

App., Vol. II, at 589 (General Electric contract). The Bliss-Salem
contract is full of
similar language. Appellants do not point us to any language in the
contracts which
specifically required Appellees to redesign a machine or to warn of safety
defects.
Although the Bliss-Salem contract does contain a few provisions which call
for the
redesign of particular machine parts, Appellants have failed to alert the
court to any
provisions which required the redesign of the machinery involved in Mr.
LeJeune's
accident. No language in either contract specifically addresses the
safety aspects of any
piece of machinery. Thus, it is clear from reading the contracts that
Appellees undertook
to repair rather than redesign the steel mill machinery.
         Appellants also attempt to show that Appellees undertook to do
more than
simple repair work by citing to the following deposition excerpt of Mr.
Hearn, a CitiSteel
official:
         Q.   Now let me ask you if the original specification was
         deficient, would you expect the contractor to tell you that?
        . . . .

        A.   Yes. If there was something deficient about a piece of
        equipment, I would expect somebody to tell me. I'm not an
        engineer myself. And if we sent a piece of equipment out to
        Bliss or GE was here and they saw something and said, "Joe,
        this is not designed correctly, we recommend you don't do
        this," fine, I listen.

App., Vol. I, at 176 (Hearn deposition excerpt). This statement is at
best ambiguous
concerning Appellees' supposed duty to redesign and warn about safety
aspects of the
machinery. In fact, Mr. Hearn also stated in his deposition that
Appellees were not
required to evaluate safety procedures and were only required to bring
machinery back to
its original working order. Id. at 172-73. Even were we to construe Mr.
Hearn's
statement as Appellants' wish, it would be clearly contradicted by the
clear intent of the
parties as expressed in the contracts themselves. Mr. Hearn's statement
does not change
the fact that the contracts did not require Appellees to concern
themselves with safety
design. Due to the limited nature of the contractual undertaking in this
case, no duty in
tort arose on the part of Appellees to redesign safety features of the
equipment or to warn
of potential hazards.
         Even where the scope of an independent contractor's undertaking
does not
give rise to liability for design problems in a product, a duty may still
arise if the product
is "so obviously bad that a competent contractor would realize that there
was a grave
chance that his product would be dangerously unsafe." Section 404 comment
a.
Appellants argue that General Electric was aware of the safety problems
inherent in the
machinery they were fixing. They point to the fact that an accident
similar to Mr.
LeJeune's almost occurred while General Electric employees were testing
equipment.
General Electric averted an accident by simply looking to see if anyone
was on the
equipment before energizing it. We do not believe that this single
incident, in which no
accident occurred, was so "obviously bad" that it would give rise to a
duty not
contemplated in the original contract.
         The judgment of the district court will be affirmed.
                     _______________________
