                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2009

Berrier v. Simplicity Mfg Inc
Precedential or Non-Precedential: Precedential

Docket No. 05-3621




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                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No: 05-3621


WAYNE BERRIER; BRENDA GREGG, in their own right
 and as parents and natural guardians of Ashley Berrier, a
                          minor,

                            Appellants


                            v.

        SIMPLICITY MANUFACTURING, INC.,

                            Third-Party Plaintiff

                            v.

                    SUSIE SHOFF;
                    MELVIN SHOFF,

                           Third-Party Defendants


       Appeal from the United States District Court
        for The Eastern District of Pennsylvania
            (Civil Action No. 04-cv-00097)
           District Court: Hon. Legrome D. Davis


                 Argued: January 8, 2007

          Before: McKEE, AMBRO, and FISHER
                     Circuit Judges

              (Opinion filed: April 21, 2009)
                _____________________

ALAN M FELDMAN, ESQ. (Argued)
DANIEL J. MANN, ESQ.
Feldman, Shepherd, Wohlgelernter,
Tanner, & Weinstock
1845 Walnut Street, 25th Floor
Philadelphia, PA 19103
Attorneys for Plaintiffs - Appellants

SHANIN SPECTER, ESQ. (Argued)
DAVID J. CAPUTO, ESQ.
Kline & Specter
1525 Locust Street, 19th Floor
Philadelphia, PA 19102
Attorneys for Amicus Curiae
The Pennsylvania Trial Lawyers
Association

NANCY SHANE RAPPAPORT, ESQ. (Argued)
JAMES M. BROGAN, ESQ.
DLA Piper Rudnick Gray Cray US, LLP

                             2
One Liberty Place, Suite 4900
1650 Market Street
Philadelphia, PA 19103

DONALD H. CARLSON, ESQ.
Crivello, Carlson & Mentkowski
710 North Plankinton Avenue, Suite
Milwaukee, WI 53203
Attorneys for Appellee Simplicity Manufacturing, Inc.

JAMES M. BECK, ESQ.
Dechert
2929 Arch Street, 18th Floor, Cira Centre
Philadelphia, PA 19104

HUGH F. YOUNG, JR., ESQ.
Of Counsel:
Product Liability Advisory Council, Inc.
1850 Centennial Park Drive, Suite 501
Reston, VA 22091
Attorneys for Amicus Curiae Product Liability
Advisory Council

JOHN F. LEWIS, ESQ.
Swartz Campbell
50 South 16th Street
Two Liberty Place, 28th Floor
Philadelphia, PA 19102
Attorney for Third Parties - Appellees Susie Shoff and
Melvin Shoff



                                3
                           OPINION




McKEE, Circuit Judge.

        The primary issue in this appeal is whether
Pennsylvania’s strict products liability law extends to a child
who was injured when her grandfather backed over her foot
while using a riding mower that lacked “back-over”
protection. The Pennsylvania Supreme Court has never
expressly determined if one who is merely a bystander and
not a user of a product can bring a products liability claim
against a manufacturer to recover for injuries that occur while
an intended user is using the manufacturer’s product. We
predict that if the Pennsylvania Supreme Court were
confronted with this issue, it would adopt the Restatement
(Third) of Torts, §§ 1 and 2, and thereby afford bystanders a
cause of action in strict liability under the circumstances
here.1 Accordingly, we will reverse the district court’s grant
of summary judgment in favor of the manufacturer on the
strict products liability claim. We will also reverse the district
court’s grant of summary judgment in favor of the
manufacturer on the plaintiffs’ negligence claim.

   1
    For convenience, we will frequently refer to the
Pennsylvania Supreme Court as the “Supreme Court,” or the
“Court.”

                                4
                          I. FACTS

                       A. The Accident

        Wayne Berrier and Brenda Gregg are the parents of
Ashley Berrier, a minor. On May 7, 2003, Ashley was
visiting her grandparents at their home in Honeybrook,
Pennsylvania. Her grandfather, Melvin Shoff, was mowing
his yard with his Simplicity Regent Model riding mower.
Shoff had purchased the mower new from a retailer in 1994.

        According to Shoff, Ashley came into the yard and
attempted to hand him a flower while he was mowing. Shoff
disengaged the mower blades and told her to go inside.
Believing she had done as instructed, Shoff then re-engaged
the blades and placed the mower in reverse to turn the mower
around. As he was backing up with the blades engaged, he
backed over Ashley’s left leg. Although Ashley received
prompt medical attention at a prominent children’s hospital,
her left foot had to be amputated.

       Thereafter, Ashley’s parents brought this action in their
own right and on Ashley’s behalf (plaintiffs are collectively
referred to as the “Berriers”) against Simplicity. They argued
that Simplicity was liable for negligently designing the mower
and also strictly liable because the design was defective.
Both claims centered on the absence of any back-over
protection, such as a “no mow in reverse” device or roller
barriers.

       The Simplicity mower Shoff was using was a Regent

                               5
12 HP Hydrostatic lawn tractor, model number 1692403. It
had been manufactured in 1994 and was equipped with a 36-
inch steel mower deck that housed two rotating blades. The
mower was intended to be operated only by an adult and
designed accordingly. The operator could control the
mower’s movement and blade engagement. The operator
could therefore move the mower forward or in reverse, with
or without the blades engaged. The blades could be engaged
or disengaged using a “PTO [power take off] lever” on the
left side of a control panel. No physical barriers obstructed
the operator’s view. Information that accompanied the mower
clearly warned that it should not be operated while anyone
was within the mower’s area of operation.

       Simplicity equipped the mower with three electrical
safety systems to prevent the engine from starting unless the
transmission and blade controls are in “stopped” positions.
This stopped the engine and blades if the operator left the seat
without disengaging the blades, and the configuration
automatically stopped the engine if the operator left the seat
without first setting the parking brake. However, the mower
was not equipped with any “no mow in reverse” (“NMIR”)
device nor any kind of roller barrier at the rear of the mowing
deck.2

   2
     The NMIR is a general category of devices that are
broadly defined as mechanisms that would either: (a) prevent
a mower’s blades from remaining on if the mower is shifted
into reverse; (b) stop the engine and/or blade(s) when the
mower is changed to reverse; or (c) prevent reverse motion
when the mower blade is engaged. See App. at 732 (Berrier’s

                               6
       The mower came equipped with warnings and
instructions printed in bold black letters against a yellow
background, located at the operator’s position on the machine
that warned of “serious injury or death” that could occur if the
machine was operated “WHEN CHILDREN OR OTHERS
ARE AROUND.” Additional warnings and safety rules
pertaining to the danger of amputation and the risk of accident
were placed on the deflector shield. Similar warnings were
also printed in the Operator’s Manual, and Shoff admitted that
he read and understood them.

            B. History of Back-Over Protection
                    on Riding Mowers

       In the 1970's and 80's, a series of studies warned about
the extreme dangers associated with operating riding mowers
in reverse with blades engaged. These studies were
conducted by the Consumer Product Safety Commission
(“CPSC”)3 and others. The studies cited back-over blade
contact accidents, comprising between nine and eleven
percent of reported accidents involving riding mowers, as the
most tragic type of lawnmower accidents. These accidents


Expert Report); see also App. at 576 (Simplicity inter-office
correspondence regarding NMIR standard). Roller barriers
provide an alternative method for back-over protection. They
are described more fully below.
   3
    The CPSC is the government agency charged with
protecting the public from unreasonable risks of serious injury
or death from various types of consumer products.

                               7
almost always involved children under the age of five, and
almost always resulted in amputation or death. Calculations
based on these studies demonstrated that back-over accidents
happened at a rate of more than 100 per year, and one such
accident occurred for each 5-6,000 riding mowers sold in the
United States. App. 550, 555. In December of 1974, a study
commissioned by the CPSC recommended that all riding
mowers be equipped with a mechanism that would
automatically stop the blade while the mower was in neutral
or reverse. The Consumers’ Union of the United States
(“CU”) echoed the call for this requirement in a proposed
standard issued on July 17, 1975.4

       In 1977, the CPSC published a “Proposed Safety
Standard” in the Federal Register that would have required all
riding mowers to include back-over protection in the form of
a device that would disengage the blades while the mower
was in reverse. In 1984, following requests from the
industry trade association, certain sections of the proposed
mandatory CPSC requirements were withdrawn. The
withdrawn sections included the requirement that an NMIR
device be incorporated into the design of riding mowers. The
withdrawal was premised on the CPSC’s belief that a
voluntary standard developed by the industry with comment
and assistance by the CPSC would be “a more efficient use of
the commission’s resources.” App. 575.


   4
    The Consumer’s Union is a nonprofit consumer research
organization that is probably best known for its publication of
“Consumer Reports Magazine.”

                               8
       Nonetheless, the CPSC continued to recognize that
“based on engineering judgment, riding mowers meeting
these requirements [including reverse operations with the
blade disengaged] should be safer than those that do not.”
App. 576. Accordingly, the CPSC sent a letter to the Outdoor
Power Equipment Institute (“OPEI”) requesting that an NMIR
feature with an option for manual override be included in any
revised American National Standards Institute (“ANSI”)
standard for riding mowers. 5 The Commission’s rationale
included the following statement:

       These provisions offer a reasonable means to
       begin to address young children backed over
       during reverse mowing. While these accidents
       are infrequent, the population at risk and the
       severe mental trauma to the child’s family fully
       support the need to take immediate steps . . . .
       Overall, the requirement can address the serious
       back up hazard while still permitting maximum
       freedom to designers.

App. 548-49.

       In 1994, the CPSC further articulated industry
concerns regarding the efficacy of NMIR devices, including
issues relating to how fast the blade should stop to avoid
blade contact injuries, whether consumers would accept a
mower that does not mow while backing up, and whether the

   5
   The OPEI is the industry trade group that drafted the
ANSI safety specifications for riding mowers. App. 209.

                              9
safety change could be incorporated into the product without
diminishing customer satisfaction. Those and similar
concerns ultimately lead to the defeat of attempts to
incorporate a mandatory NMIR design into riding mowers.

             C. The Effectiveness of Back-Over
                   Protection Devices

        In the wake of discussions about lawn mower design,
different types of NMIR devices have been designed to
prevent the motor from powering the blade if an operator
shifts a riding mower into reverse.6 In fact, in 1976,
Simplicity received two patents for mechanical and electrical
interlocks that prevent blades from spinning while a riding
mower is backing up. App. 588-89.

        NMIR devices often include an “override” feature that
conditions reverse mowing upon a series of maneuvers (e.g.,
an override button) that compel the operator to focus his/her
attention on backing up and take some action to power the
blades while the mower is operating in reverse. However,
even with such an option, the blades will automatically stop

   6
     These devices include: (1) a blade brake which stops the
blades each time the mower is shifted into reverse; (2)
automatically stopping the engine if the mower is shifted into
reverse without the operator disengaging the blades; (3)
automatically locking the wheels if the blade is still spinning
while the mower is shifted into reverse; and (4) an interlock
which prevents the mower from being shifted into reverse if
the blades are spinning. App. 556-58.

                              10
when the mower is shifted into reverse in normal operation.
App. 557.

        In 2003, the new ANSI standards, drafted by OPEI,
required an NMIR design. App. 578-80. Thereafter, in
September 2004, Simplicity incorporated NMIR devices into
its riding mowers.7

   7
      Rule 56 of the Federal Rules of Civil Procedure requires
that only admissible evidence be offered in summary
judgment proceedings. Evidence of subsequent remedial
measures is not admissible to prove negligence, culpable
conduct, a defect in a product, a defect in a product’s design,
or a need for a warning or instruction. Fed. R. Evid. 407.
However, subsequent remedial measures need not be
excluded if, as here, they are introduced for the purpose of
demonstrating the feasibility of the design. Id. The district
court did not discuss this evidence, nor explain why it was not
considered.
        The Product Liability Advisory Council, Amicus
Curiae in support of Simplicity, contends in a footnote that
Berrier’s evidence of subsequent design changes as well as
subsequent (ANSI) industry standards, is inadmissible to
show negligence and strict liability. It cites Duchess v.
Langston Corp., 769 A.2d 1131, 1145 (Pa. 2001) (recognizing
that the general proscription against the admission of evidence
of subsequent remedial measures precludes use of a
subsequent design change as substantive evidence of a
product defect in a strict products liability case), and Lewis v.
Coffing Hoist Division, 528 A.2d 590, 594 (Pa. 1987)
(industry standards are inadmissible in strict liability), in

                               11
support of its position.
        However, there are several reasons why this evidence
can be considered. First, the Council is correct that
Pennsylvania law generally prohibits the admission of
evidence of subsequent remedial measures, including the use
of a subsequent design change as substantive evidence of a
product defect in a strict products liability case. See Duchess
at 1145. However, like the Federal Rule governing
admissibility, where the machine manufacturer places
feasibility in issue, exceptions in the rule governing
subsequent remedial measures are admissible to establish the
feasibility of the alternate design. Id. at 1150; see also Pa. R.
Evid. 407 (excepting from the rule evidence that proves
controverted matters including feasibility of precautionary
measures).
        Second, the “industry standard” evidence excluded in
Lewis was offered by the defendants as part of their defense to
a strict liability claim. See LaBelle ex rel. LaBelle v. Philip
Morris, Inc., 243 F. Supp. 2d 508, 520 (D.S.C. 2001)
(distinguishing Lewis, 528 A.2d 590). Lewis does not address
whether industry standard evidence is inadmissible in a design
defect claim based on a negligence theory, nor does it hold
that the safety designs available at the time of manufacture
have no relevance to a strict liability design defect claim. For
the Berriers to sustain their negligence claim, they must show
that Simplicity failed to exercise due care. Evidence of
alternate designs is admissible to refute Simplicity’s claim
that NMIR devices would decrease the social utility of the
mower, see Pa. R. Evid. 407, as well as to show the “state of
the art” of safety design at the relevant time. See Phatak v.

                               12
             D. Alternative Designs Suggested
                      by the Berriers

         The Berriers suggest several alternative designs that
could have been incorporated into Simplicity’s mower. The
first is an NMIR feature that prevents the blades from being
powered by the motor when the mower is shifted into reverse.
App. 374. However, even with loss of power, momentum
causes the blades to continue to spin for a short time as the
mower is backing up. Id. The feature requires disengagement
and re-engagement of the blades each time the mower
reverses direction. App. 35. This design was being used by
one lawn mower manufacturer, MTD Products Inc., when
Shoff’s mower was manufactured.8 App. 767.

       The Berriers also suggest an NMIR feature that utilizes
the aforementioned “override” switch that would allow the
operator to choose to mow in reverse as needed or for an
entire mowing session. (“Override Device”) App. 375. This
design is now required by the 2003 ANSI standards. App.
579.

       The final alternative design suggested by the Berriers


United Chair Co., 756 A.2d 690, 693 (Pa. Super. 2000). The
evidence may be similarly relevant to the Berriers’ strict
liability theory.
   8
    We will therefore refer to this feature as the “MTD
design.”

                              13
is roller-guards on the back of the mowing deck. They create
a barrier that greatly reduces the risk of any “foreign object”
slipping under the deck (i.e. blade housing) as the mower is
backing up. A Simplicity engineer and the Berriers’ design
expert both testified that roller-barriers reduce injuries. App.
593-96, 553-54. In fact, Simplicity asked OPEI to adopt this
design based on testing it had conducted that supported the
effectiveness of the roller-barrier in preventing back-over
injuries.9 App. 593-94, 597-98.

         II. DISTRICT COURT PROCEEDINGS

        Following Ashley’s injury, the Berriers filed this action
against Simplicity in the Court of Common Pleas of
Philadelphia County. The complaint contained one count of
strict products liability based on Section 402A of the
Restatement (Second) of Torts (Count I), and a second count
sounding in negligence (Count II). As noted earlier, both
counts alleged a cause of action based on an allegedly
defective design.10

   9
      Roller barriers function much the same way as the old
“cow catcher” that used to be designed into the front of
railroad locomotives to sweep any foreign objects from
railroad tracks in advance of the engine to which it was
attached.
   10
     The complaint also asserted that the warnings on the
mower were defective. The district court wrote that it
“fail[ed] to understand what additional warnings would be
more effective in preventing back-over accidents.” Berrier v.

                               14
        Simplicity removed the case to the district court based
on diversity of citizenship, 28 U.S.C. § 1332, and filed an
answer. Sometime thereafter, Simplicity filed a third-party
complaint against Mr. and Mrs. Shoff, which was later
amended, alleging claims of negligent supervision and of
failure to follow instructions. Simplicity’s third-party
complaint sought contribution from the Shoffs in the event
that it was found liable.

       In time, Simplicity and the Shoffs, the third-party
defendants, filed motions for summary judgment. Simplicity
sought summary judgment on the strict liability and
negligence claims. The Shoffs sought partial summary
judgment on the negligent supervision and failure to follow
instructions contribution claims.

       The district court granted summary judgment to
Simplicity on both counts and dismissed the Berriers’
complaint. Berrier v. Simplicity Corp., 413 F. Supp.2d 431
(E.D. Pa. 2005). The court ruled that Pennsylvania strict
products liability law does not permit recovery for injuries to
anyone other than the intended user. Because Ashley was a
bystander and not an intended user of the mower, she could
not recover in an action against Simplicity. Id. at 437-43.


Simplicity Corp., 413 F. Supp.2d 431, 446 (E.D. Pa. 2005).
Indeed, it noted that the Berriers’ own expert testified at his
deposition that additional warnings, both in the manual and on
the mower, would not, standing alone, be effective in
preventing future accidents. Id. The Berriers do not assert in
this appeal that the warnings were defective.

                              15
Since the court also concluded that, under Pennsylvania law,
Simplicity did not owe a duty to bystanders, it dismissed the
negligence claim as well. Id. at 443-49.

       The court also ruled that the award of summary
judgment “moots the contribution claim against [the Shoffs],
and, hence, the need to resolve [the Shoffs’] motion for
summary judgment.” 413 F. Supp.2d at 449. Nonetheless, it
decided the Shoffs’ motions “in the event plaintiffs are
successful on a motion for reconsideration or on appeal, and
because Simplicity has not argued for dismissal based on
mootness.” Id. The court then denied the Shoffs’ motion for
summary judgment on Simplicity’s negligent supervision
claim, but granted summary judgment in favor of Mrs. Shoff
only on Simplicity’s failure- to-follow-instructions claim. Id.
at 449-52.

       This appeal followed.

   III. JURISDICTION & STANDARD OF REVIEW

       The district court had diversity jurisdiction pursuant to
28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. “The standard of review applicable to the District
Court’s order granting summary judgment is plenary.” Kautz
v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005). We
apply “the same test employed by the District Court under
Federal Rule of Civil Procedure 56(c).” Id. The non-moving
party “is entitled to every favorable inference that can be
drawn from the record.” Id. At the summary judgment stage,
“the judge’s function is not . . . to weigh the evidence and

                               16
determine the truth of the matter, but to determine whether
there is a genuine issue for trial.” Equimark Commercial
Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141,
144 (3d Cir. 1987).

                      IV. DISCUSSION

        A. Bystander Recovery Under Pennsylvania’s
               Strict Products Liability Law.

        The district court relied primarily upon Phillips v.
Cricket Lighters, 841 A.2d 1000 (Pa. 2003), in holding that
Ashley could not recover in strict liability under Pennsylvania
law because she was not an intended user of the mower.
However, as we discuss in detail below, we believe the
district court’s reliance on Phillips was misplaced because
bystander liability was not an issue in that case; moreover, no
other decision of the Court specifically addresses the issue.

        In the absence of a controlling decision by the
Pennsylvania Supreme Court, a federal court applying that
state’s substantive law must predict how Pennsylvania’s
highest court would decide this case.11 See Nationwide
Mutual Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000).
“In predicting how the highest court of the state would resolve

   11
    Because we are sitting in diversity, we must apply
Pennsylvania’s law to the facts of this case. Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938). All parties agree that
Pennsylvania law governs this suit and the district court
applied Pennsylvania law in granting summary judgment.

                              17
the issue, [we] must consider ‘relevant state precedents,
analogous decisions, considered dicta, scholarly works, and
any other reliable data tending convincingly to show how the
highest court in the state would decide the issue at hand.’”12
Id. (quoting McKenna v. Ortho Pharm Corp., 622 F.2d 657,
663 (3d Cir. 1980)). Although the Pennsylvania Supreme
Court has not yet expressly recognized a bystander’s right to
recover under products liability law, it has not expressly
rejected such a claim either.

        The “modern era” of products liability law in
Pennsylvania began with Webb v. Zern, 220 A.2d 853 (Pa.
1966). There, Webb’s father bought a keg of beer from Zern
(a beer distributor), and Webb’s brother subsequently tapped
the keg and drew beer from it. Webb was injured when the
keg exploded. Id. at 426. Webb relied on a theory of
“exclusive control” to sue both Zern, the brewer who filled
the keg, and the manufacturer of the keg. The trial court
dismissed the action pursuant to the defendants’ demurrers.
That court ruled that the doctrine of exclusive control did not
apply because Webb had not joined his father and brother and
either or both of them could have done something that caused
the explosion.

        On appeal, the Supreme Court adopted the Restatement

   12
     The district court did not conduct a prediction analysis.
However, we can do a prediction analysis because, had the
district court conducted such an analysis, our review of that
analysis would be plenary. Nationwide Mutual Ins. Co. v.
Bufetta, 230 F.3d 634, 637 (3d Cir. 2000)

                               18
(Second) Torts, Section 402A as a “new basis of liability.” Id.
at 426-27. Section 402A 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.13

Restatement (Second) of Torts § 402A.

       The Court did not fully explain its rationale for
adopting Section 402A. Rather it simply referred to the
concurring and dissenting opinions in Miller v. Preitz, 221
A.2d 320 (Pa. 1966), which was issued the same day as Webb,

   13
    The term “seller” includes the “manufacturer” of a
product. Restatement (Second) of Torts, § 402A, cmt. f.

                               19
stating: “[o]ne will . . . find there citations to modern case law
and commentaries which extend and recommend the
extension of the law of strict liability in tort for defective
products.” 220 A.2d at 854.

        In his concurring and dissenting opinion in Miller,
Justice Jones recited the history of product liability law in
Pennsylvania prior to Webb. Miller, 221 A.2d at 328-35
(Jones, J., concurring in part and dissenting in part). He
explained that a person injured by a defective product could
sue either in negligence or in assumpsit based upon a breach
of implied warranty arising from the sale of an allegedly
defective product. Id. at 329. However, under either theory
the injured person was required to establish privity, id. at 329,
330, and, in a negligence action, the injured person had to
prove the specific acts of negligence by the manufacturer. Id.
at 330.

        In his recitation, Justice Jones noted that following the
landmark case of MacPherson v. Buick Motor Co., 111 N.E.
1050 (N.Y. 1916), Pennsylvania had eliminated the
requirement of privity in negligence actions for damages
arising from a defective product. Id. at 329. However, in an
assumpsit action based on a breach of warranty, privity was
still required. Id. at 330. As a result of the privity
requirement, a manufacturer’s liability in a breach of warranty
action was limited to his immediate purchaser, who was
generally a retailer who sold the product directly to the
consumer. Id. at 332. The retailer was therefore normally
only liable to the actual purchaser and not to subsequent users
of the product. Id. at 332-33. Therefore, Justice Jones

                               20
recommended abolishing the privity requirement, adopting
Section 402A, and thereby allowing product liability actions
in tort. Id. at 333. He explained that the adoption of Section
402A would protect the consuming public by forcing
manufacturers to “stand behind their products,” and make the
“burden of injuries caused by defects in . . . products fall upon
those who make and market the products.” Id. at 334.

        Although the Supreme Court in Webb did not expressly
recognize a distinct cause of action for bystanders under
Section 402A, Webb can be read as standing for the
proposition that, under Pennsylvania law, there is a distinct
cause of action for bystanders under Section 402A.14 Webb
was a bystander who simply had the misfortune of being in
the same room as the keg when it exploded. Of course, it is
possible that the Court viewed Webb as a user or consumer
since he may well have walked into the room to draw beer
from the keg. However, the Court did not rely upon any such
status in allowing Webb to amend his complaint to include a
cause of action under Section 402A, and nothing in the
opinion suggests that the Court was concerned with whether
Webb was a user of the keg.15

   14
     A caveat to Section 402A states, in relevant part, that the
American Law Institute “expresses no opinion as to whether
the rules stated in this Section may not apply . . . to harm to
persons other that users or consumers.”
   15
    No further history of the case is available. Accordingly,
we do not know what (if any) defenses were asserted on
remand, nor do we know the ultimate outcome of the case.

                               21
        Eight years after Webb, the Court decided Salvador v.
Atlantic Steel Boiler Co., 319 A.2d 903 (Pa. 1974). There, an
employee was severely injured when a steam boiler exploded
at his place of work. He brought an assumpsit action against
his employer, the retailer of the boiler and its manufacturer.
Id. at 904. The trial court dismissed the complaint because
the employee had not alleged a contractual relationship with
the defendants and thus horizontal privity was lacking.16 Id.
On appeal, the Pennsylvania Superior Court reversed, and the

   16
     “Privity of contract is that connection or relationship
which exists between two or more contracting parties.”
Salvador, 319 A.2d at 904 n.1. “Vertical privity refers to the
relationship between those who are in the distributive chain of
a product.” Black’s Law Dictionary 1200 (6th ed. 1990).
“Horizontal privity”. . . “is not, in reality, a state of privity
but rather one of nonprivity. The term refers to those who are
not in the distributive chain of a product but who, nonetheless,
use the product and retain a relationship with the purchaser,
such as a member of the purchaser’s family.” Id. at 1199.
        In Miller v. Preitz, supra, the Pennsylvania Supreme
Court reaffirmed the requirement of vertical privity in an
action for breach of warranty in an action for injuries suffered
through a breach of warranty. However, Miller was
overruled by Kassab v. Central Soya, 246 A.2d 848 (Pa.
1968), which noted that the adoption of Section 402A in
Webb v. Zern, supra, obliterated any logical basis for
retaining the demand for vertical privity. In Salvador, the
Pennsylvania Supreme Court abolished the requirement for
horizontal privity in breach of warranty actions. 319 A.2d at
907-08.

                               22
Supreme Court subsequently affirmed the reversal. Id.

       The Supreme Court noted that its earlier adoption of
Section 402A in Webb eliminated the necessity of horizontal
privity in breach of warranty cases. The Court explained:

             Today . . . a manufacturer by
             virtue of section 402A is
             effectively the guarantor of his
             product’s safety. Our courts have
             determined that a manufacturer by
             marketing and advertising his
             product impliedly represents that
             it is safe for its intended use. We
             have decided that no current
             societal interest is served by
             permitting the manufacturer to
             place a defective article in the
             stream of commerce and then to
             avoid responsibility for damages
             caused by the defect. He may not
             preclude an injured plaintiff’s
             recovery by forcing him to prove
             negligence in the manufacturing
             process. Neither may the
             manufacturer defeat the claim by
             arguing that the purchaser has no
             contractual relation to him. Why
             then should the mere fact that the
             injured party is not himself the
             purchaser deny recovery?

                             23
Id. at 907 (citations omitted).

        Significantly, although the action was for breach of
warranty, the Court focused on the safety of the product rather
than the status or the contractual relationship of the parties.17
It reasoned that because Pennsylvania products liability law
“has progressed,” the demands of public policy “as well as
legal symmetry compel” the conclusion that lack of horizontal
privity did not bar the employee’s action against the
manufacturer for breach of warranty. Id. at 907-08 (emphasis
added). Essentially, the Court held that relief available in
breach of warranty claims should be as broad as that available
under Section 402A.

       Salvador involved an employer-employee relationship,
and Section 402A treats an employee as a user of a product.
See Restatement (Second) of Torts, § 402A, cmt. l.
However, as in Webb, the Court in Salvador neither
discussed the employee’s status nor suggested that his status
as an employee was determinative.18 Rather, the Court

   17
     It is not clear why the action was brought in assumpsit
rather than tort, as § 402A had been the law in Pennsylvania
for eight years.
   18
     The Superior Court expressly acknowledged the
employer-employee context of the dispute. It wrote: “We
believe that the injured employee stands in the shoes of his
employer and that his cause of action is based on implied
warranty and is not barred by the shield of privity. The
manufacturers know that most businesses are carried on

                                  24
focused on the safety of the product.19

        Nevertheless, these Supreme Court cases do not
specifically address a bystander’s ability to sue under Section
402A. Accordingly, “[w]e give ‘due regard’ to the decisions
of Pennsylvania’s intermediate appellate courts as ‘indicia of
how the state’s highest court would decide [the issue].’”
Nowak v. Faberge USA Inc., 32 F.3d 755, 759 (3d Cir. 1994)
(citation omitted).

        The Pennsylvania Superior Court allowed a bystander
to sue in strict liability in Pegg v. General Motors Corp., 391
A.2d 1074 (Pa. Super. 1978). Pegg was injured when riding
in a car driven by a co-worker. Unbeknownst to Pegg, the co-
worker had placed a chemical used to sanitize swimming
pools in the car. Pegg was injured when the chemical
spontaneously ignited, id. at 1077, and he sued the
manufacturer of the chemical (among others) under theories


through employees who will actually use the product
purchased by their employers.” Salvador v. I.H. English of
Phila., Inc., 307 A.2d 398, 402 (Pa. Super. 1973).
   19
     The Berriers contend that a third Supreme Court case,
Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa.
1974), allows bystander recovery under Section 402A. There,
an employee sued after being injured by objects falling from a
crane at the job site. However, the manufacturer/seller there
conceded that Kuisis was a “user” of the crane within the
meaning of Section 402A. Id. at 919. The case therefore did
not involve a “bystander.”

                              25
of negligence and strict liability. The Pennsylvania Superior
Court held that he could recover even in the absence of
privity. The court based liability on whether the
manufacturer “place[d] a defective article in the stream of
commerce.” Id. at 1079 (quoting Salvador, 319 A.2d at 970).
Liability did not turn on the relationship between Pegg and
the manufacturer.

       However, since the Superior Court’s decision in Pegg,
the Supreme Court has issued opinions which appear to limit
recovery under Section 402A to intended users. In Azzarello
v. Black Bros. Co., Inc., 391 A.2d 1020 (Pa. 1978), an
employee’s right hand was injured when it was pinched
between two hard rubber rollers in a coating machine owned
by her employer. The employee sued the manufacturer
asserting only a cause of action for strict liability under
Section 402A, and the manufacturer joined the employer as an
additional defendant arguing that the employer’s negligence
caused the accident in whole or in part. The trial resulted in a
verdict in favor of the manufacturer and the employee moved
for a new trial, asserting, inter alia, that the trial judge
incorrectly instructed the jury that her burden of proof under
Section 402A required a showing that the machine was
“unreasonably dangerous.” Id. at 1022. On appeal to the
Supreme Court, the employee won a new trial. The Court
held that the trial court’s use of “unreasonably dangerous” in
the jury instructions had improperly introduced negligence
concepts into the proceeding. Id. at 1025. The erroneous
instruction

       burdened the injured plaintiff with proof of an element

                              26
       which rings of negligence. As a result, if, in the view
       of the trier of fact, the “ordinary consumer” would
       have expected the defective condition of a product, the
       seller is not strictly liable, regardless of the
       expectations of the injured plaintiff . . . .

Id. at 1025 (citation and quotation marks omitted).

        The Court conceded that limiting liability to defects
that are “unreasonably dangerous” “may . . . serve the
beneficial purpose of preventing the seller from being treated
as the insurer of its products.” Id. (citation omitted).
However, the Court thought that objective could better be
achieved by requiring proof of “a defect in the manufacture
or design of the product, and that such defect was a (legal)
cause of the injuries.” Id. (citation omitted) (parentheses in
original).

The Court observed:

       The development of a sophisticated and complex
       industrial society with its proliferation of new products
       and vast changes in the private enterprise system has
       inspired a change in legal philosophy from the
       principle of caveat emptor which prevailed in the early
       nineteenth century market place to the view that a
       supplier of products should be deemed to be the
       guarantor of his products’ safety. The realities of our
       economic society as it exists today forces the
       conclusion that the risk of loss for injury resulting from
       defective products should be borne by the suppliers,

                               27
        principally because they are in a position to absorb the
        loss by distributing it as a cost of doing business. In an
        era of giant corporate structures, utilizing the national
        media to sell their wares, the original concern for an
        emerging manufacturing industry has given way to the
        view that it is now the consumer who must be
        protected.20

Id. at 1023-24 (citation and internal quotation marks omitted).

        The Court explained the evolution of Section 402A and
the tension between strict liability and a common law cause of
action for negligence. The Court noted that Section 402A
initially applied “only to foodstuffs and the requirement was
that the food be in a condition dangerous to the consumer.”
Id. at 1025 n.10. However, the present text of Section 402A
was substituted for “dangerous” because of concerns “about
liability for a product like whiskey, . . . because a jury might
find that all whiskey is unreasonably dangerous to the
consumer.” Id. Accordingly, “[t]he word ‘defective’ was
added to ensure that it was understood that something had to
be wrong with the product.” Id. Then, quoting from
Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 902 (Pa.
1975), the Court declared: “[t]he seller must provide the
product with every element necessary to make it safe for the
intended use.” 391 A.2d at 1027. The Court concluded that,
“[f]or the term guarantor to have any meaning in this context

   20
     Although the Court referred to “the consumer,” given
the context of that statement, it does not appear that the Court
intended to limit that term to “users.”

                                28
the supplier must at least provide a product which is designed
to make it safe for the intended use.” Id. at 1027. However,
since a jury could confuse that concept if instructed that the
product must be “unreasonably dangerous,” the Court agreed
that the jury instructions were misleading. Id.

        The Court also explained that “unreasonably
dangerous,” has no independent significance, but is a term of
art that “merely represent[s] a label to be used where it is
determined that the risk of loss should be placed upon the
supplier.” Id. at 1025. Moreover, the determination of
whether the risk should be placed upon the supplier was a
legal question that must be resolved by a court, not by the fact
finder. Id. at 1025-26.

        Therefore, the appropriate inquiry after Azzarello was
whether the supplier had designed the product with every
element necessary to make it safe for use. Id. at 1027. Under
that standard, “a jury may find a defect where the product left
the supplier’s control lacking any element necessary to make
it safe for its intended use or possessing any feature that
renders it unsafe for the intended use.” Id. The Court also
reaffirmed that the trial court must decide if “the utility of a
product outweigh[s] the unavoidable danger it may pose.” Id.
at 1026. Thus “[r]estated, the phrases ‘defective condition’
and ‘unreasonably dangerous’ as used in the Restatement
formulation are terms of art invoked [by a court] when strict
liability is appropriate.” Id.

      It is therefore clear that, after Azzarello, strict liability
under Section 402A involves a two-prong inquiry. As we

                                 29
explained in Nowak:

               Initially, the question of whether a
       product is defective, given the facts as alleged
       by the plaintiff, is a question of law to be
       answered by the trial judge. If the judge
       determines as a matter of law that
       Pennsylvania’s social policy supports placing
       the risk of loss on the manufacturer in the
       situation alleged by the plaintiff, then the case
       goes to the jury for a determination as to
       whether the facts alleged by the plaintiff are
       true.

32 F.3d at 757 (internal quotation marks and citation omitted).

        Although Azzarello assists our inquiry, it does not
resolve it because it does not tell us the Court’s view of who
the product must be safe for, and that is the primary issue
here. The Court addressed that issue in Phillips v. Cricket
Lighters, 841 A.2d 1000 (Pa. 2003). There, a majority of the
Supreme Court held that a product must be made safe only for
its intended user.

        In Phillips, a two-year-old child accidentally started a
fire after removing a butane lighter from his mother’s purse
and setting fire to some linens. The fire spread throughout the
family’s apartment, and resulted in the deaths of the two-year
old child, his mother, and another minor. Id. at 1002-03.
One child managed to escape through an open window and
survived. Id. at 1003. The administratrix of the decedents’

                               30
estates, who was also the guardian of the child who survived,
sued the manufacturer and distributor of the lighter, alleging,
inter alia, strict liability for a defective design under Section
402A, as well as negligent design, because the lighter was not
equipped with “childproof features.” Id. The trial court
granted summary judgment to the manufacturer on the
Section 402A claim because the manufacturer only intended
its lighter to be used by adults, and it was perfectly safe for
use by adults.21 Id.

       The Superior Court reversed based on its belief that a
product must be safe for anyone who uses it.22 Id. at 1004.
The Superior Court concluded that Cricket’s lighter was
defective because it was not equipped with a child safety
feature that would have prevented a child from starting a fire.
In the Superior Court’s view, that defect exposed intended
users to grave risk of harm. Id. The Supreme Court granted
allocatur and reversed because it agreed with the trial court.

   21
     The trial court granted the defendants’ motion for
summary judgment on the negligent-design-defect claim,
holding that when a product is found not defective for strict
liability purposes, a negligent-design defect must also fail.
841 A.2d at 1003.
   22
     As to the negligent-design defect claim, the Superior
Court held that since it had found the trial court’s decision on
the strict liability claim to be error, it had to reverse the entry
of summary judgment on the negligent-design defect claim.
841 A.2d at 1004. However, we are not concerned here with
such a claim.

                                31
        The majority in Phillips began by observing that
Azzarello “did not answer . . . whether the ‘intended use’
doctrine necessarily encompasses the requirement that the
product need be made safe only for its ‘intended user.’” Id. at
1005. The majority explained that, although it had never
faced that question in a strict liability design defect case, it
had faced it in Mackowick v. Westinghouse Electric Corp.,
575 A.2d 100 (Pa. 1990), a case alleging strict liability for
failure to warn. 841 A.2d at 1005.

        In Mackowick, an electrician had sued to recover
injuries caused by arcing electricity in a high voltage
capacitor. He alleged that the capacitor was defective because
it did not warn of the dangers of exposed electrical wires.
The Mackowick Court “rejected that argument . . .[,]
reason[ing] that a product need only be made safe for its
intended user.” Phillips, 841 A.2d at 1005 (citing
Mackowick, 575 A.2d at 102, 103). The “electrical capacitor
was intended to be accessed and used only by qualified
electricians, and not general members of the public. As
experienced electricians are aware of the dangers of live
exposed electrical wires, [the Mackowick court] concluded
that the product was safe for its intended user even absent a
[specific] warning.” Id. at 1005.

       In applying the holding of Mackowick, the majority in
Phillips reasoned:

               While Mackowick was a failure to warn
       case, . . . we cannot perceive how it could be
       confined exclusively to the failure to warn

                              32
      context. Mackowick stands for the proposition
      that a product is not defective so long as it is
      safe for its intended user. Whether the product
      is allegedly defective due to a lack of warnings,
      or because it was ill-conceived, the standard that
      the product need be made safe only for the
      intended user appears to be equally applicable.

Id.

       The administratrix/appellee in Phillips argued that the
lighter’s design was defective because it was reasonably
foreseeable that a child might play with it, and therefore the
manufacturer should be liable under Section 402A whether
the user was the intended adult or the foreseeable child.
Although the majority conceded that the argument had “some
visceral appeal,” it noted that the visceral appeal “has been
memorialized in our tort law as a negligence cause of action.”
Id. at 1006.

        By the time Phillips was decided, the Court had drawn
a clear distinction between negligence actions based on
notions of foreseeability and a cause of action based on a
theory of strict liability. The Court had often declared that
“negligence concepts have no place in a case based on strict
liability.” Id. (quoting Lewis v. Coffing Hoist Div., Duff-
Norton Co., Inc., 528 A.2d 590, 593 (Pa. 1987)).

       Nonetheless, the majority in Phillips conceded that
even though the Court had “remained steadfast in . . .
proclamations that negligence concepts should not be

                              33
imported into strict liability law, [it had] muddied the waters
at times with the careless use of negligence terms in the strict
liability arena.” Id. at 1006-07 (citing Davis v. Berwind
Corp., 690 A.2d 186, 190 (Pa. 1997).23

        The Phillips majority sought to clarify the law by
clearly stating that a plaintiff bringing a claim for strict
liability based on defective design under Section 402A “must
[only] establish that the product was unsafe for its intended
user.” Id. at 1007 (emphasis added). “We also explicitly state
that a manufacturer will not be held strictly liable for failing
to design a product that was safe for use by any reasonably
foreseeable user, as such a standard would improperly import
negligence concepts into strict liability law.” Id.

        The Court reiterated the distinction between negligence
concepts and strict products liability in Pennsylvania Dept. of
General Services v. United States Mineral Products Co., 898
A.2d 590 (Pa. 2006) (“Mineral Products”). There, a fire
damaged an office building which used building materials
containing polychlorinated biphenyls (“PCBs”) manufactured
by the defendant. The building housed the offices of several
agencies of the Commonwealth of Pennsylvania. Following
the fire, the Commonwealth made a decision to demolish the
building because of the presence of PCBs, and it was replaced
with a new building. The Commonwealth thereafter brought
an action against several parties, including the manufacturer

   23
     In Davis, the Court held that a manufacturer could be
held strictly liable for subsequent changes that made its
product unsafe if those changes were reasonably foreseeable.

                               34
of the product containing the PCBs, seeking damages for
negligence and strict products liability to recover the cost of
constructing a new building as well as the loss of personal
property contained in the old building. The case went to the
jury “solely on a strict liability theory,” and the jury returned
a verdict against the manufacturer without specification of the
particular theories/and or claims that were accepted. Id. at
594. The trial court’s instruction had “explicitly or implicitly
authorized [the jury] to evaluate the evidence to determine
whether the fire could be considered to have been a
reasonably foreseeable event against which the
[manufacturer] should have guarded.” Id. at 600.

         On appeal, the Supreme Court held that the jury
instruction was error because Pennsylvania does not
recognize a strict products liability cause of action arising
from an unintended use even when the unintended use is
foreseeable. Id. (citing Phillips, 841 A.2d at 1007).
Accordingly, a “foreseeable misuse of a product [i.e., the fire]
will not support a strict liability claim.” Id. (citing Phillips, at
1007). The Court acknowledged that it was “reasonably
foreseeable that building materials may be subject to
consumption in a fire, and therefore, [there was] an argument
that safety . . . should be deemed to encompass . . . the event
of . . . combustion.” Id., at 601. Notwithstanding the logic of
that argument, the Court rejected it because it “contravenes
the strong admonition in the lead opinion in Phillips . . . to the
effect that foreseeability considerations have no place in the
setting.” Id.

       For our purposes, it is important to note that in

                                35
rejecting the trial court’s “foreseeability charge,” the Court
observed: “given the conclusion of [the three concurring
Justices in Phillips] that there are substantial deficiencies in
present strict liability doctrine, it should be closely limited
pending an overhaul by the Court.” Id. (citing Phillips, 841
A.2d at 1018 (Saylor, J., concurring)).

       In the portion of Justice Saylor’s concurring opinion in
Phillips that is cited in Mineral Products, Justice Saylor
discussed the tension between “foreseeability” in negligence
and strict products liability under Section 402A. He stated: “I
BELIEVE, HOWEVER, that the . . . summation of
Pennsylvania law demonstrates a compelling need for
consideration of reasoned alternatives, such as are reflected in
the position of the Third Restatement.” 841 A.2d at 1018
(upper case in original, italics added). Justice Saylor went on
to discuss the application of the Restatement (Third) of Torts
at some length. See id. at 1019-22.

       We believe that Justice Saylor’s concurring opinion in
Phillips foreshadows the Pennsylvania Supreme Court’s
adoption of §§ 1 and 2 of the Third Restatement’s definition
of a cause of action for strict products liability.

        The Restatement (Third) of Torts provides in relevant
part as follows:

       § 1. Liability Of Commercial Seller or
       Distributor For Harm Caused By Defective
       Products



                                36
                One engaged in the business of selling or
        otherwise distributing products who sells or
        distributes a defective product is subject to
        liability for harm to persons or property caused
        by the defect.24

Restatement (Third) of Torts: Products Liability, § 1.

        Section 2 provides, in relevant part:

§ 2. Categories Of Product Defect

                A product is defective when, at the time
        of sale or distribution, it contains a
        manufacturing defect, is defective in design, or
        is defective because of inadequate instructions
        or warnings. A product:

        (a) contains a manufacturing defect when the
        product departs from its intended design even
        though all possible care was exercised in the
        preparation and marketing of the product;

        (b) is defective in design when the foreseeable
        risks of harm posed by the product could have
        been reduced or avoided by the adoption of a
        reasonable alternative design by the seller or

   24
     Under Section 1, “[o]ne engaged in the business of
selling or otherwise distributing” applies to “manufacturers.”
Restatement (Third) of Torts: Products Liability, § 1, cmt. c.

                               37
       other distributor, or a predecessor in the
       commercial chain of distribution, and the
       omission of the alternative design renders the
       product not reasonably safe;

       (c) is defective because of inadequate
       instructions or warnings when the foreseeable
       risks of harm posed by the product could have
       been reduced or avoided by the provision of
       reasonable instructions or warnings by the seller
       or other distributor, or a predecessor in the
       commercial chain of distribution, and the
       omission of the instructions or warnings renders
       the product not reasonably safe.

Restatement (Third) of Torts: Products Liability, § 2.

         As is readily apparent from this text, the Third
Restatement does not limit a strict liability cause of action to
the “user or consumer,” and broadly permits any person
harmed by a defective product to recover in strict liability.
See Restatement (Third) of Torts: Products Liability, § 1; see
also Am. L. Prod. Liab. 3d § 16:56 (2004) (“The drafters thus
appear to be sanctioning claims by all foreseeable persons
affected by a defective product, an interpretation as broad as
that given to the Second Restatement by the courts . . . . The
prevailing view as to bystander recovery is that the theory of
strict liability in tort may be applied to a mere bystander, as
distinguished from a user or consumer.”) (emphasis added).

       The change in the Restatement (Third) of Torts is

                               38
consistent with the law in many states, including Wisconsin,
California, Mississippi, Arizona, Missouri, Michigan, Iowa,
Alabama, Utah, and Vermont.25 These jurisdictions allow

   25
      See, e.g., Wasik v. Borg, 423 F.2d 44, 47 (2d Cir. 1970)
(Vermont would permit innocent bystanders to recover under
§ 402A.); Beaver v. Howard Miller Clock Co., Inc., 852 F.
Supp. 631, 635 (W.D. Mich. 1994) (“The Michigan Supreme
Court has held that a manufacturer of a product owes a legal
obligation of due care to a bystander affected by the use of its
product.”); Rivers v. Great Dane Trailers, Inc., 816 F. Supp.
1525, 1531 (M.D. Ala. 1993) (noting Florida Supreme Court
recognizes that “doctrine of strict liability applies when harm
befalls a foreseeable bystander who comes within the range of
danger.”); Lovelace v. Astra Trading Corp., 439 F. Supp. 753,
760 (S.D. Miss. 1977) (noting “the general consensus
therefore appears to favor extension of the strict liability
doctrine to provide relief to bystanders.”); Caruth v. Mariani,
463 P.2d 83, 85 (Ariz. Ct. App. 1970) (“The doctrine of strict
tort liability . . . should be available to bystanders as well as to
the user or consumer . . . . All states which have adopted the
theory of strict tort liability have extended the theory to the
bystander when called upon to do so.”); Elmore v. American
Motors Corp., 70 Cal.2d 578, 586 (Cal. 1969) (holding
“doctrine [of strict liability] may not be limited on theory that
no representation of safety is made to the bystander.”);
Haumersen v. Ford Motor Co., 257 N.W.2d 7, 16 (Iowa
1977) (“We now bear out the [8th Circuit] Court of Appeals’
prediction and extend the doctrine of strict liability to the
protection of bystanders.”); Howes v. Deere & Co., 201 N.W.
2d 825, 828 (Wis. 1972) (permitting recovery in strict liability

                                39
bystander liability using the very negligence concepts and
foreseeability analysis that the majority opinion in Phillips
rejected. See, e.g., Elmore v. American Motors Corp., 451
P.2d 84, 89 (Cal. 1969) (“[i]njury to a bystander is often a
perfectly foreseeable risk of the maker’s enterprise . . . . If
anything, bystanders should be entitled to greater protection
than the consumer or user where injury to bystanders from the
defect is reasonably foreseeable.”).

        The Third Restatement therefore eliminates much of
the confusion that has resulted from attempting to quarantine
negligence concepts and insulate them from strict liability
claims. As Justice Saylor argues in the heading to Section III
of his concurring opinion in Phillips: “The Restatement’s
considered approach illuminates the most viable route to
providing essential clarification and remediation.” 841 A.2d
at 1019.

       [T]he [Third] Restatement’s conception of
       defective design is more nuanced, to
       accommodate the wider range of scenarios that


for bystander injured by riding mower. “There is no essential
difference between injured user or consumer and the injured
bystander.”); Giberson v. Ford Motor Co., 504 S.W.2d 8, 12
(Mo. 1974) (“We extend any rights flowing from the rule of
strict liability in tort . . . to include a bystander.”); Straub v.
Fisher & Paykel Health Care, 990 P.2d 384, 390 (Utah 1999)
(“Manufacturers and sellers are strictly liable for the usual,
foreseeable consequences of the risks presented by the defects
in their products.”)

                                40
       may face injured consumers and
       manufacturers/suppliers. As a general rule, a
       product is deemed defective in design when the
       foreseeable risks could have been reduced or
       avoided by the use of a reasonable alternative
       design, and when the failure to utilize such a
       design has caused the product to be not
       “reasonably safe.”

Id. (citing Restatement (Third) of Torts: Products Liability §
2(b)).

        Justice Saylor criticized the Phillips majority’s
ritualistic approach to products liability as follows:

       the lead Justices retrench the Court's periodic
       admonishment to the effect that negligence
       concepts have no place in a strict liability
       action. A decided majority of courts and
       commentators, however, have come to
       recognize that this proposition cannot be justly
       sustained in theory in relation to strict products
       liability cases predicated on defective design;
       moreover, it is demonstrably incongruent with
       design-defect strict liability doctrine as it is
       currently implemented in Pennsylvania trial
       courts and in federal district courts applying
       Pennsylvania law. Furthermore, while the
       parties to the litigation underlying this appeal
       may not have expressly developed the approach
       of the products liability segment of the Third

                               41
       Restatement . . ., the Restatement position
       represents a synthesis of law derived from
       reasoned, mainstream, modern consensus.
       Particularly in view of pervasive ambiguities
       and inconsistencies in prevailing Pennsylvania
       jurisprudence in this area, I view this appeal as
       an opportunity to examine the range of readily
       accessible, corrective measures. In my
       judgment, the Restatement's considered
       approach illuminates the most viable route to
       providing essential clarification and
       remediation, at least on a prospective basis.
       Ultimately, I join the majority disposition on the
       strict liability and negligence claims under
       present law.

841 A.2d at 1012.

        Our examination of appellate decisions in
Pennsylvania that have discussed products liability convinces
us that Justice Saylor was correct in recognizing that
“[c]entral conceptions borrowed from negligence theory are
embedded in strict products liability doctrine in
Pennsylvania.” Id. In fact, Justice Saylor went so far as to
criticize the Phillips’ majority’s “adherence to the position
that negligence concepts have no place in strict liability” as a
“common aphorism in the developmental stages of strict
liability doctrine . . . .” Id. at 1014-15. As noted earlier, the
majority drew that distinction based upon its view that
negligence focused on the conduct of the manufacturer
whereas products liability focused on the product. However,

                               42
Justice Saylor pointed out: “most courts and commentators
have come to realize that in design cases the character of the
product and the conduct of the manufacturer are largely
inseparable.” Id. at 1015.26

        Justice Saylor also noted that “the term ‘defective’
gives an illusion of certainty” because it suggests a specific
meaning “rather than a term connoting a standard involving
the weighing of factors.” Id. at 1018 (citation omitted). We
agree that it is difficult (if not impossible) in practice to
determine if a product is safe for an intended use by an
intended user without any consideration of foreseeability. Id.
Accordingly, as Justice Saylor believed, “integration of the
‘reasonably foreseeable use’ alternative into strict products
liability doctrine may reflect the greater consensus and better
reasoned view, in the landscape of our law as it presently
exists . . . .” Id.27 The result achieved from the approach of

   26
     Indeed, Justice Saylor recognized that it is the
manufacturer who designs the product. It is therefore
exceedingly difficult to ignore the manufacturer’s conduct
and focus only on the design that resulted from it.
   27
     Despite the admonitions in Phillips and Mineral Products
that liability under Section 402A is focused on intended users
and intended uses and that negligence and foreseeability
concepts have no place under strict products liability law, the
decisions of the Pennsylvania Superior Court continue to
struggle with the harsh consequences that the “intended user
doctrine” can sometimes have. See, e.g., Kiak v. Crown
Equipment Corp., A.2d , 2009 WL 377166 (Pa. Super.

                              43
the Third Restatement is consistent with the modern trend of


Feb. 17, 2009) (employee/non-user of forklift injured by co-
worker operating the forklift permitted to proceed against
manufacturer of forklift under Section 402A); Schmidt v.
Boardman Co., 958 A.2d 498 (Pa. Super. 2008) (bystanders
who witnessed relatives killed and/or injured by defective
product allowed to recover under Section 402A for emotional
distress even though they suffered no physical injuries).
         However, in Bogush v. Allen Refractories Co., 932
A.2d 901, 910 (Pa. Super. 2007), the Superior Court refused
to grant a new trial to a supplier of asbestos products based on
the supplier’s argument that that trial court erred in failing to
apply the Restatement (Third) of Torts, § 2, instead of Section
402A, to plaintiff’s strict liability claim. The supplier argued
that it was entitled to a new trial because a miscarriage of
justice had occurred when the trial court applied Section
402A rather than the reasoning of Justice Saylor’s
concurrence in Phillips. Id. The Superior Court refused to
adopt the reasoning of the concurrence in Phillips, stating that
“[u]nless and until our Supreme Court alters its approach to
strict liability, we will continue to adhere to established
principles.” Id.
         The supplier filed a petition for allowance of appeal
with the Pennsylvania Supreme Court, which granted the
petition on February 27, 2008. Bugosh v. I.U. North America,
Inc., 942 A.2d 897 (Pa. 2008) (per curiam). The
Pennsylvania Supreme Court framed the issue as follows:
“Whether this Court should apply § 2 of the Restatement
(Third) of Torts in place of § 402A of the Restatement
(Second) of Torts.”

                               44
law as well as the evolving policy considerations discussed in
Webb that lead to the adoption of the Section 402A in the first
place.

        Justice Saylor authored the Court’s majority opinion in
Mineral Products. There, he was joined by now Chief Justice
Castille, and Justices Nigro and Eakin, as well as then Chief
Justice Cappy. Justice Newman wrote a concurring and
dissenting opinion that was joined by Justice Baer. In Section
II of his majority opinion, Justice Saylor discussed the
plaintiff’s strict liability claim. He noted that, although “it is
reasonably foreseeable that building materials may be
[consumed] by fire,” and therefore building materials that
cause damage when burned could be deemed defective, that
“argument contravenes the strong admonition in the lead
opinion in Phillips. . . to the effect that foreseeability
considerations have no place in [strict liability].” 898 A.2d at
601.

        Justice Newman dissented from Justice Saylor’s
discussion of strict liability in Mineral Products. Joined by
Justice Baer, Justice Newman stressed that Phillips should not
have governed the analysis in Mineral Products because
“there was no Majority [in Phillips] to conclude that
foreseeability considerations never have a place in a strict
liability case. Instead, the overriding principle set forth in
Phillips is that strict liability should be limited to a very small
range of cases . . . [and] cases involving an unintended user
[i.e., Phillips] are outside the scope of the strict liability
doctrine.” Id. at 615. (emphasis in original). She further
explained:

                                45
        As in Phillips, an argument concerning the
        Third Restatement of Torts is not before us. I
        recognize the apparent and possible appeal in
        the more progressive approach adopted by the
        Third Restatement, in particular, in cases such
        as this involving a known dangerous chemical
        where a risk-utility test would be a just measure
        of a manufacturer's liability for the product.
        However, I will proceed to analyze the present
        matter pursuant to our existing caselaw and the
        Second Restatement of Torts.

Id. at 616 n. 2.

        Thus, it is clear from the discussions of Justice Saylor
in Phillips and Justice Newman in Mineral Products that
there is substantial support on the Court to adopt the Third
Restatement’s approach to product liability in an appropriate
case.28 We believe that this is such a case.

   28
     Phillips was decided by six Justices. We view the
relevant portion of the opinion as a two-justice majority
because then Chief Justice Cappy authored the decision, but
only Justice Newman expressly joined the portion of the
opinion which held that the strict liability claim must fail
because the lighter was not unsafe when used by adults, and
that concepts of negligence have no place in strict products
liability cases. Phillips, 841 A.2d at 1023. Justice Saylor
filed a concurring opinion joined by Justices Castille and
Eakin. Id. at 1012 (Saylor, J., concurring). Justice Newman
filed a concurring and dissenting opinion which expressed her

                               46
       The unintended user doctrine is not implicated by
Berrier’s claim. Accordingly, there is little logic and much
sophistry in reflexively applying cases discussing intended
uses and users to determine liability for defective design
under the circumstances here. See Aetna Life & Cas. Co. v.
Barthelemy 33 F.3d 189, 193 (3d Cir. 1994) (“Where stops
the reason, there stops the rule.”).

        District courts in Pennsylvania have no doubt
recognized that lack of logic and abundance of sophistry
because they have allowed bystanders to recover in strict
products liability under Section 402A under Pennsylvania law
just as Justice Saylor explained in Phillips.29 Even though


support of Chief Justice Cappy’s opinion, as well as her
disagreement that the negligence causes of action should be
permitted to go forward. Id. at 1023 (Newman, J., concurring
and dissenting). Justice Nigro concurred in the result, but did
not write separately or join either concurrence. See id. at
1012. Justice Zappala did not participate in the decision. Id.
at 1011.

        Although Justice Newman is no longer on the
Pennsylvania Supreme Court, Justice Baer remains. The fact
that he joined Justice Newman’s opinion means that four of
the current seven Justices have voiced support for adopting
the Third Restatement.
   29
    See, e.g., Fedorchick v. Massey-Ferguson, Inc., 438 F.
Supp. 60, 62-63 (E.D. Pa. 1997), aff’d, 577 F.2d 725 (3d Cir.

                              47
those cases were decided before Phillips and Mineral
Products, we do not believe that the result in those cases is
altered by the Court’s subsequent decisions because, as
Justice Newman explained in Mineral Products, Phillips is a
narrow holding that only addresses “unintended users,” and
Mineral Products did not involve bystanders at all.

      Moreover, we implicitly recognized the right of
bystanders to recover in strict products liability under
Pennsylvania law in Parks v. AlliedSignal, Inc., 113 F.3d
1327 (3d Cir. 1997), and Surace v. Caterpillar, Inc., 111 F.3d
1039 (3d Cir. 1997). We decided those cases within two


1978) (Table) (“[Section] 402A provides coverage for a
person who suffers harm proximately caused by a defective
and unreasonably dangerous product, regardless of whether
that person used or consumed the product.”); see also Stratos
v. Suer Sagless Corp., 1994 WL 709375 at *5 (E.D. Pa.
December 21, 1994) (permitting administrator of seventeen
month old daughter’s estate to bring strict liability claim
against manufacturer of allegedly defective bed even though
the decedent was “non-user of the product who wandered into
the product’s danger zone”); Herman v. Welland Chemical,
Ltd., 580 F. Supp. 823, 829 (M.D. Pa. 1984) (volunteer
fireman struck by car while directing traffic following
chemical spill on highway permitted to bring Section 402A
claim). But see Van Buskirk v. West Bend Co., 100 F.
Supp.2d 281, 285 (E.D. Pa. 1999) (guardians of child burned
by an allegedly defective fryer denied recovery on a strict
liability theory, in part, because the child was “not an
intended user” of the fryer).

                              48
months of each other, but before the Pennsylvania Supreme
Court’s decisions in Phillips and Mineral Products. Parks
and Surace nevertheless demonstrate the difficulties of
employing a rigid bar to preclude bystander recovery under
Section 402A.

        In Parks, the manufacturer of an excavating machine
was sued by the spouse of an employee who was killed when
he was struck by a counterweight attached to the machine’s
excavating arm. The spouse claimed that the design of the
machine was defective because it did not provide sufficient
visibility for the operator to see her husband. The jury
returned a verdict in favor of the manufacturer, and plaintiff
appealed arguing, inter alia, that the district court had erred in
instructing the jury about contributory negligence and
causation. The jury had concluded that the design of the
machine was defective but “presumably” based its verdict on
a finding that “the defect was not ‘a substantial factor’
causing the death.” 113 F.3d at 1330.30

        We reversed because the jury charge did not explain
that the decedent’s own conduct could only have been the
“‘legal cause of the accident’ if [that conduct] was . . .
extraordinary or unforeseeable.” 113 F.3d at 1337. We

   30
      The argument was actually phrased in terms of
causation. Appellant argued that the court should have
instructed the jury that “if [her husband’s] conduct were
foreseeable, such conduct could not have broken any chain of
causation linking the alleged defect to his death.” 113 F.3d at
1330.

                               49
reached that conclusion based on “[t]he centrality of
foreseeability to Pennsylvania’s strict products liability law. .
. .” Id.

Thus, as we said in Parks, the “manufacturer [was] . . .
responsible for making the product safe for all foreseeable
uses.” 113 F.3d at 1332.

       The facts in Surace v. Caterpillar, Inc., 111 F.3d 1039
(3d Cir. 1997), are very similar to the facts before us here.
There, a construction worker was injured when his foot was
run over by paving equipment. He brought an action for
damages under Section 402A, alleging that the machine’s
design was defective because it did not prevent the machine
from operating in reverse unless activated by someone on the
ground. The district court granted summary judgment to the
manufacturer.

        On appeal, we held that the district court erred by not
first performing a risk utility analysis as required by
Azzarello, and we suggested that the “multi-factor list
developed by Dean John Wade [could] be employed in doing
so.” 111 F.3d at 1042 (citing John Wade, On the Nature of
Strict Tort Liability for Products, 44 Miss.L.J. 825, 837-38
(1973)).31 As we suggested earlier, our remand to allow the

   31
        The “Wade factors” for conducting a risk utility analysis
are:
(1) The usefulness and desirability of the product . . . to the user
and to the public as a whole; (2) The . . . likelihood that it will
cause injury, and the probable seriousness of the injury; (3) The

                                50
trial court to conduct a risk utility analysis implicitly
recognized the right of the plaintiff/bystander to recover under
Section 402A. We did so while stressing that “the
Pennsylvania Supreme Court eschews the use of negligence
concepts in a strict liability case.” 111 F.3d at 1050 (citing
Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590,
593 (Pa. 1987) and Kimco Dev. Corp. v. Michael D's Carpet,
637 A.2d 603, 606 (Pa. 1993)).

      Our discussion in Surace included an example
suggested by Dean Wade:

       [T]he dangers of a hoe or an axe are both
       matters of common knowledge and fully
       apparent to the user. But it is not necessarily
       sufficient to render a product duly safe that its
       dangers are obvious, especially if the dangerous
       condition could have been eliminated. A rotary
       lawn mower, for example, which had no
       housing to protect a user from the whirling


availability of a substitute product which would meet the same
need and . . . be [safe]; (4) The manufacturer's ability to
eliminate the unsafe character of the product without impairing
its usefulness or making it too expensive . . . ; (5) The user's
ability to avoid danger by the exercise of care . . . ; (6) The
user's anticipated awareness of the dangers inherent in the
product and their avoidability. . . ; and (7) The feasibility, on the
part of the manufacturer, of spreading the loss [or] setting the
price of the product or carrying liability insurance.
111 F.3d at 1046 (citations omitted).

                                 51
       blade[,] would not be treated as duly safe,
       despite the obvious character of the danger.

111 F.3d at 1052 (quoting Wade, supra at 842-43) (brackets
in original).

        We agree, and we do not think anything that the Court
has since held is to the contrary. Nor do we think the policy
behind strict products liability is served by declaring that the
design of Dean Wade’s hypothetical mower is only defective
if the spinning blade injures the user. Yet, that is the result of
artificially restricting strict products liability to “intended
users” based upon concerns of contaminating a strict liability
claim with considerations of foreseeability. We believe that
the same policy demands that were first articulated in Webb
require placing the risk of loss on the manufacturer whether
the person injured by Dean Wade’s hypothetical mower is
operating the mower or standing near it.

         Similarly, we find nothing in Pennsylvania law to
suggest that the Supreme Court would deny recovery under a
strict liability theory to spectators at a sporting event who are
injured by an airplane that crashes into the stadium because a
wing was defectively designed. We do not think the policy
considerations that have been recognized since Webb would
allow strict liability claims to the passengers but deny it to the
spectators simply because they happened to be underneath the
falling debris and not inside of it. Sections 1 and 2 of the




                                52
Third Restatement avoid such illogical results.32 Section 2 of
the Third Restatement takes a “more progressive view,” and
far more realistic approach to strict liability when
“bystanders” are involved.

        We therefore conclude, as Justice Saylor proclaimed in
Phillips, that “the time has come for this Court . . . to
expressly recognize the essential role of risk-utility balancing,
a concept derived from negligence doctrine, in design defect
litigation.” 841 A.2d at 1015-16 (Saylor, J., concurring).
Justice Saylor has recognized that “[the] Commonwealth’s
products liability litigation jurisprudence is far too confusing
for another opinion to be laid down that rhetorically eschews
negligence concepts in the strict liability arena, while the
Court nevertheless continues to abide and/or endorse their
actual use in the liability assessment.” Id. at 1016.

        This case would allow the Supreme Court an

   32
      Yet another hypothetical further illustrates the point. If a
car manufacturer’s design resulted in a car with a passenger
compartment impervious to the force of any impact, but
which caused the wheels to fly off when the car approached
20 mph, pedestrians struck by the wheel should certainly be
able to argue that the design was defective (and not merely
negligent). It is incomprehensible to us that the policy
considerations underlying products liability law in
Pennsylvania would preclude such a suit merely because the
pedestrian/plaintiff was a “bystander” and not an
occupant/user of the car.


                               53
opportunity to acknowledge that the Third Restatement
“represents a synthesis of law derived from reasoned,
mainstream, modern consensus.” Id. at 1012 (Saylor, J.
concurring). We believe that, if addressing this issue, a
majority of the Supreme Court would agree that “the [Third]
Restatement’s considered approach illuminates the most
viable route to providing essential clarification and
remediation, at least on a prospective basis.” Id.

        We realize that Justice Saylor’s comments focused on
Section 2(b) of the Third Restatement of Torts, and that
section only addresses when a product is defectively designed.
 Id. at 1019-1021. As we explained earlier, the issue here
involves who the manufacturer is liable to because of a
defectively designed product. That question is addressed in
section 1 of the Third Restatement, not section 2.

        The concurring opinion in Phillips did not discuss
Section 1. However, Justice Saylor did recognize that Section
2(b), the section describing when a product is defective, is
“generally a negligence standard,” id. at 1020, and he
ostensibly recognized that integrating negligence principles
into a strict liability design defect claim, including the
replacement of the intended user doctrine with a “reasonably
foreseeable use” standard, “may reflect the greater consensus
and better reasoned view.” Id. at 1018. We think it highly
likely that the Justices who would adopt section 2 would
adopt as well as section 1 rather than trying to parse the
applicable provisions of the Third Restatement and thereby
supplant some of the provisions of the Second Restatement



                             54
and not others.33

        We therefore hold that the district court should not
have relied on the “intended user” doctrine in granting
summary judgment to Simplicity on the Berriers’ claim for
strict products liability based on the allegedly defective design
of Simplicity’s lawn mower. We will therefore vacate on that
claim and remand for proceedings consistent with this
opinion.34



   33
       On January 17, 2008, pursuant to Third Circuit LAR
MISC. 110 and Internal Operating Procedure 10.9, this panel
certified the following question to the Pennsylvania Supreme
Court:

        Whether, under Pennsylvania law a plaintiff
        minor child may pursue a strict liability claim
        for injuries caused by a riding lawnmower,
        where the child is neither an intended user nor
        consumer of the mower.

However, on October 17, 2008, the Pennsylvania Supreme
Court entered an order respectfully declining the panel’s
petition for certification.
   34
     As noted in the concurrence in Phillips, Section 2(b) of
the Third Restatement “roundly endorses a reasonableness-
based, risk-utility balancing test as the standard for adjudging
the defectiveness of product designs.” 841 A.2d at 1020
(Saylor, J., concurring) (citation omitted).

                               55
                        B. Negligence.

       The district court also held that the Berriers’ negligent
design claim failed as a matter of law because “Simplicity did
not owe a duty to Ashley to design the mower in accordance
with plaintiffs’ proposed safety features.” 413 F. Supp.2d at
444. The court also rejected the claim because the Berriers
did not present any evidence “to indicate that the design of the
instant mower with additional so-called ‘safety’ features
would actually increase the safety of the mower without
impairing its social utility.” Id. at 449. The Berriers claim
that both rulings were erroneous.

       To prevail in a negligence action, a 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, 841 A.2d at 1008 (citation and
quotation marks omitted). Whether a defendant owes a duty
of care to a plaintiff is a question of law in Pennsylvania.
Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d
Cir. 1993).

       We agree with the Berriers that the court erred in
ruling that Simplicity did not owe a duty to Ashley. In
resolving that question at the summary judgment stage, the
court should have viewed the record in the light most
favorable to the Berriers - the non-moving parties. See
Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); see also
Fed.R.Civ.P. 56(c).



                              56
        In Pennsylvania, the determination of whether a duty
of care is owed is a policy decision that requires the trial court
to apply the “Althaus test.” That inquiry requires that the
court consider: “(1) the relationship 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.”
Phillips, 841 A.2d at 1008 (quoting Althaus v. Cohen, 756
A.2d 1166, 1169 (Pa. 2000) (quotation marks omitted)).35

        Although these factors guide the court’s inquiry “[i]n
determining the existence of a duty of care, it must be
remembered that the concept of duty amounts to no more than
the sum total of those considerations of policy which led the
law to say that the particular plaintiff is entitled to protection
from the harm suffered.” Althaus, 756 A.2d at 1168-69
(citation and internal quotation omitted). “Thus, the legal
concept of duty of care is necessarily rooted in often
amorphous public policy considerations, which may include
our perception of history, morals, justice and society.” Id. at
1169. Because the question of whether a defendant owes a
plaintiff a duty of care is a question of law, Kleinknecht v.
Gettysburg College, 989 F.2d at 1366, we have plenary
review of the district court’s determination that Simplicity did
not owe Ashley a duty of care. See American Society for
Testing & Materials v. Corrpro Companies, Inc., 478 F.3d
557, 566 (3d Cir. 2007) (“[w]e have plenary review over a

   35
     This inquiry is very similar to the inquiry suggested by
the “Wade factors.” See n.31, supra.

                               57
district court’s conclusions of law”) (citation omitted). 1.
Relationship Between the Parties

       We believe that the relationship between Ashley and
Simplicity is, at best, uncertain because Ashley did not
purchase the mower. It must be remembered that the
relationship between the parties in Phillips weighed against a
duty. Although there was a relationship there between the
mother/purchaser and the manufacturers, the relationship
between the defendant lighter manufacturers and the children
who died in the fire was “less certain.” Phillips, 841 A.2d at
1009. We therefore agree with the district court that this
factor weighs against the existence of an underlying duty to
Ashley. However, it must also be remembered that “[n]o one
of these five 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.” Id. at 1008-
09. We believe each of the remaining factors weighs in favor
of finding that Simplicity owed Ashley a duty of care.

          2. Social Utility of Defendant’s Conduct

        The district court’s analysis of the social utility of the
mower included the following three findings: (1) a riding
mower that cannot mow in reverse lacks social utility, (2)
Plaintiffs failed to present evidence indicating that an NMIR
device that shuts down the mower if an operator engages the
mower blades while operating in reverse would increase the
product’s safety; and (3) the additional safety mechanisms
identified by Plaintiffs, including roller barriers and an NMIR
device with an override feature, do not actually improve

                               58
safety by decreasing back-over injuries. 413 F. Supp.2d at
444-46. However, those findings are inconsistent with the
record.

       The district court reasoned that “operators frequently
need to cut grass in reverse . To deny operators the capacity
to perform these basic maneuvers, with the mower deck
engaged, would add significant time and frustration to the
lawn-mowing task.” Berrier, 413 F. Supp. at 444. That
conclusion overlooks testimony by the defendant’s own
expert who testified that “there is rarely any reason to mow in
reverse.” App. 758. That expert explained that:

        nearly all of the reverse operations on these
        machines are just for maneuvering. I have seen
        situations where it’s – would be easy to
        understand why somebody would want to mow
        in reverse when they have a very narrow
        corridor and there is no room to turn around at
        the end and two cutting widths will cut that
        grass. But those kind of geometric situations
        are kind of unusual.36

App. 758.

       The court’s consideration of this factor also overlooks
the undisputed fact that, between 1982 and 1992, five leading

   36
      Similarly, Ashley’s grandfather put the mower in
reverse in order to turn the mower around. He was not
attempting to mow in reverse. App. 126.

                              59
riding mower manufacturers sold nearly two million units
which prevented the operator from mowing in reverse by
incorporating the MTD device. App. 557-58.

       Second, the Berriers proffered sufficient evidence to
establish that the mower in question was safer when equipped
with the NMIR device. Their expert reported that, out of the
two million mower units just mentioned, none generated any
reports of a back-over blade accident. App. 558.

       It is important to clarify that two NMIR devices are
relevant to our inquiry: the MTD Device”— used by MTD in
two million of its mowers when Shoff’s mower was
manufactured, and the “Override Device.” We consider the
social utility of each in turn.

                          a. NMIR

        The district court concluded that the MTD device
lacked social utility because it shuts down the mower’s engine
when operated in reverse, but allows the mower to backup for
at least 4.5 feet before the engine shuts off. 413 F. Supp. 2d
at 444. This blade interlock device is the device that the
CPSC refused to require as an industry standard because of
efficacy concerns. App. 391. The CPSC found that such a
device would likely be disabled by the operator out of
frustration. Id. at 473. Moreover, the group stated it did not
have sufficient data on how many deaths or injuries would be
prevented by a NMIR feature because there was no data on
how fast the blade would have to stop to significantly reduce
injuries, or the extent to which children would be injured by

                             60
being backed over after the blade stopped. App. 472.

       The district court was also unpersuaded by the
Berriers’ evidence of the lack of injuries caused by suitably
equipped MTD mowers. It cited evidence of four back-over
accidents involving MTD mowers—which appears to
contradict the Berriers’ evidence that the MTD device
completely eliminated all back-over accidents. 413 F.
Supp.2d at 445.

        The Berriers point out, however, that all of these
incidents occurred when the operator disabled the NMIR
device.37 App. 761-63. Berriers’ counsel informed the court
of Simplicity’s admission of this fact during oral argument.
The trial court was apparently not persuaded. However, we
believe that is a relevant consideration, particularly because
this is consistent with the statement made by Gunter Plamper,
MTD’s Vice President for Product Development and Safety.
He testified about the effectiveness of the device as follows:

        The no-mow-in-reverse feature will shut off
        mower blades if an operator shifts into reverse
        without first disengaging the mower blades.
        This safety feature has successfully prevented
        back-over accidents. Neither MTD, Cub Cadet,
        Yard-Man, White Out Door or MTD Yard

   37
     This fact is disputed. Berrier claims that all four
incidents occurred when the NMIR was disabled. Simplicity
maintains that only two of the four incidents involved
disabled NMIR devices. See Simplicity’s Br. at 45-46.

                              61
        Machines have had any reported back-over
        accidents on one of their riding mowers when
        the safety features were in place and
        functioning as designed.

App. 581 (emphasis added).

       The district court believed the fact that the device
could be disabled negated any safety advantage of the
design.38 413 F. Supp.2d at 445. The court relied in part on a
study from the 1980's that confirmed that at least 40 percent
of operators disabled NMIR features on their mowers. 413 F.
Supp. at 445 n.8. However, that statistic also means that the
majority (60%) of people operating these mowers did not
disable the feature. Accordingly, we believe that the record
establishes that the feature could have a significant impact on




   38
      This conclusion is in tension with the current industry
practice of including back-over protection on riding mowers.
If the protection was ineffective, and lacked any social utility,
as the district court concluded, it is difficult to understand
why other companies would incorporate this feature.
Manufactures that added NMIR devices (though it is not clear
what kind–override or the MTD original) included Toro in
1999, John Deere, Snapper and Kubota. App. 314. The only
logical reason for including an NMIR device on a riding
mower was stated by the CPSC: mowers that contain an
NMIR device are safer than those without one. App. 576.

                               62
reducing the risk of injury from back-over accidents.39 The
determination of whether a product was negligently designed
turns on whether “an alternative, feasible, safer design would
have lessened or eliminated the injury plaintiff suffered.”
Habecker v. Clark Equipment Co., 36 F.3d 278, 281 (3d Cir.
1994) (quotations marks and citation omitted) (emphasis in
original). The Berriers presented evidence that the NMIR
device without the override would have at least lessened the
likelihood of Ashley’s injury and may have eliminated it.

                      b. Override Device

       The district court dismissed the efficacy of an override
device because it viewed such a device as equivalent to a
design which allowed the operator to choose whether to
engage the blades or not (“mow in reverse”). 413 F. Supp. 2d
at 446. However, the difference is significant because an
override switch requires an extra step before being able to

   39
      The district court was also troubled by the fact that the
Berriers’ expert had not personally conducted studies on the
rate at which NMIR systems are disabled. More importantly,
the expert had not conducted any statistical analysis to
determine the rate of back-over blade injuries between
mowers with NMIR features and those without such features;
or the rate of back-over blade injuries for mowers with a
disabled NMIR feature. 413 F. Supp.2d at 445. However, at
the summary judgment stage, the court is not entitled to weigh
the evidence; that is solely the task of the fact-finder. Rather,
the court must limit its inquiry to whether a genuine issue of
fact exists.

                               63
mow in reverse. In theory, the operator can not backup
without thinking; the default position disengages the blades
when the mower is put into reverse. See App. 580. On those
rare occasions when it is necessary to mow while backing up,
the extra step reminds the operator to check behind the mower
before pressing the override button. We realize that the
Berriers’ expert did not provide any data to show mowers
with this design had fewer back-over injuries. However,
ANSI’s adoption of the requirement in 2003 certainly
suggests that mowers with this design are safer.

        The district court was ultimately unconvinced by
Berrier’s argument. 413 F. Supp. 2d at 446 (“[T]his Court
fails to see how a “no mow in reverse device” with an
override would prevent future back-over accidents . . . .”).40
However, the very fact that the ANSI standard has required
NMIR devices on riding mowers since 2003 undermines the
district court’s conclusion that NMIR devices do not increase
safety. That is particularly true since the court relied so
heavily on the CPSC’s initial refusal to require the MTD
device (with no override feature).

       Moreover, though the CPSC did not promulgate
regulations requiring NMIR devices when Shoff’s mower was
manufactured, the CPSC did acknowledge that riding mowers
with an NMIR feature are safer than those without one. App.

   40
     The Berriers characterize the trial court’s determination
that the safety devices they proposed were ineffective (and
presumably could not have prevented this accident) as a
judicial determination of “no causation.”

                              64
576. That, together with the Commission’s later adoption of
the device with an override feature (presumably, that device
addressed the Commission’s earlier concerns) supports the
Berriers’ argument that an alternative design could have
prevented Ashley’s injury and that Simplicity therefore had a
duty to adopt it. We therefore believe that the district court’s
conclusion that an NMIR with an override feature was not a
feasible and safer design is directly contradicted by the
industry’s decision to promulgate standards requiring such
devices and the subsequent compliance with this requirement.

                       c. Roller Devices

        The district court committed a similar error in
concluding that there was no genuine issue of material fact
about whether roller barriers “would actually improve safety
by decreasing back-over injuries.” 413 F. Supp.2d at 446. In
reaching that conclusion, the court appears to have ignored
evidence that Simplicity believed so strongly in the
effectiveness of roller barriers that the company requested that
feature be considered as an acceptable alternative to the
NMIR device requirements in the ANSI 2003 standards.
App. 597-98. Moreover, Simplicity admitted that “rollers
may provide some protection against accidents and injuries”
in its responses to interrogatories. App. 151.

       In reaching its conclusion to the contrary, the district
court focused on the Berriers’ expert’s refusal to testify that
the use of roller guards would make the mower “reasonably
safe” in part because he lacked information “on the
performance of rollers in preventing child back-over blade

                               65
contact accidents.” 413 F. Supp. 2d at 446. However, when
discussing Ashley’s specific injury, E. Reed Smith, P.E., the
Berriers’ expert, confirmed in his report that rollers are
effective in pushing small children backwards and out of the
way of the spinning blades. App. 553-54. There is also
evidence of a 1997 study by Reed confirming the
effectiveness of the roller barrier. App. 519, 593-94. Reed’s
report also further stated that if the subject mower had a set of
“full-width ground-contacting rollers at the rear edge of the
mower deck, given the distance Mr. Shoff backed up on the
day of the accident, it is unlikely Ashley would have suffered
the amputation injury she did.” Reed therefore concluded that
the lack of rollers “was a cause of Ashley Berrier’s foot
amputation injuries.” App. 560.

        As previously noted, Simplicity makes much of the
fact that Reed testified that roller blades alone would not
make the mower reasonably safe. However, that is a legal
conclusion. Moreover, it misstates the applicable legal
standard. That standard is whether the design “would have
lessened or eliminated the injury plaintiff suffered.”
Habecker, 36 F.3d at 281 (citation and quotation marks
omitted). Reed testified that “rollers in this particular
situation would have prevented this accident.” App. 302.

       The district court also appears to have ignored
statements of Simplicity’s own lead designer, who stated: “we
think that the potential for a full roller to offer some
protection in some circumstances for – that certainly doesn’t
hurt the – the propensity for blade contact and it may offer
some protection.” App. 518. Another Simplicity engineer

                               66
testified that the roller barrier provided back-over protection
and reduced injuries. App. 593-96. Furthermore, as
previously noted, Simplicity was so confident about the
effectiveness of the roller barrier that it asked the OPEI to
consider the roller barrier on Simplicity products as “an
acceptable barrier” in lieu of an NMIR device in the 2003
ANSI standard, which now requires back-over protection.
App. 597-98.

       Accordingly, after viewing the evidence in the light
most favorable to the Berriers, we believe that the district
court erred in concluding that the social utility factor weighed
against finding that Simplicity owed a duty to the Plaintiffs.

     3. Nature of the Risk and Foreseeability of Harm

        The third prong of the duty inquiry balances 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).

        Here, the Berriers produced evidence that the risk of
back-over blade contact injuries exists and that this risk was
foreseeable when Shoff’s mower was manufactured; and the
district court conceded as much. Berrier, 413 F. Supp. at 447.
The Berriers’ expert testified that, based on studies published
between 1981 and 1993, one riding mower per 5,000 to 6,000
produced is involved in a back-over blade accident at some
point. Id. However, the district court concluded that this

                               67
weighed only marginally in favor of finding a duty of care
because the CPSC had not found the risk of injury sufficiently
significant to promulgate a final regulation mandating or
recommending the addition of NMIR devices. Id.

        The Berriers correctly point out that the district court
focused on CPSC’s decision not to promulgate regulations.
However, as both parties acknowledge, that decision was
based on the efficacy of mowers with NMIR devices. It was
not based on the nature of the risk and foreseeability of harm.
The CPSC and others realized that risk after a series of studies
in the 1970's and 80's. App. 544-50. Those studies
characterized back-over blade accidents as the most tragic
type of lawnmower accidents, comprising between nine and
11 percent of reported accidents involving riding mowers.
App. 721. The Berriers’ expert testified that more than 100
hospitalizations per year take place because of back-over
blade contact incidents. App. 735. Moreover, as Ashley’s
tragic injury demonstrates, the injuries that do result can be
quite serious. Indeed, the injuries are potentially fatal in the
absence of prompt medical attention and expert treatment that
may not be available everywhere riding mowers are used.

       The district court acknowledged the raw data in these
studies but concluded that CPSC’s hesitation in promulgating
NMIR requirements (despite its awareness of the studies)
undermined the significance of those statistics. In doing so,
the court cited the CSPC’s statement that it lacked “sufficient
information to determine how many deaths or injuries would
be prevented by [a no-mow-in-reverse] feature.” 413 F.
Supp.2d at 447 (quoting CPSC Letter dated July 19, 1993

                              68
(App. 472)) (internal quotation marks omitted).

        However, CSPC’s decision was not based on the low
risk of accident. Rather, the CSPC did not act because
standards were already “being actively pursued by the
industry,” and the CSPC concluded that “there is usually a
high degree of conformance to this type of voluntary
standard.” App. 577.

        Simplicity maintains that CPSC’s decision not to
require anti-back-over devices is consistent with the statistical
infrequency of back-over accidents when Simplicity
manufactured Shoff’s mower. Simplicity claims its position
is further strengthened by the fact that Simplicity was aware
of just two back-over accidents since 1983 with the model
that Shoff purchased. App. 72. We agree that such accidents
were infrequent. In fact, the Berriers themselves cite the
CPSC letter to the OPEI acknowledging “accidents are
infrequent.” However, the serious nature of the injuries that
do result must be factored into the equation along with the
frequency of occurrence. Accordingly, we believe the district
court did not give adequate weight to the fact that the letter
concerning adding an NMIR feature to any revised ANSI
standard stated: “the population at risk and the severe mental
trauma to the child’s family fully support the need to take
immediate steps.” App. 548-49.

       We therefore conclude that the district court failed to
assign adequate weight to this factor in favor of Berriers
under the summary judgment standard.



                               69
           4. Consequences of Imposing a Duty

       The district court acknowledged that the average cost
of $9.00 per mower of incorporating a NMIR device was
minimal. 413 F. Supp. 2d at 448. It certainly is. The court
nevertheless weighed this factor against the Berriers because
they “failed to propose a feasible design alternative that
would reduce the likelihood of back-over blade accidents
while maintaining the social utility of the product.” Id. at
448. Thus, in the court’s view, imposing such a duty would
be “superfluous.” Id.

        However, for reasons we have already explained, we
believe that the Berriers did offer evidence of alternative
designs. The Berriers’ evidence of effective alternative
designs included: (1) the experience of other manufacturers
with NMIR devices, particularly the MTD experience; (2) the
recent OPEI/ANSI standard requiring NMIR protection; and
(3) evidence that Simplicity itself advocated roller barriers
because they provide effective back-over protection. Other
Simplicity models had the barrier, and Simplicity’s former
Vice President of Engineering from 1983 to 1999 testified
that the roller blade offers some protection. App. 518.

       Given the minimal cost of adding an alternative design,
and the potentially monumental financial and human cost of
not doing so, this factor clearly weighs heavily in favor of a
duty.

                      5. Public Interest


                              70
        The court concluded that the public interest weighed
against the existence of a duty to alter Simplicity’s design
based on its belief that there was no genuine issue of material
fact as to the effectiveness “of the proposed features, from
rollers to an NMIR device with override,” as well as the
devalued social utility of a mower with such a device and the
resulting burden on Simplicity of becoming the insurer of its
products. 413 F. Supp. 2d at 448.

        In reaching that conclusion, the court improperly
conflated a cost/benefit analysis with its consideration of the
public interest, as well as an analysis of the consequences of
imposing the duty on Simplicity. For example, the court
reasoned that imposing the duty would not only “devalue the
social utility of the mower, preventing its ability to cut grass
in a time-effective and efficient manner, but also would
transform Simplicity into an insurer of its products in
violation of Pennsylvania law.” 413 F. Supp. 2d at 448
(citing Azzarello, 391 A.2d at 1024) (emphasis added). The
court thereby incorporated its erroneous balancing of the
second and fourth factors of the Althaus test and added the
weight of those factors to the fifth factor.

       Unlike the district court’s analysis, the Pennsylvania
Supreme Court’s analysis of the public interest in Phillips did
not consider cost/benefit or the consequences to the
manufacturer. Instead, the Court simply concluded that

       [t]here is a strong public interest in minimizing fires
       started as a result of children playing with butane
       lighters. Such fires have catastrophic effects on human

                               71
       beings as well as property. Avoidance of them would
       be an unquestionable boon to society. Thus, this factor
       weighs in favor of finding a duty.

841 A.2d at 1010.

        Nevertheless, Simplicity claims that the public interest
is not advanced by imposing an additional duty on the
manufacturer and thereby supplanting the obligation of
parental supervision. According to Simplicity, the NMIR
device has an unproven ability to reduce a risk and, if
required, would increase the risk to the operator, while
decreasing product utility. Simplicity does not, however,
explain how the risk increases for the operator, nor does it
explain why such devices became the industry standard after
2003 if it decreased the mower’s utility and increased the risk
to the operator.

        The Berriers maintain that this is precisely the kind of
situation where the public interest is served by imposing a
duty of care. The marginal costs of designing a product with
an NMIR feature are coupled with the benefit of reducing
severe physical injury to children. We agree.

            6. The End Result of the Balancing.

       Thus, viewed in the light most favorable to the non-
moving party, we believe that four out of five of the Althaus
factors weigh in favor of finding that Simplicity owed Ashley
a duty to incorporate some kind of back-over device on
Shoff’s mower.

                               72
       We also believe that there is sufficient evidence to
create a genuine issue of material fact as to whether an
alternative design would have prevented Ashley’s injuries.
Therefore, we will vacate the district court’s order granting
Simplicity’s motion for summary judgment on the negligence
claim and remand for further proceedings.

                    IV. CONCLUSION

       Because we have predicted that the Pennsylvania
Supreme Court would adopt the Restatement (Third) of Torts,
§§ 1 and 2, we hold that summary judgment should not have
been granted to Simplicity on the Berriers’ claim of strict
products liability. Thus, we will vacate the district court’s
order granting summary judgment to Simplicity on that claim.
Moreover, for the reasons we have explained, we will also
vacate the grant of summary judgment to Simplicity on the
Berriers’ negligence claim. We will remand both claims to
the district court for further proceedings consistent with this
opinion.




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