Before Moyer it was established that the unreasonably dangerous inquiry should be 1

determined as a matter of law; it was unclear, however, whether courts were required to make the

determination before trial. See Surace v. Caterpillar, Inc., 111 F.3d 1039, 1049 n. 10 (3d Cir.

1997) (unreasonably dangerous determination properly made in context of either summary

judgment or directed verdict).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BAKORE MAKADJI, :

Plaintiff, : CIVIL ACTION

:

v. :

:

GPI DIVISION OF HARMONY :

ENTERPRISES, INC., et al., : No. 05-3044

Defendants. :

MEMORANDUM AND ORDER

Schiller, J. May 23, 2007

Plaintiff Bakore Makadji brings this products liability action against Defendants GPI

Division of HarmonyEnterprises, Inc., HarmonyEnterprises, Inc. (“the HarmonyDefendants”), and

Ver-Tech, Inc. (“Ver-Tech”). On December 1, 2006, this Court granted Defendants summary

judgment as to Plaintiff’s failure to warn claim and denied Defendants summary judgment as to

Plaintiff’s design defect claim. Defendants did not move for summary judgment based on the theory

that the industrial compactor was, as a matter of law, not “unreasonably dangerous.” Therefore, the

Court reserved judgment on that legal issue.

Subsequent to this Court’s December 1, 2006 ruling, the Third Circuit issued Moyer v.

United Dominion Industries, which clarified that, under Pennsylvania law, a court must make a legal

determination as to whether a product is “unreasonably dangerous” priorto trial. 473 F.3d 532, 538 1

(3d Cir. 2007). Presently before the Court is the Harmony Defendants’ second motion for summary

judgment, which is predicated on the theory that the product at issue is not unreasonably dangerous.

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 1 of 8
 For a more complete factual background, see Makadji v. Harmony Enterprises, Civ. A. 2

No. 05-3044, 2006 WL 3498324, at *1 (E.D. Pa. Dec. 1, 2006). The Court relies upon the facts

submitted by the parties for and in response to the first motion for summary judgment. 

2

That motion, filed six and a half months after its due date, is untimely and will be denied as such.

Nonetheless, in light of Moyer, the Court revisits the issue of whether the industrial compactor at

issue in this case is unreasonably dangerous. 

I. BACKGROUND2

In December 2002, Plaintiff was working as a dishwasher at Sonoma Restaurant in

Philadelphia, Pennsylvania. (Harmony Defs.’ Mot. for Summ. J. [hereinafter Defs.’ Mot.] Ex. E

(Davis Dep.) at 7-10.) Plaintiff’s job responsibilities included crushing boxes in Sonoma’s industrial

compactor, a model M30STD downstroke baler, which was manufactured by the Harmony

Defendants and distributed byDefendant Ver-Tech. (Defs.’ Mot. ¶ 2 & Ex. D (Makadji Dep.) at 83;

Ver-Tech Def.’s Mot. for Summ. J. ¶ 1.) On December 31, 2002, while Plaintiff was operating the

compactor with the door open, the hydraulic plunger descended and crushed Plaintiff’s right hand,

leaving him permanently unable to use it. (Defs.’ Mot. Ex. D at 93, 98, 117.) 

When functioning as designed, a user places boxes into the compactor and then closes the

outside door. (Pl.’s Resp. to Defs.’ Mot. for Summ. J. [hereinafter Pl.’s Resp.] at 2.) The fully

closed door would engage the safety switch, and with the safety switch engaged, the user could push

the start button causing a hydraulic cylinder to descend and crush the boxes. (Id.) The machine was

not intended to work unless the door was closed and the safety switch was engaged. (Id.) 

An inspection six days after Plaintiff’s accident revealed that the safety switch built into the

machine at issue was not functional. (Defs.’ Mot. Ex. C. (Cella Dep.) at 65.) The parties dispute

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 2 of 8
 There is some evidence that suggests that employees at Sonoma Restaurant used a small 3

piece of cardboard to intentionally bypass the safety, rendering the compactor operable with the

side doors open. (Defs.’ Mot. Ex. E at 24-25.) Plaintiff contests these facts. Plaintiff’s expert

does admit, however, that there was cardboard in the machine at the time of his inspection. 

(Defs.’ Mot. Ex. D at 91; Pl.’s Resp. Ex. A (Rasnic Preliminary Rep.) at 11.) 

 The Third Circuit has noted, and this Court agrees, that it is highly unusual and even 4

problematic for a court to make a legal finding predicated on a weighted view of the facts. See

Surace, 111 F.3d at 1048 n.9. Nonetheless, in the ten years since Surace was decided, the

Pennsylvania Supreme Court has not altered this standard. 

3

whether this was the result of ordinary wear and tear, intentional misuse, or product malfunction.3

(See Defs.’ Mot. ¶ 27; Pl.’s Resp. ¶ 27.) Plaintiff’s sole remaining claim is for strict products

liability based on design defect. 

II. DISCUSSION

A. Pennsylvania’s Strict Products Liability Framework

Under Pennsylvania law, a plaintiff may bring a strict liability action premised on the theory

that a product is defectively designed. See Azarello v. Black Bros. Co., 391 A.2d 1020, 1022 (Pa.

1978);see also RESTATEMENT (SECOND) OF TORTS § 402A (adopted in Webb v. Zern, 220 A.2d 853,

854 (Pa. 1966)). Such a claim requires two distinct determinations. First, a judge must make a

threshold pretrial determination, viewing facts in the light most favorable to the plaintiff, that the

product under scrutiny is “unreasonably dangerous.” Moyer, 473 F.3d at 538. If the judge 4

determines that the product is unreasonably dangerous, then the case is submitted to the jury to

determine whether “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” and

whether such design defect was the proximate cause of the plaintiff’s injuries. Phillips v. Cricket

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 3 of 8
4

Lighters, 841 A.2d 1000, 1005 (3d Cir. 2003). This bifurcated procedure has been widely criticized

by judges and academic commentators alike; nevertheless, as a court sitting in diversity, this Court

is bound by Pennsylvania’s “idiosyncratic” strict liability laws. Id. at 1016 (Saylor, J., concurring);

see also Moyer, 473 F.3d at 539-41; John M. Thomas, Defining “Design Defect” in Pennsylvania:

Reconciling Azarello and the Restatement (Third) of Torts, 71 TEMP. L. REV. 217 (1998).

When making the threshold determination of whether a product is unreasonably dangerous,

the Court engages in a risk-utility analysis, weighing the social and utility benefits of a product

against the risks or harms associated with that product. Surace, 111 F.3d at 1049-50. This

determination represents a judicial assessment of which party should bear the risk of loss. Azzarello,

391 A.2d at 1025-26 (The term unreasonably dangerous “represent[s] a label to be used where it is

determined that the risk ofloss should be placed upon the supplier.”); Riley v. Warren Mfg., Inc., 688

A.2d 221, 224 (Pa. Super. 1997) (citing Fitzpatrick v. Madonna, 623 A.2d 322, 324 (Pa. Super.

1993)). The following factors are considered in making this determination: (1) the usefulness and

desirability of the product, including its utility to both the user and the public; (2) the likelihood that

the product will cause injury and the seriousness of such injuries; (3) the availability of a substitute

product which would meet the same need and not be unsafe; (4) the manufacturer’s ability to

eliminate the unsafe character of the product without impairing its usefulness or making it too

expensive to maintain its utility; (5) the user’s ability to avoid danger by the exercise of care in the

use of the product; (6) the user’s anticipated awareness of the dangers inherent in the product and

their avoidability, because of general public knowledge about the obvious condition of the product

or about the existence of suitable warnings; and (7) the feasibility, on the part of the manufacturer,

of spreading the loss by setting the price of the product or carrying liability insurance. Surace, 111

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 4 of 8
 According to Plaintiff, the hole in the machine frame housing the electrical limit switch 5

was readily visible, and given its prominent position, it was apparent to any user that the

interlocking switch could be bypassed. In this case, Defendant alleges that the switch was

intentionally bypassed by either Plaintiff or other Sonoma employees by placing a small piece of

cardboard into the hole to close the limit switch. 

“Where the product has reached the consumer or the user with a substantial change or

alteration the question becomes whether the manufacturer could have reasonably expected or

foreseen such an alteration of its product.” Davis v. Berwind Co., 690 A.2d 186, 190 (Pa. 1997);

see also Parks v. AlliedSignal, Inc., 113 F.3d 1327, 1331 (3d Cir. 1997) (“[T]he concept of

5

F.3d at 1046.

B. Defendants’ Industrial Compactor is Unreasonably Dangerous

The model M30STD downstroke baler is designed to compress paper and corrugated

cardboard. (Pl.’s Resp. Ex. A at 4.) The machine has an interlocking safety guard that is intended

to prevent it from operating when the door is open. (Id.) The safety guard is triggered by a small

post that is affixed to the inside of the access door. (Id.) When the access door is closed, the post

enters through a small hole in the frame. (Id.) Once entered, the post pushes down on an open

electrical limit switch, thereby allowing an electrical current to travel through the machine. (Id.)

With the electrical switch engaged, a user can push the start button, a steel plate inside the machine

descends, and the hydraulic cylinder attached to the plate crushes the boxes. (Id.) If the switch is

disengaged because the door is open, the steel plate can go up but cannot descend. (Id. at 5.) 

Plaintiff asserts that there are two design defects associated with the interlocking safety

switch on the compactor. First, Plaintiff argues that the safety should have been designed to be “fail

safe,” such that if the safety switch fails, the machine becomes inoperable. (Pl.’s Resp. Ex. C

(Rasnic Supplemental Report) at 1-2.) Second, as a protective measure, the safety switch should

have been designed to be less easily defeatible; in other words, it should not have been obvious to

the lay user how to undermine or bypass the safety switch. (Id. at 11- 5

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 5 of 8
foreseeability is relevant to strict products liability cases for the purpose of determining whether

the use that was made of a product at the time of the accident was one that the manufacturer

could have reasonably anticipated.”). Although Davis has been criticized for incorporating the

concept of foreseeability into the law of strict liability, see Phillips v. Cricket Lighters, 841 A.2d

1000, 1007 (Pa. 2003), the Supreme Court of Pennsylvania continues to acknowledge that

manufacturers and distributors of a product may be liable for reasonably foreseeable changes to

an otherwise safe product. See Pa. Dep’t of General Serv. v. United States Mineral Prods. Co.,

898 A.2d 590, 601 n.10 (Pa. 2006). 

Under the Davis standard, Plaintiff’s claim that the compactor should have been designed

to avoid foreseeable misuse is a tenable legal theory. Moreover, the question of foreseeability is

one for the jury. Fisher v. Walsh Parts & Serv. Co., 296 F. Supp. 2d 551, 563 (E.D. Pa. 2003).

6

13.) In support of his claim, Plaintiff has submitted expert reports from Russ Rasnic, a forensic

engineer. Rasnic proposes multiple alternative switch designs that would ameliorate these two

identified problems. Plaintiff also submits an expert report from Stephen Wilcox, who has a PhD

in experimental psychology and specializes in human factors analysis. (Pl.’s Resp. Ex. B.) Wilcox

opines that Plaintiff’s behavior relative to the machine was readily foreseeable and that the

compactor should have been designed, through mechanical safeguards or better construction, to

anticipate human reflex or error. (Id.); see also Surace, 111 F.3d at1048 (looking to human factors

analysis in design defect analysis). 

Taking into consideration all of the factors listed above, and bearing in mind that the judicial

inquiry focuses on allocation of loss, the Court concludes that, under Plaintiff’s averment of the

facts, the industrial compactor at issue in this case is unreasonably dangerous. Undoubtedly, there

is a social utility served by compacting cardboard and other waste materials. Nonetheless, the means

by which this machine performs this activity creates profound risks. According to Plaintiff’s expert

Rasnic, the hydraulic plunger descends with 10,600 to 18,380 pounds of force. Rasnic proposes a

number of design alternatives that he avers would mitigate the problems identified with the safety

switch. (Pl.’s Resp. Ex. A at 12-13 & Ex. C at 2-5.) According to Rasnic, these alternatives were

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 6 of 8
7

in existence around the time the compactor was manufactured and would have been economically

viable. (Pl.’s Resp. Ex. C at 5.) There is no evidence to suggest that the alternatives proposed by

Rasnic are not feasible or are accompanied by different dangers or hazards that would outweigh the

above-discussed benefits. See Phatak v. United Chair Co., 756 A.2d 690, 695 (Pa. Super. 2000)

(risk-utility analysis should consider hazards associated with employing alternative designs).

Finally, although the basic risk of sustaining injury while operating this machine may be

relatively obvious and avoidable with the exercise of due care, the severity of possible injury may

not be altogether obvious, especially where, as here, the safety switch on the machine was easily

bypassed and the machine was operable with the access door open. 

Taking the facts in the light most favorable to the Plaintiff and given the gravity of the

potential harms associated with the compactor and the relative ease with which the machine could

have been made exponentially safer, the Court holds that the model M30STD downstroke baler is

unreasonably dangerous as a matter of law. It will be for the jury to determine at trial: (1) whether

the product was safe for its intended use; and (2) if not, whether the design defects associated with

the machine were the proximate cause of Plaintiff’s injuries. See Spino v. John S. Tilley Ladder Co.,

696 A.2d 1169, 1172 (Pa. 1997).

III. CONCLUSION

For foregoing the reasons, the Court finds that the product model M30STD downstroke baler

is unreasonably dangerous and that Defendants should bear the risk of loss for Plaintiff’s injuries.

Additionally, the Court denies the Harmony Defendants’ Second Motion for Summary Judgement

as untimely. An appropriate Order follows. 

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BAKORE MAKADJI, :

Plaintiff, : CIVIL ACTION

:

v. :

:

GPI DIVISION OF HARMONY :

ENTERPRISES, INC., et al., : No. 05-3044

Defendants. :

ORDER

AND NOW, this 23 day of May, 2007, for the foregoing reasons, it is hereby rd

ORDERED that Defendants’ Second Motion for Summary Judgment (Document No. 49) is

DENIED.

BY THE COURT:

Berle M. Schiller, J.

Case 2:05-cv-03044-BMS Document 59 Filed 05/23/07 Page 8 of 8