1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-10-1996

LeJeune v. Bliss-Salem, Inc.

Precedential or Non-Precedential:

Docket 95-1741

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Recommended Citation

"LeJeune v. Bliss-Salem, Inc." (1996). 1996 Decisions. Paper 148.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/148
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________ 

 

 No. 95-1741 

 __________ 

 

 EDWARD C. LEJEUNE; DEBORAH LEJEUNE, 

 Appellants 

 v. 

 

 BLISS-SALEM, INC.; E.W. BLISS COMPANY;

 GENERAL ELECTRIC CO., 

 Appellees 

 ______________________________________

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 D.C. Civil Action No. 94-cv-06729 

 _____________________________________ 

 

 Argued: March 19, 1996 

Before: BECKER, McKEE and McKAY, Circuit Judges 

(Filed June 10, l996) 

 Michael J. McCaney, Jr. (ARGUED) 

 Heller, Kapustin, Gershman & Vogel 

 486 Norristown Road, Suite 230 

 Blue Bell, PA 19422 

 Attorney for appellant 

 Keith D. Heinold (ARGUED) 

 Craig S. Hudson 

 

 Marshall, Dennehey, Warner,

 Coleman & Goggin 

 1845 Walnut Street 

 Philadelphia, PA 19103 

 Attorneys for appellee General 

 

 Electric Co. 

 John R. McHaffie (ARGUED) 

 Frayne & Hatzell 

 2005 Market Street, Suite 3150 

 Philadelphia, PA 19103 
 Attorney for appellee Bliss- 

 Salem, Inc. 

 _______________ 

 

 OPINION OF THE COURT 

 _______________ 

McKAY, Circuit Judge. 

 Appellants Edward and Deborah LeJeune appeal from the district 

court's 

grant of summary judgment for the Appellees Bliss-Salem, Inc. and General 

Electric Co. 

The LeJeunes brought this negligence and strict products liability action 

against 

Appellees when Mr. Lejeune was injured while working on a piece of 

machinery 

Appellees had repaired. For the reasons that follow, we affirm the 

district court. 

 I. 

 Mr. LeJeune, a Pennsylvania resident, worked at a Delaware steel 

mill as an 

"oiler" or "lube man." As such, he was responsible for checking the oil 

and lubrication of 

various machines. Mr. LeJeune's accident occurred on a piece of machinery 

known as a 

"table." Tables consist of a frame which holds large steel cylinders 

weighing two to five 

tons each. The cylinders, powered by motors, are rotated in order to 

transport hot steel 

slabs from one processing machine to another. Gaps, approximately two 

inches in width, 

exist between cylinders. Mr. LeJeune, believing a certain table was 

deactivated, jumped 

on top of the cylinders in order to do his maintenance work. The 

cylinders were 

activated, and, as they began to roll, Mr. LeJeune was caught in the gap 

between them. 

His injuries were serious and extensive. 

 Appellees' involvement with the steel mill began when CitiSteel, 

the owner 

of the mill, hired Appellees in 1988 to refurbish the steel mill 

machinery. The mill had 

been shut down for two years and had deteriorated into a serious state of 

disrepair. 

General Electric employees were on-site for eight months repairing 

equipment. Some 

refurbishing work took place at a General Electric shop in Pennsylvania. 

Bliss-Salem 

performed most of its refurbishing work at its Ohio plant. Appellees 

finished their work 
at the steel mill approximately three years before Mr. LeJeune's accident 

occurred. 

 Basing their claim on tort theories of negligence and strict 

products liability, 

Appellants argue that the contracts between CitiSteel and Appellees 

created a duty 

requiring Appellees to redesign the steel mill equipment, eliminating any 

safety problems. 

They argue that this duty included a duty to warn of any hazards inherent 

in the 

machinery. Appellees argue that the contracts simply required them to put 

the mill 

machinery back into working order and that any duty on their part did not 

extend to 

reevaluating the safety aspects of the various machinery involved. 

 II. 

 Before we address the tort issues in this case, we must first 

decide which 

state's law applies. In choosing which law applies, a federal court 

sitting in diversity 

must apply the choice-of-law rules of the forum state. Klaxon v. Stentor 

Electric Mfg. 

Co., 313 U.S. 487, 496 (1941); Shuder v. McDonald's Corp., 859 F.2d 266, 

269 (3d Cir. 

1988). Appellants brought this action in the United States District Court 

for the Eastern 

District of Pennsylvania. Thus, we must apply Pennsylvania's choice-oflaw rules. 

 Pennsylvania choice-of-law analysis consists of two parts. 

First, the court 

must look to see whether a false conflict exists. Then, if there is no 

false conflict, the 

court determines which state has the greater interest in the application 

of its law. SeeCipolla v. Shaposka, 439 Pa. 563, 565 (1970); Lacey v. 

Cessna Aircraft Co., 932 F.2d 

170, 187 & n.15 (3d Cir. 1991) (applying Pennsylvania choice-of-law rules 

for purposes 

of forum non conveniens analysis). A false conflict exists where "only 

one jurisdiction's 

governmental interests would be impaired by the application of the other 

jurisdiction's 

law." Lacey, 932 F.2d at 187. Here, no false conflict exists. 

Pennsylvania law 

recognizes strict products liability to protect its citizens from 

defective products and to 

encourage manufacturers to produce safe products. Delaware law, however, 

does not 

recognize strict products liability based on the rationale that such 

claims are preempted by 

the Uniform Commercial Code. Cline v. Prowler Indus. of Maryland, Inc., 

418 A.2d 968 

(Del. 1980). Applying Delaware law would impair Pennsylvania's interest 

in protecting 
its citizen, Mr. LeJeune. 

 On the other hand, Delaware's interests would be impaired if 

Pennsylvania 

law were applied. Delaware has an interest in prescribing the rules 

governing torts 

occurring nonfortuitously within its borders. Under Pennsylvania choice 

of law analysis, 

a false conflict exists "where the accident is fortuitous and the state 

where the accident 

occurred has no interest in the regulatory standard at issue." Reyno v. 

Piper Aircraft Co., 

630 F.2d 149, 170 (3d Cir. 1980), rev'd on other grounds, 454 U.S. 235 

(1981); accordKuchinic v. McGrory, 422 Pa. 620, 624 (1966) (holding that 

false conflict existed 

because Georgia had no recognizable interest when accident's occurrence in 

that state was 

wholly fortuitous). 

 Here the occurrence of the accident in Delaware was not 

fortuitous. 

Delaware was the site of the accident (as well as the place where much of 

the alleged 

negligent conduct took place) because of the steel mill's fixed location 

in that state. If 

Pennsylvania law were applied, Delaware's interest in regulating 

purposeful economic 

activity within its borders would be impaired. We cannot agree with 

Appellants' assertion 

that Delaware has no interest in this case simply because Appellees have 

limited contacts 

with that state. A state's interest in enforcing its tort law is not 

constrained to protecting 

residents from harm or suit. See Schmidt v. Duo-Fast, Inc., No. 94-6541, 

1995 WL 

422681, at *1-2 (E.D. Pa. July 5, 1995) (holding that New Jersey law 

applied when New 

Jersey was the nonfortuitous site of accident even though defendant, which 

benefited 

from New Jersey law, was Illinois corporation). A state could have a host 

of reasons for 

limiting liability, including encouraging economic activity in the state 

(such as the 

rebuilding of the steel mill), and lowering costs to consumers (such as 

CitiSteel). Also 

without merit is Appellants' argument that, because Delaware's rejection 

of strict liability 

is based on its minority view that the Uniform Commercial Code preempts 

such a claim, 

its rejection of strict liability reflects no policy choice by the state. 

Delaware's decision to 

adopt and maintain the Uniform Commercial Code in light of this 

interpretation is 

obviously a policy choice. Thus, a false conflict does not exist in this 

case. 
 We must next examine which state has a greater interest in having 

its law 

applied. In making this determination, we look 

 to see what contacts each state has with the accident, the 

 contacts being relevant only if they relate to the "policies and 

 interest underlying the particular issue before the court." 

 When doing this it must be remembered that a mere counting 

 of contacts is not what is involved. The weight of a particular 

 state's contacts must be measured on a qualitative rather than 

 quantitative scale. 

Cipolla v. Shaposka, 439 Pa. 563, 566 (1970) (citations omitted). In this 

case, 

Pennsylvania's only contact with the accident is the fact that Mr. LeJeune 

is a 

Pennsylvania resident and that a small portion of General Electric's work 

took place at a 

shop in Pennsylvania. The Delaware contacts, however, are more 

substantial. The 

accident occurred in Delaware, and most of the alleged negligent conduct 

took place there 

as well. Additionally, as pointed out before, the accident's occurrence 

in Delaware was 

not fortuitous. Where the site of an accident is not fortuitous, "the 

place of injury 

assumes much greater importance, and in some instances may be 

determinative." Shields 

v. Consolidated Rail Corp., 810 F.2d 397, 401 (3d Cir. 1987); Shuder v. 

McDonald's 

Corp., 859 F.2d 266, 272 (3d Cir. 1988). Looking at these contacts 

qualitatively, we 

believe that Delaware has the greater interest in having its law applied. 

Delaware's 

contacts with the accident relate to substantive aspects of the case such 

as how and why 

certain conduct occurred. Pennsylvania's contact arises not from 

substantive matters in 

the litigation but rather from Mr. LeJeune's residence. Thus, we hold 

that Delaware law 

applies to this case. 

 III. 

 Applying Delaware law, we can immediately dispose of Appellants' 

product liability claim. Appellants' claim fails because Delaware does 

not recognize 

strict products liability. Cline v. Prowler Indus. of Maryland, Inc., 418 

A.2d 968 (Del. 

1980). Thus, we proceed to consider Appellants' remaining claim of 

negligence. 

Essentially, the parties dispute whether Appellees owed any duty to Mr. 

LeJeune. 

Appellants propose several theories under which a duty would arise in this 

case. They 
argue that a duty was created by the contracts between the steel mill 

owner and 

Appellees, by the foreseeability of harm, and by public policy. 

Appellants also argue that 

a duty was created under Restatement Second of Torts  404. Because these 

theories of 

liability are all predicated on a duty, and because the only way the 

Appellees could have 

created a duty in this case is through contract, we believe that a 

discussion of duty under 

section 404 will dispose of all the claims brought by Appellants. Where, 

as here, a 

contract is unambiguous, it is appropriate for the court to determine its 

meaning as a 

matter of law at the summary judgment stage. See Pellaton v. Bank of New 

York, 592 

A.2d 473, 478 (Del. 1991). 

 Before addressing section 404, we point out that the Delaware 

Supreme 

Court has never addressed the applicability of this particular section of 

the Restatement 

Second of Torts. We do not need to decide, however, whether the court 

would adopt the 

section because, even assuming that it would, we do not believe it creates 

a duty in this 

case. Section 404 provides: 

 One who as an independent contractor negligently makes, 

 rebuilds, or repairs a chattel for another is subject to the same 

 liability as that imposed upon negligent manufacturers of 

 chattels. 

Although this language sweeps broadly, it does not impose liability on an 

independent 

contractor for work which the independent contractor did not undertake to 

perform. Seesection 404 Comment a (independent contractor required to do 

competently everything 

"which he undertakes . . . ."). Rather, it is the scope of the 

undertaking, as defined in the 

contract, which gives shape to the independent contractor's duty in tort. 

 Appellants argue that the contracts entered into by Appellees 

required them 

either to warn of safety defects in the machinery or to redesign the 

machinery in such a 

way as to eliminate potential hazards. Appellants point to broad language 

in the contracts 

such as "General Electric will check the delineated apparatus, analyze, 

and report 

findings" and "[w]hereas [CitiSteel] desires to refurbish and revamp the 

equipment . . . 

and [Bliss-Salem] is qualified and willing to do the work as specified . . 

. ." App., Vol. II, 

at 583 (General Electric contract); id. at 628 (Bliss-Salem contract). In 

particular, 
Appellants make much of the term "revamp" in the contract. Because 

Webster's 

Unabridged Dictionary defines that term as "to renovate, redo, or revise," 

they argue, 

Appellees assumed a duty to redesign defective parts of the plate mill. 

However, not only 

does "renovate, redo, or revise" not necessarily mean "redesign," our 

version of Webster'slists "to put in repair" as the first definition of 

"revamp." This definition is entirely 

consistent with Appellees defense: that their undertaking was limited to 

"repairing" the 

mill. In any event, the contract simply states, as a preamble, that 

Appellant "desires to 

refurbish and revamp the equipment." The scope of work that Appellee (as 

opposed to 

Appellant) agreed to undertake (as opposed to merely desired) is described 

later in Article 

I. 

 The contracts contain, moreover, much more specific language 

indicating 

that Appellees were hired to do repair work only. Each contract fills 

several pages with 

detailed descriptions of repair work for each machine. For example, the 

General Electric 

contract provides the following "scope" for repair of a water pump: 

 External aluminum oxide blast clean. 

 Disassemble, clean & visual plus dimensional inspection. * 

 Assemble (new bearings, gaskets, "O" rings, bolts). 

 Report. 

App., Vol. II, at 589 (General Electric contract). The Bliss-Salem 

contract is full of 

similar language. Appellants do not point us to any language in the 

contracts which 

specifically required Appellees to redesign a machine or to warn of safety 

defects. 

Although the Bliss-Salem contract does contain a few provisions which call 

for the 

redesign of particular machine parts, Appellants have failed to alert the 

court to any 

provisions which required the redesign of the machinery involved in Mr. 

LeJeune's 

accident. No language in either contract specifically addresses the 

safety aspects of any 

piece of machinery. Thus, it is clear from reading the contracts that 

Appellees undertook 

to repair rather than redesign the steel mill machinery. 

 Appellants also attempt to show that Appellees undertook to do 

more than 

simple repair work by citing to the following deposition excerpt of Mr. 

Hearn, a CitiSteel 

official: 

 Q. Now let me ask you if the original specification was 

 deficient, would you expect the contractor to tell you that? 
 . . . . 

 A. Yes. If there was something deficient about a piece of 

 equipment, I would expect somebody to tell me. I'm not an 

 engineer myself. And if we sent a piece of equipment out to 

 Bliss or GE was here and they saw something and said, "Joe, 

 this is not designed correctly, we recommend you don't do 

 this," fine, I listen. 

App., Vol. I, at 176 (Hearn deposition excerpt). This statement is at 

best ambiguous 

concerning Appellees' supposed duty to redesign and warn about safety 

aspects of the 

machinery. In fact, Mr. Hearn also stated in his deposition that 

Appellees were not 

required to evaluate safety procedures and were only required to bring 

machinery back to 

its original working order. Id. at 172-73. Even were we to construe Mr. 

Hearn's 

statement as Appellants' wish, it would be clearly contradicted by the 

clear intent of the 

parties as expressed in the contracts themselves. Mr. Hearn's statement 

does not change 

the fact that the contracts did not require Appellees to concern 

themselves with safety 

design. Due to the limited nature of the contractual undertaking in this 

case, no duty in 

tort arose on the part of Appellees to redesign safety features of the 

equipment or to warn 

of potential hazards. 

 Even where the scope of an independent contractor's undertaking 

does not 

give rise to liability for design problems in a product, a duty may still 

arise if the product 

is "so obviously bad that a competent contractor would realize that there 

was a grave 

chance that his product would be dangerously unsafe." Section 404 comment 

a. 

Appellants argue that General Electric was aware of the safety problems 

inherent in the 

machinery they were fixing. They point to the fact that an accident 

similar to Mr. 

LeJeune's almost occurred while General Electric employees were testing 

equipment. 

General Electric averted an accident by simply looking to see if anyone 

was on the 

equipment before energizing it. We do not believe that this single 

incident, in which no 

accident occurred, was so "obviously bad" that it would give rise to a 

duty not 

contemplated in the original contract. 

 The judgment of the district court will be affirmed. 

 _______________________