1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-1997

Parks v. Alliedsignal Inc

Precedential or Non-Precedential:

Docket 96-3256

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Recommended Citation

"Parks v. Alliedsignal Inc" (1997). 1997 Decisions. Paper 104.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/104
Filed May 14, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-3256 

EDITH J. PARKS, Individually, Personal Representative of 

the Estate of Leslie E. Parks, Deceased and as parent and 

next friend of Kori J. Parks 

v. 

ALLIEDSIGNAL, INC.; THE WARNER & SWASEY 

COMPANY; THE GRADALL COMPANY 

EDITH J. PARKS, Individually, As Personal Representative 

of the Estate of Leslie E. Parks, Deceased, and as parent 

and next friend of Kori J. Parks, 

Appellant 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 92-cv-02105) 

Argued: February 11, 1997 

BEFORE: GREENBERG, COWEN and McKEE, 

Circuit Judges

(Filed May 14, 1997) 
L. Palmer Foret, Esq. (argued) 

Foret and Thompson 

1275 K Street, N.W. 

Suite 1101 

Washington, D.C. 20005 

Counsel for Appellant 

Edith J. Parks 

Michael D. Heintzman, Esq. (argued) 

Kenneth F. Klanica 

Heintzman, Warren & Weis 

707 Grant Tower 

Gulf Tower, 35th Floor 

Pittsburgh, PA 15219 

Counsel for Appellees 

AlliedSignal, Inc. 

The Gradall Company 

OPINION OF THE COURT 

COWEN, Circuit Judge. 

Edith J. Parks (Mrs. Parks) appeals from the April 1, 

1996, order of the United States District Court for the 

Western District of Pennsylvania denying her a new trial in 

a strict products liability tort action. She asserts that the 

district court erred in instructing the jury as to causation 

and contributory negligence, and in failing to take sufficient 

steps to ensure that defendants complied with discovery 

orders. We agree and will reverse and remand for a new 

trial. 

I. 

Mrs. Parks alleges that defective visibility features on 

AlliedSignal's Gradall G-600 excavating machine caused 

her husband's death. Leslie Parks (Mr. Parks) was a general 

laborer for Allegheny Sand, Inc. Mrs. Parks is his widow. 

Mr. Parks was killed while working with the Gradall

machine, an excavator with two separate cabs that is used 

 2 
for breaking boulders into smaller pieces. One cab is in the 

front, as in an ordinary truck, and is occupied by the driver 

of the vehicle. The second cab, at the rear, is attached to 

and controls the excavating arm. 

The second cab, the arm, and the arm's counterweight 

are all in one line. The counterweight keeps the machine 

from tipping when the arm is used off-center. When the 

second cab operator moves the arm as if tracing a circle, 

the machine's entire arm (including the counterweight) 

swings around a central point. The operator sits in the 

middle, swinging along with the arm. The operator's seat 

faces the excavating arm, and the counterweight swings out 

behind his back. The cab has no mirrors, so the operator 

has no view to the area behind him and only limited side 

visibility while operating the controls. 

On the morning of the accident, Mr. Parks and two coworkers, at the direction of their supervisor, endeavored to 

break some blocks of carbon. The machine's regular shovel 

had been replaced by Mr. Parks' employer with a chipper 

attachment used for carbon-breaking. From outside the 

machine, Mr. Parks directed his co-workers, who occupied 

the two cabs and controlled the truck. Alan McMunn,

sitting in the front cab, drove the machine to the back of a 

shed where the carbon was stored. William Kline, in the 

second cab, operated the excavator arm and boom. 

Mr. Parks walked to the back of the shed. As McMunn

pulled the machine into the shed, Mr. Parks directed him. 

Mr. Parks told Kline to swing the boom to the left. The 

instruction sent the excavating arm's counterweight on a 

collision course with Mr. Parks. Mr. Parks was pressed 

between the counterweight and the wall, causing his death. 

Mrs. Parks sought to hold AlliedSignal liable on the 

theory that it failed to install a rear-view mirror or 

alternative safety device on the Gradall machine. She 

alleged that this omission made the product "unreasonably 

dangerous" because it caused the vision of the second cab's 

operator to be needlessly circumscribed. Over objections by 

Mrs. Parks, the district court admitted evidence concerning 

Mr. Parks' conduct immediately prior to his death. The 

district court refused to charge the jury that Mr. Parks' 

 3 
conduct could be viewed as a legal cause of his death only 

if it were unforeseeable. 

The jury found that the product was indeed defective, but 

nevertheless returned a verdict for the manufacturer. The 

verdict was presumably based on the finding of the jury 

that the defect was not "a substantial factor" in causing the 

death. Parks' motion for a new trial was denied. Mrs. Parks 

argues that the district court erred when it failed to charge 

the jury that if Mr. Parks' conduct were foreseeable, such 

conduct could not have broken any chain of causation 

linking the alleged defect to his death. 

In addition, during the trial Mrs. Parks sought to compel 

disclosure of information that she had requested during 

pre-trial discovery, but which allegedly had not been 

divulged. That information concerned other accidents 

involving similar machines and the placement of mirrors on 

those machines. The district court granted the motion to 

compel,1 but the record on appeal raises serious questions 

as to whether defendants properly complied with discovery 

orders. 

II. 

The district court exercised jurisdiction pursuant to 28 

U.S.C. § 1332 (1993), diversity of citizenship. We have 

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 

(1993). Concerning the propriety of the charge delivered to 

the jury, our standard of review is plenary, as we are 

reviewing whether the district court erred in formulating a 

legal precept. See Hook v. Ernst & Young, 28 F.3d 366, 370 

(3d Cir. 1994)(citing Griffiths v. CIGNA Corp., 988 F.2d 457, 

462 (3d Cir. 1993)(citing Rotondo v. Keene Corp, 956 F.2d 

436, 438 (3d Cir. 1992))). We review the supervision of 

discovery by the district court for abuse of discretion. See

United States v. 27.93 Acres of Land, 924 F.2d 506, 510 (3d 

Cir. 1991); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 

(3d Cir. 1983). 

_________________________________________________________________ 

1. App. at 528-531. 

 4 
III. 

We initially review two key questions raised on this 

appeal. First, what must a plaintiff show in order to recover 

in a strict products liability tort action under Pennsylvania 

law, which incorporates section 402A of the Restatement 

(Second) of Torts? Second, having admitted evidence of a 

decedent's conduct immediately before an accident, what 

must a district court do to fulfill its obligation to explain to 

a jury the appropriate use of such information? 

A. Section 402A 

Section 402A, which was adopted by the Supreme Court 

of Pennsylvania in Webb v. Zern, 220 A.2d 853, 854 (Pa. 

1966), "imposes strict liability for injuries caused by 

defective product design."2 Pacheco v. Coats Co., Inc., 26 

F.3d 418, 421 (3d Cir. 1994)(citing Lewis v. Coffing Hoist

Div., Duff-Norton Co., 528 A.2d 590, 592 (Pa. 1987)). See

also Phillips v. A-Best Products Co., 665 A.2d 1167, 1170 

(Pa. 1995)(acknowledging Pennsylvania's adoption of

section 402A). In the words of the Pennsylvania Supreme 

Court, "Section 402A . . . requires only proof that a product 

was sold in a defective condition unreasonably dangerous 

_________________________________________________________________ 

2. 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 contractual relations with the seller.

RESTATEMENT (SECOND) OF TORTS § 402A (1965). 

 5 
to the user or consumer, and that the defect was the 

proximate cause of plaintiff's injuries." Walton v. Avco

Corp., 610 A.2d 454, 458 (Pa. 1992). "Manufacturers are 

held as guarantors upon a finding of defect and causation." 

Id. at 462. 

In order to prevail in a section 402A action, the plaintiff 

must show that a product is "unreasonably dangerous to 

intended users for its intended use." Pacheco, 26 F.3d at 

422 (emphasis omitted). In interpreting the phrase 

"intended use", we have held that "the intended use of a 

product `includes all those [uses] which are reasonably 

foreseeable to the seller.' " Id. (quoting Sheldon v. West

Bend Equip. Corp., 718 F.2d 603, 608 (3d Cir. 

1983)(alteration added)). Under the strict liability test, 

therefore, a defendant is liable for causing injury to a 

person who was behaving in a foreseeable manner. This 

principle is reflected in the jury instruction recommended 

by Pennsylvania's Committee for Proposed Standard Jury 

Instructions, which the Pennsylvania Supreme Court 

endorsed in Azzarello v. Black Bros. Co., Inc.: 

The product must . . . be provided with every element 

necessary to make it safe for [its intended] use, and 

without any condition that makes it unsafe for [its

intended] use. If you find that the product, at the time 

it left the defendant's control, lacked any element

necessary to make it safe for [its intended] use or

contained any condition that made it unsafe for[its

intended] use, then the product was defective, and the 

defendant is liable for all harm caused by such defect. 

391 A.2d 1020, 1027 n.12 (Pa. 1978). See also Lewis v.

Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590, 593 (Pa. 

1987). 

1. Foreseeability 

Section 402A liability cannot be found if, at the time of 

the accident, the product was being used in an 

unforeseeable manner. The requirement of foreseeability 

therefore enables strict liability to exist without

transforming manufacturers into absolute insurers of their 

products. The importance of this rule has been repeatedly 

 6 
demonstrated in the courts. In Sheldon, 718 F.2d at 608, 

we held that "the district court[ ][should not] fail[ ] to 

instruct the jury to the effect that the intended use of a 

product includes any use which is reasonably foreseeable 

to the seller." See also Schell v. AMF, Inc., 567 F.2d 1259, 

1263 (3d Cir. 1977)(quoting Kuisis v. Baldwin-LimaHamilton Corp., 319 A.2d 914, 921 n.13 (Pa. 

1974))("whether a particular use of a product is abnormal 

depends on whether the use was reasonably foreseeable by 

the seller."). In Eck v. Powermatic Houdaille, 527 A.2d 1012, 

1019 (Pa. Super. 1987), the Superior Court of Pennsylvania 

reversed a trial court on the grounds that "the established 

rule of law . . . requires consideration of `foreseeability' " in 

the jury instruction in a strict products liability action. 

The concept of 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. See Schell, 567 F.2d at 1263. In order to 

prevail in a section 402A products liability action, then, the 

plaintiff must show that: (1) a product defect (2) caused a 

harm (3) while the product was being used in a foreseeable 

manner. 

As the Pennsylvania Superior Court held in Sweitzer v.

Dempster Sys., 539 A.2d 880, 882 (Pa. Super. 1988)(citing 

Salvador v. Atlantic Steel Boiler Co., 319 A.2d 903, 907 (Pa. 

1974)(emphasis added)): 

The role of foreseeability in a product liability case is 

consistent with the broad and sound social policy 

underlying § 402A; that is, as between an innocent 

user of a product and a manufacturer or seller who is 

engaged in the business of manufacturing or selling a 

product, risk of loss for injuries resulting from the use

of a defective product shall be borne by the

manufacturer and/or seller. 

Of course, a defect may produce manufacturer liability in a 

given case only when the harm caused is of the type

threatened by the defect. 

 7 
2. "Substantial Factor" Causation as it Relates to 

Foreseeability 

In determining how the elements of foreseeability and 

causation may properly be demonstrated in the instant 

case, we are again guided by Pennsylvania law. When

addressing causation, Pennsylvania has rejected the "but 

for" test and adopted the "substantial factor" test as 

embodied in the Restatement (Second) of Torts § 431, which 

provides: 

The actor's negligent conduct is a legal cause of harm 

to another if: (a) his conduct is a substantial factor in 

bringing about the harm, and (b) there is no rule of law 

relieving the actor from liability because of the manner 

in which his negligence resulted in the harm. 

See Trude v. Martin, 660 A.2d 626, 632 (Pa. Super. 

1995)(citing Whitner v. Von Hintz, 263 A.2d 889 (Pa. 1970)). 

The courts of other states following the Restatement have 

defined a "substantial factor" as one that is not "merely 

negligible." ACandS v. Asner, 686 A.2d 250, 260 (Md. 

1996). "Stated differently, `[l]iability attaches not only to the 

dominating cause but also to any cause which constitutes 

at any event a substantial factor in bringing about the

injury.' " Dawson v. Bunker Hill Plaza Assocs., 673 A.2d 

847, 853 (N.J. Super. App. Div. 1996)(quoting Peer v. City

of Newark, 176 A.2d 249 (N.J. Super. App. Div. 

1961)(emphasis added)). The substantial factor test has 

replaced the "but for" causation test in strict liability 

contexts precisely because in design defect cases it is 

typically a matter of speculation whether the presence of a 

safety device would, in a given instance, have actually 

prevented a harm. See Yukon Equip., Inc. v. Gordon, 660 

P.2d 428, 433 (Alaska 1983)(stating that "but for" causation 

jury instruction was improper in manufacturer's design 

defect case), overruled on other grounds, Williford v. L.J.

Carr Invs., Inc., 783 P.2d 235 (Alaska 1989). 

Our review of Pennsylvania law dictates that a plaintiff's 

conduct may be introduced to undermine a plaintiff's claim 

that the defect caused his accident only insofar as the 

plaintiff's conduct was unforeseeable to the defendant, 

even where the plaintiff played some part in setting the 

 8 
accident in motion. Evidence concerning a decedent's 

possible role in bringing about his or her own death is 

admissible only to support defendant's claim that the 

conduct was so "extraordinary" or "[un]foreseeable" that it 

would be unjust to hold the defendant liable for the harm. 

See. e.g., Holloway v. J.B. Sys., Ltd., 609 F.2d 1069, 1074 

(3d Cir. 1979). When courts admit such testimony, they 

must elucidate the limited permissible uses of that

evidence, as it is highly susceptible to misinterpretation by 

the jury. 

In determining causation, therefore, the task of the jury 

is not simply to determine whether the plaintiff played a 

part in causing the accident. Rather, the threshold question 

is whether the plaintiff's actions were foreseeable. As noted 

above, the manufacturer is responsible for making the 

product safe for all foreseeable uses. Decorative Precast

Stone Erectors, Inc. v. Bucyrus-Erie Co., 493 F. Supp. 555, 

557 (W.D. Pa. 1980), aff'd, 642 F.2d 441 (3d Cir. 1981), 

informs us that under Pennsylvania products liability law, 

if both a manufacturer's defect and a plaintiff's conduct are 

found to be proximate causes, the plaintiff will recover 

unless the defendant meets the burden of proving that 

plaintiff's conduct was so unforeseeable as to constitute a 

superseding cause. See infra, Sec. III.A.3. If foreseeable, the 

jury must find for the plaintiff unless it finds that the defect 

did not play even a substantial, or more than negligible, 

role in causing the plaintiff's injury. In Schell, 567 F.2d at 

1263 (citing Barkewitch v. Billinger, 247 A.2d 603, 605)(Pa. 

1968)), we explained that recovery is allowed where the 

absence of a safety device caused an injury of the type that 

could be expected from the foreseeable use of the product.3 

_________________________________________________________________ 

3. The dissent writes that 

The result the majority reaches does not take into account the 

distinction in Pennsylvania law between treatment of a plaintiff's 

negligence which is the sole cause of the injury and a plaintiff's 

negligence which combines with the defect in the product to cause 

the injury. Negligence of the second kind could defeat the claim only 

if it is . . . unforeseeable. 

Dissent at 29. The instant case is precisely of the second type: the jury 

explicitly answered yes to the question, "Was the Gradall excavator 

 9 
The element of causation, while required, is not the 

primary focus of section 402A cases. Causation may be 

shown by process of elimination or circumstantial evidence. 

In cases dealing with product malfunction, for instance, 

Pennsylvania appellate courts have consistently reversed 

trial courts for not sending to the jury cases in which 

causation had not been directly demonstrated. See, e.g., 

Ducko v. Chrysler Motors Corp., 639 A.2d 1204 (Pa. Super. 

1994); Agostino v. Rockwell Mfg. Corp., 345 A.2d 735 (Pa. 

Super. 1975); Burchill v. Kearney-Nat'l Corp. v.

Pennsylvania, 468 F.2d 384 (3d Cir. 1972). Similarly, in 

MacDougall v. Ford Motor Co., 257 A.2d 676, 680 (Pa. 

Super. 1969) overruled on other grounds, REM Coal Co. v.

Clark Equip. Co., 563 A.2d 128, 134 (Pa. Super. 1989),4 the 

Pennsylvania Superior Court stated: 

The evidentiary requirements of negligence law demand 

proof that injury is proximately caused by a specific 

defect in design or construction because liability hinges 

upon whether the accident could have been avoided by 

the exercise of reasonable care. In contrast, the 

_________________________________________________________________ 

defective at the time it was manufactured and sold?" App. at 432. The 

machine's defect was impaired visibility of precisely the area in which 

the accident occurred. In accordance with the dissent's above 

description, the manufacturer of the defective product in this case 

should be held liable unless the plaintiff's actions were unforeseeable. 

See also the criticism of Foley articulated in Dillinger, discussed infra in 

this opinion at 14-16. The dissent points out that the jury responded 

"no" to the question, "Was the defect in the excavator a substantial 

factor in bringing about Mr. Parks' death?" Dissent at 32. But our 

holding today is that the jury instructions did not properly illuminate, 

inter alia, what constitutes a substantial factor in a strict products 

liability action, so this question was not adequately explained to the jury. 

Having found that the Gradall machine was defective, the jury could 

have found that the defect was not a substantial factor in causing 

plaintiff's injury only if it found that had the mirror been in place, the 

driver would not have glanced into it before backing. Only in this sense 

does causation remain a factor susceptible to dispute. As this is a strict 

products liability action, the plaintiff's foreseeable actions remain 

immaterial to the question of causation. 

4. We note that the dissent does not address these cases. 

 10 
concern of both section 402A and warranty law is with 

the fitness of the product. 

The de-emphasis of causation is a natural corollary of the 

distinction between negligence and strict products liability. 

In strict products liability, the focus is on whether the 

product was sold in an unreasonably dangerous condition 

for reasonably foreseeable uses. See Carpenter v. Koehring

Co., 391 F. Supp. 206, 210-211 (E.D. Pa. 1975), aff'd, 527 

F.2d 644 (3d Cir. 1976). In negligence, by contrast, the 

focus is on whether a duty of care was breached. See

Kuisis, 319 A.2d at 920. In either negligence or strict 

products liability, proximate cause defines "such limits on 

recovery as are economically and socially desirable." Klages

v. General Ordnance Equip. Corp., 367 A.2d 304, 313 (240 

Pa. Super. 1976). In the products liability area, 

Pennsylvania has determined that it is economically and 

socially desirable to hold manufacturers liable for accidents 

caused by their defective products, without introducing 

negligence concepts of comparative fault that would weigh 

the manufacturer's negligent conduct against that of the 

injured product user. See Walton, 610 A.2d at 462. See also

infra, Sec. III.A.4. 

3. Superseding or Intervening Cause 

The test for what constitutes a superseding cause reflects 

the de-emphasis of causation in strict products liability 

litigation. Klages explains that a reasonably foreseeable 

intervening act cannot "satisfy the requirements of a 

superseding cause."5 367 A.2d at 313. In a section 402A 

strict liability tort claim such as that in the instant case, "a 

_________________________________________________________________ 

5. The RESTATEMENT (SECOND) OF TORTS § 440 defines superseding cause as 

"an act of a third person or other force which by its intervention prevents 

the actor from being liable for harm to another which by its antecedent 

negligence is a substantial factor in bringing about." Superseding cause 

(and the related intervening cause, defined in section 441) is a 

comparative negligence concept, whereby an actor's liability is 

diminished due to the injured party's own negligence. In order to be 

compatible with strict products liability, the concept must be 

substantially narrowed to eliminate any foreseeable conduct of the 

injured party. 

 11 
negligent intervening act, to relieve defendant of 

accountability, must be . . . `so extraordinary as not to have 

been reasonably foreseeable.' " Eshbach v. W.T. Grant's and

Co., 481 F.2d 940, 945 (3d Cir. 1973)(quoting Dorsey v.

Yoder Co., 331 F. Supp. 753, 764 (E.D. Pa. 1971)(quoting 

Wilson v. American Chain and Cable Co., 364 F.3d 558, 562 

(3d Cir. 1966))). Similarly, in Baker v. Outboard Marine

Corp., 595 F.2d 176, 182 (3d. Cir. 1979), we held that the 

intervening negligence of a third party could serve as a 

superseding cause of injuries to shield defendant 

manufacturer from liability to plaintiff only if it were "so 

extraordinary as not to have been reasonably foreseeable." 

Id. at 182 (quoting Eshbach, 481 F.2d at 945). See also

Williford, 783 P.2d at 237 (act may constitute superseding 

cause only if, in addition to being unforeseeable by 

defendant, it was highly extraordinary). 

In short, even if an intervening but foreseeable action is 

responsible for the major share of a strict products liability 

injury, that action cannot ordinarily be held to be the legal 

cause of the injury. Instead, it is removed from the picture, 

and liability attaches to the remaining causal actor or 

actors. Here, if the possibility of a person standing in the 

path of the Gradall is found to be foreseeable or ordinary, 

Mr. Parks' actions cannot legally be viewed as disrupting or 

otherwise playing a part in the causal chain that 

culminated in his death. 

4. Rejection of Comparative Fault 

The above-described approaches to foreseeability, 

causation, and superseding cause in Pennsylvania strict 

products liability cases are compelled by Pennsylvania's 

rejection of comparative fault. Of particular relevance to the 

instant case, Walton explained that 

[The Pennsylvania Supreme] Court has continually 

fortified the theoretical dam between the notions of 

negligence and strict "no fault" liability. It would serve

only to muddy the waters to introduce comparative fault

into an action based solely on strict liability. 

610 A.2d at 462 (citations omitted)(emphasis added). It has 

been noted by numerous courts that "[t]he Pennsylvania 

 12 
Supreme Court, perhaps more than any other state 

appellate court in the nation, has been emphatic in

divorcing negligence concepts from product-liability 

doctrine." Kern v. Nissan Indus. Equip. Co., 801 F. Supp. 

1438, 1440 (M.D. Pa. 1992)(quoting Conti v. Ford Motor Co., 

578 F. Supp. 1429, 1434 (E.D. Pa. 1983), rev'd on other

grounds, 743 F.2d 195 (3d Cir. 1984)). 

The Pennsylvania Supreme Court recently explained its 

reasons for not extending the defense of comparative 

negligence to a strict products liability action: 

Our position is not based solely on the problem of the 

conceptual confusion that would ensue should 

negligence and strict liability concepts be commingled, 

although that concern is not negligible. Rather, we

think that the underlying purpose of strict product

liability is undermined by introducing negligence 

concepts into it. Strict product liability is premised on 

the concept of . . . liability for casting a defective 

product into the stream of commerce. 

 The deterrent effect of imposing strict product 

liability standards would be weakened were we to allow 

actions based upon it to be defeated, or recoveries

reduced by negligence concepts. 

Kimco Dev. v. Michael D's Carpet Outlets, 637 A.2d 603, 

606-607 (Pa. 1993)(emphasis added). 

Similarly, in McCown v. Int'l Harvester Co., 342 A.2d 381 

(Pa. 1975), the plaintiff, as here, was injured by an 

industrial vehicle. According to the plaintiff, the machine's 

design was defective and caused his injuries. The defendant 

argued that plaintiff's contributory negligence should have 

been considered either to reduce the plaintiff's permissible 

recovery or as a defense to liability. The Pennsylvania 

Supreme Court disagreed, explaining that it would be 

unwise to "create a system of comparative assessment of 

damages for 402A actions." Id. at 382. 

Pennsylvania's wish to avoid "muddy[ing] the waters" 

dictates that in discussing causation, the comparative fault 

of the parties involved is immaterial. Rather, the focus is 

again on whether the activity engaged in by the plaintiff 

 13 
was foreseeable. If foreseeable, and the defect is found to 

have been a cause of the injury, the plaintiff's actions 

cannot preclude defendant liability. Any other approach 

would require weighing negligence or lack of care, which 

would inject comparative fault into strict products liability. 

In Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 

1992), which undertook an extensive survey of 

Pennsylvania products liability law, the trial court's final 

charge expressly permitted the jury to consider plaintiff's 

alleged negligence when determining whether defendant's 

product caused his injuries: "The defendant denies that it 

is liable for plaintiff's injuries. Defendant contends that the 

773 truck was not defectively designed, and that any 

injuries sustained by plaintiff were caused by the acts of 

plaintiff himself." 959 F.2d at 440. In Dillinger, we reversed, 

disapproving this jury charge because we found that it 

"effectively framed the issue as one of contributory 

negligence . . . ." Id. at 440 n.18. The defendant "point[ed] 

to a line of cases which suggest[ ] that, although evidence 

of a plaintiff's contributory negligence is ordinarily 

inadmissible, it is admissible to rebut the `causation' prong 

of a products liability claim." Id. at 441. 

We rejected the defendant's arguments and found the

line of cases cited to be "in some instances[irreconcilable] 

with the Pennsylvania Supreme Court's declarations on this 

subject." Id. at 441. We also distinguished that line of cases 

from the case then before us, by explaining that in the 

cases cited by the defendant, "the plaintiff's conduct [had] 

actively contributed to the cause of the accident, [rather 

than] merely [failing] to prevent the accident attributable to 

the defect." Id. at 442. We reasoned in Dillinger that the 

evidence of the plaintiff's conduct was especially 

inadmissible when the conduct was "merely insufficient to 

prevent the accident attributable to the defect." Id. In 

Dillinger, therefore, we left open the question of whether a

different result would obtain where the plaintiff's conduct 

had been more than "merely insufficient to prevent the 

accident attributable to the defect." Id.

The argument of the defense in the instant case--that a 

plaintiff's foreseeable conduct can break the causal chain 

set in motion by a product defect--was championed in 

 14 
Foley v. Clark Equip. Co., 523 A.2d 379 (Pa. Super. 1987). 

But as we stated in Dillinger and reiterate today, we believe 

that case is inconsistent with Pennsylvania strict products 

liability law. Dillinger, 959 F.2d at 443. In Foley, the 

Superior Court endorsed the admission of evidence of a 

plaintiff's contributory negligence in a section 402A suit. 

There, as here, the plaintiff was struck by an industrial 

vehicle when the operator failed to notice him. The plaintiff 

alleged that the manufacturer had defectively designed the 

vehicle in that, inter alia, the driver's view was improperly 

obstructed. The Superior court stated that "negligen[t] 

conduct is admissible where it is relevant to establish 

causation[,]" and plaintiff's allegedly negligent behavior is 

admissible for this purpose. Foley, 523 A.2d at 393. 

Nonetheless, we explained in Dillinger that 

there is no meaningful way to reconcile the view that a 

plaintiff's negligence of the type involved in Foley

should be admitted to undercut causation with the 

Supreme Court's prohibition of the introduction of a 

plaintiff's negligence to defeat liability. . . . In Foley, 

the plaintiff did not observe the oncoming forklift and 

did not move out of its way. Because the driver 

similarly had not noticed the plaintiff, the driver

crashed into him. Although the plaintiff contended that 

the design of the forklift . . . was defective because, in 

part, . . . [of the] obstructed . . . view, the court 

permitted the defendant to introduce evidence of the 

plaintiff's inattention because the accident could have 

been avoided if the plaintiff had not acted negligently. 

. . . [T]here is no principled reason to prohibit evidence 

of the plaintiff's negligence in McCown but permit 

evidence of an almost identical character in Foley. 

959 F.2d at 443-44. The fact that the plaintiff in Foley

could have moved out of the way does not mean that Foley 

caused the accident, and that the driver (who also could 

have moved out of the way) did not cause the accident. 

Obstructed vision was a proximate cause of plaintiff's 

injuries in Foley; no meaningful distinction can be made 

between the operator's and the plaintiff's roles in causing 

the accident. 

 15 
In Dillinger, although we did not endorse as dispositive 

the distinction between plaintiffs who "set [their] accident[s] 

in motion" and those who merely fail to stop them, we 

limited our holding to cases in which the plaintiff merely 

failed to stop his injury from being caused by a product 

defect. 959 F.2d at 444. This distinction is somewhat 

artificial, as plaintiff's conduct will often be susceptible to 

characterization in either category. But assuming that in 

directing the operator to swing the boom, Mr. Parks "set the 

accident in motion," we will now address the question of 

the permissible uses of evidence of plaintiff's conduct 

where such conduct has actively "set the accident in 

motion." Id.

Based on the foregoing discussion of the permissible uses 

of plaintiff's conduct evidence in section 402A actions, we 

find that the evidence of Mr. Parks' actions preceding his 

death were appropriate for the jury to consider only if they 

decided that those actions were not reasonably foreseeable 

or were otherwise extraordinary. In failing to put that test 

to the jury, the district court gave the impression that the 

jury's function was to assess the relative contributions of 

Mr. Parks and the machine's defect in causing Mr. Parks' 

death. As a matter of law, however, strict products liability 

demands that a plaintiff's foreseeable actions can never 

displace manufacturer liability when a product defect was 

a substantial factor in causing the plaintiff's injury. 

B. Jury Instructions 

When reviewing the sufficiency of jury instructions, our 

task is to determine whether the "instruction was capable 

of confusing and thereby misleading the jury." Bennis v.

Gable, 823 F.2d 723, 727 (3d. Cir. 1987)(quoting United

States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d 

Cir. 1984)). Defendants contend that the district court's 

instructions were sufficient. But the several pages of 

sometimes contradictory instructions nowhere state that 

the jury must not consider the foreseeable or ordinary uses 

of a product to be a legal cause of an accident, in the sense 

that foreseeable actions cannot limit a defendant's liability. 

The actions of Mr. Parks may be weighed in the causation 

calculation only if the jury finds them to have been 

 16 
unforeseeable or extraordinary. Omission of this 

requirement is a clear violation of our holding in Sheldon, 

718 F.2d at 608 ("On remand . . . the district court should 

. . . charge the jury that the intended use of a product 

includes all those [uses] which are reasonably foreseeable 

to the seller."). 

Furthermore, our holding in Baker demonstrates that 

instructions that contain some characterizations of the law 

that are accurate will nonetheless be unacceptably tainted 

by the presence of other, misleading comments: 

The district court stated in its opinion denying the new 

trial motion that its instruction that there may be more 

than one proximate cause, and that Outboard would 

be liable if a defect [were] "[a] proximate cause,"

adequately informed the jury that it could find[the

defendant] to be negligent, and further find her 

negligence to be . . . `a' proximate cause[,] was greatly 

diminished [by other instructions]. . . . .[T]he case will 

be remanded for a new trial. 

Baker, 595 F.2d 176, 184 (citation omitted). 

In Eshbach, we reversed the district court because it 

failed to either "remove the question of [third-party] 

negligence entirely from the case or, if it was to be 

considered, to instruct the jury as to the limits of its 

application." 481 F.2d at 945. Strict liability means that an 

entity is liable for all accidents caused unless they are 

extraordinary or unforeseeable, regardless of the level of 

vigilance demonstrated by others. 

In the present case, the district court's instructions to 

the jury spread over several pages of the transcript, and the 

summary of the instructions offered at the end misstated 

the appropriate analysis. The district court accurately 

stated, 

if you find that a defect in a product was a substantial 

factor in bringing about harm, the manufacturer 

and/or seller of the product is responsible for that 

harm even though you may have found that there were

other substantial factors as well as a defect in bringing 

about the harm. 

 17 
App. at 414-15. But the district court impermissibly 

blurred the matter in summarizing the instructions:

 If you determine that the defendants manufactured 

and sold the excavator lacking an element necessary to 

make it safe for its intended use and that the lack of 

this element or elements was a substantial factor in 

bringing about the incident which resulted in Mr. 

Parks' death, then you will find that the defendants are 

liable to the plaintiff. Otherwise, you will find in favor

of the defendants. Likewise, your verdict will be for

defendants if you find that either the conduct of the

decedent's employer . . . was a legal cause of the

accident or if you find that the conduct of Mr. Parks

himself or the conduct of his co-workers was also a

legal cause of the accident and that the alleged defect

was not a legal cause of the accident.

 So, in order to find for the defendants, you must find

that the alleged defect was not the legal cause of the

accident. 

App. at 418-19 (emphasis added). Here, in concluding, the 

court instructed that the defendant will prevail if "you . . . 

find . . . that the alleged defect was not the legal cause of 

the accident." The use of "the" rather than "a" indicated 

that the legal cause must be predominant, or greater than 

all others, rather than one of several, of varying (albeit 

"substantial") weights. 

As noted above, the primary reason that the instruction 

is fatally erroneous is not its particular wording but that it 

failed to require the jury to analyze whether Mr. Parks' 

actions were unforeseeable or extraordinary. If the jury 

found that the actions were neither unforeseeable nor 

extraordinary, it could not have found his actions to be "a 

legal cause" of his injury. Yet in the above-quoted

instruction, the court indicated that Mr. Parks' conduct 

could be a "legal cause of the accident" without explaining 

that this was true only if the conduct were extraordinary or 

unforeseeable. 

The centrality of foreseeability to Pennsylvania strict 

products liability law was recently reaffirmed in Childers v.

Power Line Equip. Rentals, Inc., 681 A.2d 201, 208-209 (Pa. 

 18 
Super. 1996), which held that evidence of an injured party's 

conduct was properly barred from a strict liability action 

because the defendant had failed to demonstrate that the 

injured party acted in an "unforeseeable," "reckless," 

"extraordinary," or "outrageous" manner. Here, having 

admitted evidence of plaintiff's conduct, the district court is 

obligated firmly to instruct the jury that a plaintiff's 

comparative fault is no defense to defendant liability, and 

should not be weighed against the manufacturer's alleged 

defect as a potential cause of the injury. 

IV. 

We now shift our focus from the jury instructions at trial 

to the discovery process. It appears that defendants did not 

produce discovery information concerning other similar 

accidents, of which there were at least five. Defendants 

concede that all information on these five other accidents 

came from the investigation conducted by plaintiff, and was 

not disclosed by defendants in discovery. AlliedSignal 

introduced specific information about these accidents only 

at trial, when arguing that evidence of their occurrence 

should be inadmissible. In addition, the record contains 

credible evidence that defendants failed to reveal the 

existence of safety mirrors on comparable machines,

including the Gradall 880-C. 

These apparent discovery abuses did not become evident 

until trial. While we make no definitive assessments as to 

the propriety of defendants' actions, on retrial the district 

court is directed to superintend with care and be confident 

that defendants properly and adequately disclose materials 

to which the plaintiff is rightfully entitled. Specifically, 

discovery orders that the court entered in the original trial, 

and which apparently were not heeded in full, shall be 

zealously policed by the district court. 

V. 

For the reasons stated above, we will reverse the district 

court's April 1, 1996, denial of appellants' motion for a new 

trial and remand for a new trial. 

 19 
McKEE, Circuit Judge, concurring: 

I join Judge Cowen's opinion. However, I write separately 

to state my understanding of what we hold today, and to 

comment upon the problems I perceive in the approach 

taken by our colleague, Judge Greenberg. In my view, that 

approach opens the door that the Pennsylvania Supreme 

Court closed in Azzarello v. Black Brothers, Co., 391 A.2d 

1020 (Pa. 1978), and beckons comparative fault to reenter 

discussions of strict liability. Any discussion of strict 

liability must adhere to the policy considerations endemic 

to § 402A of the Second Restatement of Torts. As we noted 

in Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992) 

in our discussion of Berkebile v. Brantly Helicopter Corp., 

337 A.2d 893 (1975): 

The law of products liability developed in response to 

changing societal concerns over the relationship 

between the consumer and the seller of a product. The 

increasing complexity of the manufacturing and 

distributional process placed upon the injured plaintiff 

a nearly impossible burden of proving negligence 

where, for policy reasons, it was felt that a seller 

should be responsible for injuries caused by defects in 

his products. 

959 F.2d at 435 (citation omitted). 

Judge Greenberg reads our decision in Dillinger as 

precluding "inject[ion]" of "negligence principles in strict 

liability actions" only in those circumstances where the 

plaintiff's conduct "exacerbated or failed to prevent an 

injury caused by the defect." Dissent at 28. Judge 

Greenberg also states that the law of Pennsylvania does not 

preclude consideration of a plaintiff's conduct where that 

"conduct . . . caused an accident independently of the 

defect in the product." Dissent at 28. However, Judge 

Greenberg over simplifies the range of causes that typically 

lie behind an injury. In most cases (including those relied 

upon by Judge Greenberg) a reasonable fact finder could 

conclude that the injury resulted from a combination of 

plaintiff's conduct and the challenged defect. Judge 

Greenberg's analysis would seem to permit the use of 

plaintiff's conduct in these cases. However, I think that 

 20 
neither our previous decision in Dillinger nor our decision 

today allows principles of contributory negligence to govern 

a dispute merely because "plaintiff's conduct set the events 

leading to the accident in motion" as Judge Greenberg 

believes. Dissent at 28. 

Judge Greenberg relies upon Bascelli v. Randy, Inc., 488 

A.2d 1110 (Pa. Super. Ct. 1985), and Gallagher v. Ing, 532 

A.2d 1179 (Pa. Super. Ct. 1987) and our discussion of them 

in Dillinger to support his conclusion that we have barred 

evidence of plaintiff's conduct only in situations where that 

conduct exacerbates an injury caused by the defect, or 

failed to prevent an injury caused by it, and not where the 

conduct causes an injury independent of the defect.

Clearly, one can not be held liable in a strict liability action 

unless the claimed defect actually caused the injury. In 

other words, the defect must have been "a substantial 

factor in bringing about the harm." Powell v. Drumheller, 

653 A.2d 619, 622 (Pa. 1995), see dissent at 26. However, 

plaintiff's conduct is not relevant to this inquiry simply 

because such conduct may have also contributed to the 

injury. Before plaintiff's conduct can be admitted it must 

be viewed in context with the societal policies that lie 

behind strict liability and that assist in determining 

causation under Dillinger. 

In Bascelli, the Pennsylvania Superior Court did hold 

that evidence that the plaintiff had been driving a

motorcycle 100 miles per hour was relevant to establish 

causation, and could not be excluded merely because it 

also intended to show contributory negligence. 488 A.2d at 

113. However, as we noted in Dillinger, Bascelli no longer 

provides us with guidance. In deciding Bascelli, the 

Pennsylvania Superior Court cited Greiner v.

Volkswagenwerk Aktiengeselleschaft, 540 F.2d 85 (3d Cir. 

1976) which, as we noted in Dillinger, was decided prior to 

Azzarello, supra, wherein the Pennsylvania Supreme Court 

"significantly broadened the scope of liability under § 402A." 

Dillinger, 959 F.2d at 442. In Dillinger we did state the 

following: 

Of more significance, the plaintiff's conduct in Bascelli

actively contributed to the cause of the accident, while 

[plaintiff's] conduct in this case was merely insufficient 

 21 
to prevent the accident attributable to the defect of the 

[product]. Thus, here the evidence was compelling that 

the defect which resulted in the hose damage, rather 

than [plaintiff's] conduct, triggered the accident.

959 F.2d at 442. 

That statement, however, is best understood when viewed 

in context with the policy repercussions of ignoring conduct 

which, though foreseeable, is so unreasonable as to not 

justify finding the manufacturer liable even though the 

manufacturer is deemed to be the "guarantor" of its

products.1 I submit that had Bascelli been exceeding the 

speed limit by only 5 miles an hour rather than rocketing 

through space at 100 miles per hour his conduct would not 

have been relevant to determining if the alleged defect (as 

opposed to his own behavior) was responsible for his loss of 

control. However, his conduct was so outrageous that it 

amounted to assumption of the risk, misuse of the product, 

and highly reckless conduct. In Dillinger we hypothesized 

that all three of those theories continue to be permissible 

defenses in a § 402A proceeding. 959 F.2d at 445-46. I 

believe that absent conduct which is so outrageous as to 

fall into one of those three categories the policy 

considerations that hold a manufacturer liable as a

guarantor of its product control. However, once the

plaintiff's conduct becomes so unreasonable and 

extraordinary as to amount to either assumption of the 

risk, misuse of the product, or highly reckless conduct, that 

conduct becomes relevant to causation as society has no 

interest in protecting such plaintiffs from the consequences 

of that kind of irresponsibility. Moreover, it is unjust to 

shift the cost of such injury from the person whose

outrageous conduct caused it (or contributed to it) to the 

manufacturer who will in turn pass that cost on to 

innocent consumers. 

_________________________________________________________________ 

1. As we noted in Dillinger: 

The [supplier] of a product is the guarantor of its safety. The 

product must, therefore, be provided with every element necessary 

to make it safe for [its intended] use, and without any condition that 

makes it unsafe for [its intended use]. 

959 F.2d at 436 (brackets in original). 

 22 
This policy concern is written into the law of strict 

liability through the mechanism of causation. Accordingly, 

we observed in Dillinger: 

[t]he. . . issue of causation is raised when the 

plaintiff's action is so reckless that the plaintiff would 

have been injured despite the curing of any alleged

defect, or is so extraordinary and unforeseeable as to 

constitute a superseding clause. 

959 F.2d at 446 (internal quotations omitted) (internal 

citations omitted). 

In Pennsylvania, products liability law "shift[s] the loss to 

the party who can most easily bear it." Staymates v. ITT

Holub Industries, 527 A.2d 140, 143 (Pa. Super. Ct. 1987). 

However, this general policy does not operate where it 

would cause an inappropriate or unjust result. Gallagher v.

Ing, 532 A.2d 1179 (Pa. Super. Ct. 1987) (cited by Judge 

Greenberg), is another example of this. There, the 

administratrix of the deceased driver of an automobile sued 

the manufacturer of the automobile alleging that a design 

defect had caused the decedent driver to lose control in a 

fatal car crash. The evidence that was produced at trial 

established that, at the time of the accident, the driver had 

a blood alcohol content of .18 percent. The jury was allowed 

to consider that evidence as it tended to establish that the 

decedent was "unfit to drive a vehicle safely," 532 A.2d at 

1181, and that the intoxication; not the alleged defect, 

caused the accident. The Pennsylvania Superior Court 

noted that such evidence was appropriate, not because it 

established intoxication per se, but because it established 

intoxication to the extent of rendering the decedent unfit to 

drive. The court noted that the defendant had produced 

evidence that the decedent had been drinking scotch for a 

period of approximately 1-1/2 hours before driving his car 

home and that some witnesses had observed that he had 

been "driving at a high rate of speed on a dark, winding 

and hilly road approximately one mile from the scene of the 

accident." Id. at 1182. The manufacturer had also produced 

expert testimony as to the ability of someone with a blood 

alcohol concentration of .18 percent to safely operate a car. 

On appeal the court noted that with a blood alcohol level 

that high, 

 23 
virtually every person, adult or child. . . is markedly 

impaired with respect to . . . judgment, the response 

time, . . . the coordination. . . all of these things are 

progressively and markedly impaired. . . forensic 

toxicologists and everybody else says that this kind of 

a blood alcohol level, a person's likelihood of being 

involved in a fatal accident is over 20 times greater 

than that of a sober person. . . He can still drive.. . 

but not safely. 

532 A.2d 1182-3. Accordingly, the evidence was properly 

admitted to show that the decedent was "incapable of 

driving safely and that this was the legal cause of his loss 

of control of the vehicle he was driving." Id. at 1183. 

Thus, Gallagher does not support Judge Greenberg's 

position to the extent that might at first appear although he 

correctly notes it as an example of a case where a plaintiff's 

conduct did set the events leading to the accident in 

motion. See dissent at 28. In theory, the conduct in 

Gallagher would have set the events leading to the accident 

in motion had the evidence shown marginal impairment or 

that the driver had exceeded the speed limit by 5 miles per 

hour. Yet, I do not believe that in those situations a jury 

could consider plaintiff's conduct on the issue of causation 

-- even if a manufacturer could show that had the plaintiff 

not been exceeding the speed limit, or not been slightly 

impaired, the particular defect would not have been

sufficient by itself to cause loss of control. Few among us 

can honestly state that he or she has never exceeded a 

posted speed limit. That eventuality is most certainly 

foreseeable. Yet, that circumstance will not constitute an 

"intervening cause" and therefore justify consideration of 

plaintiff's conduct in a strict liability action unless that 

conduct rises to such a level as to constitute assumption of 

the risk, misuse of the product, or highly reckless conduct. 

See Dillinger, supra. This is so even though plaintiff's 

conduct "set the events leading to the accident in motion." 

Thus, Judge Greenberg reads too much into the holding of 

Gallagher. Moreover, the discussion in Gallagher focused 

upon the reliability of the blood test, and the propriety of 

admitting evidence of intoxication in view of its propensity 

to generate bias. There is almost no discussion of the strict 

 24 
liability and causation issue that we address here. The 

court's entire discussion of strict liability is at the very end 

of the opinion and is, in its entirety as follows: 

Appellant also argues that the trial court erred in,. . . 

(3) allowing appellee's counsel after ruling that 

comparative negligence principles had no application, 

to suggest to the jury that the defendant's negligence 

was the sole cause of the accident. We have examined 

these contentions carefully and conclude that they 

have been adequately analyzed and properly decided by 

the trial judge. Suffice it to say that appellant's

contentions are lacking in merit and do not warrant a 

new trial. 

532 A.2d at 1185. 

In summary, I believe Judge Cowen correctly summarizes 

the state of Pennsylvania law under § 402A of the 

Restatement. Evidence of the decedent's actions in the 

instant case is appropriate only if a jury determined that 

such actions were "not reasonably foreseeable or were 

otherwise extraordinary." Majority Op. at 16, (emphasis 

added). I do not feel that Judge Greenberg's analysis allows 

for any meaningful distinction between circumstances 

where plaintiff's conduct becomes relevant to causation, 

and those where it is precluded by policy considerations 

that drive the doctrine of strict liability as enunciated by 

the Pennsylvania courts. If the alleged defect was "a 

substantial factor in bringing about the harm," absent 

assumption of risk, misuse of product, or highly reckless 

conduct, it is irrelevant whether plaintiff's conduct set the 

events in motion or merely failed to prevent an injury, and 

I do not read our decision in Dillinger to the contrary. 

 25 
GREENBERG, Circuit Judge, dissenting. 

Judge Cowen has written a thoughtful opinion in a 

difficult field of law, but I am forced to dissent because I 

interpret aspects of Pennsylvania products liability law 

fundamentally differently. I first will explain my view of the 

law and then explain my differences with the majority and 

the consequences stemming therefrom. 

I agree with much of the majority's analysis of 

Pennsylvania law, including its discussion of the 

Pennsylvania Supreme Court's strong resistance to the 

inclusion of comparative fault principles in strict liability 

actions. I emphasize, however, that the Pennsylvania courts 

have been equally strong in maintaining the requirement 

that the plaintiff in a strict liability action bear the burden 

of showing both that the product was defective and that the 

defect proximately caused the injuries in question. See

Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 898 

(Pa. 1975) ("Neither can plaintiff recover by proving a defect 

in the product absent proof of causation, as where plaintiff 

sustains eye injury while not wearing defective safety 

glasses."); Carrecter v. Colson Equip. Co., 499 A.2d 326, 329 

(Pa. Super. Ct. 1985) (plaintiff must show defect was a 

"substantial factor in bringing about" injuries suffered); 

Sherk v. Daisy-Hedden, 450 A.2d 615, 617 (Pa. 1982) 

("Liability in ... strict liability is not imposed upon a 

manufacturer simply for the manufacture of a defective 

product."). 

Thus, evidence of the plaintiff's or a third party's 

conduct, whether negligent or not, is admissible to rebut 

the allegation that a defect actually caused the injury. 

Nevertheless, the Pennsylvania Supreme Court has held 

that a plaintiff's or third party's conduct does not relieve 

the defendant of liability for a defect which was a

substantial factor in bringing about the accident unless the 

conduct constituted a superseding or intervening cause of 

the injury. Thus, the defendant is liable as long as the 

defect was "a substantial factor in bringing about the 

harm." Powell v. Drumheller, 653 A.2d 619, 622 (Pa. 1995), 

citing Jones v. Montefiore Hosp., 431 A.2d 920, 923 (Pa. 

1981). Of course, for a superseding cause to relieve a 

defendant whose conduct has been determined to be a

 26 
substantial factor in causing the harm, it must be "so 

extraordinary as not to have been reasonably foreseeable." 

Powell, 653 A.2d at 623; Kuisis v. Baldwin-Lima-Hamilton

Corp., 319 A.2d 914, 920 (Pa. 1974). Accordingly, ordinary 

negligence will not do. The majority recognizes this point. 

See, e.g., Majority Op. at 7 ("[T]he plaintiff must show that: 

(1) a product defect (2) caused a harm (3) while the product 

was being used in a foreseeable manner."); Majority Op. at 

9 ("If foreseeable, the jury must find for the plaintiff unless 

it finds that the defect did not play even a substantial, or 

more than negligible, role in causing the plaintiff's injury."). 

Plainly, then, there is a distinction between a plaintiff's 

conduct which, rather than the defective product, was the 

cause of the injury and a plaintiff's conduct that was so 

extraordinary and unforeseeable that it was a superseding 

cause of the injury. Yet, if the injury is attributable to a 

plaintiff's conduct of either character, i.e., conduct that 

was the cause of the injury or unforeseeable superseding 

conduct, the defendant will not be liable even if its product 

was defective. An understanding of Pennsylvania product 

liability law requires that these concepts be kept separate 

so that a court understands the category into which the 

conduct fits when a defendant attempts to attribute the 

plaintiff's injury to his or her conduct. 

The Pennsylvania Supreme Court has not spoken 

explicitly on the issue of how evidence of plaintiff and thirdparty conduct should be treated at trial, but the 

Pennsylvania Superior Court has addressed the issue in a 

number of cases. In Bascelli v. Randy, Inc., 488 A.2d 1110 

(Pa. Super. Ct. 1985), the Superior Court held that evidence 

of the plaintiff's negligent conduct in driving his motorcycle 

approximately 100 miles per hour at the time of the

accident was admissible to show that the excessive speed, 

and not the alleged defect in the product, caused the 

accident. Id. at 1113. In Gallagher v. Ing, 532 A.2d 1179 

(Pa. Super. Ct. 1987), the court approved the admission of 

evidence of the decedent's blood alcohol level "to show that 

the decedent was so intoxicated that he was incapable of 

driving safely" and that the intoxication, rather than a 

product defect, caused the accident. Id. at 1183. These 

cases illustrate the use of a plaintiff's conduct to 

 27 
demonstrate that the injury cannot be attributed to a 

defective product. 

We considered how to treat a plaintiff's conduct in

Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992). In 

Dillinger, we refused to allow evidence of the plaintiff's 

contributory negligence because the evidence could show 

only that he failed to prevent an accident resulting from a 

sequence of events set into motion by a defect in the 

product. Id. at 442. Although in Dillinger we characterized 

the trend in the Pennsylvania Superior Court increasingly 

to inject negligence principles into strict liability actions as 

inconsistent with the rulings of the Pennsylvania Supreme 

Court, we drew a clear distinction between evidence of 

conduct which caused an accident independently of the 

defect in the product and evidence of conduct which

exacerbated or failed to prevent an injury caused by the 

defect. We explicitly held only the latter type of evidence 

inadmissible. Id. at 442, 444 n.23. Thus, we distinguished 

Bascelli and Gallagher as cases where the plaintiff's 

conduct set the events leading to the accident in motion. A 

number of district courts in this circuit have applied this 

approach. See, e.g., Ballarini v. Clark Equip. Co., 841 F. 

Supp. 662, 665 (E.D. Pa. 1993), aff'd, 96 F.3d 1431 (3d 

Cir. 1996) (table); Kern v. Nissan Indust. Equip. Co., 801 F. 

Supp. 1438, 1441-43 (M.D. Pa. 1992), aff'd , 16 F.3d 404 

(3d Cir. 1993) (table). 

A reading of Dillinger which requires the exclusion of all 

evidence of foreseeable conduct by the plaintiff relating to 

causation would violate the clear requirement of the 

Pennsylvania Supreme Court that a plaintiff in a strict 

liability action must prove that the defect in the product 

caused the injuries. See Berkebile, 337 A.2d at 898. See

also Kramer v. Raymond Corp., 840 F. Supp. 336, 338 (E.D. 

Pa. 1993) (holding that evidence of plaintiff's conduct is 

admissible to demonstrate that defect was not a cause of 

injury). After all, it hardly could be said that it is 

unforeseeable that a motorcycle driver will go at a high 

speed. Nevertheless, in Bascelli evidence of that speed was 

admissible to show that speed, rather than a product 

defect, caused the accident. Thus, Bascelli was not a 

superseding cause case. 

 28 
It seems to me that the majority erroneously reads 

Dillinger to require the exclusion of all evidence of 

foreseeable conduct of a plaintiff relating to causation, for 

it indicates that the jury instruction was "fatally erroneous 

[because] it failed to require the jury to analyze whether Mr. 

Parks' actions were unforeseeable or extraordinary." 

Majority Op. at 18. The majority then indicates, erroneously 

in my view, that "[i]f the jury found that the actions were 

neither unforeseeable nor extraordinary, it could not have 

found his actions to be a `legal cause' of his injury." Id. The 

result the majority reaches does not take into account the 

distinction in Pennsylvania law between treatment of a 

plaintiff's negligence which is the sole cause of the injury 

and a plaintiff's negligence which combines with a defect in 

the product to cause the injury. Negligence of the second 

kind could defeat the claim only if so extraordinary as to be 

unforeseeable. 

I now consider the jury charge. The district court 

instructed the jury that there were four possible causes of 

the accident, the alleged defect in the product, Parks' 

conduct, his employer's conduct, and his co-worker's 

conduct, all of which could be legal causes of the accident. 

App. at 416-17. The court further instructed the jury that 

if it found a defect and that "the defect was a substantial 

factor in causing the harm, then your verdict will be for the 

plaintiff even if you find ... [that any other conduct] were 

legal causes of the accident because I already told you there 

may be more than one legal cause. . . . So, in order to find 

for the defendants, you must find that the alleged defect 

was not the legal cause of the accident." Id. at 417-19. 

I regard this charge as consistent with Pennsylvania law. 

The charge recognized that if a combination of a defect in 

the product and Parks' or another person's negligence 

caused the accident, the plaintiff would win. The majority 

makes much of the fact that the court used the phrase "the 

legal cause" rather than "a legal cause." Majority Op. at 17- 

18. While I agree that "a" is the proper article to use in this 

situation, I do not agree that this error so taints the charge 

as a whole that it could have misled the jury. The judge 

told the jury to consider the conduct only as it relates to 

the initial causation of the accident to evaluate which 

 29 
events were substantial factors in bringing about the 

accident. Furthermore, the interrogatory to which the jury 

answered "No," thereby returning a verdict for the 

defendant, read as follows: "Was the defect in the excavator 

a substantial factor in bringing about Mr. Parks' death?" 

The jury of course, had the interrogatory when it 

deliberated and in these circumstances I cannot believe 

that the use of "the" rather than "a" in the charge mattered. 

In my view, the majority's holding that a foreseeability 

charge was required is fundamentally wrong because the 

plaintiff and third-party conduct was not presented to the 

jury as a superseding cause of the accident. Rather, the 

defense advanced that conduct as the sole cause of the 

accident. In a superseding cause situation, the defect is still 

a "but for" cause of the accident, or a substantial factor, 

but the superseding cause of the accident may excuse the 

defendant from liability if not reasonably foreseeable. Here, 

the court charged the jury to consider whether the alleged 

defect was a "substantial factor" in causing the accident 

and the jury found that it was not. It seems to me to be 

clear that when a court lays the precepts of Pennsylvania 

law against the charge, it should conclude that the charge 

did not include a reversible error. 

The main difference between my view and the majority's 

view, besides the result we reach, is the majority's holding 

that "the threshold question is whether the plaintiff's 

actions were foreseeable." Majority Op. at 9. I do not 

understand how it can make this statement, because it 

confuses substantial factor causation, i.e., the 

responsibility of the defendant in the first instance, with 

superseding causation. A superseding cause, if not 

reasonably foreseeable, breaks the chain of causation, but 

the jury must first find that there was a chain. The 

majority's holding eliminates this requirement and the 

majority says that "[c]ausation may be shown by process of 

elimination. . . ." Majority Op. at 10. The majority does not 

have case law to support this conclusion. The cases it cites 

deal with accidents where superseding causes exist after 

the defect first is found to be a substantial factor, e.g., 

Decorative Precast Stone Erectors, Inc. v. Buckrus-Erie Co., 

493 F. Supp. 555, 557 (W.D. Pa. 1980), aff'd , 642 F.2d 441 

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(3d Cir. 1981) (table), where the plaintiff allegedly recklessly 

exposed himself to a defect, Childers v. Power Line Equip.

Rentals, Inc., 681 A.2d 208-09 (Pa. 1996), where 

substantial change or misuse of a product is charged, Eck

v. Powermatic Houdaille, 527 A.2d 1012, 1019 (Pa. 1987), 

or where the existence of a defect rather than causation is 

at issue, see Schell v. AMF, Inc., 567 F.2d 1259, 1262 (3d 

Cir. 1977). 

We face none of those situations in this case. The issue 

at trial here was whether the defect in the product was a 

substantial factor in causing the accident. The jury 

instructions correctly said that if it was the plaintiff must 

win. The jury found for the defendant by answering an 

interrogatory expressly finding that the defect was not a 

substantial factor in bringing about the accident. The 

majority will not allow a verdict based on the jury's answer 

to this interrogatory to stand because it holds that a 

foreseeable action by the plaintiff cannot be a "legal cause" 

of an accident. Majority Op. at 17-18. "Instead, it is 

removed from the picture, and liability attaches to the 

remaining causal actor or actors." Majority Op. at 12. I 

believe that this approach is simply wrong for it eliminates 

the jury's role in determining whether a defect is a 

substantial factor in an accident. It turns all cases 

involving causation into superseding cause cases in the 

sense that unless the plaintiff's or third party's conduct is 

not foreseeable, it cannot be the legal cause of the accident. 

As Bascelli, the 100 miles per hour motorcycle case, so 

clearly demonstrates, this is wrong. The majority opinion 

overlooks the fact that the jury first must find a chain of 

causation before considering whether a superseding cause 

breaks the chain. It assumes that a chain exists. 

Under the majority's view, a defendant could be found 

liable for a defect even if the defect did not contribute to the 

happening of the accident, because the majority removes 

from the case the possibility that foreseeable conduct of the 

plaintiff or a third party was the cause of the accident. It is 

important to remember that just because an accident is a 

type which a defect might cause does not mean that the 

defect necessarily did cause the accident. It is up to the 

jury to make this determination, not the court. Thus, I do 

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not believe the Pennsylvania Supreme Court would condone 

the result reached here. The majority's opinion will force 

the district court to try the case on the remand on incorrect 

principles of law and will require it to deliver an incorrect 

charge. 

In responding to my dissent in which I emphasize that 

the majority does not take into account the distinction 

between a plaintiff's negligence which is the sole cause of 

the injury and a plaintiff's conduct that was an 

unforseeable superseding intervening cause of the injury, 

the majority sets forth the following: 

 The instant case is precisely of the second type: the 

jury explicitly answered yes to the question, `Was the 

Gradall excavator defective at the time it was 

manufactured and sold?' App. at 432. The machine's 

defect was impaired visibility of precisely the area in 

which the accident occurred. In accordance with the

dissent's above description, the manufacturer of the 

defective product should be held liable unless the 

plaintiff's actions were unforseeable. 

Majority Op. at 9-10 n.3. 

I deduce from the foregoing analysis that the majority, 

sitting as a court of appeals, must be determining as a 

matter of law that the nature of the defect meant it had to 

be a substantial factor in bringing about the accident. I 

cannot understand how the majority can make this 

determination because it is deciding the proximate cause 

issue and deciding it contrary to the jury which expressly 

answered "no" to the following question: "Was the defect in 

the excavator a substantial factor in bringing about Mr. 

Parks' death?" The fact that the machine had impaired 

visibility no doubt led the jury to find that it was defective. 

Yet that finding simply did not determine that the defect 

was a substantial factor in bringing about the accident. 

Thus, just as I have indicated already, the majority turns 

all cases involving causation when a plaintiff's or third 

party's conduct is involved into superseding cause cases so 

that unless the plaintiff's or third party's conduct is 

unforeseeable, it cannot be the legal cause of the accident. 

 32 
As far as I am concerned this appeal is being decided 

incorrectly which in itself is unfortunate. But the

consequences of the majority opinion go beyond this case. 

There are many diversity of citizenship products liability 

cases under Pennsylvania law tried in this circuit. From the 

time of the publication of the opinion in this case the 

district courts will be confronted with following 

Pennsylvania law, as announced by the Pennsylvania 

courts and permit the jury to conclude that a plaintiff's or 

third party's conduct, even if foreseeable, can be the sole 

proximate cause of an injury, or following the majority's 

opinion which makes clear that the injury can be attributed 

to plaintiff's or third party's conduct only if that conduct is 

not foreseeable. I presume that the district courts will 

follow the majority's opinion here and thus the outcome of 

a case may be determined on whether it is tried in the state 

or federal court. This is serious business. 

Judge McKee's concurrence misinterprets the holding I 

suggest would be appropriate here and thus it does not 

persuade me that my views are wrong. I do not believe, as 

Judge McKee suggests I do, Concurrence at 20-21, that a 

plaintiff's conduct can be used to relieve a defendant of 

liability merely because it contributed to an accident 

caused by a defect. In fact, I believe the opposite to be true. 

Yet, a jury must determine whether the defect is actually a 

substantial factor in causing the accident and thus must 

consider what else, including a plaintiff's conduct, could 

have caused the accident without contribution from the 

defect. Thus, I agree with Judge McKee when he states: 

" `[i]f the alleged defect was a substantial factor in bringing 

about the harm,' absent assumption of risk, misuse of 

product, or highly reckless conduct, it is irrelevant whether 

plaintiff's conduct set the events in motion or merely failed 

to prevent an injury . . . ." Concurrence at 25. 

Unfortunately, however, the result being reached here will 

not allow the jury to decide whether the defect is "a 

substantial factor in bringing about the harm." 

Indeed, Judge McKee's explanation of Judge Cowen's 

opinion effectively admits this point because, quoting Judge 

Cowen, he indicates that "[e]vidence of the decedent's 

actions in the instant case is appropriate only if a jury 

 33 
determined that such actions were `not reasonably 

foreseeable or were otherwise extraordinary.' " Concurrence 

at 25. This statement simply cannot be correct because it 

removes from the jury the opportunity to consider whether 

the defect was "a substantial factor in bringing about the 

harm." A plaintiff's unexceptionable conduct may cause a 

plaintiff using a defective product to be injured without the 

defect in the product contributing to the injury. For 

example, a car might be delivered with defective brakes but 

if a plaintiff driving the car who is about to get into an 

accident, whether or not he is negligent, does not use the 

brakes, then the defect simply is not a substantial factor in 

bringing about the harm even if the brakes would not have 

worked if the plaintiff had applied them. In such a case the 

defendant should be able to establish that the defective 

brakes had nothing to do with the accident and the 

defendant should win in a products liability case. See

Berkebile, 337 A.2d at 901 ("Whether decident actually 

attempted autorotation is relevant to the issue of causation. 

If the jury were to conclude, for example, that a nondefective system would allow two seconds for autorotation 

and that the decedent did not attempt autorotation for 

three seconds; even if a defect was shown, it would not 

have been the proximate cause of the crush."). 

The fact in my brakes example that the plaintiff might 

have been negligent is immaterial and thus if the plaintiff 

was negligent his negligence would not bar his claim. 

Rather, he would lose because the defect was not a 

substantial factor in bringing about the accident. The 

district court properly tried the case applying these 

principles which Pennsylvania law (and probably the law 

through the United States) establishes, and thus we should 

affirm. 

In the circumstances I am constrained to dissent. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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