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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JANE E. DAVIS, JANE E. DAVIS, : IN THE SUPERIOR COURT OF

EXECUTRIX OF THE ESTATE OF PENNSYLVANIA

ROBERT N. DAVIS, DECEASED, L.P.D, : MINOR, C.N.D., MINOR, ROBERT N. : DAVIS, ESTATE, DECEASED

Appellants

No. 1405 EDA 2018

v.

VOLKSWAGEN GROUP OF AMERICA,

INC., VOLKSWAGEN

AKTIENGESELLESCHAFT, ALSO

KNOWN AS VOLKSWAGEN AG AND

THE ESTATE OF ALFRED N. HANNA;

HANNA'S AUTO & TRUCK RECYCLING;

HANNA AUTO WORKS AND

RECYCLING; AND HANNA NORTH

PARTNERSHIP

Appeal from the Judgment Entered June 11, 2018

In the Court of Common Pleas of Lehigh County Civil Division at No(s):

2014-C-2951

JANE E. DAVIS, JANE E. DAVIS, : IN THE SUPERIOR COURT OF

EXECUTRIX OF THE ESTATE OF PENNSYLVANIA

ROBERT N. DAVIS, DECEASED, L.P.D,

MINOR, C.N.D., MINOR, ROBERT N.

DAVIS, ESTATE, DECEASED

v.

: No. 1496 EDA 2018

VOLKSWAGEN GROUP OF AMERICA,

INC., VOLKSWAGEN

AKTIENGESELLESCHAFT,AND

FAULKNER CIOCCA, VW
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v.

THE ESTATE OF ALFRED N. HANNA;

HANNA'S AUTO & TRUCK RECYCLING;

HANNA AUTO WORKS AND

RECYCLING; AND HANNA NORTH

PARTNERSHIP; THE GEORGE FAMILY

PARTNERSHIP; AND GEORGE REAL

ESTATE, LP

APPEAL OF: VOLKSWAGEN AG

Appeal from the Order Entered June 11, 2018

In the Court of Common Pleas of Lehigh County Civil Division at No(s):

2014-C-2951

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 19, 2019

In this crashworthiness case, Jane E. Davis - acting in her own capacity,

as Executrix of the Estate of Robert N. Davis, Deceased, and as parent of

L.P.D. and C.N.D. - brought this suit claiming a design defect in a Volkswagen

Passat. A jury found Appellee Volkswagen Aktiengeselleschaft ("Volkswagen")

not liable for Davis's damages.' On appeal, Davis challenges various jury

instructions. We affirm.

' Volkswagen Group of America, Inc., and Faulkner Ciocca VW were named

defendants. Prior to jury deliberation, the parties agreed that the verdict

would be entered against Volkswagen Aktiengeselleschaft. N.T., 6/16/17,

3707.

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Volkswagen cross -appeals and challenges the order denying its motion

for summary judgment. Because we affirm the judgment entered in its favor,

we do not address Volkswagen's cross appeal.

The accident at issue occurred in February 2012 in North Whitehall

Township, Lehigh County. A vehicle driven by Alfred Hanna crossed the center

line of a highway and struck a 2007 Volkswagen Passat driven by Decedent.

The force of the collision forced the Passat from the road and shoulder.2 When

the Passat came to a rest, it was partially over the side of the shoulder and

partially on the ground on the other side of the shoulder. The Passat was

consumed by flames, and Decedent died as a result of injuries from the fire.

Davis instituted this suit and asserted several claims, including a strict

liability claim based on an alleged design defect in the Passat's fuel tank.3

Volkswagen answered the Complaint and asserted the affirmative defense of

release. It later moved for summary judgment on that basis, arguing that

2 Hanna was ejected from his vehicle and found unresponsive on the side of

the road.

3 Volkswagen filed a joinder complaint against the Estate of Alfred Hanna,

Hanna's Auto & Truck Recycling, Hanna Auto Works and Recycling, Hanna

North Partnership (collectively "Hanna Defendants"), the George Family

Partnership, and the George Real Estate LP (the "George Defendants"). The

George Defendants filed a motion for summary judgment, which the trial court

granted. The Hanna Defendants filed a motion for summary judgment based,

in part, on a release signed by Davis in a settlement with Hanna and Hanna's

insurance company. The trial court granted the motion as to all Hanna

Defendants except the Estate of Alfred Hanna. It denied the motion as to the

Estate, but ruled that the Estate was not required to appear at trial. Order,

May 17, 2017, at 1 n.1.

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Davis released her claims against Volkswagen when she settled with Hanna

and his insurance company and signed an allegedly general release. The trial

court denied the motion.

As trial neared, Davis filed a motion in limine seeking to preclude

retroactive application of Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa.

2014). In the alternative, Davis asked the court to apply the consumer

expectation test. Motion in Limine, filed Apr. 25, 2017. Volkswagen argued

that Tincher applied fully to this case and asserted that the court should

employ the risk -utility test, as the only test appropriate to strict product

liability cases involving complex products such as automobiles. The trial court

ordered that whether the vehicle was in a "defective condition" was a question

of fact to be answered by the preponderance of the evidence, and that Davis

could establish the existence of a defective condition under either the

consumer expectation test or the risk -utility test.4

Trial commenced in May 2017, and extended over several weeks. An

eye -witness to the accident testified. The eye -witness was unsure when the

fire started, N.T., 5/25/17, at 197, 202-03, and gave various descriptions of

the fire and its location. She did, however, testify that she felt safe enough to

approach the Passat in an effort to smash its windshield and rescue Decedent.

4 The trial court also held that Tincher applied to this case and that evidence

of compliance with industry standards was not relevant to whether a defective

condition existed.

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Id. at 217. She was unable to do so and a forensic pathologist testified that

Decedent died of fire -related injuries. Id. at 130.

The jury also heard from experts from both parties regarding the

Passat's fuel tank, and whether there was a defect of the fuel tank which

caused harm. The trial court summarized Davis's theory of the case at trial as

follows:

[Davis] contend[ed] that as the Passat was being pushed

over the shoulder of the road, it struck and sheared off all

but a remnant of a metal pole, the pole's jagged edge

punctured the Passat's fuel tank allowing its contents to

escape. The Passat was quickly engulfed in a fuel -fed fire

from which Decedent did not escape. [Davis] claimed the

Passat's fuel tank was designed defectively and is therefore

a factual cause of the Decedent's injuries and resulting

death.

Trial Court Opinion, filed Apr. 13, 2018, at 2. Volkswagen argued, in part, that

the Passat's fuel tank was not defective and that, in any event, the fire started

in the car's engine compartment, not near the fuel tank. N.T., 6/19/17, at

3915-16.

The parties presented the court with proposals for jury instructions.

Davis included an instruction based on the consumer expectation test and

offered, in case the court denied that instruction, a proposed instruction on

the risk -utility test. Volkswagen proposed an instruction on the risk -utility test.

At the charging conference, the trial court stated it would instruct the jury on

both tests and said, "As I understood it from the outset, the Plaintiff wanted

the consumer expectation test only, and the Defendants wanted the risk -utility

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test, only. And, as I read the instruction, it could be either, and[/]or. I am

going to give both, and you can fight it out." N.T., 6/16/17, at 3713.

The trial court and the parties also discussed at the conference whether

the court should instruct the jury that Hanna was negligent and that his

negligence caused the collision. Id. at 3747-3754. Davis objected. Id. at

3753-54; N.T., 6/19/17, at 3811-12. The parties also discussed the

concurrent cause instruction. N.T., 6/16/17 at 3710. Further, Davis requested

that if the court directed a verdict as to Hanna, that the verdict slip state that

Hanna caused "some harm." N.T., 6/19/17, at 3811. The court ruled that it

would instruct the jury that Hanna was negligent, his negligence caused the

collision, and his negligence caused harm to Decedent.

In addition, when discussing the causation question on the verdict slip,

Davis argued that the verdict slip should ask the jury whether the defect was

a "factual cause." Id. at 3755. Volkswagen argued the question on the verdict

slip should ask whether the defect was a "substantial factor." Id. The court

determined it would use the term "factual cause."

The trial court's jury instructions relevant to this appeal were as follows:

The plaintiffs have the burden of proving that each of the

following is more likely true than not. One, the design of the

Passat's fuel tank was defective; and two, the defective

design of the Passat's fuel tank was a factual cause in

bringing about the harm. The Plaintiff also has the burden

of proving the extent of damages caused by the Defendant's

defective design.

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You have heard testimony to the effect the collision was

caused by the careless driving of Mr. Hanna; specifically,

that he crossed the double yellow lines two times, and then

a third time when he collided with Mr. Davis's Passat. That

evidence was unrebutted. Based upon that evidence, I have

concluded that Mr. Hanna was negligent in having caused

the collision, and that his negligence caused harm to Mr.

Davis.

That collision caused Mr. Davis's Passat to be pushed off

the road, and ultimately over the concrete foundation or

retaining wall. We also know Mr. Davis's Passat caught fire

and he perished in it.

This is not a criminal case, it is a civil case. And a civil

case deals with a relationship between private parties, that

the law imposes on us as members of society. It deals with

how we relate to each other. For example, we all have a

duty to use reasonable or ordinary care when operating a

motor vehicle, or keeping our sidewalks free and clear of ice

and snow.

Reasonable or ordinary care is the level of care a

reasonably careful person would use under the

circumstances presented at that time, for one[']s own

safety, and to avoid injury to others. If you violate that duty,

we say you are negligent. Mr. Hanna was careless in the

way he drove his Acura, and in so doing, he violated his duty

to Mr. Davis. That is why Mr. Hanna was negligent.

The law imposes a more stringent duty or standard upon

a manufacturer of products designed to be used by the

public. It is a duty that is higher than reasonable, or ordinary

negligence. It is called strict liability.

In other words, a manufacturer may have been careful

in designing a product; that is, not careless or negligent, but

still may have designed the product defectively.

So let me restate the general rule of strict liability as it

relates to the design of the Passat, and specifically to the

fuel tank. If you find the Passat lacked an element necessary

to make it safe for its intended use, specifically a shield on

the underside of the fuel tank, you must conclude the Passat

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had a defective design with respect to its fuel tank, in which

case Volkswagen will be liable for all harm caused by that

failure.

Under the law, a manufacturer of a defective product is

strictly liable for the injuries caused by such defect, even if

the manufacturer has taken all possible care in the design

of the product. In other words, in making that

determination, negligence or carelessness is not part of your

consideration.

Whether Volkswagen exercised all possible care in the

design of the fuel tank is not the issue. If the design of a

product is not safe, the manufacturer is responsible for all

resulting harm. As I said, one can be careful, but still have

designed a defective product. The issue is whether the

design of Volkswagen's fuel tank was defective, not whether

Volkswagen exercised due care.

There are two tests that you may use to determine

whether the design of the fuel tank was defective. You may

use either or both of these tests.

The first test is the consumer expectation test. To

establish their claim under the consumer expectation test

the Plaintiffs must prove all of the following: One, that

Volkswagen designed the product; and two, the product did

not perform as safely as an ordinary consumer would have

expected it to perform when used in an intended way; and

three, the product's defective condition was a factual cause

of harm. In determining whether a product's condition was

defective under this test, you may consider the following

factors: One, the nature of the product; two, the identity of

the user; three, the product's intended use; four, the

intended user of the product; and/or five, any express or

implied representations by Volkswagen.

The second test is called the risk -utility test. To establish

their claim under the risk -utility test, the Plaintiffs must

prove the following: One, that Volkswagen designed the

product; two, a reasonable person would conclude that the

possibility and seriousness of harm outweighed the burden

or cost of making the product safe; and three, the product's

defective condition was a factual cause of harm to Mr. Davis.

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To decide whether the product is defective under this

test, you may consider the following factors: The

seriousness of the potential harm resulting from the use of

the product, the likelihood that the harm would occur, the

feasibility of an alternative safer design at the time of the

manufacture or sale of the product, the cost of an

alternative design, and or the disadvantages of an

alternative design.

A product like the Volkswagen Passat can be defective in

design if it is not crashworthy. Vehicle manufacturers have

a duty to design and build vehicles that are crashworthy.

Crashworthiness is the design or protection that a motor

vehicle affords drivers and passengers against personal

injury or death as the result of a motor vehicle accident.

Liability for not marketing a crashworthy vehicle will

attach, even though the defect in design did not cause the

initial accident or impact. This means that manufacturers

like Volkswagen must design vehicles with the

understanding that accidents happen; that is, accidents are

a use of its products.

And if you find that the Passat was not crashworthy, then

the Volkswagen Defendants must be held responsible for

those injuries which were increased or enhanced due to an

unsafe design feature in the vehicle's fuel tank system.

Under the evidence presented and the claims made here,

if you find that the Passat's fuel tank was defective and that

a defect was a factual cause of Mr. Davis's fatal injuries, and

if you find that an alternative design would have reduced

the severity, or avoided his fatal injuries, then the

Volkswagen Defendants are legally responsible.

If you find that the product was defective, Volkswagen is

liable for all harm caused to the Plaintiff by such defective

condition. A defective condition is the factual cause of harm,

if the harm would not have occurred absent the defect.

The Plaintiffs are required to prove only that the defect

was a factual cause of damages beyond those that were

probably caused by the original impact. The Plaintiffs are not

required to prove that the defect caused the accident or

initial impact. Also, the Plaintiffs are not required to prove

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that the defect caused specific injuries that were not the

result of the original impact or collision.

Something is a factual cause of harm if it played a role in

causing injury. In determining factual cause, you must

decide whether the event was an actual or real factor, in

connection with the harm sustained.

However, factual cause does not mean it must be the

only, primary, or even the most important factor in causing

harm. A cause may be found to be a factual cause, as long

as it contributes to the harm in a way that is not minimal or

insignificant.

If you decide the design of Volkswagen's fuel tank was

defective, and Mr. Davis was harmed because of that

defective design, then you must find in favor of the Plaintiffs

and against Volkswagen. If you find the design of

Volkswagen's fuel tank was not defective, or that Mr. Davis

was not harmed by that design, then you must find in favor

of Volkswagen, and against the Plaintiffs.

Volkswagen contends that Mr. Hanna was solely

responsible for certain harm suffered by the Plaintiffs.

Volkswagen has the burden of proving by a fair

preponderance of the credible evidence, that the Plaintiff's

injuries are divisible, and the defective product did not

contribute to this particular injury.

If you find that Volkswagen has not met this burden, you

must find that the Defendants are liable for all of the

Plaintiff's injuries caused by the Defendant.

Remember, I told you earlier that I found Mr. Hanna

caused the collision, and that that collision was a factual

cause of harm to Mr. Davis. The verdict slip which I will go

over with you shortly, will exclude [sic] the name of Mr.

Hanna's estate, even though it did not participate in this

trial. It does not matter that Mr. Hanna's estate did not

participate in this trial.

You will be asked on the verdict slip to apportion harm

between Volkswagen, if you find the design on the fuel tank

was defective and Mr. Davis was harmed because of that

defective design, and Mr. Hanna. You should express that

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apportionment in the form of a percentage. Together those

percentages must total one hundred percent.[5]

N.T., 6/19/17, at 4003-12. Following the charge, the trial court noted that all

of the parties' prior objections were preserved. Id. at 4023.

The following jury slip, which included a directed verdict as to Hanna's

negligence and that his negligence caused harm, was submitted to the jury:

QUESTION NO. 1

Was the 2007 Volkswagen Passat fuel tank defective and

not crashworthy?

If your answer to Question No. 1 is "Yes," then proceed to

Question No. 2.

QUESTION NO. 2

Was the defective fuel tank a factual cause in bringing about

harm to Robert Davis? . . .

5 The Pennsylvania Supreme Court granted a Petition for Allowance of Appeal

in Roverano v. John Crane, Inc., to address the following questions

regarding apportionment of damages:

(1) Whether, under this issue of first impression, the

Superior Court misinterpreted the Fair Share Act 42 Pa.C.S.

Sec. 7102 in holding that the Act requires the jury to

apportion liability on a percentage basis as opposed to a per

capita basis in this strict liability asbestos case?

(2) Whether, under this issue of first impression, the

Superior Court misinterpreted the Fair Share Act in holding

that the Act requires the jury to consider evidence of any

settlements by the plaintiffs with bankrupt entities in

connection with the apportionment of liability amongst joint

tortfeasors?

190 A.3d 591 (Table) (Pa. 2018).
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If your answer to Question No. 2 is "Yes," then proceed to

Question No. 3.

If your answer to Question No. 2 is "No," then you have

found in favor of Volkswagen and should not answer any

further questions and you should return to the courtroom.

QUESTION NO. 3

Was Alfred Hanna negligent?

Answer: Yes XX

QUESTION NO. 4

Was Alfred Hanna's negligence a factual cause in bring

about harm to Robert Davis?

Answer: Yes XX

Verdict, filed 6/27/17; Br. of Defendant Volkswagen AG in Opposition to

Plaintiff's Motion for Post -Trial Relief Pursuant to Rule 227.1, Pa.R.C.P., at Exh.

B.6

The found that the Passat had a defective fuel tank and was not

crashworthy, but that the defective fuel tank did not bring about harm to

Decedent.

Davis filed post -trial motions, which the trial court denied. Davis filed a

notice of appeal. Volkswagen filed a cross -appeal.

Davis raises the following issues:

1. Did the Trial Court commit legal error by refusing to grant

a new trial where it failed to properly instruct the jury

regarding "concurrent liability," a legal and factual issue

6 The verdict slip also included questions as to apportionment of liability and

damages.

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raised by the evidence in this crashworthiness case and

addressed by the arguments of the parties?

2. Did the Trial Court abuse its discretion or commit legal

error by refusing to grant a new trial where the Trial Court

erroneously directed a verdict as to negligence and

causation against the driver -defendant where

uncontradicted evidence established decedent perished

from fire -related injuries caused by Volkswagen's failure to

market a crashworthy vehicle (as found by the jury) and no

evidence suggested that the driver -defendant's negligence

actually caused decedent's fatal injuries?

3. Did the Trial Court abuse its discretion or commit legal

error by refusing to grant a new trial where the Trial Court

failed to properly instruct the jury regarding Volkswagen's

duty to market a crashworthy vehicle, a strict liability theory

which is not obviated by the negligence of driver -defendant,

as addressed in Appellants' Requested Special Jury

Instruction # 49?

4. Did the Trial Court abuse its discretion or commit legal

error by refusing to grant a new trial where the Trial Court

failed to properly instruct the jury regarding "proximate

cause" in the context of a crashworthiness claim that the

product defect actually caused the fatal injuries, irrespective

of the accident's originating negligence, as addressed in

Appellants' Requested Special Jury Instructions # 47, 51,

53, 55 and 58?

5. Did the Trial Court abuse its discretion or commit legal

error by refusing to grant a new trial where the Trial Court

conflated the distinct concepts of "factual" and "proximate"

causation and by submitting to the jury an erroneous verdict

slip containing an unnecessary inquiry in this crashworthy

case regarding "factual causation?"

6. Did the Trial Court abuse its discretion or commit legal

error by refusing to grant a new trial where the jury's verdict

was inconsistent in that the jury actually concluded that

Volkswagen had marketed a defective, not crashworthy

vehicle (thereby establishing strict liability), yet also

strangely concluded that the defect was not sufficient to

establish Volkswagen's liability?

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7. Did the Trial Court abuse its discretion or commit legal

error by refusing to allow Appellants to pursue their chosen

theory of liability, as commanded by the Pennsylvania

Supreme Court in Tincher v. Omega -Flex, Inc., 104 A.3d

328 (Pa. 2014)?

Davis's Br. at 3-5 (suggested answers omitted). Davis raises seven questions

presented, but presents her argument in five sections, as she argues questions

three, four, and five in the same section.

Volkswagen raises one issue in its cross -appeal:

Where Plaintiff signed a release stating "Plaintiff

acknowledges and agrees that the release and discharge set

forth above is a general release," with no reference to joint

tortfeasors, was the release a general release, extinguishing

Plaintiffs' right to bring a subsequent crashworthiness

action?

Volkswagen's Br. at 1.

"The power to grant a new trial lies inherently with the trial court and

we will not reverse its decision absent a clear abuse of discretion or an error

of law, which controls the outcome of the case." Maya v. Johnson &

Johnson, 97 A.3d 1203, 1224 (Pa.Super. 2014) (quoting Siegal v.

Stefanyszyn, 718 A.2d 1274, 1275 (Pa.Super.1998)) (alteration in original).

Davis challenges the jury instructions and verdict slip. We review jury

instructions and verdict slips for an abuse of discretion. Amato v. Bell &

Gossett, 116 A.3d 607, 621 (Pa.Super. 2015); Seels v. Tenet Health Sys.

Hahnemann, LLC, 167 A.3d 190, 208 n.5 (Pa.Super. 2017) (noting courts

address jury instructions and wording of verdict slip together, using same

standard). The "trial court has wide discretion in fashioning jury instructions,"

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and it is "not required to give every charge that is requested by the parties."

Amato, 116 A.3d at 621. In reviewing the jury instructions, we must

"determine whether the trial court abused its discretion or offered an

inaccurate statement of law controlling the outcome of the case." Tincher,

104 A.3d at 351. "A jury charge is adequate unless the issues are not made

clear, the jury was misled by the instructions, or there was an omission from

the charge amounting to a fundamental error." Id. (internal quotation marks

and citations omitted). This court will not grant a new trial for an inadequate

charge "unless there is a prejudicial omission of something basic or

fundamental." Raskin v. Ford Motor Co., 837 A.2d 518, 521 (Pa.Super.

2003) (quoting Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995)). Further,

when reviewing a charge "we must not take the challenged words or passage

out of context of the whole of the charge, but must look to the charge in its

entirety." Id. (quoting Stewart, 654 A.2d at 540).

I. Concurrent Causation and Directed Verdict

Volkswagen argues that Davis waived her challenge to the causation

jury instructions and that the challenge to the directed verdict is moot. We

disagree. Davis objected to the instruction as to Mr. Hanna's liability and

wording of the verdict slip, arguing that if a directed verdict was included on

the verdict slip, it should say Mr. Hanna was the cause of "some harm." N.T.,

6/19/17, at 3811. The court included on the verdict slip a finding that Hanna

was negligent and his negligence was "a factual cause in bringing about harm"

to Decedent. In addition, the parties and the court discussed the concurrent

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cause instructions, and the court informed the parties that all objections were

preserved. Therefore, we decline to find this issue waived. In addition,

contrary to Volkswagen's claim, the directed verdict is not moot merely

because the jury did not reach the apportionment issue. The issue is not

whether the jury failed to apportion damages. Rather, the issue is whether

the jury instructions as to the directed verdict and concurrent liability confused

or misled the jury.

A. Concurrent Cause Instructions

Davis claims the jury instructions did not adequately explain concurrent

liability, and that the instructions "glossed over the vitally important maxim

that multiple defendants may b[e] 'concurrently liable' for resulting injuries."

Davis's Br. at 15. She argues that the instructions did not adequately inform

the jury that "multiple, independent factors may combine to constitute

multiple 'factual causes' of injury" in a crashworthiness claim. Id. at 17. She

notes that the failure to adequately instruct as to concurrent liability "was

further exacerbated" by the trial court's entry of a directed verdict concluding

that Hanna was negligent and his negligence was a "factual cause" of the

collision, and by repeating this factual cause finding throughout the

instruction. Id. at 20. She also notes the trial court did not mention that the

plaintiffs argued that the injuries suffered from the initial collision were

separate from the fire -related injuries that she claimed caused Decedent's

death.

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Under Pennsylvania tort law, "multiple substantial factors may

cooperate to produce an injury[] and . . . concurrent causation will give rise

to joint liability." Harsh v. Petrol!, 887 A.2d 209, 218 (Pa. 2005) (internal

citations omitted). Accordingly, "a defendant is not relieved from liability

because another concurring cause is also responsible for producing injury."

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

Here, portions of the trial court's instructions may seem to be misleading

when viewed in isolation. The trial court made multiple references to the

negligence of Hanna and that Hanna's negligence was a cause of the collision

and harm, without contemporaneously clarifying that there could be more

than one cause. N.T., 6/19/2017, at 4004-5117. The court should have

clarified, at the same time it informed the jury of Hanna's negligence, that the

jury could also find that other factors caused harm.

We, however, cannot view these statements in isolation. Rather, we

must view the jury instructions as a whole and, when we do so, we conclude

that the jury instructions did not constitute an abuse of discretion. Contrary

to Davis's arguments, the court adequately informed the jury as to concurrent

liability and that any defect could be a cause of harm, and that Volkswagen

must be found liable if a defect on the Passat caused harm.

The court's instructions made these points several times:

The Court instructed that if the Passat's fuel tank had a defective

design then "Volkswagen will be liable for all harm caused by that

failure." N.T., 6/19/17, at 4007.

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The court instructed that "[I]iability for not marketing a crashworthy

vehicle will attach, even though the defect in design did not cause

the initial accident or impact" and that "if you find that the Passat

was not crashworthy, then the Volkswagen Defendants must be held

responsible for those injuries which were increased or enhanced due

to an unsafe design feature in the vehicle's fuel tank." Id. at 4010.

The court instructed that "[a] defective condition is the factual cause

of harm, if the harm would not have occurred absent the defect" and

that Davis was "required to prove only that the defect was a factual

cause of damages beyond those that were probably caused by the

original impact." Id. at 4010-11.

The court instructed that Davis was "not required to prove that the

defect caused the accident or initial impact. Also [Davis is] not

required to prove that the defect caused specific injuries that were

not the result of the original impact or collision." Id. at 4011.

The court defined factual cause, stating "[s]omething is a factual

cause of harm if it played a role in causing injury. In determining

factual cause, you must decide whether the event was an actual or

real factor, in connection with the harm sustained." Id.

The court specifically addressed concurrent liability, instructing that

"factual cause does not mean it must be the only, primary, or even

the most important factor in causing harm. A cause may be found to

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be a factual cause, as long as it contributes to the harm in a way that

is not minimal or insignificant." Id.

The court further instructed as to apportionment, noting that "if you

find the design on the fuel tank was defective and Mr. Davis was

harmed because of that defective design, and Mr. Hanna. You should

express that apportionment in the form of a percentage. Together

those percentages must total one hundred percent." Id. at 4012.

Accordingly, when the instructions are viewed as a whole, we conclude

the trial court did not abuse its discretion in issuing its instructions as to

causation. Although the instructions regarding the directed verdict could have

been more clear, the instructions did not omit any instruction and the trial

court adequately instructed the jury that it must find Volkswagen liable if it

found that the Passat had a defect and that the defect caused harm to

Decedent. Compare Estate of Hicks v. Dana Cos., LLC, 984 A.2d 943, 975

(Pa.Super. 2009) (en banc) (finding although part of instructions may have

been confusing, any confusion was eliminated when court restated

instructions as to burden of proof and causation and instructions clearly and

adequately expressed burden of proof); with Colville v. Crown Equip.

Corp., 809 A.2d 916, 927 (Pa.Super. 2002) (finding plaintiff prejudiced where

trial court failed to instruct on crashworthiness even though evidence

supported theory).

B. Directed Verdict

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Davis further argues the trial court erred when it took from the jury the

apportionment of damages and determination of liability. She claims the court

erred by directing a verdict against Hanna on the verdict slip and instructing

the jury that Hanna was negligent and his negligence was a cause of harm to

Decedent. She argues that due to the deficient instructions on concurrent

liability, the directed verdict, and the verdict slip, "the jury erroneously

reached the inescapable conclusion that the trial court was instructing the jury

that Hanna, alone, was factually responsible for all of the 'harm' suffered by"

Decedent. Id. at 27-28. Davis argues the trial court erred in expanding the

directed verdict from adjudicating negligence of factual causation of the

collision to "fully apportioning Davis'[s] harm." Id. at 28.

The trial court did not err in directing a verdict against the Hanna estate

as to liability and causation. It was undisputed at trial that Hanna was

negligent and that his negligence caused harm to Decedent. McCandless v.

Edwards, 908 A.2d 900, 903 (Pa.Super. 2006). Further, contrary to Davis's

claim, the finding that Hanna's negligence caused harm to Decedent did not

prevent the jury from finding that a defect in the Passat also caused harm to

Decedent. Rather, as discussed above, the court instructed jury that if it found

the Passat was defective and that the defect caused harm to Decedent, it must

find Volkswagen liable. Here, the jury found there was a defect, but that the

defect did not cause Decedent's fire -related injuries. Such a finding was

supported by the evidence, including the eye -witness testimony.

II. Defect and Causation Instructions

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We will address Davis's third through fifth issues together, as Davis

argues them together.' Davis argues the trial court "conflated 'factual cause'

with 'proximate cause' by omitting proximate causation from the jury

instructions and "conflating factual with proximate causation on the verdict

slip." Davis's Br. at 35. She claims the failure to instruct as to proximate

causation "was compounded by" the verdict slip, which in her view "essentially

asked the jury to consider the question of 'factual causation' twice." Davis's

Br. at 37.

To the extent Davis argues that the court erred in using the term "factual

cause," rather than "substantial factor," we conclude she has waived the issue.

At the conference, it was Volkswagen - not Davis - that objected to the use

of the term "factual cause." N.T., 6/16/17, at 3705. Davis's proposed

instructions used the term "factual cause" and she did not object at the

conference to use of the term "factual cause. "8 Id. To the extent Davis argues

Although in the third issue, Davis challenges the crashworthiness instruction,

and the argument section of her brief contains law as to crashworthiness, she

presents no developed argument against the crashworthiness instruction.

Instead, her argument states that "crashworthiness claims similarly include

two overall burdens of proof: 'factual causations' (i.e., the defect in the

design) and 'proximate causation' (i.e., the legal nexus between the defect

and the injury suffered)." In applying the law to the facts of this case, Davis

then focuses on proximate and factual causation. She thus waived any

contention that the crashworthiness instruction was not proper.

8 At the conference, when discussing the proximate causation instructions, the

trial court stated that it would use the term "factual cause" rather than the

term "substantial factor," N.T., 6/16/17, at 3702-04, 3755. As this Court has

noted, "[t] he term 'factual cause' replaced the previously -used terms

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that the court failed to instruct as to proximate cause, we conclude the claim

lacks merit.

The trial court found:

Plaintiffs impermissibly conflate proximate cause and factual

cause. The instructions given to the jury largely mirrored

and were virtually indistinguishable from the standard

suggested instructions associated with such a charge.

Compare Pa. SSJ1(Civ) 16.70,

If you find that the product was defective, the

defendant is liable for all harm caused to the plaintiff

by such defective condition. A defective condition is

the factual cause of harm if the harm would not have

occurred absent the defect, . . . The plaintiff is

required to prove only that the defect was a factual

cause of damages beyond those that were probably

caused by the original impact. The plaintiff is not

required to prove that the defect caused the accident

or initial impact. Also, the plaintiff is not required to

prove that the defect caused specific injuries that

were not the result of the original impact or collision.

with N.T., Vol. 16 at 2010-11.

If you find that the product was defective, Volkswagen

is liable for all harm caused to the Plaintiff by such

defective condition. A defective condition is the factual

cause of harm, if the harm would not have occurred

absent the defect. The Plaintiffs are required to prove

only that the defect was a factual cause of damages

beyond those that were probably caused by the

original impact. The Plaintiffs are not required to prove

that the defect caused the accident or initial impact.

Also, the Plaintiffs are not required to prove that the

defect caused specific injuries that were not the result

of the original impact or collision.

'substantial factor' and 'legal cause' in the standard jury instructions."

Gorman v. Costello, 929 A.2d 1208, 1213 n.7 (Pa.Super. 2007) (citing

Subcommittee Note to Suggested Standard Jury Instruction Civ. 3.00).

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Furthermore, Plaintiffs' Requested Jury Instructions as to

causation and the Consumer Expectation Test were closely

tracked in the actual jury instruction given at trial.

Compare Pls.' Proposed Jury Instruction Nos. 47,

In order for a defect in a product to be a factual cause,

the defect must have played a real role in causing the

injury. Therefore, in determining factual cause, you

must decide whether an unsure feature in the Passat

was more than an insignificant factor in bringing about

harm to Robert Davis. Under Pennsylvania law, a

defect can be a contributing factor if the defect was

an actual or real factor in connection with the injury.

However, factual cause does not mean it must be the

only, primary or even the most important factor in

causing the injury. A cause may be found to be a

factual cause as long as it contributes to the injury in

a way that is not minimal or insignificant.

and Pls.' Proposed Jury Instruction No. 63,

A product is defective under the Consumer

Expectation Test if [there is a finding]...

a. That Volkswagen manufactured/distributed/sold

the Volkswagen Passat;

b. That the Volkswagen Passat did not perform as

safely as an ordinary consumer would have expected

it to perform when used or misused in an intended or

reasonably foreseeable way;

c. That Robert Davis was harmed; and

d. That the Volkswagen Passat's failure to perform

safely was a substantial factor in causing Robert Davis

fatal injuries.

with N.T., Vol. 16 at 4011,

Something is a factual cause of harm if it played a role

in causing injury. In determining factual cause, you

must decide whether the event was an actual or real

fact[or], in connection with the harm sustained.

However, factual cause does not mean it must be the

only, primary, or even the most important factor in

causing harm. A cause may be found to be a factual

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cause, as long as it contributes to the harm in a way

that is not minimal or insignificant.

and N.T .. Vol. I 6 at 4008.

To establish their claim under the consumer

expectation test the Plaintiffs must prove all of the

following:

One, that Volkswagen designed the product; and two,

the product did not perform as safely as an ordinary

consumer would have expected it to perform when

used in an intended way; and three, the product's

defective condition was a factual cause of harm.

1925(a) Op. at 5-6.

The instructions, which differed in no material way from the instructions

Davis proposed and were largely identical to the Pennsylvania Standard Civil

Jury Instructions, were proper.

III. The Verdict Did Not Establish Liability and Was Not Internally

Inconsistent.

Davis further argues that the instructions rendered the verdict slip

"internally inconsistent." Davis's Br. at 39. She argues that, pursuant to the

jury instructions, to find the fuel tank "not crashworthy," the jury had to

conclude the car was defective, the defect caused the injuries, and the defect

enhanced the injuries beyond those caused by the initial accident. She then

concludes that, because of those findings, the jury had to conclude "that

'factual causation' (as that term was defined by the Trial Court) was satisfied,"

which Davis claims rendered redundant the separate instruction that the jury

consider factual causation. Id. at 40.

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Davis has cited to no place in the record prior to her post -trial motion

where she stated that the instruction as to defect would require a finding as

to causation, and we have found none. She has therefore waived this claim.

Even if she had not waived the claim, we would conclude it lacked merit.

The instructions set forth the elements of the strict products liability cause of

action without misleading the jury about the causation analysis. For example,

for the consumer expectation test, the trial court explained that the Plaintiffs

bore the burden of proving: "One, that Volkswagen designed the product; and

two, the product did not perform as safely as an ordinary consumer would

have expected when used in an intended way; and three, the product's

defective condition was a factual cause of harm." N.T., 6/19/17, at 4008. It

then stated the factors the jury should consider to determine whether the

product had a defect, that is, whether the product did not perform as safely

as an ordinary consumer would have expected when used in an intended way.

The court then explained that Davis was "required to prove only that the defect

was a factual cause of damages beyond those that were probably caused by

the original impact." Id. at 4010-4011. The risk -utility instruction similarly

informed the jury that it first needed to determine whether the product was

defective, and then turn its attention to factual cause. Read as a whole, the

instructions adequately informed the jury of the law to apply.

IV. Risk -Utility Test Instruction

In her final issue, Davis argues that the trial court erred in instructing

the jury on both the consumer expectations test and the risk -utility test, when

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she litigated her case under the consumer expectations test and only asked

the court to instruct on that test. She points out that in Tincher, the Supreme

Court stated that plaintiff is the 'master' of [her] own claims. . . ." Davis's Br.

at 42. She claims by including an instruction as to the risk -utility test, the trial

court prevented Davis from "trying this case under [her] chosen theory of

liability." Id.

The trial court concluded, in part:

[Davis] supposes that, as she is the master of her own

claims, the court should have limited its jury instructions

solely to an explanation of the Consumer Expectation Test. The Court in Tincher did hold that "the plaintiff is the

master of the claim in the first instance," when referring to

the ability of plaintiffs' counsel to determine which path or

paths to pursue in making out its prima facie case of strict

liability. See Tincher v. Omega Flex, Inc., 304 A.3d 328,

426 (Pa. 2014). In accordance with Tincher, a plaintiff can

predicate a strict liability claim on either the Consumer

Expectation Test or the Risk -Utility lest. See id. With that

said, the Tincher decision makes it clear that the Consumer

Expectation Test is inappropriate when the risk of injury is

"outside the ordinary consumer's contemplation" because

use of that test may result in "arbitrary application of the

strict liability doctrine; jury determinations of consumer

expectations regarding the presence of danger are

unpredictable. This difficulty is characteristic of the products

of relatively complex design." Id. at 388. Furthermore,

"[w]here evidence supports a party -requested instruction

on a theory or defense, a charge on the theory or defense

is warranted." Id. at 428-29.

1925(a) Op. at 13.

We conclude the trial court did not abuse its discretion. While it is true

that the Tincher Court stated that the "plaintiff is the master of the claim in

the first instance," that is not all the Court said. Tincher, 104 A.3d at 406. In

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addition to making that point, it cautioned that "[a] defendant may also seek

to have dismissed any overreaching by the plaintiff via appropriate motion

and objection." Id. at 407. It further noted that "[t]he trial court is to act in

its ordinary gate -keeper role, e.g., monitoring litigation, mediating or

adjudicating any subsidiary differences, and pending objection and motions,

including those seeking to narrow, or expand, the theories of litigation to be

pursued at trial." Id.

Perhaps more to the point, the Court also said, "Where evidence

supports a party -requested instruction on a theory or defense, a charge on

the theory or defense is warranted." Id. at 408. That is precisely the situation

here. In this case, the defense admitted into evidence expert testimony that

the fuel tank was not punctured, and that the fire started in the engine, not

near the fuel tank. This evidence put the risk -utility test into issue, and the

court properly instructed as to that test.9

Davis's additional contention that the trial court instructing the jury on

the risk -utility test somehow prevented her from litigating the case under her

chosen theory - the consumer expectation test - is meritless because the court

also instructed the jury on that test.

V. Volkswagen's Cross -Appeal

Because we reject Davis's challenges to the judgment entered in

Volkswagen's favor, we do not reach Volkswagen's cross -appeal.

9 No one argues on appeal that the trial court erroneously instructed the jury

on the consumer expectation test and we therefore do not address this issue.

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Judgment affirmed.

Judge Bowes joins the memorandum.

Judge Stabile joins the memorandum and files a concurring statement in which

Judge Bowes joins.

Judgment Entered.

Jseph D. Seletyn,

Prothonotary

Date: 7/19/19

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