Reott v. Asia Trend, Inc. (majority)
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The Supreme Court granted allowance of appeal in this case to determine, as a matter of first impression, whether a defendant in a products liability action must plead and prove as an affirmative defense that an injured party's alleged "highly reckless conduct" was the sole or superseding cause of the plaintiff's injuries. Upon review of the Superior Court record, the Supreme Court agreed with the lower court that in order to avoid liability, a defendant raising a claim of highly reckless conduct must indeed plead and prove such claim as an affirmative defense. "Moreover, this evidence must further establish that the highly reckless conduct was the sole or superseding cause of the injuries sustained." The Court affirmed the order of the Superior Court.
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[J-100A-D-2011] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. DUANE REOTT AND PATTY REOTT, HUSBAND AND WIFE v. ASIA TREND, INC., CLAM CORPORATION (AS SUCCESSOR-ININTEREST TO USL OUTDOOR PRODUCTS, INC.), USL OUTDOOR PRODUCTS, INC., REMINGTON ARMS COMPANY, INC., RA BRANDS, LLC, AND THE SPORTSMAN'S GUIDE APPEAL OF: ASIA TREND, INC., REMINGTON ARMS COMPANY, INC. , RA BRANDS, LLC AND THE SPORTSMAN S GUIDE DUANE REOTT AND PATTY REOTT, HUSBAND AND WIFE v. ASIA TREND, INC., CLAM CORPORATION (AS SUCCESSOR-ININTEREST TO USL OUTDOOR PRODUCTS, INC.), USL OUTDOOR PRODUCTS, INC., REMINGTON ARMS COMPANY, INC., RA BRANDS, LLC, AND THE SPORTSMAN'S GUIDE APPEAL OF: ASIA TREND, INC., REMINGTON ARMS COMPANY, INC. , RA BRANDS, LLC AND THE SPORTSMAN S GUIDE : : : : : : : : : : : : : : : : : : No. 27 WAP 2011 : : : : : : : : : : : : : : : : : : No. 28 WAP 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 2 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 109 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 DUANE REOTT AND PATTY REOTT, HUSBAND AND WIFE v. ASIA TREND, INC., CLAM CORPORATION (AS SUCCESSOR-ININTEREST TO USL OUTDOOR PRODUCTS, INC.), USL OUTDOOR PRODUCTS, INC., REMINGTON ARMS COMPANY, INC., RA BRANDS, LLC, AND THE SPORTSMAN'S GUIDE APPEAL OF: ASIA TREND, INC., REMINGTON ARMS COMPANY, INC. , RA BRANDS, LLC AND THE SPORTSMAN S GUIDE DUANE REOTT AND PATTY REOTT, HUSBAND AND WIFE v. ASIA TREND, INC., CLAM CORPORATION (AS SUCCESSOR-ININTEREST TO USL OUTDOOR PRODUCTS, INC.), USL OUTDOOR PRODUCTS, INC., REMINGTON ARMS COMPANY, INC., RA BRANDS, LLC, AND THE SPORTSMAN'S GUIDE APPEAL OF: ASIA TREND, INC., REMINGTON ARMS COMPANY, INC. , RA BRANDS, LLC AND THE SPORTSMAN S GUIDE : : : : : : : : : : : : : : : : : : No. 29 WAP 2011 : : : : : : : : : : : : : : : : : : No. 30 WAP 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 112 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 Appeal from the Order of the Superior Court entered September 21, 2010 at No. 113 WDA 2010, reversing the Order of the Court of Common Pleas of Butler County entered December 14, 2009, at No. AD 06-11440 and remanding. ARGUED: October 19, 2011 OPINION MR. JUSTICE BAER DECIDED: NOVEMBER 26, 2012 [J-100A-D-2011] - 2 We granted allowance of appeal in this case to determine, as a matter of first impression for this Court, whether a defendant in a products liability action must plead and prove as an affirmative defense that an injured party s alleged highly reckless conduct was the sole or superseding cause of the plaintiff s injuries. For the reasons that follow, we agree with the Superior Court that, in order to avoid liability, a defendant raising a claim of highly reckless conduct must indeed plead and prove such claim as an affirmative defense. Moreover, this evidence must further establish that the highly reckless conduct was the sole or superseding cause of the injuries sustained. We therefore affirm the order of the Superior Court. In January of 2003, Douglas Reott, brother of the Plaintiff-Appellee, Duane Reott,1 ordered two identical Remington-branded tree stands from The Sportsman s Guide, a mail-order and online catalog of outdoors products. Douglas gave the tree stands to Appellee, who in turn paid Douglas for them. For approximately the next two years, Appellee used one of the tree stands on multiple occasions, while leaving the second sealed in the box. On September 25, 2005, Appellee took the second, previously unused tree stand to his other brother Daniel s house, intending to install the second stand in a tree in the vicinity. Appellee and his brother Daniel assembled the tree stand at Daniel s house, selected a suitable tree, and Appellee utilized a ladder stick to climb twenty to twentyfive feet to install the stand in the tree. Upon placing the stand in the tree, Appellee cinched the locking strap around the tree s trunk to secure the stand. Appellee then climbed onto the platform of the tree stand and, while bear hugging the tree, raised himself on his toes and came down on the platform. According to Appellee, this self1 Duane Reott s wife, Patty Reott, has also filed a claim in this case related to loss of consortium. For ease of discussion, we will only refer to Duane as the Appellee herein. [J-100A-D-2011] - 3 taught maneuver, known as setting the stand, is used to secure the stand firmly in the tree by taking any slack out of the locking strap. Appellee had performed this maneuver, in his estimation, hundreds of times on other stands before September 25, 2005. This time, however, when Appellee came down onto the stand s platform, the locking strap broke, and Appellee fell to the ground. Daniel assisted his brother back to his residence. He subsequently sought medical attention, which revealed that the fall had resulted in a crushed vertebra and fractured wrist. When Appellee and his brother Daniel examined the tree stand, they discovered that the locking strap had been only glued, rather than like a seatbelt, which is glued and stitched. Appellee, together with his wife, sued four entities, Asia Trend, Inc., Remington Arms Company, Inc., RA Brands, LLC, and The Sportsman s Guide (collectively, Appellants), in strict products liability pursuant to Section 402A of the Restatement (Second) of Torts, alleging that Appellee s injuries were caused by a manufacturing defect in the tree stand, namely, that the locking strap was defectively manufactured in that it was held together only with glue, rather than with glue and stitching. All Appellants filed answers denying the allegations, as well as new matters, which placed responsibility for the incident on Appellee.2 2 Specifically, the Sportsman s Guide raised product misuse and material alteration of the product as affirmative defenses. See Answer and New Matter of the Sportsman s Guide at ¶ 53. Remington and RA Brands alleged that Appellee was barred from recovery under the Doctrine[s] of Assumption of the Risk [and] Product Misuse, and further that Appellee conducted himself in a highly reckless fashion. See Answer and New Matter of Remington and RA Brands at ¶¶ 55, 56, & 57. Remington/RA Brands did not specifically raise highly reckless conduct as an affirmative defense. See id. at ¶ 57. Finally, Asia Trend averred that Appellee assumed the risk of potential injury and that the incident was caused by a superseding or intervening cause. See Answer and New Matter of Asia Trend at ¶¶ 56 & 57. [J-100A-D-2011] - 4 Upon the conclusion of the introduction of evidence at trial, Appellee moved for a directed verdict, arguing to the trial judge that uncontroverted evidence existed that the tree stand was defective, and that the defect caused Appellee s injuries. See Webb v. Zern, 220 A.2d 853 (Pa. 1966); Hadar v. Avco Corp., 886 A.2d 225 (Pa. Super. 2005) (each providing that a plaintiff in a Section 402A action must prove two things: (1) that the product was defective; and (2) that the defect in the product was a substantial factor in causing the injuries sustained)). The trial court agreed with Appellee that the product was defective, and granted a partial directed verdict on that sub-issue only. The court denied the motion for directed verdict regarding causation, and permitted that question to go to the jury. Appellants presented evidence to the jury that Appellee s self-taught setting the stand maneuver constituted highly reckless conduct, which negated Appellee s contention that the defect in the locking strap caused his fall and resultant injuries. After deliberations, the jury returned a verdict in favor of Appellants. Appellee filed for posttrial relief seeking, inter alia, judgment notwithstanding the verdict (JNOV), contending error in the trial court s denial of Appellee s motion for a directed verdict. The trial court denied the post-trial relief, finding that evidence concerning Appellee s highly reckless conduct raised a jury question concerning Appellee s proof of causation, which the jury, as exhibited by the verdict, resolved against Appellee. Appellee filed a timely appeal to the Superior Court, alleging that the trial court erred when it determined that a defendant may present evidence of highly reckless conduct merely to rebut evidence of causation, thus leaving the plaintiff with the sole burden of proof, consistent with the two-part inquiry of Webb and Hadar (that the tree stand was defective and that the defect was a substantial factor in Appellee s injuries). See Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). [J-100A-D-2011] - 5 The court began its analysis by noting that, while evidence of a plaintiff s conduct, especially contributory negligence, is generally not permitted in a Section 402A case, [i]n certain limited circumstances, evidence of a plaintiff s conduct may be admissible, specifically where the defendant alleges that the plaintiff s voluntary assumption of the risk, product misuse, or highly reckless conduct is relevant to the issue of causation. Id. at 836 (citing Gaudio v. Ford Motor Co., 976 A.2d 524, 540 (Pa. Super. 2009), appeal denied, 989 A.2d 917 (Pa. 2010)). The panel then related that highly reckless conduct occurs when the plaintiff knew or had reason to know of facts which created a high degree of risk of physical harm to himself and that he deliberately act[s], or fail[s] to act, in conscious disregard of that risk. Id. (citing Charlton v. Toyota Indus. Equip., 714 A.2d 1043, 1047 (Pa. Super. 1998)). The panel then conducted a survey of Pennsylvania products liability law and determined that assumption of the risk, product misuse, and highly reckless conduct are all affirmative defenses for which the defendant asserting them bears the burden of proof. Id. at 837 (emphasis in original) (citing, e.g., Falyk v. Pa. R. Co., 100 A. 961, 963 (Pa. 1917) (noting, in a pre-Section 402A case, that assumption of the risk generally is an affirmative defense); Gaudio, 976 A.2d at 541 (in a Section 402A case, highly reckless conduct claim requires a defendant to prove that the use was so extraordinary and unforeseeable to constitute a superseding cause. ); Charlton, 714 A.2d at 1047 (in a Section 402A action defendant was required to show that plaintiff knew or should have known that his actions were highly reckless); Childers v. Power Line Equip. Rentals, Inc., 681 A.2d 201, 208 (Pa. Super. 1996), appeal denied, 690 A.2d 236 (Pa. 1997) (in an action for products liability, product misuse and highly [J-100A-D-2011] - 6 reckless conduct are affirmative defenses)).3 In accord with these cases, the court also held that a defendant had the burden of proving that a plaintiff s highly reckless conduct was the sole or superseding cause of his injuries. Concluding that a two-part burden is placed on defendants alleging highly reckless conduct (i.e., affirmative proof that the plaintiff acted in a highly reckless manner and that such conduct was the sole or superseding cause of the injuries), the panel proceeded to examine the evidence presented at trial. Regarding, first, Appellee s conduct, the panel concluded that it reasonably could have been within [the] jury s province to conclude that Appellee knew, understood, and appreciated that his conduct carried a risk of falling. Reott, 7 A.3d at 838. However, the panel noted that Appellants presented no evidence at trial to show that the force with which Appellee set the stand was sufficient, in and of itself, to cause the stand to fall from the tree. Accordingly, the panel determined that the trial court should have granted Appellee s request for JNOV on the issue of causation, because the evidence introduced at trial was insufficient as a matter of law to support [Appellants affirmative] defense of highly reckless conduct. Id. at 839. As Appellants did not satisfy their burden, the Superior Court directed that judgment be entered in favor of Appellee, and a new trial be held limited to the issue of damages. Id. at 841. Appellants filed a joint petition for allowance of appeal to this Court, which we granted pertaining to two issues: 1. Did the Superior Court err in its determination that the assertion of highly reckless conduct is an affirmative defense 3 We note that Falyk is a decision of this Court that pre-dates the Restatement (Second) of Torts by almost fifty years; the Gaudio, Charlton, and Childers cases are within the Section 402A construct. [J-100A-D-2011] - 7 contrary to prior decisions of this Court and of the Superior Court which classify such assertion as a denial of causation? 2. Did the Superior Court err in its determination to expand the requirements for proof of highly reckless conduct in contravention of prior decisions of that same [c]ourt? Reott v. Asia Trend, Inc., 20 A.3d 1187 (Pa. 2011) (per curiam). We initially note that this case comes before us from the Superior Court s reversal of the trial court s decision to deny Appellee s motion for JNOV regarding causation. We will reverse a trial court s grant or denial of a JNOV only when we find an abuse of discretion or an error of law. Dooner v. DiDonato, 971 A.2d 1187, 1193 (Pa. 2009). The questions currently before us, namely whether an assertion of highly reckless conduct is an affirmative defense and, assuming arguendo that it is, whether a defendant in proving it must demonstrate that the highly reckless conduct is the sole or superseding cause of the incident, are pure questions of law. Thus, our standard of review is de novo and our scope of review is plenary. Id. Concerning, first, the Superior Court s conclusion that highly reckless conduct is an affirmative defense, Appellants argue that this results in a legal impossibility. Appellants note that Pennsylvania procedural law provides that affirmative defenses, in general, defeat causes of action despite a defendant s admission of all of the allegations contained within a complaint. See Appellants Joint Brief at 11 (citing, e.g., Pisiechko v. Diaddorio, 326 A.2d 608, 610 (Pa. Super. 1975) (affirmative defenses may be raised as a new matter to a complaint, which, taking all of the allegations of the complaint to be true, is nevertheless a defense to the action. )). On the facts of this case, Appellants contend that should they be required to allege highly reckless conduct as an affirmative defense, they would be forced to admit as true the allegations in Appellee s complaint (i.e., that the locking strap was defective [J-100A-D-2011] - 8 and this defect was the cause of the injury), while then simultaneously being required to prove that Appellee s highly reckless conduct caused his injuries. In Appellants view, these two positions are mutually exclusive, and thus the Superior Court erred as a matter of law in forcing them into arguing a legal impossibility. Appellants also point to this Court s 1975 plurality decision in Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa. 1975), as evidence that we have previously permitted evidence of highly reckless conduct to be admitted to rebut causation, rather than as an affirmative defense. There, a helicopter crash killed the pilot, and his estate filed a wrongful death suit against the helicopter s manufacturer under Section 402A. The manufacturer retorted that the pilot had abnormally used the helicopter during takeoff, which caused the crash.4 In determining whether the decedent-pilot s alleged abnormal use of the helicopter was properly admitted at trial, this Court first reiterated the common mantra in Section 402A cases that evidence of negligence and reasonableness on the part of a plaintiff is not relevant. See id. at 900. However, Appellants herein emphasize that we found evidence of a plaintiff s abnormal use is both relevant and permissible in a Section 402A case, but only for the purpose of rebutting the plaintiff s contentions of 4 The trial court in Berkebile accepted this theory by the manufacturer-defendant as rebuttal evidence, and charged the jury: The defendant is not liable if the product is used in an abnormal manner, or in a way in which it was not designed to be used. . . . If you take a helicopter and use it abnormally . . ., and such improper use was the proximate cause of the accident, that does not make the helicopter defective. . . . It must be used normally and properly in order for it to be defective and dangerous. Id. at 900. [J-100A-D-2011] - 9 defect and proximate cause. It is not properly submitted to the jury as a separate defense. Id. at 901. Appellants argue that we should uphold this language from Berkebile, because it is consistent with the burden of proof placed upon all plaintiffs in Section 402A cases: that the product was defective and the proximate cause of the injuries suffered, and defendants may present evidence to negate either prong, but specifically causation. Otherwise, in Appellants view, we would be improperly shifting the burden of proof concerning causation to them. Similarly, Appellants aver that branding highly reckless conduct as an affirmative defense usurps the jury s function of resolving disputed issues. Regarding the holding by the Superior Court that highly reckless conduct must also be the sole or superseding cause of a plaintiff s injuries, Appellants forward that evidence of sole or superseding cause is simply that -- evidence -- which can be used to rebut the theory of causation put forth by a plaintiff. Appellants conclude that no court has ever found that highly reckless conduct must be the sole or superseding cause of the accident before a defendant can avoid liability. Appellee responds by first pointing to a decision of the United States Court of Appeals for the Third Circuit, Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d Cir. 1992), for the proposition that the federal courts have interpreted Pennsylvania law to require defendants to prove highly reckless conduct as an affirmative defense. In support of this general statement, Appellee points to Gaudio, supra p.6, in which the Superior Court likened highly reckless conduct to evidence of misuse and requires the defendant to prove that the use was so extraordinary and unforeseeable as to constitute a superseding cause. Brief of Plaintiff at 22 (quoting Gaudio, 976 A.2d at 541 (quoting Dillinger, 959 F.2d at 431)) (emphasis supplied by Plaintiff). [J-100A-D-2011] - 10 Appellee notes that under Pennsylvania jurisprudence, affirmative defenses pleaded as new matter are distinguished from mere answers and denials of the allegations raised in a complaint, because affirmative defenses raise matters and facts that are extrinsic to those brought forward by a plaintiff. Id. at 24 (citing Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 569-70 (3d Cir. 2003) (interpreting Pennsylvania law)). Here, Appellee contends that Appellants, to prove that he acted in a highly reckless manner, would have had to bring in facts not contained in the original complaint, such as expert testimony exhibiting the amount of force Appellee placed on the stand platform when performing the setting maneuver.5 Thus, in Appellee s view, highly reckless conduct is properly submitted only as an affirmative defense. Concerning sole or superseding cause, Appellee repeatedly cites to the various Superior Court cases, see supra pp.6-7, which hold that in order to bar a plaintiff s recovery in Section 402A cases, defendants must show that highly reckless conduct is the sole or superseding cause of an accident. Thus, to the extent Defendants in this case argue that the Superior Court improperly expanded the elements of highly reckless conduct to include sole or superseding causation, Appellee notes that the Superior Court was merely following its own precedent. By definition, an affirmative defense pertains to a defendant s assertion of facts and arguments that, if true, will defeat the plaintiff s . . . claim, even if all the allegations 5 Indeed, much of Appellee s brief to this Court focuses on the dearth of any evidence supplied by Defendants at trial to dispute the simple allegations in the complaint: the locking strap was defectively manufactured and broke, thus causing the stand to collapse and Appellee to be injured. In furtherance of this focus, Appellee argues that whether this Court concludes that highly reckless conduct should be considered an affirmative defense or rebuttal evidence, Appellants failed in any manner to counter by way of any substantive evidence Appellee s contention that the defectively manufactured locking strap caused the stand collapse. [J-100A-D-2011] - 11 in the complaint are true. Black s Law Dictionary 186 (2d Pocket Ed.) (2001). Generally, affirmative defenses in Pennsylvania must be pleaded by a defendant by way of New Matter in a responsive pleading. See Pa.R.C.P. 1030(a).6 Rule 1030(a) lists, non-exclusively, several types of affirmative defenses available to defendants in various matters. Specific to tort, and, necessarily Section 402A actions,7 Rule 1030(b) provides that the affirmative defense of assumption of the risk, unlike those delineated specifically and by reference in Rule 1030(a), need not be pleaded. Accordingly, this defense is always available to a defendant in products liability case, and becomes relevant in an appropriate case without the necessity of pleading [it]. Id. (comment). Moreover, failure to raise the defense of assumption of the risk in a new matter does not 6 Pennsylvania Rule of Civil Procedure 1030 provides, in its entirety: (a) Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading New Matter . A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading. (b) The affirmative defenses of assumption of the risk, comparative negligence and contributory negligence need not be pleaded. Note: If a defendant pleads the affirmative defenses set forth in subdivision (b), they shall be deemed denied and the plaintiff need not reply. Defenses which are not required to be pleaded are not waived. See Rule 1032(a). 7 Of course, strict liability cases are a variant of trespass matters and do not proceed in accord with rules other than those establishing Pennsylvania civil procedure. [J-100A-D-2011] - 12 result in waiver. Id. (comment). Neither Rule 1030(a) nor 1030(b) speak distinctly, however, to highly reckless conduct. Thus, our examination begins with assumption of the risk, which, as Rule 1030(b) illustrates, has universally been accepted as an affirmative defense. For example, the Restatement (Second) of Torts has explicitly regarded assumption of the risk as an affirmative defense: If the defendant would otherwise be subject to liability to the plaintiff, the burden of proof of the plaintiff s assumption of risk is upon the defendant. Restatement (Second) of Torts § 496G. The Restatement continues that assumption of the risk is only relevant where there would otherwise be a breach of some duty owed by the defendant to the plaintiff. It is then a defense, which relieves the defendant of the liability to which he would otherwise be subject. The burden of proof is therefore upon the defendant. Id., cmt. c. Specific to Section 402A cases, assumption of the risk is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. Id. § 402A, cmt. n. This Court has adopted comment n. as the law of Pennsylvania. Ferraro v. Ford Motor Co., 223 A.2d 746, 748 (Pa. 1966). While the Ferraro decision did not explicitly state that assumption of the risk is an affirmative defense in a Section 402A case, as noted, this Court has unfailingly described assumption of the risk as an affirmative defense in other contexts. See Falyk, 100 A. at 963 ( The burden of proof as to the assumption of risk is upon the defendant. ); see also Howell v. Clyde, 620 A.2d 1107, 1113 (Pa. 1993) (plurality) (Nix, C.J., dissenting) (indicating that assumption of the risk is an affirmative defense); Pa. R.C.P. 1030(b). Indeed, while this Court has at times considered abolishment or revision of assumption of the risk as an affirmative defense [J-100A-D-2011] - 13 within Pennsylvania law, these efforts always provided that the doctrine would continue unblemished in Section 402A cases. See Rutter v. Northeastern Beaver County Sch. Dist., 437 A.2d 1198, 1209-10 (Pa. 1981) (plurality) ( except where specifically preserved by statute[,] or in cases of express assumption of risk, or cases brought under [Section] 402A, (a strict liability theory), the doctrine of assumption of risk is abolished. ), cited in Howell, 620 A.2d at 1108 (discussing assumption of the risk within Pennsylvania law generally). Thus, we have no hesitation in initially concluding that assumption of the risk is an affirmative defense available to defendants in a products liability action.8 Appellants in this case, however, have styled Appellee s conduct as highly reckless, rather than as either assuming the risk or product misuse.9 As evinced by this appeal, this Court has never before had the occasion to address the interplay of these three concepts; but, the Superior Court has, in the past, artfully explained the similarities that exist between these principles. To establish voluntary assumption of the risk, the defendant must show that the buyer knew of a defect and yet voluntarily and unreasonably proceeded to use the product. To establish misuse of the product, the defendant must show that the use was unforeseeable or outrageous. Highly reckless conduct is akin to evidence of misuse and requires 8 A number of Superior Court cases have uniformly, in Section 402A cases, described assumption of the risk as an affirmative defense. See e.g. Hadar, 886 A.2d at 228; Bullman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. 2000). 9 We do not criticize Appellants averments in this regard. As is explained, infra, to assume the risk a victim must act while aware of the product defect, and there is no such evidence in this case. Rather, Appellants seek to argue highly reckless conduct, which is analogous to product misuse to the extent that neither requires a defendant to prove that a plaintiff had prior knowledge of the product s alleged defect. [J-100A-D-2011] - 14 the defendant to prove that the use was so extraordinary and unforeseeable as to constitute a superseding cause. Gaudio, 976 A.2d at 541 (internal citations and quotations omitted). The Superior Court has consistently regarded highly reckless conduct as akin to product misuse, and, furthermore, has on at least one occasion described highly reckless conduct in terms similar to assumption of the risk: In order to demonstrate that decedent s actions were highly reckless, it was necessary for [defendants] to show that decedent knew or had reason to know of facts which created a high degree of risk of physical harm to himself or that he deliberately proceeded to act, or failed to act, in conscious disregard of that risk. Childers, 681 A.2d at 208 (citing Brandimarti v. Caterpillar Tractor Co., 527 A.2d 134 (Pa. Super. 1987)). While there are some conceptual nuances between assumption of the risk and highly reckless conduct, in that assumption of the risk involves knowledge of the product s defect where highly reckless conduct does not, we fail, generally, to recognize a similar nuance between product misuse and highly reckless conduct. Both misuse and highly reckless conduct involve a plaintiff s unforeseeable, outrageous, and extraordinary use of a product. In our view, to misuse a product in an unforeseeable and outrageous fashion is to conduct oneself in a highly reckless manner. In any event, under the Superior Court s analysis of these three theories, they each require a defendant to prove that a plaintiff acted in a manner illustrating the plaintiff s conscious [J-100A-D-2011] - 15 understanding of the risks involved either in (1) merely using the product or (2) using the product in an unanticipated and dangerous manner.10 Given the inherent parallels between these concepts, we further note that while many of our sister supreme courts do not speak of highly reckless conduct in products liability cases, they do discuss product misuse as an affirmative defense and in a manner analogous to highly reckless conduct. For example, the Supreme Court of Arizona uses the term misuse in a broad manner, to describe conduct that is so rare and unusual that if proven by a defendant, it precludes a plaintiff from recovery in strict liability. Jimenez v. Sears, Roebuck & Co., 904 P.2d 861, 864-65 (Ariz. 1995). Proof by the defendant of misuse was an absolute defense to liability, yet proceeding under a misuse theory did not require the defendant to prove a plaintiff s knowledge of a product s defect, as assumption of the risk defenses necessitate. Id. at 865. Other courts have reached similar conclusions. See e.g. Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 79 (Ala. 2007) (product misuse requires the defendant must establish that the plaintiff used the product in some manner different from that intended by the manufacturer. ); Cyr v. J.I. Case Co., 652 A.2d 685, 695 (N.H. 1994) (abnormal use and product misuse, described as plaintiff s misconduct, are both affirmative defenses to strict liability claims); Standard Haven Prods., Inc. v. Benitez, 648 So.2d 1192, 1197 (Fla. 1994) (in context of Florida s strict liability scheme, product misuse is an affirmative defense that merges into comparative negligence concepts, when product is used in an unforeseeable manner); Lutz v. Nat l Crane Corp., 884 P.2d 455, 458 (Mont. 1994) (by 10 We note further that while the Superior Court s jurisprudence in this area does not explicitly link product misuse or highly reckless conduct to Rule 1030, given the court s consistent treatment of product misuse and highly reckless conduct as affirmative defenses under common law, we have no difficulty in concluding that our intermediate appellate court would likewise consider product misuse and highly reckless conduct to fall under the non-inclusive umbrella of Rule 1030(a). [J-100A-D-2011] - 16 statute, product misuse is an affirmative defense to a strict liability action, which describes abnormal conduct by a plaintiff); Anderson v. Louisiana-Pacific, 859 P.2d 85, 88-89 (Wyo. 1993) (consistent with both the development of the common law and Section 402A, product misuse is an affirmative defense which must be something more than mere careless use of the product.); see also Morden v. Continental AG, 611 N.W.2d 659, 679 (Wis. 2000) (product misuse is an affirmative defense).11 However, under Pennsylvania s scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff s assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury. Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate a Section 402A action by demonstrating a plaintiff s comparative or contributory negligence. Again, the Arizona Supreme Court provides guidance in this regard. In the misuse context, such conduct is again, so rare and unusual, and thus unforeseeable, that it [is] treated as a superseding cause to the product defect. Jimenez, 904 P.2d at 865 (citing Prosser & Keeton on the Law of Torts § 102 (5th ed. 1984)). The court continues that misuse bar[s] recovery because the defendant s fault in distributing a defective product did not cause the plaintiff s injuries, and thus the misuse is an absolute defense to strict products liability. Id. Indeed, if a plaintiff acts in a highly reckless manner, and such conduct relieves a defendant of liability, it must be because 11 But see D Amario v. Ford Motor Co., 806 So.2d 424, 431 n.9 (Fla. 2001) (reasoning misuse of a product is considered during the jury s determination of causation); Jurado v. W. Gear Works, 619 A.2d 1312, 1317 (N.J. 1993) ( The absence of misuse is part of the plaintiff s case. Misuse is not an affirmative defense. Thus, the plaintiff has the burden of showing that there was no misuse or that the misuse was objectively foreseeable. ) (internal citation omitted). [J-100A-D-2011] - 17 the defendant s fault in distributing a defective product did not cause the plaintiff s injuries. Id. In the aforementioned cases, the Superior Court has come to a similar conclusion: Highly reckless conduct . . . requires the defendant to prove that the use was so extraordinary and unforeseeable as to constitute a superseding cause. Gaudio, 976 A.2d at 540-41 (quoting Dillinger, 939 F.2d at 431); Madonna, 708 A.2d at 509 (holding that a defendant-manufacturer properly and sufficiently offered proof that highly reckless conduct by the operator of a motorcycle was the sole cause of injuries sustained, despite the existence of a faulty brake caliper). In other words, the highly reckless conduct either caused the injury sustained or superseded the defective nature of the product. Despite this well-reasoned jurisprudence, Appellants point us to Berkebile, in which a plurality of this Court noted that evidence of abnormal use, while similar to evidence of contributory or comparative negligence in that a plaintiff s conduct is scrutinized, would be permitted in a Section 402A case but only for the purpose of rebutting the plaintiff s contentions of defect and proximate cause. It is not properly submitted to the jury as a separate defense. Berkebile, 337 A.2d at 901. Appellants argue that abnormal use can be used synonymously with highly reckless conduct, and thus contend that this Court has explicitly held that highly reckless conduct is not an affirmative defense. Appellants position, however, is untenable. First, Berkebile was a plurality decision, with only two of seven justices subscribing to the position contained within the lead opinion that abnormal use could not be submitted to the jury as a separate defense. Id. Accordingly, while Appellants point to Berkebile as positive law, a majority of this Court has never stated that abnormal use, and by extension product misuse or highly reckless conduct, is proper only as rebuttal evidence; thus, the statement in Berkebile that abnormal use may not [J-100A-D-2011] - 18 be submitted as a separate defense is not binding on this Court. See e.g. Hoy v. Angelone, 720 A.2d 745, 750 (Pa. 1998).12 12 Chief Justice Jones penned the opinion announcing the judgment of the court in Berkebile, which only Justice Nix joined. Justices Roberts and Pomeroy filed separate concurring opinions, neither of which expressed a view concerning the role of abnormal use evidence as an affirmative defense. Justices Eagen, O Brien, and Manderino concurred in the result only. The Dissent criticizes our disinclination to rest this case on Berkebile due to subsequent decisions of various courts, which cite to Chief Justice Jones opinion with approval. See Dissenting Slip Op. at 11 n.7 (citing, e.g., Azzarello v. Black Bros. Co., Inc., 391 A.2d 1020 (Pa. 1978); Lewis v. Rego Co., 757 F.2d 66 (3d Cir. 1985); Dambacher by Dambacher v. Mallis, 485 A.2d 408 (Pa. Super. 1984)). Respectfully, the Dissent s criticism and ultimate implementation of the lead opinion in Berkebile is inapt for several reasons. First, the Dissent asserts that the statement in Chief Justice Jones opinion -- that evidence of abnormal use is not properly submitted as an affirmative defense -- is currently positive law in the Commonwealth because the former Chief Justice s opinion was later cited with approval by a unanimous court in Azzarello and subsequent Section 402A cases. Azzarello concerned only whether the phrase unreasonably dangerous, as contained in Section 402A, could properly be used in jury instructions in Pennsylvania products liability cases. While the Azzarello Court may have cited with approval Chief Justice Jones Berkebile opinion in this regard, it certainly did not consider, let alone adopt, any statement by Chief Justice Jones that abnormal use cannot be submitted as an affirmative defense. Second, while we recognize that the United States Court of Appeals for the Third Circuit has theorized that Chief Justice Jones opinion on the utilization of abnormal use evidence has been adopted by this Court through Azzarello, again, a careful reading of Azzarello reveals nothing of the sort. Notably, since the federal court of appeals decision in Lewis, the Superior Court has consistently treated product misuse and highly reckless conduct as affirmative defenses, as demonstrated by the cases discussed herein. Third, the precedent string-cited by the Dissent in furtherance of its claim that Berkebile controls this case only reflects that this Court has cited with approval Berkebile for two reasons: (1) the general elements a plaintiff must prove in a Section 402A case; and (2) the often-stated maxim that no theories of negligence are permitted in Pennsylvania Section 402A cases. Neither of these precepts are questions in this case, nor do the cited cases concern themselves with abnormal use, product misuse, or highly reckless conduct. Finally, we must comment that the Dissent s citation to and employment of the lead opinion in Berkebile does not support the Dissent s ultimate conclusion that highly reckless conduct may be asserted as an affirmative defense in some instances, but not ( ¦continued) [J-100A-D-2011] - 19 Moreover, the aforementioned jurisprudence, including the treatment of assumption of the risk by the Restatement (Second) of Torts; well-established similarities between assumption of the risk, product misuse, and highly reckless conduct; the consistency in which the Superior Court has treated the three doctrines all as affirmative defenses; and the holdings by our sister supreme courts regarding these doctrines as affirmative defenses, all overshadow the non-precedential sentiments raised by the lead opinion in Berkebile that abnormal use is to be used as rebuttal evidence only. Furthermore, we succinctly reject Appellants procedural argument that highly reckless conduct cannot be affirmatively pleaded in the alternative. The Rules of Civil Procedure provide that causes of action and defenses may be pleaded in the alternative. Pa.R.C.P. 1032(c). In other words, despite Appellants consternations concerning legal impossibilities, there is nothing in Pennsylvania s rules of procedure that would prohibit a defendant in a products liability action from denying a plaintiff s averments of causation in an answer, while simultaneously pleading an affirmative defense of assumption of the risk, product misuse, or highly reckless conduct in the alternative. Indeed, it is done routinely. (continued ¦) in others. See discussion infra, pp.21-22; see also Dissenting Slip Op. at 12-13 (commenting that highly reckless conduct may not be asserted as an affirmative defense if the defendant contends that such conduct was the sole cause of sustained injuries). As Appellants herein have argued, accepting Chief Justice Jones opinion on its face would preclude abnormal use/product misuse/highly reckless conduct from being asserted as an affirmative defense in a Section 402A case in any circumstance. Our examination of the principles of affirmative defenses and strict products liability, supra, has belied this conclusion, and, even the Dissent, in part, contradicts itself in this regard. See Dissenting Slip Op. at 13 (agreeing that highly reckless conduct may be asserted as an affirmative defense if the defendant alleges that such conduct was a superseding cause of the sustained injuries). Thus, the citation to Berkebile simply does not support the positions taken by the Dissent. [J-100A-D-2011] - 20 For much the same reason, we reject the Dissent s position that an allegation by a defendant that a plaintiff s highly reckless conduct constituted a superseding cause of the injuries sustained must be pursued as an affirmative defense, while the same, which establishes a sole cause, may only exist as rebuttal evidence of causation. The Dissent rightfully notes that highly reckless conduct 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 cause. Dissenting Slip Op. at 7 (quoting Burch v. Sears, Roebuck & Co., 467 A.2d 615, 619 (Pa. Super. 1983)). This accepted definition of highly reckless conduct exemplifies that a defendant can affirmatively plead and prove sole cause, i.e., that a curing of any defect would not have prevented the injury because only the plaintiff s conduct caused the injury; or superseding cause, i.e., that the plaintiff acted in such an outrageous and unforeseeable fashion that the conduct superseded any but for or legal causation the product contributed to the injuries. See also Jimenez, 904 P.2d at 865 (finding that product misuse bars a plaintiff s recovery because the defect in the defendant s product did not cause the plaintiff s injuries. ).13 Thus, the rules of pleading and procedure 13 We further note that leading scholars in the area fail to recognize any substantive difference between sole and superseding causes in plaintiff misconduct cases. In practical application, a plaintiff s conduct that could be found to preclude recovery altogether may sometimes count as a superseding cause, or, as courts often say, the sole proximate cause of the plaintiff s own harm. DAN B. DOBBS, THE LAW OF TORTS § 196 (West 2000). Dobbs notes that the interchangeability of the phrases sole and superseding causes are steeped in defense rhetoric and may cloud the court s holding with ambiguity. Id. § 196 n.2. Thus, while the Dissent posits that our holding runs the real risk of the issuance of confusing jury instructions on causation and on the respective burdens of proof that are placed on parties in products liability cases, Dissenting Slip Op. at 12, should the Dissent s suggestions be accepted, it would be left to the bench and bar at the trial level to untangle in each case whether sole or superseding cause was being asserted; at best an elusive task given the substantial overlap of these concepts in the real world. Indeed, in practical application, this ( ¦continued) [J-100A-D-2011] - 21 provide no barrier to this Court ultimately concluding that highly reckless conduct is an affirmative defense, for, as noted, nothing impedes a defendant from denying a plaintiff s factual and legal averments while simultaneously asserting, in the alternative, all meritorious affirmative defenses, regardless of inconsistency. Accordingly, and consistent with all of the foregoing, we hold that a defendant in a Section 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted. As noted by the various Superior Court decisions on the subject, and in concert with the decisions of our sister Supreme Courts, highly reckless conduct is that which occurs when the plaintiff would have been injured despite the curing of any alleged defect, or is so extraordinary and unforeseeable as to constitute a superseding cause. Madonna, 708 A.2d at 509; Childers, 681 A.2d at 208; Burch, 467 A.2d at 619; see also Jimenez, 904 P.2d at 865. To prove that a plaintiff would have been injured despite any curing of a defect or that the conduct was extraordinary and unforeseeable, the burden is on the defendant to demonstrate that the injured party or decedent knew or had reason to know of facts which created a high degree of risk of physical harm to himself or that he deliberately (continued ¦) Court s committee for standard jury instructions recently recognized that Pennsylvania jurisprudence is most faithfully adhered to when trial courts instruct juries solely regarding factual cause, so as to remove any confusion juries may have in assigning causation, while concomitantly not altering the trial structure. See Pa.SSJI (Civ) § 13.160 (subcommittee note); see also Rodgers v. Yellow Cab Co., 147 A.2d 611, 617 (Pa. 1959) (opining that the distinction between factual cause, legal cause, and proximate cause means nothing to the ordinary jury ). Moreover, if the Dissent s position concerning sole cause versus superseding cause would be accepted, we can foresee no astute defense counsel ever pleading superseding cause, and thereby imposing upon himself a burden of proof. Rather, defendants would continuously employ evidence of what the Dissent sees as sole cause to attack a plaintiff s attempt to prove his case without any attendant burden of proof. Indeed, that is what occurred here. [J-100A-D-2011] - 22 proceeded to act, or failed to act, in conscious disregard of that risk. Childers, 681 A.2d at 208. As these standards demonstrate, because highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained.14 For these reasons, and further to prevent the impermissible blending of negligence and strict liability concepts, should such an affirmative defense be pursued, the burden of proof is on the defendant to show that the highly reckless conduct was the sole or superseding cause of the injuries sustained. As the Superior Court reached the same conclusion, its order is affirmed. Jurisdiction relinquished. Madame Justice Orie Melvin did not participate in the decision of this case. Mr. Chief Justice Castille and Messrs. Justice Saylor, Eakin and McCaffery join the opinion. Mr. Justice Saylor files a concurring opinion. Madame Justice Todd files a dissenting opinion. 14 We note that what is and is not highly reckless conduct has not been contested before this Court, and the various characterizations of highly reckless conduct illustrated in this opinion have been employed only to examine the appropriateness of treating highly reckless conduct claims as affirmative defenses. [J-100A-D-2011] - 23
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