The state Supreme Court has ruled that “highly reckless” conduct is an affirmative defense in products liability cases, requiring defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.
The six-justice court voted 5-1 to affirm the state Superior Court’s ruling in Reott v. Asia Trend, which held that defendants Asia Trend Inc., Remington Arms Co., RA Brands and the Sportsman’s Guide failed to show that the plaintiff’s highly reckless conduct in attempting to install a 20-foot-high tree stand was the sole or superseding cause of his injuries.
Justice Max Baer, who wrote the 28-page majority opinion, said that “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.”
“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 proceeded to act, or failed to act, in conscious disregard of that risk,’” Baer said, quoting language from the Superior Court’s 1996 ruling in Childers v. Power Line Equipment Rentals, in which it held that product misuse and highly reckless conduct are affirmative defenses in products liability cases.
Baer was joined in the majority by Chief Justice Ronald D. Castille and Justices Thomas G. Saylor, J. Michael Eakin and Seamus P. McCaffery.
Saylor wrote a separate one-paragraph concurrence, noting that while he joined the majority’s ruling with regard to manufacturing defect cases, he does not believe the holding should extend to strict liability and design defect litigation.
Justice Debra Todd penned a 14-page dissenting opinion, arguing that while an allegation that a plaintiff’s highly reckless conduct was a superseding cause of an injury is an affirmative defense, an assertion that a plaintiff’s highly reckless conduct was the sole cause of an injury is not.
Todd said the majority’s ruling “impermissibly shifts the burden of proof on the element of causation from the plaintiff to the defendant, requires the defendant to disprove cause-in-fact, and effectively overturns any number of this court’s decisions in which we have stated that the element of causation in a products liability action is for the plaintiff to prove.”
“Further, the majority’s 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 the parties in products liability cases,” Todd said. “In addition, it could lead to fatally inconsistent jury findings on the element of causation in the plaintiff’s case and that same element which is now an element in the defendant’s highly reckless conduct affirmative defense.”
In Reott, according to Baer, plaintiff Duane Reott used a stick ladder to climb about 20 feet up a tree to install a Remington Arms tree stand he had purchased from the Sportsman’s Guide. After cinching the locking strap to the tree trunk to secure the tree stand, he tried to remove slack from the locking strap by raising himself on his toes and coming down gently on his heels, a maneuver known as “setting the stand.”
But the strap broke and he fell to the ground, crushing one of his vertebrae, Baer said.
Reott later discovered that the two segments of the locking strap were held together by glue, rather than stitches, according to Baer.
Reott and his wife filed a products liability suit under Section 402A of the Restatement (Second) of Torts, alleging his injuries were caused by a manufacturing defect in the tree stand, Superior Court Judge Christine L. Donohue said.
At trial, Butler County Court of Common Pleas Judge Marilyn J. Horan granted the plaintiffs’ motion for a directed verdict as to defectiveness but not as to causation, according to Donohue.
The jury returned a defense verdict and the court denied the plaintiffs’ motion for judgment notwithstanding the verdict, Donohue said.
On appeal, Donohue said the trial court erred in its determination that the burden of proof is on the plaintiff when a defendant submits evidence of a plaintiff’s highly reckless conduct in a products liability suit.
Donohue said the only circumstances in which a defendant may introduce evidence of a plaintiff’s conduct is to prove voluntary assumption of risk, misuse of the product and/or highly reckless behavior, all of which are affirmative defenses for which the defendant has the burden of proof.
According to Donohue, a defendant must prove that the plaintiff consciously disregarded a high degree of risk and that the plaintiff’s conduct was the sole or superseding cause of the injury.
To show that “setting the stand” was a superseding cause, the defense would have had to show that such a maneuver was either “unforeseeable or outrageous,” Donohue said, citing the state Superior Court’s 1987 ruling in Brandimarti v. Caterpillar Tractor.
“Again, however, there is no evidence of record to indicate that Mr. Reott’s ‘setting the stand’ maneuver was at all extraordinary or unforeseeable,” Donohue said. “Indeed, the only evidence on this issue introduced at trial by either party was Mr. Reott’s own uncontradicted testimony that he had performed the ‘setting the stand’ maneuver hundreds of times in the past, with no adverse consequences.”
On appeal to the Supreme Court, according to Baer, the defendants cited the Supreme Court’s 1975 plurality decision in Berkebile v. Brantly Helicopter, in which the justices found that a defendant may only point to a plaintiff’s abnormal use as a means of rebutting the plaintiff’s claims of defect and proximate cause.
The defendants argued that a failure by the Supreme Court to uphold that aspect of the Berkebile ruling would improperly place the burden to prove causation on them, Baer said.
Baer said the Superior Court has consistently found highly reckless conduct to be “akin” to product misuse and similar to assumption of risk in that all three require a defendant to prove that a plaintiff had a conscious understanding of the risks involved in either using a product or using a product in an unanticipated and dangerous way.
“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,” Baer said.
The Supreme Court of Arizona’s 1995 ruling in Jimenez v. Sears, Roebuck & Co., for example, broadly defines “misuse” as conduct that is “‘so rare and unusual’” that, if proven by the defense, precludes a plaintiff’s recovery in strict liability, according to Baer.
“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,” Baer said. “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.”
According to Baer, the Jimenez ruling provides guidance on this issue, holding that proof of a plaintiff’s misuse precludes recovery because it shows that the “‘defendant’s fault in distributing a defective product did not cause the plaintiff’s injuries.’”
Baer rejected the defendants’ reliance on Berkebile, in part because plurality decisions are not binding, but also because the Berkebile ruling is not in step with decisions by the Superior Court and several other states’ supreme courts, as well as the Restatement (Second).
Baer said “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.”
In order to avoid “the impermissible blending of negligence and strict liability concepts,” the burden of proof is on the defense to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of an injury, Baer said.
Reott’s attorney, David A. Neely of Lawrence D. Brudy & Associates in Wexford, Pa., said he was happy with the ruling.
While there has been much debate recently regarding whether the Supreme Court will ultimately abandon the Restatement (Second) for the Restatement (Third) of Torts, Neely said he did not believe the issue could have come into play in Reott, since the Restatement (Third) appears to center more on design defect cases, rather than manufacturing defect cases.
Counsel for the Sportsman’s Guide, Kate J. Fagan of Wayman, Irvin & McAuley in Pittsburgh, could not be reached for comment at press time.
Remington Arms’ attorney, Philip J. Mohr of Womble Carlyle Sandridge & Rice in Winston-Salem, N.C., and Asia Trend’s attorney, John Wright Zotter of Zimmer Kunz in Pittsburgh, also could not be reached for comment at press time.
(Copies of the 40-page opinion in Reott v. Asia Trend, PICS No. 12-2244, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •