The Simplicity Manufacturing riding mower, manufactured in 1994, includes the following warning, almost so obvious and over-the-top as to be wacky:
(I) DO NOT MOW WHEN CHILDREN OR OTHERS ARE AROUND; (ii) NEVER CARRY CHILDREN; (iii) LOOK DOWN AND BEHIND BEFORE AND WHILE BACKING.
Moreover, the manual includes the following warnings:
(I) Tragic accidents can occur if the operator is not alert to the presence of children. Children are often attracted to the unit and the mowing activity. Never assume that children will remain where you last saw them.
(ii) Keep children out of the mowing area and under the watchful care of another responsible adult.
(iii) Be alert and turn unit off if children enter the area.
(iv) Before and when backing, look behind and down for small children.
Nevertheless, on May 7, 2003, in Honeybrook, Pennsylvania, Melvin Shoff backed up his riding mower and managed to run over the foot of four-year-old Ashley Berrier, resulting in its amputation. This is, Ashley’s parents complain in a lawsuit, the fault of Simplicity Manufacturing for not doing more to idiot-proof the mower. The federal district court threw out the suit based on a 2003 Pennsylvania Supreme Court precedent (involving a two-year-old and a lighter), but the Third Circuit, twelve months after the case was argued, has certified the question to the Supreme Court whether they’ve changed their mind in the last five years. The Court appears to have been swayed by the American Law Institute’s “Restatement” proposal to expand product-liability law in this area. (Berrier v. Simplicity Manufacturing (3d Cir. Jan. 17, 2008) via Steenson; Legal Intelligencer).
6 Comments
The post does not give an accurate impression of the state of the suit.
Although the post focuses on the warnings, the 3d Circuit certified strictly on the issue of bystander liability. Neither the district court nor the 3d Circuit so much as reached the issue of alternative design, failure to warn, etc.
(I myself tend to think that the warnings were adequate, that any fool should look back when backing up a mower, and that an alternative design where the blades wouldn’t run while backing up would be a nuisance to a rider who *wanted* to mow while backing up. But those issues have not been reached in this litigation.)
Shouldn’t the ALI stop call them “Restatements” since the goal ceased to be restating the law in favor of advocacy?
Whenever I get called to take care of a kid with some extremity whack from a lawn mower I ask synically (but to the family it appears as genuine concern), “how is grandpa fairing over this”
Grandpa is almost always the culprit in all of these run-over by the rider cases. They seem to think that the laws of physics do not apply to them because they want to show jr a good time.
I’m amazed that at this stage in our progression as a society that we still blame the machine WE are operating!
No I take that back, it’s the company “(read perceived deep pocket), that is to be fleeced!
Oh and that makes it about the money! Again!
To Anderson:
I think the point is that, due to the excessive warnings on the mower, the lawsuit should have been thrown out immediately on its face before these constant, wasteful appeals.
The Third Circuit retained the issue of negligence (the district court granted SJ on that part of the case given the facts regarding the warning). It only certified the strict liabilty question.
The District Court had dismissed the strict liability claim on the ground that, because bystanders were “foreseeable” nonusers rather than “users,” under Pennsylvania’s peculiar version of strict liability (which rejects such “negligence concepts” such as “foreseeability” or “reasonableness”), there could be no strict liability as a matter of law. That’s the issue that the court certified, and Pennsylvania law on the whole “negligence concepts” issue is about as clear as mud.
Given peculiarities of Pennsylvania law, adoption of the Third Restatement, and its negligence standard would be a giant step forward in favor of the defense. Practically every state in the country has bystander liability, but it is always imposed on the basis of foreseeability. Here, (as the district court held, and the Third Circuit retained) the defendant probably still wins, even if the court adopts the Restatement’s negligence-based standard.
Moreover, under the Restatement standard (unlike Pennsylvania’s current version of strict liability) the contributory fault of other parties (such as grandpa, who is a third-party defendant) is then an issue for the jury to decide. Under current Pennsylvania strict liaiblity, grandpa’s failure to look where he was going when putting the mower in reverse is not even considered by the jury.
That, and a half-dozen other ways that the current strict liability regime in Pennsylvania disadvantates defendants, is why I’ve been pushing to get the Pennsylvania Supreme Court to move to the Third Restatement ever since the ALI adopted it.
This may be the case that does it, because of the peculiar posture that going to the Third Restatement would help the plaintiff in this particular case.
There are plenty of things I don’t like about this and that that the ALI has done, but the negligence-based form of strict liability in section two of the Third Restatement isn’t one of them.