ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (C. A. No. 77-0297)
Before Adams, Rosenn and Weis, Circuit Judges.
In this products liability action, we are asked to decide whether the district judge, in the course of charging the jury, correctly defined the elements of strict liability and causation. Both parties agree that the resolution of the issues in this diversity case is governed by Pennsylvania law. After reviewing the contentions raised by the plaintiffs on appeal, we affirm the judgment of the district court.
Kenneth and Loretta Holloway brought the present action to recover damages for injuries that Mr. Holloway sustained at his place of employment by the explosion of a vacuum tank. The tank was originally manufactured in 1969 by Electric and Gas Welding Co., Ltd. (EGW), a Canadian corporation. EGW produced the tank for LaSalle Oil Carriers, Ltd., also a Canadian company, in accordance with LaSalle's specifications. The tank was designed to fit on a chassis manufactured by LaSalle and was to be a vacuum intake, gravity expulsion vessel. That is, the contents were to be taken into the tank by vacuum suction and released by gravity through a hinged door. The Special Projects Manager of EGW testified that the tank was neither designed nor intended to operate as a pressure expulsion vessel.*fn1 Under a pressure expulsion system, the contents of a vessel would be discharged as they were displaced by air pumped into the tank. Because the tank was designed to function under a vacuum intake arrangement, however, EGW built the vessel so that it might accommodate an air pump and a valve to permit the escape of pressure that might build up in the tank.
LaSalle later equipped the tank with an air pump and a gas release valve and then sold the tanker truck to J. B. Systems, Ltd. In turn, J. B. Systems sold the tanker truck to Bux Mont Oil Service, Kenneth Holloway's employer. By the time of this last sale, the tank was mounted on a different chassis than the one to which it was attached by EGW. Moreover, the tank itself had been modified to function as a pressure discharge system. The air pump and gas release valve, which were installed by LaSalle, had been replaced with equipment to allow the vessel to be drained by air pressure rather than gravity. There was no evidence that EGW made or even knew of these changes.
Harry Roberts, the manager of Bux Mont, was operating the tanker truck on March 26, 1975. As he pressurized the tank in order to discharge its contents, four bolts broke loose from the rear door of the tank; Holloway, who was standing nearby, was struck in the head. Roberts testified that he had not checked the tightness of the bolts before he began pressuring the tank.*fn2 Several of the experts called at trial testified that, had the bolts been properly tightened, the accident would not have occurred.*fn3 There was also testimony that the bolts may have broken loose because the metal had been weakened by prior use of the tank.*fn4
The Holloways predicated their claim on § 402A of the Restatement (Second) of Torts. That section, which was adopted by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 427, 220 A.2d 853, 854 (1966), provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale ...