APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 75-1299
Before Hunter and Garth, Circuit Judges and Sarokin,*fn* District Judge.
This case arises from an unfortunate accident at the Hanover Wire Cloth Company on February 10, 1975. On that date, a Hanover employee, Tyrone Price, was seriously burned when his clothing, having been splashed with a flammable hydrocarbon substance known as "naphtha" or "mineral spirits," accidentally became ignited by a cigarette spark. Price brought suit against the supplier of the naphtha, appellant, Amsco, Division of Union Oil Company of California ("Amsco"), on both a negligence and strict liability theory.*fn1 During pre-trial proceedings, however, appellee narrowed the focus of his case to a cause of action under strict liability only. Nonetheless, the trial judge, following the jury's answers to special interrogatories, molded a verdict for the plaintiff based on negligence under Restatement (Second) of Torts, § 388 (Supp.1981). Because we find that negligence as a theory of liability was not properly before the court or jury, and that the jury's response to the special interrogatories clearly established that appellant was not liable under strict liability, we will vacate the district court's judgment and order judgment to be entered for the appellant.
Amsco supplied mineral spirits to Price's employer, Hanover Wire, for use as a cleaning solvent.*fn2 The deliveries were made in bulk, usually from a 1500 gallon Amsco tank truck.*fn3 They were pumped from the delivery tank into underground storage tanks, from which the Hanover employees could supply their departments.*fn4 Although "flammable" signs appeared on the delivery tank, Amsco did not supply "no smoking" signs for the areas in which the solvent was used. It did, however, supply safety data sheets to Hanover's safety director explaining the dangers of the mineral spirits. The employees, in turn, received safety booklets from Hanover, not Amsco. Price received a handbook warning him of the hazards of naphtha. Transcript of Proceedings at 131-32, reprinted in Appendix at 153a-54a. Nevertheless, one day after he finished cleaning some spools with the substance, he lit a cigarette. Immediately, he became engulfed in flames and suffered serious injuries.
Price brought suit in district court against Amsco. His complaint stated that "(his) injuries were caused by the defective and unreasonably dangerous condition of the solvent when it left defendant's control, in that it was not reasonably safe for those uses which could reasonably be foreseen," and that "defendant wilfully and/or with gross negligence failed to warn plaintiff of said defect."*fn5 The parties attended five pre-trial settlement conferences; after each, the magistrate filed a report labeling the case simply as "Personal Injury Products Liability." Shortly before trial, when it became apparent that the parties would not settle, plaintiff's counsel filed a pretrial memorandum delineating strict liability as the only theory upon which plaintiff would proceed at trial. His pre-trial memorandum stated, "The plaintiff's theory of liability is based solely on section 402A of the Restatement of Torts 2d, that is interpreted by the Superior Court of Pennsylvania in the case of Berkebile v. Brantly Helicopter Corp., 225 Pa.Super. 349, 311 A.2d 140, 143." Both section 402A and Berkebile discuss only a strict liability theory for damages.
The court indicated that it would file a pre-trial order on Feb. 1, 1977 designating the issues and theories for trial.*fn6 It never did. Instead, the case proceeded directly to trial where plaintiff's counsel centered its case on Amsco's failure to provide adequate warnings on its product. Couching his questions in the language of section 402A,*fn7 plaintiff's counsel repeatedly asked his expert witness: "Do you have an opinion as to whether the mineral spirits were in a defective and unreasonably dangerous condition at the time they were sold?" Transcript of proceedings at 92, reprinted in Appendix at 114a. In his closing argument, he also argued that the "guts" of his case was the defective and unreasonably dangerous condition of the product at the time of its delivery. Transcript of Proceedings at 180, reprinted in Appendix at 202a. It is unclear from the record on what theory Amsco focused its defense. Amsco's rebuttal evidence was directed primarily at the adequacy of the warnings, however, as will be discussed later, this is an issue under either a negligence or strict liability theory. On appeal appellant contends that it defended the case only on a strict liability theory.
At the end of the trial, the court informed the parties that it planned to submit special interrogatories to the jury. It offered each side an opportunity to comment on its proposed instructions and recommend their own. The trial court would not consider, however, appellant's key objection to the instructions; that is, that negligence, as a theory of liability, was not argued at trial and therefore should not be presented to the jury.
The trial judge ultimately submitted the following four interrogatories to the jury:
1. Was the product (mineral spirits) in a defective and unreasonably dangerous condition at the time of delivery by the defendants by reason of inadequate warnings concerning flammability?
2. If so, was the inadequacy of the warning concerning its flammability a proximate cause of plaintiff's injury?
3. Did the defendants know or should they have reasonably foreseen, that the product would be used by persons, that is, such as plaintiff, unaware of its flammability and of the hazards of smoking while using the product?
4. Was the plaintiff guilty of contributory negligence?
The first question, which in the circumstances of this case correctly posits the question of liability under Restatement (Second) of Torts § 402A, was answered by the jury in the negative. The third question, however, which represents one of the elements that must be proved to find the defendant negligent, was answered affirmatively.
The trial court molded the jury's answers to Interrogatories $1 and $3 into a judgment in favor of the plaintiff based on negligence under Restatement (Second) of Torts, § 388. Following the verdict, appellant moved for a judgment n. o. v. or, alternatively, for a new trial. It argued that (1) the trial court erred in submitting a negligence theory under Restatement (Second) of Torts, § 388 to the jury since there had been no prior indication that the case was being pursued on such a theory and appellant therefore had no opportunity to present defense evidence on the issue, and (2) that even if section 388 was a possible basis for liability, the jury's responses to the special interrogatories did not establish all of the elements requisite for the court's verdict.*fn8 The trial judge ruled against appellant on both issues.*fn9 We now address the first of these.
A. Negligence Under § 388 & The Trial Court's Abuse of Discretion
While a trial judge has broad discretion to determine which issues may be pursued at trial, Moore v. Sylvania Electr. Products, Inc., 454 F.2d 81 (3d Cir. 1972), he should exercise that discretion with an eye toward the expectations of the parties. In the instant case, it is clear that the trial judge permitted a negligence theory under section 388 of the Restatement (Second) of Torts to be presented to the jury because he erroneously believed that he was required to do so under this court's holding in Dougherty v. Hooker Chemical Co., 540 F.2d 174 (3d Cir. 1976).*fn10 In Dougherty this court discussed in great detail a manufacturer's liability under section 388 for harm caused by a product lacking adequate warning of its dangerous propensities. Dougherty, 540 F.2d 178-82. The trial court in the instant case correctly found that Dougherty and section 388 could provide a possible basis for recovery.
Under § 388, liability arises when the seller, having reason to know that its product is likely to be dangerous for its intended use, and having no reason to believe that the intended user will realize its dangerous condition, nevertheless fails to exercise reasonable care to inform the user of the dangerous condition.
Dougherty, 540 F.2d at 177.
Therefore, if Amsco had supplied the naphtha knowing it to be dangerous and it had reason to believe that Price, the user of the product, would not realize its dangerous condition, and it failed to exercise reasonable care to inform him of its dangerous condition, then a jury could have found the appellant guilty of negligence.*fn11
The problem in the instant case, however, is that appellee's counsel did not properly pursue the negligence theory. Rather, it limited itself by its pre-trial memorandum to a strict liability theory, under section 402A only.*fn12 The trial court's effort to resurrect appellee's negligence ...