ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-4343)
Before Aldisert, Higginbotham and Sloviter, Circuit Judges.
This is an appeal from the grant of summary judgment in favor of the defendant, Wagner Mining Equipment Co. (Wagner). In this diversity action plaintiff seeks damages for the death of her decedent, Germaine S. Hollinger (Hollinger), who was killed on May 27, 1977 at an underground mine operated by Bethlehem Mines Corp. (Bethlehem) in Morgantown, Pennsylvania, after being struck by a scooptram*fn1 operated by another Bethlehem employee, Irvin Hartz. The scooptram was manufactured by Wagner in 1969 and was put into operation in November of that year by Bethlehem.
Plaintiff's claim, which evolved in its present form during discovery, is that the scooptram was sold in an unsafe condition as defined by section 402A of the Restatement (Second) of Torts*fn2 because it was not equipped with an automatic warning device at the time of its sale. Wagner moved for summary judgment, essentially contending that the undisputed facts prove that the alleged defect did not cause Hollinger's death. The district court granted summary judgment to Wagner, finding that no genuine issue exists as to the material fact that "the decedent saw and heard the approaching scooptram," and therefore that "the presence or absence of any audible or visual device, whose sole function would have been to alert the decedent that the scooptram was coming, could not have caused the accident...." Hollinger v. Wagner Mining Equipment Co., 505 F. Supp. 894, 899 (E.D.Pa.1981). The court held in the alternative that even if causation could be established, there could be no liability imposed on the manufacturer under section 402A(1)(b) of the Restatement (Second) of Torts because Bethlehem had removed the operative manual horn with which the scooptram was originally sold, thereby effecting a "substantial change" in the scooptram's condition. Id. at 900-02. We find that summary judgment on either of these grounds was inappropriate on the record before the district court and remand.
The following facts are not in dispute. At the time of the accident, Hollinger and his helper, Rump, were working in the "607 East Production Drift" of the Bethlehem mine along with Hartz, who was operating the scooptram. The diagram in the record of this portion of the drift shows a main tunnel at least 10 feet wide, off the north side of which were three entries, numbered, from west to east, 03, 02 and 01. More than 50 feet east of entry 01 was another small entry in which was located an explosive storage box. To the farthest east was the water valve from which the scrubber tank of the scooptram was filled. Across the tunnel from entry 01 (i.e. to the south of that entry) was a water drainage manway. It was a common practice to assign three persons to work in one production drift.
Hollinger and his helper were drilling and blasting oversized chunks of ore which had been placed in the 03 entry. The third employee, Hartz, the scooptram operator, was drawing muck from the 01 and 02 entries and dumping it at a point west of the 03 entry. Hollinger left his helper in the 03 entry and walked east in the direction of the 01 entry and the water drainage manway located directly across the tunnel from the 01 entry. At roughly the same time, Hartz noticed that the scrubber tank of the scooptram was empty. In order to refill the tank, he proceeded towards the water valve, located approximately 102 feet east of the 01 entry. As he was proceeding east in the tunnel, Hartz saw Hollinger standing at the entrance to the water drainage manway on the right side of the tunnel across from the 01 entry. Hartz testified that Hollinger turned to face the scooptram, that he saw the light on Hollinger's helmet, and that such a turn was in accordance with standard mine practice. Hollinger then stepped into the water drainage manway. At the time of this sighting, the scooptram was at a point between the 02 and 03 entries, approximately 100 to 150 feet away from the entrance to the water drainage manway. The scooptram was moving at approximately five miles per hour. Hartz was unable to see Hollinger or the entrance to the drainage manway again as he proceeded further down the tunnel, due to the fact that the driver's seat was located on the left side and the large scoop obscured his vision of the right side of the vehicle. As he passed the 01 entry, Hartz felt that the scoop was dragging and he consequently lifted the bucket a few inches and proceeded to the water valve. Upon reaching the water valve, Hartz looked back and saw Hollinger's body lying in the drift.
Rule 56 of the Federal Rules of Civil Procedure provides that a trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We have characterized summary judgment as " "a drastic remedy' ", and have made clear "that courts are to resolve any doubts as to the existence of genuine issues of fact against the moving parties." Ness v. Marshall, 660 F.2d 517 at 519 (3d Cir. 1981) (quoting Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 884 (3d Cir. 1974)). Moreover, "(inferences) to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). "On review the appellate court is required to apply the same test the district court should have utilized initially." Id.