Opinion
J-A13015-20 No. 2916 EDA 2019
04-12-2021
MICHAEL TIMMONDS Appellant v. AGCO CORPORATION D/B/A AND OR F/K/A MASSEY FERGUSON, INC., M.M. WEAVER & SONS, INC., SPORTING VALLEY TURF FARMS, INC., HUMMER SPORTS SURACES, LLC., AND HUMMER TURFGRASS SYSTEMS, INC.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Dated November 22, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 151103681 BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Michael Timmonds appeals from the judgment, entered in the Court of Common Pleas of Philadelphia County, after a jury returned a verdict in favor of Appellees, AGCO Corporation, d/b/a and/or f/k/a Massey Ferguson, Inc. ("AGCO"), M.M. Weaver & Sons, Inc. ("Weaver"), Sporting Valley Turf Farms, Inc., Hummer Sports Surfaces, LLC, and Hummer Turfgrass Systems, Inc. (collectively, "Turf Defendants"). Upon careful review, we affirm.
Timmonds filed his notice of appeal on September 25, 2019, following the trial court's denial of his post-trial motions. On November 13, 2019, this Court issued an order, noting that final judgment had not been entered on the trial court docket as required by Pa.R.A.P. 301, and directing Timmonds to file a praecipe to enter judgement with the trial court prothonotary. Timmonds complied with that order on November 22, 2019. Pursuant to Pa.R.A.P. 905(a)(5), we may treat Timmonds' prematurely-filed notice of appeal as filed after the entry of judgment. See Pa.R.A.P. 905(a)(5) ("A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.").
The matter before the Court stems from injuries Timmonds sustained in the course of his employment with George E. Ley Co. ("Ley"). Specifically, on March 19, 2015, Timmonds was performing irrigation work at Flying Hills Golf Course, which required him to use a tractor for the displacement and loading of dirt. See Amended Complaint, 4/14/16, at ¶¶ 1-3. Timmonds attempted to start the tractor, manufactured by AGCO (model number MF-451) and owned by Ley. In order to start the tractor, Timmonds positioned himself in the seat and turned the key in the ignition. See N.T. Jury Trial, 6/6/18, at 9. The tractor failed to start. See id. As a result, Timmonds dismounted the tractor in order to use a "rigging method" to start the ignition, which entailed touching a wire to the tractor's solenoid. Amended Complaint, supra , at ¶ 6; N.T. Jury Trial, 6/6/18, at 9. When Timmonds did so, the tractor "immediately took off and ran over" him. N.T. Jury Trial, 6/6/18, at 10. As a result, Timmonds suffered injuries to his left foot which required multiple surgeries and for which he continues to require pain medication. See id. at 12-14.
Ley was originally named as a defendant in this matter, but was ultimately dismissed by stipulation of the parties. See Stipulation, 4/12/16.
"Tractor solenoids connect the starter directly to the battery [when starting the engine]. Starters require a significant amount of current to operate—current that is too large to send through a standard ignition switch. Doing so would burn out the ignition switch within seconds. Solenoids solve this problem by using a low electric current to activate a high-current switch." https://itstillruns.com/how-to-wire-a-tractor-solenoid-13404543.html (last visited 3/12/21). It is undisputed that, at the time of its manufacture, the tractor came with a guard that was bolted over the starter solenoid to prevent "hot-wiring." This guard came with a label, warning against removal of the guard and cautioning against hot-wire starts. At the time of Timmonds' accident, the guard had been removed to allow a user to utilize a wire to connect the terminals on the starter solenoid to "hot-wire" the machine when it would not start using the key. This method allows the current to flow directly from the battery to the starter mower and will start the tractor if the key switch is in the "on" position. It also bypasses the neutral start system, which is a safety system designed to prevent accidents, such as the one that occurred in this case, by preventing the tractor from starting while it is in gear. The identity of the party who removed the solenoid cover was a key issue in this case.
Timmonds filed suit in the Court of Common Pleas of Philadelphia County. Following discovery and the disposition of numerous pretrial motions, trial commenced on June 4, 2018. At trial, Timmonds pursued claims of negligence and products liability against AGCO and Weaver, and a negligence claim against the Turf Defendants. Relevant to this appeal, Timmonds' claims against AGCO were based on AGCO's failure to incorporate an occupant presence control ("OPC") on the tractor.
While post-trial motions were pending with the trial court, Timmonds reached a settlement with Weaver and the Turf Defendants. Accordingly, Timmonds' claims on appeal related solely to AGCO.
An OPC "is a design to neutralize a machine . . . whenever an operator is not present." N.T. Jury Trial, 6/11/18, at 6. As relevant to this case, an OPC would have prevented the tractor from starting unless Timmonds had been sitting in the tractor's seat, thus preventing the accident from occurring.
Timmonds presents the following questions for our review:
1. Whether the trial court erred as a matter of law in denying [Timmonds'] motion for a new trial stemming from the trial court's improper dismissal of [his] claim of negligence against defendant AGCO by means of a directed verdict?Brief of Appellant, at 4-5.
2. Whether the trial court prejudicially erred as a matter of law or abused its discretion, thereby entitling [Timmonds] to the remedy of a new trial, in improperly instructing the jury concerning the elements of a product[s] liability claim?
3. Whether the trial court prejudicially erred as a matter of law or abused its discretion, thereby entitling [Timmonds] to the remedy of a new trial, in permitting defendants to argue that the negligent actions and inactions of [Ley] were responsible for [Timmonds'] injuries and damages, even though the worker's compensation bar precluded [Timmonds] from recovering in tort against [Ley], and [Ley] was neither a party to this suit at the time of trial nor shown on the jury verdict slip as a potentially liable party?
4. Whether the trial court prejudicially erred as a matter of law or abused its discretion, thereby entitling [Timmonds] to the remedy of a new trial, in barring [Timmonds'] counsel from impeaching AGCO's expert witness with the report of another expert that AGCO's expert reviewed and considered in reaching his own expert opinions?
Timmonds first claims that the trial court erred in denying his motion for a new trial based on his assertion that the court improperly granted a directed verdict in favor of AGCO on Timmonds' negligence claim. We begin by noting our standard of review:
In reviewing a trial court's decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to the verdict winner. Our standard[s] of review when considering the motions for a directed verdict and judgment notwithstanding the verdict [JNOV] are identical. We will reverse a trial court's grant or denial of a [directed verdict or JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.
There are two bases upon which a [directed verdict or JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Hall v. Episcopal Long Term Care , 54 A.3d 381, 395 (Pa. Super. 2012) (brackets in original).
Campisi v. Acme Markets , Inc., 915 A.2d 117, 119 (Pa. Super. 2006) (quotation omitted). See Berg v. Nationwide Mutual Insurance Co., Inc., 44 A.3d 1164 (Pa. Super. 2012).
Timmonds raised claims against AGCO sounding in both negligence and strict products liability. "[I]n order to maintain a negligence action, the plaintiff must show that the defendant had a duty to conform to a certain standard of conduct; that the defendant breached that duty; that such breach caused the injury in question; and actual loss or damage." Phillips v. Cricket Lighters , 841 A.2d 1000, 1008 (Pa. 2003).
Of these four elements, the primary one is whether the defendant owed a duty of care. Althaus v. Cohen , [] 756 A.2d 1166, 1168 ([Pa.] 2000). To determine whether the defendant owed a duty of care, we must weigh the following five factors: "(1) the relationship between the parties; (2) the social utility of the [defendant's] conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the [defendant]; and (5) the overall public interest in the proposed solution." Id. at 1169. No one of these five factors is dispositive. Rather, a duty will be found to exist where the balance of these factors weighs in favor of placing such a burden on a defendant.Phillips , 841 A.2d at 1008-09.
Our Supreme Court, in Webb v. Zern , 220 A.2d 853 (Pa. 1966), formally adopted Section 402A of the Restatement (Second) of Torts as the law governing strict products liability actions. This section 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
Restatement (Second) of Torts, § 402A (1965). To prevail on a strict products liability claim, a plaintiff must prove that the product was defective, the defect existed when it left the defendant's hands, and the defect caused the harm. Barton v. Lowe's Home Centers , Inc., 124 A.3d 349, 354-55 (Pa. Super. 2015). The threshold inquiry in all products liability cases is whether there is a defect. Where, as here, the plaintiff alleges a design defect, he must demonstrate that the design of the machine results in an unreasonably dangerous product. Id.(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
As a preliminary matter, we will begin by addressing AGCO's claim that, following our Supreme Court's decision in Tincher v. Omega Flex , 104 A.3d 328 (Pa. 2014), Timmonds was not entitled to simultaneously proceed with both a common law negligent design claim and a strict liability claim under section 402A of the Restatement (Second) of Torts. In Tincher , our Supreme Court overruled the long-standing precedent set forth in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), in which the Court imposed a strict segregation between negligence and strict liability concepts by removing from the purview of the jury the question of whether a product was "unreasonably dangerous" and placing that determination in the hands of the trial court to be determined as a question of law. The Court reasoned that "the phrases 'defective condition' and 'unreasonably dangerous' as used in the Restatement formulation are terms of art" whose "resolution depends upon social policy," and thus "do not fall within the orbit of a factual dispute which is properly assigned to the jury for resolution." Azzarello , 391 A.2d at 1026, overruled by Tincher , supra .
The trial court acknowledged AGCO's Tincher argument, but explicitly stated in its opinion that "in rendering the at-issue directed verdict, [it] made no determination that the post-Tincher landscape precluded the simultaneous submission of a negligent design theory and a 402A theory[.]" Trial Court Opinion, 8/27/19, at 15 (emphasis in original). Rather, the court simply determined that Timmonds "had not met his burden to send the negligent design theory to the jury." Id.
In Tincher , the Supreme Court revisited the scheme established in Azzarello . The Court noted that the Azzarello holding was "premised . . . on the assumption that the term 'unreasonably dangerous' is misleading to jurors because it 'tends to suggest considerations which are usually identified with the law of negligence.'" Tincher , 104 A.3d at 376. Such negligence-based rhetoric, in the view of the Azzarello Court, "saddle[d] a plaintiff in a strict liability case with an additional and unwarranted burden of proof in every case." Id. at 377. The Tincher Court observed, however, that the facts of Azzarello , "when viewed with the appropriate judicial modesty, did not require such a broad pronouncement." Id. (noting issue of "jury confusion" in Azzarello "arose in a distinct, fact-bound context of a jury trial in which claims of strict liability and counter-claims of negligence were asserted against distinct parties"). The Court concluded that the rule established by Azzarello was overbroad, impracticable, and based on "unsupported assumptions and conclusory statements." Id. at 380. Accordingly, the Court reformulated its approach to the standard of proof relevant to strict liability actions and returned to the finder of fact the question of whether a product is in a "defective condition unreasonably dangerous." In doing so, the Court crafted a new test for proving whether a product is in a defective condition under section 402A of the Restatement (Second) of Torts:
The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer [("consumer expectations test")], or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions [("risk-utility test")].Id. at 335. The Court further stated:
Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.Id.
In support of his claim that he is entitled to a new trial as to his negligence claim, even though his strict liability claim was rejected by the jury, Timmonds relies on our Supreme Court's decision in Phillips , supra . In that case, the plaintiff brought claims sounding in, inter alia, strict products liability and negligence. In granting the defendant's motion for summary judgment, the trial court held that the plaintiff had failed to establish a strict liability claim. The court then reasoned that, where a product is found to be not defective for strict liability purposes, a design defect claim sounding in negligence also must fail. Accordingly, the court granted summary judgment on both claims.
On appeal, this Court held that the trial court had erred in dismissing the strict liability claim. The Court further reasoned that, since it had found the trial court's determination on strict liability to be erroneous, it must necessarily reverse the entry of summary judgment on the negligent design claim.
On allowance of appeal, the Supreme Court reversed the holding of this Court as to the plaintiff's strict liability claim, concluding that the trial court had properly granted summary judgment in favor of the defendant. However, the Court rejected the argument that, if the trial court "properly granted summary judgment on [plaintiff's] strict liability claim, then perforce we must hold that her negligence claim also fails." Phillips , 841 A.2d at 1008. The Court stated:
This reasoning is deeply flawed and we decline to adopt it. As we discussed supra, negligence and strict liability are distinct legal theories. Strict liability examines the product itself, and sternly eschews considerations of the reasonableness of the conduct of the manufacturer. In contrast, a negligence cause of action revolves around an examination of the conduct of the defendant. Were we to dispose of a negligence claim merely by an examination of the product, without inquiring into the reasonableness of the manufacturer's conduct in creating and distributing such a product, we would be divorcing our analysis from the elements of the tort. Thus, as the elements of the causes of action are quite distinct, it would be illogical for us to dispose of [plaintiff's] negligence claim based solely on our disposition of her strict liability claim. Instead, we must examine the law of negligence and determine whether the trial court erroneously
determined that [plaintiff's] negligence claim failed as a matter of law.Id. (internal citation omitted).
Here, AGCO argues that, because Phillips was decided while Azzarello was the prevailing law on strict products liability, it is no longer applicable in a post- Tincher landscape. AGCO asserts that "[e]ssential to the reasoning of the Phillips Court was the then-existing bright[-]line rule that courts must maintain a strict divide between negligence and strict liability concepts by preventing any negligence theories—like that of an unreasonably dangerous product—from being injected into a 402A design defect case." Brief of Appellee, at 16. Because Tincher "overruled Azzarello and with it, the absolute prohibition on mixing negligence and strict liability concepts," AGCO argues, a plaintiff may no longer proceed on strict liability and negligence claims on the same facts. Id. We disagree.
The elements of proof in strict products liability and negligence causes of action are separate and distinct. As set forth above, to prevail on a claim sounding in negligence, a plaintiff must show that the defendant had a duty to conform to a certain standard of conduct, that the defendant breached that duty, that such breach caused the injury in question, and actual loss or damage. Phillips , supra . To prevail on a strict products liability claim, a plaintiff must prove that the product was defective, the defect existed when it left the defendant's hands, and the defect caused the harm. Barton , supra . In short, negligence focuses on conduct, while strict liability examines the product itself. Thus, although Tincher eliminated the doctrinal wall between strict liability and negligence concepts erected by the Azzarello Court, nothing in the Court's decision suggests an intention to consequently eliminate negligence-based product-design causes of action. Indeed, the Court acknowledged that "[t]he duty spoken of in strict liability is intended to be distinct from the duty of care in negligence." Tincher , 104 A.3d at 383, citing Restatement (Second) of Torts § 402A(2) (stating seller may be subject to liability even though it has exercised all possible care in the preparation and sale of his product); see also Tincher , 104 A.3d at 384 ("In Pennsylvania, the question of whether those who make or market products have duties in strict liability (in addition to negligence) has been answered in the affirmative by the 1966 decision in Webb .") (emphasis added). Because Tincher clearly contemplates the continued viability of negligence-based product-design actions, we reject AGCO's assertion that "negligent design and strict liability design defect are the same thing." Brief of Appellee, at 17.
Having determined that Tincher does not bar Timmonds from proceeding under theories of both strict liability and negligence, we now turn to his claim that the trial court erred in granting a directed verdict as to his claim that AGCO negligently designed the tractor without an OPC.
In issuing its directed verdict in favor of AGCO, the trial court concluded that Timmonds failed to set forth the requisite elements of a common law negligence claim against ACGO. Specifically, the court found that the testimony of Timmonds' expert witness, Kevin Sevart, was solely "directed toward establishing [Timmonds'] products liability claim under [s]ection 402A," a claim separate and distinct from one asserting common law negligence. Trial Court Opinion, 8/27/19, at 18. The court found that Timmonds "failed to set forth how AGCO, an agricultural tractor manufacturer, failed to conform to a certain standard of conduct," as required to establish negligence. Id. at 18-19. In particular, the court emphasized the lack of any testimony by Sevart as to a relevant standard of care, and noted that Sevart had, in fact, conceded that AGCO "had not breached any technical, manufacturing or industry standards." Id. at 19.
The court stated:
The only person who could set forth duty [as to AGCO] is your expert. And all I heard your expert talk about was the issues about the seat. And [he] never used the words [']they were negligent because they didn't put this on.['] Not once . . . did he ever use that word.Trial Court Opinion, 8/27/19, at 19, quoting N.T. Jury Trial, 9/18/18, at 33-34.
Timmonds argues that he did, in fact, establish all four elements of his negligence claim. First, he asserts that he was a foreseeable user of the tractor and that, under Pennsylvania law, a manufacturer owes a duty to the intended user of its products. Second, Timmonds alleges that the element of breach was established by the testimony of his expert witness, Sevart, who testified that AGCO "should have included on the tractor an [OPC] or similar safety feature that would have required a driver to be present in the tractor's seat before the machine would start." Brief of Appellant, at 17. Finally, Timmonds argues, "there is no dispute that [he] sustained a serious injury and resulting damages, thereby satisfying the final two elements of a prima facie negligence claim." Id. at 18.
In response, AGCO argues that the trial court properly granted a directed verdict because AGCO did not owe Timmons—an unintended, untrained, and unqualified user of the tractor—a duty to incorporate an OPC into its product. AGCO posits that, unlike in strict liability cases under section 402A, in which "a manufacturer owes a duty to all intended and reasonably foreseeable users to make a reasonably safe product, a manufacturer does not necessarily owe that same duty in negligence." Brief of Appellee, at 20. Rather, the court must consider the five factors set forth in Althaus , supra , which AGCO argues all militate in its favor. With respect to the first Althaus factor—the relationship between the parties—AGCO asserts that Timmonds was neither the purchaser of the tractor, nor a "trained, qualified[,] or intended user of it." Brief of Appellee, at 22. As to the second Althaus factor—social utility—AGCO argues that "[t]here is no question that an agricultural utility [t]ractor like the MF 451 is a useful product." Id. In particular, the fact that tractor was "purposefully manufactured without an OPC has a particular social utility because it allows farmers to use the tractor as a stationary power source [to operate] various implements off the [power take off] without [requiring a driver] in the seat of the [t]ractor." Id. at 22-23. AGCO asserts that the third Althaus factor—nature of the risk and foreseeability—also weighs in its favor. Specifically, AGCO claims that the social utility of the tractor is high, while the foreseeability of harm is low because "the [t]ractor contained myriad safety features specifically designed" to prevent an accident like Timmonds', and that "[i]t was only when all of these [safety features] were bypassed or ignored that the accident could occur." Id. at 23. With regard to the fourth Althaus factor—consequences of imposing a duty upon the defendant—AGCO argues that "allowing this [t]ractor to be manufactured with an OPC actually would make it more dangerous." Id. at 24. Finally, as to the fifth Althaus factor—public interest—AGCO asserts that "[t]he public has a clear interest in farmers having access to tractors that allow them to get the job done." Id. at 25.
In particular, AGCO cites the following safety features present on the tractor at the time of manufacture: (1) a bolted-on metal guard covering the area Timmonds accessed in order to hotwire the tractor; (2) a warning decal affixed to the metal guard warning the user to only start the tractor with a key from the seat and to ensure that the transmission and PTO are in neutral because "Starting in gear kills"; (3) a manual; (4) a neutral start system that would "prevent forward motion of the machine unless [sic] all gears were in neutral." Brief of Appellee, at 23-24.
AGCO cites the testimony of its Director of Product Safety and Standards, David Murray, in support of this assertion. Murray testified that, if an OPC were present, the tractor could turn off and lose power steering and anti-lock brakes if the operator hit a pothole and bounced out of the seat, with dangerous consequences if he was "towing thousands of pounds down the road." Id. at 25. Moreover, Murray testified that "if an operator or user is insistent on bypassing safety mechanisms[, . . . he could] easily bypass the OPC by putting a brick or a lunch pail or any weight on the seat." Id.
Lastly, AGCO posits, even assuming, arguendo, that AGCO owed Timmons "some general duty of care," a directed verdict was still appropriate, as Timmonds "did not adduce evidence sufficient to define what the duty was and how AGCO breached it." Id. at 14. Rather, Timmonds' sole expert, Sevart, "focused on one thing and one thing only[:] AGCO's failure to put an [OPC] in the [t]ractor." Id. at 27. Sevart "offered no testimony on the standard of care of a manufacturer like AGCO in designing products or on how AGCO breached that standard of care in its design of the [t]ractor." Id. Accordingly, AGCO asserts, Timmonds' negligence claim fails.
The trial court granted a directed verdict based on the failure of Timmonds' expert witness, Sevart, to testify that AGCO had breached any technical, manufacturing or industry standard of care. However, while "[c]ompliance with [a] statute or regulation is admissible as evidence of [an] actor's exercise of due care, . . . such compliance 'does not prevent a finding of negligence where a reasonable [person] would take additional precautions.'" Bourgeois v. Snow Time , Inc., 242 A.3d 637, 658 (Pa. 2020), quoting Berkebile v. Brantly Helicopter Corp., 281 A.2d 707, 710 (Pa. Super. 1971) (holding Superior Court erred in concluding lack of testimony as to industry standards precludes finding of negligence for failure to establish duty of care; rather, defendant's duty "was not to comply with industry standards[, but] to exercise reasonable care to protect its patrons against unreasonable risks that its conduct of using rubber mats to decelerate snow tubers created"). Accordingly, because AGCO's compliance—or lack thereof—with industry standards is not dispositive of Timmonds' negligence claim, we must proceed with a full analysis of the elements necessary to establish a negligence claim.
The first element of the negligence analysis requires us to determine whether AGCO owed a duty of care to Timmonds. Under Pennsylvania law, in determining whether such a duty exists, we are required to consider the following five factors: (1) the relationship between the parties; (2) the social utility of the defendant's conduct; (3) the nature of the risk imposed and the foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the defendant; and (5) the overall public interest in the proposed solution. Althaus , 756 A.2d at 1169. "No one of these five factors is dispositive. Rather, a duty will be found to exist where the balance of these factors weighs in favor of placing such a burden on a defendant." Phillips , 841 A.2d at 1008-09. Here, we are constrained to conclude that Timmonds has waived his claim that AGCO owed him a duty under Pennsylvania law. Accordingly, he is unable to demonstrate that the trial court erred in granting a directed verdict on his negligence claim.
It is an appellant's duty to present arguments that are sufficiently developed for our review. In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012). "The brief must support the claims with pertinent discussion, with references to the record[,] and with citations to legal authorities." Id. This Court "will not act as counsel and will not develop arguments on behalf of an appellant." Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007). Moreover, "[i]t is not this Court's responsibility to comb through the record seeking the factual underpinnings of [an appellant's] claim." Irwin Union Nat. Bank & Tr. Co. v. Famous , 4 A.3d 1099, 1103 (Pa. Super. 2010). "It is not the role of this Court to develop an appellant's argument where the brief provides mere cursory legal discussion." Lechowicz v. Moser , 164 A.3d 1271, 1276 (Pa. Super. 2017). When defects in a brief impede our ability to conduct meaningful appellate review, we may find issues to be waived. Hardy , 918 A.2d at 771.
In order to ascertain whether AGCO owed a duty to Timmonds, an analysis of the Althaus factors is required. Timmonds' analysis of the duty element of negligence consists, in its entirety, of the following:
The first element [duty,] is easily satisfied here. Timmonds was a foreseeable user of [AGCO's] tractor, and the evidence at trial established that AGCO was aware that its tractor frequently failed to start using its key and that users were therefore required to use the far more dangerous bypass method to start the tractor. Pennsylvania law establishes that a manufacturer owes a duty to the intended user of its products. The Supreme Court has recognized a five-factor test to determine the existence of a duty between parties. The determination of whether a duty exists in a particular case involves weighing: (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus [, 756 A.2d at 1169].Brief of Appellant, at 17.
Timmonds accurately recites the correct legal principle governing this Court's determination as to the existence of a duty; however, having done so, he fails to take the required next step of applying that legal principle to the record in such a way as to facilitate appellate review of his claim. Timmonds' failure to address the Althaus factors essentially leaves this Court in the position of considering a theoretical claim, particularly where the trial court, likewise, did not address the factors. This Court has previously observed that courts "are 'least well suited' for determining whether a duty exists as a matter of law because it 'is the Legislature's chief function to set public policy and the courts' role to enforce that policy, subject to constitutional limitations.'" Charlie v. Erie Ins. Exch ., 100 A.3d 244, 251 (Pa. Super. 2014) (citation omitted). Accordingly, "the default position of our courts is that, unless the justifications for and consequences of judicial policymaking are reasonably clear with the balance of factors favorably predominating, we will not impose new affirmative duties." Id. at 252 (citation and brackets omitted). Where, as here, the party advocating for the existence of a duty has utterly failed to provide the Court with any analysis of the issue within the confines of the applicable legal framework, it would be imprudent and, indeed, inappropriate to embark on that analysis ourselves.
In sum, because Timmonds' argument as to the existence of a duty on the part of AGCO lacks analysis of the relevant law, we find his claim as to the trial court's grant of a directed verdict on his negligence-based cause of action waived.
Timmonds next asserts that the trial court erred by improperly instructing the jury concerning the elements of a product liability claim. Specifically, Timmonds asserts that the instructions given by the trial court were not consistent with the state of the law post- Tincher because they "omitted most of the fundamentally important factors the Supreme Court established in Tincher that a jury should consider in conducting the risk-benefit analysis." Brief of Appellant, at 36.
Regarding challenges to a trial court's jury instructions, our Supreme Court has instructed:
Error in a charge is sufficient ground for a new trial if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Error will be found where the jury was probably [misled] by what the trial judge charged or where there was an omission in the charge. A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to a fundamental error. In reviewing a trial court's charge to the jury[,] we must look to the charge in its entirety.Tincher v. Omega Flex , Inc., 180 A.3d 386, 397-98 (Pa. Super. 2018) (" Tincher II "), quoting Passarello v. Grumbine , 87 A.3d 285, 296-97 (Pa. 2014).
The objective of a jury charge "is to explain to the jury how it should approach its task and the factors it should consider in reaching its verdict." Tincher , 104 A.3d at 351. The charge "defines the legal universe in which a jury operates for the purposes of the verdict." Id. at 347 n.5. Where evidence supports an instruction on a theory or defense, a charge on the theory or defense is warranted. Id. at 408. At that point, "[t]he trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration." Id.
[W]hen the propriety of the jury instruction of the trial court is at issue, those instructions must be viewed in toto to determine if
any error has been committed. Unless the charge as a whole can be demonstrated to have caused prejudicial error, we will not reverse for isolated inaccuracies.Wilkerson v. Allied Van Lines , Inc., 521 A.2d 25, 32 (Pa. Super. 1987).
Here, Timmonds argues that the court's instruction on the risk-benefit standard was incomplete, as it "omitted most of the fundamentally important factors the Supreme Court established in Tincher ." Brief of Appellant, at 36. However, Timmonds fails to specify which factors the court omitted, how the evidence supported their inclusion, Tincher , supra (proposed charge must be supported by evidence), or the manner in which he was prejudiced by the omission of those factors. Wilkerson , supra (appellant must demonstrate prejudice). Rather, Timmonds simply reproduces his requested instruction, as well as the instruction given by the trial court, and summarily asks us to find that the latter was lacking because it did not include "all seven of the risk-benefit factors that the Supreme Court's Tincher ruling viewed as relevant, [which] prejudicially deprived [him] of his right to have the jury evaluate the evidence of product defect under the legal test" mandated by Tincher . Brief of Appellant, at 37. Accordingly, for the same reasons we deemed Timmonds' first claim waived, we similarly conclude that his argument here lacks analysis of relevant law as applied to the facts of the case. Thus, his claim that the trial court's jury instructions were improper as to the risk-benefit standard is waived.
Moreover, during the jury charge conference, Timmonds' counsel agreed to the court's proposed jury instruction on the risk-utility factors, which was virtually identical to the charge given at trial:
[COUNSEL FOR TIMMONDS]: I'm assuming once we—can Your Honor read back where we are?N.T. Jury Trial, 6/18/18, at 77-78 (emphasis added). At trial, the court instructed the jury, in relevant part, as follows:
THE COURT: We haven't left where we started.
The tractor was unreasonably dangerous if a reasonable person would conclude that the probability and seriousness of harm by the product outweigh the burden of taking precautions. You may consider the following factors: [t]he seriousness of the potential harm resulting from the use of the product; the likelihood that the harm would occur; the feasibility of an alternative safer design at the time of manufacture or sale of the product; the cost of an alternative design; and the disadvantages of an alternate design.
[COUNSEL FOR AGCO]: We are good with that.
[COUNSEL FOR TIMMONDS]: Yes, Your Honor.
[THE COURT:] The second[ theory]—remember it's and/or not an and—the tractor was unreasonably dangerous because a reasonable person would conclude that the possibility and seriousness of harm posed by the product as designed outweighed the burden or cost of taking precautions. You may consider the following factors: The seriousness of the potential harm resulting from the foreseeable use of the product as designed; the likelihood that the harm would occur when used in a foreseeable manner; the feasibility of an alternative safer design or other safety precautions at the time of manufacture or sale of the product; the cost of an alternate design or other safety precautions, and disadvantages of an alternate design or other safety precautions.N.T. Jury Trial, 6/19/18, at 202-03 (emphasis added).
In order to preserve an issue for appellate review, a litigant must place a timely, specific objection on the record. See Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 45 (Pa. 2011); Straub v. Cherne Indus., 880 A.2d 561, 566 (Pa. 2005). Issues that are not preserved by specific objection in the lower court are waived. Pa.R.A.P. 302(a); Straub , 880 A.2d at 617-18. Because counsel did not object to the court's proposed instruction—and, in fact, indicated his agreement to it—we conclude that, for this reason also, Timmonds has waived his claim.
Next, Timmonds asserts that the trial court erred by failing to preclude the admission of evidence regarding the negligence of his employer, Ley, and allowing cross-examination and argument by defense counsel with regard thereto.
[The a]dmission of evidence is within the sound discretion of the trial court and a trial court's rulings on the admission of evidence will not be overturned absent an abuse of discretion or misapplication of law. Schuenemann v. Dreemz , LLC , 34 A.3d 94, 100-01 (Pa. Super. 2011). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-will, as shown by the evidence or the record, discretion is abused. Id.Maisano v. Avery , 204 A.3d 515, 523 (Pa. Super. 2019). For a trial court's evidentiary ruling to constitute reversible error, the ruling must not only be erroneous, but also harmful to the complaining party. Whitaker v. Frankford Hosp. of City of Philadelphia , 984 A.2d 512, 522 (Pa. Super. 2009).
The Pennsylvania Rules of Evidence provide that, generally, all relevant evidence is admissible, see Pa.R.E. 402, and that "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Pa.R.E. 401. However, a court "may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.
Here, Timmonds asserts that the testimony in question was barred by section 303 of the Workers' Compensation Act. Section 303 makes compensation under the Act the exclusive remedy whenever an employee is injured within scope of his employment and bars third parties from joining employers as additional defendants or seeing apportionment against them. Prior to trial, Ley was dismissed from the action by stipulation after it became clear that any claim against it was barred by section 303. Thereafter, Timmonds filed pre-trial motions in limine, arguing that defendants should be precluded from offering "evidence, argument, or testimony that [Ley] was negligent or otherwise at fault for [Timmonds'] injuries." Brief of Appellant, at 38. The trial court denied those motions. Timmonds argues that this ruling was in error, as such evidence "is explicitly and unequivocally barred by long-established Pennsylvania case law about the apportionment of liability to a plaintiff's employer when the employer is immune from suit under [s]ection 303(b) of [the Act]." Id. at 43. Timmonds asserts that "[t]he Pennsylvania Supreme Court has made it clear that any evidence of [Timmonds'] employer's negligence should have had absolutely no place in this trial[,] was wholly irrelevant[,] and should not have been used by defendants to offset their liability for [Timmonds'] accident and injuries." Id. at 46. Timmonds further argues that, "[e]ven if there were arguably some marginal relevance of evidence, argument[,] or testimony that [Timmonds'] employer was negligent—despite the Supreme Court['s] . . . repeated holdings to the contrary—such relevance is vastly outweighed by the danger of unfair prejudice, confusing the issues[,] and misleading the jury." Id. at 46-47.
Section 303 provides as follows:
(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employe[e]s, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section[s] 301(c)(1) and (2) or occupational disease as defined in section 108.377 P.S. § 481 (footnotes omitted).
(b) In the event injury or death to an employe[e] is caused by a third party, then such employe[e], his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employe[e]s, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.
The court denied Timmonds' motions without prejudice to his right to raise appropriate objections at trial, concluding that the purported conduct of Ley was relevant to the factual cause of Timmonds' accident. See Trial Court Opinion, 8/27/19, at 39.
The trial court concluded that, while section 303 precludes a third party from bringing an action in tort or seeking apportionment against an employer, it does not, by its terms, preclude a third party from contesting the actual cause of injuries or contesting that a plaintiff has met his burden of proof regarding the cause of the incident in issue. See Trial Court Opinion, at 40. Because evidence of Ley's actions was relevant to causation and did not unfairly prejudice Timmonds, the court concluded that the evidence was admissible, articulating its reasoning as follows:
The instant claim presented a thorny evidentiary landscape due to the differing legal claims among the parties. [Timmonds'] theories of liability as to AGCO were related solely to the production of a defectively designed product. [Timmonds'] theories of liability as to MM Weaver were twofold: one was based on the sale of a defectively designed product and the other was an independent claim of negligence for the sale of the tractor without a guard or manual. [Timmonds'] theory of liability as to the Turf Defendants was that they had removed the guard and resold the tractor back to MM Weaver without the guard. AGCO's primary defenses were that the product had been changed substantially by the removal of the guard and that [Timmonds'] hotwiring/jumpstarting of the tractor was not an intended use, and this combined misuse was the sole cause of the accident. The Turf Defendants' and MM
Weaver's primary defenses were that Ley, or one of [Timmonds'] co-workers, had removed the guard, not them; therefore, [Timmonds] could not meet his burden of proving that the conduct of either the Turf Defendants[] or MM Weaver, prior to the sale to Ley, was a factual cause of the incident. Accordingly, this [c]ourt ruled that evidence of Ley's actions and/or inactions concerning the removal of the guard was relevant to the causation defenses and that the probative value far outweighed any prejudice to [Timmonds]. It was the above legal theories pursued by [Timmonds], and the concomitant defenses, that guided this [c]ourt's evidentiary rulings as to relevance.
. . .
[Timmonds] alleged that the Turf Defendants were negligent in removing the guard covering the solenoid starter sometime between 2006 and 2008 when the Turf Defendants had the at-issue tractor [in its possession]. [Timmonds] also alleged that MM Weaver was negligent for selling the at-issue tractor to Ley in 2008 without the guard covering the solenoid starter and/or without the operator manual. In a negligence action, [a plaintiff] has the burden of proving, by a preponderance of the evidence, that the harm suffered was due to the conduct of the defendant. The assessment of whether [a p]laintiff has met this burden is most often a jury determination, unless "it is clear that reasonable minds could not differ on the issue." As stated by our Supreme Court, "[i]n establishing a prima facie case, the plaintiff need not exclude every possible explanation of the accident; it is enough that reasonable minds are able to conclude that the preponderance o the evidence shows defendant's conduct to have been a substantial cause of harm to the plaintiff." Here, the determination of liability in [Timmonds'] negligence claims for the absence of the guard and manual required the jury to assess when the guard and the manual were removed and by whom. Accordingly, evidence of Ley's actions and/or inactions concerning the removal of the guard and the manual were critical to [the defenses of] MM Weaver and Turf Defendants [] related to their own liability.
Moreover, because [Timmonds] was pursuing negligence claims against Turf Defendants and MM Weaver, these [d]efendants were pursuing their own claims of comparative negligence against [Timmonds] with regard to his operation of the tractor. To defend against the claims of comparative negligence, [Timmonds] himself
introduced evidence that he only jumpstarted the tractor because of his employer's instructions, thereby interjecting Ley's lackluster training of employees and Ley's condoning of the purported misuse.Id. at 41-42 (emphasis in original). We concur with the trial court's analysis that the evidence was relevant to the issue of causation and that its probative value was not outweighed by a danger of unfair prejudice to Timmonds.
For example, Timmonds' counsel elicited testimony regarding the deficiency of Ley's safety practices from Jeffrey Immel, Ley's project manager on the job site at which Timmonds was injured:
Q: Did you ever receive any training from anyone as to how to use this tractor?N.T. Jury Trial, 6/5/18, at 47.
A: No. Not another tractor to use [sic].
Q: Did you or anyone with Ley, to the best of your knowledge, ever give Mr. Timmonds any training in how to use that tractor?
A: I don't know that he was or wasn't.
Q: You certainly didn't give him any training, though?
A: No.
We note that Timmonds' argument as to unfair prejudice consists of a single paragraph in which he summarily states that the relevance of evidence in question was "vastly outweighed by the danger of unfair prejudice, confusing the issues and misleading the jury." Brief of Appellant, at 46-47. Because Timmonds fails to develop an argument as to the legal or factual basis for this assertion, any claim regarding unfair prejudice is waived. Hardy , supra . --------
Moreover, Timmonds is unable to demonstrate that the evidence is barred by section 303 of the Act. First, section 303(b) does not preclude the introduction, in a case seeking damages from a third party, of evidence regarding an employer's negligence, where such evidence is relevant to defenses raised by the third party. Rather, the statute simply precludes a third party from either bringing an action or seeking apportionment against an employer. Second, none of the cases relied upon by Timmonds addresses the admissibility of evidence of an employer's negligence where it is relevant to another party's defense. See Tsarnas v. Jones & Laughlin Steel Corp., 412 A.2d 1094 (Pa. 1980) (upholding constitutionality of section 303 and affirming dismissal of third-party complaint seeking to join employer as additional defendant); Heckendorn v. Consolidated Rail Corp., 465 A.2d 609 (Pa. 1983) (holding section 303 precludes joinder of employer as additional defendant for purposes of apportioning fault), and Bell v. Koppers Co., 392 A.2d 1380 (Pa. 1978) (holding section 303 did not bar joinder of employer in suit where injuries occurred prior to effective date and suit was filed subsequent to effective date).
For the foregoing reasons, Timmonds' claim that the trial court erred in admitting evidence regarding Ley's negligence is without merit.
Finally, Timmonds claims that the trial court erred in barring his counsel from impeaching AGCO's expert witness with the report of another, non-testifying expert, retained by another defendant, whose report AGCO's expert purportedly reviewed and considered in reaching his own expert opinion. Timmonds asserts that this evidence should have been admitted to "directly impeach the false assertions regarding plaintiff's recommended alternate design made" by AGCO's expert. Brief of Appellant, at 50. He is entitled to no relief.
Some background is in order. Prior to trial, AGCO's co-defendant, Weaver, obtained an expert report from Mark Ezra, P.E., and John F. Huffman, P.E., for use in a potential cross-claim against AGCO. In that report, Ezra and Huffman concluded that the tractor was defective and that the defect was, in part, the cause of Timmonds' injuries. They further opined that the use of OPC would have reduced the risk of injury to Timmonds. Weaver ultimately decided not to pursue its cross-claim and, consequently, did not present testimony from either Ezra or Huffman.
At trial, AGCO presented David Murray as an expert in tractor and agricultural design and safety. On direct examination, Murray never referred to the Ezra/Huffman report or stated that he had relied upon it in formulating his opinion. On cross-examination, Timmonds' counsel attempted to question Murray regarding whether he had reviewed the Ezra/Huffman report. Counsel for AGCO objected, and the trial court sustained the objection on the basis that the opinions contained in the report were inadmissible hearsay, not subject to any exception. The following exchanges then took place:
[COUNSEL FOR TIMMONDS]: Did you review any reports, other than Mr. Sevart['s], which discuss—I'm not going to get into what they say—which discuss occupant presence controls?
[COUNSEL FOR WEAVER]: Same objection. Simply a different way of phrasing something.
THE COURT: No. Did he review any other reports; yes or no?
[COUNSEL FOR TIMMONDS]: Regarding OPC.
A: I saw the report.
Q: As an engineer, am I correct as a safety director, that if someone comes forth, other than Mr. Sevart, and said OPS was necessary technology that rendered your product defective, that is something you would consider, right?
A: I would consider it on its merits.
. . .
Q: In your industry, am I correct that Mr. Sevart is not the only one that has been advocating for OPCs for decades?
A: I don't have a name to give you. I assume that's correct, yes.
Q: You don't have a name to give me. Do you have two names?
A: Excuse me?
[COUNSEL FOR AGCO]: Objection.
THE COURT: Does he know any names, is that what you're asking?
[COUNSEL FOR TIMMONDS]: He said a name. I'm wondering if there [are] two.
THE COURT: Or three or five. Is there a significance about the number?
[MURRAY]: So I do remember a report by Mr. Sevart or his father and one of their colleagues, if I remember right, if that's correct.
N.T. Jury Trial, 6/13/18, at 69-70, 73-73 (emphasis added). At this point, the court interjected, excused the jury, and asked counsel to move on. Subsequently, the court reaffirmed its previous ruling that Murray could not be questioned specifically regarding the Ezra/Huffman report, and counsel for Timmonds declined to re-cross-examine Murray.
[COUNSEL FOR TIMMONDS]: And you know there [have] been reports from people other than Mr. Sevart and his colleagues, right, discussing OPC—
Timmonds now asserts that the trial court's ruling precluded him from impeaching Murray. Specifically, Timmonds argues that, during his testimony,
Murray repeatedly opined that OPC was not required on the Massey Ferguson 451 tractor at issue. During cross[-]examination, Murray acknowledged that, before testifying, he reviewed and considered other expert reports in this case, including the reports provided by co-defendant M.M. Weaver of Mr. Huffman and Mr. Ezra. Mr. Murray specifically confirmed that he read and "considered on its merits" the report on OPC by Mr. Huffman and Mr. Ezra. Yet, upon further examination, [Murray] told the jury that the only people advocating for OPC's inclusion on Massey Ferguson tractors are associated with plaintiff's expert witness, Mr. Sevart.Brief of Appellant, at 48, 50 (citations to reproduced record omitted). Timmonds is entitled to no relief.
. . .
The testimony of Mr. Murray stated to the jury that Mr. Sevart's report is the only evidence that he has reviewed which indicates that the subject tractor is defective for not including OPC. This was plainly untrue. [The Ezra/Huffman report] clearly impeaches this testimony and provides that the Massey Ferguson 451 tractor was unreasonably dangerous and defective. Huffman and Ezra further opine that a proper design alternative would have been the inclusion of an [OPC]. Huffman and Ezra confirm that OPC is a reliable system. These expert conclusions, offered by a defendant's witnesses, directly impeach the false assertions regarding [Timmonds'] recommended alternate design made by Mr. Murray.
A review of the trial transcripts reveals that Timmonds' claim is based on a mischaracterization of Murray's testimony. First, Murray did not "specifically confirm" that he read and "considered on its merits" the Ezra/Huffman report. Rather, when asked, generally, if he had reviewed any other reports discussing OPC, he stated that he "saw the report." N.T. Jury Trial, 6/13/18, at 70. Counsel then asked, in hypothetical form, whether Murray would consider an opinion that OPC was necessary and that its absence rendered the tractor defective. Murray replied using the conditional tense: "I would consider it on its merits." Id. Subsequently, when counsel asked Murray if it was correct that Sevart was not the only person advocating for the inclusion of OPC, Murray responded that, while he could not provide a specific name, he "assume[d] that's correct." Id. at 73.
It is clear from the foregoing that Murray: (1) did not testify that he considered the Ezra/Huffman report on its merits in arriving at his expert opinion and (2) did not deny that there were others in the industry, aside from Sevart and his associates, who believed that OPC was a desirable safety feature for tractors such as the one in question. Contrary to Timmonds' argument, there no "obvious contradiction" in Murray's testimony. Brief of Appellant, at 50. Simply put, Murray's statements were not inconsistent and provided no basis for impeachment. Accordingly, we can discern no prejudice that could have inured to Timmonds as a result of the trial court's ruling, and, for that reason alone, his claim must fail. Whitaker , supra (for trial court's evidentiary ruling to constitute reversible error, ruling must not only be erroneous, but also harmful to complaining party).
Moreover, the legal basis for the court's decision to disallow the testimony is sound. Specifically, the case upon which Timmonds bases his claim, Boucher v. Pennsylvania Hosp., 831 A.2d 623 (Pa. Super. 2003), is distinguishable. As the trial court thoroughly and correctly addresses this issue in its comprehensive Rule 1925(a) opinion, see Trial Court Opinion, 8/27/19, at 20-29, we rely upon that analysis in further finding that Timmonds is entitled to no relief on this claim. The parties are instructed to attach a copy of that opinion in the event of further proceedings.
Judgment affirmed.
Judge Strassburger did not participate in the consideration or decision of this Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/12/21
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