PENNSYLVANIA LEGAL UPDATE

SPRING 2010 ISSUE

PRODUCTS LIABILITY AND DEFECTIVE VEHICLES

The heirs of a Pennsylvania man who died when he crashed his pickup truck into an embankment have won a second chance to take their claims against Ford Motor Company to a jury trial.

The accident happened when the man was on his way to work in his Ford F-150 pickup truck. He skidded through a "T" intersection into a ditch and hit a dirt embankment. The man was not wearing a seat belt. When emergency personnel arrived on the scene, they found the man dead in the passenger seat. The truck's driver's side air bag had deployed. Expert witnesses on both sides of the case agreed that the man had been traveling between 30 to 34 mph before applying his brakes.

The deceased man's heirs sued Ford, claiming that the design of the Ford F-150 pickup air-bag system was defective because the driver's side air bag deployed at a low collision speed and deployed too late, causing the driver's body to be too close to the steering wheel at the time of deployment. They claimed that if the air bag had not deployed at all, or had deployed in a timely fashion, the man would have suffered only minor injuries, if any.

Ford argued that its air-bag system was not defective, and that the air bag deployed precisely as designed. Ford also claimed that the man's heavy braking at the intersection and his failure to use a seat belt caused him to be out of proper driving position and too close to the steering wheel at the time of the air-bag deployment. Ford also suggested that the man might have been reaching for something on the truck's floor or doing something else unexpected that caused him to land in the passenger seat on impact.

Crashworthiness Claims

The heirs' claims are known as "crashworthiness products liability claims." In such cases, a plaintiff must prove that the manufacturer sold a vehicle in a defective condition, that the defect existed when the vehicle left the manufacturer's hands, and that the defect caused injuries. The key inquiry in all products liability cases is whether or not the product is defective. In other words, the product is on trial.

In crashworthiness cases, vehicle manufacturers can be held responsible for defects that do not directly cause injuries but simply increase the severity of injuries. Pennsylvania law requires that manufacturers design and manufacture crashworthy vehicles. Stated another way, vehicle manufacturers must assume that accidents happen and must design vehicles with accidents in mind.

The man's heirs appealed after they lost the first trial. On appeal, the heirs argued that the trial judge should not have permitted the Ford lawyers to tell the jury that the man was not wearing his seat belt. Drivers and front-seat passengers must wear seat belts in Pennsylvania, but evidence that a driver or passenger was not wearing a seat belt is not admissible in accident trials in Pennsylvania.

When Pennsylvania first passed its mandatory seat-belt law in 1983, the law was somewhat unpopular and lawmakers compromised, including in the new law a broad prohibition that seat-belt use or nonuse could not be made an issue in accident cases. The trial judge had decided that the heirs' attack on the truck's air-bag system entitled the jury to know everything about the operation of the restraint systems in the truck, both air bags and seat belts. On appeal, the heirs won their objections, and the case was returned to county court for another trial, with no evidence to be admitted on the seat-belt use.

The appeals court noted that the ban on the admissibility of seat-belt use is broad and has no exceptions. Until the law changes, unless all parties to a case agree otherwise, no evidence can be admitted in any accident cases regarding whether the people involved in the accident were using seat belts.

CHILD SUPPORT FOR COLLEGE STUDENTS

Pennsylvania law provides that a parent's entitlement to receive child support from the other parent ends when the child is 18 years old and has graduated from high school. It also ends if the child is emancipated--living independently of both parents, in a self-supporting status. Some exceptions are made for special needs or disabled children.

Some parents enter into agreements regarding the payment of their children's college tuition and expenses. Often, when such agreements are drafted, they are part of a divorce settlement. Pennsylvania courts have no authority to order any parent to pay for a child's college expenses, but, if parents enter into an agreement, the courts will enforce the agreement.

Recently, a Pennsylvania mother tried to enforce an oral agreement with her ex-husband regarding college tuition for their children. She noted that Pennsylvania contract law does recognize oral contracts. She claimed that she and the children's father had an oral understanding that they would share college expenses.

The court agreed that oral contracts are enforceable in Pennsylvania but declined to extend enforcement to oral college expense contracts made during a marriage. The court noted that the parents' agreement was the result of many discussions that occurred during their marriage. The court observed that the discussions were based on the expectation by both parties that they would be living together and sharing their incomes. Once their divorce divided them into separate households, with separate housing and other expenses, the court found that neither parent should be held to their earlier understanding about paying for their children's college expenses.

Get the Details in Writing

Parents who are separated or divorcing can enter into enforceable agreements about their commitment to help their children with college expenses. Such agreements should be written and should be detailed and specific. The parents should discuss and agree upon the location of the potential colleges and the kinds of expenses to be shared--tuition, room and board, books, activities, travel, spending money, and car expenses.

Not all expenses must be shared, but those that are to be shared should be specified. A written agreement to "share college expenses" is too vague--judges resist interpreting contracts broadly and are reluctant to burden a parent with more than the parent intended to take on. College support agreements also should address what standard of behavior and academic performance is expected of the student, and whether the parents have any voice in where the student will go to college.

Finally, such agreements should address whether one parent's disability or loss of employment excuses that parent from paying. The more details that are included in such agreements, the more efficiently they can be understood and, if necessary, enforced in court.

TEE SHOT PLAN GOES AWRY, GOLFERS LIABLE FOR INJURY

Pennsylvania law makes it almost impossible for participants in sporting events to sue each other over their injuries. For the most part, both the players and the spectators at sporting events are presumed to have voluntarily assumed all risks that naturally flow from the often rough-and-tumble arena of private and spectator sports. In a recent case involving an injury on a golf course, a Pennsylvania court recognized an exception to this general rule.

Three golfers were poised to tee off on the 17th hole at a charity golf tournament. Concerned that the group playing ahead of them might still be on the next green, which was obscured by a hill, the three golfers came up with a plan. Golfer #1 was the least skilled in the group and was not capable of driving a ball over the hill. Because he could safely hit his tee shot without risk of hitting the group ahead, the threesome decided that Golfer #1 would take his tee shot and promptly scout the next hole to see if the next green was clear of golfers.

The plan was that, upon Golfer #1's return, the other two golfers would tee off, as both of them were capable of driving a ball all the way to the obscured green. For reasons that none could later fully explain, perhaps due to fatigue or poor communication, Golfer #2 did not wait for Golfer #1 to return but took his tee shot while Golfer #1 was enroute back from his scouting expedition. Golfer #2's powerful hook shot struck Golfer #1 directly in the face, causing him serious and permanent injuries.

The Pennsylvania court noted that Pennsylvania law clearly frowns on any liability arising out of sporting events, reasoning that "those who participate or sit as spectators at sports and amusements assume all the obvious risks of being hurt by roller coasters, flying balls, baseball, golf, polo, hockey, fireworks, explosions, or the struggles of the contestants. The timorous may stay at home."

But in the case involving the three golfers, the court noted that Golfer #1, hit while he was driving the cart on the golf path in an agreed plan to report back to his group, had not assumed the risk that his group would depart from their plan and tee off directly toward him. In fact, Golfer #1 "had every right to anticipate none of his playing partners would attempt a tee shot until his return to the tee box."

The broad limits on liability at sports events remains the law of Pennsylvania. Nevertheless, where special or unusual facts exist, the courts remain open to holding sports participants responsible for their careless conduct.

SENSE OF SMELL ESSENTIAL TO POLICE WORK

Concluding that police officers cannot do their jobs if they cannot "smell out" crime, a Pennsylvania appellate court agreed that a Pennsylvania township police officer was totally disabled as a result of his losing his sense of smell.

The police officer was badly injured in a motorcycle accident while off duty. The injuries resulted in his completely losing his sense of smell. The officer returned to work after passing a physical examination, but the examining physician never asked about or tested the officer's sense of smell. Several months after the officer resumed his duties, when township officials learned that he had no sense of smell, they issued an "honorable discharge," effectively firing him.

When the officer objected, the township held a hearing and presented the testimony of an expert in law-enforcement employment. The expert testified that police officers must be fully able to smell in order to quickly respond to fires, hazardous material spills, and natural gas and propane leaks. The expert also noted that first responders to DUI and drug violations regularly use their sense of smell. All of these events require instant action.

The injured officer argued that he could detect a DUI by observing the walk and behavior of a driver, and that he could observe fuel and gas emergencies by seeing smoke and by depending on other visual clues. He testified that no officers had complained to him about his lack of sense of smell and further suggested that there were other duties he could perform without being dismissed.

But several township employees testified that the officer did experience problems on his return to work. One fellow officer noted that the injured officer was the first on the scene of a DUI accident but was not able to smell alcohol on the unconscious driver, while the fellow officer noted it right away. Another witness described an incident in which the injured officer assisted an elderly township resident with her malfunctioning furnace by adjusting it and restarting it. Had the furnace malfunction been related to a gas leak, the injured officer's restarting the furnace might have caused a destructive explosion.

The township hearing board upheld the discharge, and the injured officer lost on appeal. Many workers' job performances are unrelated to their sense of smell. But, for law enforcers and other first responders, an actual smell test is often an essential part of quick and safe decision making.

WHO LET THE DOGS IN?

A Pennsylvania couple with 21 Siberian husky dogs at their home recently lost a battle with their local zoning officer, who objected to the size of their dog pack.

The couple's home was on a three-acre lot, zoned for residential use and bordering on a large agricultural zone. The couple modified a garage workshop to house the dogs. The converted workshop was heated and air conditioned and contained 17 individual dog crates. An additional four dogs lived with the couple inside the home. The couple did not raise any dogs for sale or provide any kennel services; they simply maintained all the dogs as their pets and occasionally entered their dogs in dog shows and used them as sled dogs.

The township zoning officer claimed that the couple was effectively running a kennel and was not abiding with particular regulations that the township required for kennel operators. Over the course of six hearings, the zoning hearing board and the couple disputed whether the kennel regulations should apply to private homes, and whether keeping 21 dogs on a residential lot violates the "customary incidental uses" to which residential lots may be put.

Most zoning laws recognize that certain activities should not take place in residential zones and often limit residents from maintaining livestock, poultry, or other animals. The township's zoning law permitted customary incidental uses in the township's residential zones but did not enumerate precisely what those uses were. After the township found the couple in violation of the zoning law, the couple appealed to the courts.

The Pennsylvania court held that keeping pets is certainly a customary incidental use to living in a residential area. But the appeals judge identified the couple's housing of 21 dogs on a three-acre parcel as beyond the "permissible intensity" of pet ownership. The judge found that the couple did not produce any evidence or testimony that other township residents customarily kept a comparable number of dogs at their homes. He also found that the size and number of dogs owned by the couple far exceeded the "reasonable person" standard. He concluded that, while many township residents likely were enjoying pets, "the keeping of an unlimited number of any sized animals" was not customary in the township.

Anyone who plans to own a large number of pets or plans to own any animals that would be considered livestock should consider negotiating with their township officials before making any home improvements for that purpose. Townships may limit animals in residential districts, and it is often unclear where the limits end.