Foreseeable Misuse in Pennsylvania

Does foreseeable misuse have a place in determining liability in a products liability action? In Pennsylvania, it doesn’t. Recently, the Third Circuit, applying Pennsylvania law, rejected a consumer’s argument that the meaning of “intended use” included all uses “reasonably foreseeable” by the manufacturer. Jacobson v. BMW of North America, LLC, No. 08-4322, 2010 WL 1499809 (3d Cir. Mar. 23, 2010).

In 1999, Robert Jacobson (“Jacobson”) went to do errands with his two sons, Ryan and Christopher, in his BMW 325i. Jacobson stopped at a convenience store, parked, placed the gear shift in park, turned off the engine, engaged the emergency brake, removed the keys from the ignition, and exited the vehicle, leaving his sons inside. Ryan, playing with the gear shift, placed the vehicle in reverse or neutral and the vehicle began to roll. Christopher exited the vehicle without injury. However, Ryan sustained severe injuries as a result of his exit from the vehicle. Thereafter, Jacobson filed a action against BMW alleging that it should have had a device in place that would have prevented the car from shifting out of park.

At trial, the jury returned a verdict in favor of BMW. Jacobson filed a motion for a new trial, which was denied, and filed the present appeal. Jacobson raised four errors on appeal, including an argument that the court gave an erroneous jury instruction on the definition of “design defect.”

Under Pennsylvania law, “a manufacturer can be deemed liable only for harm that occurs in connection with a product’s intended use by an intended user.” On appeal Jacobson cited to two Third Circuit opinions, Pacheco v. The Coats Co., 26 F.3d 418, 422 (3d Cir. 1994) and Sheldon v. West Bend Equipment Corp., 718 F.2d 603, 608 (3d Cir. 1983) for the proposition that “intended use” under Pennsylvania law includes all uses “reasonably foreseeable by the manufacturer.” The Court disagreed and held that this proposition had been expressly rejected by the Pennsylvania Supreme Court in Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590 (Pa. 2006). The Court found no error in the underlying court’s decision to omit “foreseeability” from its jury instruction on “intended use.”

This case seems to represent the current state of Pennsylvania law; however, practitioners and courts alike recognize the potential for change. As recognized by the Eastern District of Pennsylvania in July 2009, McGonigal v. Sears Roebuck and Co., No. 07-CV-4115, 2009 WL 2137210 (E.D. Pa. Jul. 16, 2009), Pennsylvania courts note that “negligence concepts should not be imported into strict liability law.” However, the McGonigal court also stated that “[t]he role of negligence concepts in strict liability doctrine in Pennsylvania features numerous unsettled issue of law.” The Supreme Court of Pennsylvania was recently afforded the opportunity to clarify strict liability law in Bugosh v. I.U. N. Am., Inc., 971 A.2d 1228 (Pa. 2009) — as recognized by Drug and Device Law blog back in April 2009 — however, the appeal was dismissed as been “improvidently granted.” As a result, Pennsylvania law still contains inconsistencies with the hope for clarification someday.