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New Pennsylvania Superior Court Decision Holds Products Liability Case Not Preempted by Federal LawBelow is a link to the opinion from the Pennsylvania Superior Court on February 17, 2009 in Kiak v. Crown Equipment Corp., ___ A.2d ____, 2009 PA Super 32 (February 17, 2009) where the court reverses the trial court’s grant of Summary Judgment in favor of the Defendant. The Superior Court finds that the products liability case is not controlled by Arnoldy v. Forklift L.P., 927 A.2d 257 (Pa. Super. 2007)(holding state tort law preempted by OSHA regulation which burdens end user with selection of safety features and employer chose none), and the action was not precluded by federal preemption.
Mr. Kiak was injured by a forklift manufactured by Crown Equipment Corporation (“Crown”). He was pinned by the forklift, because he was unaware of its approach despite the presence of a strobe light, rearview mirrors, and a back up alarm. Unlike Arnoldy, Kiak alleged that the safety features selected by his employer were defective. The defect was the back up alarm would discontinue when the forklift was “coasting” backwards. The coasting was relevant, because the warehouse in which it was used included a guide wire steering system which allowed the operator to gain speed with the throttle engaged and then coast backwards remaining on course.
The question in this case is whether the audible back up alarm was defective when it discontinued sounding while the forklift coasted backwards, rather than whether the appropriate safety feature was actually included on the forklift by the manufacturer. The court ruled that the former is a question of state tort law, and the latter, as in Arnoldy, was a question preempted by OSHA’s federal regulations. Here the action was allowed to continue, and the plaintiff would need to prove, “Crown sold a defective product, the defect existed when the product left Crown’s hands, and the defect caused the plaintiff’s injuries.” Kiak, page 8 (citing Hadar v. AVCO Corp., 886 A.2d 225, 228 (Pa. Super. 2005)); Restatement 2d Torts § 402A.
http://www.superior.court.state.pa.us/opinions/A26013_08.pdf
D. Joseph Chapman
Attorney at Law
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