Wayne BERRIER; Brenda Gregg, in their own right and as parents and natural guardians of Ashley Berrier, a minor, Appellants v. SIMPLICITY MANUFACTURING, INC., Third-Party Plaintiff v. Susie Shoff; Melvin Shoff, Third-Party Defendants, 563 F.3d 38

OPINION McKEE, Circuit Judge. The primary issue in this appeal is whether Pennsylvania’s strict products liability law extends to a child who was injured when her grandfather backed over her foot while using a riding mower that lacked “back-over” protection. The Pennsylvania Supreme Court has never expressly determined if one who is merely a bystander and not a user of a product can bring a products liability claim against a manufacturer to recover for injuries that occur while an intended user is using the manufacturer’s product.

We predict that if the Pennsylvania Supreme Court were confronted with this issue, it would adopt the Restatement (Third) of Torts, §§ 1 and 2, and thereby afford bystanders a cause of action in strict liability under the circumstances here. Accordingly, we will reverse the district court’s grant of

summary judgment in favor of the manufacturer on the strict products liability claim. We will also reverse the district court’s grant of

summary judgment in favor of the manufacturer on the plaintiffs’ negligence claim. I. FACTS A. The Accident Wayne Berrier and Brenda Gregg are the parents of Ashley Berrier, a minor. On May 7, 2003, Ashley was visiting her grandparents at their home in Honey-brook, Pennsylvania. Her grandfather, Melvin Shoff, was mowing his yard with his Simplicity Regent Model riding mower. Shoff had purchased the mower new from a retailer in 1994. According to Shoff, Ashley came into the yard and attempted to hand him a flower while he was mowing. Shoff disengaged the mower blades and told her to go inside.

Believing she had done as instructed, Shoff then re-engaged the blades and placed the mower in reverse to turn the mower around. As he was backing up with the blades engaged, he backed over Ashley’s left leg. Although Ashley received prompt medical attention at a prominent children’s hospital, her left foot had to be amputated. Thereafter, Ashley’s parents brought this action in their own right and on Ashley’s behalf (plaintiffs are collectively referred to as the “Berriers”) against Simplicity.

They argued that Simplicity was liable for negligently designing the mower and also strictly liable because the design was defective. Both claims centered on the absence of any back-over protection, such as a “no mow in reverse” device or roller barriers. The Simplicity mower Shoff was using was a Regent 12 HP Hydrostatic lawn tractor, model number 1692403. It had been manufactured in 1994 and was equipped with a 36-inch steel mower deck that housed two rotating blades. The mower was intended to be operated only by an adult and designed accordingly.

The operator could control the mower’s movement and blade engagement. The operator could therefore move the mower forward or in reverse, with or without the blades engaged. The blades could be engaged or disengaged using a “PTO [power take off] lever” on the left side of a control panel. No physical barriers obstructed the operator’s view. Information that accompanied the mower clearly warned that it should not be operated while anyone was within the mower’s area of operation.

Simplicity equipped the mower with three electrical safety systems to prevent the engine from starting unless the transmission and blade controls are in “stopped” positions. This stopped the engine and blades if the operator left the seat without disengaging the blades, and the configuration automatically stopped the engine if the operator left the seat without first setting the parking brake. However, the mower was not equipped with any “no mow in reverse” (“NMIR”) device nor any kind of roller barrier at the rear of the mowing deck.

The mower came equipped with warnings and instructions printed in bold black letters against a yellow background, located at the operator’s position on the machine that warned of “serious injury or death” that could occur if the machine was operated “WHEN CHILDREN OR OTHERS ARE AROUND.” Additional warnings and safety rules pertaining to the danger of amputation and the risk of accident were placed on the deflector shield. Similar warnings were also printed in the Operator’s Manual, and Shoff admitted that he read and understood them. B.

History of Back-Over Protection on Riding Mowers In the 1970’s and 80’s, a series of studies warned about the extreme dangers associated with operating riding mowers in reverse with blades engaged. These studies were conducted by the Consumer Product Safety Commission (“CPSC”) and others. The studies cited back-over blade contact accidents, comprising between nine and eleven percent of reported accidents involving riding mowers, as the most tragic type of lawnmower accidents. These accidents almost always involved children under the age of five, and almost always resulted in amputation or death.

Calculations based on these studies demonstrated that back-over accidents happened at a rate of more than 100 per year, and one such accident occurred for each 5-6,000 riding mowers sold in the United States. App. 550, 555. In December of 1974, a study commissioned by the CPSC recommended that all riding mowers be equipped with a mechanism that would automatically stop the blade while the mower was in neutral or reverse.

The Consumers’ Union of the United States (“CU”) echoed the call for this requirement in a proposed standard issued on July 17,1975.4 In 1977, the CPSC published a “Proposed Safety Standard” in the Federal Register that would have required all riding mowers to include back-over protection in the form of a device that would disengage the blades while the mower was in reverse. In 1984, following requests from the industry trade association, certain sections of the proposed mandatory CPSC requirements were withdrawn.

The withdrawn sections included the requirement that an NMIR device be incorporated into the design of riding mowers. The withdrawal was premised on the CPSC’s belief that a voluntary standard developed by the industry with comment and assistance by the CPSC would be “a more efficient use of the commission’s resources.” App. 575. Nonetheless, the CPSC continued to recognize that “based on engineering judgment, riding mowers meeting these requirements [including reverse operations with the blade disengaged] should be safer than those that do not.” App. 576.

Accordingly, the CPSC sent a letter to the Outdoor Power Equipment Institute (“OPEI”) requesting that an NMIR feature with an option for manual override be included in any revised American National Standards Institute (“ANSI”) standard for riding mowers. The Commission’s rationale included the following statement: These provisions offer a reasonable means to begin to address young children backed over during reverse mowing. While these accidents are infrequent, the population at risk and the severe mental trauma to the child’s family fully support the need to take immediate steps....

Overall, the requirement can address the serious back up hazard while still permitting maximum freedom to designers. App. 548-49. In 1994, the CPSC further articulated industry concerns regarding the efficacy of NMIR devices, including issues relating to how fast the blade should stop to avoid blade contact injuries, whether consumers would accept a mower that does not mow while backing up, and whether the safety change could be incorporated into the product without diminishing customer satisfaction.

Those and similar concerns ultimately lead to the defeat of attempts to incorporate a mandatory NMIR design into riding mowers. C. The Effectiveness of Back-Over Protection Devices In the wake of discussions about lawn mower design, different types of NMIR devices have been designed to prevent the motor from powering the blade if an operator shifts a riding mower into reverse. In fact, in 1976, Simplicity received two patents for mechanical and electrical interlocks that prevent blades from spinning while a riding mower is backing up. App. 588-89.

NMIR devices often include an “override” feature that conditions reverse mowing upon a series of maneuvers (e.g., an override button) that compel the operator to focus his/her attention on backing up and take some action to power the blades while the mower is operating in reverse. However, even with such an option, the blades will automatically stop when the mower is shifted into reverse in normal operation. App. 557. In 2003, the new ANSI standards, drafted by OPEI, required an NMIR design. App. 578-80. Thereafter, in September 2004, Simplicity incorporated NMIR devices into its riding mowers. D.

Alternative Designs Suggested by the Berriers The Berriers suggest several alternative designs that could have been incorporated into Simplicity’s mower. The first is an NMIR feature that prevents the blades from being powered by the motor when the mower is shifted into reverse. App. 374. However, even with loss of power, momentum causes the blades to continue to spin for a short time as the mower is backing up. Id. The feature requires disengagement and re-engagement of the blades each time the mower reverses direction. App. 35.

This design was being used by one lawn mower manufacturer, MTD Products Inc., when Shoffs mower was manufactured. App. 767. The Berriers also suggest an NMIR feature that utilizes the aforementioned “override” switch that would allow the operator to choose to mow in reverse as needed or for an entire mowing session. (“Override Device”) App. 375. This design is now required by the 2003 ANSI standards. App. 579. The final alternative design suggested by the Berriers is roller-guards on the back of the mowing deck.

They create a barrier that greatly reduces the risk of any “foreign object” slipping under the deck (ie. blade housing) as the mower is backing up. A Simplicity engineer and the Berriers’ design expert both testified that roller-barriers reduce injuries. App. 593-96, 553-54. In fact, Simplicity asked OPEI to adopt this design based on testing it had conducted that supported the effectiveness of the roller-barrier in preventing back-over injuries. App. 593-94, 597-98. II.

DISTRICT COURT PROCEEDINGS Following Ashley’s injury, the Berriers filed this action against Simplicity in the Court of Common Pleas of Philadelphia County. The complaint contained one count of strict products liability based on

Section 402A of the Restatement (Second) of Torts (Count I), and a second count sounding in negligence (Count II). As noted earlier, both counts alleged a cause of action based on an allegedly defective design. Simplicity removed the case to the district court based on diversity of citizenship, 28 U.S.C. § 1332, and filed an answer. Sometime thereafter, Simplicity filed a third-party complaint against Mr. and Mrs. Shoff, which was later amended, alleging claims of negligent supervision and of failure to follow instructions.

Simplicity’s third-party complaint sought contribution from the Shoffs in the event that it was found liable. In time, Simplicity and the Shoffs, the third-party defendants, filed motions for

summary judgment. Simplicity sought

summary judgment on the strict liability and negligence claims. The Shoffs sought partial

summary judgment on the negligent supervision and failure to follow instructions contribution claims. The district court granted

summary judgment to Simplicity on both counts and dismissed the Berriers’ complaint. Berrier v. Simplicity Corp., 413 F.Supp.2d 431 (E.D.Pa.2005). The court ruled that Pennsylvania strict products liability law does not permit recovery for injuries to anyone other than the intended user. Because Ashley was a bystander and not an intended user of the mower, she could not recover in an action against Simplicity. Id. at 437-43. Since the court also concluded that, under Pennsylvania law, Simplicity did not owe a duty to bystanders, it dismissed the negligence claim as well. Id. at 443-49. The court also ruled that the award of

summary judgment “moots the contribution claim against [the Shoffs], and, hence, the need to resolve [the Shoffs’] motion for

summary judgment.” 413 F.Supp.2d at 449. Nonetheless, it decided the Shoffs’ motions “in the event plaintiffs are successful on a motion for reconsideration or on appeal, and because Simplicity has not argued for dismissal based on mootness.” Id. The court then denied the Shoffs’ motion for

summary judgment on Simplicity’s negligent supervision claim, but granted

summary judgment in favor of Mrs. Shoff only on Simplicity’s failure-to-follow-instructions claim. Id. at 449-52. This appeal followed. III. JURISDICTION & STANDARD OF REVIEW The district court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291. “The standard of review applicable to the District Court’s order granting

summary judgment is plenary.” Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir.2005). We apply “the same test employed by the District Court under Federal Rule of Civil Procedure 56(c).” Id. The non-moving party “is entitled to every favorable inference that can be drawn from the record.” Id. At the

summary judgment stage, “the judge’s function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.1987). IV. DISCUSSION A. Bystander Recovery Under Pennsylvania’s Strict Products Liability Law. The district court relied primarily upon Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003), in holding that Ashley could not recover in strict liability under Pennsylvania law because she was not an intended user of the mower.

However, as we discuss in detail below, we believe the district court’s reliance on Phillips was misplaced because bystander liability was not an issue in that case; moreover, no other decision of the Court specifically addresses the issue. In the absence of a controlling decision by the Pennsylvania Supreme Court, a federal court applying that state’s substantive law must predict how Pennsylvania’s highest court would decide this case. See Nationwide Mutual Ins. Co. v.

Buffetta, 230 F.3d 634, 637 (3d Cir.2000). “In predicting how the highest court of the state would resolve the issue, [we] must consider ‘relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.’ ” Id. (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir.1980)). Although the Pennsylvania Supreme Court has not yet expressly recognized a bystander’s right to recover under products liability law, it has not expressly rejected such a claim either.

The “modern era” of products liability law in Pennsylvania began with Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). There, Webb’s father bought a keg of beer from Zern (a beer distributor), and Webb’s brother subsequently tapped the keg and drew beer from it. Webb was injured when the keg exploded. Id. at 426, 220 A.2d 853. Webb relied on a theory of “exclusive control” to sue both Zern, the brewer who filled the keg, and the manufacturer of the keg. The trial court dismissed the action pursuant to the defendants’ demurrers.

That court ruled that the doctrine of exclusive control did not apply because Webb had not joined his father and brother and either or both of them could have done something that caused the explosion. On appeal, the Supreme Court adopted the Restatement (Second) Torts,

Section 402A as a “new basis of liability.” Id. at 426-27, 220 A.2d

Section 402A 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 (

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. Restatement (Second) of Torts § 402A. The Court did not fully explain its rationale for adopting

Section 402A. Rather it simply referred to the concurring and dissenting opinions in Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966), which was issued the same day as Webb, stating: “[o]ne will ... find there citations to modern case law and commentaries which extend and recommend the extension of the law of strict liability in tort for defective products.” 220 A.2d at 854. In his concurring and dissenting opinion in Miller, Justice Jones recited the history of product liability law in Pennsylvania prior to Webb. Miller, 221 A.2d at 328-35 (Jones, J., concurring in part and dissenting in part).

He explained that a person injured by a defective product could sue either in negligence or in assumpsit based upon a breach of implied warranty arising from the sale of an allegedly defective product. Id. at 329. However, under either theory the injured person was required to establish privity, id. at 329, 330, and, in a negligence action, the injured person had to prove the specific acts of negligence by the manufacturer. Id. at 330. In his recitation, Justice Jones noted that following the landmark case of MacPherson v.

Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), Pennsylvania had eliminated the requirement of privity in negligence actions for damages arising from a defective product. Id. at 329. However, in an assumpsit action based on a breach of warranty, privity was still required. Id. at 330. As a result of the privity requirement, a manufacturer’s liability in a breach of warranty action was limited to his immediate purchaser, who was generally a retailer who sold the product directly to the consumer. Id. at 332.

The retailer was therefore normally only liable to the actual purchaser and not to subsequent users of the product. Id. at 332-33. Therefore, Justice Jones recommended abolishing the privity requirement, adopting

Section 402A, and thereby allowing product liability actions in tort. Id. at 333. He explained that the adoption of

Section 402A would protect the consuming public by forcing manufacturers to “stand behind their products,” and make the “burden of injuries caused by defects in ... products fall upon those who make and market the products.” Id. at 334. Although the Supreme Court in Webb did not expressly recognize a distinct cause of action for bystanders under

Section 402A, Webb can be read as standing for the proposition that, under Pennsylvania law, there is a distinct cause of action for bystanders under

Section 402A. Webb was a bystander who simply had the misfortune of being in the same room as the keg when it exploded. Of course, it is possible that the Court viewed Webb as a user or consumer since he may well have walked into the room to draw beer from the keg. However, the Court did not rely upon any such status in allowing Webb to amend his complaint to include a cause of action under

Section 402A, and nothing in the opinion suggests that the Court was concerned with whether Webb was a user of the keg. Eight years after Webb, the Court decided Salvador v. Atlantic Steel Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974). There, an employee was severely injured when a steam boiler exploded at his place of work. He brought an assumpsit action against his employer, the retailer of the boiler and its manufacturer. Id. at 904. The trial court dismissed the complaint because the employee had not alleged a contractual relationship with the defendants and thus horizontal privity was lacking. Id.

On appeal, the Pennsylvania Superior Court reversed, and the Supreme Court subsequently affirmed the reversal. Id. The Supreme Court noted that its earlier adoption of

Section 402A in Webb eliminated the necessity of horizontal privity in breach of warranty cases. The Court explained: Today ... a manufacturer by virtue of

section 402A is effectively the guarantor of his product’s safety. Our courts have determined that a manufacturer by marketing and advertising his product impliedly represents that it is safe for its intended use. We have decided that no current societal interest is served by permitting the manufacturer to place a defective

article in the stream of commerce and then to avoid responsibility for damages caused by the defect. He may not preclude an injured plaintiffs recovery by forcing him to prove negligence in the manufacturing process. Neither may the manufacturer defeat the claim by arguing that the purchaser has no contractual relation to him. Why then should the mere fact that the injured party is not himself the purchaser deny recovery? Id. at 907 (citations omitted).

Significantly, although the action was for breach of warranty, the Court focused on the safety of the product rather than the status or the contractual relationship of the parties. It reasoned that because Pennsylvania products liability law “has progressed,” the demands of public policy “as well as legal symmetry compel” the conclusion that lack of horizontal privity did not bar the employee’s action against the manufacturer for breach of warranty. Id. at 907-08 (emphasis added). Essentially, the Court held that relief available in breach of warranty claims should be as broad as that available under

Section 402A. Salvador involved an employer-employee relationship, and

Section 402A treats an employee as a user of a product. See Restatement (Second) of Torts, § 402A, cmt. 1. However, as in Webb, the Court in Salvador neither discussed the employee’s status nor suggested that his status as an employee was determinative. Rather, the Court focused on the safety of the product. Nevertheless, these Supreme Court cases do not specifically address a bystander’s ability to sue under

Section 402A. Accordingly, “[w]e give ‘due regard’ to the decisions of Pennsylvania’s intermediate appellate courts as ‘indicia of how the state’s highest court would decide [the issue].’ ” Nowak v. Faberge USA Inc., 32 F.3d 755, 759 (3d Cir.1994) (citation omitted). The Pennsylvania Superior Court allowed a bystander to sue in strict liability in Pegg v. General Motors Corp., 258 Pa.Super. 59, 391 A.2d 1074 (1978). Pegg was injured when riding in a car driven by a co-worker. Unbeknownst to Pegg, the coworker had placed a chemical used to sanitize swimming pools in the car.

Pegg was injured when the chemical spontaneously ignited, id. at 1077, and he sued the manufacturer of the chemical (among others) under theories of negligence and strict liability. The Pennsylvania Superior Court held that he could recover even in the absence of privity. The court based liability on whether the manufacturer “place[d] a defective

article in the stream of commerce.” Id. at 1079 (quoting Salvador, 319 A.2d at 907). Liability did not turn on the relationship between Pegg and the manufacturer. However, since the Superior Court’s decision in Pegg, the Supreme Court has issued opinions which appear to limit recovery under

Section 402A to intended users. In Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978), an employee’s right hand was injured when it was pinched between two hard rubber rollers in a coating machine owned by her employer. The employee sued the manufacturer asserting only a cause of action for strict liability under

Section 402A, and the manufacturer joined the employer as an additional defendant arguing that the employer’s negligence caused the accident in whole or in part. The trial resulted in a verdict in favor of the manufacturer and the employee moved for a new trial, asserting, inter alia, that the trial judge incorrectly instructed the jury that her burden of proof under

Section 402A required a showing that the machine was “unreasonably dangerous.” Id. at 1022. On appeal to the Supreme Court, the employee won a new trial. The Court held that the trial court’s use of “unreasonably dangerous” in the jury instructions had improperly introduced negligence concepts into the proceeding. Id. at 1025. The erroneous instruction burdened the injured plaintiff with proof of an element which rings of negligence.

As a result, if, in the view of the trier of fact, the “ordinary consumer” would have expected the defective condition of a product, the seller is not strictly liable, regardless of the expectations of the injured plaintiff..... Id. at 1025 (citation and quotation marks omitted). The Court conceded that limiting liability to defects that are “unreasonably dangerous” “may ... serve the beneficial purpose of preventing the seller from being treated as the insurer of its products.” Id. (citation omitted).

However, the Court thought that objective could better be achieved by requiring proof of “a defect in the manufacture or design of the product, and that such defect was a (legal) cause of the injuries.” Id. (citation omitted) (parentheses in original).

The Court observed: The development of a sophisticated and complex industrial society with its proliferation of new products and vast changes in the private enterprise system has inspired a change in legal philosophy from the principle of caveat emptor which prevailed in the early nineteenth century market place to the view that a supplier of products should be deemed to be the guarantor of his products’ safety.

The realities of our economic society as it exists today forces the conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. In an era of giant corporate structures, utilizing the national media to sell their wares, the original concern for an emerging manufacturing industry has given way to the view that it is now the consumer who must be protected. Id. at 1023-24 (citation and internal quotation marks omitted). The Court explained the evolution of

Section 402A and the tension between strict liability and a common law cause of action for negligence. The Court noted that

Section 402A initially applied “only to foodstuffs and the requirement was that the food be in a condition dangerous to the consumer.” Id. at 1025 n. 10. However, the present text of

Section 402A was substituted for “dangerous” because of concerns “about liability for a product like whiskey, ... because a jury might find that all whiskey is unreasonably dangerous to the consumer.” Id. Accordingly, “[t]he word ‘defective’ was added to ensure that it was understood that something had to be wrong with the product.” Id. Then, quoting from Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 902 (1975), the Court declared: “[t]he seller must provide the product with every element necessary to make it safe for the intended use.” 391 A.2d at 1027.

The Court concluded that, “[f]or the term guarantor to have any meaning in this context the supplier must at least provide a product which is designed to make it safe for the intended use.” Id. at 1027. However, since a jury could confuse that concept if instructed that the product must be “unreasonably dangerous,” the Court agreed that the jury instructions were misleading. Id.

The Court also explained that “unreasonably dangerous,” has no independent significance, but is a term of art that “merely represent[s] a label to be used where it is determined that the risk of loss should be placed upon the supplier.” Id. at 1025. Moreover, the determination of whether the risk should be placed upon the supplier was a legal question that must be resolved by a court, not by the fact finder. Id at 1025-26. Therefore, the appropriate inquiry after Azzarello was whether the supplier had designed the product with every element necessary to make it safe for use. Id. at 1027.

Under that standard, “a jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Id. The Court also reaffirmed that the trial court must decide if “the utility of a product outweigh[s] the unavoidable danger it may pose.” Id. at 1026. Thus “[rjestated, the phrases ‘defective condition’ and ‘unreasonably dangerous’ as used in the Restatement formulation are terms of art invoked [by a court] when strict liability is appropriate.” Id.

It is therefore clear that, after Azzarello, strict liability under

Section 402A involves a two-prong inquiry. As we explained in Noivak: Initially, the question of whether a product is defective, given the facts as alleged by the plaintiff, is a question of law to be answered by the trial judge. If the judge determines as a matter of law that Pennsylvania’s social policy supports placing the risk of loss on the manufacturer in the situation alleged by the plaintiff, then the case goes to the jury for a determination as to whether the facts alleged by the plaintiff are true. 32 F.3d at 757 (internal quotation marks and citation omitted).

Although Azzarello assists our inquiry, it does not resolve it because it does not tell us the Court’s view of who the product must be safe for, and that is the primary issue here. The Court addressed that issue in Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003). There, a majority of the Supreme Court held that a product must be made safe only for its intended user. In Phillips, a two-year-old child accidentally started a fire after removing a butane lighter from his mother’s purse and setting fire to some linens.

The fire spread throughout the family’s apartment, and resulted in the deaths of the two-year old child, his mother, and another minor. Id. at 1002-03. One child managed to escape through an open window and survived. Id. at 1003. The administratrix of the decedents’ estates, who was also the guardian of the child who survived, sued the manufacturer and distributor of the lighter, alleging, inter alia, strict liability for a defective design under

Section 402A, as well as negligent design, because the lighter was not equipped with “childproof features.” Id. The trial court granted

summary judgment to the manufacturer on the

Section 402A claim because the manufacturer only intended its lighter to be used by adults, and it was perfectly safe for use by adults. Id. The Superior Court reversed based on its belief that a product must be safe for anyone who uses it. Id. at 1004. The Superior Court concluded that Cricket’s lighter was defective because it was not equipped with a child safety feature that would have prevented a child from starting a fire. In the Superior Court’s view, that defect exposed intended users to grave risk of harm. Id. The Supreme Court granted allocatur and reversed because it agreed with the trial court.

The majority in Phillips began by observing that Azzarello “did not answer ... whether the ‘intended use’ doctrine necessarily encompasses the requirement that the product need be made safe only for its ‘intended user.’ ” Id. at 1005. The majority explained that, although it had never faced that question in a strict liability design defect case, it had faced it in Mackowick v. Westinghouse Electric Corp., 525 Pa. 52, 575 A.2d 100 (1990), a case alleging strict liability for failure to warn. 841 A.2d at 1005.

In Mackowick, an electrician had sued to recover injuries caused by arcing electricity in a high voltage capacitor. He alleged that the capacitor was defective because it did not warn of the dangers of exposed electrical wires. The Mackowick Court “rejected that argument ... [,] reasoning] that a product need only be made safe for its intended user.” Phillips, 841 A.2d at 1005 (citing Mackowick, 575 A.2d at 102, 103). The “electrical capacitor was intended to be accessed and used only by qualified electricians, and not general members of the public.

As experienced electricians are aware of the dangers of live exposed electrical wires, [the Mackowick court] concluded that the product was safe for its intended user even absent a [specific] warning.” Id. at 1005. In applying the holding of Mackowick, the majority in Phillips reasoned: While Mackowick was a failure to warn case, ... we cannot perceive how it could be confined exclusively to the failure to warn context. Mackowick stands for the proposition that a product is not defective so long as it is safe for its intended user.

Whether the product is allegedly defective due to a lack of warnings, or because it was ill-conceived, the standard that the product need be made safe only for the intended user appears to be equally applicable. Id. The administratrix/appellee in Phillips argued that the lighter’s design was defective because it was reasonably foreseeable that a child might play with it, and therefore the manufacturer should be liable under

Section 402A whether the user was the intended adult or the foreseeable child. Although the majority conceded that the argument had “some visceral appeal,” it noted that the visceral appeal “has been memorialized in our tort law as a negligence cause of action.” Id. at 1006. By the time Phillips was decided, the Court had drawn a clear distinction between negligence actions based on notions of foreseeability and a cause of action based on a theory of strict liability. The Court had often declared that “negligence concepts have no place in a case based on strict liability.” Id. (quoting Lewis v.

Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590, 593 (1987)). Nonetheless, the majority in Phillips conceded that even though the Court had “remained steadfast in ... proclamations that negligence concepts should not be imported into strict liability law, [it had] muddied the waters at times with the careless use of negligence terms in the strict liability arena.” Id. at 1006-07 (citing Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186, 190 (1997)).

The Phillips majority sought to clarify the law by clearly stating that a plaintiff bringing a claim for strict liability based on defective design under

Section 402A “must [only] establish that the product was unsafe for its intended user.” Id. at 1007 (emphasis added). “We also explicitly state that a manufacturer will not be held strictly liable for failing to design a product that was safe for use by any reasonably foreseeable user, as such a standard would improperly import negligence concepts into strict liability law.” Id. The Court reiterated the distinction between negligence concepts and strict products liability in Pennsylvania Dept. of General Services v. United States Mineral Products Co., 587 Pa. 236, 898 A.2d 590 (2006) (“Mineral Products”).

There, a fire damaged an office building which used building materials containing polychlorinated biphenyls (“PCBs”) manufactured by the defendant. The building housed the offices of several agencies of the Commonwealth of Pennsylvania. Following the fire, the Commonwealth made a decision to demolish the building because of the presence of PCBs, and it was replaced with a new building.

The Commonwealth thereafter brought an action against several parties, including the manufacturer of the product containing the PCBs, seeking damages for negligence and strict products liability to recover the cost of constructing a new building as well as the loss of personal property contained in the old building. The case went to the jury “solely on a strict liability theory,” and the jury returned a verdict against the manufacturer without specification of the particular theories/and or claims that were accepted. Id. at 594.

The trial court’s instruction had “explicitly or implicitly authorized [the jury] to evaluate the evidence to determine whether the fire could be considered to have been a reasonably foreseeable event against which the [manufacturer] should have guarded.” Id. at 600. On appeal, the Supreme Court held that the jury instruction was error because Pennsylvania does not recognize a strict products liability cause of action arising from an unintended use even when the unintended use is foreseeable. Id. (citing Phillips, 841 A.2d at 1007).

Accordingly, a “foreseeable misuse of a product [i.e., the fire] will not support a strict liability claim.” Id. (citing Phillips, at 1007). The Court acknowledged that it was “reasonably foreseeable that building materials may be subject to consumption in a fire, and therefore, [there was] an argument that safety ... should be deemed to encompass ... the event of ... combustion.” Id., at 601.

Notwithstanding the logic of that argument, the Court rejected it because it “contravenes the strong admonition in the lead opinion in Phillips ... to the effect that foreseeability considerations have no place in the setting.” Id.

For our purposes, it is important to note that in rejecting the trial court’s “foreseeability charge,” the Court observed: “given the conclusion of [the three concurring Justices in Phillips ] that there are substantial deficiencies in present strict liability doctrine, it should be closely limited pending an overhaul by the Court.” Id. (citing Phillips, 841 A.2d at 1018 (Saylor, J., concurring)). In the portion of Justice Saylor’s concurring opinion in Phillips that is cited in Mineral Products, Justice Saylor discussed the tension between “foreseeability” in negligence and strict products liability under

Section 402A. He stated: “I believe, however, that the ... summation of Pennsylvania law demonstrates a compelling need for consideration of reasoned alternatives, such as are reflected in the position of the Third Restatement.” 841 A.2d at 1018 (upper case in original, italics added). Justice Saylor went on to discuss the application of the Restatement (Third) of Torts at some length. See id. at 1019-22.

We believe that Justice Saylor’s concurring opinion in Phillips foreshadows the Pennsylvania Supreme Court’s adoption of §§ 1 and 2 of the Third Restatement’s definition of a cause of action for strict products liability. The Restatement (Third) of Torts provides in relevant part as follows: § 1. Liability Of Commercial Seller or Distributor For Harm Caused By Defective Products One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

Restatement (Third) of Torts: Products Liability, §

Section 2 provides, in relevant part: § 2. Categories Of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (

a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (

b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; (

c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. Restatement (Third) of Torts: Products Liability, § 2.

As is readily apparent from this text, the Third Restatement does not limit a strict liability cause of action to the “user or consumer,” and broadly permits any person harmed by a defective product to recover in strict liability. See Restatement (Third) of Torts: Products Liability, § 1; see also Am. L. Prod. Liab.3d § 16:56 (2004) (“The drafters thus appear to be sanctioning claims by all foreseeable persons affected by a defective product, an

interpretation as broad as that given to the Second Restatement by the courts.... The prevailing view as to bystander recovery is that the theory of strict liability in tort may be applied to a mere bystander, as distinguished from a user or consumer.”) (emphasis added). The change in the Restatement (Third) of Torts is consistent with the law in many states, including Wisconsin, California, Mississippi, Arizona, Missouri, Michigan, Iowa, Alabama, Utah, and Vermont.

These jurisdictions allow bystander liability using the very negligence concepts and foreseeability analysis that the majority opinion in Phillips rejected. See, e.g., Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84, 89 (1969) (“[ijnjury to a bystander is often a perfectly foreseeable risk of the maker’s enterprise.... If anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably foreseeable.”).

The Third Restatement therefore eliminates much of the confusion that has resulted from attempting to quarantine negligence concepts and insulate them from strict liability claims. As Justice Saylor argues in the heading to

Section III of his concurring opinion in Phillips: “The Restatement’s considered approach illuminates the most viable route to providing essential clarification and remediation.” 841 A.2d at 1019. [T]he [Third] Restatement’s conception of defective design is more nuanced, to accommodate the wider range of scenarios that may face injured consumers and manufacturers/suppliers.

As a general rule, a product is deemed defective in design when the foreseeable risks could have been reduced or avoided by the use of a reasonable alternative design, and when the failure to utilize such a design has caused the product to be not “reasonably safe.” id (citing Restatement (Third) of Torts: Products Liability § 2(b)). Justice Saylor criticized the Phillips majority’s ritualistic approach to products liability as follows: the lead Justices retrench the Court’s periodic admonishment to the effect that negligence concepts have no place in a strict liability action.

A decided majority of courts and commentators, however, have come to recognize that this proposition cannot be justly sustained in theory in relation to strict products liability cases predicated on defective design; moreover, it is demonstrably incongruent with design-defect strict liability doctrine as it is currently implemented in Pennsylvania trial courts and in federal district courts applying Pennsylvania law.

Furthermore, while the parties to the litigation underlying this appeal may not have expressly developed the approach of the products liability segment of the Third Restatement ..., the Restatement position represents a synthesis of law derived from reasoned, mainstream, modern consensus. Particularly in view of pervasive ambiguities and inconsistencies in prevailing Pennsylvania jurisprudence in this area, I view this appeal as an opportunity to examine the range of readily accessible, corrective measures.

In my judgment, the Restatement’s considered approach illuminates the most viable route to providing essential clarification and remediation, at least on a prospective basis. Ultimately, I join the majority disposition on the strict liability and negligence claims under present law. 841 A.2d at 1012. Our examination of appellate decisions in Pennsylvania that have discussed products liability convinces us that Justice Saylor was correct in recognizing that “[c]entral conceptions borrowed from negligence theory are embedded in strict products liability doctrine in Pennsylvania.” Id.

In fact, Justice Saylor went so far as to criticize the Phillips’ majority’s “adherence to the position that negligence concepts have no place in strict liability” as a “common aphorism in the developmental stages of strict liability doctrine....” Id. at 1014-15. As noted earlier, the majority drew that distinction based upon its view that negligence focused on the conduct of the manufacturer whereas products liability focused on the product.

However, Justice Saylor pointed out: “most courts and commentators have come to realize that in design cases the character of the product and the conduct of the manufacturer are largely inseparable.” Id. at 1015. Justice Saylor also noted that “the term ‘defective’ gives an illusion of certainty” because it suggests a specific meaning “rather than a term connoting a standard involving the weighing of factors.” Id. at 1018 (citation omitted).

We agree that it is difficult (if not impossible) in practice to determine if a product is safe for an intended use by an intended user without any consideration of foreseeability. Id.

Accordingly, as Justice Saylor believed, “integration of the ‘reasonably foreseeable use’ alternative into strict products liability doctrine may reflect the greater consensus and better reasoned view, in the landscape of our law as it presently exists....” Id The result achieved from the approach of the Third Restatement is consistent with the modern trend of law as well as the evolving policy considerations discussed in Webb that lead to the adoption of the

Section 402A in the first place. Justice Saylor authored the Court’s majority opinion in Mineral Products. There, he was joined by now Chief Justice Castille, and Justices Nigro and Eakin, as well as then Chief Justice Cappy. Justice Newman wrote a concurring and dissenting opinion that was joined by Justice Baer. In

Section II of his majority opinion, Justice Saylor discussed the plaintiffs strict liability claim. He noted that, although “it is reasonably foreseeable that building materials may be [consumed] by fire,” and therefore building materials that cause damage when burned could be deemed defective, that “argument contravenes the strong admonition in the lead opinion in Phillips ... to the effect that foreseeability considerations have no place in [strict liability].” 898 A.2d at 601. Justice Newman dissented from Justice Saylor’s discussion of strict liability in Mineral Products.

Joined by Justice Baer, Justice Newman stressed that Phillips should not have governed the analysis in Mineral Products because “there was no Majority [in Phillips ] to conclude that foreseeability considerations never have a place in a strict liability case. Instead, the overriding principle set forth in Phillips is that strict liability should be limited to a very small range of cases ... [and] cases involving an unintended user [i.e., Phillips ] are outside the scope of the strict liability doctrine.” Id. at 615. (emphasis in original).

She further explained: As in Phillips, an argument concerning the Third Restatement of Torts is not before us. I recognize the apparent and possible appeal in the more progressive approach adopted by the Third Restatement, in particular, in cases such as this involving a known dangerous chemical where a risk-utility test would be a just measure of a manufacturer’s liability for the product. However, I will proceed to analyze the present matter pursuant to our existing caselaw and the Second Restatement of Torts. Id. at 616 n. 2.

Thus, it is clear from the discussions of Justice Saylor in Phillips and Justice Newman in Mineral Products that there is substantial support on the Court to adopt the Third Restatement’s approach to product liability in an appropriate case. We believe that this is such a case. The unintended user doctrine is not implicated by Berrier’s claim. Accordingly, there is little logic and much sophistry in reflexively applying cases discussing intended uses and users to determine liability for defective design under the circumstances here. See Aetna Life & Cas. Co. v.

Barthelemy 33 F.3d 189, 193 (3d Cir.1994) (“Where stops the reason, there stops the rule.”). District courts in Pennsylvania have no doubt recognized that lack of logic and abundance of sophistry because they have allowed bystanders to recover in strict products liability under

Section 402A under Pennsylvania law just as Justice Saylor explained in Phillips. Even though those cases were decided before Phillips and Mineral Products, we do not believe that the result in those cases is altered by the Court’s subsequent decisions because, as Justice Newman explained in Mineral Products, Phillips is a narrow holding that only addresses “unintended users,” and Mineral Products did not involve bystanders at all. Moreover, we implicitly recognized the right of bystanders to recover in strict products liability under Pennsylvania law in Parks v.

AlliedSignal, Inc., 113 F.3d 1327 (3d Cir.1997), and Surace v. Caterpillar, Inc., 111 F.3d 1039 (3d Cir.1997). We decided those cases within two months of each other, but before the Pennsylvania Supreme Court’s decisions in Phillips and Mineral Products. Parks and Surace nevertheless demonstrate the difficulties of employing a rigid bar to preclude bystander recovery under

Section 402A. In Parks, the manufacturer of an excavating machine was sued by the spouse of an employee who was killed when he was struck by a counterweight attached to the machine’s excavating arm. The spouse claimed that the design of the machine was defective because it did not provide sufficient visibility for the operator to see her husband. The jury returned a verdict in favor of the manufacturer, and plaintiff appealed arguing, inter alia, that the district court had erred in instructing the jury about contributory negligence and causation.

The jury had concluded that the design of the machine was defective but “presumably” based its verdict on a finding that “the defect was not ‘a substantial factor’ causing the death.” 113 F.3d at 1330. We reversed because the jury charge did not explain that the decedent’s own conduct could only have been the “ ‘legal cause of the accident’ if [that conduct] was ... extraordinary or unforeseeable.” 113 F.3d at 1337. We reached that conclusion based on “[t]he centrality of foreseeability to Pennsylvania’s strict products liability law....” Id.

Thus, as we said in Parks, the “manufacturer [was] ... responsible for making the product safe for all foreseeable uses.” 113 F.3d at 1332. The facts in Surace v. Caterpillar, Inc., 111 F.3d 1039 (3d Cir.1997), are very similar to the facts before us here. There, a construction worker was injured when his foot was run over by paving equipment. He brought an action for damages under

Section 402A, alleging that the machine’s design was defective because it did not prevent the machine from operating in reverse unless activated by someone on the ground. The district court granted

summary judgment to the manufacturer. On appeal, we held that the district court erred by not first performing a risk utility analysis as required by Azzarello, and we suggested that the “multi-factor list developed by Dean John Wade [could] be employed in doing so.” 111 F.3d at 1042 (citing John Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973)). As we suggested earlier, our remand to allow the trial court to conduct a risk utility analysis implicitly recognized the right of the plaintiffibystander to recover under

Section 402A. We did so while stressing that “the Pennsylvania Supreme Court eschews the use of negligence concepts in a strict liability case.” 111 F.3d at 1050 (citing Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987) and Kimco Dev. Corp. v. Michael D’s Carpet, 536 Pa. 1, 637 A.2d 603, 606 (1993)). Our discussion in Surace included an example suggested by Dean Wade: [T]he dangers of a hoe or an axe are both matters of common knowledge and fully apparent to the user.

But it is not necessarily sufficient to render a product duly safe that its dangers are obvious, especially if the dangerous condition could have been eliminated. A rotary lawn mower, for example, which had no housing to protect a user from the whirling blade[,] would not be treated as duly safe, despite the obvious character of the danger. 111 F.3d at 1052 (quoting Wade, supra at 842-43) (brackets in original). We agree, and we do not think anything that the Court has since held is to the contrary.

Nor do we think the policy behind strict products liability is served by declaring that the design of Dean Wade’s hypothetical mower is only defective if the spinning blade injures the user. Yet, that is the result of artificially restricting strict products liability to “intended users” based upon concerns of contaminating a strict liability claim with considerations of foreseeability.

We believe that the same policy demands that were first articulated in Webb require placing the risk of loss on the manufacturer whether the person injured by Dean Wade’s hypothetical mower is operating the mower or standing near it. Similarly, we find nothing in Pennsylvania law to suggest that the Supreme Court would deny recovery under a strict liability theory to spectators at a sporting event who are injured by an airplane that crashes into the stadium because a wing was defectively designed.

We do not think the policy considerations that have been recognized since Webb would allow strict liability claims to the passengers but deny it to the spectators simply because they happened to be underneath the falling debris and not inside of it. Sections 1 and 2 of the Third Restatement avoid such illogical results.

Section 2 of the Third Restatement takes a “more progressive view,” and far more realistic approach to strict liability when “bystanders” are involved. We therefore conclude, as Justice Saylor proclaimed in Phillips, that “the time has come for this Court ... to expressly recognize the essential role of risk-utility balancing, a concept derived from negligence doctrine, in design defect litigation.” 841 A.2d at 1015-16 (Saylor, J., concurring).

Justice Saylor has recognized that “[the] Commonwealth’s products liability litigation jurisprudence is far too confusing for another opinion to be laid down that rhetorically eschews negligence concepts in the strict liability arena, while the Court nevertheless continues to abide and/or endorse their actual use in the liability assessment.” Id. at 1016. This case would allow the Supreme Court an opportunity to acknowledge that the Third Restatement “represents a synthesis of law derived from reasoned, mainstream, modern consensus.” Id. at 1012 (Saylor, J. concurring).

We believe that, if addressing this issue, a majority of the Supreme Court would agree that “the [Third] Restatement’s considered approach illuminates the most viable route to providing essential clarification and remediation, at least on a prospective basis.” Id. We realize that Justice Saylor’s comments focused on

Section 2(

b) of the Third Restatement of Torts, and that

section only addresses when a product is defectively designed. Id. at 1019-1021. As we explained earlier, the issue here involves who the manufacturer is liable to because of a defectively designed product. That question is addressed in

section 1 of the Third Restatement, not

section 2. The concurring opinion in Phillips did not discuss

Section 1. However, Justice Saylor did recognize that

Section 2(b), the

section describing when a product is defective, is “generally a negligence standard,” id. at 1020, and he ostensibly recognized that integrating negligence principles into a strict liability design defect claim, including the replacement of the intended user doctrine with a “reasonably foreseeable use” standard, “may reflect the greater consensus and better reasoned view.” Id. at 1018. We think it highly likely that the Justices who would adopt

section 2 would adopt as well as

section 1 rather than trying to parse the applicable provisions of the Third Restatement and thereby supplant some of the provisions of the Second Restatement and not others. We therefore hold that the district court should not have relied on the “intended user” doctrine in granting

summary judgment to Simplicity on the Berriers’ claim for strict products liability based on the allegedly defective design of Simplicity’s lawn mower. We will therefore vacate on that claim and remand for proceedings consistent with this opinion. B. Negligence. The district court also held that the Berriers’ negligent design claim failed as a matter of law because “Simplicity did not owe a duty to Ashley to design the mower in accordance with plaintiffs’ proposed safety features.” 413 F.Supp.2d at 444.

The court also rejected the claim because the Berriers did not present any evidence “to indicate that the design of the instant mower with additional so-called ‘safety’ features would actually increase the safety of the mower without impairing its social utility.” Id. at 449. The Berriers claim that both rulings were erroneous.

To prevail in a negligence action, 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, 841 A.2d at 1008 (citation and quotation marks omitted). Whether a defendant owes a duty of care to a plaintiff is a question of law in Pennsylvania. Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir.1993). We agree with the Berriers that the court erred in ruling that Simplicity did not owe a duty to Ashley. In resolving that question at the

summary judgment stage, the court should have viewed the record in the light most favorable to the Berriers-the non-moving parties. See Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.2007); see also Fed.R.Civ.P. 56(c).

In Pennsylvania, the determination of whether a duty of care is owed is a policy decision that requires the trial court to apply the “Althaus test.” That inquiry requires that the court consider: “(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.” Phillips, 841 A.2d at 1008 (quoting Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (2000) (quotation marks omitted)).

Although these factors guide the court’s inquiry “[i]n determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection from the harm suffered.” Althaus, 756 A.2d at 1168-69 (citation and internal quotation omitted). “Thus, the legal concept of duty of care is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice and society.” Id. at 1169.

Because the question of whether a defendant owes a plaintiff a duty of care is a question of law, Kleinknecht v. Gettysburg College, 989 F.2d at 1366, we have plenary review of the district court’s determination that Simplicity did not owe Ashley a duty of care. See American Society for Testing & Materials v. Corrpro Companies, Inc., 478 F.3d 557, 566 (3d Cir.2007) (“[w]e have plenary review over a district court’s conclusions of law”) (citation omitted). 1.

Relationship Between the Parties We believe that the relationship between Ashley and Simplicity is, at best, uncertain because Ashley did not purchase the mower. It must be remembered that the relationship between the parties in Phillips weighed against a duty. Although there was a relationship there between the mother/purchaser and the manufacturers, the relationship between the defendant lighter manufacturers and the children who died in the fire was “less certain.” Phillips, 841 A.2d at 1009.

We therefore agree with the district court that this factor weighs against the existence of an underlying duty to Ashley. However, it must also be remembered that “[n]o 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.” Id. at 1008-09. We believe each of the remaining factors weighs in favor of finding that Simplicity owed Ashley a duty of care. 2.

Social Utility of Defendant’s Conduct The district court’s analysis of the social utility of the mower included the following three findings: (1) a riding mower that cannot mow in reverse lacks social utility,

(2) Plaintiffs failed to present evidence indicating that an NMIR device that shuts down the mower if an operator engages the mower blades while operating in reverse would increase the product’s safety; and (3) the additional safety mechanisms identified by Plaintiffs, including roller barriers and an NMIR device with an override feature, do not actually improve safety by decreasing back-over injuries. 413 F.Supp.2d at 444-46. However, those findings are inconsistent with the record. The district court reasoned that “operators frequently need to cut grass in reverse.

To deny operators the capacity to perform these basic maneuvers, with the mower deck engaged, would add significant time and frustration to the lawn-mowing task.” Berrier, 413 F.Supp.2d at 444. That conclusion overlooks testimony by the defendant’s own expert who testified that “there is rarely any reason to mow in reverse.” App. 758. That expert explained that: nearly all of the reverse operations on these machines are just for maneuvering.

I have seen situations where it’s— would be easy to understand why somebody would want to mow in reverse when they have a very narrow corridor and there is no room to turn around at the end and two cutting widths will cut that grass. But those kind of geometric situations are kind of unusual. App. 758. The court’s consideration of this factor also overlooks the undisputed fact that, between 1982 and 1992, five leading riding mower manufacturers sold nearly two million units which prevented the operator from mowing in reverse by incorporating the MTD device. App. 557-58.

Second, the Berriers proffered sufficient evidence to establish that the mower in question was safer when equipped with the NMIR device. Their expert reported that, out of the two million mower units just mentioned, none generated any reports of a back-over blade accident. App. 558. It is important to clarify that two NMIR devices are relevant to our inquiry: the “MTD Device” — used by MTD in two million of its mowers when Shoff s mower was manufactured, and the “Override Device.” We consider the social utility of each in turn. a.

NMIR The district court concluded that the MTD device lacked social utility because it shuts down the mower’s engine when operated in reverse, but allows the mower to backup for at least 4.5 feet before the engine shuts off. 413 F.Supp.2d at 444. This blade interlock device is the device that the CPSC refused to require as an industry standard because of efficacy concerns. App. 391. The CPSC found that such a device would likely be disabled by the operator out of frustration. Id. at 473.

Moreover, the group stated it did not have sufficient data on how many deaths or injuries would be prevented by a NMIR feature because there was no data on how fast the blade would have to stop to significantly reduce injuries, or the extent to which children would be injured by being backed over after the blade stopped. App. 472. The district court was also unpersuaded by the Berriers’ evidence of the lack of injuries caused by suitably equipped MTD mowers.

It cited evidence of four back-over accidents involving MTD mowers— which appears to contradict the Berriers’ evidence that the MTD device completely eliminated all back-over accidents. 413 F.Supp.2d at 445. The Berriers point out, however, that all of these incidents occurred when the operator disabled the NMIR device. App. 761-63. Berriers’ counsel informed the court of Simplicity’s admission of this fact during oral argument. The trial court was apparently not persuaded.

However, we believe that is a relevant consideration, particularly because this is consistent with the statement made by Gunter Plamper, MTD’s Vice President for Product Development and Safety. He testified about the effectiveness of the device as follows: The no-mow-in-reverse feature will shut off mower blades if an operator shifts into reverse without first disengaging the mower blades. This safety feature has successfully prevented back-over accidents.

Neither MTD, Cub Cadet, Yard-Man, White Out Door or MTD Yard Machines have had any reported back-over accidents on one of their riding mowers when the safety features were in place and functioning as designed. App. 581 (emphasis added). The district court believed the fact that the device could be disabled negated any safety advantage of the design. 413 F.Supp.2d at 445. The court relied in part on a study from the 1980’s that confirmed that at least 40 percent of operators disabled NMIR features on their mowers. 413 F.Supp. at 445 n. 8.

However, that statistic also means that the majority (60%) of people operating these mowers did not disable the feature. Accordingly, we believe that the record establishes that the feature could have a significant impact on reducing the risk of injury from back-over accidents. The determination of whether a product was negligently designed turns on whether “an alternative, feasible, safer design would have lessened or eliminated the injury plaintiff suffered.” Habecker v. Clark Equipment Co., 36 F.3d 278, 281 (3d Cir.1994) (quotations marks and citation omitted) (emphasis in original).

The Berriers presented evidence that the NMIR device without the override would have at least lessened the likelihood of Ashley’s injury and may have eliminated it. b. Override Device The district court dismissed the efficacy of an override device because it viewed such a device as equivalent to a design which allowed the operator to choose whether to engage the blades or not (“mow in reverse”). 413 F.Supp.2d at 446. However, the difference is significant because an override switch requires an extra step before being able to mow in reverse.

In theory, the operator can not backup without thinking; the default position disengages the blades when the mower is put into reverse. See App. 580. On those rare occasions when it is necessary to mow while backing up, the extra step reminds the operator to check behind the mower before pressing the override button. We realize that the Berriers’ expert did not provide any data to show mowers with this design had fewer back-over injuries. However, ANSI’s adoption of the requirement in 2003 certainly suggests that mowers with this design are safer.

The district court was ultimately unconvinced by Berrier’s argument. 413 F.Supp.2d at 446 (“[Tjhis Court fails to see how a “no mow in reverse device” with an override would prevent future back-over accidents... .”). However, the very fact that the ANSI standard has required NMIR devices on riding mowers since 2003 undermines the district court’s conclusion that NMIR devices do not increase safety. That is particularly true since the court relied so heavily on the CPSC’s initial refusal to require the MTD device (with no override feature).

Moreover, though the CPSC did not promulgate regulations requiring NMIR devices when Shoff s mower was manufactured, the CPSC did acknowledge that riding mowers with an NMIR feature are safer than those without one. App. 576. That, together with the Commission’s later adoption of the device with an override feature (presumably, that device addressed the Commission’s earlier concerns) supports the Berriers’ argument that an alternative design could have prevented Ashley’s injury and that Simplicity therefore had a duty to adopt it.

We therefore believe that the district court’s conclusion that an NMIR with an override feature was not a feasible and safer design is directly contradicted by the industry’s decision to promulgate standards requiring such devices and the subsequent compliance with this requirement. c. Roller Devices The district court committed a similar error in concluding that there was no genuine issue of material fact about whether roller barriers “would actually improve safety by decreasing back-over injuries.” 413 F.Supp.2d at 446.

In reaching that conclusion, the court appears to have ignored evidence that Simplicity believed so strongly in the effectiveness of roller barriers that the company requested that feature be considered as an acceptable alternative to the NMIR device requirements in the ANSI 2003 standards. App. 597-98. Moreover, Simplicity admitted that “rollers may provide some protection against accidents and injuries” in its responses to interrogatories. App. 151.

In reaching its conclusion to the contrary, the district court focused on the Berriers’ expert’s refusal to testify that the use of roller guards would make the mower “reasonably safe” in part because he lacked information “on the performance of rollers in preventing child back-over blade contact accidents.” 413 F.Supp.2d at 446. However, when discussing Ashley’s specific injury, E. Reed Smith, P.E., the Berriers’ expert, confirmed in his report that rollers are effective in pushing small children backwards and out of the way of the spinning blades. App. 553-54.

There is also evidence of a 1997 study by Reed confirming the effectiveness of the roller barrier. App. 519, 593-94. Reed’s report also further stated that if the subject mower had a set of “full-width ground-contacting rollers at the rear edge of the mower deck, given the distance Mr. Shoff backed up on the day of the accident, it is unlikely Ashley would have suffered the amputation injury she did.” Reed therefore concluded that the lack of rollers “was a cause of Ashley Berrier’s foot amputation injuries.” App. 560.

As previously noted, Simplicity makes much of the fact that Reed testified that roller blades alone would not make the mower reasonably safe. However, that is a legal conclusion. Moreover, it misstates the applicable legal standard. That standard is whether the design “would have lessened or eliminated the injury plaintiff suffered.” Habecker, 36 F.3d at 281 (citation and quotation marks omitted). Reed testified that “rollers in this particular situation would have prevented this accident.” App. 302.

The district court also appears to have ignored statements of Simplicity’s own lead designer, who stated: “we think that the potential for a full roller to offer some protection in some circumstances for — that certainly doesn’t hurt the — the propensity for blade contact and it may offer some protection.” App. 518. Another Simplicity engineer testified that the roller barrier provided back-over protection and reduced injuries. App. 593-96.

Furthermore, as previously noted, Simplicity was so confident about the effectiveness of the roller barrier that it asked the OPEI to consider the roller barrier on Simplicity products as “an acceptable barrier” in lieu of an NMIR device in the 2003 ANSI standard, which now requires back-over protection. App. 597-98. Accordingly, after viewing the evidence in the light most favorable to the Berriers, we believe that the district court erred in concluding that the social utility factor weighed against finding that Simplicity owed a duty to the Plaintiffs. 3.

Nature of the Risk and Foreseeability of Harm The third prong of the duty inquiry balances social utility of a design against the extent and foreseeability of the harm that would result in its absence. Althaus, 756 A.2d at 1170. “A duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others.” R.W. v. Manzek, 585 Pa. 335, 888 A.2d 740, 747 (2005). Here, the Berriers produced evidence that the risk of back-over blade contact injuries exists and that this risk was foreseeable when Shoff s mower was manufactured; and the district court conceded as much.

Berrier, 413 F.Supp.2d at 447. The Berriers’ expert testified that, based on studies published between 1981 and 1993, one riding mower per 5,000 to 6,000 produced is involved in a back-over blade accident at some point. Id. However, the district court concluded that this weighed only marginally in favor of finding a duty of care because the CPSC had not found the risk of injury sufficiently significant to promulgate a final regulation mandating or recommending the addition of NMIR devices. Id. The Berriers correctly point out that the district court focused on CPSC’s decision not to promulgate regulations.

However, as both parties acknowledge, that decision was based on the efficacy of mowers with NMIR devices. It was not based on the nature of the risk and foreseeability of harm. The CPSC and others realized that risk after a series of studies in the 1970’s and 80’s. App. 544-50. Those studies characterized back-over blade accidents as the most tragic type of lawnmower accidents, comprising between nine and 11 percent of reported accidents involving riding mowers. App. 721. The Berriers’ expert testified that more than 100 hospitalizations per year take place because of back-over blade contact incidents. App. 735.

Moreover, as Ashley’s tragic injury demonstrates, the injuries that do result can be quite serious. Indeed, the injuries are potentially fatal in the absence of prompt medical attention and expert treatment that may not be available everywhere riding mowers are used. The district court acknowledged the raw data in these studies but concluded that CPSC’s hesitation in promulgating NMIR requirements (despite its awareness of the studies) undermined the significance of those statistics.

In doing so, the court cited the CSPC’s statement that it lacked “sufficient information to determine how many deaths or injuries would be prevented by [a no-mow-in-reverse] feature.” 413 F.Supp.2d at 447 (quoting CPSC Letter dated July 19, 1993 (App.472)) (internal quotation marks omitted). However, CSPC’s decision was not based on the low risk of accident. Rather, the CSPC did not act because standards were already “being actively pursued by the industry,” and the CSPC concluded that “there is usually a high degree of conformance to this type of voluntary standard.” App. 577.

Simplicity maintains that CPSC’s decision not to require anti-back-over devices is consistent with the statistical infrequency of back-over accidents when Simplicity manufactured Shoffs mower. Simplicity claims its position is further strengthened by the fact that Simplicity was aware of just two back-over accidents since 1983 with the model that Shoff purchased. App. 72. We agree that such accidents were infrequent.

In fact, the Berriers themselves cite the CPSC letter to the OPEI acknowledging “accidents are infrequent.” However, the serious nature of the injuries that do result must be factored into the equation along with the frequency of occurrence. Accordingly, we believe the district court did not give adequate weight to the fact that the letter concerning adding an NMIR feature to any revised ANSI standard stated: “the population at risk and the severe mental trauma to the child’s family fully support the need to take immediate steps.” App. 548^49.

We therefore conclude that the district court failed to assign adequate weight to this factor in favor of Berriers under the

summary judgment standard. 4. Consequences of Imposing a Duty The district court acknowledged that the average cost of $9.00 per mower of incorporating a NMIR device was minimal. 413 F.Supp.2d at 448. It certainly is. The court nevertheless weighed this factor against the Berriers because they “failed to propose a feasible design alternative that would reduce the likelihood of back-over blade accidents while maintaining the social utility of the product.” Id. at 448. Thus, in the court’s view, imposing such a duty would be “superfluous.” Id.

However, for reasons we have already explained, we believe that the Berriers did offer evidence of alternative designs. The Berriers’ evidence of effective alternative designs included: (1) the experience of other manufacturers with NMIR devices, particularly the MTD experience; (2) the recent OPEI/ANSI standard requiring NMIR protection; and (3) evidence that Simplicity itself advocated roller barriers because they provide effective back-over protection.

Other Simplicity models had the barrier, and Simplicity’s former Vice President of Engineering from 1983 to 1999 testified that the roller blade offers some protection. App. 518. Given the minimal cost of adding an alternative design, and the potentially monumental financial and human cost of not doing so, this factor clearly weighs heavily in favor of a duty. 5.

Public Interest The court concluded that the public interest weighed against the existence of a duty to alter Simplicity’s design based on its belief that there was no genuine issue of material fact as to the effectiveness “of the proposed features, from rollers to an NMIR device with override,” as well as the devalued social utility of a mower with such a device and the resulting burden on Simplicity of becoming the insurer of its products. 413 F.Supp.2d at 448.

In reaching that conclusion, the court improperly conflated a cost/benefit analysis with its consideration of the public interest, as well as an analysis of the consequences of imposing the duty on Simplicity. For example, the court reasoned that imposing the duty would not only “devalue the social utility of the mower, preventing its ability to cut grass in a time-effective and efficient manner, but also would transform, Simplicity into an insurer of its products in violation of Pennsylvania law.” 413 F.Supp.2d at 448 (citing Azzarello, 391 A.2d at 1024) (emphasis added).

The court thereby incorporated its erroneous balancing of the second and fourth factors of the Althaus test and added the weight of those factors to the fifth factor. Unlike the district court’s analysis, the Pennsylvania Supreme Court’s analysis of the public interest in Phillips did not consider cost/benefit or the consequences to the manufacturer. Instead, the Court simply concluded that [t]here is a strong public interest in minimizing fires started as a result of children playing with butane lighters. Such fires have catastrophic effects on human beings as well as property.

Avoidance of them would be an unquestionable boon to society. Thus, this factor weighs in favor of finding a duty. 841 A.2d at 1010. Nevertheless, Simplicity claims that the public interest is not advanced by imposing an additional duty on the manufacturer and thereby supplanting the obligation of parental supervision. According to Simplicity, the NMIR device has an unproven ability to reduce a risk and, if required, would increase the risk to the operator, while decreasing product utility.

Simplicity does not, however, explain how the risk increases for the operator, nor does it explain why such devices became the industry standard after 2003 if it decreased the mower’s utility and increased the risk to the operator. The Berriers maintain that this is precisely the kind of situation where the public interest is served by imposing a duty of care. The marginal costs of designing a prod

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