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The state of product liability law in Pennsylvania post Tincher v. Omegaflex

By Christopher P. Lagay

Product liability litigation in Pennsylvania was significantly altered by the Supreme Court’s 2014 ruling in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014),  which overruled Azzarello v. Black Brothers Company, 480 Pa. 547 (1978), and returned to fact finders the responsibility to determine if a product was unreasonably dangerous, based on a full evaluation of the proofs offered by the plaintiff.

In Tincher, the plaintiffs suffered fire damage after a lightning strike ruptured the corrugated stainless steel tubing that carried natural gas to the fireplace.  Omega Flex, Inc., manufactured and sold the tubing used in the Tincher home.  In January, 2008, the Tinchers filed suit in Chester Co., Pennsylvania, alleging strict liability, negligence, and breach of warranty. The plaintiff’s strict liability claim was premised on Section 402A of the Restatement (2d) of Torts 1. While Omega Flex, Inc., argued for application of principles set forth in the Restatement (3d) of Torts, the trial court declined, as the Supreme Court had not yet adopted the 3d Restatement. The jury found for the plaintiffs and after the denial of Omega Flex’s post-trial motions, Omega Flex appealed to the Superior Court.

In September 2012, the Superior Court affirmed the judgment of the lower Court, finding that the trial court did not err in refusing to adopt, and instruct the jury on, the 3d Restatement.  Omega Flex filed a petition for allowance of appeal, limited to whether the Court should replace the strict liability analysis of section 402A of the 2d Restatement with the analysis of the 3d Restatement. 

The Supreme Court reviewed the development of strict liability principles in Pennsylvania, noting how the legal framework of strict liability litigation had changed over the years, from the adoption of the principles of the 2d Restatement in Webb v. Zern, 422 Pa. 424 (1966), through the exclusion of negligence principles in strict liability actions enunciated in Berkbile v. Brantly Helicopter Corp., 462 Pa. 83 (1975).   It explored the holding in Azzarello v. Black Brothers Company, 480 Pa. 547 (1978), which concluded that the phrases “unreasonably dangerous” and “defective condition” were meant to predict whether recovery would be justified with respect to allegations regarding a particular product, and left those threshold determinations for the Court alone, as questions of law.  Only after a Judge had determined the product to be unreasonably dangerous would the case be permitted to go forward for the plaintiff to establish that there was a defect in the manufacture or design of a product, and that such defect was a proximate cause of the plaintiff’s injuries. 

Essentially, the controlling question in strict liability cases after Azzarello was whether the product left the supplier’s control lacking any element necessary to make it safe for its intended use, or possessing any feature that made it unsafe for the intended user.  

In 1998, the American Law Institute proposed a new Restatement of Law related to products liability (Restatement (3d) of Torts: Products Liability §§ 1-8 (1998).   In Justice Saylor’s concurring opinion to the Supreme Court’s reinstatement of the trial court’s grant of summary judgment to defendant in Phillips v. Cricket Lighters, 576 Pa. 644 (2003), several justices noted that Pennsylvania’s application of the 2d Restatement, subsequent to the Azzarello decision, had been tempered by a negligence based concept of defect, and recognized a role for risk-utility balancing, derived from negligence theory.   The concurrence noted that Courts had implemented Azzarello by assigning to the Judge the risk-utility balancing, and provided juries with minimal jury instructions devoid of any negligence terminology.

In announcing the opinion of the Court in Tincher, the Court recognized that reconsideration of the holding in Azzarello was necessary and appropriate, and to the extent that the pronouncement in Azzarello were in tension with the Court’s opinion, Azzarello was overruled. The Tincher Court noted that decisional law in Pennsylvania strict liability cases had too stringently excised negligence concepts from jury instructions.  Recognizing that overruling Azzarello left a gap in strict liability litigation, the Tincher Court explained, in details, the fundamental underpinnings of a strict liability action going forward. 

The Court noted that a manufacturer or supplier of products has a duty to make and/or market the product (which is expected to and does reach the user or consumer without substantial change in the condition in which it is sold) free from a defective condition unreasonably dangerous to the consumer or the consumer’s property.   To demonstrate a breach of that duty, the plaintiff must prove that a supplier placed the product on the market in a defective condition.  Two standards were articulated against which a plaintiff can prove the product’s defect: the consumer expectations standard, which is based more upon the reasonable user’s perspective, and the risk and utility standard, which is based more from a seller’s perspective.  A plaintiff can chose to pursue his case utilizing one or both standards. 

According to the consumer expectations standard, “a product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer”  Tincher, 628 Pa. at 394.   The product is not defective if the ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk of injury.  The nature of the product, the identity of the user, the product’s intended use and intended user, and any express or implied representations by a manufacturer or other seller are among considerations relevant to assessing the reasonable consumer’s expectations.  Id., at 394-395.  The risk-utility standard tells one that a product is defective if a reasonable person would conclude that the probability and seriousness of harm caused by a product outweigh the burden or costs of taking precautions.  Id., at 397. 

The Tincher Court declined to adopt the 3d Restatement of Torts: Products Liability. Going forward, however, when a plaintiff proceeds on a risk-utility theory, proof of the risks and utilities of the product are for the plaintiff to establish to the satisfaction of the jury, who are free to evaluate witness credibility and weigh the evidence introduced.  Under Azzarello, this determination had been made, as a threshold matter, by the trial Court, often, it was argued, without the benefit of the proofs now required to be presented to the jury.   

1 § 402A Special Liability of Seller of Product for Physical Harm to User or Consumer

  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
    1. the seller is engaged in the business of selling such a product, and
    2. 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
    1. the seller has exercised all possible care in the preparation and sale of his product, and
    2. the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Restatement (2d) of Torts, §402A (1965).

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