While the Tincher decision clarifies some issues regarding strict liability cases, there are many issues left to be determined by future case law.
On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc. (No. 17 MAP 2013), in which it addresses the proper standard under Pennsylvania law for strict liability claims relating to allegedly defective products. Although the court declined to adopt the Restatement (Third) of Torts, it overruled its prior holding in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which created roadblocks to the introduction by defendants of the reasonableness of their actions in designing products.
Strict liability for defective products developed from the social policy determination that the cost of injuries resulting from defective products should be borne by the manufacturers of the products rather than by the injured persons. For almost 50 years, strict liability under Pennsylvania law has been governed by Section 402A of the Second Restatement of Torts, which provides that "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 the harm caused] … ."
The term "unreasonably dangerous" naturally involves a balancing between what is reasonable and what is not, which is similar to the fault-based notions encompassed by negligence claims. However, in Azzarello, the Pennsylvania Supreme Court drew a bright line between strict liability and negligence causes of action. The court refused to permit defendants to offer evidence relating to the reasonableness of their actions or to permit juries to evaluate whether a product was "unreasonably dangerous." Judges made a preliminary finding of product defect without hearing the evidence at trial. Pennsylvania juries were instructed that a manufacturer is not an insurer of its products, although it is a guarantor of the safety of its products. Unfortunately, juries were given no guidance on the meaning of the terms "insurer" and "guarantor." As a consequence, Pennsylvania developed into a plaintiff-friendly jurisdiction for strict liability claims by eliminating the plaintiff's burden of showing that a product was "unreasonably dangerous" and by refusing to allow defendants to demonstrate that the utility of its products outweighed the risks of those products.
In Tincher, the Pennsylvania Supreme Court overruled the Azzarello decision, noting that the strict liability/negligence dichotomy under Pennsylvania law was not mandated by Section 402A of the Second Restatement and had proved to be unfair and unreasonable over time, particularly in design defect cases. In its place, the court adopted an alternative standard for determining whether a product is defective under Section 402A:
The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.
In reaching this pronouncement of the law of Pennsylvania, the court specifically declined to adopt the requirement set forth in the Restatement (Third) of Torts that would require a plaintiff to demonstrate that foreseeable risks could have been reduced or avoided by use of a reasonable alternative design. The court found that the decision whether or not to adopt the Restatement (Third) of Torts properly belonged to the legislature. In a concurring and dissenting opinion, Justices Saylor and Eakin indicated that they would have adopted the Restatement (Third) of Torts' alternative design requirement. The United States Court of Appeals had predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) of Torts. This had created a divergence between the law applied in state courts and federal courts. Now, it should not matter where a case is filed.
Interestingly, the court acknowledged that the proper allocation of risk between injured plaintiffs and manufacturers in the tort system is best determined by the Legislature. However, given the Legislature's failure to enact a law establishing the parameters of a strict liability claim, the court felt compelled to act. The court has often asked the Legislature to act on various issues it deems to be better suited for social policy decision-making. Whether the Pennsylvania Legislature will take up this invitation to act is unknown.
While the Tincher decision clarifies some issues regarding strict liability cases, there are many issues left to be determined by future case law. For example, the Pennsylvania Supreme Court did not adopt or endorse specific strict liability jury instructions. They will have to be developed on a case-by-case basis given the nature of the product and the claims. Nor did the court delineate the nature or type of evidence that will be admissible by plaintiffs and defendants to prove their claims or defenses. The admissibility of evidence relating to industry standards, alternative designs and known risks will have to be determined by trial courts with little guidance from the Tincher court. Moreover, the Tincher decision primarily addressed strict liability claims in the context of design defect allegations. Little guidance was provided regarding strict liability claims asserting failure-to-warn or manufacturing defect claims.
In short, the strict liability/negligence dichotomy established by Azzarello has been overruled and replaced with alternative consumer expectation or risk-utility tests. How these tests will develop under Pennsylvania law over the coming years will be an incremental process decided by the courts, but likely will be influenced by the creativity of both the plaintiffs' and defense bar.
For Further Information
If you have any questions about this Alert, please contact Kenneth M. Argentieri, Sharon L. Caffrey, Robert L. Byer, any of the attorneys in our Products Liability and Toxic Torts Practice Group, any of the attorneys in our Appellate Practice Group or the attorney in the firm with whom you are already in contact.
- Tincher Opinion at 47, citing Miller v. Preitz, 221 A.2d 320, 334 (Pa. 1966) (Jones, J. concurring and dissenting).
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