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On the Horizon: The Continued Viability of Restatement (Second)'s Strict Liability Jurisprudence in Pennsylvania

By Alan Klein and Sharon O'Reilly
July 27, 2022
Mealey's Personal Injury Report

On the Horizon: The Continued Viability of Restatement (Second)'s Strict Liability Jurisprudence in Pennsylvania

By Alan Klein and Sharon O'Reilly
July 27, 2022
Mealey's Personal Injury Report

Read below

Almost eight years ago, the Pennsylvania Supreme Court, in a lengthy and thoughtful opinion by its Chief Justice and after reviewing the common law and how state courts had applied strict liability to cases coming before them, held that Restatement (Second) tort principles were more aligned to the state’s precedents, and the Court turned away efforts to make Pennsylvania a Restatement (Third) jurisdiction. Recently, the Court accepted an appeal from the state’s Superior Court, its intermediate appellate court of general jurisdiction, for another look at these issues as well as important evidentiary matters left undecided in its 2014 decision in Tincher v. Omega Flex. How the Court will decide these issues, and what guidance it will provide to trial courts, remain open questions. In the current appeal, the Court has an opportunity to reaffirm its earlier adherence to Restatement (Second)’s strict liability formulation and to put to rest evidentiary issues that have vexed trial judges and lawyers alike since its seminal ruling.

This article will provide another look at Tincher, as well as the appeal soon to be sub judice, and will highlight the issues that Pennsylvania’s highest court may now address. We begin, however, by first reviewing Tincher, trial and appellate court decisions following thereafter, and the pending appeal, and conclude with our thoughts on how the Court may approach these issues.

The Tincher Case and the Supreme Court’s Decision

incher involved a suit by husband and wife, the Tinchers, against Omega Flex, the manufacturer and seller of corrugated stainless steel tubing (“CSST”), which transported natural gas to a fireplace in plaintiffs’ home.[i] Plaintiffs alleged that a lightning strike near the home melted the CSST and ignited the natural gas, resulting in a fire significantly damaging the home and its contents.

Plaintiffs commenced an action against Omega Flex premised upon theories of strict liability, negligence, and breach of warranty. As to the strict liability cause of action, plaintiffs alleged a design defect in the CSST, stating that its walls were too thin to withstand the effects of lightning.

In advance of trial, Omega Flex filed a motion in limine requesting that Sections 1 and 2 of the Restatement (Third) of Torts apply to plaintiffs’ strict liability claim. Omega Flex also submitted proposed jury instructions and findings of fact consistent with the provisions of this Restatement of Torts. Plaintiffs opposed Omega Flex’s motion in limine and submitted their own proposed jury instructions and findings of fact consistent with Restatement (Second)’s §402A provisions. The trial court, declining to address the motions in limine prior to trial, charged the jury incorporating the strict liability standards of Restatement (Second). When Omega Flex’s attorneys objected, arguing that Restatement (Third) should govern, the trial court rejected the suggestion, finding that the state supreme court had not adopted its principles. The jury returned a verdict in favor of plaintiffs on their strict liability design defect claim.

Omega Flex then filed a motion for post-trial relief requesting, among other things, a new trial. Omega Flex argued that the trial court erred in denying its motion in limine and failing to instruct the jury on Restatement (Third). Omega Flex additionally filed a motion for judgment notwithstanding the verdict, alleging that the evidence introduced at trial was insufficient to prove a claim of strict liability under Restatement (Third)’s principles. The trial court denied the motions and entered judgment on the verdict. Omega Flex appealed the decision to the Superior Court, which affirmed the trial court’s rulings. Omega Flex then filed a petition for allowance of appeal to the Supreme Court of Pennsylvania. The Supreme Court granted the appeal, but limited it to the following issue: whether the Supreme Court of Pennsylvania should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement. The parties were also instructed to brief, if the Court adopted Restatement (Third)’s formulation of strict liability, whether that holding should be applied prospectively or retroactively.

After briefing and argument, the Supreme Court in its lengthy decision began its analysis by outlining the history of strict liability jurisprudence in Pennsylvania, particularly the Court’s prior decision in Azzarello, which was the governing law at the time of trial in the underlying case. Azzarello held that under the Restatement (Second), in order to prove a design defect premised on strict liability, a plaintiff must establish, among other things, that the product was at the time it was made and marketed “in a defective condition” and that it was “unreasonably dangerous.”[ii] However, the Azzarello court cautioned that negligence concepts had no place in Pennsylvania strict liability law and that the phrase “unreasonably dangerous” was per se misleading to lay jurors as it could be construed by them to incorporate negligence standards in determining product defect.[iii] As a result, the Pennsylvania Supreme Court in its Azzarello decision developed a two-step process to prove a product’s design defect in a strict liability context: first, the trial court was to determine as a threshold matter whether a product was unreasonably dangerous, and, if so, whether the strict liability claim should be submitted to the jury; and second, if the matter was submitted to the jury, the jury was then to be instructed to decide whether the product at the time of its manufacture and sale lacked any element necessary to make it safe for its intended use, i.e., whether it was defective.[iv]

In its Tincher decision, the Supreme Court acknowledged that Pennsylvania trial courts following Azzarello relied upon its two-step process in deciding product design defect cases.[v] The Court also noted that in those subsequent cases, trial judges wanting to avoid the introduction of negligence concepts into the decisional matrix prohibited the introduction of industry and governmental product standards in trials involving strict liability claims. Such evidence was found to address the reasonableness of the manufacturer’s design decisions, thereby incorporating negligence concepts into the design defect analysis. The Supreme Court likewise determined that trial judges do not possess the expertise necessary to determine if a product is “unreasonably dangerous” as a matter of law, and that juries were capable of considering and deciding strict liability issues within the framework and construct of proper jury instructions. It therefore overruled Azzarello, thus ending the bifurcation of strict liability determinations at trial. Jurors, or the trial court in bench trials, it ruled, were capable of making the necessary decisions in deciding all pertinent issues relating to a product’s claimed defect.

When addressing which strict liability standard to apply to these issues, including claims of design defect and failure to warn, the Tincher Court declined to adopt the Restatement (Third) and instead found that Restatement (Second)’s standards were more compatible with Pennsylvania common law. Formulating alternative tracks in such cases, the Court held that a product defect may be established by a plaintiff choosing one of two methodologies: the consumer expectations test or risk-utility test. Under the former, it held that a product is defective if the danger was unknown or unknowable and unacceptable to the average or ordinary consumer. Under the latter, a product is defective if the probability and seriousness of harm caused by the product during its intended use outweighs the burden or cost of eliminating the risk.

Left unaddressed and unanswered by the Tincher decision were questions involving the admissibility of industry or governmental standards relating to a product’s safety, and to what extent, and by what evidence, a plaintiff’s own conduct may be proffered by the defense as the proximate cause of the plaintiff’s claimed injury.

The Legal Landscape in Strict Liability Cases Post-Tincher

Since Tincher, Pennsylvania courts have grappled with its consequences in addressing the presentation of product defect issues to juries and confronting differing views on the admissibility of industry standards and a plaintiff’s own negligence in such cases.

Approximately two years after Tincher, the Pennsylvania Superior Court confronted the admissibility of industry and government standards in a strict liability context.[vi] In Webb, the question on appeal was whether it was error for the trial court to have given jury instructions on the Federal Motor Vehicle Safety Standards in connection with a plaintiff’s strict liability claims against the manufacturer of an automobile and car seat.[vii] In addressing this issue, the Superior Court noted that Tincher did not explicitly overrule prior Pennsylvania precedent prohibiting the use of evidence demonstrating a manufacturer’s compliance with industry standards. Adhering to these precedents, the Court found the exclusion of such evidence in a strict liability case appropriate.[viii]

The Pennsylvania Superior Court faced a similar question in Dunlap v. Fed. Signal Corp., which also involved the admissibility of industry standards evidence in a strict liability case.[ix] In a split decision, the Dunlap court, after reviewing Tincher and Webb, agreed with the reasoning in Webb that Tincher did not overrule prior Pennsylvania precedent prohibiting defendants from introducing evidence of compliance with industry standards to prove the absence of a product defect.[x] However, the dissenting opinion in Dunlap questioned whether Webb reestablished a bright-line rule on this question, suggesting instead that Webb largely left the question unanswered for a post-Tincher case to decide.[xi]

Federal Pennsylvania courts have similarly been unable provide a definitive ruling on this issue. In Mercurio v. Louisville Ladder, Inc., the United States District Court for the Middle District of Pennsylvania, in an unpublished opinion, agreed with the reasoning in Webb and Dunlap that Tincher did not explicitly overrule prior law supporting the exclusionary rule, but it also cautioned that post-Tincher it is not clear if the prohibition still applies.[xii] Therefore, the court took a middle-ground approach and concluded that while a defendant cannot initially introduce evidence of compliance with industry standards to demonstrate a product’s non-defectiveness, a plaintiff may open the door if she seeks to admit evidence relating to industry standards during direct or cross-examination.[xiii] The Court also ruled that if such evidence is admitted, then the jury must be instructed that compliance with government or industry standards is not necessarily proof of a product’s non-defectiveness.[xiv] Eight months later, the same court noted in a decision that “Pennsylvania’s new approach to design defect liability leaves open the ability to introduce negligence-based evidence like industry standards previously precluded under a strict liability analysis.”[xv] However, the United States District Court for the Eastern District of Pennsylvania held in two unpublished opinions that evidence of compliance with industry standards remains prohibited under Pennsylvania law.[xvi]

In instances in which plaintiffs proceed on both negligence and strict liability claims against a product manufacturer, however, some courts have permitted the introduction of industry standards into evidence.[xvii] Other decisions post-Tincher have seriously questioned the exclusion of such evidence.[xviii]

Can the Current Appeal Provide Answers to Tincher’s Unaddressed Questions?

Plaintiff Michael Sullivan was injured when the 6-foot-high rolling steel scaffold made and marketed by Werner Company, the defendant, failed to prevent the wooden platform on which he was working from collapsing, throwing plaintiff to the ground below.[xix] The scaffold, purchased new and requiring assembly prior to its use, was assembled by the plaintiff and a co-worker and was being used to install siding at a Bucks County elementary school. The plaintiff, having successfully used the scaffold for an initial installation of siding, rolled the unit about 8 feet to the next section of the building, relocked its wheels, and climbed back onto the platform to continue his work. As he was installing a section of siding, the platform gave way unexpectedly, resulting in his injury.

Plaintiff commenced a strict liability and negligence action against Werner alleging a design defect in the scaffold that allowed the platform to become disengaged from two spring-loaded deck pins whose purpose was to secure the platform while in use. Sullivan claimed that in normal use, the pins would disengage, and the platform’s instability was heightened by a weld protrusion in one of the steel scaffold’s corners. Sullivan also claimed that warnings supplied with the scaffold were inadequate because warning stickers were obscured by the pins and were unclear in defining when in normal use the pins were to be activated. Prior to trial, plaintiff dismissed his negligence claim and proceeded to trial solely on a strict liability theory.

 At trial, plaintiff, relying upon a risk-utility theory of product defect, offered the testimony of an expert witness providing an opinion that the scaffold was defectively designed because warnings provided by the manufacturer were obscured once the deck pins were in their proper position and by the propensity of the pins to become disengaged in normal use of the scaffold. Plaintiff was also allowed by the trial court to introduce evidence to the jury of alternative designs of other scaffold manufactures to illustrate safety features not present on Werner’s scaffold. The defendant manufacturer sought to introduce evidence of similar scaffolds available in the marketplace to demonstrate their comparability to the subject scaffold’s design; but the trial judge barred such evidence on the ground that prior precedents precluded defendant from offering evidence of its compliance with industry safety standards exemplified by those scaffolds.[xx] The defendant also sought to introduce evidence that plaintiff’s negligence in the assembly of the scaffold and in failing to heed product warnings was the proximate cause of the accident; but the trial judge disallowed such evidence, finding it inappropriate in a strict liability action.

A jury returned a verdict for plaintiff of $2.5 million, from which an appeal was taken by the scaffold manufacturer, Werner, to the Pennsylvania Superior Court, which affirmed the verdict and the trial court’s evidentiary rulings. The Pennsylvania Supreme Court has now agreed to hear the appeal, and its decision is expected in the months to come.

Sullivan in the Superior Court

Writing for a unanimous panel, Superior Court Senior Judge Dan Pellegrini held that pursuant to Tincher as well as earlier and subsequent case authority, evidence of other scaffolds of a similar design was inadmissible.[xxi] Recognizing that Tincher did not decide this precise issue, leaving it for another day as case law evolved, the Superior Court concluded that the introduction into evidence of government or industry standards improperly injects into a strict liability case concepts relating to negligence and a manufacturer’s reasonableness in its design choices. That some federal trial courts have reached a contrary conclusion on this issue was deemed unpersuasive in the face of other federal court decisions and Pennsylvania precedents, including decisions both prior and subsequent to Tincher, disallowing the use of such evidence. As the Superior Court concluded, “… a product can be designed and manufactured with ‘all possible care’ but still be defective. Manufacturer liability then depends on the product’s dangers, not on the reasonableness of the manufacturer’s conduct in designing or manufacturing the product.”

On the issue of plaintiff’s conduct, the Superior Court framed this as “to what extent a plaintiff’s ordinary negligence can be asserted as a defense in a strict products liability action.” Recognizing that, in a strict liability context, there may be exceptions permitting the admission into evidence of a plaintiff’s own conduct, those exceptions were inapplicable here. Absent in the trial court record, as the Court concluded, was any evidence that Sullivan assumed a known or foreseeable risk in his assembly and use of the scaffold, or that he had misused the scaffold beyond its intended purposes, or that he had engaged in reckless conduct. In the absence of such evidence, defendant’s effort to introduce ordinary negligence as a proximate cause of plaintiff’s accident was held to be improper. As the Superior Court found, Werner’s claim that plaintiff failed to properly assemble the scaffold, including the deck pins and platform, and alleged neglect in heeding or understanding warnings “did not preclude the possibility that a product defect contributed to the accident.”[xxii]

How Do Other Jurisdictions Address These Issues?

Certain states adopting Restatement (Second) have permitted the introduction of industry standards in strict liability cases involving a product’s defective design. For example, the Arizona Court of Appeal held in Hohlenkamp v. Rheem Mfg. Co., that a trial court did not err in permitting evidence of compliance with industry standards because the evidence was relevant in determining whether the product was unreasonably dangerous.[xxiii] The court cautioned, however, that such evidence was not conclusive on this issue.[xxiv] Other Arizona state and federal courts have generally followed suit.[xxv]

Similarly, Illinois, Colorado, and New York have permitted the introduction of industry standards in strict liability products cases while noting that such evidence is not conclusive.[xxvi] On the other hand, some states, such as Ohio, continue to prohibit the introduction of evidence of industry standards in a strict liability design defect case.[xxvii]

As to the admissibility of a plaintiff’s ordinary negligence as a defense in a strict liability products case, North Dakota, Illinois, Colorado, and Oregon have all prohibited such evidence, with few exceptions such as a plaintiff’s assumption of the risk.[xxviii]

What’s Ahead for Tincher and Its Progeny?

The current appeal provides the Pennsylvania Supreme Court with an opportunity to revisit its Tincher decision to address issues remaining unresolved, and to clarify the permissible evidentiary boundaries for litigants asserting and defending against claims of a product defect in strict liability. We doubt the Court will abandon its adherence to Restatement (Second)’s §402A standards, but it may well address the incongruities attending the admission of a plaintiff’s alternative design evidence while barring a defendant from presenting evidence of designs comparable to its product. As the keystone legal issue in a strict liability design defect case is whether the product at issue contained any feature rendering it unsafe for its intended use, having juries consider both sides of this proverbial coin, with appropriate limiting instructions from the trial court on the proper application of this evidence, would appear to be a fair accommodation to all parties.

Likewise, the current appeal allows an occasion for the Court to articulate the circumstances in a strict liability products case when a plaintiff’s own conduct may or may not be considered by the fact-finder as the proximate cause of his or her injury.


[i] Tincher v. Omega Flex, Inc., 104 A.3d 328, 335 (2014).

[ii] Azzarello v. Black Bros. Co., 391 A.2d 1020, 1024 (1978), overruled by Tincher v. Omega Flex, Inc., 628 Pa. 296, 104 A.3d 328 (2014).

[iii] See id. at 1027.

[iv] See id.

[v] Tincher, 104 A.3d at 367-68.

[vi] Webb v. Volvo Cars of N. Am., LLC, 148 A.3d 473, 483 (2016).

[vii] Id.

[viii] Id. (“We believe the continued vitality of the prohibition on government and industry standards evidence is a question best addressed in a post-Tincher case.”)

[ix] 194 A.3d 1067, 1073 (2018).

[x] See id.

[xi] See id. at 1074.

[xii] No. 3:16-CV-412, 2019 WL 1657325, at *7 (M.D. Pa. Apr. 17, 2019).

[xiii] See id.

[xiv] See id; see also Palmer v. Black & Decker (U.S.) Inc., No. 3:20-CV-1084, 2022 WL 1813848, at *9 (M.D. Pa. June 2, 2022).

[xv] Amig v. Cnty. of Juniata, 432 F. Supp. 3d 481, 489 (M.D. Pa. 2020).

[xvi] See Fassett v. Sears Holdings Corp., No. 4:15-CV-00941, 2020 WL 13303514, at *2 (M.D. Pa. Mar. 6, 2020) (“Plaintiffs advance a negligence claim. Evidence of industry standards is clearly relevant to that claim. I note, however, that such evidence would not be admissible solely to prove Plaintiffs’ strict-liability claims.”); Malcolm v. Regal Ideas, Inc., No. CV 19-239, 2021 WL 3006653, at *6-7 (E.D. Pa. July 15, 2021) (holding that evidence of industry standards is precluded from strict liability claims while stating, “Since Tincher, Pennsylvania courts have travelled a ‘long and winding road’ on whether and to what extent Tincher modified Azzarello’s rule that evidence of industry standards improperly injects notions of negligence into strict liability actions.”)

[xvii] See, e.g., Cloud v. Electrolux Home Prod., Inc., No. CV 15-00571, 2017 WL 3835602, at *1-2 (E.D. Pa. Jan. 26, 2017); Vitale v. Electrolux Home Prod., Inc., No. 15-CV-01815-RAL, 2018 WL 3868671, at *2-3 (E.D. Pa. Aug. 14, 2018).

[xviii] See, e.g., Rapchak v. Haldex Brake Prod. Corp., No. 2:13-CV-1307, 2016 WL 3752908, at *3 (W.D. Pa. July 14, 2016) (“[T]he principles of Tincher counsel in favor of [evidence of compliance with industry standards] admissibility.”)

[xix] Sullivan v. Werner Co., 253 A.3d 730, 734 (2021), reargument denied (June 23, 2021), appeal granted, No. 324 EAL 2021, 2022 WL 2062309 (Pa. June 8, 2022).

[xx] The trial court record, however, reflects the introduction of such evidence through the cross-examination of plaintiff’s expert witness, who conceded when questioned by defense counsel that other scaffolds in the marketplace utilized designs similar to the scaffold at issue.

[xxi] Sullivan, 253 A.3d at 748.

[xxii] Id. at 750.

[xxiii] 655 P.2d 32, 36 (Ct. App. 1982).

[xxiv] See id.

[xxv] See Boy v. I.T.T. Grinnell Corp., 724 P.2d 612, 621 (Ct. App. 1986); Thompson v. Polaris Indus. Inc., No. CV-16-02868-PHX-DJH, 2019 WL 2173965, at *6 (D. Ariz. May 17, 2019) (“Voluntary industry standards may be admissible because these standards may constitute substantive evidence on the strict liability issue of whether a product is in a defective condition unreasonably dangerous to the user.”); but see Walton v. Bridgestone/Firestone, Inc., No. CV-05-3027-PHX-ROS, 2009 WL 2778441, at *4 (D. Ariz. Jan. 16, 2009) (“This case is distinguishable [from Hohlenkamp], as its holding specifically applies to industry standards and does not address government standards, which are generally more detailed, thorough and reliable” but disallowing evidence of government standards because defendants had not shown their relevance.)

[xxvi] See Moehle v. Chrysler Motors Corp., 443 N.E.2d 575, 578 (1982) (permitting government standards evidence); Dugan by Dugan v. Sears, Roebuck & Co., 454 N.E.2d 64, 68 (1983) (allowing evidence of industry standards and citing Moehle); Gillespie v. Edmier, 136 N.E.3d 1029, 1040, aff’d, 182 N.E.3d 54 (holding evidence of compliance with industry standards is admissible in strict liability design defect case); Union Supply Co. v. Pust, 583 P.2d 276, 286 (1978) (permitting industry standards evidence in strict liability design defect case on issue of whether “the [product] was in a ‘defective condition unreasonably dangerous.’”); Ross v. Alexander Mitchell & Son, Inc., 138 A.D.3d 1425, 1426 (2016); Del Cid v. Beloit Corp., 901 F. Supp. 539, 545 (E.D.N.Y. 1995), aff’d, 101 F.3d 1393 (2d Cir. 1996) (“To determine whether the [product] presented an unreasonable risk of harm to [Plaintiff], it is helpful to examine the industry safety standards applicable to the design and manufacture of such machines.”)

[xxvii] Mitchell v. Hyster Co., No. C-880626, 1990 WL 4265, at *2 (Ohio Ct. App. Jan. 24, 1990).

[xxviii] See Butz v. Werner, 438 N.W.2d 509, 514 (N.D. 1989); Simpson v. Gen. Motors Corp., 455 N.E.2d 137, 140 (1983), aff’d, 483 N.E.2d 1 (1985); Sandford v. Chevrolet Div. of Gen. Motors, 629 P.2d 407, 410 (1981), aff’d, 642 P.2d 624 (1982) (“The trial court erred in allowing the jury to compare plaintiff’s ordinary negligence with defendants’ strict liability.”); Jackson v. Harsco Corp., 673 P.2d 363, 366 (Colo. 1983).