Pennsylvania has long been a jurisdiction which followed unique, sometimes archaic, rules regarding strict product liability. The state Supreme Court recently issued a significant ruling on product liability law in the Commonwealth, perhaps not surprisingly forging its own path going forward. See Tincher et al. v. Omega Flex Inc., No.17 MAP 2013 (Pa. 11/19/14). Disclosure: your humble blogger assisted in one of the amicus briefs.
The decision came in a complex 130 page opinion; in sum, the opinion gives both plaintiff and defendants some of what they sought, and neither side of the bar all. The Court offered a lengthy survey of the history of tort law in Pennsylvania, as a foundation for its key holdings:
1. declined to adopt the Third Restatement treatment of product defect, opting to maintain a strict liability doctrine rooted in the now half-century old Second Restatement, with a nod to incremental future changes in the common law model. There was clearly a process-based component to the reasoning, as the Chief Justice noted: “It is difficult to imagine a modern court simply adopting something so broad-based and legislative in character as an outside organization’s Restatement of the Law, even if it is the product of an esteemed organization.”
2. unanimously (believe it or not) overruled the infamous Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), case and its unfair and unworkable attempts to distinguish between strict liability and negligence.
In the underlying case, the defendant was hit with a $1 million jury verdict in connection with allegation about defective steel tubing. According to the plaintiffs, the product had been affected by a lightning strike, and caused their house to burn down.
The defendant’s appeal argued in part for the adoption of the Third Restatement, under which a plaintiff alleging a design defect must show that the manufacturer could and should have adopted a reasonable alternative design. Of course, that makes compete sense. Other tests of defect (such as consumer expectations) are amorphous and often unworkable. And Pennsylvania’s traditional standard is so pro-plaintiff as to make a manufacturer the virtual insurer of its products — which the Second Restatement rejects. That is why two justices wrote in support of the adoption of the Third Restatement.
But all six justices ruling on the case agreed to reject the Azzarello decision, which in practice had juries ruling on the defectiveness of products without any consideration of their risks and utilities. So, in essence, Pennsylvania juries received no guidance on when the product is “safe for its intended use.” New jury instructions will replace the Azzarello question which asked whether the product lacked any element necessary to make it safe. New jury instructions should be fashioned to be applicable to a particular case. A plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defect 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 trial court may choose its own wording as long as the jury charge properly explains the meaning of defective condition. The court thus referenced a two prong standard that allows liability under either consumer expectation or risk-utility tests for defect. Neither is perfect, and neither will be universally applicable, so plaintiff’s choice of a preferred test can be challenged by defense motion practice. The Court recognized, for example, that the consumer expectation test fails at both ends of the spectrum, on obvious dangers and on complex products with dangers that are vague or outside the ordinary consumer’s contemplation. The Court left for another day the issues regarding manufacturing and warning claims and the interplay with affirmative defenses, and the intended use doctrine.
The overturned precedent also impacted the evidence that was admissible when,as often happened, plaintiffs dropped their negligence count before trial. Going forward, the admissibility of the evidence — even if it arguably implicates negligence concepts — will be decided by trial judges on an incremental basis. Rejection of Azzarello will also mean that judges will no longer do the preliminary risk-utility calculus for the challenged product. Removing risk-utility balancing from the jury turned out to be problematic, as separating risk-utility from the condition of the product is incompatible with basic principles of strict liability. Risk-utility thus is properly a jury question.