Pennsylvania Supreme Court Yet to Weigh-In on State’s Strict Liability Schism
In March of 2013 the Pennsylvania Supreme Court granted allocator of an appeal on the issue of, “Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement.” Furthermore, the parties are directed to address whether any proposed change should be applied retroactively or prospectively. Pennsylvania’s handling of negligence and strict liability actions is unique in its rigid exclusion of negligence principles from strict liability analysis. While a decision has yet to be announced, this potential reconsideration of Pennsylvania’s strict liability analysis has developed into something of a flash point in the industry as state and federal courts’ handling of the issue has conflicted.
Pennsylvania’s Supreme Court has already declined to adopt the Third Restatement twice, however the Third Restatement is often applied in the federal courts. This uncertainty in the form of analysis often results in lawyers taking a shotgun approach to litigation. While members of the defense bar typically support the replacement of the Second Restatement’s analysis, members of the plaintiff’s bar do not. However, most practioners in the state can agree that clear guidance on this unsettled issue is necessary.
How did we get here?
The traditional approach to strict liability, as taken by the Second Restatement, makes a manufacturer or retailer liable for products sold in a, “defective condition unreasonably dangerous to the user or consumer.” An unreasonably dangerous product is one that “must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Fault or culpability is not a factor in a strict liability analysis. In the 1960s, the Pennsylvania courts adopted the Second Restatement’s analysis of strict liability in an effort to bring Pennsylvania into accord with the then modern attitudes regarding tort law. However, with or by the time of the decision in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), the Pennsylvania courts had chartered their own independent course in its understanding and application of the Second Restatement’s section 402A. In short, Azzarrello de-coupled the “unreasonably dangerous” requirement from the jury’s purview in the 402A analysis on the grounds that as a strict liability action, considerations of fault or reasonableness are inappropriate. Further, the decision emphasized the bright-line distinction between application of negligence and strict liability considerations and the insulation of each analysis from the other. Some commentators have described the practical effects of this decision as requiring the defendant to essentially insure against injuries caused by the product.
The approach to strict liability that is advocated by the Third Restatement recognizes three types of product defects. These include design defects, manufacturing defects and failure to warn claims. The Third Restatement allows a jury to consider factors like whether, “the foreseeable risks of harm posed by the product could have been . . . avoided by the adoption of a reasonable alternative design” or “the provision of reasonable instructions or warnings.” Thus as part of a strict liability analysis the Third restatement has generally required considerations of reasonableness through the consumer expectations test, the risk-utility test, or a hybrid test.
Tincher v. Omega Flex, Inc.
Tincher arose after a lightning strike caused a fire in 2007 at the Tincher family home. Apparently the steel tubing known as TracPipe, that was used in the construction of the house to transport natural gas, was penetrated by the lightning strike sparking a fire in the home. The defendant had requested that the Third Restatement’s jury instructions be read to the jury, but the standard Pennsylvania instructions were instead presented. The heart of the issue in Tincher is that Omega Flex has argued that the jury decision was improper because, as per the Azzarello jury instructions, the jury was permitted to consider the conduct of the manufacturer in the negligence claim but not for the strict liability claim. Omega Flex contends that the jury did not know how to reconcile all evidence in light of questions by the jury regarding the definition of a defective product and the court’s answer to that question by reading the standard Azzarello jury instruction. Omega Flex believed that if the Third Statement was applied the jury rather then the jury would have applied the risk-utility test and found for the defendant. If the court decided to adopt Omega Flex’s arguments, the “unreasonably dangerous” question would likely move from a threshold matter determined by the court to a determination made by the jury. Such a change is likely to increase the costs of litigating thereby resulting in additional cases becoming economically non-viable and foreclosing the possibility of recovery.
What Options does the Pennsylvania Supreme Court Have?
Generally speaking, there are at least three well-defined options, and several others, that are available to the Pennsylvania Supreme Court. The court could continue and extend Pennsylvania’s historical approach to strict liability matters, adopt another state’s more mainstream approach to the Second Restatement, or adopt the Third Restatement’s approach. While the Third Circuit has announced its expectations that Pennsylvania will eventually adopt a Third Restatement approach, such pronouncements may underestimate the court’s desire to assert and persevere its independence. However, if the court does choose to abandon its unique pure strict liability approach and adopt the analysis of the Third Restatement, most observers expect Defendants to greatly benefit. The Third Restatement heightens the burden of proof by requiring the plaintiff to prove the intent of the defendant and that safer alternative existed or could have been developed. Furthermore the Third Restatement’s approach would lead to a drastic change in Pennsylvania product liability law from one where retailers and manufactures are guarantor’s of a product’s safety to one where they would find new immunity from unknown risks or hazards that are yet to be appreciated. An interesting alternative to the three clear options could employ a blended approach. That is, the Pennsylvania Supreme Court could stop short of adopting the Third restatement, but nevertheless rule that negligence principles are applicable to the analysis of design defects and improper warning defects.