Understanding the Applicability of the Risk-Utility and Consumer Expectations Test Under Tincher

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The 2014 Pennsylvania Supreme Court decision in Tincher v. Omega Flex, at the time, seemed to presage a drastic shift in Pennsylvania’s product liability and strict liability regime. The decision was expected to resolve certain problems regarding the split between negligence and strict liability causes of action.

As part of its efforts at resolving the impracticable standard that had developed under Azzarello, the decision set forth two potential grounds under which a court could assess a product defect claim. First,  the court announced its post-Tincher reliance on the consumer expectations test. Second, the court announced it post-Tincher reliance on the risk-benefit test which is sometimes referred to as a risk-utility test. The Pennsylvania Supreme court did decline to adopt the Third Restatement’s approach since the roots of these tests were set forth in the 1965 Second Restatement of Torts, Section 402A.

Individuals who have been injured by an allegedly defective product in Pennsylvania will need to navigate the state’s product liability regime. This includes understanding the differences between the two tests and when each test will apply. Working with a Philadelphia product liability lawyer can help you navigate this system and increase the likelihood that steps taken regarding gather evidence and preparing expert witnesses is sufficient and does not unnecessarily reduce your likelihood of recovery.

The Consumer Expectations Test under Tincher

Under Tincher, the definition of the consumer expectations test draws from the original definition under § 402A – Special Liability of Seller of Product for Physical Harm to User or Consumer. As defined by the Pennsylvania  Supreme court in Lewis v. Coffing Hoist Division, Duff-Norton Co., 528 A.2d 590 (Pa. 1987), “…a product may be found defective in design if it failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Citing Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978).

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Originally developed in California, under this variation of the strict liability standard, the relevant consideration is the condition of the product at the time of injury in relation to the consumer’s reasonable expectations regarding the product. Note that the language does state that the standard is based on an “ordinary” consumer. Thus, a specific individual’s hyper sensitivities or particularized pet peeves are not a relevant consideration under the consumer expectation standard.

A plaintiff must be able to prove that the danger was not justified or unknowable to the ordinary consumer. Relevant factors that should guide this determination include the nature of the product, the intended uses of the product, and implied representations made by the manufacturer or seller.

The Risk-Benefit Test under Tincher

Consumers who are injured by an unsafe or defective product may also be able to recover through the risk-utility analysis.  Once again drawing on California law, the PA Supreme Court turns to and cites the language and analysis of the California Supreme Court in Barker. Under Barker’s risk-utility approach liability can be imposed when the “…defendant fails to prove…that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.”

In certain respects, Barker took a similar approach to the application of the Wade factors in Azzarello. However, the Barker approach to these factors is generally viewed as more flexible and does not consider certain additional factors.

Under both the consumer expectations and risk-utility standards, Tincher sets forth a non-delegable strict liability duty to manufacture and sell a safe product that is free from defects and dangers. Tincher holds that “… in placing a product on the market, the manufacturer acts to design (and manufacture) the product and, along with other distributors, to sell the product, including making the product attractive for sale by making implicit representations of the product’s safety.” Thus, in modern markets, any product placed for sale are assumed to include implicit representations of safety.

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Essentially, a plaintiff must show that a reasonable person would find the potential for harm outweighed by the costs of additional precautions.

When the Consumer Expectations Test Applies in Pennsylvania

While Tincher eliminated the artificial distinction between strict liability and negligence, there were several aspects that went unaddressed by the decision. Foremost among these unresolved issues is the type of proof a plaintiff must produce under the new product liability regime. Since Tincher is, in part, based on Barker, analyzing Baker’s progeny can provide hints regarding how the regime may develop in this state.

Consider the fact that in Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994) the court raised the possibility that, under certain circumstances, one test might be more appropriate than the other. In fact, the court recognizes that the consumer expectation test “cannot be the exclusive yardstick for examining defectiveness.” The court reasons that in a situation of sufficient complexity, a consumer would not know exactly how safe a product could theoretically be made. For instance, Baker explores the issue of whether a consumer could have a reasonable opinion on fuel tank placement when moving the tank could theoretically lead to an increased risk.

Some commentators have interpreted the court’s reasoning as creating a simple/complex dichotomy. That is, products and considerations of danger that are “simple” should fall under the consumer expectations test while “complex” defects should be assessed under the risk-utility test. However, it is not immediately clear how the level of complexity would be determined nor where the line would be drawn regarding a “simple” or a “complex” product.

Thus, following the experience and problems caused by Azzarello’s mechanical rules, it is highly unlikely that PA courts will announce circumstances or scenarios where a plaintiff must use either the consumer expectations or risk-benefit approach to strict liability. While most injury victims will plead under both theories, the facts and circumstances in your particular matter are likely more amenable to one theory or the other. Working with a Pennsylvania product liability attorney who can identify this fact and allocate resources accordingly can make all the difference when litigating against the manufacturer of an allegedly defective product and their insurer.

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