November 25, 2014
On November 19, 2014, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex, Inc., in which it was asked to decide whether Pennsylvania should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis set out in the Third Restatement.
The Pennsylvania Supreme Court declined to “adopt” the Third Restatement, but did overrule the existing law on strict liability as set out in Azzarello v. Black Brothers Company, holding:
- This Court’s decision in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978) is hereby overruled.
- Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that 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 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.
- Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.
- To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et. seq., albeit application of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azarello paradigm.
The Court decided that in Pennsylvania, a plaintiff may proceed under a “consumer expectations” theory, a “risk-utility” theory, or both. In addition, the trial judge will no longer be called upon to perform an initial risk-utility analysis before sending the case to the jury as had been the requirement under Azzarello.