PA Supreme Court Declines to Adopt Third Restatement

As the Nicolson Law Group reported in January of 2014, courts across Pennsylvania have been struggling to consistently apply substantive products liability law while waiting for a decision from the Pennsylvania Supreme Court in Tincher v. Omega-Flex, 64 A.3d 626 (Pa. 2013).  The justices heard oral arguments in Tincher on October 15, 2013, and the Court released its decision on November 19, 2014.  See Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.).  This highly anticipated opinion addressed the question of whether the Court would replace the Second Restatement with the Third Restatement.  In declining to adopt the Third Restatement, the Pennsylvania Supreme Court affirmed the Second Restatement, but overruled its 1978 ruling in Azzarello v. Black Brothers. 391 A.2d 1020 (Pa. 1978).

Although the Pennsylvania Supreme Court confirmed its adherence to the Second Restatement in Tincher, it abandoned its prior approach to applying it.  In its comprehensive, 137 page opinion, the Court created an entirely new framework within which the Second Restatement will be applied.  The Tincher opinion aims to bring clarity to an area of law that has been in disarray since the Azzarello decision.

In Azzarello, the Pennsylvania Supreme Court held that negligence principles should be completely segregated from strict liability.  This holding proved impractical in application because, as the Tincher Court explained, “the character of the product and the conduct of the manufacturer are largely inseparable.”  Tincher, No. 17 MAP 2013 at 66.

Tincher transfers authority from the Judge to the Jury.

The Azzerello court allocated decision-making responsibilities in strict liability cases between the trial court and the jury, mandating that the court would determine whether a product was unreasonably dangerous using the risk-utility test and then the jury would subsequently “resolve any dispute as to the condition of the product, as a separate question.” Tincher, No. 17 MAP 2013 at 129.

The Tincher Court explained that separating these two issues was “impracticable and inconsistent with the theory of strict liability.”  Id.  The Court overruled this Azzerello principle and stated that all questions relating to “the credibility of witnesses and testimony offered, the weight of evidence relevant to the risk-utility analysis, and whether a party has met the burden to prove the elements of the strict liability cause of action” are issues for the finder of fact.  Id. at 131.  The Court emphasized that these questions should only be removed from the jury if they relate to responsibilities that are traditionally assigned to judges in their capacity as gate-keepers- ruling on dispositive motions, for example.  

The Tincher Court emphasized that whether a product is defective depends upon whether that product is unreasonably dangerous and found that the Azzarello Court erred by separating these two inquiries. As a result of the Tincher holding, juries in products liability cases are empowered, as they will now take on a role that Azzarello had assigned to the Court.  The jury now has the ability to use the risk-utility analysis in their deliberations.  In addition, this aspect of the Tincher decision may result in an advantage for defendants, as the risk-utility determination will no longer be made by the trial court, based on plaintiff’s facts.   

Tincher changes the standard of proof for strict liability claims.

The Tincher Court also explicitly overruled the standard of proof set forth in Azzarello.  The Azzarello Court instructed the jury to find that a product was unreasonably dangerous unless the seller “provided with the product every element necessary to make it safe for use.”  Id. at 10 (quoting Azzarello jury instructions).  This standard of proof deviated from the two standards generally used in jurisdictions following the Second Restatement: the consumer expectation test and the risk-utility test.  The consumer expectation test defines a “defective condition” as a condition that is dangerous beyond the reasonable consumer’s contemplations upon normal use.   Id. at 94.  The risk-utility standard, on the other hand, finds that a product is in a defective condition if a “reasonable person” would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.  Id. at 98.

Because the Azzarello Court had mandated complete segregation between negligence and strict liability and had separated the determination of whether a product could be defective as a matter of law from the determination of whether a product was, in fact, in a defective condition, neither the risk-utility test nor the consumer expectation test could be used effectively as a standard of proof.  Post- Azzarello trial courts used the risk-utility test to determine whether the product could be found legally defective, but this was not the standard of proof provided to the jury at trial.  The consumer expectation test was discouraged under Tincher because it added elements of negligence to the determination of whether the product was defective, and it shifted the focus from manufacturer to consumer.  

The Tincher decision announced the adoption of a new standard of proof, which allows plaintiffs to pursue a strict liability claim under either the risk-utility test or the consumer expectation test.  The Tincher court explained that “[a]s discovery and case preparation proceed, and the evidentiary record evolves, the plaintiff may choose to pursue or abandon either theory, or pursue both, if the evidence so warrants.”  Id. at 130.  This new standard provides the lower courts in Pennsylvania with malleable rule of law that can be incrementally refined through its application to diverse sets of factual scenarios.

Although Tincher provides answers, it also raises many questions.

The significance of this decision as it relates to Pennsylvania products liability law cannot be understated.  Throughout the opinion, the Court indicated its reluctance to address tangential issues that the Court anticipated would be litigated in the aftermath of the decision.

The Court highlighted, for example, that the issue of whether the burden of proof should switch from the plaintiff to the defendant in a claim proceeding under the risk-utility test is likely to arise.  The Court also noted that lower courts will have to determine what evidence is relevant to the risk-utility test, including feasibility and cost of alternative designs.  

The Court concluded that “the decision to overrule Azzarello and articulate a standard of proof premised on alternative tests in relation to claims of a product defective in design may have an impact upon other foundational issues regarding manufacturing or warning claims…the availability of negligence-derived defenses, bystander compensation, and the proper application of the intended use doctrine.”  Id. at 135.  These unresolved issues provide an opportunity for substantial transformation in Pennsylvania products liability law within the next decade.

The Tincher Court concluded its opinion by remanding the case to the Superior Court, allowing the decision to apply retroactively and suggesting that the parties file supplemental post-verdict motions articulating their positions in light of the decision.  The disposition of these motions may provide further guidance on how the Tincher opinion is to be applied.    

The information herein is provided for consumer educational purposes only.  The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law.  The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case.  For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Law Group’s licensed attorneys.