Alternate Views on Alternative Product Requirement

In recent years, courts in Pennsylvania have been divided over whether to adopt the Third Restatement or to continue applying the Second Restatement.  Restatement 2 (Second) of Torts § 402A (1965); Restatement (Third) Torts: Prod. Liability § 2(b)).    Although federal courts have suggested that the state’s adoption of the Third Restatement is imminent, the state Supreme Court has not yet made the switch from the Second Restatement to the Third.

The Pennsylvania Supreme Court may finally adopt the Third Restatement in a recent case, Tincher v. Omega Flex.  64 A.3d 626 (Pa. 2013).  In Tincher, a house was struck by lightning, and it began to burn because of defective steel tubing.  The tubing, manufactured by Omega Flex, brought natural gas into the home.  When lightning struck, it burned a hole through the tubing and ignited the natural gas inside. Under Pennsylvania’s strict liability standard, plaintiffs successfully showed that the tubing was defective because it wasn’t thick enough to withstand a lightning strike.  Consequently, plaintiffs were able to show that the product was not safe for intended use. The jury also determined, however, that Omega Flex was not negligent in designing the tubing.  Omega Flex appealed from the finding of liability, and the Pennsylvania Supreme Court issued an order granting appeal to address the question of whether the strict liability analysis of the Second Restatement should be replaced by the Third Restatement‘s negligence analysis.

The justices heard oral arguments in Tincher on October 15, 2013, and both sides focused on the Third Restatement’s reasonable alternative product requirement.  See Supreme Court of Pennsylvania, Court Daily Argument Lists 17 MAP 2013; J-80-2013, 6 on Daily List, Supreme Court Courtroom, Pittsburg, PA (10/15/2013) available at  The Second and Third Restatements set forth different standards for evaluating whether a product contains a design defect.  The Third Restatement provides that a product is defective when the foreseeable risks of harm posed by it could have been reduced or avoided by the adoption of a reasonable alternative design.  Restatement (Third) Torts: Prod. Liability § 2(b)).  This analysis allows for the introduction of negligence principles.  Id.  The Second Restatement bars the use of risk-utility balancing and “foreseeability of use” analyses.   Restatement 2 (Second) of Torts § 402A (1965).  Negligence principles are not used in the Second Restatement analysis because the risk of loss is placed upon the supplier of the defective product, without regard to the user’s fault.  Id.  Under the reasonable alternative requirement, which appears to be the primary issue in Tincher, a plaintiff must establish that an alternative, safer design was viable when the product was manufactured.  Restatement (Third) Torts: Prod. Liability § 2(b)).  Counsel for the plaintiff in Tincher argued that this requirement would function as an “insurmountable hurdle” for plaintiffs in products liability cases.  Counsel further argued that under this requirement, plaintiffs would be forced to hire expensive experts to prove the availability of an alternative design.  In cases where plaintiffs could not afford such experts, counsel emphasized that this requirement would prevent meritorious claims from proceeding.

 The Tincher defense disagreed, arguing that there was already wide-spread use of expensive experts by plaintiffs.  The defense emphasized that adoption of the Third Restatement would simply align Pennsylvania with the thirty-five other states that have already adopted the newer Restatement.  The Second Restatement, counsel explained, focuses primarily on manufacturing defects.  In practice, however, the law has evolved to differentiate between manufacturing, design, and warning defects.  The defense argued that the Second Restatement is not equipped to handle these practical differentiations.  Counsel for the defense emphasized that adoption of the Third Restatement would lead to more clarity and predictability.

Nicolson advises that product manufacturers and suppliers prepare for the pending decision in Tincher.  If the Pennsylvania Supreme Court definitively rejects the principles of the Third Restatement, then defendant manufacturers’ removal of product liability actions to federal court will no longer lead to the possibility of more favorable law.  Federal courts will be bound by the highest state court’s clear mandate.  On the other hand, if the court does adopt the Third Restatement, courts in Pennsylvania will allow the introduction of negligence concepts, like foreseeability, into products liability litigation.  This potential change has the capacity to significantly change products liability law in Pennsylvania.  

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.