The Restatement Riddle Continues

As the Nicolson Law Group has previously reported, courts across Pennsylvania are struggling to consistently apply substantive law in products liability actions while waiting for a decision from the Pennsylvania Supreme Court in Tincher v. Omega-Flex, 64 A.3d 626 (Pa. 2013).

Courts in Pennsylvania have been divided over whether to adopt the Restatement (Third) or to continue applying the Restatement (Second) for over two years.  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 adopt the Third Restatement in Tincher v. Omega Flex. 64 A.3d 626 (Pa. 2013).  In March of 2013, the Court issued an order granting appeal in this case to address the question of whether the strict liability analysis of the Second Restatement should be replaced by the Third Restatement‘s negligence analysis.  Id.  The justices heard oral arguments in Tincher on October 15, 2013, and a decision is pending.  Id.

In the meantime, individual federal judges have been predicting which Restatement the Pennsylvania Supreme Court will choose.  In the most recent decision, Judge Cathy Bissoon of the United States District Court for the Western District of Pennsylvania applied the Restatement (Third) in Morris v. Phoenix Installation & Management Co., 2013 U.S. Dist. LEXIS 181018 (W.D. Pa. Dec. 30, 2013 Bissoon, J).  In this case, Plaintiff's ankle was crushed during a conveyor belt accident.  Id. 

Plaintiff was performing maintenance on a conveyor line, when the conveyor started moving and his ankle was crushed.  Id.  Plaintiff claimed that he pressed two buttons prior to performing his work on the line.  Id.  He thought that the buttons would stop the conveyor line until the maintenance was complete.  Id.  Plaintiff asserts that because the hold button did not function properly, the conveyor was defectively designed.  Id.  Plaintiff brought suit against defendant Phoenix Installation and Management Company (“Phoenix”) who sold and installed the machinery.  Id.  Phoenix filed a motion for summary judgment.  Id. 

The Court rejected Phoenix's motion in its entirety.  Id.  In its motion, Phoenix had based its defense on the Restatement (Second), following Gilmore v. Ford Motor Co., No. 2-12-CV-00547 (W.D.Pa. 2013 Schwab, J.)(applying Restatement (Second)).  Id.  The court rejected Phoenix’s arguments, stating that the Restatement (Third) must be applied to the products action.  Id.  The Court also rejected Phoenix's assumption of the risk argument, stating that it is unclear whether the doctrine applies under the Restatement Third.  Id. 

In 2012, the United States Third Circuit Court of Appeals suggested that the Restatement (Third) was the proper standard for Pennsylvania products liability cases despite Pennsylvania Supreme Court decisions stating otherwise in a footnote in Sikkelee v. Precision Automotive, 2012 U.S. App. LEXIS 22185, n. 1 (3d Cir. 2012).  Since that holding, the United States Federal Court for the Western District of Pennsylvania has applied both Restatements.  See Morris v. Phoenix Installation & Management Co., 2013 U.S. Dist. LEXIS 181018 (W.D. Pa. Dec. 30, 2013 Bissoon, J) (applying Restatement (Third)) cf. Gilmore v. Ford Motor Co., No. 2-12-CV-00547 (W.D.Pa. 2013 Schwab, J.)(applying Restatement (Second)).

As federal and state courts applying Pennsylvania law wait for the pending decision in Tincher, judges will continue to predict which Restatement the Pennsylvania Supreme Court will apply.  Parties litigating in federal courts must be prepared to argue their case theories under either Restatement, as choosing which Restatement to apply has become an issue of interpretation for each individual Judge.  Please contact the attorneys at Nicolson Law Group for further information, questions and comments about this article.

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.