The New Product Liability Paradigm In Pennsylvania: The PA Supreme Court Declines To Adopt The Third Restatement, But Overrules Precedent Prohibiting Consideration Of Negligence Principles In Strict Liability Cases

The Pennsylvania Supreme Court this past week dramatically altered the landscape of product liability litigation in Pennsylvania. In Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. November 19, 2014), the Court overruled long-standing precedent that stringently segregated negligence concepts from strict liability claims, and finally settled the question of whether Pennsylvania would move to the Third Restatement.

Background

Section 402A of the Restatement (Second) of Torts (which was adopted in Pennsylvania in 1966) imposes liability on one who sells a product in a "defective condition unreasonably dangerous to the user or consumer ..." In Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), the Pennsylvania Supreme Court concluded that the phrase "unreasonably dangerous" has no "independent significance" and merely explains the term "defective." The Court thus held that a plaintiff need not prove negligence in strict liability claims. The Court further concluded that whether a product was in a "defective condition unreasonably dangerous" was a decision for the trial judge alone, and not the jury. Subsequent decisions reinforced Azzarello's prohibition on considering negligence principles in strict liability claims and excluded evidence relating to negligence concepts.

In 1998, the American Law Institute introduced the Restatement (Third) of Torts: Product Liability, which sought to improve upon the concepts articulated in the Second Restatement. In addition, whereas the Second Restatement was designed to address manufacturing defects only, the Third Restatement provided guidance for design defect and failure to warn claims as well. Until this week, the Pennsylvania Supreme Court had not addressed the potential adoption of the Third Restatement in Pennsylvania, although several Justices individually indicated support for such a move. Over the past ten years, federal and state courts in Pennsylvania have tried to predict whether the Pennsylvania Supreme Court would adopt the analysis set forth in the Third Restatement, and have reached inconsistent results. As a result of these different conclusions, parties were left to guess which Restatement applied in any given case.

The Tincher case

When lightning struck near the Tinchers' home, steel tubing carrying natural gas to a fireplace was punctured, igniting the gas and causing a fire that resulted in significant damage to the Tinchers' home. The Tinchers sued Omega Flex, the manufacturer of the tubing, on a "design defect" theory and...