Insurance Coverage and Bad Faith
The State of Products Liability in Pennsylvania after Tincher – Part One
The Pennsylvania Supreme Court has, after decades of only tangentially addressing clear issues with the state products liability law in the Commonwealth, at last spoken. Since the Pennsylvania Supreme Court issued Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1979) thirty-five years ago, Pennsylvania has been one of the most plaintiff-friendly jurisdictions for product liability claims. Azzarello adopted a unique version of the Restatement (Second) of Torts § 402A, which effectively took as hard-line of a strict liability stance as is conceivable under the Second Restatement.
Since 2009, there has been an uncomfortable tension in Pennsylvania products liability jurisprudence. Pennsylvania state courts, following the Pennsylvania Supreme Court in Azzarello, have applied the peculiar version of § 402A. Federal courts in the Third Circuit have applied the Restatement (Third) of Torts §§ 1-7, following Berrier v. Simplicity Mfg., 563 F.3d 83 (3d Cir. 2009). This discrepancy created an odd and problematic dynamic, wherein plaintiffs preferred the 402A world of Pennsylvania state courts and defendants moved heaven and earth to remove a case to the more defendant-friendly federal courts.
In Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court finally spoke. Although the Court declined to adopt the Third Restatement, as predicted by the Third Circuit, the Court did disavow Azzarello as unworkable and sought to establish a more pragmatic and equitable framework for the disposition of product liability claims.
The Tincher Court took great pains to trace the entire history of product liability law in Pennsylvania – from the early common law roots of the cause of action through its modern application. Ultimately, it is important for any manufacturer distributing products in Pennsylvania to understand the frankly bizarre framework established by Azzarello and the revised scheme adopted by Tincher.
In Azzarello, the Pennsylvania Supreme Court “addressed two related and important questions: whether a determination as to the risk of loss in a strict liability case is a decision for the judge or the jury, and whether the words ‘unreasonably dangerous’ have any place in the strict liability jury instruction.” Tincher, 104 A.3d at 366. The Azzarello Court focused on stanching the seepage of negligence theories of liability into the world of strict liability. As the Tincher Court noted, this hard-line stance wasn’t entirely correct in the first instance. Id. at 376. Still, the Azzarello Court “concluded that the best means to implement the principles of the Second Restatement was to direct: (1) that the phrases ‘defective condition’ and ‘unreasonably dangerous,’ which predict whether recovery would be justified, are issues of law and policy entrusted solely for decision to the trial court; and (2) that the inquiry into whether a plaintiff has proven the factual allegations in the complaint is a question for the jury.” Id. at 367.
The Azzarello Court made this problematic separation because it “concluded that negligence-related rhetoric saddles a plaintiff in a strict liability case with an additional and unwarranted burden of proof in every case.” Id. at 377. In other words, the Azzarello Court feared that introducing terms like “unreasonably dangerous” to the jury would require the plaintiff to prove something beyond a simple design defect – it would require the plaintiff also to show that the defect was unwarranted or that, for instance, there was a better design available without additional cost.
As the Tincher Court concedes, the very real problem with the division of judicial labor articulated in Azzarello is that it effectively gives a jury a rubber stamp if the case is presented to it. All the jury can review is whether the factual allegations made in the complaint were proven. Any inquiry into the product itself – and any consideration of the more difficult questions regarding alternative design, risk versus utility, consumer expectations, etc. – are foreclosed from the ultimate fact finder.
Not long after the Third Restatement was issued, the Third Circuit took the opportunity to predict that Pennsylvania would move away from the Azzarello framework and adopt the Third Restatement’s more pragmatic approach. Berrier, supra. As is not uncommon, the Pennsylvania Supreme Court decided not to act as predicted by their federal brethren. Instead, the Court rejected Azzarello and articulated a new architecture for product liability claims in the Commonwealth, still under the broad guidance of the Second Restatement.
Specifically, the Tincher Court held that “the cause of action in strict products liability [for a design defect] requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of the product.” Tincher, at 401. What that means, in plain English, is that the plaintiff in a strict liability case must prove one of the following:
- The Consumer Expectations Standard. “The consumer expectations test defines a ‘defective condition’ as a condition, upon normal use, dangerous beyond the reasonable consumer’s contemplation.” Id. at 386. That is, “[t]he product is not defective if the ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk of injury of which the plaintiff complains.” Id.
- The Risk-Utility Standard. “[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 cost of taking precautions.” Id. at 389. “Stated otherwise, a seller’s precautions to advert [sic] the danger should anticipate and reflect the type and magnitude of the risk posed by the sale and use of the product.” Id.
Here, the Tincher Court aims to recalibrate the burden of proof in Pennsylvania product liability cases. Although the court declined to adopt the Third Restatement – which goes farther along these lines – the Court reigned in the incredibly plaintiff-friendly burden of proof articulated in Azzarello and provides a window for manufacturers to require plaintiffs to establish not only that a product caused an injury, but that it did so in violation of the consumer expectation test or the risk-utility test. This is a gigantic step forward for the defense bar in products liability.
*Three further blog posts will follow more carefully examining aspects of the Tincher opinion. When these are posted, links to each will be added to this post.
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Alan S. Miller - Practice Chair
Alan has more than thirty-eight years of experience in complex litigation and counseling, concentrating in the areas of environmental law, insurance coverage and bad faith, and commercial litigation. He chairs the firm’s Environmental and Energy Law practice and the Insurance Coverage and Bad Faith Litigation Practice.
Alan’s environmental law practice has involved counseling, litigation and alternative dispute resolution of matters involving municipal, residual, and hazardous waste permitting and compliance, contribution and cost recovery actions under CERCLA and related state statutes, claims for natural resource damages, contamination from leaking underground storage tanks, air and water pollution regulatory permitting and enforcement actions, oil and gas drilling compliance and transactions, and real estate transactions involving contaminated and recycled industrial sites.