The PA Supreme Court recently shifted the world of products liability with its opinion in Tincher v. Omega Flex, Inc. While scholars and attorneys continue to dissect the 137 page opinion, “what can be said immediately about this landmark decision is this: (1) the Court has not adopted the Third Restatement (although the Third Restatement is extensively discussed); (2) Azzarello v. Black Brothers Company (Pa 1978), which created Pennsylvania’s idiosyncratic version of Section 402A of the Second Restatement, has been overruled. BUT (3) there are many stated variables and contingencies that will have to be carefully evaluated and clearly will have significant consequences in pending and yet to be filed cases in Pennsylvania state and federal courts.” Philadelphia Association of Defense Counsel member Bill Ricci.
The new strict products liability analysis announced by the Court:
… we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.
Previously under Azzarello, the trial court resolved questions relating to the risks and utilities of a product. Juries only determined whether the product was “provided with every element necessary to make it safe for its intended use.” Now, the jury will also make decisions regarding consumer expectations and risk-utility, along with whether a defect existed. A shift that is sure to have a significant impact on both pending and future product liability cases in Pennsylvania.
Click here to see the Court’s 4-2 majority opinion and stay tuned for additional information as the decision is further analyzed.