On November 19, 2014, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex, Inc., No. 7 MAP 2013, a case closely followed by the Product Liability Bar in Pennsylvania. The Supreme Court’s decision was expected by many to resolve a lingering conflict in Pennsylvania product liability law. Of my many posts concerning the court’s decision, most have not addressed the net effect this decision will have on how product liability cases are litigated in Pennsylvania in the future, mostly because the Tincher decision gives precious little insight in this regard.

Tincher arose out of a residential fire that began when lightning struck the property. The Tinchers claimed that the corrugated stainless steel tubing (CSST), which was part of the home’s gas supply system, was designed defectively and the source of the fire. The plaintiffs and their subrogating insurer brought claims sounding in negligence and strict liability against Omega Flex Inc., the manufacturer of the CSST, in the Court of Common Pleas of Chester County, PA. Both claims centered on the plaintiff’s main allegation that the flexible CSST lacked sufficient thickness.

Prior to closing arguments in the trial, Omega Flex requested that the jury be charged in accordance with the Restatement (Third) of Torts, which would have required the Tinchers to prove the existence of a safer alternative design to prevail on their strict liability claim. However, the court declined, instead instructing the jury under the Restatement (Second) of Torts, section 402(a) that it could determine the CSST was defective if it was unsafe for its intended purpose. The court also rejected Omega Flex’s request under Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), for a ruling that the CSST was not defective as a matter of law. After deliberation, the jury rejected plaintiffs’ negligence claim, but found in their favor on the strict liability allegations.

An Appeal with “Legs”

Omega Flex appealed the judgment to the Pennsylvania Superior Court, arguing that the trial court should have applied the Restatement (Third) and urging the Superior Court to reverse the judgment on that basis, among others. The Pennsylvania Supreme Court allowed an appeal, thereby setting up a long-awaited determination by that court as to whether Pennsylvania would become the latest of a number of jurisdictions that follow the Restatement (Third) of Torts.

Although most practitioners expected the Court to either adopt the Restatement (Third) or leave the law as it existed, it did neither. Rather, the Court retained the Restatement (Second) as the law of Pennsylvania, but modified its application in several significant aspects. First, the Court overruled Azzarello, holding that trial courts will no longer conduct a threshold legal analysis to determine if the product in question is “unreasonably dangerous.” The view of some in the Pennsylvania bar is that the overturning of Azzarello was appropriate. However, the ultimate effect is that in most cases, a plaintiff must prove to the jury, not to the judge, that a product was in a “defective condition” at the time it left the seller’s control. A product is in a defective condition if it presents dangers that are unknowable and unacceptable to an average or ordinary consumer (the “consumer expectation” test) or if a reasonable person would conclude that the probability and severity of harm outweighs the burden or cost of taking precautions (the “risk/utility” test). A plaintiff may proceed on either or both theories, and the question of whether or not a defective condition exists is one of fact for the jury unless the evidence is so overwhelming that reasonable minds could not differ.

A “Sea Change” in Product Liability Litigation

Although the Tincher decision was expected to clarify Pennsylvania law, in our opinion it has created more questions than it has resolved. First, while the Court has repeatedly emphasized that negligence concepts have no place in a strict liability analysis, concepts such as “unknowable danger,” “ordinary consumer” or “reasonable person” are virtually indistinguishable from terms a jury would hear on a negligence charge. Also in question is the role (if any) that expert witnesses’ testimony might play in the determination of these issues. Finally, while indicating that the burdens of proof and persuasion are by a preponderance of the evidence, the Court declined to specify which party needed to carry the burden, leaving open the possibility that the burden might fall on the defendant (particularly under the “risk/utility” test).

Although the Court ultimately remanded the case to determine if a new trial was warranted under the new standards articulated, we believe the specific result in the Tincher case will ultimately become an afterthought. The real focus going forward will be on the sea change in product liability litigation that results from this decision and those that subsequently resolve the questions it has left open. If you have any questions regarding this decision or its effect, please do not hesitate to contact us. We also encourage our readers to express their thoughts on this landmark decision.