In a matter of first impression, a divided Pennsylvania Supreme Court has determined that a products liability defendant must plead and prove as an affirmative defense that an injured plaintiff’s alleged “highly reckless conduct” was the sole or superseding cause of her injuries. Reott v. Asia Trend, Inc., No. J-100A-D-2011 (Pa., decided November 26, 2012).

The issue arose in a personal injury suit involving the locking strap on a hunter’s tree stand that allegedly broke during use. The plaintiffs alleged that it was defective because it “had been only glued, rather than like a seatbelt, which is glued and stitched.” The defendants were permitted to present evidence of highly reckless conduct, i.e., the self-taught manner by which the injured plaintiff “set” the tree stand after climbing a tree, to rebut evidence of causation. The plaintiffs contended that they were improperly left with the sole burden of proof.

The court majority recognized the parallels between product misuse, assumption of the risk and highly reckless conduct, noting that they “involve a plaintiff’s unforeseeable, outrageous, and extraordinary use of a product.” It also noted that under Pennsylvania’s products liability scheme, “evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff’s assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury. Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate a [Restatement (Second) of Torts] Section 402A action by demonstrating a plaintiff’s comparative or contributory negligence.”

Accordingly, the court held that “to prevent the impermissible blending of negligence and strict liability concepts, should such an affirmative defense be pursued, the burden of proof is on the defendant to show that the highly reckless conduct was the sole or superseding cause of the injuries sustained.” So ruling, the court rejected the dissent’s reliance on a 1975 plurality decision in which the court stated that abnormal use may not be submitted as a separate defense. The five-justice majority held that this statement was not binding. Thus, the court affirmed the superior court’s order directing judgment for the plaintiffs and remanding for a new trial limited to a damages determination.