The Pennsylvania Supreme Court has agreed to review an appeal in a house-fire case to determine “[w]hether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement.” Tincher v. Omega Flex Inc., No. 842 MAL 2012 (Pa., appeal granted March 26, 2013). The court has also requested that the parties brief whether “if the Court were to adopt the Third Restatement, that holding should be applied prospectively or retroactively.”

The company that manufactured a gas pipe which allegedly caused the fire has appealed a $1-million jury verdict, reportedly arguing that the Restatement (Third) of Torts should have been applied because it requires a design-defect plaintiff to show that a safer alternative design exists. The plaintiffs apparently alleged that the pipe, made from corrugated stainless steel tubing, was defective; they claimed that it became “energized” by a lighting strike that traveled through the ground. While plaintiffs’ counsel apparently contends that it makes no difference which Restatement applies, the defendant will be seeking to end a difference of opinion on the issue between Pennsylvania state and federal courts. The Third Circuit Court of Appeals predicted in 2009 that the Pennsylvania Supreme Court would adopt the Third Restatement, and most federal courts since then have applied it, even as state courts have consistently applied the Second Restatement, which “takes a hard line against allowing negligence concepts into strict liability claims.” See Bloomberg BNA Product Safety & Liability Reporter, April 1, 2013.