Products liability law in Pennsylvania has become increasingly unpredictable over the years.  The unpredictability, however, may finally be coming to an end.  The Pennsylvania Supreme Court has recently granted allocator in Tincher v. Omega Flex where many predict the Court will finally rule on whether the strict liability analysis of Section 402A of the Second Restatement will be replaced by the Third Restatement.  The Third Circuit has twice opined that the state Supreme Court is likely to adopt provisions of the Third Restatement, yet the Court has consistently failed to directly address this issue.

If the Court does adopt the Third Restatement, this will mean a change in Pennsylvania products law.  Currently, the Second Restatement focuses its analysis on the intended user and that user’s intended use of a product.  The Second Restatement also does not include the concept of negligence.  Conversely, the Third Restatement focuses its analysis on the foreseeable risk of harm of a product and whether an alternative design could have minimized or eliminated these risks.  The Third Restatement also introduces the concept of negligence into the analysis.

There are diverging opinions on whether the adoption of the Third Restatement would benefit plaintiffs or defendants more.  Some speculate the Third Restatement would be more favorable to defendants as it requires the plaintiff to provide additional proof as compared to the Second Restatement.  Others note the Third Restatement would benefit plaintiffs, specifically the injured bystander, as they are not intended users of a product a key portion of the Second Restatement’s analysis.  However, regardless of the potential benefits to either plaintiffs or defendants, if the Court does definitively rule as to which Restatement applies; this will offer some much needed clarity to Pennsylvania products law.

Special thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Brown at .