As we have previously reported, those of us who practice in, or are beholden to, Pennsylvania products liability law, have anticipated the Supreme Court’s decision in Tincher v Omega Flex Inc., where it appeared that the High Court was finally poised to decide whether the Commonwealth would abandon the Second Restatement’s Section 402(a) articulation of strict liability in favor of the increasingly-popular (and allegedly pro-defendant) Third Restatement.  The answer in Tincher may very well have lead to more questions.

Pre-Tincher, strict liability claims were governed by Azzarello’s interpretation of Section 402(a) of the Second Restatement of Torts that “the supplier of a product is the guarantor of its safety [and] [t]he product must, therefore, be provided with every element necessary to make it safe for its intended use, and without any condition that makes it unsafe for its intended use.”  To achieve this end, Azzarello ignored the language of unreasonable danger found in Section 402(a) by holding that negligence concepts could not be considered by the jury when asked to impose strict liability for products.

After years of interpreting the gray areas of Azzarello, several state and federal courts in the Commonwealth suggested that the Supreme Court abandon Section 402(a) by adopting the more hybrid approach found in the Third Restatement. Instead, the Supreme Court recently held that, while instructive, the Third Restatement would not replace Pennsylvania’s “properly calibrated” version of Section 402(a).  Rather, Tincher simply overruled the overbearing Azzarello standard that previously imposed absolute strict liability on manufacturers regardless of reasonableness and foreseeability while affirming the Second Restatement’s place in Pennsylvania common law.

Without the familiarity of Azzarello and its progeny, nor the fresh canvas of the Third Restatement, the reality of Tincher is that Pennsylvania product law is likely to remain in flux for years to come.  However, at a minimum, Tincher eradicated the notion of unconditional liability for product manufactures in favor of allowing the defense to argue traditional negligence concepts to the jury in one of two “composite” approaches.  First, the Court explained that some product cases will lend themselves to a pro-plaintiff “consumer expectations” standard wherein “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.”  On the other hand, some product cases will allow the defense to argue that the “risk/utility” of the product militates against imposing liability for the plaintiff’s alleged injuries.

Thanks to Adam Gomez for his contribution to this post.