As we have previously reported, in Tincher v. Omega Flex, Inc., the Pennsylvania Supreme Court recently overruled the overbearing Azzarello standard that imposed absolute strict liability on manufacturers regardless of reasonableness and foreseeability while affirming the Second Restatement’s place in Pennsylvania common law. By overruling Azzarello and its progeny, the Tincher decision created a void in Pennsylvania product liability case law that will only be filled by the cases to come.

In Cancelleri v. Ford Motor Co., the Lackawanna County Court of Common Pleas is the first trial level court to apply the Tincher decision. The underlying matter was a crashworthiness case that resulted in a $5.9 million verdict for Cancelleri. The jury found that an airbag was defectively designed and did not deploy in Cancelleri’s crash. Ford filed a post-trial motion requesting a judgment notwithstanding the verdict, or in the alternative, a new trial and argued that the court erred by giving jury instructions that included language from the recently overruled Azzarello and precluded industry standards evidence from the Third Restatement.

Judge Gibbons held that the jury instructions were based on design defect standards from Gaudio, a case which has not been overruled, and not Azzarello. Accordingly, Ford was not prejudiced by the instructions. With respect to Ford’s argument that Tincher implies it is wrong to exclude evidence of industry standards found in the Third Restatement, Judge Gibbons held that Tincher declined to adopt the Third Restatement, and accordingly, it is proper to utilize the Second Restatement for industry standards evidence.

Ford already has plans to appeal the decision. While Tincher certainly scaled back the strict liability imposed on manufacturers, it also created a great deal of ambiguity with respect to the proper standards courts are to utilize on a case-by-case basis. If the Ford appeal makes its way all the way up to the Pennsylvania Supreme Court, the Second Restatement v. Third Restatement issue could be revisited.

Thanks to Eric Clendening for his contribution.

For more information, contact Denise Fontana Ricci at .