This coming week marks twentieth month since the Pennsylvania Supreme Court overhauled its product liability jurisprudence in Tincher v. Omega Flex, Inc. In Tincher, the Pennsylvania Supreme Court overturned nearly forty years of product liability law by putting the determination of whether a product was unreasonably dangerous in the jury’s hands, but also allowing the consideration of negligence concepts within what was, to date, a strict liability standard.  It also provided two tests to use to evaluate whether a product was defective, which were the “consumer expectations” test and the “risk-utility” test.

Tincher raised as many questions as it provided answers, and to date, the Pennsylvania Supreme Court has provided no additional guidance on the allowable “negligence concepts” or the relevant tests.  However, lower courts, particularly trial courts, to address these issues on the merits have often read Tincher in ways favorable to product manufacturers, particularly in the following cases.

• High v Pennsy Supply Inc. – In High, the Court of Common Pleas of Dauphin County applied Tincher’s Risk-Utility test to find that no evidence had been presented to allow a jury to find liquid concrete in its natural state could be defective based on liquid concrete’s natural properties, and granted summary judgment for defendants.
• Sliker v Nat Feeding Systems Inc. – In Silker, the Court of Common Pleas of Clarion County allowed the consideration of industry standards in an evaluation of a manufacturer’s reasonableness under the Risk-Utility test, where it would have been excluded pre-Tincher
• Amato v. Bell & Gossett et. al.– In Amato, the Superior Court held that Tincher applied to a failure to warn case; however, the court nevertheless held that defendant was not entitled to a jury instruction on whether a product was unreasonably dangerous when defendant had argued it was not dangerous.

Despite the lack of guidance to date, it is probable that the Pennsylvania Supreme Court will issue further guidance on Tincher in the near future.  The Court granted an appeal from Amato and another case, Vinciguerra v. Bayer CropScience, Inc. this past February on the issue of whether the defendants were entitled to a jury instruction as to whether their products were “unreasonably dangerous.”  We expect this opinion to offer further clarification on the application of Tincher’s negligence concepts once it is issued, and we will offer an analysis of this opinion at that time.

Thanks to Konrad Krebs for his contribution to this post.