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Court declines to extend strict liability to bystanders following the Pennsylvania Supreme Court’s decision in Tincher.

October 1, 2018
Menkes v. 3M Co., No. 17-0573, 2018 U.S. Dist. LEXIS 84574 (E.D. Pa. May 21, 2018)

The plaintiff in this negligence and strict liability action alleged injuries arising from exposure to a contaminated public water supply. The defendants were manufacturers and distributors of a fire-fighting foam that was used to coat runways and hangars at military airbases. The foam contained allegedly toxic compounds that were purportedly introduced to the water supply through soil contamination and runoff. The court dismissed the plaintiff’s strict liability claims for design defect and failure to warn because he was not a user or consumer of the product. Rather, he was a resident of a neighboring community that had been affected by the contamination. While the court acknowledged that the Pennsylvania Superior Court and federal district courts have at times allowed bystanders to pursue strict liability claims, it noted that those cases were decided before the Pennsylvania Supreme Court’s ruling in Tincher v. Omega Flex, Inc. The court explained that in Tincher, “the Pennsylvania Supreme Court had the opportunity to adopt the Third Restatement of Torts, which would have extended strict products liability to bystanders, and it declined to do so.” Therefore, relying upon the guidance of Tincher, the court concluded that it would be “unreasonable to predict that Pennsylvania courts would extend § 402A to bystanders now.” 



Case Law Alerts, 4th Quarter, October 2018

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