Evidence of a User’s Negligence and Industry Standards Admissible in Post-Tincher Design Defect Claims

By Kristin E. Shicora, Esq.*

For over 30 years, strict product liability claims in Pennsylvania adhered to an artificial prohibition on the introduction of negligence principles, as set forth by the Pennsylvania Supreme Court in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978) and its progeny. Evidence of a user’s own negligence in the use of a product and a product’s compliance with industry standards were prohibited in strict liability claims because such evidence improperly introduced negligence principles. In its recent decision in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court overruled Azzarello’s prohibition on negligence principles and drastically changed the standard for establishing a design defect claim, adopting the alternative standards of a consumer expectations test and a risk-utility test. Despite explicitly overruling Azzarello, the court in Tincher made clear that the availability of negligence-derived defenses, as well as other evidentiary considerations in product liability claims, were outside the scope of its decision, permitting and encouraging “targeted advocacy” to further develop the potentially broad implications of its decision. Thus, many questions were left unanswered with respect to what evidence a product defendant would be able to present at trial in defense of strict liability claims post-Tincher.

The recent opinion in Sliker v. National Feeding Systems, Inc., et al, No. 282 CD 2010 (C.P. Clarion Co. Oct. 19, 2015, Arner, P.J.) provides well-reasoned ammunition for product defendants preparing for trial in the post-Tincher landscape with regard to certain previously prohibited evidence under Azzarello and its progeny. In Sliker, the plaintiff was injured while attempting to fix a silo unloader. The plaintiff, proceeding with a design defect claim at trial, alleged the unloader was defective due to the lack of a permanently affixed guard. In ruling on motions in limine, the court denied the plaintiff’s motion to preclude the admission of evidence of negligence. The court found that evidence of a user’s own negligence in using a product is relevant to a fact finder applying the risk-utility standard to determine whether a product is defective in design. The court recognized the Tincher court’s repeated references to “the negligence roots of strict liability” claims, particularly in describing the “negligence derived risk-utility balancing.” In denying the motion, the court reasoned that a user’s negligence, when compared to conduct that is reasonably anticipated by a manufacturer in designing the product, permissibly reflects the negligence roots of strict liability, noting a “user’s ability to avoid danger by the exercise of care in the use of the product will logically factor into a reasonable manufacturer’s conduct.” While it limited the effect of such evidence, stating that “evidence of negligence of course does not constitute a complete defense comparable to contributory negligence,” the court permitted the product defendants to present negligence evidence in support of their defense under the risk-utility test.

The Sliker court also addressed the issue of the admissibility of evidence of a product’s compliance with industry standards. The plaintiff sought to preclude the manufacturer’s compliance with industry standards, arguing that “the manufacturer’s reasonableness in designing a product as it did is irrelevant” in determining whether a product is defective. The court found the evidence to be admissible, citing its particular relevance to the second factor enumerated in the risk-utility test, “[t]he safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury.” In support of this ruling, the court went on to discuss the reasoning behind Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590 (Pa. 1987), the Pennsylvania Supreme Court decision that originally precluded industry standards in strict liability claims. The court in Sliker noted that the reasoning for precluding industry standards in Lewis was based entirely on Azzarello and its prohibition on the comingling of negligence and strict liability concepts, because such evidence would “go to the reasonableness of the [manufacturer’s] conduct in making its design choice.” The court went on to state that “industry standards may make the likelihood that a manufacturer acted reasonably more probable by showing that those actions were endorsed by specialized individuals with knowledge of product design superior to that of courts,” namely those within an industry who created the standards themselves. Because Tincher overruled Azzarello and pronounced that a manufacturer’s conduct and reasonableness is relevant to the determination of a product defect, the court in Sliker determined that evidence of industry standards and a manufacturer’s conduct was now proper for consideration under the risk-utility test.

The evidentiary rulings and sound reasoning in Sliker provide product liability defendants with strong arguments for the admissibility of evidence of a plaintiff’s negligence and industry standards at trial, evidence that was previously prohibited under Azzarello. Under the invitation of the Pennsylvania Supreme Court for “targeted advocacy,” product manufacturers and their counsel should take the opportunity to highlight the reasoning of this opinion in pretrial and trial practice.

* Kristin is an associate in our Philadelphia, Pennsylvania office. She can be reached at .215.575.2757 or keshicora@mdwcg.com.

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_{Defense Digest, Vol 22, No. 1, March 2016}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}