Tincher – One Year Later
By Vlada Tasich, Esq.*
On November 19, 2014, the Pennsylvania Supreme Court issued its long awaited ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014) and finally resolved the longstanding speculation about whether the Commonwealth would adopt the Third Restatement approach to strict product liability law. While the court declined to embrace the Third Restatement, which left much of the legal community stunned, the decision nevertheless significantly changed the legal framework for such matters and also injected great uncertainty into future cases.
For over 30 years before Tincher, Pennsylvania’s strict product liability law endured a tortured existence under the Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978) decision, which introduced an unnatural separation between negligence concepts and strict liability principles under Section 402A of the Second Restatement of Torts. Although Section 402A itself characterized a defective product as one being “unreasonably dangerous,” the court deemed notions of “reasonableness” of a defendant’s conduct in the design and manufacture of a product irrelevant to the question of defect, which it sought to isolate for the jury. To effect this conceptual barrier, the court took on a gatekeeping function and decided when a product was “unreasonably dangerous” as a matter of law and left it to the jury to determine the factual question of defect. Defendants suffered under Azzarello as they were routinely prohibited from defending claims that products were unsafe by demonstrating, for example, that they complied with applicable industry standards or complied with the state of the art at the time of manufacture. A plaintiff’s comparative fault was also considered irrelevant as it, too, was evidence of conduct and, therefore, represented an impermissible commingling of negligence principles.
Tincher expressly overruled Azzarello and did away with its artificial dichotomy, recognizing that product liability law could trace its roots to negligence principles. The Supreme Court in Tincher also ushered in two new standards under which a plaintiff could establish that a product was defective: the consumer expectations test and the risk-utility test.
Under the consumer expectations test, a product is in a defective condition if, upon normal use, it is dangerous beyond the reasonable consumer’s contemplations. This test focuses on whether the product carries a surprise element of danger.
In contrast, under the risk-utility test, a product is considered defective when the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The risk-utility analysis can take into account a number of factors. These factors, which implicitly have been adopted by the court and are referred to as the “Wade” factors, include:
- the usefulness and desirability of the product—its utility to the user and to the public as a whole;
- the safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury;
- the availability of a substitute product which would meet the same need and not be as unsafe;
- the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;
- the user’s ability to avoid danger by the exercise of care and the use of the product;
- the user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
- the feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
The court recognized that, by adopting these alternative liability standards, what had once been settled law under Azzarello was no longer so, and cited to the impact of its decision on, among other things, the availability of negligence-derived defenses. But the resolution of such considerations was left to future cases where the common law could develop “within the proper factual contexts against the background of targeted advocacy.”
So where are we now, one year later?
Various courts in Pennsylvania have begun to issue rulings in the aftermath of Tincher, with the majority so far coming from the federal bench. Some of these decisions have endorsed propositions that have been positive for defendants. Initially, Tincher may be retroactively applied in pending matters. DeJesus v. Knight Indus. & Assoc., Inc., 599 Fed. Appx. 454 (3d Cir. 2015); Nathan v. Techtronic Indus. North America, Inc., 2015 U.S.Dist. LEXIS 18835 (M.D. Pa. Feb. 17, 2015); Amato v. Bell & Gossett, 116 A.3d 607 (Pa.Super. 2015). It has also been recognized that the Pennsylvania Supreme Court rejected outright the forced separation of strict liability and negligence principles under Azzarello, and that a jury must now be instructed that they will be required to determine if a product was “unreasonably dangerous.” Amato. The cost and feasibility of a safer alternative design has been found to be probative of whether a product is defective under Pennsylvania’s newly adopted risk-utility test, and we can expect the Wade factors overall to have a place in that analysis. Nathan; Capece v. Hess Maschinenfabrik GmbH & Co. KG, 2015 U.S.Dist. LEXIS 35145 (M.D. Pa. Mar. 20, 2015). Defendants may also be able to raise the state-of-the-art defense and receive a corresponding jury instruction in the appropriate circumstances. Amato. The liability standards established for design defect cases have been extended to warnings claims as well. Amato; Williams v. U-Haul Int’l Inc., 2015 U.S.Dist. LEXIS 4486 (E.D. Pa. Jan. 14, 2015).
However, courts have also concluded that the Tincher decision does not affect the manner in which courts should approach manufacturing defect claims, which are often more straightforward than design claims. Dalton v. McCourt Elec. LLC, 2015 U.S. Dist. LEXIS 102269 (E.D. Pa. Aug. 5, 2015). In such matters, a plaintiff will not necessarily be required to go through the rigors of a risk balancing analysis to prove that a product was defective. Further, defense evidence that a product has historically not experienced the alleged defective condition or been subject to such claims may be deemed irrelevant to the question of whether a specific product was defectively manufactured. Dalton.
As may also have been expected, given the language of Tincher, we have yet to see a successful contested summary judgment bid, as the question of defect is a fact question within the domain of the jury to decide, except in only the clearest of circumstances where reasonable minds cannot disagree. Lewis v. Lycoming, 2015 U.S.Dist. LEXIS 69731 (E.D. Pa. May 29, 2015); Nathan. Defendants have also been reminded that the focus of strict liability in Pennsylvania remains the condition of the product and not the defendant’s conduct. Nathan.
Lastly, it appears Tincher left untouched the strict liability exclusion for prescription medical products. Krammes v. Zimmer, Inc., 2015 U.S.Dist. LEXIS 96954 (M.D. Pa. July 24, 2015). And it did not disturb the elements of a crashworthiness claim under prior Pennsylvania case law. Parr v. Ford Motor Co., 109 A.3d 682 ( Pa.Super. 2014).
So where are we now? Likely in a better place … at least for the moment.
*Vlada is a shareholder in our Philadelphia, Pennsylvania office. He can be reached at 215.575.2659 or email@example.com.
Defense Digest, Vol 21, No. 4, December 2015
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. © 2015 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 firstname.lastname@example.org.