Will Pennsylvania Replace the Current Standard of Strict Liability for Design Defects With the Negligence Inclusive Analysis of Section 2 of the Third Restatement of Torts?

By Alex B. Norman, Esq.*

On October 15, 2013, the Pennsylvania Supreme Court heard oral argument in Tincher v. Omega Flex, No. 17 MAP 2013, regarding whether to replace the strict liability analysis of Section 402A of the Second Restatement with the negligence inclusive analysis of Section 2 of the Third Restatement. The Tincher jury heard evidence regarding the manufacturer’s conduct in designing a product. The jury was allowed to consider the conduct as evidence in support of the negligence claim, but not the strict liability design defect claim. By following the two-step design defect analysis of Azzarello v. Black Bros. Co., Inc., 391 A.2d 1020 (Pa. 1978), the jury returned an inconsistent verdict. Throughout the litigation, the defendant, Omega Flex, asked the court to apply Section 2 of the Third Restatement. They alleged that application of the Third Restatement would have allowed the jury, not the trial court, to consider the evidence of the manufacturer’s conduct to determine if the product was defective.

Tincher v. Omega Flex

The Tincher case arose out of a fire that occurred on June 20, 2007, at the Tincher home, causing over $1 million in property damage. An investigation revealed that a lightning strike energized the Omega Flex “TracPipe” tubing that connected a fireplace inside the home to the exterior natural gas main. The energized TracPipe created an electrical arc that burned through the tubing and ignited the natural gas it contained, causing a fire. The Tinchers sued Omega Flex alleging claims in negligence and strict liability.

At trial, the plaintiffs alleged that the TracPipe was defectively designed because the walls were too thin to withstand the surge of electrical current that was generated by the lightning strike. At the close of evidence, Omega Flex filed a motion to dismiss the design defect claim, alleging that there was not sufficient evidence from which a jury could conclude that the TracPipe was unreasonably dangerous/defectively designed. The court performed an Azzarello risk utility analysis to determine if design defect would be submitted to the jury.

The trial court considered the facts alleged in the light most favorable to the plaintiffs by weighing the Surace factors. See, Surace v. Caterpillar, 111 F.3d 1039, 1046 (3d Cir. 1997)(listing risk-utility factors). The plaintiffs’ “case compared the TracPipe to black iron pipe, positing that by comparison, TracPipe poses a significantly higher risk of lightening-induced (sic) perforation.” The court considered “the likelihood of TracPipe’s potential for causing serious damage and injury resulting from a breach in the pipe wall, and [Omega Flex’s] ability to eliminate the product’s unsafe aspects.” The court also considered the fact that both the plaintiffs’ expert and the defendant’s expert agreed that black iron pipe is more resistant to a breach by lightning arc than TracPipe. Evidence was also presented that purported to show Omega Flex failed to warn that adequate grounding at specified intervals would have better protected the TracPipe from being energized by lightning.

The court determined that a jury could find that the product was defectively designed and denied Omega Flex’s motion. As a result, the issues of design defect and negligent design were submitted to the jury. The jury found that the manufacturer’s conduct in designing the product was not negligent. However, they also found, somewhat inconsistently, that the product was defective.

To understand how this illogical decision was rendered, you have to go back to the 1978 case of Azzarello v. Black Bros. Co., Inc., supra, where the Pennsylvania Supreme Court laid the ground work for this confusing analysis when they attempted to divorce negligence principles from design defect strict product liability.

Section 402A of the Restatement (Second) of Torts and Azzarello v. Black Bros. Co., Inc.

In 1966, Pennsylvania adopted Restatement (Second) of Torts § 402A in Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966). Section 402A explicitly includes negligence concepts. “One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability.” See Restatement (Second) of Torts Section 402A (emphasis added).

However, in 1978, the Pennsylvania Supreme Court held in Azzarello that ‘“[t]he term ‘unreasonably dangerous’ has no place in the instruction to a jury as to the question of defect in a design defect case.” The court understood that the determination of “whether the product is unreasonably dangerous is the critical factor in assessing whether the product is defective under Section 402A.” In order to preserve this critical factor and satisfy the court’s interest in keeping negligence principles out of the minds of the fact finder, the court developed a two-step approach for evaluating design defect claims. The trial court was tasked with making the threshold determination of whether, based on the facts alleged, a jury could find that the product in question was defectively designed. If the court answered the question in the negative, the defective design claim would be dismissed. If the court answered the question in the affirmative, then the defective design claim would be submitted to the jury. It would then be the jury’s responsibility to determine “whether the product is safe for its intended use.”

Jury Analysis of Manufacturers Conduct Under Azzarello Versus Section 2 of the Third Restatement

In Tincher, Omega Flex argued that, because the jury was allowed to consider the conduct of the manufacturer with regard to the negligence claim, but not the strict liability claim, the jury improperly determined that the TracPipe was defectively designed. They added that because the Azzarello instruction is vague, “juries [ . . .] fail to receive meaningful guidance on how to decide whether a particular product design is ‘defective’.” During deliberations in Tincher, the jury asked for a definition of product defect. The trial court answered the jury’s question, by re-reading the standard jury instruction:

The supplier of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for its intended use, and without any condition that makes it unsafe for its intended use. If you find that the product at the time it left the defendant’s control, lacked any element necessary to make it safe for its intended use or contained any condition that made it unsafe for its intended use, then the product was defective, and the defendant is liable for all harm caused by such defect.

Omega Flex contends that the jury did not know how to reconcile all of the conduct evidence with the vague jury instruction.

In its appeal, Omega Flex alleges that it was reversible error for the trial court not to apply Section 2 of the Restatement (Third) of Torts. Under the Third Restatement, the fact finder evaluates the magnitude and probability of the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing. Omega Flex argues that, had the court applied the Third Restatement in Tincher, then the jury, not the trial court, would have performed the risk-utility analysis and evaluated the manufacturer’s conduct.

The Superior Court affirmed the trial court’s judgment. The Supreme Court granted Omega Flex’s motion for allocatur on the following questions:

1. Whether this court should replace the strict liability analysis of Section 402A of the Second Restatement with the Analysis of the Third Restatement? and
2. Whether, if the Court were to adopt the Third Restatement, that holding should be applied prospectively or retroactively?

Impact

The Supreme Court has already heard oral arguments, so a decision should come down soon. As mentioned earlier, the court is also considering whether their holding is going to be applied prospectively or retroactively. All defendants in strict product liability design defect cases should be sure to preserve the issue of the application of Section 2 of the Third Restatement during any trials that occur between now and the Supreme Court’s decision.

The enormity of this decision cannot be overstated. It will drastically alter the landscape of product liability law in Pennsylvania. It will also change how every design defect case is defended in Pennsylvania.

*Alex is an associate in our Philadelphia, Pennsylvania, office who can be reached at 215.575.3563 or abnorman@mdwcg.com.

Defense Digest, Vol. 20, No. 1, March 2014

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. Copyright © 2014 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.