Addressing Malfunction Theory for First Time in 20 Years: Pennsylvania Supreme Court Clarifies Burden of Proof in Product Liability Case Based Upon Malfunction Theory

Pennsylvania -- Product Liability

The Pennsylvania Supreme Court adopted the malfunction theory of product liability in Rogers v. Johnson & Johnson Products, Inc., 565 A.2d 751 (Pa. 1989). Addressing the malfunction theory for the first time since Rogers, the Pennsylvania Supreme Court decision in Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa. 2009) clarifies the effect of a product's prior successful use on a plaintiff's ability to withstand summary judgment in a strict liability product liability action based upon the malfunction theory.

In Barnish, the plaintiffs filed suit against various defendants, including the manufacturer of a spark detection system, following a explosion and fire in 2001 at a particleboard manufacturing plant that killed several employees and severely injured several others. The spark detection system was designed "with multiple sensors to detect sparks along a conveyor belt system carrying combustible raw materials." The plaintiffs settled their claims against all the defendants other than the spark detection manufacturer. The plaintiffs' claims against the manufacturer sounded in strict liability based on allegations that the system's sensors were defective. However, because the sensors were lost after the explosion and fire, the plaintiffs could not present any direct evidence of a defect in the sensors and, thus, proceeded under the malfunction theory, "which allows for proof of strict product liability claims through circumstantial evidence." Nonetheless, a plaintiff proceeding under the malfunction theory must still establish the required elements of Section 402A of the Restatement (Second) of Torts and demonstrate, inter alia, that the product was defective, that the defect caused the plaintiff's injuries, and that the defect existed at the time the product left the manufacturer's control.

The manufacturer moved for summary judgment and asserted that the plaintiffs failed to make out a prima facie case of strict product liability based, in part, on the plaintiffs' failure to produce any evidence that the sensors were defective when the spark detection system was sold in 1991. In response to the motion, the plaintiffs admitted that the spark detection system had functioned properly during the ten years prior to the 2001 explosion and fire. The trial court granted summary judgment in favor of the manufacturer and reasoned that the plaintiffs could not make out a prima facie strict products liability case under Section 402A because they failed "to present evidence from which a reasonable jury could conclude that the unspecified defect existed when they stipulated that the sensors functioned properly for 10 years." (Emphasis added.) In reaching its decision, the trial court relied on the Pennsylvania Supreme Court's plurality decision in Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974), and the quote by Professor Prosser that "continued use [of a product] usually prevents the inference that the thing was more probably than not defective." Thus, in granting summary judgment, the trial court held that "the continued use of the sensors for ten years precludes a reasonable inference the sensors were defective" when they left the manufacturer's control.

A three-judge panel of the Superior Court affirmed the trial court's decision. The Superior Court relied upon Kuisis for the proposition the "a jury could not find a product defective at the time of delivery if the product functioned properly prior to the alleged malfunction."

The Pennsylvania Supreme Court granted review in Barnish to address the issue left unresolved by the plurality in Kuisis regarding the significance of a product's prior successful use on a plaintiff's ability to withstand summary judgment in a malfunction theory case. The Barnish Court explained that, in a case proceeding under the malfunction theory, "a plaintiff's acknowledgment of prior successful use undermines the inference that the product was defective when it left the manufacturer's control." The Court refused to conclude, however, "that the prior successful use of the product, in an of itself, dooms a plaintiff's ability to present a prima facie case for strict product liability under the malfunction theory" and, instead, recognized that "a product can perform successfully for years and yet still be defective." In order to survive summary judgment, "a plaintiff who admits that the product functioned properly in the past must present some evidence explaining how the product could be defective when it left the manufacturer's control and yet still function properly for a period of time." In the underlying case, for example, the Court noted that the plaintiffs could have suggested that, while other sensors in the system had functioned properly in the past, the sensors at issue in the 2001 fire had never been called into action. Or, a plaintiff could present evidence of a defect at the time of delivery by "demonstrating that the product at issue failed before the expiration of its expected lifespan." Because no such evidence was presented in the Barnish case, the Court affirmed the decision of the Superior Court, which affirmed the trial court's grant of summary judgment to the spark detection manufacturer.

In short, to make out a prima facie case under the malfunction theory where a product has performed successfully in the years leading up to the alleged "malfunction," a plaintiff must adduce some evidence, direct or circumstantial, to explain how the product could function properly and yet still be defective at the time of delivery. In the absence of such evidence, a plaintiff cannot meet the required element of a strict liability claim that the product was defective when it left the manufacturer's control, and the defendant manufacturer is entitled to entry of judgment as a matter of law.

* Carol is an associate who works in our Philadelphia, Pennsylvania, office. She can be reached directly at (215) 575-2643 or ccvanderwoude@mdwcg.com.

Defense Digest, Vol. 16, No. 1, March 2010