Product Liability
Pennsylvania Supreme Court Opens a New Chapter
in the State’s Strict Product Liability Law with its
Decision in Tincher v. Omega Flex, Inc.
Commercial Disputes
Pennsylvania Product Liability Alert
5 January 2015
Practice Groups:
By Nicholas P. Vari, Michael J. Ross, and David J. Kiefer
I. INTRODUCTION
In Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014), the Pennsylvania
Supreme Court opened a new chapter in the state’s strict product liability law by overruling
Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which precluded any jury
determination regarding whether a product was unreasonably dangerous. In doing so, the
court laid the groundwork for a new “composite standard” under which plaintiff can satisfy his
or her burden of proof for a strict product liability claim in the design defect context through
either the “risk-utility test” or the “consumer expectations test.” Although Tincher declined to
adopt wholesale the Restatement (Third) of Torts: Product Liability, the court—as predicted
by several commentators 1—abandoned the state’s widely criticized approach to strict
product liability law and aligned the state with the more modern and prevailing attitude of tort
law.
II. THE FACTS AND PROCEDURAL HISTORY OF TINCHER
Tincher presented the Supreme Court with a strict product liability case in which
plaintiffs/appellees Terence and Judith Tincher (“Plaintiffs”) sued defendant/appellant Omega
Flex, Inc. (“Omega Flex”) for personal property and real property damages arising from a fire
at the Tinchers’ primary residence.2 According to the evidence presented at trial, the fire
began when a lightning strike melted corrugated stainless steel tubing connected to the
Tinchers’ natural gas fireplace.3 The melting ignited the natural gas in the tubing, which, in
turn, caused the fire. 4 Omega Flex manufactured and sold the corrugated stainless steel
tubing used in the Tinchers’ fireplace under the name “TracPipe.” 5
After Plaintiffs dismissed their failure-to-warn claim and the jury returned a defense verdict
on Plaintiffs’ negligence claim, the jury found in favor of Plaintiffs on their design defect
claim. 6 Consistent with the framework outlined in Azzarello, the trial court (not the jury)
initially conducted a risk-utility analysis, concluded that the risks of the TracPipe outweighed
1
See, e.g., Nicholas P. Vari & Michael J. Ross, In a League of Its Own: Restoring Pennsylvania Product
Liability Law to the Prevailing Modern “Attitude” of Tort Law, 23 Widener L.J. 279 (2013).
2
Tincher v. Omega Flex, Inc., No. 17 MAP 2013, at 2-3 (Pa. Nov. 19, 2014) (hereinafter “Tincher”).
3
Id. at 2-3.
4
Id. at 3.
5
Id.
6
Id. at 11.
Pennsylvania Supreme Court Opens a New Chapter in the
State’s Strict Product Liability Law with its Decision in
Tincher v. Omega Flex, Inc.
their benefits, and then submitted the design defect claim to the jury so that the jury could
consider whether a defect existed in the TracPipe. 7 The jury determined that a defect did
exist and awarded Plaintiffs over $950,000 in compensatory damages. 8
Following the denial of Omega Flex’s post-trial motions, Omega Flex appealed to the
Pennsylvania Superior Court, which affirmed the trial court. 9 Omega Flex then filed a
petition for allowance of appeal with the Pennsylvania Supreme Court, which granted review
on the issue of “[w]hether this Court should replace the strict liability analysis of Section 402A
of the Restatement with the analysis of the Third Restatement.” 10 The Supreme Court heard
oral arguments on October 15, 2013 and issued its 137-page opinion, accompanied by a
two-page dissent, on November 19, 2014.
III. THE SUPREME COURT OVERRULES AZZARELLO AND ITS PROGENY
At the outset, Tincher overruled Azzarello, a 1978 Pennsylvania Supreme Court opinion,
which announced that “negligence concepts have no place in Pennsylvania strict liability
doctrine” and “led to puzzling trial directives that the bench and bar understandably have had
difficulty following in practice . . . .” 11 In overruling Azzarello, the court noted that the
decision no longer remained viable in light of the realities that:
(i)
The Azzarello court based its holding on the faulty premise that “negligencerelated rhetoric saddles a plaintiff with an additional and unwarranted burden
of proof in every case” and results in jury confusion; 12
(ii)
The California and New Jersey cases upon which Azzarello relied were
narrowed (as was the case in California13), or disapproved of (as was the
case in New Jersey 14) in subsequent opinions from each state’s highest
court; and
(iii)
The bright-line standard in Azzarello “is impracticable” given that the decision
divorced the inquiry regarding “defect” from the related inquiry of whether the
product is “unreasonably dangerous,” and trial courts lack the expertise
necessary to conduct a risk-utility analysis and decide whether a product is
unreasonably dangerous as a matter of law. 15
In sum, because the “unsupported assumptions and conclusory statements upon which
Azzarello’s directives are built are problematic,” 16 overruling the case better effectuated the
policy considerations underlying Pennsylvania’s product liability law.
7
Id. at 9-11.
Id. at 11.
9
Id. at 16.
10
Id. at 17.
11
Id. at 75.
12
Id. at 76-77.
13
See Barker v. Lull Eng’g Co., 573 P.2d 443 (Cal. 1978), which narrowed the holding in
Cronin v. J.B.E. Olson Corp., 501 P.2d 1153 (Cal. 1972).
14
See Cepeda v. Cumberland Eng’g Co., 386 A.2d 829 (N.J. 1978), which disapproved of
Glass v. Ford Motor Co., 304 A.2d 562 (N.J. Super. 1973).
15
Tincher at 82-83.
16
Id.
8
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Pennsylvania Supreme Court Opens a New Chapter in the
State’s Strict Product Liability Law with its Decision in
Tincher v. Omega Flex, Inc.
IV. THE NEW “COMPOSITE STANDARD” FOR STRICT PRODUCT LIABILITY
CLAIMS IN PENNSYLVANIA 17
Although Tincher overruled Azzarello, which was the necessary predicate to adopting the
Restatement (Third) of Torts: Product Liability, the Supreme Court declined to make the
“decisional leap” and adopt the Third Restatement in Pennsylvania. 18 Instead, the court
emphasized the need to exhibit “judicial modesty,” and in reaffirming the viability of a
“properly calibrated” Second Restatement, outlined a “composite standard” for strict product
liability claims under which plaintiff can demonstrate that a product contains a “defective
condition” through the “consumer expectations test” or the “risk-utility test,” or both. 19 The
Tincher court advanced this “composite standard” because it “retains the best-functioning
features of each test, when applied in the appropriate factual context." 20
The consumer expectations test provides that a “product is in a defective condition if the
danger is unknowable and unacceptable to the average consumer.” 21 A product liability
defendant can demonstrate that the product is not defective “if the ordinary consumer would
reasonably anticipate and appreciate the dangerous condition of the product and the
attendant risk of injury of which the plaintiff complains.” 22 Relevant considerations in
evaluating a consumer’s expectations include the product’s nature, the user’s identity, the
product’s intended use and intended users, and any seller or manufacturer representations
regarding the product, whether implied or express.23 The consumer expectations test
originates from comments g and i of Section 402A of the Second Restatement, but the test’s
shortcomings include that obviously dangerous products may be exempt from liability and
that complex products may be subject to arbitrary application of strict product liability law. 24
The risk-utility test provides that a “product is in a defective condition if a ‘reasonable person’
would conclude that the probability and seriousness of the harm caused by the product
outweigh the burden or costs of taking precautions.”25 The risk-utility test is a “post hoc” test
in which the court evaluates “whether a manufacturer’s conduct in manufacturing or
designing a product was reasonable.” 26 Relevant considerations in applying the risk-utility
test include the product’s usefulness, the likelihood the product will cause injury, the
availability of an alternative or substitute product, the manufacturer’s ability to eliminate the
harmful aspect of the product without limiting its usefulness, the user’s ability to avoid harm
through the use of due care, the user’s awareness of the dangers through the product’s
condition or warnings, and the likelihood of loss spreading through insurance or otherwise. 27
17
In addition to articulating a new “composite standard,” The Tincher court also clarified the proper jury
instructions and burdens of proof in strict product liability cases, and in particular with the risk-utility analysis.
Notably, when plaintiff proceeds on a risk-utility theory, “proof of risks and utilities are part of the burden to
prove that the harm suffered was due to the defective condition of the product.” Tincher at 131.
18
Id. at 84.
19
Id. at 119.
20
Id.
21
Id. at 95.
22
Id.
23
Id.
24
Id. at 97.
25
Id. at 98.
26
Id. at 99.
27
Id. at 99, quoting Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 260-61 (Ill. 2007).
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Pennsylvania Supreme Court Opens a New Chapter in the
State’s Strict Product Liability Law with its Decision in
Tincher v. Omega Flex, Inc.
The risk-utility test maximizes efficiency goals, but also conflicts with the law’s stated goal of
compensating victims harmed by tortious actions.28
V. IMPACT OF TINCHER ON MANUFACTURING DEFECT AND FAILURE TO
WARN CLAIMS
For product liability defendants facing manufacturing defect and failure to warn claims in
Pennsylvania, the Tincher decision—which concerned a design defect claim—has further
implications. The court noted that while its “decision is limited to the context of a ‘design
defect’ claim . . . the foundational principles upon which we touch may ultimately have
broader implications by analogy.” 29 Indeed, the court expressly noted that its holding “may
have an impact upon other foundational issues regarding manufacturing or warning
claims.” 30 Thus, while the decision rejected broadly adopting the Third Restatement, the
opinion did not foreclose the court from adopting “available alternatives suggested by
commentators or the Restatements, relating to foundational or subsidiary considerations” in
the manufacturing defect and failure-to-warn contexts. 31 In short, the court signaled its
willingness to reevaluate Pennsylvania’s manufacturing defect and failure-to-warn
jurisprudence in light of the more modern and prevailing attitude of tort law.
At bottom, Tincher raises many new questions, which the court itself stated needed to be
presented to future courts. As noted by the court, “The delivery of justice in this area
requires a recognition and appreciation of the appropriate and significant roles played by
advocates, trial judges, and the appellate judiciary. . . . [T]he area of strict liability law
remains complex and our decision here does not purport to foresee and account for the
myriad implications or potential pitfalls as yet unarticulated or unappreciated.” 32 Accordingly,
the Tincher decision may be seen as recalibrating Pennsylvania’s product liability law to that
which existed prior to the 1978 Azzarello decision, but there exists decades of interpretive
precedents left to be re-examined in light of the Azzarello’s demise.
Change that appears to be inevitable is the introduction of state-of-the-art evidence in failure
to warn claims. To date, Pennsylvania has been among a small minority of jurisdictions
willing to hold a product supplier liable for failing to warn of dangers that were completely
unknowable to both science and industry at the time of the product’s sale. 33 In light of
Tincher’s overruling of Azzarello, Pennsylvania juries should now be permitted to consider a
product defendant’s reasonableness in marketing and selling the product. That
reasonableness, then, will turn in whole or in part on whether the product’s risks were known
or knowable at the time of the product’s sale.
CONCLUSION
Tincher stands as a strong step in the right direction for Pennsylvania product liability
defendants. Nevertheless, it also leaves a significant amount of precedents left to be
considered, and Pennsylvania law will continue to develop toward the modern view in the
coming years.
28
Tincher at 100.
Id. at 90 n.21.
30
Id. at 135.
31
Id. at 136.
32
Id. at 128.
33
See, e.g., Carrecter v. Colson Equip. Co., 499 A.2d 326, 331 (Pa. Super. 1985).
29
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Pennsylvania Supreme Court Opens a New Chapter in the
State’s Strict Product Liability Law with its Decision in
Tincher v. Omega Flex, Inc.
Authors:
Nicholas P. Vari
nicholas.vari@klgates.com
+1.412.355.8365
Michael J. Ross
michael.ross@klgates.com
+1.412.355.8926
David J. Kiefer
david.kiefer@klgates.com
+1.412.355.3712
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