Pennsylvania
Product Liability Law
Monograph
July 2012
With special thanks to litigation partner
Gabrielle Hils
(gabrielle.hils@dinsmore.com)
who supervised this project with the support of the following publication
committee members:
James Comodeca (Practice Group Chair)
Anne Harman
Anthony Sammons
David Schaefer
Kara Stewart
Marilena Walters
For a complete listing of Dinsmore partners with product liability litigation
experience, click here
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TABLE OF CONTENTS
I.
Theories of Recovery .......................................................................................................... 5
A.
Strict Liability....................................................................................................................... 5
1. Restatement (Second) of Torts, Section 402A .................................................................. 5
2. Azzarello v. Black Brothers ................................................................................................ 6
3. A Move to the Restatement (Third) .................................................................................. 8
4. Proving the Plaintiff’s Case ............................................................................................. 10
a.
Manufacturing Defect ............................................................................................... 11
b.
Design Defect ............................................................................................................ 11
c.
Inadequate or Insufficient Warning .......................................................................... 12
5. Unavoidably Unsafe Products ......................................................................................... 12
6. Who Can Bring Suit ......................................................................................................... 13
B.
Negligence......................................................................................................................... 13
C.
Breach of Warranty........................................................................................................... 14
D.
The Consumer Protection Act ........................................................................................... 15
II.
Causation .......................................................................................................................... 15
III.
Industry Wide Liability ...................................................................................................... 17
A.
Burnside v. Abbot Laboratories ......................................................................................... 17
B.
Civil Conspiracy ................................................................................................................. 18
C.
Concerted Action .............................................................................................................. 18
D.
Enterprise Liability ............................................................................................................ 19
E.
Market Share Liability ....................................................................................................... 19
F.
Alternative Liability ........................................................................................................... 20
IV.
Post-Sale Duties ................................................................................................................ 20
V.
Successor Liability ............................................................................................................. 21
VI.
Defenses............................................................................................................................ 21
A.
Superseding Causes .......................................................................................................... 21
B.
Contributory Negligence / Comparative Fault.................................................................. 22
C.
Assumption of the Risk ..................................................................................................... 23
D.
Unintended Use, Unintended Users, and Misuse ............................................................ 23
3
E.
Statutes of Limitations ...................................................................................................... 24
F.
Statute of Repose.............................................................................................................. 25
G.
Federal Preemption of State Law Claims .......................................................................... 25
H.
Open and Obvious Dangers, Inherent Dangers, and the Common Knowledge Doctrine 27
I.
The Sophisticated User / Bulk Supplier Doctrine .............................................................. 28
J.
The Government Contractor Defense .............................................................................. 28
VII.
Defenses Not Recognized in Pennsylvania ....................................................................... 29
A.
Service of Process on Foreign Corporations ..................................................................... 29
B.
The Seat Belt Defense ....................................................................................................... 29
C.
The State of the Art Defense ............................................................................................ 29
D.
Privity of Contract ............................................................................................................. 29
VIII.
Damages............................................................................................................................ 30
A.
Economic Loss ................................................................................................................... 30
B.
Emotional Distress ............................................................................................................ 31
C.
Punitive Damages ............................................................................................................. 32
IX.
Special Evidentiary Concerns ............................................................................................ 33
A.
Subsequent Remedial Measures ...................................................................................... 33
B.
Expert Testimony .............................................................................................................. 34
C.
Prior Accidents/Claims ...................................................................................................... 35
D.
The Collateral Source Rule ................................................................................................ 36
E.
Spoliation .......................................................................................................................... 36
X.
Jury Instructions ................................................................................................................ 37
XI.
Contribution, Indemnity, and Apportionment of Liability................................................ 38
4
The term “product liability” generally refers to the “liability of a manufacturer,
processor, or nonmanufacturing seller for injury to the person or property of a buyer or third
party caused by a product which has been sold.”1
I.
Theories of Recovery
In Pennsylvania, a plaintiff can bring a cause of action against the manufacturer, seller,
or distributor of an allegedly defective product under one or more of three separate theories:
strict liability, negligence, and breach of warranty.
A.
Strict Liability
1.
Restatement (Second) of Torts, Section 402A
Under Pennsylvania product liability law, a plaintiff can proceed against a manufacturer,
seller, or distributor of an allegedly defective product on a theory of strict liability under Section
402A of the Restatement (Second) of Torts, which provides that
(1) one who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if (a) the
seller is engaged in the business of selling such a product, and (b) it is expected
to and does reach the user or consumer without substantial change in the
condition in which it is sold. (2) The rule stated in Subsection (1) applies
although (a) the seller has exercised all possible care in the preparation and sale
of his product, and (b) the user or consumer has not bought the product from or
entered into any contractual relation with the seller.
Under section 402A, the seller of a product that is in a defective condition unreasonably
dangerous to the ultimate user or consumer will be liable to that user or consumer if the
product causes personal injury or property damage to the user or consumer, so long as the
seller is engaged in the business of selling that product and the product reaches the consumer
in substantially the same condition in which it is sold. The Restatement (Second) imposes a
standard of strict liability on the seller, meaning that liability may be imposed regardless of
whether the seller has exercised all possible care in the preparation and sale of his product, and
regardless of whether the user or consumer has bought the product from or entered into any
contractual relation with the seller. In other words, neither fault on the part of the seller nor
privity of contract between the user or consumer and the seller are required in order for a
plaintiff to proceed against the seller of an allegedly defective product on a theory of strict
liability under section 402A of the Restatement (Second) of Torts.
1
See 63 Am. Jur. 2d Products Liability § 1 (2011).
5
2.
Azzarello v. Black Brothers
The seminal Pennsylvania product liability case discussing strict liability under section
402A remains the 1978 Pennsylvania Supreme Court case of Azzarello v. Black Bros. Co.2 In
Azzarello, the Court explained that “the development of a sophisticated and complex industrial
society” required a change in legal philosophy from the general doctrine of caveat emptor, or
“buyer beware,” to the view that “the supplier of products should be deemed to be the
‘guarantor of his products’ safety.’”3 The Court explained that the drafters of the Restatement
(Second) included the phrase “unreasonably dangerous” as a means of qualifying and
explaining the term “defective” to ensure that the supplier of a product, although a guarantor
of his products’ safety, would not also become an insurer of that product.4
The Azzarello Court also acknowledged that the inclusion of the term “unreasonably
dangerous” in the Restatement (Second) on its face suggests that principles of negligence
should be considered in determining liability under section 402A. The Court explained,
however, that considerations of negligence are inappropriate in an action alleging strict liability
under section 402A, and that the phrase “‘unreasonably dangerous’ . . . merely represent[s] a
label to be used where it is determined that the risk of loss should be placed upon the
supplier.”5 The Court recognized that a lay member of a jury could be confused by the inclusion
of the phrase unreasonably dangerous in a law defining strict liability, which ultimately led the
Court to hold that it is a question of law for the Court to determine whether, as the
Restatement (Second) of Torts requires, the product in question is in a “defective condition”
that renders it “unreasonably dangerous” to the ultimate user or consumer.6 As the Court
concluded,
[i]t is a judicial function to decide whether, under plaintiff’s averment of the
facts, recovery would be justified; and only after this judicial determination is
made is the cause submitted to the jury to determine whether the facts of the
case support the averments of the complaint. . . . A standard suggesting the
existence of a “defect” if the article is unreasonably dangerous or not duly safe is
inadequate to guide a lay jury in resolving these questions.7
Thus, under Azzarello, the trial judge acts as a gatekeeper in strict product liability cases,
and is responsible for determining whether the evidence of product defect is sufficient to allow
the question to go to the jury.8 In making this determination, the trial judge must carry out a
cost/benefit analysis, which generally involves a multitude of factors. For example, in a case
involving an alleged design defect, the trial judge must look at “the gravity of the danger posed
2
391 A.2d 1020 (Pa. 1978).
Azzarello, 391 A.2d at 1023 (quoting Salvador v. Atlantic Steel Boiler Co., 319 A.2d 903, 907 (Pa. 1974)).
4
Azzarello, 391 A.2d at 1024–25.
5
Id. at 1025.
6
Id. at 1024–26.
7
Id. at 1026.
8
See Phillips v. Cricket Lighters, 841 A.2d 1000, 1031–14 (Pa. 2003) (Saylor, J., concurring) (Phillips I).
3
6
by the challenged design; the likelihood that such danger would occur; the mechanical
feasibility of a safer design; and the adverse consequences to the product and to the consumer
that would result from the safer design.”9 As the Superior Court noted in Schindler v. Sofarmor,
Inc., the gate keeping role of the trial court is a critical judicial function, one which gives the trial
court an inherent “power to reject design defect claims as a matter of law, even where the
plaintiff presents evidence tending to show that the product is defective.”10 As such, it is not
uncommon for sellers and manufacturers to avoid liability for claims of allegedly defective
products by raising successful motions for summary judgment,11 directed verdict,12 or even
judgment notwithstanding the verdict.13
Since the Azzarello decision, Pennsylvania courts have attempted to distinguish between
products liability cases sounding in negligence and those based on a theory of strict liability
under section 402A. For example, the Pennsylvania Supreme Court stated in Lewis v. C.14 that
Azzarello stands for the proposition that “negligence concepts have no place in a case based on
strict liability.” The Court restated this proposition more recently in its 2003 decision in Phillips
v. Cricket Lighters (Phillips I).15
In Phillips I, the Supreme Court stated that Lewis made clear that under section 402A, it
is the product itself that is on trial, as opposed to the conduct of the manufacturer.16 In Lewis,
the plaintiff was operating an overhead, electric chain hoist to lift a metal carriage assembly, a
component of a machine being produced by his employer, into position.17 The hoist was
operated by using a control pendant, which was essentially a control box that was attached to a
cable running to the hoist.18 When the carriage assembly that he was hoisting became
jammed, Mr. Lewis attempted to move the control pendant into a different position in order to
correct the problem.19 While Mr. Lewis was attempting to correct the problem, he tripped and
fell and accidentally hit an incorrect button on the control pendant.20 As a result, half of the
carriage assembly became “unstuck” and swung forward into Mr. Lewis’ legs, seriously injuring
him.21 Mr. Lewis filed suit against the manufacturer of the hoist, the Coffing Hoist Division of
the Duff-Norton Company, alleging that the control pendant was defective in that it did not
9
Schindler v. Sofamor, Inc., 774 A.2d 765, 772 (Pa. Super. Ct. 2001). Trial courts will generally consider a
multitude of factors in addition to the four cited. For a more comprehensive discussion of these factors, see Part
I.A.4.b, infra.
10
Id. at 773.
11
See Jacobini v. V. & O. Press Co., 588 A.2d 476, 479 (Pa. 1991).
12
See Jordon v. K-Mart Corp., 611 A.2d 1328, 1331 (Pa. Super. Ct. 1992).
13
See Fitzpatrick v. Madonna, 623 A.2d 322, 324 (Pa. Super. Ct. 1993).
14
528 A.2d 590, 593 (Pa. 1987).
15
841 A.2d at 1006.
16
Id.
17
Lewis, 528 A.2d at 591.
18
Id.
19
Id.
20
Id.
21
Id.
7
contain a guard or protective feature over the buttons in the box to prevent an accidental
activation of the hoist.22
Although the Coffing Hoist Division of the Duff-Norton Company wished to introduce
expert testimony relating to industry standards regarding a lack of similar protective features
on control boxes, the trial court excluded the evidence, ruling that evidence of compliance with
“industry-wide standards, customs, and practices” would improperly inject concepts of
negligence into an action alleging strict liability under section 402A.23 The case was ultimately
appealed to the Supreme Court, which upheld the trial court’s ruling, and held that evidence of
industry standards goes to “the reasonableness of the [defendant’s] conduct in making its
design choice,” and that such evidence would not only have brought into the case improper
concepts of negligence, but also would have diverted the jury’s attention away from “the
[defendant’s] control box to the reasonableness of the [defendant’s] conduct in choosing its
design.”24 To further this point, the Pennsylvania Supreme Court has explained that “[e]vidence
of due care by a defendant is both irrelevant and inadmissible in a products liability case since a
manufacturer may be strictly liable even if it used the utmost care.”25
Although lower Pennsylvania courts have attempted to adhere to the principle that
product liability cases sounding in negligence and strict liability are to be construed as wholly
distinct causes of action, that has not always been the case, even by admission of the Court
itself. For example, the court in Phillips I stated that “[w]hile we have remained steadfast in our
proclamations that negligence concepts should not be imported into strict liability law, we have
muddied the waters at times with the careless use of negligence terms in the strict liability
arena.”26 The Phillips I Court cited the example of Davis v. Berwind Corp.,27 where the Supreme
Court held that the manufacturer of a safe product could be held strictly liable for an injury
caused by a subsequent change made to the product, even if the manufacturer was not
responsible for the change, where the manufacturer “could have reasonably expected or
foreseen such an alteration of its product.”28 Interestingly, however, the Phillips I Court also
stated that it felt it would be “imprudent” to reverse previous strict liability decisions that had
incorporated negligence terms, and instead simply chose to “reaffirm” that negligence concepts
have no place in strict liability law.29
3.
A Move to the Restatement (Third)
Despite the Pennsylvania Supreme Court’s continued pronouncement that negligence
concepts have no place in strict product liability actions, the United States Court of Appeals for
22
Lewis, 528 A.2d at 591.
Id.
24
Id. at 594.
25
Spino v. John Tilley Ladder Co., 696 A.2d 1169, 1172 (Pa. 1997).
26
841 A.2d at 1006–07.
27
690 A.2d 186 (Pa. 1997).
28
Phillips I, 841 A.2d at 1007 (quoting Davis, 690 A.2d at 190).
29
Phillips I, 841 A.2d at 1007.
23
8
the Third Circuit somewhat recently predicted in Berrier v. Simplicity Manufacturing30 that the
Pennsylvania Supreme Court would abandon section 402A of the Restatement (Second) of Torts
in favor of adopting the Restatement (Third) of Torts: Products Liability, sections 1 and 2.31
Citing a concurring opinion written by Pennsylvania Supreme Court Justice Thomas G. Saylor in
Phillips I in which he voiced his support for the adoption of the Restatement (Third), the Third
Circuit proclaimed that adopting “the Third Restatement [would eliminate] much of the
confusion that has resulted from attempting to quarantine negligence concepts and insulate
them from strict liability claims.”32
Justice Saylor had explained in his concurring opinion in Phillips I that the difficulty faced
by Pennsylvania courts in attempting to distinguish between negligence and strict liability in
product liability cases “demonstrate[d] a compelling need for consideration of reasoned
alternatives, such as are reflected in the position of the Third Restatement.”33 Finding support
for its prediction in Justice Saylor’s concurrence, the Third Circuit stated its belief that his
opinion “foreshadow[ed]” the Pennsylvania Supreme Court’s eventual adoption of sections 1
and 2 of the Restatement (Third).34 Rather than separating causes of action sounding in strict
liability and negligence, the Restatement (Third) approach reflects the evolution of product
liability case law by defining a defect in terms of whether it is a manufacturing defect, a design
defect, or a warning defect. The Restatement (Third) applies strict liability in cases where the
plaintiff alleges a manufacturing defect and principles of negligence where the plaintiff alleges a
defect in design or inadequate warnings.35
30
563 F.3d 38 (3d. Cir. 2009), cert. denied, 130 S. Ct. 553 (2009).
Id. at 40.
32
Id. at 55 (citing Phillips I, 841 A.2d at 1019 (Saylor, J., concurring)).
33
841 A.2d at 1018 (Saylor, J., concurring).
34
Berrier, 563 F.3d at 54.
35
The RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY, § 1 (1998) provides that “[o]ne engaged in the
business of selling or otherwise distributing products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.” Section 2 of the RESTATEMENT (THIRD): PRODUCTS
LIABILITY provides that
31
[a] product is defective when, at the time of sale or distribution, it contains a manufacturing
defect, is defective in design, or is defective because of inadequate instructions or warnings. A
product: (a) contains a manufacturing defect when the product departs from its intended design
even though all possible care was exercised in the preparation and marketing of the product; (b)
is defective in design when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe; (c) is defective because of
inadequate instructions or warnings when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the provision of reasonable instructions or warnings by
the seller or other distributor, or a predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings renders the product not reasonably safe.
9
In Bugosh v. I.U. North America,36 the Pennsylvania Supreme Court allowed an appeal to
consider the issue of whether to adopt sections 1 and 2 of the Restatement (Third) of Torts:
Products Liability in favor of section 402A of the Restatement (Second) of Torts. Instead of
reaching the ultimate issue, the Court dismissed the case as being improvidently granted after
hearing three days of oral argument. Despite the odd procedural nature of the Court’s
decision, Justice Saylor filed a strongly worded dissent in Bugosh wherein he reaffirmed his
support for adoption of the Restatement (Third). Justice Saylor was joined in his dissent by
Chief Justice Ronald D. Castille, who also joined his concurring opinion in Phillips I.
Justice Saylor restated his belief that “the Third Restatement’s provisions are far more
reasoned and balanced than Azzarello, and adoption would represent a substantial
advancement in Pennsylvania law.”37 According to Justice Saylor, Pennsylvania’s continued
adherence to Azzarello meant that the courts were “essentially thirty years behind” with
respect to advancements in products liability law.38 Justice Saylor went on to cite the Third
Circuit’s opinion in Berrier, tipping his cap to the judges who had based their prediction on
Saylor’s own concurring opinion in Phillips I. He cited the Third Circuit’s belief that the
Restatement (Third) eliminates the confusion that has arisen from attempting to keep separate
actions sounding in negligence and products liability, and stated quite frankly that the
Restatement (Third) “provides a suitable template for making up for lost time and moving
forward.”39
However strong Justice Saylor and Chief Justice Castille may be in their belief that the
Pennsylvania Supreme Court would be wise to adopt sections 1 and 2 of the Restatement
(Third) of Torts: Products Liability, it appears, at least for now, that the rest of the members of
the Pennsylvania Supreme Court are content with section 402A of the Restatement (Second) as
the controlling law in Pennsylvania.
4.
Proving the Plaintiff’s Case
In order to prevail on a claim of strict liability against the seller of a defective product for
injuries caused by that product, a plaintiff’s prima facie case under section 402A requires a
showing that (1) the product was defective; (2) that the defect existed at the time the product
left the manufacturer’s hands; and (3) that the defect was the proximate cause of the plaintiff’s
injures.40 Under the first prong of the plaintiff’s prima facie case, the plaintiff can show that the
product was defective by proving that it was defectively manufactured, that it was defectively
designed, or that it contained inadequate or improper warnings and/or instructions.41
36
971 A.2d 1228 (Pa. 2009). Interestingly, in Berrier, the Third Circuit cited the appeal allowed in Bugosh
as support for its prediction that the Pennsylvania Supreme Court would ultimately adopt the Restatement (Third)
of Torts: Products Liability.
37
Bugosh, 971 A.2d at 1241 (Saylor, J., dissenting).
38
Id.
39
Id.
40
See Walton v. Avco Corp., 610 A.2d 454, 458 (Pa. 1992).
41
Id. at 458–59.
10
a.
Manufacturing Defect
In a case alleging a manufacturing defect, the plaintiff is generally responsible for
proving that there is some discrepancy between the nature and quality of the product
intended to be produced and the product that is actually produced.42 In a manufacturing
defect case, the burden is on the plaintiff to show that the product has failed to “comport with
its intended design and is unsafe for normal handling or use.”43
In cases where a plaintiff is unable to prove the existence of a manufacturing defect by
direct evidence, for example, where a product has been destroyed, a plaintiff may be able to
proceed against a manufacturer of an allegedly defective product on a “malfunction theory,” a
theory adopted by the Pennsylvania Supreme Court in Rogers v. Johnson & Johnson Products
Inc.44 In a malfunction theory case, the plaintiff has the responsibility of showing the
occurrence of a malfunction, which amounts to “circumstantial evidence that the product had a
defect,” and some evidence to eliminate “abnormal use or reasonable, secondary causes.”45 By
proving the first element, the plaintiff is essentially proving that the product had a defect,
without actually being able to show what the defect was. Further, by eliminating abnormal use
or other reasonable causes, the plaintiff is showing that the particular defect existed when it
left the manufacturer’s hands and that the defect was the cause of the plaintiff’s injuries.46
Although stated differently, the plaintiff is still essentially responsible for proving the traditional
elements of a prima facie case alleging strict liability, i.e., that the product was defective at the
time it left the seller’s hands and that the defect was the proximate cause of the plaintiff’s
injuries.
b.
Design Defect
The plaintiff also has the option of proving that the seller’s product was defectively
designed. As the Court noted in Azzarello, in his role as the guarantor of his product, a
manufacturer is effectively representing that the product is “safe for its intended use” when
he places it into the stream of commerce.47 In order to allow a trial court to determine that a
product was defective because of its design, the plaintiff must show that the product either
does not possess an “element necessary to make it safe for its intended use,” or that it
possesses a “condition that makes it unsafe for its intended use.”48 In making this
determination, trial courts will look to a number of factors. As discussed previously, a trial
court will look to “the gravity of the danger posed by the challenged design; the likelihood that
such danger would occur; the mechanical feasibility of a safer design; and the adverse
42
See Stecher v. Ford Motor Co., 779 A.2d 491, 502 (Pa. Super. Ct. 2001) (Tamilia, J., dissenting).
Dambacher v. Mallis, 485 A.2d 408, 433 (Pa. Super. Ct. 1984) (Wieand, J., concurring and dissenting).
44
565 A.2d 751 (Pa. 1989).
45
Barnish v. KWI Bldg. Co., 980 A.2d 535, 542 (Pa. 2009).
46
See id.
47
391 A.2d at 1026 (quoting Salvador, 319 A.2d 903).
48
Azzarello, 391 A.2d at 1027; see also Phillips I, 841 A.2d at 1007.
43
11
consequences to the product and to the consumer that would result from the safer design.”49
A court will also look to additional factors, including
1) The usefulness and desirability of the product - its utility to the user and to the
public as a whole. (2) The safety aspects of a product - the likelihood that it will
cause injury, and the probable seriousness of the injury. (3) The availability of a
substitute product which would meet the same need and not be as unsafe. (4)
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.
(5) The user's ability to avoid danger by the exercise of care in the use of the
product. (6) The user's anticipated awareness of the dangers inherent in the
product and their avoidability, because of general public knowledge of the
obvious condition of the product, or of the existence of suitable warnings or
instructions. (7) The feasibility on the part of the manufacturer of spreading the
loss of setting the price of the product or carrying liability insurance.50
In addition, the plaintiff is also responsible for showing that the defective design of the
product was the proximate cause of his injuries.51
c.
Inadequate or Insufficient Warning
In addition to showing that a product is defective because of a manufacturing defect or
a design defect, a plaintiff may also show that a product is defective because it was distributed
with inadequate or insufficient warnings. Pennsylvania law places the burden on the plaintiff to
show that the product was “distributed without sufficient warnings to notify the ultimate user
of the dangers inherent in the product.”52 However, the Court noted in Mackowick v.
Westinghouse Electric Corporation that a manufacturer is not required by section 402A or
Pennsylvania law to “educate a neophyte in the principles of the product” and that a warning
will be considered sufficient if it “adequately notifies the intended user of the unobvious
dangers inherent in the product.”53 In order to prove causation in a defective warning case, a
plaintiff must demonstrate that “the user of the product would have avoided the risk had he or
she been warned of it by the seller.”54
5.
Unavoidably Unsafe Products
Comment k to section 402A of the Restatement (Second) of Torts states that some
products, such as prescription drugs, are “quite incapable of being made safe for their intended
49
Schindler, 774 A.2d at 772.
Id. (citing Riley v. Warren Mfg., 688 A.2d 221, 224–25 (Pa. Super. Ct. 1997)).
51
See Dambacher, 485 A.2d at 413; see also Sherk v. Daisy-Heddon, Etc., 450 A.2d 615, 617 (Pa. 1982).
52
See Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990).
53
Id.
54
Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1171 (Pa. 1995).
50
12
use.”55 As such, comment k states that such products, because of their usefulness, cannot be
said to be defective or unreasonably dangerous, so long as accompanied by proper warnings
and directions.56 Pennsylvania courts have recognized this exception to the rule of strict
liability.57
6.
Who Can Bring Suit
While section 402A provides as a caveat that the American Law Institute expresses no
opinion as to whether the section 402A applies to “harm to persons other than users or
consumers,” Pennsylvania courts have consistently held that a manufacturer, seller, or
distributor may be held liable for harm that occurs in “in connection with a product’s intended
use by an intended user,” and conversely that “there is no strict liability in Pennsylvania relative
to non-intended uses even where foreseeable by a manufacturer.”58 As the Court noted in
Mineral Products, even “the foreseeable misuse of a product” is insufficient to support a claim
of strict products liability.59 This does not leave non-intended users without an avenue to
recovery, however. Pennsylvania courts have long found in favor of bystanders injured by a
defective product so long as the product itself was being used in its intended manner by an
intended user.60
B.
Negligence
In Pennsylvania, product liability suits may be grounded in negligence.61 Unlike suits
grounded in strict liability, negligence suits require proof of the defendant’s fault.62 In order to
prove fault, in some products liability cases Pennsylvania courts have only required plaintiffs to
establish the traditional elements of negligence: (1) the defendant owed the plaintiff a duty; (2)
the defendant breached that duty; (3) the breach proximately caused the plaintiff’s injuries;
and (4) the plaintiff suffered actual damages.63 In other cases, however, the courts have
suggested that the plaintiff must prove, in addition, that the defendant’s product is defective
and that this defect caused the plaintiff’s injury.64
55
RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965).
Id.
57
See generally Hahn v. Richter, 673 A.2d 888, 889–90 (Pa. 1996); Incollingo v. Ewing, 282 A.2d 206, 219–
20 (Pa. 1971).
58
Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590 (Pa. 2006).
59
Id.
60
See e.g., Webb v. Zern, 220 A.2d 853 (Pa. 1966); Schmidt v. Boardman Co., 958 A.2d 498 (Pa. Super. Ct.
2008), aff’d 11 A.3d 924 (Pa. 2011).
61
See Pa. Dep’t of Gen. Servs., 898 A.2d at 604.
62
Harsh v. Petroll, 840 A.2d 404, 415–16 (Pa. Commw. Ct. 2003) (quoting Griggs v. BIC Corp., 981 F.2d
1429, 1438 (3d Cir. 1992)).
63
See, e.g., Gavula v. Ara Servs., Inc., 756 A.2d 17, 22 (Pa. Super. Ct. 1999); First v. Zem Zem Temple, 686
A.2d 18, 21 n.2 (Pa. Super. Ct. 1996).
64
Dambacher, 485 A.2d at 424. But see Griggs, 981 F.2d at 1439 (predicting that the Pennsylvania
Supreme Court would not require proof of defect in negligence cases).
56
13
Regardless of which elements are required, a defendant manufacturer owes a duty only
to foreseeable users of the defendant’s products or those who could foreseeably be injured by
the defendant’s products.65 The defendant also only owes a duty to avoid exposing others to
risks that are foreseeable.66
C.
Breach of Warranty
In Pennsylvania, a plaintiff may also bring a claim against the seller of a defective
product under a theory of breach of warranty.67 Generally, these claims will be for a breach of
the implied warranty of merchantability or a breach of the implied warranty of fitness for a
particular purpose, as those terms are defined under the Pennsylvania Uniform Commercial
Code.68 In Goodman v. PPG Industries, Inc., the Superior Court stated that “[o]ur Supreme
Court harmonized the rules governing implied warranty claims with the rules governing
products liability claims, because the two types of actions are now substantially similar.”69
Although product liability claims and breach of warranty claims are not “coterminous,” product
liability cases “often include breach of warranty claims,” specifically where a plaintiff is alleging
that a product was not safe for its intended use, i.e., the product was defectively designed.70
In a case alleging a breach of an implied warranty, the Pennsylvania Supreme Court has
held that anyone injured by the allegedly defective product may bring suit, and anyone “in the
distributive chain” may be sued.71 The Court in Goodman explained that this rule is “true”
because the adoption of strict liability in the realm of product liability requires that the seller of
a product be the “guarantor” of that product’s safety.72 In order for a product to be considered
merchantable, it must be “fit for its ordinary purpose.”73 On the other hand, for a plaintiff to
bring suit against a seller on a theory of breach of the implied warranty of fitness for a
particular purpose, the plaintiff must show that the product was not fit for the particular
purpose that the plaintiff required, and that the seller, at the time of entering into the contract
with the plaintiff, had a reason to know of that particular purpose and that the buyer was
“relying on the skill or judgment of the seller to select or furnish such goods.”74 For breach of
warranty claims arising in the context of product liability cases, liability “turns on a lack of
fitness in the defendant’s product . . . rather than on the breach of a particular duty of care by
the defendant.”75
65
Griggs, 981 F.2d at 1438.
Burman v. Golay & Co., 616 A.2d 657, 659 (Pa. Super. Ct. 1992).
67
French v. Commw. Assocs., 980 A.2d 623, 633 (Pa. Super. Ct. 2009); see also Goodman v. PPG Industries,
Inc., 849 A.2d 1239, 1245 (Pa. Super. Ct. 2004), aff’d, 885 A.2d 982 (Pa. 2005).
68
French, 980 A.2d at 633; see also Williams v. West Penn Power Co., 467 A.2d 811 (Pa. 1983).
69
849 A.2d at 1245.
70
See id.
71
Id.
72
Id.
73
French, 980 A.2d at 633 (citing Phillips v. Cricket Lighters, 883 A.2d 439, 444 (Pa. 2005) (Phillips II)).
74
13 PA. CONS. STAT. § 2315 (2011).
75
French, 980 A.2d at 633 (quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914, 920 (Pa. 1974)).
66
14
D.
The Consumer Protection Act
Plaintiffs also have the option of bringing a cause of action against the seller of an
allegedly defective product under the Unfair Trade Practices and Consumer Protection Law
(UTPCPL).76 The UTPCPL creates a private cause of action for any person who “purchases or
leases goods . . . primarily for personal, family, or household purposes and thereby suffers any
ascertainable loss of money or property, real or personal, as a result of the use or employment
by any person of a method, act, or practice declared unlawful by section 3 of the [UTPCPL].”77
The UTPCPL lists 23 separate acts or practices that are declared to be unlawful, including
“[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients,
uses, benefits or quantities that they do not have or that a person has a sponsorship, approval,
status, affiliation, or connection that he does not have;”78 “[r]epresenting that goods are
original or new if they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand;”79 and “[r]epresenting that goods or services are of a particular standard, quality
or grade, or that goods are of a particular style or model, if they are of another.”80
II.
Causation
Causation is of two types: (1) causation in fact and (2) proximate or legal causation.81
Under Pennsylvania law, the test for causation in fact is the “but-for test”: “‘if the harmful
result would not have come about but for the negligent conduct then there is a direct causal
connection between the negligence and the injury.’”82 The test for proximate causation is
usually said to be a “substantial factor test”: were “the defendant’s acts or omissions . . . a
substantial factor in bringing about the plaintiff’s harm[?]”83 On at least one occasion, the
Pennsylvania Supreme Court seemed to suggest an alternative “natural sequence test” for
proximate cause: “the actor is responsible for all the . . . consequences [of the actor’s conduct]
no matter how remote, which follow in a natural sequence of events.”84
76
73 PA. STAT. ANN. § 201-1 et. seq. (2011).
Id. § 201-9.2.
78
Id. § 201-2(4)(v).
79
Id. § 201-2(4)(vi).
80
Id. § 201-2(4)(vii).
81
Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1125 (Pa. 1987) (Hutchinson, J., concurring); Sherk, 450
A.2d at 621 (Hutchinson, J., concurring) (distinguishing the two types of causation in a products liability case
involving negligence and strict liability causes of action); Gutteridge v. A.P. Green Servs., 804 A.2d 643, 655 (Pa.
Super. Ct. 2002) (distinguishing the two types of causation in a products liability case).
82
First, 686 A.2d at 21 n.2 (quoting E.J. Stewart, Inc. v. Aitken Prods., Inc., 607 F. Supp. 883, 889 (E.D. Pa.
1985), aff’d, 779 F.2d 42 (3d Cir. 1985)); see also Summers v. Giant Food Stores, Inc., 743 A.2d 498, 509 (Pa. Super.
Ct. 1999).
83
Blum ex rel. Blum v. Merrell Dow Pharms., 705 A.2d 1314, 1316 (Pa. Super. Ct. 1997), aff’d sub nom.
Blum v. Merrell Dow Pharms., 764 A.2d 1 (Pa. 2000); First, 686 A.2d at 21 n.2.
84
Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 900 (Pa. 1975) (plurality). In Berkebile, the
Pennsylvania Supreme Court also specified that “[f]oreseeability is not a test of proximate cause.” Id.
77
15
Some Pennsylvania precedents suggest that, in order to recover in negligence or strict
liability, a plaintiff must prove both types of causation.85 Other opinions suggest that a plaintiff,
in bringing a strict liability claim, must only prove one type of causation—proximate
causation.86 Similarly, for breach of warranty claims, the Pennsylvania courts require that the
plaintiff prove proximate causation, but do not specifically require that the plaintiff prove cause
in fact.87
The Pennsylvania courts do agree that a plaintiff must prove both types of causation if
the theory of recovery is strict liability for failure to warn. That is, the plaintiff must show that a
product’s hazardous condition was the cause in fact of the plaintiff’s injury and that the failure
to adequately warn about that condition was the proximate cause of the injury.88 Still, the
Pennsylvania Superior Court somewhat altered the burden of proof for proximate cause when
the court adopted the “heeding presumption” for claims alleging failure to adequately warn.89
Under this presumption, the court will presume that, had the plaintiff received an adequate
warning, the plaintiff would have heeded such a warning.90 That is, the court will presume that
the failure to adequately warn the plaintiff proximately caused the plaintiff’s injuries.91 Thus,
the plaintiff will be required to prove proximate cause only if the defendant rebuts the
presumption in favor of finding proximate cause.92
When a plaintiff must prove causation, the plaintiff must do so by a preponderance of
the evidence.93 A plaintiff may prove causation using circumstantial evidence.94
85
See First, 686 A.2d at 21 n.2 (stating that both negligence and strict liability claims require proof of
causation, which is defined as cause in fact and proximate causation); E.J. Stewart, Inc., 607 F. Supp. at 888–89.
86
Berkebile, 337 A.3d at 898 (“Strict liability requires, in substance, only two elements of requisite proof:
the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of
the plaintiff’s injuries.”); Spino, 696 A.2d at 1172.
87
AM/PM Franchise Ass’n v. Atlantic Richfield Co., 584 A.2d 915, 923 n.12 (Pa. 1990) (In “all cases
involving breach of warranty, the plaintiff is charged with the burden of proving that the defendant’s breach is the
proximate cause of the harm suffered.”); Price v. Chevrolet Motor Div. of GMC, 765 A.2d 800, 809 (Pa. Super. Ct.
2000) (“To prevail on a claim for breach of warranty under the Pennsylvania Uniform Commercial Code, a plaintiff
must establish that a breach of warranty occurred and that the breach was the proximate cause of the specific
damages sustained.”).
88
Moroney v. GMC, 850 A.2d 629, 633–34 (Pa. Super. Ct. 2004); Coward v. Owens-Corning Fiberglass
Corp., 729 A.2d 614, 620 (Pa. Super. Ct. 1999); Books v. Pa. Power & Light Co., 523 A.2d 794, 798 (Pa. Super. Ct.
1987) (quoting Conti v. Ford Motor Co., 743 F.2d 195, 197–98 (3rd Cir. 1984)).
89
See Coward, 729 A.2d at 621.
90
Id.
91
See id.
92
Id. at 621–22.
93
Blum ex rel. Blum, 705 A.2d at 1316; Mount Olivet Tabernacle v. Edwin L. Wiegand Div., Emerson Electric
Co., 781 A.2d 1263, 1275–76 (Pa. Super. Ct. 2001) (Del Sole, P.J., concurring), aff’d, 811 A.2d 565 (Pa. 2002).
94
Blum ex. rel. Blum, 705 A.2d at 1316.
16
III.
Industry Wide Liability
As the Pennsylvania Superior Court stated in Burnside v. Abbot Laboratories,95 “an
essential element of any cause of action in tort is that there must be some reasonable
connection between the act or omission of the defendant and the injury suffered by the
plaintiff.”96 That is, the plaintiff must show that some conduct on the part of the particular
defendant being sued was responsible for the plaintiff’s injuries. In some cases, however, it
may be difficult for a plaintiff to identify which of a large group of manufacturers or sellers of a
product was responsible for selling the particular product that the plaintiff alleges caused
his/her injuries. For example, where a number of manufacturers produced a drug that was sold
under a generic brand name, it may be difficult for plaintiffs to prove which defendant
manufactured the particular drug taken by the plaintiff.
In such cases, a plaintiff or plaintiffs may attempt to proceed on a theory of “industrywide” liability. By alleging “industry-wide” liability, the plaintiff or plaintiffs are attempting to
shift the burden to the defendants by requiring each defendant to prove that their particular
product did not cause the plaintiff’s injuries. Generally, plaintiffs can use one of five distinct
theories to support their allegation of industry-wide liability: alternative liability, concert of
action, enterprise liability, market share liability, and/or civil conspiracy.
A.
Burnside v. Abbot Laboratories
In Burnside, five women brought an action against seventy-two pharmaceutical
companies alleging that various physical disabilities that they suffered from were due to the
ingestion by their mothers of the drug diethylstilbestrol (DES) during pregnancies.97 DES is a
“synthetic estrogen [that was] first synthesized in 1937” and has been prescribed by physicians
for various reasons, including deterrence of miscarriages.98 In Burnside, the five women did not
specifically aver which company had been responsible for manufacturing the particular product
that they ingested, and instead their complaints averred that all of the pharmaceutical
companies were jointly and/or severally liable because DES was generically branded at the time
of ingestion.99
After initial discovery, thirty-two of the original defendants were dismissed without
objection; seventeen defendants were dismissed because appellants failed to serve them, and
fifteen others were able to show that it was impossible for their products to have been ingested
by any of the plaintiffs.100 Of the forty remaining defendants, twenty-six then filed a motion for
summary judgment, alleging that the five plaintiffs could not have been “exposed to and
95
505 A.2d 973 (Pa. Super. Ct. 1985).
Id. at 978.
97
Id. at 976. One woman’s claims actually stemmed from her own ingestion of DES. Id.
98
Id.
99
Id.
100
Burnside, 505 A.2d at 976.
96
17
injured by its product.”101 The trial court granted each of the motions for summary judgment
on the basis that undisputed affidavits and discovery documents showed that the defendants
could not have been the manufacturer of the drugs ingested by the plaintiffs. Although the
plaintiffs agreed with the court’s factual finding, they appealed the trial court’s ruling, alleging
that summary judgment was improper because they had averred industry-wide liability under
the theories of civil conspiracy, concerted action, and enterprise liability.102 Indeed, the
plaintiffs’ theory on appeal was that although the defendants were not directly responsible for
their injuries, they were liable on a theory of industry-wide liability.103
B.
Civil Conspiracy
In order to state a cause of action for civil conspiracy, Pennsylvania law requires that a
plaintiff show that “two or more persons combine or enter an agreement to commit an
unlawful act or to do an otherwise lawful act by unlawful means.”104 As the Superior Court
noted, it is not actionable conspiracy simply because two or more persons happen to do a thing
at the same time; rather, proof of malice is “an essential part” of a cause of action for civil
conspiracy.105 Because the plaintiffs in Burnside had failed to “allege the manner in which a
conspiratorial scheme was devised and carried out,” the Superior Court upheld the trial court’s
ruling.106 As the Superior Court explained, the plaintiffs’ complaint contained only bare
allegations of “wrongful, reckless, careless, negligent, and grossly negligent” conduct, and no
specific averments regarding any “meetings, telephone calls, joint filing, cooperation,
consolidation, or joint licensing.”107 As such, the plaintiffs’ allegations of a “contemporaneous
and negligent failure to act” were not sufficient to state a cause of action for civil conspiracy.108
C.
Concerted Action
Under the concerted action theory as found in section 876 of the Restatement (Second)
of Torts, the seller of a product will be subject to liability for harm resulting to a third party
from the conduct of another if he
(a) does a tortious act in concert with the other or pursuant to a common design
with him, or (b) knows that the other’s conduct constitutes a breach of duty and
gives substantial assistance or encouragement to the other so to conduct
himself, or (c) gives substantial assistance to the other in accomplishing a
tortious result and his own conduct, separately considered, constitutes a breach
of duty to the third person.
101
Id.
Id. at 978.
103
Id.
104
Id. at 980 (citing Slaybaugh v. Newman, 479 A.2d 517, 519 (Pa. Super. Ct. 1984)).
105
Burnside, 505 A.2d 973, 980 (citing Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 472 (Pa. 1979)).
106
Burnside, 505 A.2d at 983.
107
Id.
108
Id.
102
18
A plaintiff alleging liability based on the concert of action theory must show some
wrongful conduct on the part of the defendant.109 The Superior Court in Burnside explained
that to proceed on a theory of concert of action, a plaintiff must “identify the person who acted
in concert with the wrongdoer or who gave him assistance or encouragement.”110 The Burnside
court again upheld the trial court’s grant of summary judgment with respect to the concert of
action theory, holding that the plaintiffs had not alleged “either a tacit understanding or
common design to market a defective product,” but rather had charged the defendants with
“‘parallel and imitative’ conduct,” conduct that is insufficient to support a cause of action under
the theory of concert of action.111
D.
Enterprise Liability
A plaintiff can prevail on a theory of enterprise liability by proving that the allegedly
defective product was (1) manufactured by “one of a small number of defendants in an
industry,” (2) the defendants had “joint knowledge of the risks inherent in the product and
possessed a joint capacity to reduce those risks;” and (3) rather than taking the steps to reduce
the risk of harm inherent in the product, the manufacturers delegated that responsibility to a
trade association.112 Generally, however, the enterprise liability theory is only applicable in
cases involving a small number of defendants who comprise the entire industry or nearly the
entire industry.113 In Burnside, the plaintiffs failed to aver any of the elements of a cause of
action for enterprise liability, and as such, the Superior Court rejected their claim.
E.
Market Share Liability
In Burnside, the Superior Court also acknowledged that plaintiffs may be able to recover
on an industry-wide theory by proving market share liability, although the Superior Court
refused to adopt the market share theory because the facts of the case did not support doing
so.114 To prevail on a theory of market share liability, a plaintiff is responsible for showing that
(1) all defendants are tortfeasors; (2) the allegedly harmful products are identical
and share the same defective qualities; (3) plaintiff is unable to identify which
defendant caused her injury through no fault of her own; and (4) the
manufacturers of substantially all of the defective products in the relevant area
and during the relevant time are named as defendants.115
109
See id. at 982 (citing Summit Hotel Co. v. Nat’l Broad. Co., 8 A.2d 302, 305 (Pa. 1939)).
Burnside, 505 A.2d at 982.
111
Id. at 984.
112
Id.
113
Id. at 984–85.
114
Id. at 986.
115
See Mellon v. Barre-National Drug Co., 636 A.2d 187, 192 (Pa. Super. Ct. 1993) (quoting City of Phila. v.
Lead Indus. Assoc., 994 F.2d 112, 124–25 (3d. Cir. 1993)).
110
19
In Mellon v. Barre-National Drug Co.,116 the Superior Court again refused to adopt
market share liability, noting that the theory had only been adopted in the Commonwealth by a
lone trial court opinion, there was no “clear authoritative signal” that the Pennsylvania
Supreme Court would adopt market share liability, and no “nationwide consensus” existed with
regard to whether market share liability theory is a valid exception to the general requirement
that a plaintiff prove proximate causation on the part of the defendant.
F.
Alternative Liability
Although the appellants in Burnside had also argued that the trial court’s grant of
summary judgment was improper because questions of fact remained as to the appellees’
liability under the alternative liability theory propounded by section 433B(3) of the
Restatement (Second) of Torts, appellants did not advance that issue at the Superior Court
level.117 As such, the Superior Court did not discuss the alternative liability theory.118
Section 433B(3) of the Restatement (Second) of Torts provides that “[w]here the
conduct of two or more actors is tortious, and it is proved that harm has been caused to the
plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden
is upon each such actor to prove that he has not caused the harm.”119 Although the Burnside
court only acknowledged that alternative liability was another possible route of recovery for
plaintiffs, the Superior Court has on other occasions discussed, and at a very minimum,
implicitly adopted the theory.120
IV.
Post-Sale Duties
In Pennsylvania, the general rule is that a manufacturer has a post-sale duty to warn
consumers if: (1) the product in question was defective at the time of sale; and (2) the
manufacturer becomes aware of the defect.121 Such warnings must be made directly to the
consumer or user.122
The Pennsylvania courts generally do not impose a “post-sale duty to warn about
technological advances [or new safer designs] where no defect existed in [a] product at the
time of sale,”123 unless the product at issue is a prescription drug.124 The Pennsylvania courts
also impose no common-law duty to recall, withdraw, or retrofit products.125
116
636 A.2d at 187.
Burnside, 505 A.2d at 978 n.1.
118
Id.; see also Erlich v. Abbot Laboratories, 5 Phila. 249, 255 (Ct. Com. Pl. Phila. 1981).
119
RESTATEMENT (SECOND) OF TORTS § 433B(3) (1965).
120
See Snoparsky v. Baer, 266 A.2d 707 (Pa. 1970); Sommers v. Hessler, 323 A.2d 17 (Pa. 1974).
121
See Walton, 610 A.2d at 458–59; DeSantis v. Frick Co., 745 A.2d 624, 630 (Pa. Super. Ct. 1999).
122
Walton, 610 A.2d at 459.
123
DeSantis, 745 A.2d at 630; Lynch v. McStome & Lincoln Plaza Assocs., 548 A.2d 1276, 1280 (Pa. Super.
Ct. 1988).
117
20
V.
Successor Liability
Under Pennsylvania law, the general rule is that a successor-in-interest does not acquire
the liabilities of its predecessor.126 Still, Pennsylvania courts have often recognized six
exceptions to this rule:
1) The purchaser expressly or impliedly agrees to assume such obligation; 2) The
transaction amounts to a consolidation or merger; 3) The purchasing corporation
is merely a continuation of the selling corporation; 4) The transaction is
fraudulently entered into to escape liability; 5) The transfer was not made for
adequate consideration and provisions were not made for the creditors of the
transfer; and, 6) The successor undertakes to conduct the same manufacturing
operation of the transferor’s product lines in essentially an unchanged manner.
The successor is then strictly liable for injuries caused by defects in the product
line, even if previously manufactured and distributed by the transferor.127
The sixth exception, known as the product-line exception, has been the subject of
particularly frequent litigation.128 Although the Pennsylvania Superior Court has long
recognized this exception, the Pennsylvania Supreme Court recently refused to decide
whether the exception is valid.129
VI.
Defenses
A.
Superseding Causes
A superseding cause “‘is an act of a third person or other force which, by its
intervention, prevents the actor from being liable for harm to another which his antecedent
124
Lance v. Wyeth, 4 A.3d 160, 167 & n.4 (Pa. Super. Ct. 2010) (holding that manufacturers of prescription
drugs have “a continuing post-sale duty to warn” even where the drug in question was not defective at the time of
sale), appeal granted, 15 A.3d 429 (Pa. 2011).
125
Id.; Lynch, 548 A.2d at 1280–81.
126
Schmidt v. Boardman Co., 11 A.3d 924, 928 (Pa. 2011) (“[T]he prevailing general rule of law [is] that the
purchaser in an asset sale does not acquire the seller’s tort liabilities[.]”); Putt v. Yates-American Mach. Co., 722
A.2d 217, 224 (Pa. Super. Ct. 1998) (quoting Dawejko v. Jorgensen Steel Co., 434 A.2d 106, 107 (Pa. Super. Ct.
1981)); Mendralla v. Weaver Corp., 703 A.2d 480, 484 (Pa. Super. Ct. 1997).
127
Childers v. Power Line Equip. Rentals, 681 A.2d 201, 212 (Pa. Super. Ct. 1997) (quoting Simmers v. Am.
Cyanamid Corp., 576 A.2d 376, 386 (Pa. Super. Ct. 1990)); see also Putt, 722 A.2d at 224; Carlos R. Leffler, Inc. v.
Hutter, 696 A.2d 157, 167 (Pa. Super. Ct. 1997).
128
Schmidt, 11 A.3d at 936–46 (discussing product-line exception); Childers, 681 A.2d at 212–13 (affirming
lower court’s decision to apply product-line exception); Burnside, 505 A.2d at 987 (rejecting application of productline exception to a pharmaceutical company in a case involving DES); Dawejko, 434 A.2d at 110–12 (discussing,
adopting, and applying the product-line exception).
129
Schmidt, 11 A.3d at 946.
21
negligence’” proximately caused.130 That is, a superseding cause cuts off proximate causation.
To be superseding, a cause must be so extraordinary that it could not reasonably have been
foreseen.131 Whether a cause is superseding is normally a question for the jury to decide.132
In product liability cases, the issue of superseding cause often arises where a product
has been altered after the manufacturer sold it. Such alterations may constitute a superseding
cause.133
The tortious or criminal acts of third parties are often superseding causes. Such acts
may not cut off liability, however, if they were foreseeable.134
B.
Contributory Negligence / Comparative Fault
In Pennsylvania, contributory negligence and comparative fault are governed by a
statute, which states:
In all actions brought to recover damages for negligence resulting in death or
injury to person or property, the fact that the plaintiff may have been guilty of
contributory negligence shall not bar a recovery by the plaintiff or his legal
representative where such negligence was not greater than the causal
negligence of the defendant or defendants against whom recovery is sought, but
any damages sustained by the plaintiff shall be diminished in proportion to the
amount of negligence attributed to the plaintiff.135
This statute establishes a modified system of comparative negligence. That is, the statute
disposes of the traditional contributory negligence rule under which a plaintiff is completely
barred from recovery if his own negligence contributed at all to his injury.136 Instead, a plaintiff
is barred from recovering only if his negligence exceeds that of the defendant or defendants.137
Thus, a plaintiff would be barred from recovering if the jury determined that the plaintiff’s
negligence was 51% or greater and the negligence of the defendant (or defendants) was 49% or
130
Von Der Heide v. Commonwealth Dep’t of Transp., 718 A.2d 286, 288 (Pa. 1998) (quoting RESTATEMENT
(SECOND) OF TORTS § 440 (1965)).
131
Id.
132
Powell v. Drumheller, 653 A.2d 619, 624 (Pa. 1995).
133
See Davis, 690 A.2d at 190 (employer’s removal of safety device from machine constituted a
superseding cause of plaintiff employee’s injuries); Kuisis, 319 A.2d at 922 n.15 (alterations may cut off liability
unless the alterations were foreseeable); Putt, 722 A.2d at 221 (same).
134
Klages v. Gen. Ordnance Equip. Corp., 367 A.2d 304, 313 (Pa. Super. Ct. 1976) (holding that criminal
conduct was not a superseding cause where defendant manufactured a can of mace which was intended for use
against criminal attackers, but which was not as effective as the manufacturer promised).
135
42 PA. CONS. STAT. § 7102(a) (2011).
136
Malinder v. Jenkins Elevator & Mach. Co., 538 A.2d 509, 521 (Pa. Super. Ct. 1988) (Beck, J., dissenting).
137
Id.; Casselli v. Powlen, 937 A.2d 1137, 1138 n.1 (Pa. Super. Ct. 2007).
22
less. As long as the plaintiff’s negligence is 50% or less, the plaintiff will recover something.138
The plaintiff’s recovery simply will “be diminished in proportion to the amount of negligence
attributed to the plaintiff.”139
By its terms, this statute applies to “actions . . . for negligence.” The Pennsylvania courts
have held that, with strict liability claims, contributory negligence and comparative negligence
may not be used as defenses.140
C.
Assumption of the Risk
The defense of assumption of the risk may be used to defend both negligence and strict
liability claims.141 To prove assumption of the risk, a defendant must show that the plaintiff
“knew of a defect [in a product] and yet voluntarily and unreasonably proceeded to use the
product in conscious disregard for the attendant risks.”142 A plaintiff’s awareness of risk may be
proven with circumstantial evidence.143 The court, and not the jury, decides whether the
plaintiff assumed the risk.144 If a plaintiff assumed the risk, then the plaintiff will be completely
barred from recovery.145 In Pennsylvania, an employee is not deemed to have assumed a risk if
the employee uses a product as directed by his or her employer because the employee is
considered to have no choice in encountering the risk posed by the product.146
D.
Unintended Use, Unintended Users, and Misuse
In recent decisions, the Pennsylvania Supreme Court has stated that a defendant may
only be strictly liable for injuries caused by a product defect if the consumer was an intended
user who was using the product for its intended use.147 If a plaintiff was misusing a product,
even if that misuse was foreseeable, the plaintiff cannot recover under strict liability.148 The
court, however, has recognized a narrow exception where a manufacturer could have foreseen
138
See O’Brien v. Martin, 638 A.2d 247, 248 (Pa. Super. Ct. 1994) (noting that the plaintiff recovered at
trial, where the jury determined the plaintiff was 50% negligent and the defendants were 50% negligent).
139
§ 7102(a).
140
Kimco Dev. Corp. v. Michael D’s Carpet Outlets, 637 A.2d 603, 607 (Pa. 1993); Gaudio v. Ford Motor Co.,
976 A.2d 524, 540 (Pa. Super. Ct. 2009), appeal denied, 989 A.2d 917 (Pa. 2010).
141
See Reott v. Asia Trend, Inc., 7 A.3d 830, 836 (Pa. Super. Ct. 2010) (recognizing that assumption of the
risk may be asserted as a defense to a strict liability claim), appeal granted, 20 A.3d 1187 (Pa. 2011); Clark v. BilJax, Inc., 763 A.2d 920, 923 (Pa. Super. Ct. 2000) (same).
142
See Reott, 7 A.3d at 836.
143
Frey v. Harley Davidson Motor Co., 734 A.2d 1, 6, 8 (Pa. Super. Ct. 1999).
144
Id. at 8–9. But see Robinson v. B.F. Goodrich Tire Co., 664 A.2d 616, 618 (Pa. Super. Ct. 1995) (“[T]he
theory may be submitted to a jury[.]”).
145
Hadar v. Avco Corp., 886 A.2d 225, 228 (Pa. Super. Ct. 2005).
146
Clark, 763 A.2d at 924–25; Jara v. Rexworks Inc., 718 A.2d 788, 795 (Pa. Super. Ct. 1998).
147
Pa. Dep’t of Gen. Servs., 898 A.2d at 600; see also Commonwealth v. U.S. Mineral Prods. Co., 956 A.2d
967, 974 (Pa. 2008).
148
Pa. Dep’t of Gen. Servs., 898 A.2d at 601 (“[F]oreseeable misuse of a product will not support a strict
liability claim.”).
23
that consumers would alter a product (not merely misuse it) by, for instance, removing a safety
device.149
The Supreme Court’s recent statements seem to have created some confusion in this
area of the law.150 The U.S. Third Circuit Court of Appeals recently attempted to interpret the
Pennsylvania Supreme Court’s statements relating to intended and unintended users. The
Third Circuit found that these statements should not be interpreted as disallowing bystander
recovery.151 That is, even though a bystander who is injured by a product is not an intended
user, such a person may still recover.
The Pennsylvania Superior Court also recently explained the Pennsylvania Supreme
Court’s statements by distinguishing between the doctrine of unintended use and the defense
of misuse.152 The Supreme Court’s statements relate to the former, and not the latter.153 The
doctrine of unintended use arises where a defendant can show that its product is not defective
because the product was designed so that it is safe for its intended uses; the user was simply
using the product for an unintended use.154 In contrast, the defense of misuse relates to
causation. To employ this defense, a defendant must show that the plaintiff’s misuse of a
product “was so outrageous and unforeseeable as to constitute the sole and superseding cause
of the plaintiff’s injury.”155 Thus, while foreseeability is not an issue with regard to the doctrine
of unintended use, it is an issue with regard to the defense of misuse.
E.
Statutes of Limitations
A two-year statute of limitations applies to claims for personal injury and wrongful
death,156 as well as claims for property damage.157 Breach of warranty claims, however, are
governed by a longer four-year statute of limitations.158
149
Id. at 601 n.10 (citing Davis, 690 A.2d at 190).
The U.S. Third Circuit Court of Appeals recently certified the following question to the Pennsylvania
Supreme Court: “Whether, under Pennsylvania law a plaintiff minor child may pursue a strict liability claim for
injuries caused by a riding lawnmower, where the child is neither an intended user nor consumer of the mower.”
Berrier, 563 F.3d at 60 n.33. The Pennsylvania Supreme Court declined to respond. See Berrier v. Simplicity Mfg.,
959 A.2d 900 (Pa. 2008).
151
Berrier, 563 F.3d at 40. For more on bystander recovery, see infra Part VIII.B.
152
Reott, 7 A.3d at 840–41; see also Smith v. Yamaha Motor Corp., U.S.A., 5 A.3d 314, 321 (Pa. Super. Ct.
2010) (similarly distinguishing the two concepts).
153
See Reott, 7 A.3d at 840–41.
154
Id. at 841.
155
Id. at 840. Stated otherwise, the defendant must show “that the misuse solely caused the accident
while the design defect did not contribute to it.” Smith, 5 A.3d at 321.
156
42 PA. CONS. STAT. § 5524(2) (2011); see also Pastierik v. Duquesne Light Co., 526 A.2d 323, 325 (Pa.
1987) (applying 42 Pa. Cons. Stat. § 5524 in a wrongful death case).
157
42 PA. CONS. STAT. § 5524(3), (4), (7) (2011).
158
Williams v. West Penn Power Co., 467 A.2d 811, 814 (Pa. 1983); 13 PA. CONS. STAT. § 2725 (2011).
150
24
Under Pennsylvania law, the statute of limitations will normally begin to run on a tort
claim when the injury occurs.159 Still, Pennsylvania also employs the discovery rule, which
arises where a potential plaintiff does not immediately realize that he or she is injured.160
Under such circumstances, the statute of limitations does not begin to run until the plaintiff
realizes or should realize that he or she is injured and that the defendant’s conduct caused the
injury.161 Notably, the discovery rule does not apply to wrongful death claims.162
F.
Statute of Repose
Pennsylvania has a statute of repose,163 which states, in relevant part: “a civil action or
proceeding brought against any person lawfully performing or furnishing the design, planning,
supervision or observation of construction, or construction of any improvement to real
property must be commenced within 12 years after completion of construction of such
improvement.”164 Defendants have sometimes asserted this statute as a defense in products
liability cases.165 Still, this statute ostensibly has limited application in products liability law,
because the Pennsylvania Supreme Court has held that the statute does not apply to
manufacturers who do nothing more than design and/or supply a product that is incorporated,
by others, into an improvement to real property.166 Instead, in order to find protection under
the statute, a manufacturer must perform a function similar to that of a builder.167 In addition,
the Supreme Court has suggested, without unequivocally stating, that the statute might only
apply to products individually manufactured, and not to mass-produced products.168
G.
Federal Preemption of State Law Claims
Preemption occurs where federal law precludes the application of state law.
Preemption can be any one of three types: (1) express preemption, where the language of a
federal statute expressly states that the statute displaces inconsistent state law; (2) occupation
of the field preemption, where Congress has so comprehensively legislated within a particular
field that no room is left for the states to legislate; and (3) conflict preemption, where federal
159
Moyer v. United Dominion Indus., 473 F.3d 532, 547 (3d Cir. 2007).
Id.
161
Id.
162
Pastierik, 526 A.2d at 325, 327.
163
42 PA. CONS. STAT. § 5536 (2011).
164
Id.
165
See, e.g., McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331 (Pa. 1994); Desantis, 745 A.2d 624;
Fetterhoff v. Fetterhoff, 512 A.2d 30 (Pa. Super. Ct. 1986); Catanzaro v. Wasco Products, Inc., 489 A.2d 262 (Pa.
Super. Ct. 1985).
166
McConnaughey, 637 A.2d at 1334.
167
Id.
168
See id. at 1334–35 (quoting Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715, 719 (Pa. 1978)).
In Catanzaro v. Wasco Products, Inc., the Pennsylvania Superior Court read the statute more broadly so that the
statute applies to a manufacturer regardless of whether the manufacturer customized the product and regardless
of whether the manufacturer had any role in installing the product. 489 A.2d at 265–66. This reading, however, is
probably no longer valid after the Pennsylvania Supreme Court’s more recent decision in McConnaughey.
160
25
law and state law are in such conflict that state law must yield.169 Manufacturers have argued
that state tort law claims are preempted by federal law in a variety of different types of product
liability cases. These cases involve, for instance, the following products: medical implants and
devices,170 vaccines,171 drugs,172 chemicals,173 pesticides,174 asbestos,175 cell phones,176 motor
vehicles,177 trailers,178 forklifts,179 airplanes,180 lawnmowers,181 and trousers.182
169
Atwell v. John Crane, Inc., 986 A.2d 888, 890 (Pa. Super. Ct. 2009), appeal denied, 996 A.2d 490 (Pa.
2010).
170
Green v. Dolsky, 685 A.2d 110 (Pa. 1996) (holding, in a case involving a collagen implant, that several of
the plaintiffs’ claims were preempted); Horn v. Thoratec Corp., 376 F.3d 163 (3d Cir. 2004) (holding that the Food,
Drug and Cosmetic Act preempted claims involving left ventricular device); Michael v. Shiley, Inc., 46 F.3d 1316 (3d
Cir. 1995) (holding, in a case involving a heart valve, that the Food, Drug and Cosmetic Act preempted negligence
claims, but not fraud or breach of warranty claims); Williams v. Cyberonics, Inc., 654 F. Supp. 2d 301 (E.D. Pa. 2009)
(holding that claims relating to an allegedly defective medical device were preempted), aff’d, 388 Fed. Appx. 169
(3d Cir. 2010); Hunsaker v. Surgidev Corp., 818 F. Supp. 744 (M.D. Pa. 1992) (holding that Food and Drug
Administration regulations preempted claims based on allegedly defective intraocular lens), aff’d, 5 F.3d 1489 (3d
Cir. 1993) (unpublished table decision).
171
Sykes v. Glaxo-SmithKline, 484 F. Supp. 2d 289 (E.D. Pa. 2007) (holding that the Food, Drug, and
Cosmetic Act preempted some claims against vaccine manufacturer); Mazur v. Merck & Co., 742 F. Supp. 239 (E.D.
Pa. 1990) (holding that federal law did not preempt any claims against vaccine manufacturer).
172
Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553 (E.D. Pa. 2008) (holding that the Food, Drug and
Cosmetic Act did not preempt claims against the maker of an antidepressant medication); Perry v. Novartis Pharm.
Corp., 456 F. Supp. 2d 678 (E.D. Pa. 2006) (rejecting that the Food, Drug and Cosmetic Act preempted claims
against pharmaceutical companies and thus denying the defendants’ motion to dismiss the case).
173
Coffey v. Minwax Co., 764 A.2d 616 (Pa. Super. Ct. 2000) (holding that the Federal Hazardous
Substances Act preempted a failure to warn claim against the manufacturer of Minwax Antique Refinisher);
Greenawalt v. Philip Rosenau Co., 471 F. Supp. 2d 531 (E.D. Pa. 2007) (holding that the Federal Hazardous
Substances Act did not completely preempt claims based on exposure to toxic chemicals and solvents); Waering v.
BASF Corp., 146 F. Supp. 2d 675 (M.D. Pa. 2001) (holding that the Hazardous Materials Transportation
Authorization Act did not preempt claims against the manufacturer and the distributor of potassium
metabisulfite); Lee v. Boyle-Midway Household Prods., Inc., 792 F. Supp. 1001 (W.D. Pa. 1992) (holding that the
Federal Hazardous Substances Act preempted inadequate warning claims against the manufacturer of a drain
cleaner).
174
Romah v. Hygienic Sanitation Co., 705 A.2d 841 (Pa. Super. Ct. 1997) (holding that the Federal
Insecticide, Fungicide, and Rodenticide Act preempted some, though not all, claims against a pesticide
manufacturer), aff’d, 737 A.2d 249 (Pa. 1999); Sowers v. Johnson & Johnson Med., 867 F. Supp. 306 (E.D. Pa. 1994)
(same).
175
Atwell, 986 A.2d 888 (holding that various federal statutes did not preempt claims based on exposure
to asbestos that occurred while decedent repaired locomotives). Contra Kurns v. A.W. Chesterton Inc., 620 F.3d
392 (3d Cir. 2010) (holding that the Locomotive Inspection Act preempted claims based on exposure to asbestos
that occurred while decedent serviced locomotives), cert. granted, No. 10-879, 2011 U.S. LEXIS 4271 (U.S. June 6,
2011).
176
Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010) (holding that Federal Communications Commission
regulations preempted claims against cell phone manufacturers).
177
Cellucci v. GMC, 706 A.2d 806 (Pa. 1998) (holding that the National Traffic and Motor Vehicle Safety Act
preempted state tort claims against the manufacturer of a motor vehicle that did not include airbags); Pokorny v.
Ford Motor Co., 902 F.2d 1116 (3d Cir. 1990) (holding that the National Traffic and Motor Vehicle Safety Act
preempted some claims against the manufacturer of a van); Carrasquilla v. Mazda Motor Corp., 166 F. Supp. 2d
169 (M.D. Pa. 2001) (holding that the National Traffic and Motor Vehicle Safety Act preempted some claims
against a vehicle manufacturer); Lorincie v. SEPTA, 34 F. Supp. 2d 929 (E.D. Pa. 1998) (holding that the Locomotive
Boiler Inspection Act preempted a claim against the manufacturer of an engineer’s cab seat in a train).
26
H.
Open and Obvious Dangers, Inherent Dangers, and the Common
Knowledge Doctrine
Under Pennsylvania law, a manufacturer has no duty to warn about open and obvious
dangers.183 This same rule is sometimes stated otherwise: Manufacturers have no duty to warn
of dangers which are common knowledge.184 Thus, for instance, the Pennsylvania Superior
Court has found that a liquor manufacturer has no duty to warn of the dangers of drinking and
driving.185
The Pennsylvania courts have also adopted Comment i to the Restatement (Second) of
Torts § 402A.186 According to this comment, a defendant can only be liable in strict liability if a
product is:
dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to
the community as to its characteristics. Good whiskey is not unreasonably
dangerous merely because it will make some people drunk, and is especially
dangerous to alcoholics; but bad whiskey, containing a dangerous amount of
fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably
dangerous merely because the effects of smoking may be harmful; but tobacco
containing something like marijuana may be unreasonably dangerous.187
Thus, if the dangers of a product are common knowledge, the product is not unreasonably
dangerous and not defective.188 Under such circumstances, a strict liability claim cannot be
maintained.
178
Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992) (holding that the National Traffic and
Motor Vehicle Safety Act did not preempt state claims against the manufacturer of a flatbed trailer).
179
Kiak v. Crown Equip. Corp., 989 A.2d 385 (Pa. Super. Ct. 2010) (en banc) (holding that the Occupational
Safety and Health Act did not preempt a claim against the manufacturer of a forklift back-up alarm).
180
Sikkelee v. Precision Airmotive Corp., 731 F. Supp. 2d 429 (M.D. Pa. 2010) (holding that federal law
preempted claims against companies that manufactured, supplied, or repaired a carburetor that allegedly caused a
plane crash).
181
Frazier v. Heckingers, 96 F. Supp. 2d 486 (E.D. Pa. 2000) (holding that the Consumer Products Safety
Act preempted claims against a lawnmower manufacturer and retailer).
182
O’Donnell v. Big Yank, 696 A.2d 846 (Pa. Super. Ct. 1997) (holding that the Federal Flammable Fabrics
Act did not preempt a claim against the manufacturer of trousers that ignited during an accident).
183
Stephens v. Paris Cleaners, Inc., 885 A.2d 59, 69 (Pa. Super. Ct. 2005) (quoting Colegrove v. Cameron
Mach. Co., 172 F.Supp. 2d 611, 625–26 (W.D. Pa. 2001)).
184
Fletcher v. Raymond Corp., 623 A.2d 845, 848 (Pa. Super. Ct. 1993) (quoting Hon v. Stroh Brewery Co.,
835 F.2d 510, 513 (3rd Cir. 1987)).
185
Dauphin Deposit Bank & Trust Co. v. Toyota Motor Corp., 596 A.2d 845, 849–51 (Pa. Super Ct. 1991).
186
See id. at 848; see also Berkebile, 337 A.2d at 899 (citing Comment i).
187
RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965).
188
Dauphin, 596 A.2d at 848 (“If the dangers are known, then the product is not defective . . . .”).
27
Comment i is especially protective of inherently dangerous products, as evidenced by
the comment’s discussion of whiskey and tobacco. Thus, in following this comment,
“Pennsylvania courts have refused to recognize causes of action for products which are legal
and not defectively manufactured, but inherently dangerous.”189
I.
The Sophisticated User / Bulk Supplier Doctrine
In Phillips v. A.P. Green Refractories Co.,190 the Superior Court of Pennsylvania adopted
the sophisticated user / bulk supplier doctrine as a defense to both strict liability and negligence
claims.191 According to this doctrine, a supplier is not liable to an end-user for failure to warn if:
(1) the supplier could not feasibly warn the end-user; and (2) the supplier reasonably relied
upon a knowledgeable intermediary, such as the end-user’s employer, to warn the end-user.192
Applying this doctrine, the Superior Court found that bulk suppliers of sand were not liable for
failure to warn workers who used that sand, because the suppliers had reasonably relied upon
the workers’ employer, a knowledgeable and sophisticated user, to warn its own employees.193
J.
The Government Contractor Defense
In Boyle v. United Technologies Corp.,194 the U.S. Supreme Court recognized the
“government contractor defense.” This defense arises where a manufacturer has contracted to
sell military equipment to the federal government. The manufacturer cannot be liable for
design defects in the equipment if: (1) the federal government endorsed reasonably precise
specifications; (2) the equipment adhered to the specifications; and (3) the contractor warned
the federal government of any dangers in the use of the equipment that were not known to the
government, but were known to the contractor.195
This defense preempts state law. Thus, where the three elements are satisfied, a
defendant cannot be liable regardless of what Pennsylvania tort law may otherwise require.196
Still, the defense is only available where a manufacturer contracted with the federal
189
Hite v. R.J. Reynolds Tobacco Co., 578 A.2d 417, 420 (Pa. Super. Ct. 1990); see also Berkebile, 337 A.3d
190
630 A.2d 874 (Pa. Super. Ct. 1993), aff’d sub nom. Phillips v. A-Best Prods. Co., 665 A.2d 1167 (Pa.
at 899.
1995).
191
Id. at 882 (adopting the Restatement (Second) of Torts § 388). The Pennsylvania Supreme Court
subsequently declined to review the Superior Court’s recognition of the sophisticated user doctrine. Phillips, 665
A.2d 1167.
192
See Phillips, 630 A.2d at 882–83.
193
See id. at 883–84; see also Kalinowski v. E.I. Du Pont De Nemours & Co., 851 F. Supp. 149 (E.D. Pa.
1994) (applying the sophisticated user doctrine to a bulk supplier of a chemical used in a prosthesis that failed).
194
487 U.S. 500 (1988).
195
Conner v. Quality Coach, Inc., 750 A.2d 823, 828 (Pa. 2000) (quoting Boyle, 487 U.S. at 512).
196
Id. at 832.
28
government.197 The Pennsylvania Supreme Court has refused to recognize an analogous
defense where a manufacturer contracts with the Commonwealth of Pennsylvania.198
VII.
Defenses Not Recognized in Pennsylvania
A.
Service of Process on Foreign Corporations
In some jurisdictions outside Pennsylvania, courts have found that service of process by
mail on a foreign corporation violates the Hague Convention.199 Pennsylvania federal and state
courts, however, have generally rejected this contention.200 Thus, this defense is unavailable in
Pennsylvania.
B.
The Seat Belt Defense
The courts of some states recognize the “seat belt defense,” where a defendant may be
absolved of liability if the plaintiff failed to use an available seat belt and this failure contributed
to the plaintiff’s injuries.201 Pennsylvania has eliminated this defense by statute.202 Under 42
Pennsylvania Consolidated Statute § 4581, courts may not even admit, in any civil action,
evidence that someone did not use a seat belt.
C.
The State of the Art Defense
Some jurisdictions recognize a “state of the art” defense in strict liability cases involving
design or warnings defects.203 Using this defense, a defendant may argue that a product is not
defective because the product’s design was state of the art at the time of manufacture.
Pennsylvania courts, however, have rejected this defense in strict liability cases, because it
injects negligence principles (i.e. fault) into a strict liability context.204
D.
Privity of Contract
In some states, a plaintiff must prove vertical and/or horizontal privity in order to
recover from a defendant for breach of warranty. For vertical privity, the purchaser of a
197
Id. at 832–33.
Id. at 834.
199
See, e.g., Uppendahl v. American Honda Motor Co., Inc., 291 F. Supp. 2d 531 (W.D. Ky. 2003).
200
Knit With v. Knitting Fever, Inc., No. 08-4221, 2010 U.S. Dist. LEXIS 70412, at *18–24 (E.D. Pa. July 13,
2010); Miltenberg & Samton, Inc. v. Assicurazioni Generali, No. 3633, 2000 Phila. Ct. Com. Pl. LEXIS 79, at *32–33
(Pa. Commw. Ct. Oct. 11, 2000).
201
See, e.g., Wemyss v. Coleman, 729 S.W.2d 174, 178–81 (Ky. 1987).
202
Gaudio, 976 A.2d at 552 (quoting Grim v. Betz, 539 A.2d 1365 (Pa. Super. Ct. 1988) (en banc)).
203
See, e.g., Normann v. Johns-Manville Corp., 593 A.2d 890, 893 (Pa. Super. Ct. 1991) (discussing the fact
that New York has such a defense).
204
Id.; Carrecter v. Colson Equip. Co., 499 A.2d 326, 329–31 (Pa. Super. Ct. 1985).
198
29
product must have directly acquired the product from the defendant.205 For horizontal privity,
the plaintiff must either be the purchaser or someone with a particular relationship, defined by
state law, to the purchaser.206 In Pennsylvania, a plaintiff may assert a breach of warranty claim
against a defendant even if the plaintiff is not in vertical or horizontal privity with the
defendant.207 Thus, lack of privity is no defense to a claim for breach of warranty.208
VIII.
Damages
A.
Economic Loss
The Pennsylvania Supreme Court has recognized the economic loss rule,209 and lower
Pennsylvania courts have followed this rule in products liability cases.210 Thus, where a product
malfunctions, a plaintiff is barred from suing in tort, whether the theory is negligence or strict
liability, if the malfunction only damages the product itself.211 In such cases, a plaintiff’s
remedy properly lies in contracts, rather than in torts.212
A plaintiff may still recover damages in tort if a malfunctioning product damages other
property or causes physical injuries. In Tennis v. Ford Motor Co.,213 the plaintiffs alleged that a
product defect in a vehicle manufactured by the defendant caused a fire. This fire spread to,
and damaged, other property besides the vehicle. Thus, the U.S. District Court for the Western
District of Pennsylvania denied the defendant’s motion to dismiss based on the economic loss
rule.214
The economic loss rule has grown increasingly broad in Pennsylvania. At one time
Pennsylvania courts did not apply the economic loss rule if a product was dangerously defective
or if the defective product destroyed itself in a calamitous event.215 The courts have since
eliminated such restrictions, regardless of whether the parties are both commercial
205
Salvador, 319 A.2d at 904 n.1.
Id.
207
Id. at 904.
208
See Goodman, 849 A.2d at 1246 n.6 (“[I]ssues of privity are irrelevant[.]”).
209
Excavation Techs., Inc. v. Columbia Gas Co., 985 A.2d 840, 841 n.3 (Pa. 2009).
210
See, e.g., Jones v. Gen. Motors Corp., 631 A.2d 665, 666 (Pa. Super. Ct. 1993); REM Coal Co. v. Clark
Equip. Co., 563 A.2d 128, 132 (Pa. Super. Ct. 1989).
211
REM Coal Co., 563 A.2d at 132; Moscatiello v. Pittsburgh Contractors Equip. Co., 595 A.2d 1198, 1201
(Pa. Super. Ct. 1991).
212
REM Coal Co., 563 A.2d at 133.
213
730 F. Supp. 2d 437 (W.D. Pa. 2010).
214
Id. at 449.
215
REM Coal Co., 563 A.2d at 129–31.
206
30
enterprises,216 or even if one party is an individual consumer.217 This has led one court to
declare that “there is not even a nuclear accident exception to this economic loss rule.”218
B.
Emotional Distress
Traditionally, Pennsylvania courts adhered to the impact rule for negligent infliction of
emotional distress.219 Under this rule, a plaintiff could only recover for negligent infliction of
emotional distress if the plaintiff’s distress was the result of a physical impact caused by the
defendant.220
The Pennsylvania Supreme Court, however, has deviated from this requirement in at
least two circumstances. First, the court adopted the “zone of danger” rule in Niederman v.
Brodsky.221 In Niederman, the plaintiff experienced a heart attack after the defendant, who
was driving a car, almost hit the plaintiff. The court held that the plaintiff could recover for his
physical injuries resulting from his fear of physical impact, even where the physical impact
never occurred, because a negligent force was directed against the plaintiff and the plaintiff
was in a zone where he was personally exposed to physical danger.222 Second, the court
recognized the bystander rule for negligent infliction of emotional distress in Sinn v. Burd.223
Under the bystander rule, a bystander may recover for emotional distress if: (1) the plaintiff
was near the accident scene; (2) the emotional distress was caused by the direct impact of the
plaintiff’s contemporaneous observation of the accident; and (3) the plaintiff was closely
related to the victim.224
The Pennsylvania Supreme Court may no longer require proof of physical impact for the
recovery of emotional distress damages in some negligence cases, but the Court still requires
such proof in cases of strict products liability. In Schmidt v. Boardman Co.,225 a fire engine hose
accidentally deployed, killing a child. Family members, who witnessed the death, sued based
on strict products liability. The court held that the family members could not recover for
emotional distress damages in the absence of evidence that the family members had suffered a
contemporaneous physical impact.226
216
Id. at 132.
Jones, 631 A.2d at 666.
218
Grode v. Mutual Fire, Marine, & Inland Ins. Co., 623 A.2d 933, 934 (Pa. Commw. Ct. 1993), aff’d sub
nom. 636 A.2d 627 (Pa. 1994).
219
Schmidt, 11 A.3d at 948.
220
Id.
221
261 A.2d 84 (Pa. 1970).
222
Id. at 90.
223
404 A.2d 672 (Pa. 1979); see also Mazzagatti v. Everingham, 516 A.2d 672 (1986).
224
Sinn, 404 A.2d at 685 (quoting Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968)).
225
11 A.3d 924.
226
Id. at 953.
217
31
C.
Punitive Damages
Unlike some other states, Pennsylvania does not have a statute that caps, or otherwise
regulates, awards of punitive damages, either in product liability cases specifically, or in all
cases generally. Punitive damage awards are thus primarily regulated by the common law. In
regulating such damages, the Pennsylvania Supreme Court has followed the Restatement
(Second) of Torts § 908.227 Under the Restatement (Second) of Torts § 908(2),
Punitive damages may be awarded for conduct that is outrageous, because of
the defendant’s evil motive or his reckless indifference to the rights of others. In
assessing punitive damages, the trier of fact can properly consider the character
of the defendant’s act, the nature and extent of the harm to the plaintiff that the
defendant caused or intended to cause and the wealth of the defendant.228
Thus, an award of punitive damages is appropriate in Pennsylvania only if the defendant
acted with an evil motive or with reckless indifference.229 In this context, reckless indifference
means that the defendant’s conduct poses an unreasonable risk of physically harming another,
and such risk must be substantially greater than that necessary to establish negligence.230
Therefore, to recover punitive damages, the plaintiff must show more than negligence or even
gross negligence on the part of the defendant.231 In this regard, the Pennsylvania Supreme
Court has found that a defendant’s compliance with safety standards weighs against a finding
of evil motive or reckless indifference.232
For punitive damages, the burden of proof is a preponderance of the evidence. That is,
in order to get the issue of punitive damages to a jury, the plaintiff must present evidence
sufficient to allow the jury to find, by a preponderance, that the defendant acted with evil
motive or reckless indifference.233 The Pennsylvania Supreme Court considered and expressly
rejected a higher clear-and-convincing-evidence standard in products liability cases.234
If punitive damages are deemed appropriate, a jury should weigh three factors in order
to arrive at the amount of damages. These factors, taken from the Restatement (Second) of
Torts § 908(2), are: (1) the character of the defendant’s act; (2) the extent and nature of the
227
Martin v. Johns-Manville Corp., 494 A.2d 1088, 1096 (Pa. 1985) (plurality) (stating that Pennsylvania
recognizes the Restatement (Second) of Torts § 908 as “a general guide”), rev’d on other grounds sub nom.,
Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800 (Pa. 1989); Chambers v. Montgomery, 192 A.2d 355, 358 (Pa.
1963) (quoting and following the Restatement of Torts § 908).
228
RESTATEMENT (SECOND) OF TORTS § 908(2) (1965).
229
Phillips II, 883 A.2d at 445 (quoting Martin, 494 A.2d at 1096).
230
Id. (quoting Hutchison v. Liddy, 870 A.2d 766, 771 (Pa. 2005)).
231
Id.
232
Id. at 447.
233
Martin, 494 A.2d at 1098.
234
Id. at 1098 & n.14; see also Sprague v. Walter, 656 A.2d 890, 923 (Pa. Super. Ct. 1995) (“The standard
of proof for punitive damages in Pennsylvania traditionally has been proof by a preponderance of the evidence.”).
32
harm that the defendant caused or intended to cause to the plaintiff; and (3) the defendant’s
wealth.235 At one time, the Pennsylvania Supreme Court also imposed a common law
requirement that the amount of punitive damages must be proportional to the amount of
compensatory damages.236 In Kirkbride v. Lisbon Contractors, Inc.,237 the court removed this
requirement.
The Pennsylvania courts have not recognized state constitutional limitations on punitive
damages. The U.S. Supreme Court, however, has recognized in multiple decisions that the
Fourteenth Amendment to the U.S. Constitution places a limit on such damages.238 Among
other things, these Supreme Court opinions recognize that the amount of a punitive damages
award must be proportional to the amount of harm the plaintiff suffered. In the products
liability context, the Pennsylvania courts have only infrequently interpreted and applied these
Supreme Court decisions. In one recent case, the Superior Court held that the U.S. Supreme
Court decisions only impose limitations on punitive damages where some of the defendant’s
punishable conduct occurred outside the court’s jurisdiction.239 In an older decision, the
Philadelphia Court of Common Pleas held that a punitive damages award withstood
constitutional scrutiny, because the amount of the award was less than four times the amount
of compensatory damages.240
IX.
Special Evidentiary Concerns
A.
Subsequent Remedial Measures
Rule 407 of the Pennsylvania Rules of Evidence provides, in relevant part, that
[w]hen, after an injury or harm allegedly caused by an event, measures are taken
which, if taken previously, would have made the injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove that the
party who took the measures was negligent or engaged in culpable conduct, or
produced, sold, designed, or manufactured a product with a defect or a need for
a warning or instruction.241
As an exception to its general rule, Rule 407 allows the introduction of such evidence
when it is offered for “impeachment, or to prove other matters, if controverted, such as
235
Vance v. 46 & 2, Inc., 920 A.2d 202, 206 (Pa. Super. Ct. 2007) (citing Kirkbride, 555 A.2d 800).
See Martin, 494 A.2d at 1098.
237
555 A.2d 800.
238
See, e.g., State Farm Mutual Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of North America, Inc. v.
Gore, 517 U.S. 559 (1996).
239
Daniel v. Wyeth Pharms., Inc., 15 A.3d 909, 934–35 (Pa. Super. Ct. 2011), reargument denied, No. 2626
EDA 2007, 2011 Pa. Super. LEXIS 625 (Pa. Super. Ct. Apr. 14, 2011).
240
Blum v. Merrell Dow Pharms., 33 Phila. 193, 242 n.167 (Pa. Common Pleas Ct. 1996).
241
PA. R. EVID. 407.
236
33
ownership, control, or feasibility of precautionary measures.”242 Although the original version
of the Rule was not clear as to whether it applied to product liability actions sounding in strict
liability, the Pennsylvania Supreme Court ruled in Duchess v. Langston Corp.243 that Rule 407
was applicable to strict product liability cases, and as such, the original Rule was amended to
reflect the Court’s decision.244 Pennsylvania law is now clear that, in addition to subsequent
remedial changes being inadmissible in product liability cases sounding in negligence, evidence
of subsequent changes in a product’s design or the inclusion of additional warnings or
instructions is not admissible to prove that a product was defective in a strict product liability
case.
B.
Expert Testimony
The Pennsylvania Supreme Court has stated that “[t]he purpose of expert testimony is
to assist the [finder of fact] in grasping complex issues not within the knowledge, intelligence,
and experience of the ordinary layman.”245 As such, the Pennsylvania Superior Court has
recognized that expert testimony is “often necessary in products liability and breach of
warranty cases,”246 and courts in the Commonwealth have even held that expert testimony is
“required” in certain products liability cases.247
The Pennsylvania Rules of Evidence provide that
[i]f scientific, technical or other specialized knowledge beyond that possessed by
a layperson will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training or education may testify thereto in the form of an opinion or
otherwise248
With regard to expert testimony, the Pennsylvania Supreme Court applies the Frye test,
which was first announced by the United States Court of Appeals for the District of Columbia in
Frye v. United States.249 Under Frye’s “general acceptance” test, the introduction of novel
scientific evidence is permitted provided that “the methodology that underlies the evidence
has general acceptance in the relevant scientific community.”250 Although the United States
Supreme Court has since rejected the Frye standard in favor of the more recently adopted
242
Id.
769 A.2d 1131 (2001).
244
See also Official Comment, PA. R. EVID. 407.
245
Commw. v. Begley, 780 A.2d 621 (Pa. 2000).
246
French, 980 A.2d at 634.
247
See Dion v. Graduate Hosp. of Univ. of Pa., 520 A.2d 876, 881 (Pa. Super. Ct. 1987).
248
PA. R. EVID. 702.
249
293 F. 1013 (D.C. Cir. 1923).
250
Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043, 1044 (Pa. 2003).
243
34
Daubert standard, a decision followed by a number of state courts, the Pennsylvania Supreme
Court continues to adhere to Frye.251
Under the Daubert test, the trial judge is required to evaluate whether the proffered
expert testimony will “assist the trier of fact, and whether the evidence is reliable and
scientifically valid.”252 Although the trial judge will still look to Frye’s general acceptance test, it
is only one of variety of factors that the court will consider in making its determination.253
Although the Court had the opportunity in Grady v. Frito-Lay, Inc. to reject Frye in favor of
adopting Daubert, the Pennsylvania Supreme Court chose to stick with Frye based on its belief
that it provides a standard that is “more likely to yield uniform, objective, and predictable
results” than Daubert.254 As the Grady Court noted, the Frye test is “a proven and workable
rule, which when faithfully followed, fairly serves its purpose of assisting the courts in
determining when scientific evidence is reliable and should be admitted.”255
It should be noted that the Frye “general acceptance” rule only applies to an expert’s
methodology, and not his conclusions. In fact, the Pennsylvania Supreme Court does not
require a showing that an expert’s conclusions are also generally accepted.256 In addition to
proving that an expert’s methods are generally accepted in the scientific community, the
proponent of expert testimony is also responsible for showing that his witness is qualified to
testify based on “knowledge, skill, experience, training, or education.”257 As a final note, a trial
court’s decision regarding an expert’s qualification and the general acceptance of his
methodology will only be disturbed by an appellate court for an abuse of discretion.258
C.
Prior Accidents/Claims
Courts in the Commonwealth have consistently held that a plaintiff, while proving his
case in chief in a products liability action, may introduce evidence of prior accidents involving
the same instrumentality alleged to have caused the harm in the plaintiff’s case.259 Such
evidence has been deemed relevant and admissible to show that “the product was unsafe, to
prove causation, and/or to show that a defendant had actual or constructive knowledge of a
condition that could cause harm.”260 However, evidence of a prior accident or claim will only
be admissible if the previous incident is “sufficiently similar to the incident involving the
plaintiff which occurred under sufficiently similar circumstances.”261 In addition to permitting
251
See Grady, 839 A.2d at 1044.
Id. at 1044.
253
Id.
254
Id. at 1045.
255
Id.
256
Grady, 839 A.2d at 1045.
257
Id. (citing PA. R. EVID. 702).
258
Grady, 839 A.2d at 1047.
259
Spino, 696 A.2d at 1172.
260
Id.
261
Lynch, 548 A.2d at 1279.
252
35
plaintiffs to introduce such evidence, the Supreme Court of Pennsylvania has also held that
evidence of the “non-existence of prior claims [by a defendant] is admissible subject to the trial
court’s determination that the offering party has provided a sufficient foundation—that they
would have known about the prior, substantially similar accidents involving the product at
issue.”262
D.
The Collateral Source Rule
Pennsylvania Courts still follow the common law collateral source rule. The collateral
source rule generally provides that “[e]vidence that the plaintiff was compensated by a
collateral source for all or a portion of the damages caused by defendant's wrongful act is
generally inadmissible . . . .”263 In Johnson v. Beane,264 the Pennsylvania Supreme Court
reaffirmed Pennsylvania’s adherence to the rule, stating that “payments from a collateral
source shall not diminish the damages otherwise recoverable from the wrongdoer.”265
According to the Johnson Court, the general premise behind the collateral source rule is that “it
is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be
relieved of responsibility for the wrong.”266 In Beechwoods Flying Service, Inc. v. Al Hamilton
Contracting Corp.,267 the Court noted that the collateral source rule is designed to avoid
precluding a plaintiff from “obtaining redress for his or her injury merely because coverage for
the injury was provided by some collateral source, e.g. insurance.”268 Although the Motor
Vehicle Financial Responsibility Law (MVFRL) and the Medical Care Availability and Reduction of
Error Act (MCARE Act) have abrogated the common law, neither of those acts would have
applicability in the realm of products liability.
E.
Spoliation
In Schroeder v. Commonwealth,269 the Pennsylvania Supreme Court adopted the Third
Circuit’s approach to cases involving the alleged spoliation of evidence. Under Pennsylvania
law, the doctrine of spoliation provides that a party “should not benefit from its own
destruction or withholding of evidence;” in addition, the doctrine of spoliation “attempts to
compensate those whose legal rights are impaired by the destruction or withholding of
evidence by creating an adverse inference against the party responsible for the destruction or
withholding.”270 The Third Circuit’s approach looks to “(1) the degree of fault of the party who
altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party,
262
263
Spino, 696 A.2d at 1173.
See Gallagher v. Pa. Liquor Control Bd., 883 A.2d 550 (Pa. 2005) (quoting 22 Am. Jur. 2d Damages § 763
(2004)).
264
664 A.2d 96 (Pa. 1995).
Id. at 100.
266
Id.
267
476 A.2d 350 (Pa. 1984).
268
Id. at 352.
269
710 A.2d 23 (Pa. 1998).
270
Manson v. Southeastern Transp. Auth., 767 A.2d 1, 5 (Pa. 2001).
265
36
and (3) the availability of a lesser sanction that will protect the opposing party’s rights and
deter future similar conduct.”271 A common sanction that follows a finding of spoliation is a
jury instruction allowing an inference that “the missing evidence would have been unfavorable
to the party that destroyed it.”272 Pennsylvania courts do not recognize a separate cause of
action for spoliation of evidence, in light of the fact that “traditional remedies,” such as the
creation of an adverse inference against the party charged with spoliation, “more than
adequately protect the ‘non-spoiling’ party when the ‘spoiling party’ is a party to the underlying
action.”273
X.
Jury Instructions
In Pennsylvania, trial courts enjoy “wide latitude” in determining the exact language
that is used in jury instructions as long as such instructions fully, clearly, and adequately state
the law for the jury.274 Thus, a trial court may freely reject a party’s proposed wording, and
may choose its own wording instead.275 In addition, the Pennsylvania Supreme Court has not
officially adopted the Pennsylvania Suggested Standard Jury Instructions.276 These instructions
are merely a guide, and a trial court may “ignore them entirely,” even where a party specifically
requests that the court use such instructions.277
In strict liability cases, where the term “defect” arises, the trial court must instruct the
jury on this term.278 In Azzarello v. Black Bros. Co.,279 the Pennsylvania Supreme Court provided
guidance on how to instruct the jury on “defect” in strict liability cases involving design defects.
The court held that the words “unreasonably dangerous” should not be employed in such
instructions, and the court quoted with favor the Pennsylvania Suggested Standard Jury
Instruction for design defects.280 Subsequently, the Pennsylvania Superior Court relied upon
Azzarello in holding that, where there is evidence that a plaintiff used a product in an
unanticipated way, the instructions on “defect” must be cast in terms of “safe for intended
use,” not merely “safe for use.”281 In another decision, the Superior Court relied upon Azzarello
in developing suggested jury instructions for strict liability cases based on failure to adequately
warn.282 Pennsylvania courts have also read Azzarello as an indication that negligence concepts
271
Id. (citing Schmid v. Milwaukee-Electric Tool Corp., 13 F.3d 76 (3d. Cir. 1994)).
See generally Schroeder, 710 A.2d at 26, 27.
273
See Elias v. Lancaster Gen. Hosp., 710 A.2d 65, 67 (Pa. Super. Ct. 1998).
274
Gaudio, 976 A.2d at 550; Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 106–07 (Pa. Super. Ct. 2002);
Butler v. Kiwi, S.A., 604 A.2d 270, 273 (Pa. Super. Ct. 1992).
275
Harkins v. Calumet Realty Co., 614 A.2d 699, 706 (Pa. Super. Ct. 1992).
276
Butler, 604 A.2d at 273.
277
Id.; Mackowick v. Westinghouse Elec. Corp., 541 A.2d 749, 752 (Pa. Super. Ct. 1988), aff’d, 575 A.2d
100 (Pa. 1990).
278
McKay v. Sandmold Sys., Inc., 482 A.2d 260, 265–66 (Pa. Super. Ct. 1984).
279
391 A.2d 1020.
280
Id. at 1027 & n. 12.
281
Marshall v. Philadelphia Tramrail Co., 626 A.2d 620, 625–26 (Pa. Super. Ct. 1993).
282
Dambacher, 485 A.2d at 428–30; see also Carrecter, 499 A.2d at 330 (discussing Dambacher).
272
37
should be removed from jury instructions regarding strict liability claims.283 As the
Pennsylvania Supreme Court recently lamented, this attempt to separate negligence and strict
liability “has yielded minimalistic jury instructions (to insulate the jury from negligence
terminology) which lack essential guidance concerning the key conception of product
defect.”284
XI.
Contribution, Indemnity, and Apportionment of Liability
In Pennsylvania, apportionment of liability is governed by a statute which was amended
in 2011.285 This statute provides that
Where recovery is allowed against more than one person . . . and where liability
is attributed to more than one defendant, each defendant shall be liable for that
proportion of the total dollar amount awarded as damages in the ratio of the
amount of that defendant’s liability to the amount of liability attributed to all
defendants and other persons to whom liability is apportioned . . . .286
As the last few words suggest, for the purpose of apportioning liability, the jury may apportion
liability to persons who are not a party to the present case or to persons whom the plaintiff
released from liability.287
This statute also specifies when several liability should be imposed and when, instead,
joint and several liability should be imposed. Under several liability, if a defendant is
apportioned, for instance, forty percent of the liability, the defendant may be required to pay
no more than forty percent of the judgment. Under joint and several liability, any one
defendant may be required to pay the entire judgment.288 Until recently, where multiple
defendants were found liable, the statute determined that each defendant was jointly and
severally liable.289 The Fair Share Act of 2011 amended the statute, thus making several liability
the norm.290 Now joint and several liability may be imposed only in five specifically enumerated
283
Holloway v. J.B. Sys., Ltd., 609 F.2d 1069, 1073 (3rd Cir.1979) (“We read Azzarello as a signal that
evidence and jury instructions regarding negligence concepts should be kept out of cases brought under § 402A.”);
see also Carrecter, 499 A.2d at 330 (quoting Berkebile, 337 A.2d at 900) (declaring that, in a strict liability case, the
jury should not be charged regarding negligence concepts). But see Foley v. Clark Equip. Co., 523 A.2d 379, 385
(Pa. Super. Ct. 1987) (holding that the trial court committed error by instructing the jury not to consider any
evidence relating to negligence, when such evidence was relevant to the issue of causation).
284
Schmidt, 11 A.3d at 940.
285
See 42 PA. CONS. STAT. § 7102(a.1)–(a.2) (2011).
286
Id. § 7102(a.1)(1).
287
Id. § 7102(a.2).
288
Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478, 489 (Pa. 2009) (“Joint tortfeasors generally are
jointly-and-severally liable for the entire amount of a verdict, albeit that a jury may assign only a portion of fault to
each.”).
289
See, e.g., Allen v. Mellinger, 784 A.2d 762, 766 (Pa. 2001) (quoting the version of § 7102 that was in
effect prior to 2011 and declaring that this statute embodies “[t]he rule of joint and several liability”).
290
§ 7102(a.1)(2).
38
types of actions: (1) intentional misrepresentation; (2) an intentional tort; (3) “[w]here the
defendant has been held liable for not less than 60% of the total liability apportioned to all
parties”; (4) a “release or threatened release of a hazardous substance”; and (5) a “civil action
in which a defendant has violated section 497” of the Liquor Code.291
Contribution becomes a potential issue if joint and several liability is imposed and one
defendant “discharges by payment more than that defendant’s proportionate share of the total
liability.”292 Contribution allows this defendant to recover money from “defendants who have
paid less than their proportionate share.”293
Pennsylvania also continues to recognize the common law doctrine of indemnity.294
Indemnity takes “the entire loss from one who has been compelled, by reason of some legal
obligation, to pay a judgment”295 and shifts this loss to “a defendant who was actually
responsible for the accident which occasioned the loss.”296 For instance, in Burbage v. Boiler
Engineering & Supply Co.,297 a boiler valve malfunctioned, causing the boiler to explode, and
this explosion killed a man. The man’s personal representative sued the boiler manufacturer.
When a $70,000 verdict was returned against the boiler maker, the boiler maker successfully
secured a $70,000 indemnification against the valve maker.298
291
Id. § 7102(a.1)(3).
Id. § 7102(a.1)(4).
293
Id.
294
See, e.g., Francis v. Northumberland County, 636 F. Supp. 2d 368, 394 (M.D. Pa. 2009) (discussing
indemnity and contribution).
295
Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850, 854 (Pa. 1997).
296
Young v. Dart, 630 A.2d 22, 25 (Pa. Super. Ct. 1993) (quoting Sirianni v. Nugent Bros., Inc., 506 A.2d
868, 871 (Pa. 1986)).
297
249 A.2d 563 (Pa. 1969).
298
Id. at 565. This result may be contrasted with the result in Walton, 610 A.2d 454 (holding, in a case
involving a helicopter crash, that the helicopter manufacturer could not recover indemnity from the engine
manufacturer).
292
39
These materials have been prepared by Dinsmore & Shohl LLP for informational
purposes only. Although Dinsmore and Shohl LLP used reasonable efforts to include accurate
and up-to-date information in this Monograph, no one should rely upon the information
contained in this Monograph without first seeking professional advice.
Care must be taken in the citation of unpublished opinions. Rule 444 B of the Internal
Operating Procedures of the Superior Court of Pennsylvania provides that:
An unpublished memorandum decision shall not be relied upon or cited by a
Court or a party in any other action or proceeding, except that such a
memorandum decision may be relied upon or cited (1) when it is relevant under
the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when
the memorandum is relevant to a criminal action or proceeding because it
recites issues raised and reasons for a decision affecting the same defendant in a
prior action or proceeding. When an unpublished memorandum is relied upon
pursuant to this rule, a copy of the memorandum must be furnished to the other
party and to the Court.
Citation of unpublished opinions in the Pennsylvania federal courts is controlled by Third
Circuit Internal Operating Procedure 5.7 and Federal Rule of Appellate Procedure 32.1(b).
Postings and opinions of the Pennsylvania Supreme Court (since November 1996), the
Pennsylvania Superior Court (since December 1997) and the Pennsylvania Commonwealth
Court (since January 1997) can be accessed through the website of the Unified Judicial System
of Pennsylvania: http://www.pacourts.us/Search/OpinionSearch.htm.
40
TABLE OF AUTHORITIES
Cases
Allen v. Mellinger, 784 A.2d 762 (Pa. 2001).................................................................................. 38
AM/PM Franchise Ass’n v. Atlantic Richfield Co., 584 A.2d 915 (Pa. 1990) ................................. 16
Atwell v. John Crane, Inc., 986 A.2d 888 (Pa. Super. Ct. 2009), appeal denied, 996 A.2d 490 (Pa.
2010). ........................................................................................................................................ 26
Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978) ....................................................... 6, 11, 37
Barnish v. KWI Bldg. Co., 980 A.2d 535 (Pa. 2009) ....................................................................... 11
Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 476 A.2d 350 (Pa. 1984) ...... 36
Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa. 1975) (plurality) ............................ passim
Berrier v. Simplicity Mfg., 563 F.3d 38 (3d. Cir. 2009), cert. denied, 130 S. Ct. 553 (2009)...... 9, 24
Berrier v. Simplicity Mfg., 959 A.2d 900 (Pa. 2008) ...................................................................... 24
Blum ex rel. Blum v. Merrell Dow Pharms., 705 A.2d 1314 (Pa. Super. Ct. 1997), aff’d sub nom.
Blum v. Merrell Dow Pharms., 764 A.2d 1 (Pa. 2000) ......................................................... 15, 16
Blum v. Merrell Dow Pharms., 33 Phila. 193 (Pa. Common Pleas Ct. 1996) ................................. 33
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ........................................................... 33
Books v. Pa. Power & Light Co., 523 A.2d 794 (Pa. Super. Ct. 1987) ............................................ 16
Boyle v. United Technologies Corp., 487 U.S. 500 (1988) ............................................................. 28
Bugosh v. I.U. North America, 971 A.2d 1228 (Pa. 2009) ............................................................. 10
Burbage v. Boiler Engineering & Supply Co., 249 A.2d 563 (Pa. 1969) ......................................... 39
Burman v. Golay & Co., 616 A.2d 657 (Pa. Super. Ct. 1992)......................................................... 14
Burnside v. Abbot Laboratories, 505 A.2d 973 (Pa. Super. Ct. 1985) .................................... passim
Butler v. Kiwi, S.A., 604 A.2d 270 (Pa. Super. Ct. 1992) ................................................................ 37
Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777 (3d Cir. 1992) .............................................. 27
Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157 (Pa. Super. Ct. 1997) ............................................. 21
Carrasquilla v. Mazda Motor Corp., 166 F. Supp. 2d 169 (M.D. Pa. 2001) ................................... 26
Carrecter v. Colson Equip. Co., 499 A.2d 326 (Pa. Super. Ct. 1985) .................................. 29, 37, 38
Casselli v. Powlen, 937 A.2d 1137 (Pa. Super. Ct. 2007) ............................................................... 22
Catanzaro v. Wasco Products, Inc., 489 A.2d 262 (Pa. Super. Ct. 1985) ...................................... 25
Cellucci v. GMC, 706 A.2d 806 (Pa. 1998) ..................................................................................... 26
Chambers v. Montgomery, 192 A.2d 355 (Pa. 1963) .................................................................... 32
Childers v. Power Line Equip. Rentals, 681 A.2d 201 (Pa. Super. Ct. 1997) .................................. 21
City of Phila. v. Lead Indus. Assoc., 994 F.2d 112 (3d. Cir. 1993).................................................. 19
Clark v. Bil-Jax, Inc., 763 A.2d 920 (Pa. Super. Ct. 2000) .............................................................. 23
Coffey v. Minwax Co., 764 A.2d 616 (Pa. Super. Ct. 2000) ........................................................... 26
Colegrove v. Cameron Mach. Co., 172 F.Supp. 2d 611 (W.D. Pa. 2001) ....................................... 27
Commw. v. Begley, 780 A.2d 621 (Pa. 2000) ................................................................................ 34
Conner v. Quality Coach, Inc., 750 A.2d 823 (Pa. 2000).......................................................... 28, 29
Conti v. Ford Motor Co., 743 F.2d 195 (3rd Cir. 1984) .................................................................. 16
Coward v. Owens-Corning Fiberglass Corp., 729 A.2d 614 (Pa. Super. Ct. 1999)......................... 16
Dambacher v. Mallis, 485 A.2d 408 (Pa. Super. Ct. 1984) .......................................... 11, 12, 13, 37
41
Daniel v. Wyeth Pharms., Inc., 15 A.3d 909 (Pa. Super. Ct. 2011), reargument denied, No. 2626
EDA 2007, 2011 Pa. Super. LEXIS 625 (Pa. Super. Ct. Apr. 14, 2011) ....................................... 33
Dauphin Deposit Bank & Trust Co. v. Toyota Motor Corp., 596 A.2d 845 (Pa. Super Ct. 1991) ... 27
Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997)................................................................ 8, 22, 24
Dawejko v. Jorgensen Steel Co., 434 A.2d 106 (Pa. Super. Ct. 1981) ........................................... 21
DeSantis v. Frick Co., 745 A.2d 624 (Pa. Super. Ct. 1999) ....................................................... 20, 25
Dillon v. Legg, 441 P.2d 912 (Cal. 1968)........................................................................................ 31
Dion v. Graduate Hosp. of Univ. of Pa., 520 A.2d 876 (Pa. Super. Ct. 1987) ................................ 34
Duchess v. Langston Corp., 769 A.2d 1131 (2001) ....................................................................... 34
E.J. Stewart, Inc. v. Aitken Prods., Inc., 607 F. Supp. 883 (E.D. Pa. 1985), aff’d, 779 F.2d 42 (3d
Cir. 1985) ............................................................................................................................. 15, 16
Elias v. Lancaster Gen. Hosp., 710 A.2d 65 (Pa. Super. Ct. 1998) ................................................. 37
Erlich v. Abbot Laboratories, 5 Phila. 249 (Ct. Com. Pl. Phila. 1981) ............................................ 20
Ettinger v. Triangle-Pacific Corp., 799 A.2d 95 (Pa. Super. Ct. 2002) ........................................... 37
Excavation Techs., Inc. v. Columbia Gas Co., 985 A.2d 840 (Pa. 2009)......................................... 30
Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010) ........................................................................... 26
Fetterhoff v. Fetterhoff, 512 A.2d 30 (Pa. Super. Ct. 1986) .......................................................... 25
First v. Zem Zem Temple, 686 A.2d 18 (Pa. Super. Ct. 1996) ............................................ 13, 15, 16
Fitzpatrick v. Madonna, 623 A.2d 322 (Pa. Super. Ct. 1993) .......................................................... 7
Fletcher v. Raymond Corp., 623 A.2d 845 (Pa. Super. Ct. 1993) ................................................... 27
Foley v. Clark Equip. Co., 523 A.2d 379 (Pa. Super. Ct. 1987) ....................................................... 38
Francis v. Northumberland County, 636 F. Supp. 2d 368 (M.D. Pa. 2009) ................................... 39
Frazier v. Heckingers, 96 F. Supp. 2d 486 (E.D. Pa. 2000)............................................................. 27
Freezer Storage, Inc. v. Armstrong Cork Co., 382 A.2d 715 (Pa. 1978)......................................... 25
French v. Commw. Assocs., 980 A.2d 623 (Pa. Super. Ct. 2009)............................................. 14, 34
Frey v. Harley Davidson Motor Co., 734 A.2d 1 (Pa. Super. Ct. 1999) .......................................... 23
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ....................................................................... 34
Gallagher v. Pa. Liquor Control Bd., 883 A.2d 550 (Pa. 2005) ...................................................... 36
Gaudio v. Ford Motor Co., 976 A.2d 524 (Pa. Super. Ct. 2009), appeal denied, 989 A.2d 917 (Pa.
2010) ............................................................................................................................. 23, 29, 37
Gavula v. Ara Servs., Inc., 756 A.2d 17 (Pa. Super. Ct. 1999) ....................................................... 13
Goodman v. PPG Industries, Inc., 849 A.2d 1239 (Pa. Super. Ct. 2004), aff’d, 885 A.2d 982 (Pa.
2005) ................................................................................................................................... 14, 30
Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003).................................................................. 34, 35
Green v. Dolsky, 685 A.2d 110 (Pa. 1996) ..................................................................................... 26
Greenawalt v. Philip Rosenau Co., 471 F. Supp. 2d 531 (E.D. Pa. 2007)....................................... 26
Griggs v. BIC Corp., 981 F.2d 1429 (3d Cir. 1992) ................................................................... 13, 14
Grim v. Betz, 539 A.2d 1365 (Pa. Super. Ct. 1988) (en banc) ....................................................... 29
Grode v. Mutual Fire, Marine, & Inland Ins. Co., 623 A.2d 933 (Pa. Commw. Ct. 1993), aff’d sub
nom. 636 A.2d 627 (Pa. 1994)................................................................................................... 31
Gutteridge v. A.P. Green Servs., 804 A.2d 643 (Pa. Super. Ct. 2002)............................................ 15
Hadar v. Avco Corp., 886 A.2d 225 (Pa. Super. Ct. 2005) ............................................................. 23
Hahn v. Richter, 673 A.2d 888 (Pa. 1996) ..................................................................................... 13
42
Harkins v. Calumet Realty Co., 614 A.2d 699 (Pa. Super. Ct. 1992).............................................. 37
Harsh v. Petroll, 840 A.2d 404 (Pa. Commw. Ct. 2003) ................................................................ 13
Hite v. R.J. Reynolds Tobacco Co., 578 A.2d 417 (Pa. Super. Ct. 1990) ........................................ 28
Holloway v. J.B. Sys., Ltd., 609 F.2d 1069 (3rd Cir.1979) .............................................................. 38
Hon v. Stroh Brewery Co., 835 F.2d 510 (3rd Cir. 1987) ............................................................... 27
Horn v. Thoratec Corp., 376 F.3d 163 (3d Cir. 2004) .................................................................... 26
Hunsaker v. Surgidev Corp., 818 F. Supp. 744 (M.D. Pa. 1992), aff’d, 5 F.3d 1489 (3d Cir. 1993) 26
Hutchison v. Liddy, 870 A.2d 766 (Pa. 2005)................................................................................. 32
Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971) ................................................................................ 13
Jacobini v. V. & O. Press Co., 588 A.2d 476 (Pa. 1991) ................................................................... 7
Jara v. Rexworks Inc., 718 A.2d 788 (Pa. Super. Ct. 1998)............................................................ 23
Johnson v. Beane, 664 A.2d 96 (Pa. 1995) .................................................................................... 36
Jones v. Gen. Motors Corp., 631 A.2d 665 (Pa. Super. Ct. 1993) ............................................ 30, 31
Jordon v. K-Mart Corp., 611 A.2d 1328 (Pa. Super. Ct. 1992)......................................................... 7
Kalinowski v. E.I. Du Pont De Nemours & Co., 851 F. Supp. 149 (E.D. Pa. 1994) .......................... 28
Kiak v. Crown Equip. Corp., 989 A.2d 385 (Pa. Super. Ct. 2010) (en banc)................................... 27
Kimco Dev. Corp. v. Michael D’s Carpet Outlets, 637 A.2d 603 (Pa. 1993)................................... 23
Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800 (Pa. 1989) ..................................................... 33
Klages v. Gen. Ordnance Equip. Corp., 367 A.2d 304 (Pa. Super. Ct. 1976) ................................. 22
Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553 (E.D. Pa. 2008) ............................................. 26
Knit With v. Knitting Fever, Inc., No. 08-4221, 2010 U.S. Dist. LEXIS 70412 (E.D. Pa. July 13, 2010)
................................................................................................................................................... 29
Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974) .......................................... 14, 22
Kurns v. A.W. Chesterton Inc., 620 F.3d 392 (3d Cir. 2010), cert. granted, No. 10-879, 2011 U.S.
LEXIS 4271 (U.S. June 6, 2011) .................................................................................................. 26
Lance v. Wyeth, 4 A.3d 160 (Pa. Super. Ct. 2010), appeal granted, 15 A.3d 429 (Pa. 2011) ....... 21
Lee v. Boyle-Midway Household Prods., Inc., 792 F. Supp. 1001 (W.D. Pa. 1992) ....................... 26
Lewis v. C., 528 A.2d 590 (Pa. 1987) ........................................................................................... 7, 8
Lorincie v. SEPTA, 34 F. Supp. 2d 929 (E.D. Pa. 1998) ................................................................... 26
Lynch v. McStome & Lincoln Plaza Assocs., 548 A.2d 1276 (Pa. Super. Ct. 1988) ............ 20, 21, 35
Mackowick v. Westinghouse Elec. Corp., 541 A.2d 749 (Pa. Super. Ct. 1988), aff’d, 575 A.2d 100
(Pa. 1990) .................................................................................................................................. 37
Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100 (Pa. 1990) .............................................. 12
Malinder v. Jenkins Elevator & Mach. Co., 538 A.2d 509 (Pa. Super. Ct. 1988) ........................... 22
Maloney v. Valley Med. Facilities, Inc., 984 A.2d 478 (Pa. 2009) ................................................. 38
Manson v. Southeastern Transp. Auth., 767 A.2d 1 (Pa. 2001) .............................................. 36, 37
Marshall v. Philadelphia Tramrail Co., 626 A.2d 620 (Pa. Super. Ct. 1993). ................................ 37
Martin v. Johns-Manville Corp., 494 A.2d 1088 (Pa. 1985) (plurality), rev’d on other grounds sub
nom., Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800 (Pa. 1989) ................................. 32, 33
Mascaro v. Youth Study Ctr., 523 A.2d 1118 (Pa. 1987) ............................................................... 15
Mazur v. Merck & Co., 742 F. Supp. 239 (E.D. Pa. 1990) .............................................................. 26
Mazzagatti v. Everingham, 516 A.2d 672 (1986) ......................................................................... 31
McConnaughey v. Bldg. Components, Inc., 637 A.2d 1331 (Pa. 1994) ......................................... 25
43
McKay v. Sandmold Sys., Inc., 482 A.2d 260 (Pa. Super. Ct. 1984)............................................... 37
Mellon v. Barre-National Drug Co., 636 A.2d 187 (Pa. Super. Ct. 1993) ................................ 19, 20
Mendralla v. Weaver Corp., 703 A.2d 480 (Pa. Super. Ct. 1997) .................................................. 21
Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir. 1995) ...................................................................... 26
Miltenberg & Samton, Inc. v. Assicurazioni Generali, No. 3633, 2000 Phila. Ct. Com. Pl. LEXIS 79
(Pa. Commw. Ct. Oct. 11, 2000) ................................................................................................ 29
Moroney v. GMC, 850 A.2d 629 (Pa. Super. Ct. 2004) .................................................................. 16
Moscatiello v. Pittsburgh Contractors Equip. Co., 595 A.2d 1198 (Pa. Super. Ct. 1991) .............. 30
Mount Olivet Tabernacle v. Edwin L. Wiegand Div., Emerson Electric Co., 781 A.2d 1263 (Pa.
Super. Ct. 2001), aff’d, 811 A.2d 565 (Pa. 2002) ...................................................................... 16
Moyer v. United Dominion Indus., 473 F.3d 532 (3d Cir. 2007).................................................... 25
Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970) ............................................................................ 31
Normann v. Johns-Manville Corp., 593 A.2d 890 (Pa. Super. Ct. 1991) ....................................... 29
O’Brien v. Martin, 638 A.2d 247 (Pa. Super. Ct. 1994) ................................................................. 23
O’Donnell v. Big Yank, 696 A.2d 846 (Pa. Super. Ct. 1997)........................................................... 27
Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590 (Pa. 2006)................... 13, 23, 24
Pastierik v. Duquesne Light Co., 526 A.2d 323 (Pa. 1987) ...................................................... 24, 25
Perry v. Novartis Pharm. Corp., 456 F. Supp. 2d 678 (E.D. Pa. 2006) ........................................... 26
Phillips v. A.P. Green Refractories Co., 630 A.2d 874 (Pa. Super. Ct. 1993), aff’d sub nom. Phillips
v. A-Best Prods. Co., 665 A.2d 1167 (Pa. 1995)......................................................................... 28
Phillips v. A-Best Prods. Co., 665 A.2d 1167 (Pa. 1995) .......................................................... 12, 28
Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) ............................................................ passim
Phillips v. Cricket Lighters, 883 A.2d 439 (Pa. 2005) ............................................................... 14, 32
Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir. 1990) ............................................................ 26
Powell v. Drumheller, 653 A.2d 619 (Pa. 1995). ........................................................................... 22
Price v. Chevrolet Motor Div. of GMC, 765 A.2d 800 (Pa. Super. Ct. 2000) .................................. 16
Putt v. Yates-American Mach. Co., 722 A.2d 217 (Pa. Super. Ct. 1998) ................................. 21, 22
REM Coal Co. v. Clark Equip. Co., 563 A.2d 128 (Pa. Super. Ct. 1989).................................... 30, 31
Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. Ct. 2010), appeal granted, 20 A.3d 1187 (Pa.
2011) ................................................................................................................................... 23, 24
Riley v. Warren Mfg., 688 A.2d 221 (Pa. Super. Ct. 1997) ............................................................ 12
Robinson v. B.F. Goodrich Tire Co., 664 A.2d 616 (Pa. Super. Ct. 1995) ....................................... 23
Rogers v. Johnson & Johnson Products Inc., 565 A.2d 751 (Pa. 1989).......................................... 11
Romah v. Hygienic Sanitation Co., 705 A.2d 841 (Pa. Super. Ct. 1997), aff’d, 737 A.2d 249 (Pa.
1999) ......................................................................................................................................... 26
Salvador v. Atlantic Steel Boiler Co., 319 A.2d 903 (Pa. 1974) ........................................... 6, 11, 30
Schindler v. Sofamor, Inc., 774 A.2d 765 (Pa. Super. Ct. 2001) ................................................ 7, 12
Schmid v. Milwaukee-Electric Tool Corp., 13 F.3d 76 (3d. Cir. 1994) ........................................... 37
Schmidt v. Boardman Co., 11 A.3d 924 (Pa. 2011) ........................................................... 21, 31, 38
Schmidt v. Boardman Co., 958 A.2d 498 (Pa. Super. Ct. 2008), aff’d 11 A.3d 924 (Pa. 2011) ..... 13
Schroeder v. Commonwealth, 710 A.2d 23 (Pa. 1998) ........................................................... 36, 37
Sherk v. Daisy-Heddon, Etc., 450 A.2d 615 (Pa. 1982) ............................................................ 12, 15
Sikkelee v. Precision Airmotive Corp., 731 F. Supp. 2d 429 (M.D. Pa. 2010) ................................ 27
44
Simmers v. Am. Cyanamid Corp., 576 A.2d 376 (Pa. Super. Ct. 1990).......................................... 21
Sinn v. Burd, 404 A.2d 672 (Pa. 1979) ........................................................................................... 31
Sirianni v. Nugent Bros., Inc., 506 A.2d 868 (Pa. 1986) ................................................................ 39
Slaybaugh v. Newman, 479 A.2d 517 (Pa. Super. Ct. 1984) ......................................................... 18
Smith v. Yamaha Motor Corp., U.S.A., 5 A.3d 314 (Pa. Super. Ct. 2010)...................................... 24
Snoparsky v. Baer, 266 A.2d 707 (Pa. 1970) ................................................................................. 20
Sommers v. Hessler, 323 A.2d 17 (Pa. 1974)................................................................................. 20
Sowers v. Johnson & Johnson Med., 867 F. Supp. 306 (E.D. Pa. 1994) ......................................... 26
Spino v. John Tilley Ladder Co., 696 A.2d 1169 (Pa. 1997) ........................................... 8, 16, 35, 36
Sprague v. Walter, 656 A.2d 890 (Pa. Super. Ct. 1995) ................................................................ 32
State Farm Mutual Ins. Co. v. Campbell, 538 U.S. 408 (2003) ...................................................... 33
Stecher v. Ford Motor Co., 779 A.2d 491 (Pa. Super. Ct. 2001) .................................................... 11
Stephens v. Paris Cleaners, Inc., 885 A.2d 59 (Pa. Super. Ct. 2005) ............................................. 27
Summers v. Giant Food Stores, Inc., 743 A.2d 498 (Pa. Super. Ct. 1999) ..................................... 15
Summit Hotel Co. v. Nat’l Broad. Co., 8 A.2d 302 (Pa. 1939)........................................................ 19
Sykes v. Glaxo-SmithKline, 484 F. Supp. 2d 289 (E.D. Pa. 2007) ................................................... 26
Tennis v. Ford Motor Co., 730 F. Supp. 2d 437 (W.D. Pa. 2010) ................................................... 30
Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466 (Pa. 1979) ..................................................... 18
Uppendahl v. American Honda Motor Co., Inc., 291 F. Supp. 2d 531 (W.D. Ky. 2003) ................ 29
Vance v. 46 & 2, Inc., 920 A.2d 202 (Pa. Super. Ct. 2007) ............................................................ 33
Von Der Heide v. Commonwealth Dep’t of Transp., 718 A.2d 286 (Pa. 1998) ............................. 22
Waering v. BASF Corp., 146 F. Supp. 2d 675 (M.D. Pa. 2001) ...................................................... 26
Walton v. Avco Corp., 610 A.2d 454 (Pa. 1992). ............................................................... 10, 20, 39
Webb v. Zern, 220 A.2d 853 (Pa. 1966) ........................................................................................ 13
Wemyss v. Coleman, 729 S.W.2d 174 (Ky. 1987). ........................................................................ 29
Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850 (Pa. 1997) ............................................ 39
Williams v. Cyberonics, Inc., 654 F. Supp. 2d 301 (E.D. Pa. 2009), aff’d, 388 Fed. Appx. 169 (3d
Cir. 2010) ................................................................................................................................... 26
Williams v. West Penn Power Co., 467 A.2d 811 (Pa. 1983)................................................... 14, 24
Young v. Dart, 630 A.2d 22 (Pa. Super. Ct. 1993) ......................................................................... 39
Statutes
13 PA. CONS. STAT. § 2315 (2011) ................................................................................................... 14
13 PA. CONS. STAT. § 2725 (2011) ................................................................................................... 24
42 PA. CONS. STAT. § 4581 (2011) ................................................................................................... 29
42 PA. CONS. STAT. § 5524 (2011) ................................................................................................... 24
42 PA. CONS. STAT. § 5524(2) (2011) ............................................................................................... 24
42 PA. CONS. STAT. § 5524(3), (4), (7) (2011) .................................................................................. 24
42 PA. CONS. STAT. § 5536 (2011) ................................................................................................... 25
42 PA. CONS. STAT. § 7102 (2011) ................................................................................................... 38
42 PA. CONS. STAT. § 7102(a) (2011) ......................................................................................... 22, 23
42 PA. CONS. STAT. § 7102(a.1)(1) (2011)........................................................................................ 38
45
42 PA. CONS. STAT. § 7102(a.1)(2) (2011)........................................................................................ 38
42 PA. CONS. STAT. § 7102(a.1)(3) (2011)........................................................................................ 39
42 PA. CONS. STAT. § 7102(a.1)(4) (2011)........................................................................................ 39
42 PA. CONS. STAT. § 7102(a.1)–(a.2) (2011)................................................................................... 38
42 PA. CONS. STAT. § 7102(a.2) (2011) ............................................................................................ 38
73 PA. STAT. ANN. § 201-1 et. seq. (2011)....................................................................................... 15
73 PA. STAT. ANN. § 201-2(4)(v) (2011) ........................................................................................... 15
73 PA. STAT. ANN. § 201-2(4)(vi) (2011) .......................................................................................... 15
73 PA. STAT. ANN. § 201-2(4)(vii) (2011) ......................................................................................... 15
73 PA. STAT. ANN. § 201-9.2 (2011) ................................................................................................ 15
PA. R. EVID. 407......................................................................................................................... 33, 34
PA. R. EVID. 702......................................................................................................................... 34, 35
Other Authorities
22 Am. Jur. 2d Damages § 763 (2004) .......................................................................................... 36
63 Am. Jur. 2d Products Liability § 1 (2011) ................................................................................... 5
RESTATEMENT (SECOND) OF TORTS § 388 (1965) .................................................................................. 28
RESTATEMENT (SECOND) OF TORTS § 402A (1965) ................................................................................. 5
RESTATEMENT (SECOND) OF TORTS § 402A cmt. i (1965)...................................................................... 27
RESTATEMENT (SECOND) OF TORTS § 402A cmt. k (1965) .................................................................... 13
RESTATEMENT (SECOND) OF TORTS § 433B(3) (1965) ........................................................................... 20
RESTATEMENT (SECOND) OF TORTS § 440 (1965) .................................................................................. 22
RESTATEMENT (SECOND) OF TORTS § 876 (1965) .................................................................................. 18
RESTATEMENT (SECOND) OF TORTS § 908 (1965) .................................................................................. 32
RESTATEMENT (SECOND) OF TORTS § 908(2) (1965) ............................................................................. 32
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY, § 1 (1998)............................................................. 9
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY, § 2 (1998)............................................................. 9
RESTATEMENT OF TORTS § 908 (1939) ................................................................................................ 32
46