Pennsylvania Supreme Court Overrules Azzarello But Declines Opportunity To Adopt Restatement Third of Torts
On November 19, 2014, the Pennsylvania Supreme Court issued its much-anticipated decision in Tincher v. Omega Flex, Inc.Having originally granted allowance of appeal to decide whether to replace the strict liability analysis of Section 402A of the Restatement Second, Pennsylvania’s highest court declined the opportunity and instead overruled its 1978 ruling in Azzarello vs. Black Brothers, 391 A.2d 1020 (Pa. 1978). The four justice majority opinion (available here), written by Chief Justice Ronald D. Castille, held that Pennsylvania will continue to apply the Restatement (Second) of Torts, Section 402A rather than adopt the Restatement (Third) of Torts. The majority opinion explained that the appropriate question in products liability litigation is whether either Restatement, Second or Third, articulates a standard of proof for strict liability claims consistent with Pennsylvania common law. Somewhat ironically, after acknowledging the significant force of Pennsylvania decisional law, the state Supreme Court then overruled its controversial ruling in Azzarello, supra. In addition, the majority opinion also adopted consumer expectation and risk-utility tests for design defect claims; gave trial courts broad discretion in articulating jury instructions; and left many questions unanswered.
The majority decided that the proper analysis was not which Restatement (Second or Third) applied but which provided the standard of proof for strict liability claims that is consistent with Pennsylvania law. The majority also looked to other jurisdictions for guidance and ultimately decided that it needed to take the significant step of overruling Azzarello. The court explained thatAzzarello had created an unworkable rule that separated strict liability and negligence concepts. Under Azzarello the risk-utility analysis, when implicated, was an issue of law to be decided by the court. Tincher ends this practice in most if not all cases, leaving the risk-utility analysis to the province of the jury.
Adoption of consumer expectation and risk-utility tests
Under Tincher juries deliberating strict liability design defect claims will be allowed to consider both the consumer expectation and risk-utility balancing tests. Those tests bring in elements of whether a product meets the safety expectations of reasonable consumers, and whether a product’s risks outweigh its utility. This new standard should permit introduction of evidence regarding foreseeability of a product’s risk. The majority opinion does not require plaintiffs to establish that a feasible alternative design was available when the product was manufactured, as would be required under the Third Restatement.
The court found the brush of the Third Restatement was too broad. “[A]rticulating the burden of proof in terms of evidence (alternative design) deemed probative of the general principle of strict liability proscriptively limits the applicability of the cause of action to certain products as to which that sort of evidence is available.” The court further stated that the “Second Restatement … permits the plaintiffs to tailor their factual allegations and legal argumentation to the circumstances as they present themselves in the real-world crucible of litigation, rather than relying upon an evidence-bound standard of proof.”
Going forward, a plaintiff pursuing a strict liability design defect claim must prove that the product is in a “defective condition” by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer (consumer expectation test), or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions (risk-utility test). The court also indicated that a composite standard, which retains the best functioning features of each test, could be used in the appropriate factual context.
The Tincher court found that under the consumer expectations test a “defective condition” is a condition, upon normal use, dangerous beyond the reasonable consumer’s contemplations. Stated another way, the product is defective if the danger is unknowable and unacceptable to the average or ordinary consumer, and not defective if the ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk of injury of which the plaintiff complains (e.g., a knife).
For products where the alleged defective condition is premised upon either an obvious danger or danger outside the ordinary consumer’s contemplation, the risk-utility test (cost-benefit analysis) applies. That standard states that a product is defective if a “reasonable person” would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The Tincher opinion notes that the risk-utility test offers courts an opportunity to analyze post hoc whether a manufacturer’s conduct was reasonable, which reflects the negligence roots of strict liability. Such reasoning had been prohibited under the Azzarello line of cases.
The decision in Tincher also gives trial courts broad discretion in phrasing jury instructions, stating that the proper tests and burdens will depend on the specific facts and products in each case. The Suggested Standard Civil Jury Instructions likely need to be amended. Although, given the holding in Tincher, trial courts and practitioners will likely have to engage in formulating jury instructions that are narrowly tailored to the specific case, rather than applying a blanket suggested instruction.
Tincher leaves many questions unanswered. Perhaps most notably is which party bears the burden of proof. The Tincher majority opinion recognized that the burden may shift to the defendant in particular cases, but did not determine the issue at this time. Similarly, Chief Justice Castille’s majority opinion failed to address whether strict liability permits damages where the harm is from known, foreseeable risks or unknown risks. An even more fundamental question was also ignored, namely whether the Tincher ruling would extend to manufacturing defect and failure to warn claims. The guidance the court did give was simply that “… the foundational principles upon which we touch may ultimately have broader implications by analogy.” Furthermore, additional issues such as use of negligence-derived defenses, whether bystander liability is allowed and proper application of the intended use doctrine are open issues. In yet another context ripe for future litigation, the court will likely be asked to address whether to continue excluding prescription drugs and medical devices from strict liability.
While questions remain, the main issue of whether Pennsylvania would adopt the Third Restatement has been answered in the negative. In its opinion, the Tincher court overruled years of precedent from Azzarello and its progeny. Design defect strict liability claims in Pennsylvania are now governed by the consumer expectation and/or risk-utility tests. While trial courts have broad discretion in articulating jury instructions that reflect the new standard, it remains to be seen what will be deemed acceptable under Tincher.