Product Liability in Pennsylvania: The lightening change

Pennsylvania has been following a unique variation of strict liability that permits no consideration of negligence concepts. The precedent set in 1978 by the Azzarello v. Black Brothers Co. case which precluded all evidence of negligence in strict liability cases has now been overruled by the Supreme Court in Tincher v. Omega Flex Inc.[1].

The Tincher case was a result of a fire that occurred at the home of Terrance and Judith Tincher on June 20, 2007. The Tinchers alleged that the fire started when a lightning stroke near their home caused a small puncture in corrugated steel tubing (CSST) carrying natural gas to a fireplace located in their home. The CSST was manufactured by Omega Flex, Inc. (Omega Flex), the defendant in this case. The complaint filed by Tinchers included a strict liability claim based on § 402A of the Second Restatement, as followed in Pennsylvania. Among other things, the Tinchers alleged that the CSST was defective and unreasonably dangerous for intended users because its walls were too thin to withstand the effects of lightning.

A 7 judge majority opinion authored by Chief Justice Ronald Castille, the Court overruled its opinion in Azzarello and adopted a new test for evaluating design defect claims under the Restatement (Second) Torts § 402A.

The court stated reconsideration of Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), is necessary and appropriate and, to the extent that the pronouncements in Azzarello are in tension with the principles articulated in this opinion, the decision in Azzarello is overruled. Azzarello held that the phrase “unreasonably dangerous” is per se misleading to lay jurors and as a result that any questions relating to the risks and utilities of a product are to be decided by the trial court as a matter of law and policy. Moreover, Azzarello approved, and thereby essentially required, instructions which informed the jury that, for the purposes of a supplier’s strict liability in tort, the product must be provided with every element necessary to make it safe for its intended use. Subsequent decisional law has applied Azzarello broadly, to the point of directing that negligence concepts have no place in Pennsylvania strict liability doctrine; and those decisions essentially led to puzzling trial directives that the bench and bar understandably have had difficulty following in practice.

The key holdings of Tincher are [1]-Because attempting to insulate juries from negligence concepts in strict products liability cases failed to reflect practical realities and did not sufficiently allow for the common law to develop incrementally, the court overruled Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978); [2]-To avoid articulating common law principles in overly limited terms, the court declined to adopt the formulation of the strict products liability cause of action set forth in the Third Restatement of Torts; [3]-A composite standard was adopted requiring proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product to establish that the product was in a defective condition, which usually was a question of fact for the jury; [4]-Accordingly, a remand was appropriate to determine whether a manufacturer was entitled to post-trial relief.

[1] Tincher v. Omega Flex, 2014 Pa. LEXIS 3031

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