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On November 19, 2014, the Pennsylvania Supreme Court posted its long-awaited opinion in Tincher v. Omega Flex, 2014 Pa. LEXIS 3031 (Pa. Nov. 19, 2014). The 137 page opinion, authored by Chief Justice Castille, will operate as a sea change in determination of products liability design defect cases in Pennsylvania. Of greatest import, Tincher overruled Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which was the source of much pain for defendants for decades in Pennsylvania. The Tincher Court is much more clear in what is no longer the law than it is in detailing what the law now is, preferring at multiple outposts to refrain from ruling on future applications of its decision. A short, but thorough, break-down of the Tincher decision is as follows:
a.) Azzarello is expressly overruled.
b.) The abandonment of Azzarello principles carries with it two dramatic changes to the procedural/substantive and evidentiary/substantive models on which defective design cases are decided in Pennsylvania. First, the two-step determination of defectiveness ordained by Azzarello is no longer the law. Under Azzarello, it was the trial court’s duty, as a matter of law, to act as a “social philosopher” and determine whether the circumstances of a particular case warrant permitting it to be submitted to the jury on strict liability principles. Then the jury would determine whether the product was defective based on the evidence. After Tincher, the determination of defect is singularly a question of fact to be determined by the jury, as it is in most jurisdictions.
Second, the Azzarello strict separation of negligence principles of all types from strict liability has been recognized to be wrong. The potential evidentiary and substantive law implications of this were not decided by the Tincher Court, which left them to be decided in future cases. Under Azzarello principles: evidence of compliance with industry standards was not admissible; evidence of compliance with industry custom was not admissible; evidence of compliance with the state-of-the-art was only admissible if a defendant could show the technical infeasibility of a subsequent design at the time a product was produced, regardless of whether the design was actually used at that time; plaintiff’s comparative negligence was not a defense. All of these Azzarello-based “rules” have the potential to be reversed after Tincher.
c.) Defendants will no longer be forced to live with the Pennsylvania Standard Jury Instruction on defect, which was tailored from Azzarello. This charge, prejudicial in all cases to the defendant, informed the jury that a supplier was the “guarantor” of the safety of its product and defined defect as “whether the product left the manufacturer’s control lacking any element necessary to make it safe or containing any element rendering it unsafe”. The Tincher Court did not fashion a new standard instruction, leaving it to the lawyers to present appropriate suggestions based on the facts and issues in each case.
d.) The Court did not adopt the Restatement Third of Torts: Products Liability. Instead it maintained a products liability formulation based on Section 402A of the Restatement (Second) of Torts, making the formulation more mainstream (as compared to Azzarello) and in places noting that its formulation was informed by Third Restatement Principles.
e.) Tincher adopted a standard of defect where a Plaintiff can prove design defect liability under EITHER the “consumer expectations standard” or “risk/utility balancing approach” (or both) which have been developed in the common law in other jurisdictions. The consumer expectation standard defines “defective condition” “as a condition, upon normal use, dangerous beyond the reasonable consumer’s contemplations.” Id.. at *151. Under this standard, a “product is not defective if the ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk of injury of which the plaintiff complains…” Id. at *152. The consumer expectations test derives from the Second Restatement’s commentary on the principles of “defective condition” and “unreasonably dangerous,” designed to limit liability. Id. at *153. The court noted the limitations of the consumer expectations test, namely that (a) clearly dangerous products would be exempt from strict liability, and (b) jury determinations of consumer expectations regarding the presence of danger are unpredictable. Id. at *154-155. The risk-utility standard states that “a product is in a defective condition 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.” Id. at *157. This standard allows a post-hoc determination of whether a manufacturer’s conduct (in manufacturing or designing a product) was reasonable, “which obviously reflects the negligence roots of strict liability.” Id. at *158.
f.) The Court simply spotted future issues that would need to be decided in subsequent cases, without commenting on them, including “the availability of negligence-based defenses, bystander compensation, or proper application of the intended use doctrine”. Id. at *135.
g.) The Court did not decide the issue of retroactivity with respect to application of its decision, other than holding that the defendant in Tincher deserved to benefit from the opinion, it having properly preserved the issue requesting that Azzarello be overruled.
 In assessing a “reasonable” consumer’s expectations, the court should consider the nature of the product, the identity of the user, the intended use and user of the product, and any express or implied representations by the manufacturer. Id. at *152.
The above is a compact break down of the Tincher v Omega Flex, Inc decision which represents a sea change in products liability law in Pennsylvania. Please click on the link below to read a comprehensive summary of the Opinion.