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Supreme Court to Decide if PA Products Liability Law Should Follow Second Restatement of Torts

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Pursuant to an order issued on March 26, 2013, the Supreme Court has ruled that it will hear appellate arguments on the issue of whether the analysis of the Restatement (Third) of Torts should replace the strict liability analysis of the Second Restatement. 

In the underlying case of Tincher v. Omega Flex, the defendant manufactured natural gas piping that was installed at the plaintiffs’ house.  According to court papers, during the time at issue, the piping was damaged by lightning, which eventually caused the plaintiffs’ house to be damaged by fire.  Following trial, the jury was instructed to follow the standard set forth in the Second Restatement and accordingly found in favor of the plaintiffs on a claim of strict liability.  The defendant subsequently appealed and the Superior Court affirmed the judgment, holding that the trial court did not err by following the Second Restatement.  Thereafter, a petition for allowance of appeal was filed regarding the application of the Third Restatement.

With regard to products liability law, Pennsylvania courts have traditionally adhered to Section 402A of the Second Restatement of Torts, which holds sellers “strictly liable” for harm caused to consumers by unreasonably dangerous products.  In this regard, liability is attributed to sellers irrespective of any negligence, i.e. whether they exercised reasonable care, based on instead an analysis of defects within the product, the intended user, and his or her intended use of the product.  The Third Restatement, on the other hand, rejects such a "no negligence" regime and holds sellers liable only for the sale of products determined to be “defective,” pursuant to various criteria which incorporate negligence concepts such as “foreseeable risk” and “care.”  Notably, the Third Restatement also requires a showing of an alternative design, and whether utilization of such a design could have minimized or eliminated the risk of injury.  While the additional elements of proof contained within the Third Restatement would appear to generally favor defendants, the law also benefits plaintiffs by allowing recovery for injured bystanders who are not the intended users of products.

The Supreme Court’s decision to hear the Tincher appeal is particularly significant due to several previous predictions by the U.S. Court of Appeals for the Third Circuit that the Court would adopt the Third Restatement as the applicable standard for addressing products liability.  Such predictions notwithstanding, the Third Circuit has gone so far as to instruct the lower district courts to follow their precedent, given the lack of Supreme Court authority on the issue.


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