Bugosh v. I.U. North America, Inc.

majority concern expresses extending to a defect presumption prejudice appellate in an brief rule, “essentially would transform the into a exception as many contain appellate arguable briefs at least one defect.” Majority Opinion, However, 971 A.2d at 1227. as brief, Appellee throughout present stresses his the situation at hand is one in which counsel on direct appeal forfeited one- percent hundred of the claims raised appeal. on Since this simply is not the norm I appellate litigation, do not believe majority’s concern floodgates carries deal of great force. Moreover, this is issue not an from the entailing judg- relief Rather, ment of sentence. it provision concerns only one appeal as right which was Appellee and is constitutionally entitled. reasons,

For the above I would affirm the order of the Superior Court.

971 A.2d 1228 BUGOSH, Judith R. Administratrix of the Estate of Edward J. Bugosh, Bugosh, Right Deceased and Judith R. In Own Her AMERICA, INC., NORTH Merger I.U. as Successor Garp formerly Company, Company, Gage known as the former- ly Gage Pittsburgh Supply Company, known as E.W. Bow- man, Inc., Inc., formerly Emhart Glass known as Emhart Manufacturing formerly Company, Empire, known Hartford as Wright Company, Inc., F.B. Combustion, Taylored Surface In- dustries, Inc.

Appeal America, of I.U. North Inc.

Supreme Court Pennsylvania.

Argued Dec. 2008.

Decided June Willbraham, Lawler, B. Watson, Robert Esq., E. Jennifer Mitchell, P.C., Regrut Buba, Philadelphia, Susan Lawler & Buba, P.C., for I.U. Willbraham, Pittsburgh, Lawler & Esq., America, Inc. North Offices, P.C., Oak- Wimer, Law Wimer Esq., R.

Matthew Industries, Inc. mont, Taylored for Kane, Savinis, Savinis, & D’Amico Esq., Marie Janice Rieders, L. Esq., Pamela Alan L.L.C., Clifford Pittsburgh, Harris, Travis, Waters & Rieders, Humphrey, Shipman, Esq., R. Waffenschmidt, Bugosh. for Judith Williamsport, Stanek, for Surface Mulhall, Esq., Frank Esq., James J. Combustion, Inc. Esq., Adomitis, Daly, Esq., Leo Gerard Frank

Andrew Company. F.B. Graffam, P.C., Wright for Pittsburgh, Grogan Jezewski, Argento, Esq., L. Esq., John Joseph Thomas Inc. L.L.C., for Emhart Glass Pittsburgh, Campbell, Swartz Silver, Esq., Winkelman, William Esq., L. Samuel Nancy Segal Harrison & Esq., Schnader Fogdall, Andrew Stephen L.L.P., Washington for amicus curiae Lewis, Philadelphia, (WLF). Foundation Legal L.L.P., for Martinez, Moring, & Esq., Lee Crowell

Michael and Indus- of Business Pennsylvania curiae Chamber amicus et al. try Jr., Esq., Iole, Moellenberg, H. Esq., Edward Charles

John Gleason, Esq., Ellsworth, Caitlin Esq., Margaret E. Laura for amicus curiae Sherwin-Williams Pittsburgh, Day, Jones Company. L.L.P., for Philadelphia, Beck, Dechert Esq., Michael

James Advisory Counsel. Product amicus curiae Anders, Koch, Esq., Paul Jerrold Esq., Michael Edward Williams, L.L.P., Scott, Jr., White Esq., Wright James Philadelphia, Pennsylvania for amicus curiae Defense Institute and the Insurance Federation of Pennsylvania. Pettit, Locks, Joseph Esq.,

James Gene Esq., Jonathan W. Miller, Cohen, Firm, Mitchell Esq., Esq., S. Locks Law Phila- delphia, Roofers, for amicus curiae United Union of Water- Workers, proofers, etc., and Allied et al. Mansell,

Jeffrey Esq., VanVoorhis Goldberg, Persky & White, P.C., Pittsburgh, for amicus curiae United Steelwork- ers.

Rosalind T. Kaplan, Esq., Granato, L.L.C., Jarve Kaplan amicus curiae Justice, American Association for et al. CASTILLE, C.J.,

BEFORE: SAYLOR, EAKIN, BAER, TODD, McCAFFERY GREENSPAN, JJ.

ORDER PER CURIAM.

Appeal dismissed having as been improvidently granted. Justice SAYLOR files a dissenting statement in which Chief joins. Justice CASTILLE SAYLOR,

Justice dissenting. Appeal was whether, allowed to consider in product liability in actions Pennsylvania, to move from Section 402A of the Second Restatement of Torts to Section of the Third Re- (cid:127) statement of Torts: Product Liability, thus substantially alter- ing grounded scheme on the seminal decision in Co., Azzarello v. Black 547, Brothers 480 Pa. 391 A.2d 1020 (1978). I reiterate my belief that Azzarello is severely defi- cient, particularly when against measured developed under- standing experience, and adjustments necessary are long Thus, overdue. I cannot support the decision to dismiss this appeal permit another opportunity go by the wayside. Background

I. This is an from a appeal verdict favorable plaintiff in a product liability action based on exposure asbestos litigated against non-manufacturer distributor. Appellee and her deceased, strict-liability, on a husband, recovery pursued now of the Re- under 402A Second theory failure-to-warn Section defendant, trial, sought During Appellant, statement. by way the Third Restatement of application Section limine, light in of this Court’s a motion in which was denied 402A of the Sec- adopting Section precedent well-established by Superior The verdict was affirmed ond Restatement. Court, precedent. settled See based on this Court’s again (Pa.Su- Co., 932 A.2d Allen Bugosh v. Refractories (“Until alters its Supreme and unless our Court per.2007) adhere to we will continue to liability, to strict approach principles.”). established in law

Nearly years ago, products six state extensively Phillips was discussed Cricket Pennsylvania (plurality).1 576 Pa. 841 A.2d 1000 Lighters, by to the course set strongly lead adhered opinion Phillips Azzarello, that, 402A which held in the of Section application Restatement, imposes liability upon which Second in a condition unreason- any product who sells defective “[o]ne (or “unreasonably dangerous” ably dangerous,” concept safety) reasonable has no before a conversely place due and 480 Pa. at 555-56 & n. 391 A.2d at jury. See with the protection n. 9. Azzarello’s chief concern was & id. at marketing. of consumers to mass exposed at 1023-24. The to advance this aim sought A.2d Court by broadly couching under 402A litigated actions Section safety, by their guarantors products’ manufacturers as jurors of reasonableness strictly forbidding consideration at 1027. id. at conceptions. See Phillips lead reiterated “strict Echoing foreseeability affords no latitude for the utilization of liability 655, in Id. at 841 A.2d negligence theory. concepts” grounded Co., Div., Coffing at Lewis v. Hoist (citing Duff-Norton subject underlying Phillips in harm 1. The action was caused cigarette lighter. specific originated by playing a child with a fire question whether the intended-use doctrine before this Court was liability encompassed reasonably product foresee- associated with strict foundational able uses. The Court's treatment of this issue subsumed issues, discussed below. 334, 341, 590, (1987) 515 Pa. 528 A.2d (“[Negligence have concepts place no in a case based on strict liability.”)). so, This is the lead Justices explained, because in a strict- liability trial, action the product itself is on and not the manufacturer’s conduct. Id. (citing Kimco Dev. Corp. Mi- Outlets, Carpet 1, 7, chael D’s 603, 536 Pa. 637 A.2d 605-06 (1993), Co., and Spino v. John Tilley 286, S. Ladder 548 Pa. 292, 1169, (1997)). Nevertheless, A.2d the lead opinion confessed error on the part the Court in its own use of negligence within the concepts strict-liability arena. Id. at 655-56, (“While 841 A.2d at 1006-07 we have remained stead- fast our proclamations that negligence concepts should not be imported law, into strict we have muddied the waters at times with the careless use of negligence terms in (footnote the strict omitted)).2 arena.” After indicat- it ing would be imprudent to reverse all strict-liability deci- utilizing terms, sions negligence stated, the lead opinion “we can, do, reaffirm that jurisdiction, this negligence concepts have place no in strict liability law.” Phillips, 576 Pa. at 841 A.2d at 1007. concurrence,

In three Justices noted the incongruity in abiding the numerous accretions of negligence theory into strict-liability doctrine, while at the same time pronouncing they place have no there. Phillips, 841 A.2d at J., 1012 (Saylor, joined by Castille, J., J.). Eakin, Fur thermore, noted, it was strict-liability core, theory its as it has been applied Pennsylvania, incorporates the principle of (or cost-benefit) risk-utility balancing, derived from negligence theory. See id. at 667-68 n.& 841 A.2d at 1013-14 & n. 5 alia, (citing, inter Inc., Surace v. Caterpillar, 111 F.3d (3d Cir.1997) (recognizing “long hegemony” of cost-benefit analysis law)).3 Pennsylvania under The concur- example, Phillips 2. As an lead referenced Corp., Davis v. Berwind 260, 267, 547 Pa. (incorporating a foreseeabil- ity test into the alteration applied scenario as within strict- liability theory). Phillips 3. The highlighted concurrence that it was never the intention of the Second Restatement to render manufacturers insurers of their products, responsible use, any and all harm caused from their cases,4 that, the distinc- design-defect developed

rence also the conduct of the character of a product tion between the 669, 841 it is tenuous. id. at designing manufacturer in See (“Manufacturers how to consciously choose A.2d at 1015 reason- Asking product whether the products. their manufacturer whether the asking able tends to circle back Cupp, it.” Richard L. Jr. (quoting due care in designing used Products Danielle The Rhetoric Strict Polage, 77 N.Y.U.L. Empirical Analysis, An Negligence: Versus Rev. (2002))). Pennsylva- concurrence that explained The entirety in its strict-liability theory to isolate attempt nia’s the author of supported by was not negligence theory: from relied, Phillips, article on which the Court had see the seminal 666, 670, 1014-15;5 led to risk- Pa. 841 A.2d at has at to the trial courts on facts most favorable utility balancing by (to judge determining the trial plaintiff entangling avoid Azzarello); and assigned jury factual to the under questions (to jury jury minimalistic instructions insulate the yielded has guidance which lack essential negligence terminology) from id. at defect. See concerning key conception 672-74, 841 A.2d at 1017-18. that the Third Restatement concurring Justices found providing illuminates the most viable route to essen-

approach remediation, by: preserving tial clarification and traditional defects; a reason- liability manufacturing endorsing strict ableness-based, test as the standard for risk-utility balancing product designs; relegat- the defectiveness of adjudging analysis jury, guided by appropriate the cost-benefit to the ing safety. regardless products' utility Phillips, 576 and relative (citing at at 391 A.2d Pa. Thus, 1025). risk-utility negligence-based test was utilized to liability. impose appropriate on See id. an limitation cases, given Phillips design-defect 4. The centered on discussion theory. pursued underlying via that was in the action Indeed, University emphasized Wade of Dean John W. Vanderbilt that, discussions, pertained strict-liability dynamic in his manufacture/supply establishing plaintiff's due care in the burden whereas, theory concepts negligence serve a process; derived from (or stages aspects) in other assess- critical role at other ment. See id. (where instructions sufficient evidence has been presented to verdict). preclude or summary judgment a directed See Phil- 675-79, lips, 1019-21; 841 A.2d at see also DGS Co., 236, 254, United States Mineral Prods. 587 Pa.

590, 601 (referencing position of the Phillips con- currence, given its conclusion that there are substantial defi- doctrine, ciencies in present strict-liability “it should be closely Court”). limited an overhaul pending by the Presently, Appellant its aligns primary argument with the concurrence, Phillips that, contending in light of its rational grounding the context defects, of manufacturing strict liability has been beyond “stretched reason” in way it has been extended to design-defect and failure-to-warn cases. In concurrence, addition to the Phillips Appellant discusses the thoughts scholars, of other judges, who, commentators over past thirty years, have addressed the conceptual difficulties which have surfaced as a result of the way Section 402A has been interpreted discourse, and applied. Such Ap- notes, pellant motivated the recommendations advanced in the Third Restatement. Appellant contends that the changes advocated in the Third Restatement do not mark a radical 402A, from departure rather, Section but “fine tune” existing strict law to achieve greater fairness in these distinct types claims. According Appellant, whereas the Second Restatement is silent regarding defective, when a product is the Third Restatement provides appropriate guidance. Appel- lant suggests that the Third Restatement reflects the trend in nationwide, litigation would clarify and streamline the law in Pennsylvania, and would result in a more just and cost-effective resolution of product liability lawsuits. amici, of Appellant’s

One Council, Products Liability puts argument more bluntly, as follows: Azzarello was in tatters when the Court decided Phillips. The three concurring Justices in Phillips recognized that the Azzarello negligence/strict liability dichotomy is beset by “pervasive ambiguities and inconsistencies.” Although attempting to retain even the opinion lead Phillips had to murky admit how the dichotomy had be- concepts in strict negligence to such resort

come. Judicial opinion the lead -widespread was so liability cases re- us to wholesale imprudent be concluded “it would negligence utilize liability decisions which verse all strict overruling While legion. These cases are indeed terms.” Phillips left their surely “imprudent,” them all would prior precedents Are these fundamentally uncertain. status viable, not? still or Should negligence principles employing followed, modified in some unstated ignored, or they be way?

[*] ^[*] tK treat no on how to offering guidance lower courts By “reasonableness” and “foresee employing of cases dozens Ser liability,” standards in so-called “strict General ability” principles Pennsylvania have left core Phillips vices and as here law unsettled. Where product liability profoundly enig doctrine has become practical application [a] “the matic,” in the lower consistency there exists “a lack of of the application indicates to us that the “[t]his courts” — v. Hallo to be unworkable.” Jacobs proved has [doctrine] (1998). 1098, ran, 350, 358, 1102-03 When 551 Pa. 710 A.2d to a give lines between related doctrines rise fine drawn “unnecessary of formal distinctions” and to “labyrinth it is time to simple legal proposition^],” befuddlement of [ ] Korvette, Inc., v. 457 Pa. way. seek another Gilbert (1974). 609, 611, 327 A.2d Azzarello, relationship negligence after Thirty years is rife with product liability litigation and strict notions, confusion, distinctions do legalistic obscure ... and understand- comport experience “not with common that decision.” fully justify “overruling] and which ing,” Polons, 638, 643, 561 Pa. 752 A.2d Eng’g Banks Co. v. (2000). Council, Inc., Liability Advisory Product Brief for Amicus (citations omitted); also id. at 41 28-29, and footnote see 32-34 (“Adoption single, of the Third Restatement’s defect unitary standard needed to eliminate the confu- current doctrinal sion, juries adequate and to create a where receive system instructions and are not confused redundant by theories liability.”). hand, that, on the other

Appellee, particularly contends given long-standing any tenure of modifications policy making constitute which is more left to the properly Servs., Legislature. Accord Admin. Inc. v. Program Dauphin Auth., 184, 192, County 593 Pa. A.2d Gen.

(2007) (“[I]t is the chief Legislature’s function to set public policy and the courts’ role enforce that policy, subject limitations.”); Hellam, constitutional Naylor Township 397, 408, 565 Pa. (recognizing Legislature’s superior ability to social policy examine issues and determine legal standards so balance as to competing concerns).

On the merits whether concerning adopt the Third Re- statement position, Appellee does not specifically refer Rather, concerns of the concurring Phillips. Justices in Ap- pellee criticizes the Restatement as an inappropriate attempt at tort reform orchestrated members business (“[T]he insurance communities. Brief at Appellee Restatement was heavily of, influenced if not the by, insurance, business, interests.”). and manufacturing Appellee invokes the doctrine of stare decisis and any contends that folding decision a Restatement section into state’s common law must be a natural development of existing law. While recognizing in the abstract that many significant issues legal with respect direction of Pennsylvania’s law of product exist, liability Appellee that urges this should Court not “cede to a private organization discussion” such as the American Law Institute. See id. at (citing Marshall S. In Shapo, Search the Law Products The Liability: ALI Restate- (1995) (“To ment Project, put 48 Vand. L.Rev. 685-86 point more baldly, the ALI should not undertake to make law for judges.”)). to According Appellee, although accep- wide claimed, tance may the Third position Restatement draws Brief a few states. See only common law of from the support New Emperor’s Vargo, F. (citing at 25 John Appellee for a “New Cloth” Law Institute Adorns The American Clothes: Sur Design Liability Products Section 402A Defects—A Weave, 26 U. Reveals a the States vey Mem. Different (1996)). 493, 536-37 L.Rev. public policy on the strong focus places brief

Appellee’s consumers, which motivated innocent of protecting concern Pennsylva- notes that Appellee 402A and Azzarello. Section concept rooted in liability deeply product nia’s law of in the commercial places product who a that the manufacturer steps take than the consumer to position in a better stream is or to bear the injury product, from its to reduce the risk of product. from the use of its that do result injuries costs of system a fault-based a return to According Appellee, burden by increasing plaintiffs’ purposes undermine such regard, level. In this to an insurmountable perhaps of proof, en- criticizes, the Third Restatement’s in particular, Appellee establish the avail- plaintiffs requirement dorsement of alternative, under pursue liability safer ability of an (Third) of Torts: Restatement design-defect theory. See 2(b). con- opposes any further Appellee Products art in or state of the strict industry standards sideration actions, law. Pennsylvania to current contrary product 594; Lewis, A.2d at v. Colson Carrecter (1985). Co., 95, 103, 499 A.2d Pa.Super. Equip. of the Third Restate- adoption asserts that Finally, Appellee incentive to manufacturers product ment would reduce the Kimco, Accord products. to distribute safer suppliers that the “deterrent effect 637 A.2d at 607 (positing Pa. standards would be weakened strict imposing defeated, or it to be upon we to allow actions based were coun- concepts. We will not by negligence reduced recoveries a development.”). tenance such notice of the obviously has taken acute community The legal divide, was selected present appeal which the Phillips comprehensive This has attracted finally appeal resolve. but also from numerous litigants, from the briefing, only not amici.6 Given the important stake, future interests at Court is with presented advocacy key on doctrinal questions extensive, which is impressive, and zealous.

II. The Merits Revisiting A.

Phillips amply demonstrates the core in problem application of prevailing Pennsylvania law lies in the insistence on maintaining doctrinal assertion that there is no negli- when, gence strict liability, functionally, the law of “strict” products liability is infused with Al- negligence concepts. this though fundamental incongruity was at the heart of the Phillips, dispute case, in the present none of the briefs defending current law squarely addresses it.7 No one has advised the forward, Court how it is that we can go resolving numerous unsettled issues of product law, predicating just jurisprudence sensible on rhetoric so disharmonious with practice. actual

I have respect for counsel advocating quo status and no intention of criticizing their skill or awareness of the issues. Rather, I believe are they confronted with the same difficulty faced this Court —a serious misalignment between the side, Appellant's Institute, 6. On Pennsylvania these include the Defense Council, Inc., Liability Advisory Product Pennsylvania Chamber of Justice, Inc., Industry, Business and Litigation Coalition for Chamber of America, Commerce of the United States of National Association of Manufacturers, Center, Legal NFIB Small Business National Associa- Wholesaler-Distributors, Association, tion of American Tort Reform Association, American Insurance Property Casualty Insurers Asso- America, ciation of nies, National Association of Compa- Mutual Insurance Council, Chemistry Foundation, American Washington Legal Company, Textron, Sherwin-Williams United Corporation, States Steel Inc., East, Appellee's Beazer Inc. are amici the American Associa- Justice, Justice, Pennsylvania tion for Pennsylvania Association for AFL-CIO, Steamfitters, Workers, Local 449 Local 2 Asbestos United Steelworkers, Roofers, Wateiproofers United Union of and Allied Work- ers, Local No. and International Association of Heat and Frost Trades, Insulators and Allied Local No. 14. Certainly, Appellee briefs of rely and her amici on this Court’s negligence concepts statements that belong do not in strict little, however, They explain doctrine. offer how this notion can be rationally squared which, strict-liability regime with a in material respects, overlaps negligence theory. with opera- and its actual liability doctrine of our strict descriptions made the to have Phillips opinion appears The lead tion.8 following with the situation -with of can be done best what expression: reverse all of us to wholesale imprudent it would be

While terms, we negligence which utilize liability strict decisions do, jurisdiction, negligence in this can, reaffirm that law. liability have no strict concepts place such a Pa. at 841 A.2d at On Phillips, to foundation, however, to move forward very it is difficult law connected with unsettled issues of decide the numerous principles. the core liability doctrine consistent with strict con- Admittedly, incorporate negligence we have cases which (and cannot will not liability into strict doctrine—we cepts do concepts clearly them —and so justly) negligence overturn then, it, How is that we liability have a strict law. place to to litigants say courts and continue may require continue not? they do like initially being shaped, law was product

When Court, be categorical others envisioned a divide many this See, strict-liability negligence concepts. e.g., Cro tween 121, 104 433, 501 Corp., Cal.Rptr. nin v. Olson 8 Cal.3d J.B.E. (1972). readily justified most P.2d This was defects, in manufacturing which involving cases “prototype” in the so that “something wrong manufacturing process, went or or missing part had a loose screw or defective product element, it was product and was not the safe deleterious Wade, the Nature Strict Tort intended to be.” John W. On of (1973). Products, 825, 831-32, 44 Miss. L.J. Liability for laid, however, liability was Once the foundation for strict (3d generally 1 Madden & Owen on Products 5:10 Liability 8. See ed.2008) proved potent (explaining "the rhetoric of 'strictness' so hampered uncompromising that it the reasoned evolution of the products liability law-in-practice time. The continued to doctrine over (its doctrine) keep pace.”); develop, language the law failed to but of Worthington, Strict Tort William A. The “Citadel” Revisited: that, Law, Policy (positing 36 S. Tex. L.Rev. and the of loss-spreading in the application of a rationale as a result of courts' context, struggled "legal analysis became contorted as courts tort Ultimately, principles. compensation with traditional tort reconcile suffered.”). credibility legal system of our has defects, claims involving categories two other of design and defects, warning proliferated. As the treatment of these categories evolved, broader most courts came to realize that of strict application liability in design and cases warning was far more problematic than in the manufacturing-defect para- digm. Particularly in light system’s the tort largely open- scheme, ended damages and the impossibility designing products incapable contributing human injury, doctrinal limiting principles were necessary to contain See, manufacturers and suppliers. e.g., Prentis v. Co., Yale Mfr’g (Mich. Mich. 365 N.W.2d 1984).9 alternative, it was widely recognized, was to be, sanction what would effectively, a scheme mandatory insurance imposed by judiciary on the business communi- an ty, idea foreign judicial function and unpalatable in any jurisdiction.10 In furtherance of establishing essential Owen, generally 291, 9. See Design Defects, David G. 73 Mo. L.Rev. 353 (2008) ("In holding responsible manufacturers design, for defects in courts and always sought commentators have liability, to avoid absolute recognizing concepts that the design safety design danger and are degree involving usefulness, matters of product’s trade-offs between a cost, ("As safety.”); and id. at 299 liability strict manufacturer principles (Second) ... Restatement spread of Torts 402A across 1970s, the nation in the 1960s and courts and commentators searched mightily for liability standards or 'tests' stop liability well absolute.”). short of policy pragmatic Various social justifications and include; limiting the liabili- ty of incentivizing manufacturers design by rewarding safer manufacturers; careful recognition plaintiff that a verdict for a in a product liability case is tantamount to a determination that an entire defective, product therefore, line is and higher threshold of fault is justified; system incorporates a fault greater intrinsic fairness not burdening manufacturers and their insuring customers with the cost of losses; against possible all discovery liberalized modern rules plaintiffs should enable to learn surrounding the facts manufacturers’ Prentis, deliberate decisions. See 365 N.W.2d at 185. previously 10. This Court has eschewed the pure notion of a loss See, spreading system. Servs., tort e.g., v. Central Med. Health Cafazzo Inc., 526, 535, 521, (1995) ("To 542 Pa. 668 A.2d assign 526 liability for ability no reason other pay damages than the to is inconsistent with our jurisprudence.”); Richardson-Merrell, Inc., Coyle 208, 217, 526 Pa. 1383, (1991) "[rjeliance 584 A.2d (finding cost-shifting on as the only factor to given be considered in party whether a exposed should be with the doctrine liability strict reconciling boundaries justice, corrective law in notions of of tort grounding historical negligence from derived approach risk-utility balancing —-an limiting as a rational recognition wide-scale theory —attained Inc., Indus., Dominion v. United Moyer principle. Prentis, (3d at 183.11 Cir.2007); 365 N.W.2d F.3d negli- application justify curtailing effort to In its liability product strict Pennsylvania’s principles gence-based decisions —the Califor- judicial relied on two regime, in Cronin and a New opinion seminal Supreme nia Court’s Co., v. Ford Motor Glass Jersey court’s decision (1973). recog- not Azzarello did 304 A.2d 562 N.J.Super. criticized as nize, however, already widely was that Cronin of product the central concept no useful definition of providing See, v. Cumberland e.g., Cepeda cases. design-defect defect Wade, Co., (citing Eng’g N.J. liability result in liability” support because it “would insufficient liability”). liability strict absolute rather than rationale, Countering loss-spreading and commentators courts expanded recognize impact on business of an came to principle. example, one commentator grounded For scheme on such indicated: insurance the cost of Between 1971 Department drastically. According premiums to 1984 increased statistics, foreign competitors had America’s insurance Commerce twenty fifty than their American counter- costs times lower parts .... manufacturers, many the tort only unobtainable for Not is insurance study by delivery A system mechanism. is not an effective insurance legal that the Corporation’s Civil Justice found the Rand Institute for $19 billion to system $16 a total transaction cost of to incurred compensation plaintiffs. Accord- $16 of net to $14 deliver to billion Law, University George School of ing L. Priest of Yale to Professor liability expanded has been to “shift insurance the result of the tort system He views such a as delivery third-party to a mechanism.” demand, and provides in excess of consumer inefficient. It insurance greater approximately 2.75 to 5.75 times the administrative burden is delivery system. first-party than a Revisited, L.Rev. at 250-52 Worthington, 36 S. Tex. The “Citadel” omitted). (citations accept adopt point is not to or these The here Rather, merely recognize the my particular aim is assertions. loss-spreading detached judiciary maintaining a scheme difficulty the considering empirical validity seriously of under- from fault without impact lying assumptions scheme. about societal

291 Products, On the Nature Strict Tort 44 Liability Miss. 834-35, 837; Keeton, Page L.J. W. Product And 30, Mary’s Meaning Defect, (1973)), 5 St. L.J. Of overruled on grounds other in Suter San modified Co., Angelo Foundry 150, 140, & Machine 81 N.J. 406 A.2d 148, (1979), Stat., 153 in 2A superseded part by N.J. Ch. 58C. Indeed, Cronin was high curtailed California court soon issuance, after its based on the recognition that “it is simply impossible to eliminate the balancing weighing or of competing considerations in whether a determining defectively designed Co., 413, 143 or not.” Barker v. Lull 20 Eng’g Cal.3d 225, 443, (1978). Cal.Rptr. Thus, 573 P.2d the court expanded on Cronin in an effort give content to the concept of defect and permit risk-utility jurors. balancing by See id. at 456-57.12

Further, in decades, the ensuing the California Supreme Court has “repeatedly held that strict products liability law in California may incorporate negligence concepts without under- mining fundamental principles strict claim.” Standard, Inc., Johnson v. 56, American Cal.4th Cal. (2008). Rptr.3d 179 P.3d Again, this is the tribunal that pioneered strict liability under Section 402A and was the central source of authority referenced Azzarello for the proposition that negligence have no concepts place in strict-liability Azzarello, theory. Cronin, 1161).

at 1025 (quoting 501 P.2d at The only judicial other upon decision which Azzarello relied in eschewing negligence concepts is Glass. See 555-56, Pa. at There, 391 A.2d at 1025. Jersey New court held that the unreasonably-dangerous element had no valid place strict-liability doctrine based on the rationale that ____ “[t]he notions of negligence and of strict are Glass, antithetical to each other.” See 304 A.2d at however, Azzarello failed to recognize, had already Glass single 12. The reference to this Court’s decision California Co., appears dissenting case law opinion in a in Finn v. G.D. Searle & (1984), Cal.Rptr. 35 Cal.3d 677 P.2d 1147 in which Chief Bird approach Justice "extremely vague dismissed as Azzarello’s C.J., (Bird, ... difficult dissenting). to follow.” Id. at 1168 n. 17 Jersey the New Su- part, by in relevant disapproved, been that (explaining 386 A.2d at Cepeda, See preme Court. re- ‘unreasonably dangerous’ criterion of Restatement “[t]he disap- claims and design defect soundly applicable” mains contrary). to the extent it held Glass proving ap- Jersey’s then-prevailing An accurate account of New Jersey the New liability encompass to strict proach criticisms understanding acute of the Cronin Court’s Supreme (“As 386 A.2d at 829 stated Cepeda, had generated. ..., given is that no content was difficulty Dean Keeton ‘the Cronin) vitally impor- the of defect and this is (by concept theory product, although is that a plaintiffs tant when be, subjected constructed as it was intended fabricated and that made the to an inherent risk of harm users or others ” Keeton, Product (quoting defective.’ 30-32)). Defect, Cepeda Mary’s L.J. Meaning St. “ that fundamentally, ‘demanding recognized, also reflects a product unreasonably dangerous defect render the ” many utility danger.’ realization that have both products Inc., indirectly, Up-Right, Id. at 826 Ross (quoting, (5th Cir.1968) added)). For this (emphasis F.2d reason, between the court the critical distinction accepted defects, necessary as well as the manufacturing design liability unreasonably dangerous requirement role of scheme, explaining:

The heart of the we take toward resolution approach affirmative in this case calls liability matter of defendant’s ordinary manufacturing for a careful distinction between of design. defects and defects to be made is that defect point [T]he “unreasonably danger- 402A criterion of analysis Section one if understood to render appropriate ous” is an substantially coordinate with liability of the manufacturer only qualification negligence principles. on foreseeability by the manufacturer requisite as to the at the of the chattel manifested dangerous propensity trial this being imputed the manufacturer. “Since the proper design is a matter fitness, of reasonable the strict liability adds little or nothing negligence on the part the manufacturer.”

Cepeda, 386 A.2d alia, 824-25 (citing, inter W.L. Prosser, (1971)).13 Torts 659 n. 72

Whereas had attempted Glass to remove the “unreasonably dangerous” criterion from the Section 402A analysis, the Cepeda court placed the matter squarely before Jersey New juries by an approving instruction requiring determination that a product is in a “defective condition unreasonably dan- gerous.” Cepeda, 827, (“It 386 A.2d at 829 will suffice for purposes bar, of the case at which clearly a situation of defect, alleged design that the Restatement criterion of ‘un- reasonably dangerous’ remains soundly applicable thereto. To the extent that the decision in may [Glass ] be read to the it is contrary, herewith disapproved.”).14 Azzarello was remiss issuance, 13. After in Suter Jersey Supreme Azzarello’s the New Court jury indicated charged should be "in product terms of whether the fit, reasonably was suitable and safe for its intended and foreseeable Suter, purposes....” 406 A.2d at 153. Both "unreasonably danger- safety" ous” and "due specifically rejected formulations had been jury 555-56, terms of Azzarello instructions. See 9,n. 391 A.2d at 1025 & n. 9. generally 14. See 1 Madden (“[A]s 2:10 Liability & Owen on Products applied courts liability the new ‘strict’ doctrine to manufactur- ers and contexts, other increasing defendants in an array many legislatures began courts and recognize for the manufac- products ture and sale of containing design warning defects is best law, defined in principles terms of the negligence centered on the risk, cost, reasonableness, balance of foreseeable utility, optimali- ty."). Jersey The New Supreme experimented Court later further with more absolute liability, forms of strict see Beshada v. Johns-Manville Prod. 191, 539, Corp., (1982), 90 N.J. 447 A.2d but it retreated in Laboratories, Feldman v. Lederle (1984) 97 N.J. (limiting facts). Owen, Beshada to generally its See David G. Law, Evolution Products Litig 26 Rev. (indicating significance that “the of Feldman and [the California Su- preme Court, Superior Court’s decision in Brown v. 44 Cal.3d Cal.Rptr. (1988),] 751 P.2d development in the of modern products American liability law cannot Together they be overstated. represent rejection a national of the doctrine of strict manufacturer reasoned, counter- developing such to discuss in its failure lines of very they pertained as particularly positions, relying.15 it was authority upon which decisions, referenced these two In addition to Keeton Page from Dean W. commentary, principally scholarly Azzarello did not and Dean Wade. University of Texas favored a however, strongly that both scholars acknowledge, claims, albeit for “strict” test negligence-based Owen, Design requirement. scienter any stripped the works of (summarizing at 353-360 73 Mo. L.Rev. Defects, ).16 More- and after Azzarello and Wade before Deans Keeton scholars’ of these over, portions selective highlighting while critical rejected aspects. other work, summarily that it was forcefully argued Dean Wade had example, For or “not reasonably as “not safe” to use terms such necessary jurors. liability principles convey essential duly safe” Wade, 19 S.W.L.J. Liability Manufacturers, Strict Tort See of Wade, Liability Tort 15; the Nature Strict at On for of Products, George W. generally 44 at 833. See Miss. L.J. (Third) Conk, in the Restatement Design There a Is of Defect products liability very led the by two courts that had in tort the 1970s.”). during the 1960s revolution Azzarello, addressing prior to the matter 15. In terms of our sister states difficulty recognizing with under- Jersey New was not alone warnings design-defect dynamic in weighting the reasonableness See, Am., Young, 272 Md. e.g., Volkswagen Inc. v. cases. of ("Since (1974) design de- of a defective existence A.2d action, and de- upon of the manufacturer's pends the reasonableness exercised, wholly it is degree which he has pends upon the of care though design the manufacturer illogical speak a defective even of product.”); preparation of his possible care' in the has 'exercised all 1981) (ex- Hill, (Fla. 404 So.2d Ford Motor Co. v. accord product is in a defective condition “analysis whether a plaining that of analysis negligence in a unreasonably dangerous involves a to the user case, ordinarily required in analysis a 'manu- ‘design defect' unlike situation”). facturing flaw' requirement, and Wade were By omitting Deans Keeton the scienter dangerous a knowledge condition of proposing that manufacturer, regardless manufacturer of whether the to its attributed id..; also, Wade, e.g., danger. see known of the knew or should have Products, (44 L.J. at 834- Miss. Ton On the Nature 35). Strict aside, strongly advocat- again, had adjustment both scholars This negligence-oriented See id. scheme. ed a Torts: 109 Yale Liability?, Products L.J.

(“The ‘alternative-safer-design’ rule enshrined section 2 of (Third) the Restatement vindication of Wade’s view that turn design-defect litigation should on whether the product have could and should have been made safer before it was sold.”). Yet Azzarello pronounced, without further explana- tion, that those terms “merely obscure the underlying ques- tion and serve purpose.” no real n. 9, 391 A.2d 1025 n. 9. on,

Similarly, early Dean William L. Prosser Univer- sity California-Berkeley, who was the reporter for Section 402A, observed that any analysis of a defect rests a “primarily upon departure care,” from proper standards of “the tort is a essentially matter of negligence” based upon “duty to use reasonable care to design product that is use, safe reasonably for its intended and for other uses which are foreseeably probable.” W.L. Prosser, Handbook of The (4th ed.1971). 96 at Torts, Law of I mean no disrespect to the Justices who participated Azzarello; in particular, I recognize the decision was well intentioned in following a consumer-oriented direction set by prominent judicial Nevertheless, decisions elsewhere. in light status, Azzarello’s entrenched and the pitch of its defense jurists various and members of the trial bar over past thirty years, it is necessary to develop closely its substantial shortcomings order to lay groundwork for moving forward.

The reality is that Azzarello simply was not well reasoned in time, its own it certainly and has not withstood the test of good time. Its intentions alone cannot justify its continuing longevity, particularly light of the wealth of experience and scholarship establishing forward, the unworkability, going its dictates as common-law tort principles. See generally Coon, Mayhugh 135-36, 460 Pa. decisis). (discussing exceptions noted, to stare As

very jurisdictions same upon which very relied quickly had recognized that the justice interests of required and necessary adjustments substantial to the experiment with design, manufacturing, across the categories strict long has for far too lagged defects. This Court warning and the ritualistic unfortunately, and recognition, in this essential substantially impeded progress adherence to Azzarello has 1 Mad- liability jurisprudence. generally of our See product that “the rhetoric (explaining 5:10 Prod. Liab. den & Owen on that it proved potent uncompromising of ‘strictness’ so time.”). of doctrine over the reasoned evolution hampered notes, had Azzarello’s supplemented As this Court Appellee rationale. with a deterrence-based loss-spreading reasoning Kimco, that the Pa. at A.2d at 607 (positing See standards product liability effect of strict imposing “deterrent it to upon weakened were we to allow actions based would be defeated, concepts. negligence or recoveries reduced Like the development.”). will not countenance such a We rationale, however, the deterrence-based ratio- loss-spreading terms, in too and is too conclusory powerful, nale is stated not in manufactur- controlling. experts be deemed Courts are behavior, to be equally arguments er and there are reasonable does more to encour- negligence-based made a standard See, e.g., an age products safer than absolute scheme. Prentis, Moreover, at 185. courts and commenta- 365 N.W.2d unsupported policy tors have noted that these social types consequences. can have tremendous social As judgments one commentator: explained by the decision of product’s design challenges a [Cjhallenging engineers managers develop the manufacturer’s and level of containing particular type sell a product claim, Thus, which manufacturing unlike a defect danger. unit, a defect merely product design implicates single entire line and challenges integrity product claim very enterprise. so core of the manufacturer’s pierces reason, are of concern design greatest For this defect claims manufacturers, that the judicial since a declaration is “defective” condemns the entire particular product of a line. 296; Owens, 73 Mo. see also Design Defects, L.Rev. Prentis, that “a verdict for the (explaining 365 N.W.2d at 185 defect a plaintiff design equivalent case is of determi nation that an entire product usually line defective. It will portion involve a of the assets significant manufacturer’s public may deprived product.”).17 of a In order to prevent unduly the common law from disrupting product innovation,18 investment and necessary, rational limits are which provides one substantial explanation for most courts’ retreat from more absolute forms on liability grounded loss- spreading and reasoning deterrence-based and warn cases, ings in favor of a return more tort traditional Revisited, theories. Worthington, Accord The “Citadel” 36 S. Tex. L.Rev. (commenting that “courts are beginning to place theories, limits on existing non-fault based representing both a return to traditional principles moral and a pragmatic realization chilling effect of the liability strict tort doctrine.”). generally Toogood v. Rogal, 573 Pa. 1140, 1145 (describing liability fault-based as a law).

“traditional cornerstone” of tort that, There is some force to Appellee’s argument at this juncture, this Court should leave existing alterations to the product liability scheme to the Assembly. Certainly, General statutory law now of a occupies field vast array of substan- matters, tive and this Court’s common-law decision-making role has substantially Moreover, been curtailed. in the face of complex technological and industrial developments, modern products law liability many contains that are components interlocking, interdependent, overlapping, suggesting and/or Notably, gave 17. express and Kimco no to such consideration potential effects. Touching subject chilling on this development, in the case, warnings context Supreme of a the California stated Court as follows: [We to extend have] refused strict to warn failure risks that were unknowable at the time of ... distribution [I]f limiting manufacturer not could count on its to risks that distribution, were known or knowable at the time manufacture or discouraged it products would be developing improved from new and significant for fear knowledge that later advances scientific liability. increase its Owens-Coming Fiberglas Corp., Anderson v. Cal.3d Cal. (1991). Rptr. 810 P.2d 298 in that is inherent development piecemeal the sort of

against law.19 the common the progression this not date, occupied has Legislature the Nevertheless, to disrepair of substantial arena; in a state it is particular its Azzarello and adherence longstanding by occasioned far too jurisprudence has taken our path this and progeny; of correc- concept law in the home of tort the legitimate from necessary make Thus, the Court should I believe justice. tive legislative comprehensive possibility while the adjustments Hack, 300, Pa. v. 495 Hack remains uncertain. treatment Cf. (“This authority, full 859, has Court its precedents to examine duty, corresponding and not developed perpetuated rule previously that a assure exists and when longer rule no for the when the reason injustice.”). the rule would cause application say negligence longer should no the Court summary, In in Pennsyl- doctrine “strict-liability” in have no concepts place scheme, or in our tort vania, is not accurate simply when this and that manufacturers recognize scheme any purporting in involving all harm insurers for outright are not distributors of “strict” category degree To the distinct their products. most, always it has necessary, at doctrine is be, liability, quasi-strict one of been, rationally should cases, the legitimate with warning in tempered, foreseeability and reasonableness notions of involvement of the fact finder.20 purview within individual grounded in records of are Our common-law decisions Unlike advocacy by parties shaped those records. cases and the process to cast adjudicatory is structured legislative process, in a by litigants before the Court framed focus on matters narrow legislative available to the highly The broader tools directed fashion. including availability judgments, making policy in social branch Herdrich, Pegram investigations, are discussed comprehensive (2000). 221-22, 2143, 2150, 147 L.Ed.2d 120 S.Ct. U.S. late, making with E. Wieand Honorable Donald I credit the 20. would case, design cases adopting a for for standard an extensive my position here. See negligence concepts, consistent with grounded in 599, 612-26, Co., A.2d Pa.Super. Foley Equipment v. Clark (1987). Replacement B. A Scheme above, As highlighted powerful no-negli- DGS gence-in-strict-liability rubric has undergirded numerous in the Pennsylvania product liability decisions arena over the DGS, thirty years. last 898 A.2d at 604. Thus, understatement, at the risk of a present disapproval of this premise open a substantial void. This appeal was accepted review to evaluate both whether that void should and, so, be if opened, whether 2 of the Third Section Restate- ment should adopted to fill at least a outright portion of it.

1. The Third Restatement I am on record as favoring prospective movement to the Third Restatement I position, and remain of that position today, for the I previously reasons have Phillips, stated. See 664-82, 841 A.2d at 1012-28. I believe the Third Restatement’s provisions are far more reasoned and balanced than adoption would represent a substantial advancement in Pennsylvania law. While Appellee is correct that we should not our cede decision making authority to commentators, the reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essen- tially thirty years behind. The Restatement would serve as a far more rational platform from which to make modest future adjustments, if necessary, than Azzarello. As stated very recently by a of the panel United States Court of for Appeals the Third conjunction Circuit in with a prediction that this Court would adopt Sections 1 and 2 of the Third Restatement: “The Third Restatement ... eliminates much of the confusion that has resulted from attempting to quarantine negligence concepts insulate them from strict liability claims.” Ber- Inc., (3d rier v. Cir.2009). Simplicity Mfg., 563 F.3d Thus, the Restatement a provides template suitable for mak- for ing up lost time and moving forward.

2. A Lawmaking Common-Law Alternative To the degree a majority Court is not comfortable case,21 there are other in this

adopting the whole of Section while the Court leaving place alternatives a vehicle which devise perfect continues to search for least could at example, scheme. For Court replacement a clearing path thus prospectively, from Azzarello depart courts to consid- appellate and intermediate pleas our common Restatement, Third er the reasoned recommendations refinements. As as well as other reasoned alternatives and/or this inevita- through system, would move Court cases Azzarel- to fill the void created bly would make selections lo’s tenure.22 long not be

Undoubtedly, approach wholly satisfying this of this long pursued to those who have modernization be, how- may It well product-liability jurisprudence. Court’s ever, solutions is timely, comprehensive the forum for branch, possesses with the which the broader tools political necessary policy to make better informed social decisions interests involved in the balancing strong, competing product liability arena.23 Thus, present warnings it would be unusual

21. matter is case. employed adopt aspect appeal to a vehicle to a core for this as requirement of a Section of the Third Restatement —the reasonable design pertaining alternative claims. See Restate- —defect (Third) 2(b). My personal position ment Products Torts: Phillips, represents is that matters were at issue in and this case crystallized necessary initially I extension of the debate which there. however, (particularly recognize, who did not that other Justices those view; thus, participate Phillips) may in I have included hold a different discussion, A, Appendix in the infra and of a more modest common-law lawmaking alternative. refining process developing applicable duties and liabili- 22. generally ties as a matter of common law is slow and cumbersome. courts, general jurisdiction, responsible Our trial as courts of are for instance, through addressing open in the and cases filter the issues first courts, appellate being granted by intermediate with review this Court basis, opportunity provided discretionary such that the on a careful, developments. process, dynamics In this the of a informed times, cannot understated —at it is difficult seven-member Court single, enough question presented. to achieve a consensus on a narrow act, course, Assembly 23. Of even if the General were to this Court assuring conformity in with constitu- would maintain a substantial role limitations, construing legislative interpreting the will. tional or unfortunately, past major policy Additionally, in instances of social If the were to pursue lawmaking Court the common-law alternative, it could reaffirm the initially understanding, as commentator, succinctly expressed by one that “[m]odern products law rests on fundamentally premise the fairly manufacturers are held to answer in the for the courts Owen, basic their safety products’ designs.” Design De- fects, 73 Mo. L.Rev. at 291. Since difficulties described itself, above are Pennsyl- with and not 402A Section jurisdiction.24 vania remain a Section 402A The disap- proval of Azzarello’s approach, no-negligence-in-strict-liability however, yield should at least the non-exclusive set of conse- quences and considerations set forth in the addendum at- tached to this as A. opinion Appendix Prospective Application

III. The Phillips concurrence advocated making the foundation- al movement away from on Section 402A a purely prospective 665, Phillips, basis. See (Saylor, A.2d J., concurring). Although generally this Court applies law in effect at decision, the time of an appellate affording parties whose pending law, cases are benefit changes see Commonwealth, Blackwell v. Comm’n, State Ethics 527 Pa. 172, 182, 1094, (1991), it may deviate from this approach to further the justice. interests of See id. at (“The 589 A.2d at 1100 prime impetus behind occasional th[e] willingness give not to a decision full effect is the concern that a novel decision will unfairly prejudice those formerly advan- legislation, Legislature has sometimes left substantial decision- (be making judiciary agencies), details to others it the or administrative making See, very it difficult for the courts to assess what was intended. Co., e.g., Donegal Generette v. Mut. Ins. 598 Pa. n. A.2d (2008) (commenting 1191 n. 15 on gaps such in the Motor Law). instances, Vehicle Responsibility Financial filling In such major policy-setting gaps only generalized based on information about intent, legislative being perceived courts are vulnerable to as reverting effectively to a decision-making any common-law role Thus, solution, ultimately legislative event. if there is a a clear and comprehensive one is most desirable. say 24. This is that rejecting arising not to the Court be principles out of the Third Restatement that are application consistent with the 402A, adopt Section aspects or that it would not Restate- Third they presented ment as are to it the in context of concrete cases. 302 Commonwealth, v. Gibson (quoting the old rules.” by

taged (1980))).25 Here, a 80, predomi- 156, 163, 84 415 A.2d 490 Pa. with of those expectations is the settled nant consideration adopted by Court considers: this specifically, the standard 25. More law; merits principle the a new establishes whether the decision effect, and purpose and question, in its reviewing history of the rule the the application; and effect on its impact retroactive potential 184, Blackwell, at 1100 589 A.2d Pa. at 527 equities involved. See 349, Huson, 97, 106-07, S.Ct. 92 404 U.S. (citing 355, Oil Co. v. Chevron Dep’t Virginia (1971), part by Harper v. in ovemiled 30 L.Ed.2d 296 2510, (1993)). Taxation, L.Ed.2d 74 S.Ct. 125 509 U.S. modifying Harper decision indicated that recognize this Court has I changes law are to in "strengthens general principle that Chevron Cranberry Christy Volun- pending retroactively to cases.” applied be 404, 419, (2004). Inc., Corps, 579 Pa. Ambulance teer Nevertheless, factors to subsequently applied the Chevron this Court judicial in application a decision prospective support purely Oz 142-43, Dist., Gas, A.2d Pa. v. Warren Area Sch. Ltd. (2007). prospective application of deci- While Gas entailed Oz that, statute, although the illustrates interpreting I believe it a tax sion judicial decision prospective application of a purely which instances rare, some approach does maintain may the Chevron warranted be is application of decisions viability prospective independent permitting Pennsylvania law on the civil side. involving matters of Harper's primary was with noting concern worth It is also parties before the applying judicial decision to disparate impact of preserved persons with claims similarly not to situated Court but 97-98, 113 S.Ct. at Harper, U.S. at appeal. See pending on direct however, concurrence, proposed prospective Phillips The 2517-18. parties the Court. before not extend to application that would Moreover, justice in much or more me that there can be as it seems to overruling a application of a decision directing purely prospective impacting on vested doctrine longstanding, entrenched common-law parties were resolving matters where the rights tax as a decision legal questions. that there are unsettled forewarned ability prospectively to make law the courts’ Much of the debate over law, actually but not make the that courts do centers on the notion rather, Smith, U.S. at 110 S.Ct. law is. See declare what the J., decisionmaking (Scalia, is in- concurring) ("[Prospective at 2343 is, role, say not to what the law judicial which is to compatible with the true, however, be.”). of state simply not This prescribe what it shall new law in making Court made decision common-law —this again if to address new law it is will have to make Azzarello’s and it shortcomings. rule, very general prospectively, as a Legislature new law makes absolutely poor policy foreclose good believe it would reasons—I setting, lawmaking doing in the common-law from the same the courts approach and the constitution justice favor the interests of where the purely in which may instance Although it be the rare it. does not forbid are, warranted, present circumstances application is prospective view, essentially generis. sui my compelling and

303 accrued causes of action a present and entitlement to resort to system. Azzarello has been with us for too justice the civil and long, too much settled jurisprudence has evolved around it, for it to be retroactively displaced without profound impact on vested entitlements. Associations, American Trucking Cf Smith, Inc. v. 167, 200, 2323, 2342-43, U.S. 110 S.Ct. (1990) (“The L.Ed.2d 148 of our utility retroactivity doctrine in cushioning the inequitable sometimes and disruptive effects of clear.”). law-changing decisions is Certainly, substantial con- stitutional challenges would be presented any to retroactive abrogation by Legislature.26 Given the circum- unique stances including interests, scale of the affected I was reluctant to Phillips, as a matter of common-law attempt, decision making, what our precedent suggests may forbid- den of the political branch. At least in the absence of a preserved constitutional claim by asserted a defendant or defendants, I felt that any Azzarello should be overruling purely prospective.27,28

Appellee argues that the outcome of this case would not be by affected a movement by this Court the Third Restate- (“All 26. See Pa. art. open; courts shall be every and man Const, lands, injury for an done him goods, person in his reputation or shall law, remedy by have right justice due course of and administered sale, denial, delay.”). without generally Ieropoli or Corp., v. AC & S 138, 155-56, (2004) 577 Pa. 842 A.2d (explaining that "a cause of action right, that has accrued ... is a vested which under 11, may Article Section by subsequent legislation”); not be eliminated Gibson, see also 415 A.2d at 83. regard, In this emphasize I requirement preserved of a Thus, example, claim. if a defendant seeks to assert a claim that its right jury constitutional to a impaired by trial was relegation Azzarello's unreasonably-dangerous requirement judge to a on facts most plaintiff, favorable to the such point defendant must to where in the record preserved. 2119(e). Moreover, such claim was See Pa.R.A.P. any ruling favorable on the apply constitutional claim would in other only cases preserved defendants who also had the constitutional Cabeza, 228, 233, claim. See Commonwealth v. 503 Pa. that, matters, (explaining in both civil and criminal in order apply for a new rule of retroactively law to pending to a case on direct appeal, preserved the issue stages had to be adjudication up at "all including any appeal”). direct course, 28. Of may change the above calculus as continues to ripen, litigants more and more shortcomings. are affected its at 8-16.29 Appellee Brief for ment. See supporting basis obviously potential is argument This however, applica- prospective Notably, dismissal. present law mitigates in the common change the proposed tion of event. This any case-specific application regarding concern because, approach, so, purely prospective under a an on impact law would not have in the common change occur. Accord- in which it would any discrete case outcome vigorous advocacy in view of the extensive and ingly—and the Phil- occasioned difficulties presented, persistent law—I in our divide, shortcomings present underlying and lips light in act now to confront Azzarello this should believe Court understanding experience. thirty years developed of IY. Conclusion in deficiencies of Azzarello light in of the clear summary, In I would liability jurisprudence, products the realm of modern 1 and adopt Sections prospectively overrule decision stead, causes of in its to applicable of the Third Restatement At of the opinion. after the effective date accruing action least, disavow Azzarello now I believe the Court should very liabili- Pennsylvania’s products the modernization of permit last. long ty jurisprudence progress joins statement. dissenting this Justice CASTILLE brief, integrally incor- Appellant's arguments, framed in its initial as relieve down- porate position that the Third Restatement would liability liability premised Appellant, of on the suppliers, such as stream however, entities, Appellee, upstream such as the manufacturer. prevailing Pennsylvania law develops with that Section is consistent liability distribu- imposing in or vicarious on non-manufacturer strict (Third) suppliers. of Torts: Products tors or See Restatement Therefore, Appellant in conceded the and as its initial brief cmt. o. interests, manufacturing part of the material elements of on 19-20, Appellee application Appellant at contends see Brief for make a material difference the Third Restatement would not appeal. outcome this APPENDIX A consequences Non-exclusive resulting and considerations overruling simultaneously from an of Azzarello without

adopting replacement scheme A. The Intended Use Doctrine In this Phillips, adopted very Court narrow approach to doctrine, the intended-use based on a combination of two Justices’ application no-negligence-in-strict-liability ra- tionale, 656-57, see 576 Pa. at Phillips, 841 A.2d at three Justices’ concern with the expansion a doctrine based rationale, on that Phillips, 674-75, see 576 Pa. at 841 A.2d at J., (Saylor, concurring). With demise of these underpinnings, Court’s recognition of the rationali- DGS ty of subsuming within the intended-use doctrine all reason- occurrences, DGS, ably foreseeable uses or see This, 898 A.2d at fact, could be realized. appears a substantial thrust of the Third Circuit’s very recent Berrier Berrier, decision. 53-58;1 563 F.3d at accord Cepeda, 386 (“It A.2d at 828 is ... clear that if not many, jurisdic- most tions now that in acknowledge applying strict tort for design defects manufacturers cannot escape liability on grounds of misuse or abnormal use if the actual use proximate (citations to the injury omitted)). was objectively foreseeable.” Manufacturing, B. Design, Warnings and Defects I would reaffirm that the differential treatment as between manufacturing, design, and warning scenarios is consistent with Section 402A.2Proof of negligence dispensed is with by Although prediction 1. Berrier s that adopt this Court would Sections 1 correct, and 2 of the may prove Third Restatement my position still if adopted, were to be disprove it would implicit the federal court’s prediction that apply Court would retroactively. those sections generally 2. See 1 Madden (“Today, § Liability 5:11 & Owen on Products most and accept courts commentators as axiomatic the fundamental (1) very distinctions between three product different forms of defect: flaws, (2) manufacturing design inadequacies, and insufficient warn- ings danger and instructions on safe use. Over the decades since ALI, section adopted 402A was develop the need to different approaches doctrinal problems very in these three different principles 402A or similar applying

most courts Section scenario, Wright, Richard W. defect see manufacturing Litig. 26 Rev. Liability, Product Principles of (2007), are centered on some warnings and claims design while of unreasonable overlapping combination of the considerations safety, risk-utility reasonable balanc dangerousness, due and See, Barker, e.g., ing, expectations. consumer and/or at 457.3 Cal.Rptr. 573 P.2d Product and Conduct

C. noted, attempts distinguish the courts’ previously As cases have been warning from conduct is to object preserve Since the distinction problematic. an between and strict uncompromising boundary negligence 555-56, 1025-26, liability, see 391 A.2d at justification maintaining carry for the difference would Nevertheless, boundary less force if such were removed. that, arguments although there are be made more, claims, for like liability design-defect would be no strict ones, maintain some manufacturing-defect evidentiary should the line advantage plaintiffs, perhaps along of the Wade- (main text) 16.4 a similar supra Keeton test. See note On amicus, Steelworkers, score, presents United Appellee’s following argument refuting Phillips accep- concurrence’s well-accepted premise products liability contexts has become a law.”). frequently product- have commented that Courts commentators liability warnings quintessentially incorporate negligence claims most See, Inc., Best, principles. e.g., Smith v. Walter C. 927 F.2d Keeton, (3d Cir.1990) (referencing the conclusion of Deans Prosser “[ajlthough for failure to is sometimes re- [strict warn] really nothing ground liability, it more than a ferred to as strict negligence liability” (citing § W.L. Prosser and W.L. Keeton, Torts (5th ed.1984))); 1 Madden & Owen on Products 2:10 (“Courts forthrightly negligence have most admitted the central role of warn.”). duty principles in claims in the context of the ‘strict’ Notably, provide the Third Restatement does for an inference that by product where plaintiff harm sustained the was caused a defect ordinarily the incident was of a kind that occurs as result solely defect and not the result of another cause. See Restatement was (Third) § 3. (the tance of the notion that product design conduct design process) same, should be in treated as one the in design cases, for the purposes determination:

It is perhaps true that an usually unreasonably dangerous will result from unreasonable conduct on the part of However, the designer. to state this relationship as being inescapable is to ignore scenario in which a designer might be excusably unaware of the circumstances that make a product dangerous, but nonetheless allowed the dangers to exist in the product. Furthermore, passage time attendant to many products cases means that evi- dence cannot be obtained through normal discovery proce- dures, and therefore evidentiary preclude standards even an inexcusably unaware designer from being found liable for defects. The rule embodied 402A therefore imposes standard that allows a product to be considered defective in a situation where a product would have been altered or- withdrawn from the market if only designer had know of its dangerous propensities.

* * * It is inevitable that cases will arise involving defective products that have caused an injury, but where no fault can be proved on the of a part defendant. Such cases highlight the need for a regime which properly places the risk of lost evidence on the part party the best position to both realize the utility the product (through prices of the products and the income generated thereby) and to know of product[’]s dangerous propensities. The manufacturer and seller have more reason to know of than dangers consumer, whose primary sources of information on the product are manufacturers and sellers. reasons, For these strict liability embodied 402A is the optimal regime should be retained.

Brief of Amicus United Steelworkers at 10-11.

It appears number, that a fair most, if not courts consider- ing the unknowable danger paradigm have refused to allocate manufacturer, the based conclusion upon the

the risk of loss to insurer. manufacturer an would render the doing so Cf. 53 Cal.3d Fiberglas Corp., Owens-Coming Anderson (1991) (authorizing 810 P.2d Cal.Rptr. in product evidence of state-of-the-art admission cases).5 deci- Nevertheless, the could reserve Court warnings case, target- more upon an appropriate on the matter for sion large. advocacy parties ed Jury Judge and

D. the “unreasonable place of Azzarello would overruling another, into the factor, in or back one form dangerousness” calculus,6 function of risk- judges’ and our trial fact finder’s to the plaintiff on facts most favorable utility balancing are of whether there ordinary determination be limited Owen, to a Accord jury. in issue for submission material facts (“The ap- cost-benefit 73 Mo. L.Rev. at Design Defects, designs may alternative evaluating proposed for proach of balanc- process but the actual straight-forward, and logical in safety, involved variety intangible considerations ing cost, conceptual bal- utility complex trade-offs involves and Accordingly, much as it is ‘factual.’ political ance which is as determination, assuming plaintiff risk-utility balance balance, alternative al- credible evidence for an has offered determination.”). jury an issue of fact for always most raises Expectations Risk-Utility E. and Consumer content giving appropriate The difficult issue of dangerousness” interrelated of “unreasonable concepts Owen, (“The ghost Design Defects, 73 Mo. L.Rev. at 360 generally 5. See halls, judicial haunt but its time Wade-Keeton test continues to Corp., 224 gone.”); v. Ortho Pharmaceutical has come and Leibowitz 418, 433, holding (positing that Pa.Super. dangers would make them insur- liable for unknowable manufacturers ers). arguments universally accepted, there are fair to be Although it is not preference the "due or reasonable Wade's for made in favor of Dean See, Suter, jury charge. e.g., 406 A.2d at 153. safety” in a formulation rejection summary of such Overruling its would overturn alternative formulations. “defect” remains. The central is that problem with Azzarello it purview removed the former from the entirely fact-finder’s gave insufficient content to the latter.

The two primary adding vehicles content necessary are the expectations risk-utility balancing.7 consumer test and A wealth judicial opinions commentary of diverse are discussing devoted to the role of risk-utility balancing See, Owen, consumer expectations design-defect cases. e.g., Design 73 at In Defects, Mo. L.Rev. 300-21. Pennsylvania, suggested instructions, least under fact jury the finder would neither, rather, Azzarello, advised, learn of but would per be that product provided “[t]he must with every element use, necessary to make it safe for its any intended and without PBI, condition that makes it for unsafe its intended use.” Pa. (3d ed.2005). Suggested Jury § 8.02 Standard Instructions present A determination that such instruction is insufficient for full open way a into the inquiry appropriate roles risk-utility balancing for and consumer expectations Thus, directing the fact finder. we would have essentially come to inquiry place where other courts stood in the late 1970s.

The present baseline in Pennsylvania is risk-utility balanc- ing. This much was accepted by although its expectations 7. The consumer test as such i was derived from Comment 402A, ("The to § Section 402A. See Restatement Second cmt. i article dangerous sold beyond must be to an extent that which would be it, contemplated by ordinary purchases consumer who with the ordinary knowledge community common as to its characteris- tics.”). Some commentators have noted appears that comment i to consumption focus on the drug products. of food and See David G. Owen, Comments, 1377, Hastings (“A (2004) 55 L.J. 1382 Puzzle of i, (Second) reading close of j, comments and k to the Restatement 402A, together 'legislative Torts history,’ section with their reveals that these exclusively comments were a directed to narrow set issues wit, pertinent (and products, to a limited class of to limits of liability) types products food, whiskey, ciga- of sellers of certain — rettes, drugs, products carry dangers.”). and similar that unavoidable i, however, broadly by Comment also is read much more courts various Inc., generally Magic Chef, and commentators. See Lester v. 230 Kan. 643, 353, (1982) (observing 641 P.2d 359 "[v]olumes that have been 402A”). language § written about the i of Comment on facts most judge the trial the task to relegate attempt recognize Most courts misguided. party to one was favorable role, early but play a also should expectations consumer unsuc were generally one predominant afford it a attempts is between generally cessful, remaining debate expectations the consumer role as part limited relatively (Third) of Torts: Products see, test, e.g., Restatement inquiry, as a broader h, role 2, significant and a more cmt. See, e.g., Miko balancing. risk-utility independent more 1, Ill.Dec. Co., 231 Ill.2d v. Ford Motor lajczyk (2008); Corp., Motors Soule General 352-53 N.E.2d P.2d Cal.Rptr.2d Cal.4th law, recover if that, may plaintiffs under California (reasoning expecta either falls below consumer they establish or, ordinary expecta consumer if it meets safety tion as to yields tions, product’s the fact-finder determines Owen, Design danger).8 generally preventable excessive analysis cost-benefit (“As L.Rev. at 352-53 Defects, 73 Mo. as the dominant method globe around the gathers strength safe, courts design adequately is product’s whether judging to accommodate ways to search for continue legislatures from altogether it banishing without expectations consumer determinations.”). juxtaposi The appropriate defect design in expectations consumer balancing and risk-utility tion of be would need to be an issue which cases would design resolved, common-law decision- in as a matter of Pennsylvania, making. adjust- some aspect, risk-utility balancing

In terms of the commonly factors to be made to the Wade ments would need Owen, L.Rev. at 73 Mo. design generally in cases. See applied little more than rarely courts do that “modern (observing factors, past which are now well to the Wade lip service pay object obviously capture dynam- is to their The prime”). that is in a fashion considerations design ics of reasonable possible. as succinct as lay jurors, yet to accessible in California's consumer effected a dilution appears to have 8. Soule Bic, S.A., test, 21 F.3d in Todd v. Societe expectation as discussed (7th 1994). Cir. common-law process would also determine the appropriate focus of risk-utility fact-finder, balancing by which the Third Restatement commentators, least, and numerous at center on a concomitant requirement proof reasonable, of a See, alternative design. e.g., id. at 327 (“Although the risk- in utility issue defect design cases is frequently framed vague- inly terms of a balance between the risks and benefits of the ‘product,’ the true cost-benefit issue litigated almost every case is much narrower —whether the safety benefits of alter- ing product’s in a design particular manner would foresee- ably have exceeded the cost of the alteration. Risk-utility focused, analysis words, is in other on the costs and benefits of the specific alternative design feature proposed by the plain- tiff.”).9 Again, there are numerous models available to our pleas common judges, which would be with charged the first- level, common-law selection decisions a post-Azzarello era. Principles

F. Constructed from Azzarello Another clear consequence of a decision overruling Azzarel- lo is that other subsidiary principles on resting the no-negli- gence-in-strict-liability premise should be open fresh re- view. Two that come readily to mind are the Pennsylvania rejection courts’ of the comparative negligence principles the state-of-the-art cases, defense in design rest, both of which essentially, Kimco, on Azzarello. See A.2d 605-06 (comparative Carrecter, negligence); 346 Pa.Super. at (state 499 A.2d at art); Lewis, 515 Pa. cf. 9. Dean put Wade’s reluctance panoply a full risk-utility factors lay jurors before may justified, that, well be reality but the cases, jurors charged will be duty with the to make an informed reasonableness, concerning design evaluation and the trial courts will responsible provide jurors guidance sufficient accomplish Conk, George this task. Compared W. Instructing Jury to What? Cf. on Product under the Products Act and the Restatement Defect (Third) Torts, 273, (1999) 30 (positing Hall Seton L.Rev. quality ”[t]he of decisions will jury be better served if instructions invite presentation spur arguments of evidence and that evoke the full vibrancy (and jury assists). moment of for the the court it The competing clamor of the good prudent in the considerations designer's mind should be heard in the jury courtroom and in the room.”). standards).10 I would Again, (industry A.2d at 594 absence of material here in the these matters

not decide that, shorn of merely I note advocacy; and focused relevance rationale, should such matters in Azzarello’s groundings their if there is be reaffirmed could principles revisited. them. support rationale to other persuasive A.2d 482 DEITRICK, Petitioner Donna J. YONCUSKI, Respondent.

Robert 2009, 22 21 MM MM 2009. Nos. Pennsylvania. Supreme Court of May ORDER PER CURIAM. Petition for NOW, May, day

AND this 13th Review is DENIED. in other rulings against the modern trend appear to work

10. These See, Transp. Corp., Vt. jurisdictions. e.g., Webb v.Navistar Int’l (“Most (1996) reject the framework that courts parties party where two contributed to on one places the burden of loss (“Most injury."); Liab. 3d 40:37 causing the Am. L. Prod negligence comparative jurisdictions adopted the doctrine that have actions.”). comparative principles fault to strict apply or fault

Case Details

Case Name: Bugosh v. I.U. North America, Inc.

Court Name: Supreme Court of Pennsylvania

Date Published: Jun 16, 2009

Citation: 971 A.2d 1228

Docket Number: Appeal 7 WAP 2008

Court Abbreviation: Pa.