Lead Opinion
OPINION
Omega Flex, Inc., appeals the decision of the Superior Court to affirm the judgment on the verdict entered in favor of Terrence D. Tincher and Judith R. Tincher (the “Tinchers”) by the Chester County Court of Common Pleas, Civil Division. We reverse the Superior Court decision in part, upon reasoning different from that articulated by the courts below, and we remand to the trial court for further action upon Omega Flex’s post-trial motions, consistent with the principles elucidated in this Opinion. We hold that:
1. This Court’s decision in Azzarello v. Black Brothers Company [480 Pa. 547 ],391 A.2d 1020 (Pa.1978) is hereby overruled.
2. Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, 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. The burden of production and persuasion is by a preponderance of the evidence.
3. Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.
4. To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq., albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm.
I. Background
Around 2:30 a.m. on June 20,2007, neighbors reported a fire that had erupted at the home of the Tinchers in Downingtown, Pennsylvania. The residence was the central unit of a two-story triplex built in 1998-99, and purchased by the Tinchers in 2005. The fire was eventually extinguished and no persons were harmed. Subsequently, investigators concluded that a lightning strike near the Tinchers’ home caused a small pune
After the fire, the Tinchers reported the incident to their insurer, United Services Automobile Association (“USAA”). USAA compensated the Tinchers for their loss up to the limit of their policy and received an assignment of liability claims. The Tinchers suffered an additional out-of-pocket loss because a portion of their claimed loss exceeded the limits of the USAA policy.
In January 2008, the Tinchers filed a complaint against Omega Flex in the Chester County Court of Common Pleas.
In relevant part, the Tinchers’ complaint relies upon the theory of strict liability articulated in Section 402A of the Second Restatement of Torts, but as followed and construed in Pennsylvania. Complaint, 3/18/2008, at ¶¶ 19-25 (citing Restatement (2d) of Torts § 402A). The Tinchers alleged that Omega Flex is liable for damages to their home caused by the placement on the market and sale of the TracPipe System. According to the Tinchers, the CSST incorporated into the TracPipe System is defective, and unreasonably dangerous to
In September 2010, in anticipation of trial, Omega Flex filed a motion in limine requesting the application of Sections 1 and 2 of the Third Restatement of Torts to the Tinchers’ strict liability claim. Omega Flex also proposed jury instructions and findings of fact consistent with the provisions of the Third Restatement. The Tinchers opposed Omega Flex’s motion in limine and offered proposed jury instructions and findings of fact consistent with the Second Restatement and Azzarello, supra. The trial court did not resolve Omega Flex’s motion before trial. See Notes of Testimony, 8/12/2011, at 17-22.
In October 2010, the parties proceeded to trial before a jury. At trial, the Tinchers offered evidence regarding the events of June 20, 2007, the subsequent investigation into the cause of the fire, the losses sustained by the Tinchers, and USAA’s process of adjusting the insurance claim. The parties generally agreed that lightning had caused the fire, although they disagreed as to the sequence of events or the cause of ignition in the area of the fireplace. The Tinchers offered evidence that lightning transferred an electrical charge to parts of the home, including the TracPipe System; the electrical current then sought ground and created different electrical charges in the various metal components of the structure. The Tinchers’ expert witnesses testified that a flow of energy between a differently charged TracPipe and another metal component of the home caused an electrical arc, and the accompanying heat punctured the CSST and ignited the natural gas that the CSST transported. According to the Tinchers’ expert, the perforation in the corrugated stainless steel tubing from the Tinchers’ home was “characteristic of a lightning strike, not anything else.” By comparison, Omega
Relevant to their strict liability theory, the Tinchers offered testimony regarding a defect in the TracPipe from experts in electrical engineering and metallurgy, electrical arc physics, and material science — Mr. Mark Goodson and Dr. Thomas Eager, respectively. These experts opined that CSST is inherently defective because its wall is 1/100 of an inch thick— the width of four sheets of paper — and, as a result, the probability is “very high,” “close to a hundred percent,” that a lightning-generated current will perforate it. By comparison, an alternative natural gas conduit made of black iron pipe is ten times thicker for a half-inch diameter pipe similar to the CSST present in the Tincher home. According to the witnesses, CSST withstands the transfer of ten times less energy than black iron pipe and, given the same energy, the amount of time to puncture CSST is 1/100 the amount of time required to puncture black iron pipe. Experts estimated that an electric arc is fifty thousand to a million times more likely to perforate CSST than black iron pipe.
The Tinchers’ witnesses also testified that Omega Flex recommended grounding the TracPipe system by plugging any natural gas-fueled appliances into three-prong outlets. Additional grounding, although attempted at the Tinchers’ residence, was not required by the installation instructions provided by Omega Flex to professionals to whom TracPipe was marketed and sold for installation in consumers’ homes. Moreover, according to the Tinchers’ experts, the bonding of the TracPipe System at one location would be insufficient to protect the CSST from the effects of lightning. To be effective, the witnesses testified, bonding would be required every ten feet, which the experts deemed to be an impractical and unfeasible solution. The alternative would be to encase the CSST in black iron pipe. See N.T., 10/13/2010, at 291-98, 357-420.
After the Tinchers rested, Omega Flex moved for a nonsuit, citing the standard of the Second Restatement and Azzarello; Omega Flex expressly assumed that the trial court had denied its request to apply the Third Restatement. N.T., 10/18/2010, at 514-16. The trial court denied the motion for a nonsuit. Id, at 525-26.
Subsequently, Omega Flex introduced the testimony of its own experts relating to the defect in the TracPipe System alleged by the Tinchers. The witnesses were Dr. James Dydo, an expert in metallurgy and mechanical engineering
The defense witnesses also testified that the TraePipe System meets and exceeds all standards for minimum performance governing CSST developed by the American National Standards Institute, a clearinghouse for trade groups. Additionally, the witnesses stated, installation of the TraePipe System conforms with the Fuel Gas Code and the National Electric Code in force in 1998-99. The experts emphasized that these applicable standards did not anticipate intrusion by lightning as a possible safety concern, suggesting that it was unnecessary for Omega Flex to have foreseen any danger from lightning.
Finally, Omega Flex’s experts agreed that the installation instructions for the TraePipe System did not require installation of a bonding clamp. The witnesses also noted, however, that a disconnected clamp was consistent with Omega Flex’s assessment of the circumstances surrounding the fire. The experts offered that the attempt to bond the TraePipe System to the cold water pipe was inadequate and that a successful attempt would have likely averted the resulting fire. Id. at 657-712.
After resting its defense, Omega Flex offered a motion for a directed verdict premised upon Second Restatement principles and Azzarello. Omega Flex argued that proof of the overall risks and benefits of the TraePipe System, and of any reason
The contention of the [Tinchers] in this case is that there is a defect in this product, this TraePipe. To state a products liability claim, essentially it’s strict liability, a plaintiff must prove, first, that the product was defective. Second, that if [sic] a defect existed when it left the hands of the defendant, that is, left the process by which it was produced at the defendant's] plant. And three, that the defect caused the harm.
A product is defective when it is not safe for its intended purpose. That is, it leaves the suppliers’ control lacking any element necessary to make it safe for its intended use. The inquiry is whether or not there is a defect, not whether the defendant’s] conduct was negligent. In strict liability there is no consideration of negligence. It is simply, was the product defective or wasn’t it defective.
Defective design. The manufacturer] of a product is really a guarantor of its safety. When we talk about strict liability, the product must be provided with every element necessary to make it safe for its intended use. And without any conditions that make[ ] it unsafe for its intended use. If you find that the product in this case, the TraePipe, at the time it left the defendant’s] control, lacked any elements necessary to make it safe for its intended use, or contained any condition that made it unsafe for its intended use, and there was an alternative more practical design, more safer [sic] design, then the product is considered defective and the defendant is liable for the harm, if you find that defect caused the harm[,] was the proximate cause of the harm to the plaintiffs.
Now, ladies and gentlemen, a product is not defective merely because it is possible to be injured while using theproduct. The imposition of strict liability is not meant to transform manufacturers into insurers of all injuries that are potentially possible and [sic] at the hands of a product. A manufacturer of a product may be a guarantor of the productos] safety, but under no circumstances is the manufacturer an insurer of the safety of the product. The law does not force the manufacturer to become the insurer of the product under all conditions and uses. A manufacturer is not required to make an already safe product safer, or to utilize the safest of all designs. The manufacturer is not required to produce or design a product incorporating only features representing the ultimate in safety design. To prevail on a design defect theory, plaintiffs must prove that the product is defective and that at the time it left the control of the manufacturer it lacked the feature necessary to make it safe for its intended use, or contained a feature that made it unsafe for its intended use.
In other words, you may not find that the TracPipe product is defective merely because it could have been made safer. Instead, you may only render a verdict for the plaintiff if you conclude and are convinced that the TracPipe is in fact defective and was so when it left the hands of the manufacturer and that defect was the proximate cause of the [Tinchers’] loss.
As I said before, and I instruct you that in order to establish strict liability for putting a defective product in the stream of commerce, the plaintiffs are not required to prove that the defendant was negligent. Negligence and strict liability are two separate concepts. I’ll get to negligence in a second. And no consideration should be given to negligence when considering strict liability for a defective product. It’s two different concepts. I understand it’s not the easiest thing to keep in mind. I’m trying to point out there is a difference between strict liability for putting a defective product that was defective when it was designed and made in this stream of commerce that causes harm to someone else, an intended user, not just any user, but an intended] user of that product.
Obviously, ladies and gentlemen, if this product was manufactured and, obviously, the — with all of the testimony in this case and the steps that were taken during the design and manufacturing process, Omega Flex knew it was going to be used for its intended purposes, to carry gas[,] natural gas, the manufacturer supplying the pipe guaranteed it would be safe for its intend[ed] use. That is what strict liability means. So if something that is intended to be safe for the use intended to be made of it is not, and it’s proven that it’s not, and that proof has to come from the plaintiff, and that defect is the proximate cause of what happens, there is a lot of testimony in this case about that, then that is what strict liability means. It does not have anything to do with negligence in that aspect of the case. That is why the risk of loss, or if there is, or if you find there is a defect in strict liability, the risk of loss is placed upon the supplier or manufacturer that put that product in this stream of commerce. The risk of loss for injuries resulting from the defective product is best warned [sic] by the person who manufactured it, principally because they are the ones that put it in the stream of commerce and said it would work for its intended purpose.
N.T., 10/19/2010, at 794-98. Additionally, the trial court defined “proximate cause,” and instructed the jury with respect to damages. Id. at 802-07. After the trial court concluded its instructions on the law, counsel for Omega Flex noted for the record that Omega Flex had proposed instructions based upon the Third Restatement with respect to the strict liability claim and that any Second Restatement instructions it proposed were offered in the alternative. The trial court responded that it had declined to instruct the jury in accordance with Third Restatement principles because Pennsylvania appellate courts, and the Supreme Court especially, had not adopted the Third Restatement.
Subsequently, the jury returned to the courtroom with several questions. Relevant here, the trial court answered the jury by repeating definitions for the terms “defect” and “defective design” as offered in the original instructions.
Relating to the motion for judgment notwithstanding the verdict, Omega Flex argued that the evidence introduced at trial was insufficient as a matter of law to prove a strict liability claim under the Third Restatement. In overlapping claims of error, Omega Flex also asserted that the Tinchers had not met their burden of proof under the so-called “fire-worthiness” doctrine, which, as Omega Flex explained in its supporting brief, was a Third-Restatement-like approach similar to the more familiar “crashworthiness” exception to the Second Restatement. Appellant’s Brief in Support of Motion for Post-Trial Relief 3/3/2011, at 9-27 (citing Pa. Dep’t of Gen. Serves. v. U.S. Mineral Prods. Co.,
Second, Omega Flex argued that a new trial was appropriate because the trial court failed to charge the jury on the Third Restatement, which in its view stated the relevant principle of law applicable to the circumstances alleged by the Tinchers. Omega Flex argued that application of the Third Restatement was supported by responsive opinions authored and joined by several Justices of this Court and the decision of the U.S. Court of Appeals for the Third Circuit in Berrier v. Simplicity Mfg.,
In response, the Tinchers asserted that the “fireworthiness” instruction requested by Omega Flex had no applicability to the Tinchers’ circumstances. The Tinchers explained that the decision in General Services was distinguishable on the facts: in General Services, the product released harmful chemicals when exposed to a fire caused by unrelated events; because the fire was not an intended use of the product, this Court held that strict liability principles were inapplicable. By comparison, the Tinchers noted that the allegations in this matter were that the defect in CSST even when employed for its intended use, ie., carrying natural gas, caused the fire; these allegations implicated a manufacturer’s strict liability for the alleged defect. The Tinchers then argued that the evidence offered at trial was sufficient to support the trial court’s gateway decision related to the risk-utility analysis as well as the jury’s ultimate verdict. The Tinchers also responded that the Third Restatement was not applicable in Pennsylvania and that, until this Court adopts the Third Restatement, the governing law remains the Second Restatement. Moreover, the Tinchers asserted that the Third Circuit’s prediction that this Court would eventually adopt the Third Restatement is premature and unwarranted, citing the Superior Court decisions in Gaudio, supra, and French v. Commonwealth Associates,
Omega Flex appealed the judgment to the Superior Court. The trial court ordered Omega Flex to file a concise statement
In the post-trial relief and Rule 1925(a) opinions, the trial court rejected Omega Flex’s arguments. The trial court found no error in declining to apply and instruct the jury on the Third Restatement, reasoning that this Court had yet to adopt that iteration of tort law to replace the Second Restatement. The trial court noted that, while Omega Flex “may have the right to advance on appeal to our Supreme Court that it should adopt the [Third Restatement], under current law, [the Tinchers] bore no burden to prove a safer alternate design existed in accordance with the latter standard.” Trial Court Op., 8/5/2011, at 11.
In addition, the trial court explained that a “fireworthiness” instruetion-as an extension of the “crashworthiness” doctrine, requiring “a more rigorous standard of proof than the usual [Second Restatement] claim,” was not appropriate either, because TraePipe had been employed for its intended use. According to the trial court, the Tinchers’ case did not relate to how the TraePipe performed during the fire, as in General Services; rather, the defect in the TraePipe they pursued was the proximate cause of the Tinchers’ injuries. The trial court held that the trial court rather than the jury properly decided the question of a feasible alternative design, and that the Tinchers had carried their burden of proof.
The parties offered arguments in their briefing to the Superior Court on issues similar to those raised in the post-trial motion and Rule 1925(b) statement. Relating to the Third Restatement, Omega Flex acknowledged that decisions of this Court bound the lower court, but offered that this case would be a fitting vehicle for this Court to revisit strict liability standards. According to Omega Flex, the Third
In September 2012, the Superior Court affirmed the judgment, among other things holding that the trial court did not err in declining to adopt the Third Restatement. The court also rejected Omega Flex’s claim of error premised upon the fireworthiness theory, concluding that although the occurrence of lightning was arguably random and infrequent, lightning is a naturally occurring phenomenon outside the control of the Tinchers, who were using the product for its intended use. As a result, the court held that the Tinchers’ claims implicated notions of strict liability, and the Tinchers had carried their burden of proof under the Second Restatement and Azzarello. Moreover, the court concluded that it was obligated to follow Supreme Court precedent, which remained premised upon the Second Restatement, following this Court’s then-recent decision in Beard v. Johnson & Johnson, Inc.,
Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement.
In addition, the parties were directed to brief the question of whether, if the Court were to adopt the Third Restatement, that holding should be applied prospectively or retroactively. Tincher v. Omega Flex, Inc.,
II. Arguments
Omega Flex suggests an affirmative answer to the question accepted on appeal, and further argues that this Court should disapprove the decision in Azzarello, and abandon the Second Restatement articulation of the law of strict liability in Pennsylvania in favor of the approach in the Third Restatement. The Tinchers agree that Azzarello was wrongly decided but argue in favor of otherwise retaining the principles of liability of the Second Restatement.
Omega Flex begins by noting that Pennsylvania recognized strict liability in 1966. Appellant’s Brief at 16 (citing Webb v. Zern,
Omega Flex argues that Azzarello is theoretically unsound and unworkable in practice, suggesting that we should disapprove the decision. Initially, Omega Flex claims that a core principle familiar in negligence law — reasonableness—inherently infuses strict liability law: a product is defective only if “unreasonably” dangerous. Omega Flex explains that a manufacturer is not the insurer of the consumer for any injury caused by its product and may be held liable only if the product is “defective.” As a practical matter, according to Omega Flex, a design is not defective “in the abstract,” as a function of the injury caused a particular plaintiff, but as a function of its risks and utilities. Omega Flex emphasizes that any product may cause injury, yet not every product is “defective” as that concept is properly understood in the law of strict liability — of note are inherently dangerous products such as knives and lighters. On this premise, Omega Flex suggests that the risk-utility calculus is essentially a matter of whether the manufacturer departed from the proper and reasonable standards of care. “To condemn a design for being unreasonably dangerous is inescapably to condemn the designer for having been negligent.” Appellant’s Brief at 29 (citing James A. Henderson, Jr. and Aaron D. Twerski, Achieving a Consensus on Defective Product Design, 83 Cornell L.Rev. 867, 919 (1998)). From this perspective, Omega Flex argues, the conceptual wall of separation between strict liability and negligence initially articulated by Azzarello has “no practical significance.”
Additionally, Omega Flex criticizes the Azzarello decision for relegating the risk-utility inquiry to a threshold matter of whether the defect issue may be submitted to the jury, and placing that inquiry into the hands of the trial judge. Omega Flex suggests that the Azzarello decision thereby lowers the burden on the plaintiff to prove that a product is unreasonably dangerous (and, as a result, is defective). “The jury does not balance the risk-utility factors, even though the judge has only done so as a threshold matter.” Id. at 30-31 (quoting Moyer v. United Dominion Indus., Inc.,
Omega Flex also comments upon the practical implications of Azzarello. According to Omega Flex, the central concept that negligence principles are wholly separate from strict liability principles effectively generated minimalistic and circular instructions for juries “which lack essential guidance concerning the key conception of product defect.” Id. at 34 (quoting Schmidt v. Boardman,
Next, Omega Flex suggests that, in addition to disapproving Azzarello, the Court should adopt the approach to strict liability reflected in the Third Restatement. Omega Flex recommends the Third Restatement on the grounds that its articulation of the law is specifically intended to address design defects and represents the current mainstream view on the topic. According to Omega Flex, the Third Restatement was drafted by “two prominent product-liability scholars,” Professors James Henderson and Aaron Twerski, and was reviewed in a comprehensive process. Appellant’s Brief at 45. Omega Flex describes the Third Restatement as requiring, in design defect cases, a balancing of risks and benefits by the finder of fact, upon consideration of a broad range of factors. The critical distinction in approaches, as described by Omega Flex, is that “the plaintiff could not simply criticize the existing design; instead, the plaintiff would be required to prove that the manufacturer could and should have adopted a reasonable alternative design.” Id. at 47 (citing Restatement (3d) of Torts: Products Liability § 2(b) cmt. d). Omega Flex
The Tinchers respond that the decision of the Superior Court should be affirmed, and strict liability actions in Pennsylvania should continue to be governed by the Second Restatement.
The Tinchers posit that concepts of negligence have no place in strict liability actions, explaining that strict liability is premised upon a social policy of holding manufacturers responsible for casting a defective product into the stream of commerce. Strict liability, the Tinchers argue, reflects a change in social policy from the principle of caveat emptor— buyer beware — to the view that a supplier of products is a guarantor of its products’ safety. The Tinchers suggest that, in the modern marketplace, the emphasis is on protecting consumers and shifting the risk of loss for injury onto suppliers of products because suppliers are in a better position to absorb or distribute the loss as a cost of doing business. Id.
According to the Tinchers, the decision in Azzarello “represents strict liability in its purest form” because it places the emphasis on scrutinizing the product rather than the manufacturer’s conduct. The Tinchers note that a manufacturer’s liability is limited to defective products. The Tinchers claim that “defect” is difficult to define: the critical consideration is whether the product is unreasonably dangerous. According to the Tinchers, because the question of unreasonable dangerousness “could easily be confused by a jury as importing concepts of negligence into a strict liability analysis,” the Azzarello Court directed that decision to the trial court rather than to the jury. The decision, the Tinchers explain, implicates the balancing of social policies “best performed by the [trial] court in making a determination [of] law” and acting as a gatekeeper to prevent claims regarding certain products from reaching the jury.
The Tinchers argue that the Third Restatement abandons a pure strict liability analysis in favor of negligence principles. According to the Tinchers, the Third Restatement explicitly provides for consideration of “foreseeable risks of harm proposed by the product,” which is a negligence standard. The Tinchers suggest that the Third Restatement is not a “natural” and “modest” evolution of strict liability but a “calamitous” displacement of the social policy established by forty-seven years of Second Restatement precedent. The Tinchers
The Tinchers also note that a “clear minority” of states have adopted the Third Restatement: one state — Iowa—expressly, and several others have adopted single sections of the Restatement or have used the doctrine as guidance for the formulation of the common law. Appellees’ Brief at 28 (citing Wright v. Brooke Group Ltd.,
The Tinchers claim that Omega Flex erroneously relies upon cases implicating the “crashworthiness” exception to general products liability theory under the Second Restatement. This exception, according to the Tinchers, is accepted as such in “virtually every [U.S.] jurisdiction” and is typically applied to cases in which an alleged defect did not cause the
Finally, the Tinchers argue that the Third Restatement would accomplish a “radical departure” from existing public policy because it would impose “an undue hardship on plaintiffs in the pursuit of meritorious claims.” According to the Tinchers, the Third Restatement shifts the emphasis from the existing product to speculation of what similar product could have been designed. In the Tinchers’ view, the Third Restatement represents “an instrument of tort reform” rather than an articulation of existing law, which will impose a prohibitive cost on plaintiffs and counsel to produce alternative designs in the pursuit of otherwise meritorious claims. Id. at 33-34 (citing Gary Wilson et al., The Future of Products Liability in America, 27 Wm. Mitchell L.Rev. 85, 99-100 (2000); Frank J. Vandall and Joshua F. Vandall, A Call for an Accurate Restatement (Third) of Torts: Design Defect, 33 U. Mem. L.Rev. 909, 923 (2003)). The Third Restatement, according to the Tinchers, is a boon to manufacturers by placing at a “tremendous disadvantage” injured consumers who would necessarily have to become experts and seek to redesign the product that caused the injury; the cost of this exercise may exceed the benefit of a recovery. Additionally, the Tinchers argue that the attendant costs of representing an injured plaintiff in a Third Restatement jurisdiction would discourage
In an alternative argument, the Tinchers suggest that the Court could disapprove Azzarello but continue to apply the Second Restatement rather than the Third Restatement articulation of the law. The Tinchers note that this resolution of the matter would protect the social policies underlying products liability yet remove any difficulties caused by the decision in Azzarello. See Appellees’ Brief at 41 n. 16. Ultimately, however, the Tinchers ask the Court to affirm the decision of the Superior Court.
In reply, Omega Flex reiterates its position that the differences between the Second Restatement and the Third Restatement are modest; the difficulty with Pennsylvania’s approach to products liability instead results from the application of Azzarello. Omega Flex suggests that the Tinchers do not oppose a disposition of this appeal in which the Court would disapprove Azzarello, although the parties disagree whether the Court should go further and adopt the Third Restatement. With regard to the Third Restatement, Omega Flex argues that the “reasonable alternative design” element of proof does not erect the types of insurmountable barriers to meritorious claims that the Tinchers portray: plaintiffs may adduce proof of existing products (ie., predecessor products or competitor products) or no expert proof at all if the feasibility of an alternative design is obvious and understandable to lay persons. Appellant’s Reply Brief at 20 (citing Restatement (3d) of Torts-. Products Liability § 2 cmt. f). Omega Flex presents the Third Restatement as a refinement of its predecessor with specific provisions for design defects, whose approach has already been accepted in the form of numerous exceptions to the general Second Restatement rules. Moreover, Omega Flex claims that, con
III. Analysis
A. The Scope and Standard of Review
As a preliminary matter, we observe that the parties pose and argue a seemingly pristine question of law, little dependent on the facts of record, primarily regarding whether this Court should replace the strict liability analysis of the Second Restatement with the analysis of the Third Restatement. In part, this is a function of how the issues were presented to the lower courts and of the lower courts’ recognition that the question of whether to “move” to the Third Restatement has been a matter of debate and speculation in interested legal circles and in federal court cases (as well as in separate opinions in this Court); all recognize that, as a common law matter, the decision of whether to adopt principles from the Third Restatement would ultimately be made by this Court. As a result of this background circumstance, the lower courts offered no principled assessment or practical perspective regarding the core, and strictly legal, positions now presented by the parties to this Court. While the importance of lower courts’ analysis of a proposed change in the law as applied to the facts of a particular case and the centrality of such analysis to the development of the common law cannot be understated, we note, nevertheless, that there is no suggestion by either party that the issue so presented was waived. See Scampone v. Highland Park Care Center, LLC,
Properly framed, then, the question before the Court is whether Omega Flex was entitled to relief, in the form of
This Court has explained that, “[w]hen a court instructs the jury, the objective is to explain to the jury how it should approach its task and the factors it should consider in reaching its verdict.” On appeal, this Court examines jury instructions to determine whether the trial court abused its discretion or offered an inaccurate statement of law controlling the outcome of the case. A jury charge is adequate “unless the issues are not made clear, the jury was misled by the instructions, or there was an omission from the charge amounting to a fundamental error.” Commonwealth v. Chambers,
Meanwhile, greater relief in the form of a judgment notwithstanding the verdict is appropriate only if the movant is entitled to judgment as a matter of law, i.e., if the evidence presented at trial was such that no two reasonable minds could disagree that the verdict should be in favor of the movant. Degenhardt v. Dillon Co.,
Furthermore, central to the parties’ dispute are questions of whether this Court should disapprove the 1978 decision in Azzarello, and whether the Court should abandon the Second Restatement articulation of the strict liability cause of action and, in its place, “adopt” as the law of Pennsylvania the Third Restatement formulation of strict liability in tort. These questions implicate separate foundational principles of stare decisis and judicial restraint.
The doctrine of stare decisis “commands judicial respect for prior decisions of this Court and the legal rules contained in those decisions.” Stilp,
We have recently stressed in multiple cases that the common law “develops incrementally, within the confines of the circumstances of cases as they come before the Court.” Scampone,
Reliance upon the inherent and necessary flexibility of common law rules does not provide, however, the dispositive answer to the question of whether “adoption” of the American Law Institute’s new formulation for tort law is appropriate or
The first principle applies generally and involves the policy-making authority of the General Assembly. In considering whether a long-established common law rule is out of step with modern experience, we assume that the General Assembly is aware of the rule, which, if unchanged by legislation, presumably reflects continued legislative policy. See Everhart v. PMA Ins. Group,
Two other considerations are specific to the nature and recognized role of a “Restatement” of law in the development of Pennsylvania common law. Restatements of law published by the American Law Institute purport to offer a synthesis of American common law, which articulates the reasoned, mainstream, modern consensus on principles of broad application intended to govern large numbers of cases. Scampone,
Moreover, because the language of a provision of the restatement, even to the extent it was adopted by the Court verbatim, has not been vetted through the crucible of the legislative process, a court applying the restatement formulation should betray awareness that the language of an “adopted” restatement provision is not “considered controlling
B. Strict Liability in Pennsylvania: the Common Law
In the arena of strict liability, this Court.does not write on a blank slate; the common law is the starting point of our explication of the conceptual framework for strict liability in tort in Pennsylvania. The evolution of strict liability jurisprudence has four distinct, relevant periods: early cases addressing the evolution of strict liability and the adoption of the Second Restatement’s articulation of the cause of action; the advent of Azzarello; post-Azzarello jurisprudence; and recent judicial expressions addressing the Third Restatement.
At the outset, we note that disputes over liability for personal and economic harm caused by products, although perhaps not articulated in those same terms, likely accompanied the earliest division of labor. Efficiency, specialization, and the evolution of expertise, separately and as precursors to invention and innovation, were significant benefits of this division of labor.
By the 1960s, Pennsylvania was among those jurisdictions whose courts had accepted an application of civil liability without proof of negligence in cases of injury caused by food products. See William L. Prosser, The Assault Upon the Citadel (Strict Liability To the Consumer), 69 Yale L.J. 1099, 1103-10 (1960) (citing, inter alia, Caskie v. Coca-Cola Bottling Co.,
By the 1960s, plaintiffs had sought to establish liability of sellers of products primarily via actions in negligence and breach of warranty, on the assumption that these recognized causes of action provided the best approximation of justice in individual cases then available. Negligence, in tort, spoke to the notion of redress for a legal wrong or direct and forcible injury to the person, land, or chattels of another. See R.F.V. Heuston, Salmond on the Law of Torts 4 (17th ed.1977). Negligence theory also offered the convenience that it did not require proof of knowledge of a particular defect in the product, but simply the failure to exercise due care had the defect been foreseeable. Meanwhile, a breach of warranty action, sounding in assumpsit, was at its origin an action in tort, which “transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract.” James Barr Ames, The History of Assumpsit in 3 Select Essays in Anglo-American Legal History 1, 298 (1909). The word assumpsit suggested the making of a promise and, originally, the actionable conduct was the breach of an express promise. The cause of action evolved, however, to encompass the breach of an implied promise, and even of a fictitious promise. See id. (commenting upon “assumpsit” as illustration of “the flexibility and power of self-development of the Common Law”). “[Wjarranty (unlike negligence which is a tort concept based on fault) is not a concept based on fault or on the failure to exercise reasonable care. But this does not mean that warranty is necessarily contractual or nontortious in nature. Liability in warranty arises where damage is caused by the failure of a product to measure up to express or implied representations on the part of the manufacturer or other supplier. Accordingly, an injured person is not required to prove negligence in a warranty-products liability case.” Putman v. Erie City Mfg. Co.,
1. The Second Restatement and the Early Cases
Early decisional law in Pennsylvania explained the genesis and nature of the strict liability cause of action, with reference to Section 402A of the Second Restatement. Section 402A of the Second Restatement states:
§ fflZA Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Restatement (2d) of Torts § 402A (1965).
The commentary to the Second Restatement traces the roots of the higher degree of responsibility placed upon sellers of goods to English criminal statutes of the Thirteenth Century that imposed penalties upon persons who supplied “corrupt food and drink.” Restatement (2d) of Torts § 402A cmt. b. As these criminal statutes were repealed, judicial decisions referred in dicta to the civil liability of sellers to those to whom they sold “corrupt victuals.” See Prosser,
In 1966, this Court took a major step by “adopting” the formulation of Section 402A of the Second Restatement of Torts as the common law of Pennsylvania. In Webb,
We need not, however, determine whether or not the lower court erred with regard to the law of exclusive control, for there is another and clearer issue which is determinative of this appeal. That issue is the nature and scope of the liability in trespass of one who produces or markets a defective product for use or consumption. The development of the law in that area is chronicled in the Concurring and Dissenting Opinions of Justices Jones and Roberts to the decision of this Court in Miller v. Preitz [422] Pa. [383],221 A.2d 320 (1966). One will also find there citations to modern case law and commentaries which extend and recommend the extension of the law of strict liability in tort for defective products. The new Restatement of Torts reflects this modern attitude. Section 402A thereof states: [Quoting in full Section 402A of the Second Restatement.]
We hereby adopt the foregoing language as the law of Pennsylvania.
The plaintiff in this litigation, therefore, must be given an opportunity to plead and prove his case....
The several opinions filed in Miller offer substantially more insight than Webb into the genesis of the strict liability tort in Pennsylvania and the Court’s decision to adopt the Second Restatement to define its parameters. The Miller plaintiff was the estate administrator of a deceased infant, who was fatally injured when a vaporizer-humidifier used to relieve congestion in his nose shot boiling water on his body. The plaintiff filed a complaint asserting a breach of the implied warranty of merchantability against the manufacturer, the distributor, and the retail pharmacy that had sold the vaporizer-humidifier to the deceased infant’s aunt. The infant had used the product in the aunt’s home, next door to his family’s home. In relevant part, the trial court sustained preliminary objections to the complaint, on the ground that the implied warranty did not extend to the deceased infant because he had not been in privity of contract with any of the defendants.
The Miller Court reversed the judgment as a matter of law entered in favor of a retailer because the deceased infant, who was harmed by the vaporizer-humidifier sold by the retailer, was “in the buyer’s family” and, notwithstanding the infant’s lack of privity with the retailer, his representative had met the prerequisites for pursuing a breach of warranty action under the plain language of the Uniform Commercial Code. (By comparison, the Webb plaintiff had pursued an action in tort on a theory of negligence.) Additionally, the Miller Court affirmed the judgment in favor of the manufacturer and of the distributor, reasoning that the Code’s provisions did not extend warranty liability to remote sellers in the chain of distribution. Id. at 324 (citing 12A P.S. § 2-318). In both respects, according to the Court, the language of the Uniform Commercial Code was dispositive. The Miller Court viewed abandoning the requirement of privity in warranty actions as unnecessary, noting the expectation that strict liability in tort would vindicate public policy relating to products liability and accomplished a similar result to abandoning privity.
In the field of product liability, resort for redress for injury arising from a defective product may be had either in tort or assumpsit. In [Loch v. Confair,361 Pa. 158 ,63 A.2d 24 (1949) ], we said “that a person who has effected the purchase of particular goods and sustains injury because of unfitness for an intended purpose may institute an action in assumpsit based upon a breach of implied warranty Or an action in trespass based upon specific averments of negligence. In both instances the elements of damage may be identical, viz, the damage naturally and proximately resulting from a breach of implied warranty or a breach of duty----An election of remedies in this regard has, however, never been held by this Court to authorize institution of a contract action based upon averments of negligence. Nor, conversely, has it authorized institution of a negligence action based upon averments of contract. Essential distinctions which exist have been recognized.” [63 A.2d at 26 ]. Thus, while a person injured by a defective product has an election of remedies, however, each remedy has acquired distinct characteristics.
Justice Jones then expressed support for the approach of the Second Restatement whose purpose, he stated, was to ensure “that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” Id. at 334.
According to Justice Jones, the judgments that would result from application of the Second Restatement were “not a far
In his dissent, Justice Roberts, joined by Mr. Justice Musmanno, would also have reversed the summary judgment entered by the trial court as to all defendants. These dissenters reasoned that the majority’s decision elevated form over substance, and they would have allowed the cause of action in the matter to proceed either in assumpsit, on the basis of a breach of warranty, or in trespass, on the basis of strict liability. In this regard, the dissent suggested that the same results would obtain whether a plaintiff chose to pursue his products liability claim on a breach of warranty theory or under the Second Restatement.
The dissenters remarked that the duty of sellers of products for human consumption “extended beyond the mere avoidance of negligence,” and had been characterized as a “special responsibility ... in the nature of an implied warranty that such products would be fit for human consumption----” The duty had been limited to the immediate buyer; but, the dissent noted, courts “recognized the injustice inherent in such a limitation” and had developed theories of strict liability in defective food cases. At the same time, according to the dissent, the privity requirement was not eliminated as to nonfood products, which presented equal dangers. The dissenters questioned the merit of that distinction. From a practical perspective, the dissent also noted that the doctrine of privity did not insulate defendants from liability because an action by a consumer against a seller simply started a chain reaction of indemnity; “[a]ll that is really accomplished by the restriction
The dissent then expressed its disapproval of the “conceptual abstractions and niceties of pleading” that had obscured what it believed was essentially a strict liability cause of action and the considerations that supported it, and encouraged the Court to adopt the Second Restatement. In the dissent’s view:
The public interest in affording the maximum protection possible under the law to human life, health and safety; the inability of the consumer to protect himself; the seller’s implied assurance of the safety of a product on the open market; the superior ability of the manufacturer or seller to distribute the risk of loss; the needless circuity of recovery and the expensive, time consuming, wasteful and often unjust process which insistence upon privity frequently occasions — all support the extension of the protection of strict liability beyond the food cases to those involving other consumer goods as well.
Thus, the 6 to 1 Webb decision itself contained no developed majority expression, despite the important transitional point it marked in Pennsylvania law.
The commentary to the Second Restatement and the Court’s decisional law over the subsequent decade reflect early foundational debates among members of the Court con
For example, in Bialek v. Pittsburgh Brewing Co.,
In Kuisis, the plaintiff alleged that he was injured when a crane’s brake locking mechanism became disengaged, causing a load of steel pipe suspended on the crane to fall on him. The plaintiff proceeded on theories of negligence and strict liability in the design and manufacture of the brake locking mechanism. At the close of evidence, the trial court granted summary relief to the manufacturer on the negligence claim and submitted the strict liability claims to the jury; the jury was dismissed when it could not agree on a verdict. Subsequently, the trial court granted the manufacturer’s motion for judgment on the record. On appeal, this Court reversed the trial court’s judgment and awarded the plaintiff a new trial. Justice Pomeroy’s OAJC reasoned that evidence relating to the accident, in addition to the occurrence of five similar malfunctions of the locking mechanism, was sufficient to show that the product was defective, even absent direct evidence of a specific defect. According to the OAJC, in the absence of other identifiable causes, the malfunction itself was evidence of a defective condition; “[t]his rule reflects the fact that liability under [Section] 402A turns on a lack of fitness in the defendant’s product, as in the case of an action for breach of warranty, rather than on the breach of a particular duty of care by the defendant, as in the case of an action for negligence.” The OAJC continued: “[w]hile a plaintiffs hand in a
Finally, the OAJC commented upon the relevance of proof that the crane operator had left the controls while the pipe was suspended. According to the OAJC, the operator’s alleged negligence was legally significant as a potential superseding cause of the plaintiffs injuries. Kuisis,
The Berkebile OAJC commenced its analysis by noting the necessity “to clarify the concepts of strict liability in Pennsylvania,” so as to avoid further confusion in the case upon remand for a third trial. In concurring, Justices Roberts and Pomeroy would have decided the matter on the separate issue of strict liability for a failure to warn.
In Berkebile, following the death of her husband in a helicopter crash, the administratrix of the estate sued the manufacturer, premised upon theories of strict liability for defective design of the helicopter’s rotor system, for defective manufacturing and design of the rotor blade, for inadequate warnings regarding the inherent risks and limitations of the rotor system, and for misrepresentation of the helicopter’s safety in the manufacturer’s advertising brochures. The defendant denied the existence of a defect and argued that the decedent’s abnormal use had caused the crash.
The Berkebile OAJC reiterated that strict liability, as a cause of action, implemented a policy of consumer protection. According to the OAJC, “[t]he increasing complexity of the manufacturing and distributional process placed upon the injured plaintiff a nearly impossible burden of proving negligence where, for policy reasons, it was felt that a seller should
The Berkebile OAJC also parsed the language of the Second Restatement, opining that the Restatement imposes a seemingly contradictory burden of proving that a “defect” is “unreasonably dangerous.” According to the OAJC, the standards are reconcilable if the purpose of the “unreasonably dangerous” qualification is “to differentiate those products which are by their very nature unsafe but not defective from those which can truly be called defective.” The OAJC rejected the notion that defect should be defined based upon the negligence-oriented reasonable man concept, which tended to dilute the strict liability concept, and offered that the “unreasonably dangerous clause” should be included in articulating the issue of proximate cause to the jury. Chief Justice Jones explained that the result of limiting the liability of a seller premised upon a “reasonable man” standard, which the clause “unreasonably dangerous” could suggest, protects the seller from becoming “an insurer of his products with respect to all harm generated by their use.” But, such standard would also require an injured consumer-plaintiff to prove an element of negligence, which means in practice that, regardless of the injured consumer’s expectations regarding the product, the injured consumer would be unable to recover if an “ordinary consumer” would have expected the product’s defective condition. Chief Justice Jones opined that it is unnecessary to place the additional burden upon the injured consumer to limit
Chief Justice Jones added that proof of strict liability is not premised upon whether the seller could have foreseen a particular injury, for to articulate the burden of proof in terms of foreseeability is to require the plaintiff to prove that the seller exercised due care. But, because the seller is liable in strict liability regardless of any negligence, whether the seller could have foreseen a particular injury is irrelevant. Once a product is proved defective, the seller is responsible for all the unforeseen harm it caused, no matter how remote. Moreover, Chief Justice Jones reasoned, a plaintiffs negligence does not bar recovery in strict liability, although evidence that would tend to prove such negligence may be relevant for the purpose of rebutting the plaintiffs contentions of defect and proximate cause. Id. at 901.
Finally, the Berkebile OAJC addressed the viability of the plaintiffs failure to warn claims, reasoning that the trial court had erred in failing to charge the jury on the point. Chief Justice Jones stated: “A ‘defective condition’ is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product.” Id. at 902 (emphasis added) (citing Restatement (2d) of Torts § 402A cmt. c). The portion of the Berkebile lead opinion emphasized above was quoted subsequently out of context by the majority in Azzarello as the standard of proof in a strict liability action.
And so, much like the Second Restatement articulation of strict liability, Pennsylvania decisional law did not speak affirmatively to the plaintiffs burden of proof in strict liability cases but addressed it by negation, i.e., as compared to then-more familiar theories of breach of warranty initially and, later, negligence. In the subsequent decade, foundational issues regarding the strict liability in tort cause of action did not reach the Supreme Court or, when questions were presented, expressions failed to command clear majority support. To the extent that the Court spoke to broader considerations, several trends became evident: the original prominence of warranty-related attempts to limit application of strict liability theory decreased, and the relevance of negligence-related
2. Azzarello
In 1978, the Court was confronted with the question of whether the trial court had adequately charged a jury on the law of products liability in Pennsylvania. The Azzarello plaintiff had been injured when he pinched his hand between two hard rubber rolls in a coating machine manufactured by Black Brothers Company. The plaintiff proceeded on a theory of strict liability against the manufacturer, but the manufacturer also joined the plaintiffs employer as a co-defendant, asserting that the employer’s negligence was the sole or contributing cause of the plaintiffs injuries. See Azzarello,
The Court addressed two related and important questions: whether a determination as to the risk of loss in a strict liability case is a decision for the judge or the jury, and whether the words “unreasonably dangerous” have any place in the strict liability jury instruction. The Court concluded that the words “unreasonably dangerous” explain the term “defective” but have “no independent significance and merely represent a label to be used where it is determined that the
The Azzarello Court further reasoned that a change in terminology to avoid references to negligence principles would be insufficient to articulate instructions appropriate for a lay jury. Indeed, according to the Court, the formulation of the Second Restatement was not intended to articulate jury instructions but employed principles designed instead to predict responsibility and to guide the professional bench and bar. The Court then concluded that the best means to implement the principles of the Second Restatement was to direct: (1) that the phrases “defective condition” and “unreasonably dangerous,” which predict whether recovery would be justified, are issues of law and policy entrusted solely for decision to the trial court; and (2) that the inquiry into whether a plaintiff has proven the factual allegations in the complaint is a question for the jury. According to the Court, in cases of an alleged defective design, the dispositive question is whether the product is safe for its intended use. The Court emphasized that the seller is the “guarantor” of the product, and a jury could find a defect “where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Id. at 1027 (citing Berkebile,
3. Post-Azzarello Design Defect Jurisprudence
Following Azzarello, decisional focus in strict liability cases shifted to reflect an increasing concern with segregating strict liability and negligence concepts. The Court addressed several evidentiary questions, in the process touching upon foundational notions of strict liability relevant to a design defect claim.
In Lewis v. Coffing Hoist Division, Duff-Norton Co.,
Before addressing whether particular expert testimony was relevant to a strict liability cause of action, the Lewis Court set out its view of the applicable substantive law. The Court
The Lewis Court observed that jurisdictions with various approaches agreed that relevant at trial is the condition of the product rather than the reasonableness of the manufacturer’s conduct. As a result, the Court concluded, a strict liability claim does not sound in negligence — a proposition in harmony with the Azzarello decision. The Court held that, because “due care” has no bearing upon liability in a strict liability case, proof of industry standards — which go to a negligence concept of reasonable care — are irrelevant and “created a strong likelihood of diverting the jury’s attention from [the product] to the reasonableness of the [manufacturer-defendant’s] conduct in choosing its design.” Id. at 593-94.
Mr. Justice Larsen concurred, adding that because of their “inherently self-serving nature,” admission of industry standards evidence would be highly prejudicial to the consumer. In a dissent, Mr. Justice Flaherty criticized the majority’s approach to strict liability claims, noting that evidence of injury alone is insufficient to prove a strict liability claim;
Later, in Kimco Development Corporation v. Michael D’s Carpet Outlets,
4. Recent Cases and the Third Restatement
In 1998, the ALI proposed a new restatement of the law relating specifically to products liability. See Restatement (3d) of Torts: Products Liability §§ 1-8 (1998) (Liability Rules Applicable to Products Generally). As is evident from the premise of this litigation, this Court has not yet determined whether to adopt the formulation of the Third Restate
In 2003, the question before a six-Justice Court was whether a supplier was responsible in strict liability to a consumer-plaintiff other than the intended user of the product. See Phillips v. Cricket Lighters,
The single Justice OAJC authored by Mr. Chief Justice Cappy concluded that a product is not defective if it is safe for its intended user. Id. at 1005. The OAJC rejected the plaintiffs argument that a manufacturer should be responsible for harm to a foreseeable albeit unintended user, opining that foreseeability concepts have no application in strict liability theory and foreseeable users may recover by proving negligence. Among other things, the OAJC recognized that some strict liability decisions had relied upon foreseeability principles but the opinion denounced the practice and would have reaffirmed the firm conceptual distinction between strict liability and negligence causes of action. Id. at 1007 (citing Davis v. Berwind Corp.,
Mr. Justice Saylor authored a concurring opinion, which this author and Mr. Justice Eakin joined. Justice Saylor advocated taking the opportunity to address foundational matters, to reassess Pennsylvania’s Second Restatement approach, and to examine the range of readily accessible, corrective measures, including adoption of the Third Restatement. In relevant part, the concurrence addressed three points: first, that strict liability doctrine is embedded with concepts central to negligence theory; second, that ambiguities and inconsistencies in prevailing strict liability jurisprudence affected the proper disposition of the appeal; and third, that the Third Restatement’s approach would provide the most viable route to clarification and remediation of strict liability jurisprudence in Pennsylvania.
On the first point, Justice Saylor noted that the Second Restatement articulation for the strict liability cause of action posed difficulties in application to design defect claims. At origin, Justice Saylor explained, the standard derived from manufacturing defect cases, in which “something went wrong in the manufacturing process” and the resulting product was not as safe as intended. The core objectives of the Second Restatement had been to relieve consumer-plaintiffs of the burden of proving that the supplier had exercised due care in the manufacturing process (necessary to prove negligence), and to spread the risk of loss among consumers. But, Justice Saylor observed, courts had since recognized the “limitations of the just implementation of loss spreading via judicially crafted doctrine.” Id. at 1013 n. 3 (citing Duchess v. Langston Corp.,
Relating to the second point, the concurrence offered a critique of Azzarello, which is particularly relevant since Omega Flex echoes the analysis in this appeal. According to the concurrence, courts have implemented the Azzarello decision by: (1) assigning the risk-utility balancing to trial courts on the facts most favorable to the plaintiff; and (2) providing juries with minimalistic instructions that, in an effort to insulate the jury from negligence terminology, “lack essential guidance concerning the nature of the central conception of product defect.” Because the jury is not permitted to consider the cost-benefit factors, neither judge nor jury “actually decide whether the true benefits of the proposed alternative design outweigh the true cost” and whether the product is in fact unreasonably dangerous or defective. Furthermore, the concurrence added that, by omitting the critical “unreasonably dangerous” limitation on liability or cost-benefit instructions, the Azzarello-approved charge fails to define the term “defect” clearly, and consequently fails to guide the jury in distinguishing products safe and unsafe for their intended use.
On the final point, the concurrence suggested the Third Restatement as a viable alternative articulation of the standard of proof, with the potential to resolve the persisting difficulties and to enhance fairness and efficacy in the liability schema. Id. at 1021. According to the concurrence, the Third Restatement’s negligence-derived standard represents “the distilled expression of thirty years of design-defect litigation.” The concurrence summarized the general rule of the Third Restatement as follows: “a product is deemed defective in design when the foreseeable risks could have been reduced or avoided by the use of a reasonable alternative design, and when the failure to utilize such a design has caused the product to be ‘not reasonably safe.’” The concurrence explained that design defect liability under the Third Restatement is predicated upon a concept of responsibility in which the determination is made by reference to an independent assessment of advantages and disadvantages, rather than by reference to the manufacturer’s own design or marketing standards, which are in fact alleged to be unreasonable by the plaintiff. Moreover, the concurrence stressed, products are not defective simply because they are dangerous. Relevant to the issue in Phillips, the concurrence added that the Third Restatement expressly incorporates notions of reasonable foreseeability that would temper the exclusive reliance on the risk-utility test. In the view of the concurrence, the Third Restatement provided the best-balanced and reasoned approach to strict liability in Pennsylvania. On a final note, the concurrence opined that application of the strict liability doctrine should be closely limited until the existing substantial deficiencies in the strict liability schema are addressed and remedied by the Court.
In an opinion by Justice Saylor, the General Services Court noted the consensus in Phillips, supra, against “expanding the scope of manufacturer liability without fault in a generalized fashion” pending an overhaul of strict liability doctrine by the Court. In this respect, the Court acknowledged that accidental combustion of the building materials was foreseeable and that an argument could be made for the notion that safety for an intended use of the materials should be deemed to encompass safety under such circumstances. The Court nevertheless rejected the argument that expansion of liability premised upon negligence-based foreseeability considerations was warranted, emphasizing an incongruity with simultaneously constraining a supplier’s resort to negligence-based use-related defenses. See
Poised to address foundational questions relating to the application of the strict liability doctrine in Pennsylvania, in 2008, the Court granted allowance of appeal in Bugosh v. I.U. North Am., Inc.,
In a dissenting statement, Justice Saylor reiterated that foundational concerns persisted in the area of strict liability and, by way of background, recapitulated the main points of the Phillips concurrence. The dissent also noted that the categorical divide between strict liability and negligence principles, articulated in the cases, is most readily justified in manufacturing defect cases; claims implicating design or warning defect, however, are far more problematic. Relevant to design defect claims, the dissent explained that doctrinal limiting principles evolved to contain the liability of product suppliers because traditional notions of strict liability were ill-suited to a tort regime with a largely open-ended damages scheme and the reality that all product designs are capable of contributing to human injury. According to the dissent, the alternative of a judicially imposed mandatory insurance
Going forward, the dissent advocated moving beyond the doctrinal divide between strict liability and negligence principles that was articulated by Azzarello. Azzarello, according to the dissent, was not reasoned well in its time and has not withstood the test of time. Id. at 1236-37 (criticizing, inter alia, Azzarello Court’s reliance on Cronin,
The dissent recognized some force in the argument that the General Assembly is best positioned to alter the existing product liability schema. But, the dissent noted, because the Legislature had not occupied the arena, which remained in a state of substantial disrepair that had “taken our jurisprudence too far from the legitimate home of tort law in the concept of corrective justice,” action by the Court was permissible and necessary. “To the degree a distinct category of ‘strict’ product liability doctrine is necessary, at most, it always has been, and rationally should be, one of quasi-strict liability, tempered, in design and warning cases, with the legitimate involvement of notions of foreseeability and reasonableness within the purview of the fact finder.” Id. at 1240. The dissent then suggested filling the “substantial void” that would be left by disapproval of Azzarello with a prospective movement to the Third Restatement position.
Importantly, as an alternative, the dissent suggested that, while continuing the search for the perfect vehicle by which to devise a replacement strict liability scheme, the Court could “at least depart from Azzarello prospectively, thus clearing a path for our common pleas and intermediate appellate courts
In 2008, in parallel to the proceedings in Bugosh, the Court denied the request of the U.S. Court of Appeals for the Third Circuit for certification of a question of law relating to the application under Pennsylvania law of the intended use doctrine to prevent recovery in strict liability by innocent bystanders. See Berrier,
C. The Continuing Viability of Azzarello and Its Progeny
In this case, the question is posed of whether the rationale of Azzarello, and its progeny, should retain viability. Precedent, of course, is not infallible; if we are to ensure both the perception and the reality of justice, we must be willing to reexamine precedent if it is demonstrated that a prior rule does not serve, or no longer adequately serves, the interests of justice. See Ayala,
Here, the parties agree that the decision in Azzarello articulates governing legal concepts which fail to reflect the realities
As we have noted, Azzarello held that the phrase “unreasonably dangerous” is per se misleading to lay jurors and, as a result, the Court dictated 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, therefore, be provided with every element necessary to make it safe for (its intended) use.”
The Azzarello Court premised its broad holding on the assumption that the term “unreasonably dangerous” is misleading to jurors because it “tends to suggest considerations which are usually identified with the law of negligence.”
That the Azzarello Court keyed into a negligence-strict liability dichotomy may be explained by the Second Restatement’s explicit reference to negligence in the negative, ie., that compensation under Section 402A does not require proof of due care. The Court parsed the language of the Second Restatement, particularly the terms “defective condition” and “unreasonably dangerous,” for a precise meaning and the reporter’s intent in the utilization of those terms. See
Speaking in generalities, the Azzarello Court concluded that negligence-related rhetoric saddles a plaintiff in a strict liability case with an additional and unwarranted burden of proof in every case.
The Azzarello Court found support for its holding not in the Restatement itself, or in any source of Pennsylvania law, but in the decisions of the Supreme Court of California in Cronin,
It is also worth noting that Azzarello was distinguishable from Cronin on the facts. In Cronin, the defendant challenged on appeal the trial court’s decision to deny an instruction to the jury, which provided in pertinent part that, in addition to adducing proof of a defect, the plaintiff had the burden of proving “[t]hat the defective condition made it unreasonably dangerous to the user or consumer.”
Importantly, decisional law eschews the Cronin defendant’s application of Section 402A, and the causes of action in strict liability for products and for an abnormally dangerous activity are recognized as carrying distinct burdens for the plaintiff. By comparison, in Azzarello, the error of which the plaintiff complained on appeal was that speaking of reasonableness in a jury instruction issued in a case in which only negligence allegations were made against a cross-defendant/employer tended to mislead the jury as to the plaintiffs burden of proof
This case speaks volumes to the necessity of reading legal rules — especially broad rules — against their facts and the corollary that judicial pronouncements should employ due modesty. See Maloney,
Compounding the problem of extrapolating broad lessons from very particular circumstances, the Azzarello Court accomplished its goal of insulating juries from negligence concepts and rhetoric by: (1) holding that the determination “as to the risk of loss” is a decision to be made by the trial court rather than the jury; and (2) “approving” jury instructions in strict liability cases generally. The Court explained this decision by saying that: “While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is presented where a decision as to whether that condition justifies placing liability upon the supplier must be made.” The Court then suggested that it is within the trial court’s bailiwick to answer questions of law whose resolution “depends upon social policy” such as: “Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? Should adequate warnings of the dangerous propensities of an article insulate one who suffers injuries from those propensi
The Azzarello Court attributed the new standard of proof to the one justice lead opinion of Chief Justice Jones in Berkebile, which the Court quoted out of context. Additionally, the endorsed jury charge significantly altered the import of the Berkebile passage. Compare Berkebile,
The greater difficulty is that the Azzarello standard is impracticable. As an illustration of its new standard’s application, the Azzarello Court offered that a supplier is not an insurer of a product, although it is a guarantor; these terms of art, with no further explanation of their practical import, also mirrored the standard jury charge approved by Azzarello. The Court did not purport to articulate a departure from the Second Restatement formulation, nor did it discuss the reasoning for or implications of doing so. Yet, the Azzarello Court chose this iteration of the law to fill the legal void caused by its bright-line rule that any negligence rhetoric carries an undue risk of misleading lay jurors in strict liability cases.
Omega Flex, subscribing to existing criticism of this scheme, faults Azzarello for (1) removing from the jury the risk-utility calculus implicated in what Azzarello called “the risk of loss” determination; and (2) requiring the trial court to make the determination before the facts even are in evidence, premised merely upon the plaintiffs allegations and with all inferences benefitting the plaintiff. Although the argument is not explicitly made to this Court, the obvious suggestion is that the scheme burdens the defendant’s right to a fair jury trial. Setting aside any potential, but here unpreserved, due process or right to a jury claims, the unsupported assumptions and conclusory statements upon which Azzarello’s directives are built are problematic on their face.
First, the notion that a legal inquiry into “whether that condition justifies placing liability upon the supplier” (product is unreasonably dangerous) is, albeit distinguishable, entirely separable from a factual inquiry into the predicate “condition of a product” (defective condition of product) when determining whether to affix liability upon a supplier is incompatible with basic principles of strict liability. Thus, in a jurisdiction following the Second Restatement formulation of strict liability in tort, the critical inquiry in affixing liability is whether a product is “defective”; in the context of a strict liability claim,
Second, the practical reality, as exemplified by the matter before us, is that trial courts simply do not necessarily have the expertise to conduct the social policy inquiry into the risks and utilities of a plethora of products and to decide, as a matter of law, whether a product is unreasonably dangerous except perhaps in the most obvious of cases {e.g., where injury is caused by a knife), where a gate-keeper’s function is hardly necessary. In this case, Omega Flex moved for summary judgment before trial, a nonsuit after the close of the Tinchers’ case, and then renewed the motion for a nonsuit after both parties rested, asking the court to determine whether the TracPipe System was unreasonably dangerous. Although the trial court denied all motions, the court addressed the merits of the risk-utility calculus on the record only in the context of the motions for nonsuit. See N.T., 10/18/2010, at 514-15 (“The [trial cjourt had denied the [summary judgment] motion, presumably, although I don’t know for sure, because it thought this might be an issue of fact that needed to be heard at trial.”). Given the opportunity to rule on Omega Flex’s motions for nonsuit, the trial court reviewed the evidence introduced at trial before denying the motions, in addition to evidence deemed inadmissible at trial — ie., proof of a redesigned TracPipe System, marketed as “Counterstrike,” that was resistant to lightning strikes. See id. at 514-26 & 721-41; Tr. Ct. Op., 8/5/2011, at 11-20. This matter illustrates that the assumptions upon which the Azzarello Court assigned the
Subsequent application of Azzarello elevated the notion that negligence concepts create confusion in strict liability cases to a doctrinal imperative, whose merits were not examined to determine whether such a bright-line rule was consistent with reason in light of the considerations pertaining to the case. Beyond the merits of the narrow holdings in the several cases, the effect of the per se rule that negligence rhetoric and concepts were to be eliminated from strict liability law was to validate the suggestion that the cause of action, so shaped, was not viable, and to invite calls for reform. In 2009, the Third Circuit predicted that this Court would simply adopt the Third Restatement approach to the strict liability doctrine; this Court has not taken that decisional leap.
D. The Strict Product Liability Cause of Action in Pennsylvania
Overruling Azzarello leaves a gap, going forward, in our strict liability jurisprudence. The preferable solution may be to have the General Assembly address this arena of substantive law. But, so long as the possibility of comprehensive legislative reform remains unlikely or uncertain, this Court retains the authority and duty at common law to take necessary action to avoid injustice, uncertainty, delay, and the possibility of different standards and procedures being employed in different courtrooms throughout the Commonwealth. Accord Commonwealth v. Sanchez,
Strict liability in tort for product defects is a cause of action which implicates the social and economic policy of this Commonwealth. See Ash v. Continental Ins. Co.,
A broad reading of this policy statement suggests that liability would attach absolutely, once the consumer or user suffers harm; indeed, early proponents supported such an application. See, e.g., Escola v. Coca Cola Bottling Co. of Fresno,
To explain its proper boundaries post-Azzarello, we address the fundamental underpinnings of the cause of action: the duty imposed by law and what constitutes a breach of the duty; and we also advert to additional matters such as causation, damages, defenses, and effects on other doctrines where necessary.
“Tort actions lie for breaches of duties imposed by law as a matter of social policy____” Ash,
The duty in strict liability pertains to the duty of a manufacturer and of suppliers in the chain of distribution to the ultimate consumer. The Restatement offers a functional shorthand for the balancing of interests implicit in assessing the existence of the strict liability duty in tort between those in a consumer/user-supplier relationship. See Scampone,
[A] seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that public has a right to and does expect, in [the] case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that consumer of such products is entitled to the maximum of protection at the hands of someone, and proper persons to afford it are those who market the products.
Restatement (2d) of Torts § 402A cmt. c.
This reasoning explains the nature of the non-delegable duty articulated by the Second Restatement and recognized in Webb. Stated affirmatively, a person or entity engaged in the business of selling a product has a duty to make and/or market the product — which “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold” — free from “a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.” Accord Restatement (2d) of Torts § 402A(1).
2. Breach of Duty
Where a duty exists and, in the absence of a recognized immunity, the duty is breached, and the breach of the duty is causally connected to a compensable injury results,
In this context, the concept of defective condition is a legal term of art, which denotes neither its colloquial import nor a scientifically immutable fact. “The term ‘defect’ in design cases is ‘an epithet — an expression for the legal conclusion rather than a test for reaching that conclusion.’ ” Prentis,
3. The Standard of Proving “Defective Condition”
In the Context of a Design-Related Claim
Not least because of its colloquial use and attendant implications of a scientific level of certainty, courts across jurisdictions have struggled to articulate the legal notion of “defect” in a way that would account for such an alleged condition, encompassing the myriad products on the market, in a way that can effectively resonate with a jury. The difficulty persists particularly with respect to defects in design. See Bugosh,
[T]he term “defective” raises many difficulties. Its natural application would be limited to the situation in which something went wrong in the manufacturing process, so that the article was defective in the sense that the manufacturer had not intended it to be in that condition. To apply it also to the case in which a warning is not attached to the chattel or the design turns out to be a bad one or the product is likely to be injurious in its normal condition, is to use the term in a Pickwickian sense, with a special, esoteric meaning of its own. It is not without reason that some people, in writing about it, speak of the requirement of being “legally defective,” including the quotation marks. To have to define the term to the jury, with a meaning completely different from the one they would normally give to it, is to create the chance that they will be misled. To use it withoutdefining it to the jury is almost to ensure that they will be misled____Finally, the term “defective” gives an illusion of certainty by suggesting a word -with a purported specific meaning rather than a term connoting a standard involving the weighing of factors.
Phillips,
In addressing the disputed notion of “defective condition,” we start with the assumption that, as with any other tort relationship, the supplier and the consumer are protecting legitimate but conflicting interests; the purpose of the court at common law is to evaluate the interests and articulate the principles based upon where the line is drawn in individual cases. See Glenn v. Point Park Coll.,
In the products liability arena, the individual consumer or user of the product retains primary interests in the safe continued use of a product and, relatedly, in the cost of any injury caused by the product. See Coyle,
As they have been passed down to the present, the common law principles that delineate the strict liability cause of action, and the limits upon strict liability, reflect a balance of interests respecting what is socially or economically desirable. Accord Whitner v. Von Hintz,
Against this background, two standards have emerged, that purport to reflect the competing interests of consumers and sellers, upon which all American jurisdictions judge the ade
Consumer Expectations Standard
The consumer expectations test defines a “defective condition” as a condition, upon normal use, dangerous beyond the reasonable consumer’s contemplations. See, e.g., Welch,
The language of the consumer expectations test derives from the Second Restatement’s commentary on the principles designated to limit liability, i.e., “defective condition” and “unreasonably dangerous.” Restatement (2d) of Torts § 402A cmts. g & i. Several commentators have suggested that this test reflects the warranty law roots of strict liability in tort, and serves to vindicate significant interests central to the public policy justifying the strict liability cause of action in the first place:
Powerful reasons support protections of a consumer’s expectations of product safety that arise from the safety representations of a manufacturer or other seller, whether those representations be express or implied. When making safety “promises” in an effort to sell its products, a manufacturer seeks to convince potential buyers that its affirmations are both valuable and true. Safety information is valuable to users because it provides a “frame of reference” that permits a user to shift his or her limited cognitive and other resources away from self-protection toward the pursuit of other goals — which in turn shifts responsibility for protecting the user to the manufacturer. In this manner, true safety information adds value to the product by enhancing the user’s autonomy, for which value the consumer fairly pays a price. So, if the information is not true but false, the purchaser loses significant autonomy, as well as the benefit of the bargain. Since an important purpose of the law is to promote autonomy, and the equality of thebuyer to the seller as reflected in their deal, the law fairly may demand that the seller rectify the underlying falsity and resulting inequality in the exchange transaction if harm results.
Owen, Hornbook, at 303 (footnote omitted); compare Putman,
Application of the consumer expectations test in its purest form, however, has theoretical and practical limitations. First, products whose danger is obvious or within the ordinary consumer’s contemplation would be exempt from strict liability; some therefore have said that related consumer safety expectations regarding the presence of the danger are too low. See, e.g., Ahrens v. Ford Motor Co.,
[A product] should be strong enough to perform as the ordinary consumer expects____ The jury is supposed to determine the basically factual question of what reasonable consumers do expect from the product. Where the jury has no experiential basis for knowing this, the record must supply such a basis. In the absence of either common experience or evidence, any verdict would, in effect, be the jury’s opinion of how strong the product [s]hould be. Such an opinion by the jury would be formed without the benefit of data concerning the cost or feasibility of designing andbuilding stronger products. Without reference to relevant factual data, the jury has no special qualifications for deciding what is reasonable.
Id. at 809; see also Soule v. Gen. Motors Corp.,
The consumer expectations test, because of the “obvious defect” exception and vagueness concerns, has practical limitations in vindicating the basic public policy undergirding strict liability, i.e., that those who sell a product are held responsible for damage caused to a consumer despite the reasonable use of the product and that any product is, presumptively, subject to liability on a theory of strict liability premised upon this policy. See Miller,
Risk-Utility Standard
The difficulty related to vindicating the salient public policy in cases in which the alleged defective condition is premised upon either an obvious danger or a danger outside the ordinary consumer’s contemplation suggests that a different approach is necessary and appropriate for judging the reasonableness of danger, at least respecting some products. American jurisdictions, including Pennsylvania, apply a test balancing risks and utilities or, stated in economic terms, a cost-benefit analysis. See Owen, Hornbook, at § 5.7; Azzarello,
The risk-utility test offers courts an opportunity to analyze post hoc whether a manufacturer’s conduct in manufacturing or designing a product was reasonable, which obviously reflects the negligence roots of strict liability. See Blue v. Envt’l Eng’g, Inc.,
(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
(2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
(5) The user’s ability to avoid danger by the exercise of care in the use of the product.
(6) The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
Id. (quoting Wade,
Application of a risk-utility balancing test in its purest form likewise has theoretical and practical shortcomings. The goal and strength of a pure risk-utility test is to achieve efficiency or “to maximize the common good”; yet, this is also its perceived weakness. See Owen, Hornbook, at 316. For, while efficiency is certainly a salutary goal of the law, it is not its only purpose and, in some respects, it conflicts with bedrock moral intuitions regarding justice in determining proper compensation for injury to persons or property in individual cases. Compare id. at 318 (“manufacturer applying cost-benefit analysis to safety decision-making in good faith thereby necessari
Of course, several other causes of action in tort incorporate a risk-utility hindsight analysis: for example, negligence and strict liability for abnormally dangerous activities (ie., the use of product in manner and context where danger is substantial, unavoidable, and dissonant among neighboring uses, see Owen, Hornbook, at 328). Neither of those actions involves a pure application of the risk-utility calculus. Accord Nelson, 45 St. Louis U.L.J. at 767 (“In sum, it might be right to understand the Hand calculus as a device for articulating our moral intuitions rather than a device for superceding them.”); accord Blue,
Combined Tests
A number of jurisdictions have expressly or implicitly combined the consumer expectations and risk-utility standards. One approach is to state the two standards in the alternative; a plaintiffs injury is compensable whether either test is met. See, e.g., Barker,
A second approach is to incorporate the risk calculus into a test of consumer expectations or, vice versa, to incorporate consumer expectations into the risk-utility determination. See, e.g., Vautour,
Courts, moreover, have offered some variations on each of these approaches. In California, for example, the Barker court allocated to the supplier the burden to prove the adequacy of a product’s design under the “risk-benefit” standard (i.e., to disprove a plaintiffs prima facie case that a product is defective). The Court reasoned that most of the evidentiary matters which may be relevant in a typical case involve technical issues peculiarly within the knowledge of the manufacturer.
It is questionable, however, that the Soule court sought to foreclose strict liability claims premised upon a simple/complex classification, as the commentators have suggested. Such a standard begs — or shifts — the question of which designs are
As we have seen, the consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. It follows that where the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Use of expert testimony for that purpose would invade the jury’s function (see Evid.Code, § 801, subd. (a)), and would invite circumvention of the rule that the risks and benefits of a challenged design must be carefully balanced whenever the issue of design defect goes beyond the common experience of the product’s users.
By the same token, the jury may not be left free to find a violation of ordinary consumer expectations whenever it chooses. Unless the facts actually permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker.
The Third Restatement also offers a variation upon those tests primarily based upon a risk-utility determination by requiring proof of a reasonable alternative design. See Henderson, 83 Cornell L.Rev. at 884-87 (explaining standard of proof premised upon risk-utility balancing and proof of alternative design). The Third Restatement states, in illustrative part:
§ 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products
One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.
§ 2 Categories of Product Defect
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative designby the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
§ 3 Circumstantial Evidence Supporting Inference of Product Defect
It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.
Restatement (3d) of Torts: Products Liability §§ 1-3 (1998) (Liability Rules Applicable to Products Generally).
Section 1 of the Third Restatement articulates the general policy of strict liability. Sections 2 through 4, as well as Sections 6 and 7, address evidentiary questions. Notably, Section 2 identifies three types of defects and, at least with respect to “design” defect (subsection (b)), states a general rule, which defines a defect by reference to the relative risk-utility calculi for the allegedly defective product and an alternatively designed product. See also Henderson, 83 Cornell L.Rev. at 888-89 (alternative design is proof of technological feasibility, “an empirical factor for courts to consider in the normative process of risk-utility balancing”). Application of this general rule is, as a result, limited — and compensation is available — only for those products for which an alternative
4. The Appropriate Post-Azzarello Strict Liability Construct
a. The “Move” to the Third Restatement
Guided by this decisional and doctrinal universe, we address the parties’ competing arguments, which rely, to a great extent, upon jurisprudential and policy assertions. Initially, from a jurisprudential perspective, Omega Flex argues that the Third Restatement offers a clearer and more precise articulation of strict liability doctrine than does the Second Restatement, and adoption of the new formulation would return Pennsylvania into the mainstream in this arena. Omega Flex adds that a move to the Third Restatement is also the next logical step in the evolution of the law given that several Justices of this Court and members of the U.S. Court of Appeals for the Third Circuit, in Berrier, have articulated its merits and supported its application. The Tinchers respond that the Court has yet to “adopt” the Third Restatement and
Omega Flex also argues that the Third Restatement is the better articulation of the law, one specifically intended to address design defects and representing the mainstream view on the topic. According to Omega Flex, the present iteration of Pennsylvania law improperly lowers the burden of proof upon plaintiffs generally. Omega Flex posits that the Third Restatement, in contrast, is a “closely reasoned and balanced approach” that enhances the fairness and efficacy of the liability scheme. Appellant’s Brief at 48 (citing Phillips,
The Tinchers respond that the Third Restatement replaces the Second Restatement liability scheme with a negligence standard, which heightens the plaintiffs burden of proof and, as a result, “compromises the deeply-rooted social policy of protecting citizens through the imposition of strict liability under [the Second] Restatement.” Appellees’ Brief at 23.
In essential part, both parties ask this Court to engage questions of whether their preferred iteration of the Restatement embodies a good, better, or more desirable public policy. As we have explained, as an adjudicative body, this Court is not particularly well-suited to such a broad task. The appropriate question is which, if either, Restatement articulates the standard of proof in terms that effectuate the public policy of this Commonwealth.
For the reasons that follow, we conclude that “adoption” of the Third Restatement approach is problematic. For one thing, articulating 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 approach suggests a priori categorical exemptions for some products — such as novel products with no alternative design — but not others. The Connecticut Supreme Court suggested a similar insight: “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.” Potter,
Of course, the courts, legislatures, and the American Law Institute cannot foresee all the myriad products and circumstances that may arise. The alternative means of proving liability in special cases recognized in the Third Restatement are designed to alleviate some of the harsh results of the general rule which are currently foreseeable, suggesting some
Our reticence respecting the Third Restatement scheme is not a judgment on our part that, as a matter of policy, articulating categorical exemptions from strict liability is not a viable or desirable alternative. Courts, which address evidence and arguments in individual cases, are neither positioned, nor resourced, to make the kind of policy judgments required to arrive at an a priori decision as to which individual products, or categories and types of products, should be exempt. Neither courts, nor the American Law Institute for that matter, are in the business of articulating general principles tailored to anoint special “winners” and “losers” among those who engage in the same type of conduct. In our view, the question of “special tort-insulated status” for certain suppliers — for example, manufacturers of innovative products with no comparable alternative design-optimally “requires an assessment and balancing of policies best left to the General Assembly.” Scampone,
Immunity or exemption from liability is the exception to the general rule that an entity must meet the obligations it incurs in functioning.... [A]ny other cause of action at common law ... evolves through either directly applicable decisional law or by analogy, meaning that a defendant is not categorically exempt from liability simply because appellate decisional law has not specifically addressed a theory of liability in a particular context. Categorical exemptions from liability exist (following the dismantling by this Court of judicial immunities in the 1960s and 1970s) only where the General Assembly has acted to create explicit policy-based immunities, e.g., to protect the public purse. Where either no immunity exists, or the legislative branch created exceptions to an immunity legislatively conferred, the default general rule of possible liability operates.
Scampone,
The methodology employed by the reporters suggests additional potential weaknesses in the strict liability schemata of the Third Restatement that should caution courts against categorical pronouncements. Citing representative cases from several jurisdictions, the reporters offer that an alternative-design driven risk-utility general rule — with a special consumer expectations rule for cases in which the design defect is demonstrable — reflects the consensus among American jurisdictions as to the applicable liability construct in “classic design cases.” See Henderson, 83 Cornell L.Rev. at 887-901. Notably, while recognizing that “tort cases are particularly fact-sensitive,” the reporters purported to undertake an “empirical study of case law” to determine whether the alternative-design driven risk-utility general rule has support in the decisional law in a majority of jurisdictions. The reporters commented that: “[t]ort cases are particularly fact-sensitive and courts are consequently prone to pepper their decisions with dicta and footnotes to allow ‘wiggle room’ for cases that
That evidence of the existence and specifications of an alternative design is relevant and even highly probative to prove disputed issues in a products liability case, such as technological feasibility, cost, etc., is certainly true. That the more typical case implicates the type of products and circumstances in which evidence of an alternative product design is the most persuasive and efficient means of convincing the trier of fact may also be true. That offering evidence of an alternative product design may be the preferred legal strategy of the plaintiffs bar in certain cases — or may be a strategy the defense bar would like to impose on the plaintiffs bar in certain cases — again may also be true. But, while the reporters’ intuition that meritorious cases are premised upon certain types of evidence may have some general validity and support in practice (and may prove helpful to litigants in articulating claims and preparing defenses), the reporters’ commentary candidly betrays a problem — for the judiciary at least — of perspective. Principally, at least in a climate where suggestions are made along the lines of simply “adopting” or “moving to” a Restatement construct, it is our view that the reporters’ “precise and categorical” perspective insufficiently accounts for the imperatives of the courts’ more modest decisional role, by, for example, describing the reasoned and purposeful articulation of general principles as “dicta.”
[T]his Court’s decisions are read against the facts because “our decisional law generally develops incrementally, within the confines of the circumstances of cases as they come before the Court. For one thing, it is very difficult for courts to determine the range of factual circumstances to which a particular rule should apply in light of the often myriad possibilities.” [Maloney,984 A.2d at 489-90 .] Depending on the perspective of the Court, prospective or retrospective, this insight has separate but related implications. Prospectively, we endeavor to render determinations that “spring [] from the facts before us in th[e] appeal, while recognizing that our task is not simply to decide this case, but also to provide guidance upon the broader legal issue,” especially where the issue is one of first impression. “By necessity, this undertaking requires breadth of vision and consideration of both sides of the coin: the facts of a given case on one side, and the law, which will almost always be more conceptual, on the other.” [Thierfelder v. Wolfert,617 Pa. 295 ,52 A.3d 1251 , 1264 n. 9 (2012) ]. On the other hand, recognizing the necessary narrowness of the individual decisional task and the limitations of imperfect foresight, we aspire to embrace precision and avoid “the possibility that words or phrases or sentences may be taken out of context and treated as doctrines.” Maloney,984 A.2d at 490 (quoting Northwestern Nat’l Ins. Co. v. Maggio,976 F.2d 320 , 323 (7th Cir.1992)).
Scampone,
Insight into the reporters’ perspective on how the nature of decisions at common law informs their consensus effort to speak otherwise, ie., to “speak precisely and categorically” by classifying defect claims (ie., classic design cases, prescription drugs cases, etc.) and inserting evidentiary prerequisites into general and special rules applicable to the distinct categories to which they pertain, should serve as a reminder of comparative judicial modesty. The Third Restatement approach presumes too much certainty about the range of circumstances, factual or otherwise, to which the “general rule” articulated should apply.
Indeed, relying upon a confined universe of reported appellate cases to draw evidence-based (versus principle-based) rules is problematic as a general matter in our mature legal system. This is so because the small class of cases posing issues of sufficient consequence to result in reported, precedential decisions naturally tends to raise narrow unsettled issues and/or fact-sensitive applications, rather than to provide vehicles to illustrate those parts of the law that are so “well accepted” as to reflect emergent general rules. Of course, these cases may, by analogy and distinction, illuminate general principles at issue; but, purporting to limit the general rule to the facts of those cases is anathema to the common law. Stated otherwise, simply because in cases of factually-marginal applications courts have found evidence relating to alterna
Additionally, the Third Restatement construct, because unmoored from guidance upon the broader legal issue, would likely impede the principled development of the law in this arena. Although “[bjright lines and broad rules always offer a superficially enticing option,” they also risk elevating the lull of simplicity to doctrine. See, e.g., Scampone,
b. Prevailing Standard of Proof
Having overruled Azzarello and declined the invitation to fill the void by simply “adopting” the Third Restatement formulation, we proceed to address the appropriate standard of proof of a strict liability claim in Pennsylvania.
Initially, we note that, although Pennsylvania remains a Second Restatement jurisdiction, “adoption” of its principles into our common law is distinct in concept and application from the adoption of a statute by the General Assembly. Although the reporter’s words have intrinsic significance because their purpose is to explain the legal principle clearly, they are not entitled to the fidelity due a legislative body’s expression of policy, whose judgment and intent, wise or unwise, a court generally is obligated to effectuate, absent constitutional infirmity. The language of a restatement, as a result, is not necessarily susceptible to “statutory”-type construction or parsing. An effective and valuable restatement of the law offers instead a pithy articulation of a principle of law which, in many cases, including novel or difficult ones, represents a starting template for members of the judiciary, whose duty is then to employ an educated, candid, and common-sense approach to ensure dispensation of justice to the citizenry. The common law relies in individual cases upon clear iterations of the facts and skillful advocacy, and evolves in principle
With this qualification in mind, we explain: (1) that the strict liability cause of action sounds in tort; (2) that the notion of “defective condition unreasonably dangerous” is the normative principle of the strict liability cause of action, which reflects the standard of review or application of the tort, and its history; and (3) the appropriate interplay of principle and evidence.
It is important to remember that the action sounds in tort, ie. the cause involves breach of duties “imposed by law as a matter of social policy,” rather than contract, ie., the cause involves breach of duties “imposed by mutual consensus agreements between particular individuals.” Ash,
Decisional law and commentary from the 1960s that expressly endorsed a separate tort in strict liability illustrate that the cause of action streamlined access to compensation already available, at least in some cases, under either negligence or breach of warranty theories. In other cases, however, the substantive or procedural conventions appurtenant to theories of negligence (e.g., requirement to join all potential tortfeasors) and breach of warranty (e.g., requirement of privity), deemed at the time necessary to vindicate interests that underpinned the respective theories, failed to generate fair, coherent results and doctrine, in the face of evolving or newly-revealed circumstances (i.e., an increasingly vibrant market for products) and an evolving interest in protecting consumers. See, e.g., Webb,
The emergent single cause of action in tort — strict liability — retained, nevertheless, those aspects of negligence and breach of warranty liability theories from which it evolved. Stated otherwise, the theory of strict liability as it evolved overlaps in effect with the theories of negligence and breach of warranty. (Parenthetically, this places into context Section 402A(2), which states that the rule of strict liability “applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”). As we explained above, this is not an unusual development in the common law: for
The core insight, which the Supreme Court of California pioneered in the 1978 Barker decision, is that the standard of proof in a strict liability cause of action properly reflects this duality of purpose. The Barker Court thus articulated a standard of proof which stated the consumer expectations test and the risk-utility test in the alternative. The alternative test standard of proof is a “composite” that retains “the most workable features of each of the other tests.” Caterpillar,
One other insight completes the picture: a duality in the strict liability cause of action is evident in the expectation that all sellers in the distributive chain are legally responsible for the product in strict liability. Dean Prosser explained the expected results of applying strict liability:
Where the action is against the manufacturer of the product, an honest estimate might very well be that there is not one case in a hundred in which strict liability would result in recovery where negligence does not.... All this, however, is but half of the picture. There are other sellers than the manufacturer of the product. It will pass through the hands of a whole line of other dealers, and the plaintiff may have good reason to sue any or all of them.... It is here that negligence liability breaks down. The wholesaler, the jobber, and the retailer normally are simply not negligent. They are under no duty to test or inspect the chattel, and they do not do so; and when, as is usually the case today, it comes to them in a sealed container, examination becomes impossible without destroying marketability. No inference of negligence can arise against these sellers, and res ipsa loquitur is of no use at all.
Prosser,
Thus, in placing a product on the market, a manufacturer acts to design (and manufacture) the product and, along with other distributors, to sell the product, including making the product attractive for sale by making implicit representations of the product’s safety. See Knitz v. Minster Mach. Co.,
The dual analytical structure also explains the historical ebb and flow of consumer expectations/risk-utility and warranty/negligence rhetoric that pervades decisional law. Essentially, given that a term like “defective condition unreasonably dangerous” is not self-defining, courts have offered multiple definitions applicable in the several contexts in which a definitional issue has arisen, all effectuating the single policy that those who sell a product are held responsible for damages caused to a consumer by the reasonable use of the product. See, e.g., Miller,
Modern decisional law reflects that the focus of disputes — or at least those disputes making their way into the appellate courts — has increasingly been upon the negligence-derived risk-utility alternative formulation of the standard. The prominence of the legal issue in decisional law coincides with the advent of design defect claims, in which issues of proof tend to more complexity than where a manufacturing defect is in dispute. This development reflected the complex litigation calculus implicated in a strict liability claim premised upon this type of defect resulting from either lack of proof (for example in the case of known or foreseeable risks for which an available cure may or may not have been available at the time of design) or the relative deterrent inefficacy of a theory of liability for unknowable risks, short of exiting the market. Accord Prosser,
Finally, we remark upon evidentiary issues necessarily implicated by the standard of proof we have articulated. Derived from its negligence-warranty dichotomy, the strict liability cause of action theoretically permits compensation where harm results from risks that are known or foreseeable (although proof of either may be unavailable) — a circumstance similar to cases in which traditional negligence theory is implicated — and also where harm results from risks unknowable at the time of manufacture or sale — a circumstance similar to cases in which traditional implied warranty theory is
By comparison, the Tinchers’ claim was essentially premised upon the allegation that the risk of harm related to TracPipe’s thickness was both foreseeable and avoidable, as illustrated by the resistance to lightning of black iron pipe. These allegations, at least, bear the indicia of negligence. Indeed, in some respects this is the “typical” case, which explains both the insight that in design cases, the character of the product and the conduct of the manufacturer are largely inseparable, and the Third Restatement’s approach of requiring an alternative design as part of the standard of proof. See, e.g., Phillips,
But, the point that we have stressed repeatedly in this Opinion, is that courts do not try the “typical” products case exclusively and a principle of the common law must permit just application to myriad factual circumstances that are beyond our power to conceive. Circumstances like product diversity, general uncertainties inherent in the creative process, difficulties in recreating the design process, difficulties in the discovery process, to name just a few, may contribute to whether cases other than the typical case will generate a dispute and resulting decisional precedent. Nevertheless, in many circumstances, courts may be called upon to examine whether the rule has outrun the reason. Self-selection of cases (consumers and manufacturers internalizing the policy vindicated by the strict liability theory and modifying conduct as a result), variations in the quality and nuance in competing argumentation from counsel, including in the fashioning of suggested jury charges applicable to a particular case, courts’ articulation of relevant normative principles as they pertain to specific factual scenarios, and scholarly commentary will likely contribute to the continually developing decisional law.
The delivery of justice in this area requires a recognition and appreciation of the appropriate and significant roles played by advocates, trial judges, and the appellate judiciary. Particularly relevant here, we note that the area of strict liability law remains complex and our decision here does not purport to foresee and account for the myriad implications or potential pitfalls as yet unarticulated or unappreciated. Thus, at the trial level, and as with other legal concepts, “it is incumbent upon the parties, through their attorneys, to aid courts in narrowing issues and formulating appropriate instructions to guide juries in their factual determinations----” It is worth reiterating that “[b]right lines and broad rules always offer a superficially enticing option. However, we cannot elevate the lull of simplicity over the balancing of interests embodied by the principles underpinning [the jurisprudence of the relevant area of law].” Scampone, 57 A.3d at
5. Litigation Considerations Deriving from the New Strict Liability Construct
a. Judge and Jury; Jury Instructions
Having outlined these principles of strict liability law, we next offer the following guidance relating to the appropriate provinces of the judge and jury, and to adequate, targeted jury instructions in a strict liability case. As noted, the Azzarello Court held that, as a gauge for whether a product is unreasonably dangerous, the balancing of risks and utilities, when implicated, was an issue of law dependent upon social policy to be decided by the trial court. The jury would then simply resolve any “dispute as to the condition of a product,” as a separate question.
As is generally the case, the plaintiff is the master of the claim in the first instance. The immediate implication is that counsel must articulate the plaintiffs strict liability claim by alleging sufficient facts to make a prima facie case premised upon either a “consumer expectations” or “risk-utility” theory, or both. The calculus for a plaintiff and a plaintiffs advocate in choosing to pursue either theory or both will likely account, among other things, for the nature of the
One crucial aspect of the trial court’s role is, of course, the task of defining the strict liability legal universe within which a particular jury operates for purposes of discharging its function. See Commonwealth v. Graham,
In this case, in critical part, the trial court instructed the jury in accordance with the law as articulated in Azzarello and its progeny. See N.T., 10/19/2010, at 794-98. We have now overruled Azzarello and we have additionally explained foundational issues related to the strict liability cause of action in Pennsylvania — the public policy which the cause of action vindicates, the duty recognized by the public policy, and the standard and burden of proof necessary to prove breach that duty. Going forward, consistent with this decision, when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risks and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product. The credibility of witnesses and testimony offered, the weight of evidence relevant to the risk-utility calculus, and whether a party has met the burden to prove the elements of the strict liability cause of action are issues for the finder of fact, whether that finder of fact is judge or jury. A question of whether the party has met its burden of proof is properly “removed” — for example, via adjudication of a dispositive motion — “from the jury’s consideration only where it is clear that reasonable minds [cannot] differ on the issue.” Hamil v. Bashline,
Our decision today allows for application of standards of proof in the alternative. Obviously, other examples of such decisional paradigms exist. See, e.g., 18 Pa.C.S. § 2503 (describing offense of voluntary manslaughter as action under heat of passion or premised upon imperfect belief of self-defense). In charging the jury, the trial court’s objective is “to explain to the jury how it should approach its task and the factors it should consider in reaching its verdict.” Chambers,
It is essential for the bench and bar to recognize that the test we articulate today is not intended as a rigid formula to be offered to the jury in all situations. The alternate theories of proof contour the notion of “defective condition” in principled terms intended as comprehensive guidelines that are sufficiently malleable to account for product diversity and a variety of legal claims, products, and applications of theory. The crucial role of the trial court is to prepare a jury charge that explicates the meaning of “defective condition” within the boundaries of the law, ie., the alternative test standard, and the facts that pertain. Cf. Soule,
b. The Burden of Proof
Another consideration derived from existing precedent implicates the burden of proof in a strict liability case. As we have noted, California pioneered the alternate consumer expectations/risk-utility balancing test as a prevailing standard of proof in strict liability cases. See Barker,
Recently, in a case involving criminal law, this Court explained that: “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. While the risk of error in a particular adjudication does not vary depending on the standard of proof adopted, the burden allocates that risk between the parties.” Sanchez,
Applying similar criteria, the Barker court reasoned that placing the burden on the defendant was appropriate “[b]e-cause most of the evidentiary matters which may be relevant to the determination of the adequacy of a product’s design under the ‘risk-benefit’ standard e.g., the feasibility and cost of alternative designs are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer.” According to Barker, the shift in the burden of proof reflected the policy judgment that “one of the principal purposes behind the strict
The parties obviously have not briefed the question of burden-shifting in risk-utility cases — they had no reason to— and we need not decide it to resolve this appeal, nor is it apparent that it will matter upon remand. We note, however, that whatever may be the merit of the Barker court’s concerns, countervailing considerations may also be relevant. For example, it is consistent with the treatment of tort causes of action generally, and the notion that Pennsylvania does not presume a product to be defective until proven otherwise, to assign the burden of proof in a strict liability case to the plaintiff. Moreover, proving a negative is generally not desirable as a jurisprudential matter because of fairness concerns related to anticipating and rebutting allegations, and because of the encumbrances placed upon the judicial system by an open-ended approach to pleading and trying a case. Finally, evidence relevant to a risk-utility test, including the feasibility and cost of alternative designs, while involving technical matters, would seem to be within the knowledge of expert witnesses available to either plaintiff or defendant in many cases; and liberal discovery may also aid the plaintiff.
These interests, and others that we may not perceive, are implicated in answering the question of whether the burden should be on the plaintiff or on the defendant, generally or in particular cases involving a risk-utility theory. The ultimate answer to the question best awaits balancing in an appropriate case, specifically raising the question, with attendant briefing from parties.
c. Related Legal Issues
We recognize — and the bench and bar should recognize— that the decision to overrule Azzarello and articulate a standard of proof premised upon alternative tests in relation to claims of a product defective in design may have an impact upon other foundational issues regarding manufacturing or warning claims, and upon subsidiary issues constructed from
This Opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings. In light of our prior discussion, the difficulties that justify our restraint should be readily apparent. The common law regarding these related considerations should develop within the proper factual contexts against the background of targeted advocacy.
IY. Conclusion/Mandate
At the Court’s request, the parties briefed a question concerning whether adoption of the Third Restatement, if such a decision were to be made, would have retroactive or prospective effect. Having declined to “adopt” the Third Restatement, we need not reach the question of retroactive or prospective application of the ruling. Nevertheless, in light of the decision to overrule Azzarello, questions remain regarding whether Omega Flex should benefit from the application of our Opinion upon remand and, moreover, whether Omega Flex is entitled to a new trial. Here, Omega Flex preserved and presented its claim that Azzarello should be overruled to the trial court and on appeal; as a result, we hold that Omega Flex is entitled to the benefit of our decision in this regard. Whether Omega Flex is entitled to additional relief, including a new trial or judgment notwithstanding the verdict is not apparent upon the record before us. See Price,
For these reasons, we reverse in part the decision of the Superior Court in this matter, and remand to the trial court for further action upon post-trial motions. Upon remand, the trial court may direct the parties to file supplemental post-verdict motions or briefs articulating their positions regarding the proper disposition of the matter in light of our decision to overrule Azzarello and the further guidance articulated in this Opinion.
Jurisdiction relinquished.
Notes
. The Tinchers also named as defendants R & L Plumbing Contractors, Inc., Joseph Rosati Plumbing, Inc., and Joseph R. Rosati, Jr., individually and d/b/a Joseph Rosati Plumbing & Heating. Omega Flex asserted cross-claims against its codefendants. In October 2010, the Tinchers and Omega Flex voluntarily dismissed with prejudice all claims against these additional parties.
. The jury also returned a verdict in favor of Omega Flex on the negligence claim. There are no claims before this Court related to this part of the verdict.
. Omega Flex surmises that the conceptual separation and the related idea that the notion of "foreseeability” has no role in a strict liability case framed the parties’ dispute as one over whether exposure to lightning was an intended condition of using the TracPipe System. The Superior Court, according to Omega Flex, focused instead on whether the Tinchers could have avoided the harm rather than on the product, necessarily injecting negligence concepts into the strict liability inquiry. Premised upon these descriptions, Omega Flex emphasizes that this
. Omega Flex notes that this approach has the collateral effect of rendering laws, regulations, and industry standards irrelevant to the risk-utility inquiry, with deleterious and unpredictable consequences for plaintiffs and defendants. Omega Flex does not develop this assertion and, as a result, we do not address it in any detail.
. Initially, the Tinchers suggest that the ‘‘Court should decline consideration of the issue [on which we granted allowance of appeal], as it is not outcome determinative, and affirm the lower court ruling.” According to the Tinchers, the circumstances of this particular case required the Tinchers to offer evidence at trial that was sufficient to meet the requirements of the Second Restatement and Azzarello, as well as the Third Restatement. The Tinchers argue that, as a result, "[(liability for the defective design of the TracPipe product” — and the jury’s verdict — “is appropriate under either Restatement standard." The Tinchers claim that a judicial determination of the issue upon which we granted appeal would be an advisory opinion with no legal effect. Appellees’ Brief at 11-17.
The suggested approach is unpersuasive. The case was tried as it was tried, which was according to the Second Restatement and Azzarello. This Court granted allowance of appeal to address an issue of law, properly preserved and presented by Omega Flex, regarding the very manner in which the legal theories and options were apportioned
Moreover, even if sufficiency of the evidence were implicated and was disputed on appeal, this Court does not test the sufficiency of the evidence in the abstract: the Court would have to engage the manner in which the Tinchers articulated their claims, the theory of strict liability they pursued and, most importantly, the manner in which the trial court responded and actually instructed the jury on the strict liability claim. A trial court’s charge defines the legal universe in which a jury operates for the purposes of the verdict. See Commonwealth v. Graham,
. The Institute is a non-profit organization of 4000 lawyers, judges, and law professors, established to produce scholarly work to clarify, modernize, and otherwise improve the law. Among other tasks, the Institute drafts, discusses, revises, and publishes Restatements of the Law.
The parties here, and several commentators, have engaged in a debate over whether the Third Restatement of Torts, Products Liability, does indeed articulate the modern consensus in the area of strict liability. Some commentators have questioned whether the reporters of the Third Restatement favored an industry viewpoint in their task. Compare Henderson, 83 Cornell L.Rev. 867 (reporters defend process of drafting Third Restatement) with John F. Vargo, The Emperor’s New Clothes: The American Law Institute Adorns a "New Cloth” for Section 402A Products Liability Design Defects — A Survey of the States Reveals a Different Weave, 26 U. Mem. L.Rev. 493 (1996) (criticizing drafting process of Third Restatement, surveying law in fifty states, and cataloguing several approaches to strict liability). As an institution, this Court is not particularly equipped to resolve such disputes, and in light of our disposition, we find it unnecessary to engage the debate. But see, e.g., Halliday v. Sturm, Ruger & Co., Inc.,
. Consideration for whether the general principle has been accepted elsewhere reflects the understanding that the restatement purports to represent the majority view on the subject in the United States. See Adams, 33 Hofstra L.Rev. at 443-44. But, questions remain subject to dispute regarding the "essential nature of the modern Restatements” and whether uniformity among jurisdictions is necessary and wise. See generally Vargo, 26 U. Mem. L.Rev. at 515-36 (describing internal criticism of some that membership of American Law Institute drafting Third Restatement “[wa]s largely comprised of those who represent[ed] corporate interests” and who "fail[ed] to leave the client at the door”); and see Adams, 33 Hofstra L.Rev. at 443-44 (offering argument that "fit” for jurisdiction that shapes common law “is more important than uniformity” among American jurisdictions).
. David Hume said of the “partition of employments":
When every individual person labours a-part, and only for himself, his force is too small to execute any considerable work; his labour being employ'd in supplying all his different necessities, he never attains a perfection in any particular art; and as his force and success are not at all times equal, the least failure in either of these particulars must be attended with inevitable ruin and misery. Society provides a remedy for these three inconveniences. By the conjunction of forces, our power is augmented: By the partition of employments, our ability [injcreases: And by mutual succor we are less expos’d to fortune and accidents. 'Tis by this additional force, ability, and security, that society becomes advantageous.
David Hume, A Treatise of Human Nature (1739).
. William L. Prosser was the Dean of the School of Law at the University of California, Berkeley, from 1948 to 1961 and a senior authority in the publication of the case law book "Prosser, Wade and Schwartz’s Torts, Cases and Materials.”
. In Webb, Chief Justice Bell dissented, premised primarily upon the argument that the majority was overruling numerous decisions sub silentio in favor of a "new rule ... [that] so completely changes, not by legislative action but by judicial ukase, the law with respect to trespass actions for injuries resulting from non-inherently dangerous products that are either manufactured or bottled or sold by any vendor ... that in [the Chief Justice's] opinion it is not only very unfair but absolutely Unjustifiable in Justice or in Law.”
. In the interim, the Court addressed several corollary matters, without offering any insight into foundational matters of concern here. See, e.g., Ferraro v. Ford Motor Co.,
. In parallel developments, the Court dispensed with privity prerequisites for stating a breach of an implied warranty claim, by reference to the Second Restatement. The Kassab Court reasoned that clarity in the law and consistency of results, whether one labeled a complaint in assumpsit/warranty or trespass/strict liability, counseled abandoning vertical privity requirements. See Kassab,
. The jurisprudence of strict liability for failure to warn also developed in parallel. See, e.g., Sherk v. Daisy-Heddon,
. By comparison, doctrinal separation played a noticeably less prominent role in an earlier decision relating to whether contributory negligence was an available defense to a strict liability claim. In McCown v. International Harvester Co.,
. Also of note, in General Services, Justice Newman dissented in part, and Mr. Justice Baer joined Justice Newman’s expression. The dissent argued that the matter implicated not a misuse of the product by a user, as Phillips had, but a situation in which during an intended use by an intended user, the product was exposed to easily anticipated conditions. Justice Newman would have found the doctrine of strict liability applicable, on a theory akin to the “crashworthiness exception,” and would have denied the manufacturer’s request for a new trial. Id. at 619. Omega Flex argues that the Tinchers relied upon the theory described by the dissent and rejected by the General Services majority. But, the General Services majority noted that its "discussion [did] not address a situation in which a defect in the building materials is the cause of combustion occurring during their ordinary use.”
. In several recent cases, the Court resolved other claims tangential to fundamental concepts of strict liability. See Schmidt,
. Until Berrier, in diversity jurisdiction matters, the Third Circuit applied Pennsylvania law as articulated in Azzarello. The Third Circuit predicted that this Court would utilize a risk-utility analysis in making the Azzarello threshold determination of whether the risk of loss should be placed on the supplier. The Circuit recognized that this Court had not expressly approved of risk-utility approach in design defect matters; the Third Circuit relied instead upon Superior Court precedent and inquired into consistency with this Court’s pronouncements in existing decisional law. Surace v. Caterpillar, Inc.,
. Because the strict liability cause of action developed at common law, relevant policy justifications are derived from decisional law and scholarly commentary. As noted, the General Assembly has not spoken affirmatively in relation to the strict liability cause of action, although the Commonwealth has expressed its interest in protecting consumers in several arenas by statute. See, e.g., Act 387 of 1968, P.L. 1224 (reenacted as Act 260 of 1976, P.L. 1166) (the “Unfair Trade Practices and Consumer Protection Law”). The fair presumption arising from the General Assembly refraining for 50 years from acting otherwise is that the General Assembly has at least acquiesced in the existence of the common law strict liability cause of action. See Everhart,
. MacPherson, supra,
. But, even the development of the proper bounds of the duty of care was not without decades-long growing pains. See generally Martin v. Herzog,
. Our decision is limited to the context of a "design defect” claim by the facts of this matter, albeit the foundational principles upon which we touch may ultimately have broader implications by analogy.
. John W. Wade was dean of Vanderbilt University’s law school from 1952 to 1971, and a senior authority in the publication of the case law book "Prosser, Wade and Schwartz’s Torts, Cases and Materials.”
. The more diffuse industry-wide and public interests are represented by the several amici curiae filing briefs in this matter. The following entities have filed briefs: (1) in support of Omega Flex: Crane Company, the Atlantic Legal Foundation, the Pacific Legal Foundation, the Pennsylvania Business Council et al., the Product Liability Advisory Council, Inc., and Sherwin-Williams et al.; and (2) in support of the Tinchers: the Pennsylvania Association for Justice. The amici offer essentially the same legal and policy arguments as those parties in support of whom their briefs were filed. We note that, although amicus arguments and interests will not be dispositive as a general proposition, their representation often affects the scope of the principle articulated (for example, amicus’s interests often offer the court a broader perspective on the relevant issues to appropriately narrow the holding).
. Commentary by Dean Wade and Dean W. Page Keeton of the University of Texas offered related approaches to the standard of proof in design defect cases premised upon imputation of knowledge of risks when such knowledge was unavailable prior to marketing. Although offering invaluable insight, an imputation of knowledge approach has
. While the Second Restatement formulation of the principles governing the strict liability cause of action in tort may have proven substantially less than clear, the policy that formulation embodies has not been challenged here and has largely remained uncontroverted. Accord Henderson, 83 Cornell L.Rev. at 868 (premised upon survey of decisional law, noting rejection of “extreme positions that question the need to develop a general standard for defective design," such as absolute liability and no strict liability (“defer[ing] responsibility for design choices exclusively to the market”), as unnecessary "tilting at windmills”).
. But see Sherk,
[Vjicarious liability is a policy-based allocation of risk. Crowell v. City of Philadelphia,531 Pa. 400 ,613 A.2d 1178 , 1181 (1992). "Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form that, by reason of some relation existingbetween A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.” Id. (quoting Prosser and Keeton on Torts § 69, at 499 (5th ed.1984)). Once the requisite relationship (i.e., employment, agency) is demonstrated, "the innocent victim has recourse against the principal,” even if "the ultimately responsible agent is unavailable or lacks the ability to pay.” Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214 ,560 A.2d 1380 , 1383 (1989); accord Crowell,613 A.2d at 1182 (vicarious liability is policy response to 'specific need’ of how to fully compensate victim).
Scampone,
. In 1960, Dean Prosser also explained the systemic efficiency benefits deriving from a single cause of action in strict liability. According to Dean Prosser:
It [wa]s already possible to enforce strict liability by resort to a series of actions, in which the retailer is first held liable on a warranty to his purchaser, and indemnity on a warranty is then sought successively from other suppliers, until the manufacturer finally pays the damages, with the added costs of repeated litigation. This is an expensive, time-consuming, and wasteful process, and it may be interrupted by insolvency, lack of jurisdiction, disclaimers, or the statute of limitations, anywhere along the line. What is needed is a blanket rule which makes any supplier in the chain liable directly to the ultimate user, and so short-circuits the whole unwieldy process. This is in the interest, not only of the consumer, but of the courts, and even on occasion of the suppliers themselves.
. Parenthetically, the number of manufacturing claims is significantly lower than that of design defect claims. Dean Prosser explained: "It is
. For example, in Soule, the trial court gave the standard two-prong Barker instruction for design defect without modification, over the defendant-manufacturer’s objection. The defendant argued that, given the nature of the product, instructing the jury on the consumer expectations standard was error. On appeal, the Supreme Court of California agreed:
[T]he jury may not be left free to find a violation of ordinary consumer expectations whenever it chooses. Unless the facts actually permit an inference that the product's performance did not meet the minimum safety expectations of its ordinary users, the jury must engage in the balancing of risks and benefits required by the second prong of Barker. Accordingly, as Barker indicated, instructions are misleading and incorrect if they allow a jury to avoid this risk-benefit analysis in a case where it is required. Instructions based on the ordinary consumer expectations prong of Barker are not appropriate where, as a matter of law, the evidence would not support a jury verdict on that theory. Whenever that is so, the jury must be instructed solely on the alternative risk-benefit theory of design defect announced in Barker.
Concurrence Opinion
concurring and dissenting.
I join the majority in the long overdue overruling of Azzarello v. Black Brothers Co.,
Any adoption of the Third Restatement approach, of course, would be subject to the prerogatives of the General Assembly, which, in my view, bears the primary responsibility — and is in a far superior position — to make the social policy judgments essential to substantive lawmaking. See, e.g., Seebold v. Prison Health Servs., Inc.,
. I am particularly uncomfortable with the integration into Pennsylvania product liability jurisprudence of an alternative, freestanding, skeletal consumer-expectations test, particularly in the absence of essential advocacy to support a decision of this magnitude. Indeed, given the more limited manner in which the present appeal has been framed, I imagine this development will be met with substantial surprise in many quarters, to say the least.