*1 money exactly or We do not know what property.... jury important. evidence the considered (citation omitted). at *6 Lowry, WL paid going Petitioner now seeks back and to be for- pay, while performing any judicial Again, ward-even not duties. his does not mean that did acquittal felony charges Sullivan bench, underlying commit misconduct on and the of the instant me temerity request: pay pay “award back corroborates, me forward while I do going nothing” my least, mind at that there is a serious of whether he is question fit to be a judge. circumstances, these my preference
Under is to allow the first, Board Judicial Conduct CJD to act either to 9, 2013, vacate the suspension interim order dated August view, pursue disciplinary against action In it petitioner. my Bruno, is consistent with the reasoning supra, In re permit petitioner and the Board the opportunity litigate before the any CJD the first instance of whether questions petitioner is entitled to reinstatement of pay, resumption of duties, judicial back-pay. decision to act Court’s upon petitioner’s application without the benefit of the Board’s is, view, perspective my respectful premature.
104A.3d328 Tincher, Appellees Terrence D. TINCHER and Judith R. v. FLEX, INC., Appellant.
OMEGA Supreme Pennsylvania. Court of
Argued Oct. 2013. DecidedNov. 2014. *10 Ellsworth, Esq., Jr., Laura E. Esq., Leon F. DeJulius Jr., Moellenberg H. Gleason, Esq., Charles Caitlin Margaret Co., U.S. for Sherwin-Williams Day, Pittsburgh, Esq., Jones Procter & Co., Gamble Corp., Carbon Corp., Calgon Steel curiae. amicus Camp- Wang, Esq., Ann Katherine Conroy, Esq., J.
William P.C., Christopher Berwyn, Conroy, & Campbell Edwards bell Flex, Inc. Ellis, LLP, Omega for Landau, Kirkland & Esq., LLP, Philadelphia, Beck, Reed Smith Esq., Michael James Inc., curiae. Council, amicus Advisory Liability Product for Lavin, Ricci, Esq., Finarelli, William Jude Esq., Thomas J. for PA Defense O’Neil, Ricci, Philadelphia, DiSipio, Cedrone & Institute, amicus curiae. Jakubik, (The), Esq.,
Mark Edward Jakubik Law Firm Foundation, Pacific Philadelphia, Legal for amicus curiae. Kaufman, Foundation, Martin for Esq., Legal S. Atlantic amicus curiae. O’Neil, Lavin, O’Neil, Ricci,
Joseph Esq., Edward Cedrone & for DiSipio, Philadelphia, International Association of De- Counsel, fense amicus curiae. Ross, LLP,
Michael Esq., Pittsburgh, James K&L Gates for Co., Crane amicus curiae. Bacon, L.L.P., Wajert, Hardy
Sean Peter & Esq., Shook al., Philadelphia, Pennsylvania for Council et Business amicus curiae. Utke, O’Connor,
Mark Elliot Esq., Philadelphia, Cozen for Terrence D. Tincher Judith R. Tincher. Rieders,
Clifford Alan Pamela L. Esq., Shipman, Esq., Rieders, Travis, Waters, Harris, Williamsport, Humphrey, Dohrmann, Pennsylvania Waffenschmidt & for Association *11 Justice, amicus curiae. C.J.,
CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
OPINION Chief Justice CASTILLE. Flex, Inc.,
Omega appeals the decision of the Superior Court to affirm judgment the on the verdict in entered favor (the “Tinchers”) of Terrence D. and Tincher Judith R. Tincher by the County Pleas, Chester Court of Common Civil Division. We reverse the Court in Superior part, upon decision reason- ing below, different from that by articulated the courts and we remand to the trial court for further upon action Flex’s Omega motions, post-trial consistent with the in principles elucidated Opinion. hold that: We 1. This Court’s decision in v. Azzarello Black Brothers (Pa.1978) 547], Company Pa. hereby [480 A.2d 1020 is overruled. the law of Pennsylvania,
2. the common Having considered action, the liability the cause of provenance product liability the strict cause policy and the which interests utilized vindicates, and of proof alternative standards action a that a jurisdictions, plaintiff pursuing we conclude in sister that prove tort must theory a of strict upon cause may in a condition.” The plaintiff is “defective product the (1) the showing either that prove defective condition or unacceptable average and to the danger is unknowable (2) consumer, would person a reasonable ordinary of harm probability seriousness conclude or costs of product outweigh burden caused production persua- The burden of taking precautions. a of the evidence. by preponderance sion is in a is defective condition 3. Whether question ordinarily of fact submitted determination fact; jury’s is removed from question the finder of clear that minds only where it is reasonable consideration Thus, on trial court not differ the issue. could law, issues of determining to its traditional role relegated motions, for the the law dispositive articulating on e.g., the facts legal theory, governing jury, premised advocacy by parties. trial and relevant adduced here, adopt extent we decline to 4. To the relevant (Third) §§ 1 et Liability of Torts: Products Restatement certain contained appreciation principles albeit seq., informed our consideration certainly that Restatement has Pennsylvania approach to strict proper paradigm. the post-Azzarello Background
I. fire 20,2007, neighbors reported a.m. on Around 2:30 June *12 Downingtown, the the in that had at home of Tinchers erupted of a two- The was the central unit Pennsylvania. residence 1998-99, in the Tinchers purchased by built and story triplex no extinguished persons in fire was and eventually 2005. The that a investigators harmed. concluded Subsequently, were pune- near the Tinchers’ home caused small lightning strike (“CSST”) ture in the steel corrugated tubing stainless trans- gas natural to a located on the first floor of porting fireplace the residence. The CSST installed the Tinchers’ home was by Omega part and Flex gas manufactured sold as system TracPipe System. marketed as the transportations melting The heat of the caused attending CSST natural lightning ignited gas strike and fueled a fire to have over an fire estimated burned for hour. The caused to the Tinchers’ significant damage home and belongings. fire, After the the Tinchers the incident reported to their insurer, (“USAA”). United Services Automobile Association compensated USAA the Tinchers for their toup loss the limit an assignment of their and received policy claims. The Tinchers suffered an out-of-pocket additional loss because of their loss portion claimed exceeded the limits of the policy. USAA January 2008,
In complaint the Tinchers filed a against Omega Flex County Chester Court of Common Pleas.1 USAA prosecuted the claims the name of the Tinchers to obtain reimbursement of the insurance proceeds payout, but the Tinchers retained an interest to recover litigation exceeding losses their insurance The coverage. Tinchers premised upon asserted claims strict theories of liability, negligence, and breach warranty.
In part, relevant the Tinchers’ complaint relies theory of articulated in 402A Section Torts, Second Restatement of but as followed and construed in ¶¶ 3/18/2008, Pennsylvania. Complaint, 19-25 Re- (citing 402A). § (2d) alleged Tinchers statement Torts Omega damages Flex is liable for to their home caused by the on placement the market and sale of the TracPipe System. Tinchers, to the According CSST incorporated into the System defective, TracPipe and dangerous unreasonably Contractors, Plumbing 1. The Tinchers also named as defendants R & L Inc., Inc., Rosati, Jr., Joseph Plumbing, Rosati Joseph R. individu- ally Joseph Plumbing Heating. Omega Rosati & Flex asserted d/b/a against cross-claims its codefendants. In October Tinchers Omega voluntarily prejudice Flex against dismissed with all claims parties. these additional *13 users, too thin the because its walls are to withstand intended requested compensatory Tinchers lightning. effects of The interest, fees, Flex litigation. Omega and costs of damages, The allegations. the Tinchers’ complaint denying answered the Nagle, assigned to the Honorable Ronald C. matter was Pleas. the Court Judge County Senior of Chester of Common and of discovery filing disposi- with the parties proceeded The motions, the denied. tive which trial court 2010, trial, of Flex filed anticipation Omega In September 1 and application a motion in limine the of Sections requesting to Third of Torts the Tinchers’ of the Restatement instructions Omega proposed jury claim. Flex also Third provisions fact with the of the findings and of consistent Flex’s motion opposed Omega Tinchers Restatement. findings of jury limine and offered instructions proposed Azzarello, with the Restatement and fact consistent Second Flex’s motion supra. Omega The trial court did not resolve 8/12/2011, Testimony, at 17-22. before trial. See Notes of trial before proceeded In the parties October trial, the regarding the offered evidence jury. At Tinchers the into subsequent investigation events of June the Tinchers, fire, sustained cause of the losses The parties the insurance claim. process adjusting USAA’s fire, although had caused the generally agreed lightning as to of events or the cause disagreed sequence they area The Tinchers offered ignition fireplace. in the of the charge an electrical evidence that transferred lightning home, electri- TracPipe parts including System; created electrical sought cal then different ground current in the of the structure. components various metal charges energy testified that a flow expert The Tinchers’ witnesses metal differently TracPipe and another charged between a arc, and the an electrical home caused component the natu- ignited heat the CSST and punctured accompanying Tinch- According ral to the gas transported. CSST corrugated stainless steel perforation ers’ in the expert, was from the Tinchers’ home “characteristic tubing strike, By Omega not else.” lightning anything comparison, lightning Flex’s witnesses testified that measured near the on the of the fire sufficient night carry Tinchers’ home did witnesses, energy puncture According the CSST. to these house, once vol- lightning lightning-related high entered tages although energy with low down the insulation — —broke and, if interrupt on electrical wires the circuit breakers did not *14 current, the the electrical current the fire. Omega caused responded Flex also that the conditions of the Tinchers’ home after the fire and after the which investigation, during part location, original the evidence had been removed from its it impossible theory. Finally, made to confirm the Tinchers’ Flex offered evidence that an had been Omega attempt made to TracPipe System bond the to the cold water at the pipe which, successful, Tinchers’ residence if have prevented would the electrical the resulting occurring. arc—and fire—from that, fire, Witnesses testified after the a bonding clamp had been found connected to the CSST and near but disconnected from the cold water pipe. parties competing offered testimony as to whether the clamp had been attached to the cold water pipe before the fire.
Relevant to their liability theory, the Tinchers offered testimony regarding a defect in the from TracPipe experts electrical engineering and electrical arc metallurgy, physics, and material science—Mr. Mark and Dr. Goodson Thomas Eager, These respectively. experts opined that is CSST inherently defective because its wall is of an inch thick— 1/100 result, the width of four paper and, sheets of as a — probability is “very high,” “close to a hundred that a percent,” lightning-generated current will perforate By comparison, it. an alternative gas natural conduit pipe made black iron ten times thicker for a half-inch diameter pipe similar to the present CSST in the Tincher According home. to the wit- nesses, CSST withstands the transfer of ten energy times less and, than black iron pipe given same the amount energy, of time puncture to required CSST amount of time 1/100 puncture to black pipe. iron estimated that an Experts electric arc is fifty thousand to a million times more likely to perforate CSST than black iron pipe. by the energy that acknowledged
The witnesses transferred cannot is difficult any lightning predict strike particular lab, in a that the was probability be but concluded replicated within would occurrences high punctured that CSST be results, according current. Such expected ranges electrical with experts, predictable Tinchers’ are observable and Neverthe- Century. Nineteenth equations developed noted Flex had not conducted less, experts Omega strikes, TracPipe’s ability lightning to withstand testing on necessary and testing lightning for resistance to was although evidence, Moreover, to the Tinchers’ according available. with compliance Flex installation failed direct Omega guide fire codes. protection lightning-related Flex Omega testified The Tinchers’ witnesses also system by plugging grounding TracPipe recommended into outlets. any gas-fueled three-prong natural appliances Tinchers’ attempted at the grounding, although Additional instructions residence, was not the installation required TracPipe to whom provided by Omega professionals Flex to *15 homes. was marketed and sold for installation consumers’ Moreover, bonding Tinchers’ the according experts, the System at one location would be insufficient TracPipe To be effec- lightning. from effects of protect the CSST every tive, testified, bonding required would be the witnesses feet, ten to be an experts impractical which deemed would be to encase unfeasible solution. The alternative N.T., 10/13/2010, 291-98, 357- iron at pipe. in black See CSST 420. nonsuit, rested, Flex for a Omega
After the Tinchers moved Azzarello; Restatement and citing the standard Second had denied Flex that the trial court Omega expressly assumed 10/18/2010, N.T., Restatement. apply its Third request trial for a nonsuit. The court denied motion 514-16. Id, at 525-26. of its Omega testimony Flex introduced the
Subsequently, System in the relating TracPipe own to the defect experts The witnesses were Dr. James Tinchers. alleged engineering and mechanical Dydo, expert metallurgy an with a focus on fuel gas piping, and Dr. Michael Stringfellow, expert an with a focus on physics lightning protec- and the tion of lightning. structures from The Flex Omega experts that the opined TraePipe System is not defective or unreason- ably dangerous. to the According experts, defense CSST is a technology with significant advantages, including resistance to corrosion, shifts, structural and mechanical ease ruptures; installation, relocation, retrofitting; joints and fewer ac- companied by decreased to natural susceptibility gas leaks at any required joints. The experts noted that these net benefits are marked advantages over black iron from pipe arising flexibility thickened, of CSST. If CSST’s walls were according to the there experts, would be little practical difference be- tween and black pipe. CSST iron
The defense witnesses also testified that the TraePipe Sys- tem meets and exceeds all standards for minimum perform- ance governing CSST developed by American National Institute, Standards a clearinghouse for trade groups. Addi- tionally, stated, the witnesses 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 concern, as a lightning possible safety that it suggesting was unnecessary Flex Omega to have foreseen any danger from lightning.
Finally, Omega Flex’s experts agreed that the installation instructions for the TraePipe System did not require installa- tion of a bonding clamp. noted, however, witnesses also that a clamp disconnected was consistent Omega with Flex’s assessment of the circumstances surrounding the fire. The experts offered that the to bond the attempt System TraePipe to the cold water pipe was inadequate and that a successful attempt would have likely averted the resulting fire. Id. at *16 657-712. defense,
After resting its Omega Flex offered a motion for a directed verdict premised upon Second Restatement principles and Azzarello. Flex Omega that argued proof of the overall risks and benefits of the TraePipe System, and of reason- any that not unrea- designs, TraePipe showed was able alternative for a trial court denied the motion dangerous. The sonably arguments then offered closing verdict. Both parties directed the the case. Subsequently, on their theories of respective Tinchers’ jury respect instructed the with to the trial court claim as liability strict follows: in this that there contention of case is [Tinchers]
The state a in this To product, TraePipe. is a defect claim, liability, it’s essentially strict products first, product must that the was defective. prove, plaintiff Second, hands of that if existed when it left the [sic] a defect defendant, it was is, that left the which process by three, that plant. at the And produced defendant's] caused the harm. defect is it is not safe for its intended product
A defective when is, any lacking That it control purpose. suppliers’ leaves it safe for its intended use. necessary element make defect, is whether or not there is a not whether inquiry In there negligent. conduct was defendant’s] It was the simply, is no consideration of is negligence. it defective. defective wasn’t product of a design. product Defective The manufacturer] we talk about strict guarantor safety. of its When really element every must be with liability, product provided make it for its intended use. And without necessary to safe If it unsafe for intended use. conditions its any make[ ] case, at the TraePipe, that the in this you product find control, elements any left the lacked defendant’s] time it use, make or contained necessary to it safe for its intended use, its it unsafe for intended any condition made safer an more more practical design, there was alternative and the then the is considered defective design, product [sic] harm, if that defect you is liable for the find defendant harm[,] the harm was the cause of proximate caused the plaintiffs.
Now, not defective ladies and gentlemen, injured using it is be while because merely possible *17 product. imposition of strict is not liability meant to transform manufacturers into insurers of all injuries that are potentially possible and at the product. [sic] hands of a A manufacturer of a product may guarantor be a of the productos] safety, but under no circumstances is the manu- facturer an insurer of the safety 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 safer, to make an already product safe or to utilize the safest of all designs. The manufacturer is not required to produce design product incorporating only features representing safety ultimate in design. To prevail on a defect design theory, plaintiffs must prove that the product is defective and that at the time it left the control of the manufacturer it lacked the necessary feature use, to make it safe for its intended or contained a feature that made it unsafe for its intended use. words,
In other you not may find that the TracPipe product defective merely because it have could been made Instead, safer. 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 loss. [Tinchers’] before,
As I said I you instruct order to establish strict liability for putting defective product in the commerce, stream of the plaintiffs are not required prove to that the defendant negligent. was Negligence and strict liability are two separate concepts. I’ll to get negligence a second. no And consideration should be given negli- gence when considering strict for a defective prod- uct. It’s two different I concepts. understand it’s not the easiest thing keep in mind. I’m trying to point out there is a difference between 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, user, an just user, intended any but an intended] user of that product. if was man- gentlemen, ladies
Obviously, and, testimony the—with all of the obviously, ufactured during design were steps this case and the taken it Flex knew was manufacturing process, Omega going natural carry gas[,] for its intended purposes, to be used it guaranteed gas, supplying pipe manufacturer use. That is what strict would safe for its intend[ed] be *18 if to something that is intended be safe liability means. So not, to it it’s proven for the intended be made of is and use the not, proof plaintiff, it’s and that has to come from that the what happens, and that defect is cause of proximate that, in this case then that testimony there is a lot of about to liability anything what means. It does not have why That is aspect do with that the case. negligence loss, is, if is a you the risk there or if find there defect the liability, placed upon supplier in strict the risk of loss is that that in this stream of product or manufacturer put injuries resulting risk for from the commerce. The of loss person warned the who [sic] defective best it, the because are ones that principally they manufactured it in and it would work for the stream commerce said put purpose. its intended
N.T., 10/19/2010, trial court at the de- Additionally, 794-98. cause,” with jury respect fined and instructed the “proximate Id. at After the trial court concluded its damages. to 802-07. law, noted for the Omega instructions on the counsel Flex based upon Flex instructions Omega proposed record that had liability claim respect Third with the strict the Restatement it proposed instructions any Second Restatement responded were offered in the alternative. trial court it in accordance with jury had declined instruct Pennsylvania appellate Third Restatement because principles courts, adopted had not Supreme especially, and the Court Third Restatement. jury returned to the courtroom with
Subsequently, here, the court answered the questions. several Relevant trial for the terms “defect” and “de- jury by definitions repeating original as offered in the instructions. design” fective returned a verdict in jury On October favor claim, the products the Tinchers on and awarded $958,895.85. damages totaling were compensatory Damages (additional $406,532.90(building); divided as follows: $988.83 structures); $503,945.58 (contents); property (alternate $47,428.64 The trial court living expenses). added $69,336.05 delay damages, judgment and entered on the verdict.2 In Omega November Flex filed motion for post-trial supporting requesting, among relief and brief other things, premised a new trial court errors in denying trial its in failing jury motion in limine and to instruct the on the law as in the Additionally, articulated Third Restatement. Omega Flex on sought judgment notwithstanding verdict evidence at theory that the introduced trial was insuffi- cient to of strict under prove a claim Third Restate- ment principles. motion for
Relating
judgment
notwithstanding
verdict, Omega
argued
Flex
that the evidence
introduced
trial was insufficient as a matter of law to prove a strict
liability claim
*19
under
Third Restatement.
In overlapping
error,
claims of
Omega Flex also asserted that the Tinchers
had not met
proof
their burden of
under the
“fire-
so-called
doctrine, which,
worthiness”
Flex
Omega
explained
as
in its
brief,
supporting
a
approach
was Third-Restatement-like
sim
ilar to the more familiar “crashworthiness” exception to the
Second
in
Appellant’s
Restatement.
Support
Brief
of Motion
3/3/2011,
for Post-Trial Relief
(citing
9-27
Pa. Dep’t Gen.
of
Co.,
Serves. v.
Prods.
Pa.
U.S. Mineral
587
In the trial court that a “fireworthiness” explained doctrine, extension the “crashworthiness” instruetion-as an than the usual requiring rigorous proof “a more standard claim,” either, was not be- appropriate Restatement] [Second cause had been for its intended use. TraePipe employed court, According to the trial the Tinchers’ case did relate fire, during how the as General TraePipe performed Services; rather, they pursued in the was TraePipe defect injuries. The trial cause of the Tinchers’ court proximate the jury properly held that the trial court rather than decided design, of a alternative and that question feasible their proof. Tinchers had carried burden of briefing to the parties offered their arguments post- on issues similar to those raised Superior Court 1925(b) Relating to the trial motion and Rule statement. Restatement, Omega Third Flex that decisions acknowledged court, but case of this Court offered this bound lower revisit strict would be a vehicle for Court fitting Flex, the Third According Omega standards. Restatement expressly incorporates foreseeability standards into the analysis, requires a plaintiff to establish the existence of a reasonable alternative design for court, the factfinder. The trial Omega argued, Flex following law, existing decisional instructed jury inadequately, not- ing in particular that the Tinchers “required were not to prove the existence of a feasible design alternative to prevail on *22 strict-liability [their] claim.” Omega Flex claimed that trial court erred in denying its motion for judgment notwith- standing the verdict premised error in upon instructing jury, and requested a new trial on this basis. Appellant’s Super. Ct. Brief at 33-36. The Tinchers responded that Omega Flex’s arguments relating to the Third Restatement have no legal support. Tinchers, According the Second Restatement and its derivative decisional law remains the law in Pennsylvania, rejected and this Court moving to the Third occasions, Restatement on several including after the U.S. Court of Appeals for the Third Circuit predicted adoption. its
In September 2012, the Superior Court affirmed the judg- ment, among things other holding that the trial court did not err in declining adopt the Third Restatement. The court also rejected Omega Flex’s claim of premised error upon the theory, fireworthiness 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 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 Restatement, Second following this Court’s then-recent deci- sion in Beard Johnson, Inc., v. Johnson & 615 Pa. 41 A.3d (2012). 823 The panel explained that the trial court did not err in denying Omega Flex’s request proceed in accordance with the Third Restatement because lower courts have no authority to disapprove Supreme precedent. Court which appeal, for allowance petition filed a Omega Flex issue: following limited to the granted, this Court analy- the strict should replace this Court Whether with the Restatement 402A of the Second sis of Section Restatement. of the Third analysis question to brief the addition, directed were parties In Restatement, the Third whether, adopt were to if the Court retroactively. applied prospectively should be holding (2013) Flex, Inc., 395, A.3d 626 Pa. Omega v. Tincher America, Inc., curiam) I. North Bugosh v. U. (citing (per (2009) J., dissenting, (Saylor, 1242-43 971 A.2d Pa. C.J.)). Castille, joined Arguments
II. question answer to the an affirmative suggests Flex Omega that this Court should argues further on accepted appeal, Azzarello, and abandon Second the decision disapprove in Penn- of strict of the law articulation Restatement Restatement. in the Third the approach in favor of sylvania but decided wrongly Azzarello was Tinchers agree *23 liability of retaining principles otherwise in favor of argue Restatement. of the Second Pennsylvania recognized by noting that begins Flex
Omega Webb v. (citing Brief at in 1966. liability Appellant’s Zern, (2d) 422 Pa. 220 A.2d (1966); Restatement Flex, Re 402A). the Second Omega to According § Torts de manufacturing allegations on was “focused” statement latter not address the defects and did design than fects rather recounts, Nevertheless, Flex Omega if all.” “meaningfully, the Second applied have jurisdictions other Pennsylvania and Flex Omega defects. design to articulation Restatement Restatement of the Second early applications states that to determine analysis for a cost-benefit called Pennsylvania or unreason was defective designed, as product, whether the main in the squarely “was approach dangerous; ably But, according tort law.” of American stream land legal altered the Flex, in Azzarello the decision Omega divorcing prod- by Pennsylvania liability scape products ucts strict from liability principles negligence, by directing the trial court—rather than the make the jury —to determination, only a lower burden proof, regarding the defectiveness/dangerousness product.
Omega Flex that argues theoretically Azzarello is unsound and unworkable in practice, suggesting that we should disap- prove Initially, Omega decision. Flex that a claims core principle familiar in negligence law—reasonableness—inher- ently infuses strict product law: is defective if only “unreasonably” Flex dangerous. Omega explains that a man- ufacturer is insurer of the consumer any injury for caused its product may be held liable if the only matter, is “defective.” As a practical according Flex, Omega abstract,” is not “in design defective as a function of the injury particular caused a but plaintiff, as a function of its risks and utilities. Omega Flex emphasizes any product may injury, yet cause not every product is “defective” as that concept properly understood the law of strict liability note are inherently dangerous products —of such as knives and lighters. premise, On this Flex Omega suggests risk-utility essentially calculus is a matter of whether the manufacturer departed from the proper and reasonable standards of care. “To condemn a design being unreasonably dangerous inescapably design- condemn the er for having been negligent.” Appellant’s Brief at 29 (citing Henderson, Twerski, James Achieving Jr. and Aaron D. A. 83 Cornell L.Rev. Design, Consensus on Defective Product From this perspective, Omega Flex argues, (1998)). the conceptual wall of separation between strict liability and negligence initially articulated Azzarello practical has “no significance.”3 Omega
3. Flex conceptual separation surmises that the and the related idea that the "foreseeability” notion of has no role in a strict *24 parties’ case framed dispute the as exposure one over whether to lightning an using TracPipe System. was intended condition of the The Court, Flex, Superior according Omega to focused instead on whether the Tinchers could product, have avoided the harm rather than on the necessarily injecting negligence concepts liability inquiry. into the strict descriptions, Omega Premised emphasizes these Flex that not purport notes the Azzarello Court did Omega Flex that that a Restatement defec- principle to from the Second depart into the exercised the is an care design analysis inquiry tive of a manufacturer; require not defect proof the decision did unreasonably from that the was dan- proof product separate Flex, is according to that the difficulty, Omega gerous. court from decision nevertheless the trial prohibited Court’s whether the submitting jury question to the the factual that, Flex unreasonably *25 326 Thomas, Id. at M.
ly submitting it.” 31 John (quoting Defin- ing “Design Reconciling Pennsylvania: Azzarello Defect” 217, Temp. 71 L.Rev. Torts, (Third) the Restatement (1998)).4 Omega process 232 Flex notes that this unique Pennsylvania supported any authority and is not reasoned cited in Azzarello.
Omega practical Flex comments upon implications also Flex, According concept Azzarello. the central Omega that negligence separate are from strict principles wholly liability principles effectively generated minimalistic and circu- juries lar “which essential guidance instructions for lack con- defect.” 34 cerning key conception product Id. at Boardman, 327, (quoting 924, Schmidt v. 608 Pa. 11 A.3d 940 (2011)). case, notes, In Omega this Flex the trial court offered the standard Azzarello which instructed the charge, jury to the TracPipe System decide whether was defective without any reference to whether the was unreason- that, ably dangerous. Omega Flex absent argues a determi- unreasonable, nation of the risk may whether was the jury well have any including justified found that risk— risk— rendered TracPipe System defective. The in- Azzarello struction, claims, Flex any does not offer the Omega jury guidance critical as to the of defect and concepts whether the Moreover, product is “safe for its intended use.” Omega Flex argues that the of the term “guarantor” use of art in relation to the product, any without of its explanation mis- meaning, leads the jury holding into absolutely manufacturers liable for injuries any caused the product. Omega Flex further offers jury’s that the verdict in its on the negligence favor claim here confusion with suggests jury respect to the standards to the applicable claim. The Azzarel- instructions, lo Omega Flex have emphasizes, “profoundly unfair to a consequences” against manufacturer whom design defect claims are made. Id. at 35-38. Omega
4.
approach
Flex notes that
has
collateral effect of
laws,
rendering
regulations,
industry
standards irrelevant
to the
risk-utility inquiry,
unpredictable consequences
with
deleterious
plaintiffs
Omega
develop
and defendants.
Flex
does
this assertion
and,
result,
any
as
we do not address it in
detail.
criticism,
Flex
that this
Omega
its
advocates
Premised
Omega Flex
the Azzarello decision.
disapprove
Court should
but
that the
argues
of stare decisis
principle
acknowledges
of unsound
application
bound to
perpetuate
Court is not
Brief
41-42
Appellant’s
(citing,
precedent.
and unworkable
Commonwealth,
918,
alia,
Pa.
905 A.2d
v.
Stilp
inter
Hack,
(2006); Hack
Pa.
433 A.2d
966-67
v.
(1981)).
Flex, the Azzarello limitation on
According Omega
*26
role,
negli-
and
artificial distinction between
the
jury’s
have
from the
liability,
been controversial
gence and
practical impor-
no
reasoned
support
have
real
beginning,
tance,
Pennsylvania.
to
unique
Omega
and have remained
already
of this Court have
Flex notes that individual Justices
Id. at 44
disapproved.
should be
suggested that Azzarello
J., dissenting, joined
1234 (Saylor,
971 A.2d at
(citing Bugosh,
Inc.,
C.J.),
Castille,
Manuf.,
v.
598 Pa.
Simplicity
Berrier
by
(2008)
J.,
594,
900,
concurring, joined
(Saylor,
A.2d
901-02
959
J.,
C.J.);
Castille,
(Saylor,
argues that the Third Restatement approach already (as accepted practice “crashworthiness” cases an exception Azzarello) and is “neither insurmountable nor unduly oner- ous,” permitting plaintiffs to prevail “regularly” such cases. Petroll, 606, 209, Id. v. (citing Harsh 584 Pa. 887 A.2d 211 (2005)). states, cases from Citing Omega five Flex claims that the Third Restatement “widely has been embraced” in other jurisdictions. Co., (citing Id. at 48 Branham v. Ford Motor 203, 5, (2010); 390 S.C. 701 16 Wright S.E.2d v. Brooke Grp. Ltd., (Iowa 159, 2002); Bennett, 652 N.W.2d 169 Williams v. 1269, (Miss.2006); NordicTrack, Inc., 921 So.2d Jones v. 101, (2001); 274 Ga. 550 S.E.2d v. Ruiz-Guzman (2000)). Amvac Chem. Corp., Wash.2d 7 P.3d Flex, According Omega the Court the opportunity has this case “to return Pennsylvania to the mainstream of Ameri- can tort law in strict-liability design-defect cases” by embrac- ing the Third Restatement’s “closely reasoned and balanced approach.” Id. at 48-49 (quoting Phillips Bugosh, su- ). pra Premised these arguments, Omega Flex requests a new trial on the strict liability claim conducted under the Third Restatement approach.
The Tinchers that respond the decision of the Superior affirmed, Court should be and strict liability actions in Penn- sylvania should continue to be governed by the Re- Second Tinchers, statement.5 According to the establishing the liabili- Initially, suggest 5. the Tinchers that the ‘‘Court should decline consider- ation granted of the issue which we appeal], [on allowance of as it is determinative, not outcome ruling.” and affirm the lower court Ac- Tinchers, cording to the the particular circumstances of this case required the Tinchers to offer evidence at trial that was sufficient to Azzarello, requirements the meet of the Second Restatement and as well that, result, "[(lia- argue as the Third Restatement. The Tinchers as a bility design for the TracPipe product” defective of the jury’s the —and appropriate verdict —“is under either Restatement standard." The judicial Tinchers claim that a determination of the issue which we granted appeal advisory opinion would an legal be with no effect. Appellees’ Brief at 11-17. suggested approach The unpersuasive. is The case was tried as it tried, according was which was to the Second Restatement and Azzarel- law, granted lo. appeal This Court allowance of to address an issue of Flex, properly preserved presented by Omega regarding very the legal options manner in which the apportioned theories and were liability theory two-step on a strict is a ty of a manufacturer (1) the as a Pennsylvania: trial court determines process unreasonably danger- matter a is product threshold whether and, result, liability a whether strict should be submit- ous as (2) the whether jury; jury-factfinder ted to the decides necessary make it any lacks element to product the issue or, is The for its intended defective. determination safe use— a dangerous implicates of product unreasonably whether at 19-20 Appellees’ of risks and utilities. Brief balancing 1026). Azzarello, A.2d at (citing no posit concepts negligence place The Tinchers that of have actions, liability explaining liability that strict re- holding of manufacturers premised upon policy social into of sponsible casting for a defective the stream the reflects a liability, argue, commerce. Strict Tinchers from the policy principle emptor— in social caveat change products is a supplier beware —to the view buyer that, safety. of its The Tinchers guarantor products’ suggest the is on marketplace, emphasis protecting the modern injury risk shifting suppli- consumers and the of loss onto in a better products suppliers position ers of because are doing loss as a business. Id. absorb or distribute the cost posed jury. jury, court and and then the as the between issues jury’s support evidence question of whether the was sufficient scope appeal. verdict is outside the Moreover, implicated and was sufficiency even of the were if evidence appeal, sufficiency of the disputed on Court test does engage manner in in the the Court would have to evidence abstract: claims, theory which the Tinchers articulated their of strict and, importantly, the trial they pursued the manner which most actually jury responded on the strict court instructed legal jury charge A trial defines universe in which a claim. court’s v. Gra- operates purposes for the of the verdict. See Commonwealth Yet, ham, (2010). in this Pa. & n. 9 9 A.3d 201-02 princi- argument, invite the Court to address whether the Tinchers (a legal ples theory the Third outside universe Restatement here) appropriate jury's It jury’s task an basis for verdict. was *28 Schmidt, ("The litmus of would not be. See A.3d at 944 bare sufficiency error instruc- review correct a in the cannot fundamental they deciding."). lay jurors concerning just what it is that are tions reject Accordingly, Appellant’s Reply Brief at 5. we the Tinchers’ Accord Superior summarily Court on affirm the decision of invitation ground. Azzarello, Tinchers, at 21 (quoting supra). According to the Azzarello, twenty-five years after the fundamental reasons for retaining separation negligence between and strict liability remain, Second Restatement strikes the appropriate Restatement, balance. The Second argue, Tinchers “makes it clear that the imposition of strict for a liability product defect is not affected the fact that the manufactur- er or other supplier possible has exercised ‘all care’ in the view, Tinchers’ compartmentalizing negligence and liability necessary to ensure that manufacturers are responsible held for their products regardless of fault. Id. at 22 (quoting Phillips, supra). Tinchers, to the
According the decision in Azzarello “repre- sents strict purest its form” it places because emphasis on scrutinizing product rather than the manufac- turer’s conduct. The Tinchers note that a manufacturer’s liability is limited to defective The products. Tinchers claim that “defect” is difficult to define: the critical consideration is whether the product is unreasonably dangerous. According to Tinchers, because the question of unreasonable dangerous- ness “could easily be confused aby jury as importing concepts of negligence into a strict liability analysis,” the Azzarello Court directed that decision to the trial court rather than to decision, the jury. The the Tinchers explain, implicates the balancing of social policies “best performed by the court [trial] in making a determination [of] law” and as a acting gatekeep- er prevent claims regarding certain from products reaching the jury.
The Tinchers argue that the Third Restatement abandons a pure strict liability analysis favor of negligence principles. Tinchers, to the According the Third Restatement explicitly provides for consideration of “foreseeable risks of harm pro- posed by the product,” which is a negligence standard. The suggest Tinchers that the Third Restatement is not a “natu- ral” and “modest” evolution of strict but a “calami- tous” displacement of the social policy established forty- years seven of Second Restatement precedent. Tinchers
331 ... or prudent is departure a radical that argue “[s]uch necessary.” have minority” “clear of states note that a
The Tinchers also Iowa—expressly, one the Third Restatement: adopted state — of the Re single sections adopted have and several others for the guidance as have used the doctrine statement (citing Brief at 28 Appellees’ common law. formulation of the (Iowa 2002)). Ltd., 159 652 N.W.2d Group v. Brooke Wright Tinchers, have considered states, to the according Other As exam the Third Restatement. adopt declined explicitly of Illinois Court Supreme note that the Tinchers ple, on the the Third Restatement adopt invitation to rejected the was policy affects broadly public that any change that ground Mikolajczyk v. (citing Id. at 29 legislature. best left to the 329, 516, 1, N.E.2d Co., Ill.Dec. 901 231 Ill.2d 327 Ford Motor state, (2008)). Connecticut, Supreme the Tinchers In 346 an undue places the Third Restatement explained Court valid might preclude upon plaintiffs of proof burden unreasonably danger be defective product may claims: a be design may user, no feasible alternative although to the ous the evidence a defect from available, may infer jury and a (citing Id. 29-30 testimony. necessity expert without 199, Co., 694 241 Conn. Pneumatic Tool Chicago v. Potter v. (1997); Sys., Inc. 1319, Safety 1332 TRW Vehicle A.2d Sturm, (Ind.2010); Ruger Holliday v. Moore, 201 936 N.E.2d (2002); Body v. 186, 1145 Vautour Co., 792 A.2d & 368 Md. 1178 Indus., Inc., 150, 784 A.2d 147 N.H. Sports Masters 772, AHP, Inc., 245 Wis.2d (2001); Nephew v. & Smith Green Co., Kan. (2001); Deere & 268 Delaney v. 727 629 N.W.2d 996 (2000); Corp., Motor Rodriguez v. Suzuki P.2d 930 Co., (Mo.1999); 282 Mont. v. Dow Sternhagen S.W.2d (1997)). P.2d 1139 relies erroneously Flex Omega claim that The Tinchers exception the “crashworthiness” implicating cases Restate- the Second liability theory under general products Tinchers, accepted to the according exception, ment. This jurisdiction” typically “virtually every [U.S.] as such in not cause defect did alleged in which an to cases applied automobile accident or initial but served to impact, increase of the severity injury. argue The Tinchers that “crash- jurisdic- worthiness” doctrine cases offer no indication that a design tion has embraced alternative requirements Restatement. Appellees’ (citing Third Brief at 31 Patrick Crashing Lavelle, Into Proof of Reasonable Alternative Fallacy Design; (Third) of the Restatement of Torts: (2000)). 38 Duq. L.Rev. 1098-99 Liability, Products *30 The Tinchers maintain that any suggestion including in the — 2(b) reporters’ commentary to the Section Third Re- —that statement standards are widely accepted is inaccurate and misleading because it is simply premised upon cases address- ing the crashworthiness doctrine exception. Id. at 32 (citing Liability 2(b) § cmt. d (3d) Restatement of Torts: Products (1997)). II-A, & nn. II-C the
Finally, Tinchers that the Third argue Restatement accomplish would a “radical departure” from existing public because it policy would “an undue impose hardship plain on tiffs in the of pursuit meritorious claims.” to According the Tinchers, the Third Restatement shifts the emphasis from the existing product speculation to of what product similar could have designed. view, been In the Tinchers’ the Third Restate ment “an represents instrument of tort reform” rather than an law, articulation of existing which will impose prohibitive cost on plaintiffs and counsel to produce designs alternative the of pursuit otherwise meritorious claims. Id. at 33-34 Liability al., (citing Gary Wilson et The Future of Products (2000); 27 Wm. Mitchell L.Rev. 99-100 America, Frank Vandall, J. Vandall and Joshua F. A Call for an Accurate Design 33 U. Mem. (Third) Defect, Restatement of Torts: (2003)). L.Rev. Restatement, The Third according Tinchers, the is a boon to manufacturers at a placing injured “tremendous disadvantage” consumers who would nec essarily have to become experts and seek to the redesign that caused the the injury; may cost of this exercise exceed the benefit of a recovery. Additionally, Tinchers argue the attendant representing injured costs of an in a plaintiff jurisdiction Third Restatement discourage would injured from consumers. The Tinchers representing counsel viti- Third Restatement would suggest application which law is public policy upon products ate the i.e., manufacturers liable defects premised, holding commerce; stream of manufacturers placed products injuries than are are in a better to absorb the costs position individual consumers. suggest Tinchers that the argument,
In an alternative could Azzarello but continue disapprove apply Court Restatement rather than the Third Restatement artic- Second Tinchers ulation of the law. The note that resolution policies underlying prod- the matter would social protect liability yet any ucts remove difficulties caused the decision 41 n. 16. Appellees’ Ultimately, in Azzarello. Brief at See however, the affirm the Tinchers ask Court to decision the Superior Court.
In Flex that the dif- reply, Omega position reiterates its Third ferences between the Second Restatement modest; Pennsylvania’s Restatement with difficulty are results from the approach products appli- instead Omega cation of Azzarello. Flex that the Tinchers suggests *31 in which oppose disposition appeal do not this the Court Azzarello, disapprove parties disagree would although Third go adopt whether Court should further and Restatement, regard Restatement. With the Third Ome- ele- argues design” Flex that the “reasonable alternative ga proof ment of does not erect the insurmountable types claims portray: barriers meritorious the Tinchers (ie., may proof existing products prede- adduce plaintiffs products) proof or no products competitor expert cessor or feasibility design at all if the of an alternative obvious and Reply Brief at lay persons. Appellant’s understandable to Liability (citing of Torts-. Products (3d) Restatement f). Third as presents § cmt. Flex Restatement Omega provisions refinement predecessor specific of its with defects, in been design approach already accepted whose has Re- exceptions general the form numerous to the Second Moreover, that, Flex claims con- Omega statement rules. trary to the representations, Tinchers’ adherence to the Sec- ond Restatement view has become minority position. Omega Flex concludes that the case should be retried before instructed, a jury properly and the instruction should be premised upon the Third Restatement. Analysis
III.
Scope
A. The
and Standard of Review
matter,
preliminary
As a
we observe that the parties pose
argue
a seemingly pristine
law,
question of
little depen-
record,
dent on the facts of
primarily
whether
regarding
this
Court should
replace
strict liability analysis of the Second
Restatement with
analysis
of the Third Restatement.
In
this is a
part,
function of how the issues were presented to the
lower courts and of the lower courts’ recognition that
question of whether to “move” to the Third Restatement has
been a matter of debate and
speculation
interested legal
(as
circles
federal court cases
well
as
separate
Court);
opinions
that,
this
all recognize
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
background circumstance,
the lower courts
offered no principled assessment
practical
perspective re-
core,
garding the
and strictly legal, positions
presented
now
by the parties to this Court. While the importance of lower
courts’ analysis of a proposed
in the
change
law as applied to
the facts of a particular case and the centrality of such
analysis to the
development
the common law cannot be
understated,
note, nevertheless,
we
that there is no suggestion
party
either
that the issue so presented was waived. See
Scampone
Center,
v. Highland
LLC,
Park
Care
618 Pa.
(2012)
57 A.3d
(judicial
604-05
determinations to be read
facts);
against
Schmidt,
Properly the question before the is Court whether Omega Flex relief, was entitled to in the form of
335 trial, premised or a new the verdict notwithstanding judgment instructed should have been jury that the argument its Third Restatement. by the represented the law on one of the issue is posed dispute facts are not relevant decision Court’s Superior review of Accordingly, our law. Assocs., Broker- Inc. v. Street and de novo. Walnut is plenary (2011). 468, 371, 474-75 Inc., 20 A.3d 610 Pa. age Concepts, in that, a court explained “[w]hen has This Court it jury how to the objective explain jury, structs it should consider and the factors its task approach should jury examines this Court appeal, its verdict.” On reaching abused its the trial court whether instructions to determine of law control an inaccurate statement or offered discretion charge adequate A jury the case. the outcome of ling clear, misled jury was are not made “unless the issues charge from the instructions, an omission or there was v. Cham error.” Commonwealth to a fundamental amounting (2009); Price v. 224, 35, see also bers, 980 A.2d 49-50 602 Pa. (1999). This will 668, Court 42, 735 A.2d 670 558 Pa. Guy, amounted to instruction jury erroneous new trial if an afford a to determine record is insufficient error or the a fundamental Price, See, e.g., verdict. affected the the error whether at 672. A.2d judgment of a
Meanwhile, relief in the form greater if the movant only is appropriate the verdict notwithstanding i.e., law, if the evidence matter of as a judgment is entitled to minds no two reasonable such that at trial was presented in favor of the should be the verdict disagree could Co., Pa. 669 A.2d v. Dillon Degenhardt movant. Miklich, 581, 633 A.2d (1996) 534 Pa. v. (citing Boettger (1993)). notwithstand judgment An award of n. 2 if, the record reading only appropriate the verdict “is ing winner], affording verdict [the most favorable light inferences, of all reasonable the benefit winner] verdict [the evi competent is insufficient there we would conclude Services, 898 A.2d verdict.” to sustain the General dence 604.
336
The parties’ present dispute implicates foundational notions in the law of strict To decide the liability. dispute, we (1) necessarily address: what evidence is sufficient under (2) tort; Pennsylvania law to a claim of strict prove liability (3) proper role of the trial and judge; appropriate instructing jury. manner of As will explain, we these questions can be further complicated by particulars of the tort, product, or the at issue.
Furthermore, central to the parties’ dispute questions are of whether this Court should the 1978 decision in disapprove Azzarello, and whether the Court should abandon the Second Restatement articulation of the cause of action and, in its place, “adopt” Pennsylvania as law of the Third Restatement formulation of strict in tort. These questions implicate separate foundational principles of stare judicial decisis and restraint.
The doctrine of stare
judicial
decisis “commands
respect
prior
decisions of this
legal
Court and the
rules
31;
contained in those decisions.” Stilp,
337 (2012) Phoenixville, v. Bor. 603 Pa. (quoting Buckwalter (2009)). A.2d 730-31 Common law permits law, recognizing adjustment development judicial honesty demands cor not infallible precedent Ayala, action 305 A.2d appropriate rective cases. See Stores, v. C. Corp. Olin Mathieson C. White (quoting (1964)). 95, 199 A.2d Pa. recently multiple
We have
stressed
cases
*34
within the confines
“develops incrementally,
the common law
of cases as
come before the Court.”
they
of the circumstances
57
v.
Med.
(quoting Maloney Valley
A.3d at 604
Scampone,
Facilities,
Inc.,
399,
(2009)).
478,
603 Pa.
984 A.2d
489-90
directly
law
either
through
of action at common
evolve
Causes
Id.;
by analogy
decisional law or
and distinction.
applicable
v.
Bd.
City
Philadelphia
County
accord
Cumberland
(2013).
Pa.
A.3d
Assessment
81
54
Appeals,
efficacy
is “to
to the law ...
Among
give
the duties of courts
they
laws,
may
make
mould the forms
though
they
cannot
the new case.” Reed v.
exigency
of the ancient laws to the
(Pa.1821).
Executors,
Notably,
Reliance however, provide, dispositive common law rules does not of the American “adoption” answer to the of whether question or Law Institute’s formulation for tort law appropriate new advisable. This has grown Court more careful over the years presented when with invitations to issue broad-based pro- in nouncements areas where it is apparent pro- such nouncements are better suited to the information-gathering and give-and-take balancing of competing concerns available Thus, arena. legislative it example, is difficult to imagine modern court simply adopting something so broad- based legislative character as an organization’s outside Law, Restatement of the even if it is the of an esteemed organization. said, that, That being fact is law, this particular area of the played major Court has role; developmental and when an joined issue is properly case, we are of course duty-bound to resolution and explication And, of the matter. in this process, while the line of demarca- tion between advancing correcting or, the common law— perhaps, accounting advanced, for nuance not perceived, or predicted in the crucible of prior cases—and a into foray legislative area, policy-making is a gray some principles gov- erning decision are readily apparent.
The first principle applies generally and involves
the policy-making authority of the General Assembly.
In
*35
whether a
considering
long-established common law rule is out
of
with
step
modern experience, we assume that the General
Assembly
rule, which,
is aware of the
if unchanged by legisla
tion, presumably reflects continued legislative policy. See
Everhart v. PM A
172,
301,
Ins.
595 Pa.
Group,
938 A.2d
307
(2007).
“[tjhere
course,
Of
is not a rule of the common law in
force
today
has not evolved from some earlier rule of
law,
instances,
common
gradually
some
more
suddenly
others, leaving the common
of today
law
when compared with
the common law of centuries
as
ago
different as day is from
Hack,
night.”
Found. v. 269, PriceWaterhouseCoopers, 605 Pa. 989
389 (2010). 313, decision-making 332-33 “[C]ommon-law A.2d limitations, of grounded as it is in records subject to inherent advocacy by shaped and the parties individual cases adjudicatory legislative process, records. Unlike the those narrow focus matters framed is structured to cast a on process Id. highly before the in a directed fashion.” litigants Court to benefit Consistency general permits with rule the Court of the honed and accumulated wisdom from the sensibilities in a of individual cases. application myriad rule’s are to the nature specific Two other considerations develop in the role a “Restatement” law recognized law law. Pennsylvania ment of common Restatements offer a the American Law Institute published by purport law, which articulates of American common synthesis reasoned, mainstream, consensus principles modern on of cases. large intended to numbers application govern broad 606; Coyle A.3d also v. Richardson- 57 see Scampone, (1991).6 Merrell, Inc., Con 526 Pa. 584 A.2d role, adjudicative its rather than policy-making sistent with restatement “adopted” has or deemed sections of a the Court non-profit organization lawyers, judges, and is a of 4000 6. The Institute scholarly clarify, professors, produce mod- law established to work tasks, ernize, Among Insti- improve the law. other and otherwise discusses, drafts, revises, publishes of the Law. Restatements tute here, commentators, engaged in a parties have The and several Torts, Liability, over whether Third Restatement Products debate articulate consensus in the area of does indeed the modern questioned reporters liability. have whether the Some commentators industry viewpoint in their task. Third Restatement favored an Henderson, (reporters process of Compare defend Cornell L.Rev. Restatement) Vargo, drafting F. Third with John Emperor’s New The American Adorns "New Cloth” for Section Clothes: Law Institute Design Defects—A 402A Products Survey Liability Reveals of the States (1996) (criticizing drafting U. 26 Mem. L.Rev. Weave, Different states, Restatement, surveying fifty law in and cata- process of Third institution, liability). loguing approaches several to strict As an light particularly disputes, equipped to resolve such Court is not unnecessary engage But disposition, we the debate. of our find it Inc., Sturm, Co., see, e.g., Halliday Ruger 792 A.2d v. & 368 Md. *36 1145, (in (2002) declining light ongoing controversy, to “cast 1159 of Third existing jurisprudence application of broad of in favor aside” debate, however, standard). risk-utility is The fact of the Restatement's upon a imperative judicial modesty passing in reminder of the a "adopt” a request to Restatement wholesale. 340 Pennsylvania
a statement of law if the cause of action proper and its contours are consistent with the nature of the tort and See, Pennsylvania’s e.g., traditional common law formulation. Assocs., 606; Scampone, 57 A.3d Walnut Street 20 A.3d at Contractors, 478-79; Bilt-Rite Inc. v. The Architectural Studio, (2005). sense, 581 Pa. 866 A.2d 285 In this the adoption of a restatement formulation intended to advance the law cannot be so unmoored from common existing law and such a shift that it in produce policy actuality amounts a public perception derogation legislative authority, suggestion concomitant that such authority reposed in the Judiciary or American Law Institute. Consistent with principle, the Court must show generally restraint altering existing allocations of risk created by long-tenured common law rules and resist the temptation experimenta tion with untested social policies, especially where the individ ual record and the advocacy parties the context of record offer little justifications. more than abstract Thus, Court position upend risks and expectations premised upon arguments broad-based calling incentives; about judgment socially acceptable economic legislative is a setting preferable forum for such an endeavor. 55; City Philadelphia, See 81 A.3d at Pegram accord v. Herdrich, 211, 221-22, 530 U.S. S.Ct. L.Ed.2d (2000) ... (“[Complicated factfinding and debatable social judgment wisely are not required of courts unless for some reason resort cannot be had to the legislative process, with its preferable forum for comprehensive investigations judg value----”); Adams, ments of social Folly Kristen David Uniformity? Movement, Lessons from the Restatement (2004) Hofstra L.Rev. 423 effect of (assessing employing re- Islands). statement as default common law in Virgin Moreover, because the of a language provision of restatement, even to the extent it was adopted by verbatim, Court has not been vetted the crucible of through the legislative process, court the restatement applying for mulation betray should awareness that language of an restatement “adopted” provision is not “considered controlling
841
section
A
restatement
given
a statute.”
manner of
in the
law,
rules
general
common
principles
states
simply
them.
that
reasoning
supports
the
on
validity depends
whose
rules,
law
common
any
As with
other
A.2d at 1385.
Coyle,
of a restate-
section
“adopted”
of an
principles
the normative
case. “For
the facts of each
against
tested
properly
ment are
range
determine the
for courts to
very
it
difficult
thing,
one
is
should
rule
particular
to which a
circumstances
of factual
particular
myriad possibilities”;
in
of the often
light
apply
or sentences
phrases
words or
“the
possibility
concern is
Malo-
treated as doctrines.”
context and
be taken out of
may
underscore the
In
we
regard,
489-90.
this
984 A.2d at
ney,
of common law
reading
avoiding formulaic
importance
principles
of abstract
application
and “wooden
principles
may pertain.”
considerations
in
different
circumstances which
B. Strict the Common Law In the liability, arena of strict Court.does write on a slate; blank the common law is the starting point of our explication of the conceptual framework for strict tort in Pennsylvania. The evolution of jurispru- distinct, dence has four relevant periods: early cases address- *38 ing liability the evolution of strict and the adoption of the action; Second Restatement’s articulation of the cause of Azzarello; advent of post-Azzarello jurisprudence; and recent judicial expressions addressing the Third Restatement. outset,
At the
we note that disputes
over
for
personal and economic harm
by products,
caused
although
terms,
perhaps not articulated in those same
likely accompa-
nied the earliest division of
Efficiency, specialization,
labor.
and the evolution of expertise,
and as
separately
precursors to
innovation,
invention and
were significant benefits of this
But,
labor,
division of labor.8
the same
of
division
especially
increasingly
its
complex permutations, caused a physical and
moral separation between sellers and buyers that inevitably
generated
disputes.
resolution of these disputes in En-
glish
jurisdictions
and American
over the several centuries
created a rich body of experience-based common sensibilities
and wisdom from which the modern principles of the common
law of products liability evolved. Review of decisional law
illustrates a general
gradual
trend of
expansion of civil liability
“partition
8. David Hume
employments":
said of the
of
every
person
himself,
a-part,
only
When
individual
labours
for
work;
any
his force is too small to execute
considerable
his labour
necessities,
being employ'd
supplying
all his different
he never
art;
perfection
any particular
attains a
and as his force and
equal,
success are not
all
times
the least failure in either of these
particulars
misery.
must be attended with inevitable ruin and
Soci-
ety provides
remedy
a
By
for these three inconveniences.
the con-
forces,
junction
power
augmented: By
of
our
partition
[injcreases:
employments,
ability
by
our
And mutual succor we are
force,
expos’d
by
less
to fortune and accidents.
'Tis
this additional
ability,
security,
society
advantageous.
that
becomes
Hume,
(1739).
David
A Treatise of Human Nature
as it
for
or
whether
persons
property;
happens,
harm
injury
in the
particular development occurred
context
not,
principles
or
were
by
caused
applicable
products.
articulated in broad terms
generally
Co.,
Lancaster
3 U.S.
e.g.,
Turnpike
Breckbill v.
Compare,
(1799)
(action
496, 499,
implied
3 Dall.
er’s
or
or
dis-
prove
privity).
carded burden to
horizontal
Accord Common-
Koczwara,
575,
825,
(1959)
wealth v.
397 Pa.
155 A.2d
828 n. 1
of absolute
(application
vicarious
for acts of another in
criminal case
resulting
imprisonment deprives criminal
law;
defendant of due
process
between re-
“[D]istinction
spondeat superior in tort law and its
to the crimi-
application
law,
nal law is
tort
the doctrine is employed
obvious[: i]n
purpose
settling
incidence of loss
upon
party
loss[; but,
who can best bear such
impose penal
w]e
treatment
interests,
injure
those who
or menace
partly
social
reform,
order to
partly
prevent
the continuation of the
others.”).
antisocial activity
partly
to deter
1960s,
By
Pennsylvania
jurisdictions
among
was
those
whose courts had
an
accepted
application of civil liability
without proof of
negligence
injury
cases of
caused
food
by
Prosser,
Upon
products. See William
L.
The Assault
Liability
69 Yale L.J.
(Strict
Consumer),
Citadel
To the
(1960)
alia,
1103-10
(citing, inter
v.
Caskie
Coca-Cola
Co.,
(1953)
373 Pa.
Bottling
1. Early The Second Restatement and the Cases Early decisional law in Pennsylvania explained genesis and nature of the strict liability action, cause of with reference to Section 402A of the Second Restatement. 402A Section of the Second Restatement states:
§ Special Liability Seller Product Physical fflZA of for 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 subject to liability for physical harm thereby consumer, caused to the ultimate user or or to his property, if
(a) the seller is in engaged the business of selling such a product, and
(b) it expected to and does reach the user or consumer without substantial change condition which it is sold.
(2) (1) The rule stated Subsection applies although (a) the seller has exercised all possible care in the prepa- ration and sale of his product, and
(b) the user or consumer has not bought
the product
from or
any
entered into
contractual relation with the seller.
(1965).
§
402A
(2d)
Restatement
of Torts
The commentary to the Second Restatement
traces the
roots of the higher degree of responsibility placed
sellers
goods
to English criminal statutes of the Thirteenth Centu-
ry that imposed penalties upon persons who supplied “corrupt
food and drink.” Restatement
§
402A cmt. b.
(2d)
of Torts
As these criminal statutes were repealed, judicial decisions
referred in dicta to the civil liability of sellers to those to
whom they sold “corrupt
Prosser,
victuals.” See
69 Yale L.J.
at 1104. Early American jurisprudence denominated the spe-
cial civil responsibility as “warranty,” imposed upon the seller
beginning
At the
the direct purchaser.
in favor of
of food
sellers’
decisions extended
judicial
Century,
Twentieth
injured
con
purchaser
the direct
liability” beyond
“strict
to the
exception
an
The decisions articulated
Id.
sumers.
proof
liability premised upon
more direct
rule of
general
these
beginning,
“In the
of contract.
privity
or
negligence
more or
evolving
ingenuity
considerable
displayed
decisions
The various
to fit the case.
fictitious theories
less
intermediate dealer
agency
an
devices included
seller;
consumer, or to sell for the
purchase
another
*42
to the inter
warranty
the
of
seller’s
assignment
a theoretical
contract;
an
dealer;
beneficiary
party
a third
mediate
consumption
food was fit for
that the
implied representation
market,
numerous
as well as
on the
placed
it was
because
§ 402A cmt. b. Later
(2d)
others.” Restatement
of Torts
“running with
warranty
of
upon theory
settled
jurisprudence
consumer; the alternative
to the
directly
or made
goods”
the
1950,
extended
jurisdictions
After
in tort.
liability
was strict
human
sale of food for
the
liability beyond
rule of strict
the
bodily
for intimate
intended
products
to other
consumption,
these
1950s,
began applying
late
courts
in the
Finally,
use.
any product.
of
to the sale
liability
rules of strict
developed
inter
Prosser,
(stating,
at 1103-14
Id.;
69 Yale L.J.
see also
height
of a
alia,
application
extended
had
Pennsylvania
in
than food
other
products
to sellers of
responsibility
ened
Co.,
(Pa.Super.1959),
A.2d 568
v. Ford Motor
Jarnot
cases).
in earlier
language
of
misconstruction
upon
premised
the
“adopting”
major step by
1966, this
took
In
Court
Restatement
402A of the Second
formulation
Section
Webb, 422 Pa.
In
Pennsylvania.
law of
as the common
Torts
order
the trial court’s
853, the
vacated
220 A.2d
Court
trial
for the
with instructions
and remanded
the case
dismiss
to add
complaint
his
to amend
plaintiff
court to permit
theory
premised
cause of action
plaintiff
Restatement.
by the Second
tort as articulated
keg exploded
a beer
injured when
severely
had been
in Webb
an
asserting
result,
trespass,”
“in
and,
complaint
filed a
as a
ipsa
res
theory
negligence essentially
“exclusive control”
—
see,
loquitur,
e.g.,
Confair,
Loch v.
372 Pa.
We need determine whether or not the lower court erred with to the law of regard exclusive control, for there is another and clearer which issue determinative of appeal. That issue is the nature and scope of one who trespass produces or markets a defective for use or consumption. The of the law development in that area is chronicled in the *43 Concurring 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 ex- tend and recommend the extension of the law of strict liability in tort for defective products. The new Restate- ment of Torts reflects this modern attitude. 402A Section thereof [Quoting states: in full 402A of the Section Second Restatement.] hereby
We the adopt foregoing language as the law of Pennsylvania. therefore,
The in this plaintiff litigation, must be an given opportunity plead to his case.... prove 220 A.2d at 854. Mr. Justice a Eagen joining concurring filed opinion, his noting preference application for a limited of the a dissenting Bell filed Mr. Chief Justice Restatement. Second n. See opinion. infra. more substantially filed Miller offer
The several opinions tort in genesis than into the of the insight Webb adopt to the Pennsylvania and the Court’s decision Second The plaintiff to its Miller parameters. Restatement define infant, of a deceased who was was the estate administrator used relieve injured fatally vaporizer-humidifier when his The body. shot water on congestion boiling his nose breach of the implied filed plaintiff complaint asserting manufacturer, the merchantability against of the warranty distributor, and that had sold the pharmacy vaporiz- the retail deceased infant’s aunt. infant had er-humidifier to the home, family’s aunt’s next door to his used the in the the trial preliminary home. In relevant court sustained part, on that the objections complaint, ground implied the the to the infant he had warranty did not extend deceased because of the privity any not been of contract with defendants. as a matter of law judgment The Miller Court reversed infant, in favor a retailer because the deceased who entered retailer, harmed sold vaporizer-humidifier was and, notwithstanding “in the the infant’s buyer’s family” was retailer, had met the privity representative lack of with the his warranty a breach of action under prerequisites pursuing (By of the Uniform Commercial plain language Code. an action in tort plaintiff pursued had comparison, Webb the Miller Court theory Additionally, on a of negligence.) in favor the manufacturer and judgment affirmed distributor, not ex- provisions that the Code’s did reasoning in the sellers chain warranty liability tend remote 2-318). § In both (citing distribution. Id. at 324 12A P.S. Court, language to the the Uniform respects, according The Miller Court viewed dispositive. Code was Commercial warranty actions as abandoning privity requirement that strict in tort unnecessary, expectation noting *44 liability and policy relating products vindicate public would to abandoning privity. result accomplished similar Justice Jones concurred in the decision to reverse the retailer, judgment against the but dissented from the Court’s disposition with to the respect manufacturer and distributor of product. premised dissent was in part upon the view that, if the Court retained the requirement of privity, Court should adopt Second Restatement thereby all actions in the relegate products liability field to tort. The dissent described the state of the law then existing:
In the field of product
liability, resort for redress for
injury arising from a defective product may be had either in
tort or
In
assumpsit.
v. Confair,
[Loch
361 Pa.
63 A.2d
(1949)],
we
person
said “that a
who has effected the
purchase of particular goods and sustains injury because of
unfitness for an intended purpose
institute
may
an action in
assumpsit based upon a breach of implied warranty
anOr
action
trespass
upon
based
specific averments of negli-
gence.
In both instances the elements of damage may be
identical, viz, the damage naturally and proximately result-
from
ing
a breach of implied warranty or a breach of
duty----An
election of
has,
remedies in this regard
howev-
er, never been
by
held
this Court to authorize institution of
a contract action based upon
Nor,
averments of negligence.
conversely, has it authorized institution of a negligence
action
based
averments of contract. Essential distinc-
tions which exist have been recognized.” [
omitted).
Justice Jones then expressed support for the approach of the Second Restatement stated, whose purpose, he was to ensure “that injuries costs of resulting from defective products are borne manufacturers put such prod- ucts on the market rather than injured persons who are powerless to protect themselves.” Id. at 334. Jones,
According to Justice the judgments that would result from application of the Second Restatement were “not a far *45 res and of exclusive ipsa loquitur from the doctrines of cry” sellers, and proxi- The viewed manufacturers control. dissent remote, as consumption by the products public mate or member special any using “to a of the subject responsibility may injured by who be the use and consuming public that the of the The dissent reasoned consumption product.” behind such manufacturers and sellers stand expects public therefore, injuries the burden financial products; their “should fall those who products caused defective the products consuming public and market the make the Id. at protection.” entitled to maximum 334-35. Roberts, dissent, by Mr. Justice Mus- joined
In his Justice manno, summary would have judgment also reversed by the trial court as to all defendants. These dissen- entered elevated over majority’s ters reasoned that the decision form substance, would have allowed the cause of action they a proceed assumpsit, matter to either in on basis of trespass, on the basis of strict warranty, breach of or In the dissent that the same liability. regard, suggested chose to his plaintiff pursue results would obtain whether warranty theory on a claim breach products liability Restatement. under Second duty products
The
remarked that the
of sellers of
dissenters
the mere avoidance
beyond
for human
“extended
consumption
as
“special
and had been characterized
negligence,”
implied warranty
...
in the nature of an
responsibility
fit for
consumption----”
would be
human
products
such
but,
buyer;
had been limited to the immediate
duty
noted,
in such
“recognized
injustice
inherent
dissent
courts
theories of strict
developed
a limitation” and had
time,
At the
to the
according
food cases.
same
defective
dissent,
to non-
was not eliminated as
privity requirement
dangers. The dissenters
products,
presented equal
food
which
From practical
of that distinction.
questioned
merit
the doctrine of privity
the dissent also noted that
perspective,
from
because an action
did not insulate defendants
a chain reaction of
against a seller
started
simply
a consumer
by the restriction
indemnity;
really accomplished
that is
“[a]ll
is to
privity]
expose
[of
to the
plaintiff
[the]
risk that the retail
may
seller
not be financially able to make redress and to
deprive
plaintiff]
[the
opportunity
directly
proceeding
against
more
able
financially
parties in the distributive
chain.”
The dissent then expressed its disapproval of the “conceptu- al abstractions and niceties of pleading” that had obscured what it believed was essentially a strict liability cause of action and the it, considerations that supported and encouraged the *46 Court to the adopt Second Restatement. In the dissent’s view: public
The in interest the affording protection maximum possible life, under the law to human health and safety; the inability of the consumer himself; to protect the seller’s implied assurance safety of a product on the open market; the superior ability of the manufacturer or seller to loss; distribute the risk of the needless circuity recovery and the expensive, time consuming, wasteful and often unjust process which insistence upon privity frequently oc- casions—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
it
point
in
marked
Pennsylvania law.10
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-
Webb,
dissented,
In
Chief
premised
Justice Bell
primarily upon the
10.
argument
majority
overruling
that
was
numerous decisions sub
silentio in favor of a "new
completely changes,
rule ...
[that] so
legislative
ukase,
by judicial
action but
respect
trespass
law with
to
injuries resulting
actions for
non-inherently
from
dangerous products
that are either
by any
manufactured or bottled or sold
...
vendor
that
opinion
[the Chief
only very
Justice's]
it is not
absolutely
unfair but
Unjustifiable
(Bell, C.J.,
in Justice or in Law.”
For in Bialek (1968), rejected A.2d noted and Court which, jury charge of a challenge part plaintiff that imposed plaintiff an unwarranted burden argued, had particular which seller the distribution chain prove that for product. caused the defect in the The Court reasoned 402A, to attach seller need sell a only Section “the per need have caused defect.” not] defective [and trial court instruct the that a jury added should Court “is not that the defendants were required prove plaintiff they can held liable even if the defendants be negligent, be all care and that no consideration should possible exercised *47 But, the in a negligence.” explained, sellers given Court defect a seller that caused the precede distributive chain who sense, In not sell a and are not liable. product do defective Court, theory the of case is according plaintiffs the the tailor charge and the court has the relevant trial discretion 235- parties. and theories of the Id. at to reflect evidence 36. matters, interim, corollary with
11.
In the
the Court addressed several
See,
offering any insight
of
here.
into foundational matters
concern
out
Co.,
324,
(1966)
423
223
746
e.g., Ferraro v.
Motor
Pa.
A.2d
Ford
notwithstanding
remanding
(reversing judgment
verdict and
for new
trial;
case,
buyer
"if the
knows of
defect and
in strict
Voluntarily
Unreasonably proceeds
encounter
to use
danger,
preclude recovery and constitute a com
a known
this should
Co.,
action”); Burbage
Eng'g
Supply
&
433
plete defense to
v. Boiler
consumer;
319,
(1969) (affirming judgment
in favor
249
Pa.
A.2d
part
subject
replacement
in strict
to consum
manufacturer
er).
In Kuisis v.
Baldwin-Lima-Hamilton Corp., 457 Pa.
(1974)
In the plaintiff alleged injured that he was 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 negligence and strict liability in the design and manufacture of the brake locking mechanism. At evidence, the close of the trial granted court 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. Subse- quently, the trial court granted the manufacturer’s motion for judgment on the record. appeal, On this Court reversed the trial judgment court’s and awarded the plaintiff a new trial. Pomeroy’s Justice OAJC reasoned that evidence relating to accident, in addition to the occurrence of five similar mechanism, malfunctions of the locking was sufficient to show defective, that the product was even absent direct evidence of a specific defect. OAJC, According to the in the absence of causes, other identifiable the malfunction itself was evidence of condition; a defective rule “[t]his reflects the fact that liability under 402A [Section] turns on a lack of fitness the defen- dant’s product, as the case of an action for breach of warranty, rather than on the breach particular of a duty of *48 defendant, care by the as in the case of an action for negli- gence.” The OAJC continued: a plaintiffs “[w]hile hand in a
355 by obviously strengthened case will be evidence such is product defect in the defendant’s evidence specific of to a at necessary plaintiffs jury.” take ... the case Id. not 920. the commented the relevance of
Finally,
proof
OAJC
crane
had left
while the pipe
that the
the controls
operator
OAJC,
operator’s
the
al-
suspended. According
was
as a
su-
negligence
legally
potential
was
leged
significant
Kuisis,
injuries.
319 A.2d
perseding
plaintiffs
cause
But,
920;
also
A.2d
the opinion
see
at 755.
Rogers,
continued,
of
operator negligence
superseding
was not a
cause
conduct
outside
injuries
negligent
unless
was
plaintiffs
of
range
foreseeability.”
the manufacturer’s “reasonable
Jus-
“car-
Pomeroy
foreseeability
tice
that the
of
opined
principle
over from traditional
law to strict
negligence
ries
It
no difference in this
whether the
regard
cases....
makes
an
act of
intervening
conduct is characterized as
operator’s
crane;
or as an ‘abnormal use’ of the
where under
negligence
use
is abnormal
particular
product
402A a
[Section]
on
was
foreseeable
reasonably
whether the use
depends
Kuisis,
13.
proof
12.
claim, by
stating
implied warranty
of an
reference to
sites
a breach
clarity
in the
the Second Restatement. The Kassab Court reasoned
results,
complaint
consistency
whether one labeled
law
abandoning
assumpsit/warranty
trespass/strict
liability,
counseled
Kassab,
privity requirements. See
The Berkebile OAJC commenced its analysis by
the
noting
“to
necessity
clarify the
of strict
concepts
liability
Pennsyl-
vania,” 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
issue
separate
of strict liability for a failure to warn.
In the following death of her husband in a crash, helicopter the administratrix of the estate sued the manufacturer, premised upon theories of strict for liability design defective of the helicopter’s rotor for system, defective manufacturing blade, and design of the rotor for inadequate warnings regarding inherent risks and limitations of the system, rotor and for misrepresentation of the helicopter’s safety in the manufacturer’s advertising brochures. The de- fendant denied existence of a argued defect and that the decedent’s abnormal use had caused the crash.
The Berkebile OAJC reiterated that strict liability, as action, cause of implemented a policy of consumer protection. OAJC, to the According increasing complexity “[t]he manufacturing and distributional process placed upon injured plaintiff nearly impossible proving burden of negli- where, gence reasons, for policy it was felt that a seller should household, purchaser’s family member of guest purchaser's or house). caused his injuries products.” defects responsible be c). § 402A cmt. Id. at 898 (citing (2d) Torts Restatement matter, that, in of a proof a strict explained The OAJC unnecessary are due and breach due care seller’s care Salvador, Id. (citing “without fault.” because attaches 907). Instead, recover, must plaintiff prove A.2d at defective, was a was and that defect product addition, In injuries. cause accord- plaintiffs proximate OAJC, has that the prove to the the burden ing plaintiff causing injury existed at the time defect of attempts by left the seller’s hands. OAJC then warned *50 con- “indirectly injecting negligence at ... a defendant-seller Id. 899. liability theory.” into strict cepts The Berkebile OAJC also of the parsed language the Second Restatement, imposes that the a seem- opining Restatement “un- burden of that “defect” is ingly contradictory proving OAJC, the the stan- reasonably dangerous.” According to the “unreasonably are if the of purpose dards reconcilable those is “to dangerous” qualification products differentiate from very which are their nature unsafe but defective reject- which can be called defective.” OAJC truly those the the notion should be defined based upon ed that defect to concept, reasonable man which tended negligence-oriented that “unrea- concept, the strict and offered liability dilute in articulating should included sonably dangerous clause” be to Justice Jones proximate jury. the issue of cause Chief seller liability of of a limiting the result explained standard, clause man” which the upon a “reasonable premised the seller “unreasonably suggest, protects could dangerous” to all becoming insurer of his with products respect from “an But, also use.” standard would generated by harm their such an injured consumer-plaintiff prove an element require that, regardless of the practice which means negligence, product, injured regarding consumer’s expectations “ordinary if an injured would be unable to recover consumer defective condi- expected product’s consumer” would have opined unnecessary it tion. Chief Justice Jones to limit upon injured additional burden consumer place the seller’s because the seller is adequately protected “by necessity that there proving was a defect in the manufacture or design product, and that such defect proximate injuries.” was a cause of the Id. at 899-900 (quot v. ing Corp., Cronin J.B.E. Olson 8 Cal.3d 104 Cal.Rptr. (1972), 501 P.2d whose we holding address result, infra). As a the OAJC concluded that the jury should not be instructed as to the reasonable man standard or “in any reasonableness form.” Id. at 900.
Chief Justice Jones added that proof is not premised whether the seller could have foreseen a particular injury, for to articulate the proof burden of in terms of foreseeability is to require plaintiff prove that the But, seller exercised due care. because the seller is liable in strict liability regardless any negligence, whether the seller could have foreseen a particular injury is irrelevant. Once a defective, is proved the seller is responsible for all the caused, unforeseen harm it no matter Moreover, how remote. reasoned, Chief Justice Jones a plaintiffs negligence does not bar recovery in strict liability, evidence although that would tend to prove such be negligence may relevant for the purpose rebutting the plaintiffs contentions of proximate defect and cause. Id. at 901.
Finally, the Berkebile OAJC addressed the viability of the plaintiffs claims, failure to warn reasoning that the trial court had erred in failing charge jury on the point. Chief Justice Jones stated: “A ‘defective condition’ is not limited to defects in design or manufacture. The seller must provide product every with necessary element to make it safe for use. One such element may be warnings instruc- and/or tions concerning use of the product. A seller give must such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his added) product.” Id. at 902 (emphasis (citing Restatement c). § (2d) 402A cmt. The of portion the Berkebile of Torts opinion emphasized lead above was quoted subsequently out of context the majority in Azzarello as the standard of proof in a strict liability action. of that the first decade back, apparent it is now
Looking offered liability Pennsylvania of strict the doctrine applying a vibrant develop opportunities of missed a series The difficulties law on the issue. of common body coherent idiosyncratic procedural of the the happenstance arose from apparently nevertheless in which the Court of cases postures start, To in the arena. advances conceptual to make sought and re- Restatement the Second “adopted” the Webb Court without application, court for to the trial manded the case 402A derived how Section much of either offering explanation law, or direction common existing complemented from or courts, including the lower its concerning application of posture The Webb—an procedural jury charges. realm of objec- sustaining preliminary a trial court decision from appeal law, of the the direction regarding consensus some tions—and dissenting concurring explain approach. perhaps relied, Miller, which the Webb Court expressions availability explanation reasoned offered a more cause of action a separate in tort as liability strict summary attenuated, approach stark degree, to a But, expressions— responsive majority decision. Webb less— warranty case no a breach of in the context of offered founda- of essential of an explication little in terms suggested generally which are practical application, concepts tional law decisions. non of common qua the sine articulation Restatement so, much like the Second And affir- speak law did decisional liability, Pennsylvania strict liability in strict proof burden plaintiffs to the matively i.e., then- compared as by negation, it but addressed cases and, warranty initially of breach of theories more familiar decade, foundational later, subsequent In the negligence. of action did in tort cause the strict regarding issues or, pre- were questions when Court Supreme not reach the support. majority clear sented, failed to command expressions considerations, to broader spoke extent that Court To the original prominence became evident: trends several application to limit attempts warranty-related *52 decreased, negligence-related relevance and the theory ascent; encroachments commenced its rhetoric emerged only distinguish roots, strict from negligence its but (such also to negligence excise principles terms as foresee- from strict ability) liability theory; the reliance upon formulaic reiteration of consumer protection-related offered as policies, against bulwark attempts to dilute the of strict application cases; liability theory in individual and then a focus in strict liability theory that ultimately turned a statutory con- struction-type analysis of the Second Experi- Restatement. suggests trends, starts, ence these and fits and have proven antithetical to the orderly evolution of our decisional law, one that must be responsive to new problems, perspec- tives, and consequences.
2. Azzarello
In
the Court was confronted with the question of
whether the trial court had adequately charged a
on the
jury
law of products liability in Pennsylvania. The Azzarello plain-
tiff had
injured
been
when he pinched his hand between two
hard rubber rolls in a coating machine
manufactured
Black
Brothers Company.
plaintiff
proceeded on a theory of
strict liability against
manufacturer,
but the manufacturer
joined
also
plaintiffs
co-defendant,
employer as a
assert-
ing that the employer’s
was the
negligence
sole or contribut-
cause
ing
plaintiffs
Azzarello,
injuries. See
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 jury, or the whether the words “unreasonably dangerous” any have place in the 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
361 loss be the words placed upon supplier.” risk should liability limit and that a dangerous” signal “unreasonably product. is insurer a of the guarantor seller not an but However, the use the term in difficulty jury the with instructions, reasoned, was that it to the signaled the Court the burden to an element of jury prove the consumer has Court, cases, According liability in strict negligence. the unwarranted; burdening negligence a with is plaintiff proof “by necessity the seller’s is limited the liability proving design there was in the manufacture or of the a defect that such was a cause of the product, (legal) and defect Cronin, injuries.” Cal.Rptr. Id. at 1025 104 501 (quoting 1161-62); Berkebile, at see A.2d at P.2d also 337 899-900. that a change The Azzarello Court further reasoned terminology negligence principles to avoid references to would lay be insufficient to articulate instructions for a appropriate Court, Indeed, the jury. according to the the formulation of in- jury Restatement was not intended to articulate Second designed instead employed principles predict structions but guide professional and to the bench and bar. responsibility the to implement The Court then concluded that best means (1) the of the Second Restatement was to direct: principles “unreasonably that the “defective condition” and dan- phrases justified, would be predict recovery which whether gerous,” for decision to the policy solely are issues of law and entrusted court; (2) plaintiff inquiry trial that the into whether in the complaint ques- has the factual proven allegations Court, in cases an tion for the jury. According design, dispositive whether alleged question defective for its use. The product empha- is safe intended Court “guarantor” product, sized that the seller is the jury supplier’s could find a defect left “where it safe any necessary control element to make for its lacking feature that renders it unsafe possessing any intended use or Berkebile, for the use.” Id. at 1027 337 A.2d (citing intended 902). in- concluded that the should be Having jury standard, on “unreasonably dangerous” structed Court then Court’s decision to remand the Superior affirmed the to the trial court for a new trial. case Design Jurisprudence
3. Post-Azzarello Defect Azzarello, liability in strict Following decisional focus cases an increasing segregating shifted to reflect concern with sever- negligence concepts. The Court addressed evidentiary questions, process touching upon al founda- tional notions of strict relevant to a defect design claim.13 Co., Division,
In Lewis v. Coffing Hoist Duff-Norton (1987), Superior Pa. A.2d Court affirmed the *54 to uphold jury plaintiff Court’s decision verdict favor of a of a box alleged design who that control for an overhead safety electric hoist was defective because it lacked a mecha to prevent depression nism accidental of the control buttons. plaintiff injured legs accidentally The had his when he de buttons, pressed the control which to swing caused hoist body. its load into The Court rejected his the defendant’s claim that in excluding the trial court erred expert testimony to relating industry practices, standards and that e.g., ninety of similar percent guard hoists lacked around the control and that a trade panel group nationwide had certified the as safe. product design
Before addressing particular whether expert testimony was action, relevant to a cause liability strict of Court Lewis out of set its view the applicable substantive law. The Court jurisprudence liability The developed
13.
of strict
for
failure warn also
See,
594,
e.g.,
Daisy-Heddon,
parallel.
Sherk v.
498 Pa.
A.2d 615
450
(1982) (where
propensity
toy gun
of
lethal
was known or
have
should
user,
strictly
known
been
warn);
manufacturer not
liable
failure
for
52,
Westinghouse
Corp.,
Mackowick v.
Elec.
525 Pa.
575 A.2d
(1990) (capacitor
100
not defective for
to warn
failure
electrician/in-
live,
wires);
danger
exposed
Coyle,
tended user of obvious
electrical
(strict
liability
A.2d
prescription
584
at 1383
for
to warn
failure
drug’s dangerous propensities
recognized
is as
of action
cause
Richter,
558,
(1996)
against pharmacist); Hahn v.
543 Pa.
673
888
A.2d
(where adequacy
warnings
prescription drugs
associated with
is at
issue,
liability
recognized
liability);
is not
as basis
Davis v.
(1997)
Corp.,
(notwithstanding
Berwind
Pa.
A.2d
547
690
186
ease
device,
removing safety
warning
on blender sufficient
to caution
against
operator
injury).
conduct that caused
available
a cause of action
in tort was
that strict
noted
The Second
design.
a defect
is caused
injury
when an
Court,
provide
does not
Restatement,
to the
according
have articulat
“defect,”
jurisdictions
of the term
definition
defect.
subject
design
formulas on
ed diverse
which is an
expectations” approach,
noted a “consumer
Court
safely
as
perform
“failed to
the product
into whether
inquiry
in an
when used
expect
would
consumer
ordinary
as an
(cit
at 593
manner.” Id.
foreseeable
reasonably
intended or
Co.,
Cal.
Cal.3d
Engineering
Barker v. Lull
ing
(1978)).
accepted approach,
A second
The Lewis Court condition of the relevant at trial is the agreed approaches manufacturer’s rather than the reasonableness concluded, result, a strict As a Court conduct. *55 harmony in negligence proposition in
claim does not sound —a that, held because The Court the Azzarello decision. with liability in liability a strict bearing upon no “due care” has negligence to a go case, industry standards —which proof of “created a irrelevant and care—are of reasonable concept [the attention from jury’s diverting likelihood of strong of the [manufacturer-defen- the reasonableness product] at 593-94. design.” its Id. choosing conduct dant’s] concurred, because of their adding Mr. Larsen Justice nature,” industry of stan- admission self-serving “inherently to the consumer. highly prejudicial be dards evidence would majority’s criticized the dissent, Flaherty In Mr. Justice claims, that evidence noting liability to strict approach claim; liability a strict prove alone is insufficient injury rather, industry standards are relevant to the question so, said, defect. This is the dissent because are suppliers liable if an only unsafe on the placed market: strict liability “does not impose liability failing to make an safer, safe already product somewhat or for failing to utilize the safest of all possible designs. We are not simply dealing with Platonic conceptual ideals of when a perfection jury any considers whether given product is safe.” Id. at 595. In dissent, Hutchinson, a separate joined Mr. Justice also Flaherty, opined Justice that industry standards are written by specialized individuals with knowledge product design superior and, result, to that of courts as a evidence of such standards is relevant question to the of defect. Justices Flaherty and Hutchinson concluded that industry evidence of standards was admissible although necessarily highly pro- bative.
Later, in Kimco Development Corporation v. Michael D’s
Outlets,
Carpet
(1993),
536 Pa.
On in strict is a defense to a claim negligence that comparative amongst the noted that law Initially, “[t]he Court liability. on the disarray point the states is considerable various that contributo- applying The reasoned question.” Court then cause liability claims would to strict ry negligence principles of would undermine the purpose confusion” and “conceptual development the of liability: [Section] strict “[throughout concepts have adamant that liability, negligence 402A we been (citing liability have in a strict action.” Id. at 605-06 place no McCown, Berkebile). Court, Azzarello, the According to product “the on the nature of the liability, strict focus is the to expectations regard the with consumer’s reasonable conduct of either the manufac- upon rather than the product, concluded injured.” turer Court person or premised negligence reduced on recoveries to be permitting to policy weaken deterrent effect of the would concepts to the shift the risk of loss the consumer and to protect to fault regard the defective “without supplier product dissent- Flaherty Id. 605-07.14 Justice privity of contract.” ed, without liability that strict upon argument premised enterprises faults burdened business regard proportionate to economy. to the with that worked serious detriment liabilities the Third Restatement 4. Recent Cases and of the law In ALI a new restatement proposed liability. See relating specifically products Restatement (1998) (Liability Liability §§ 1-8 (3d) of Torts: Products evident from Generally). As is Applicable Rules Products deter- yet this Court has not litigation, premise Third Restate- adopt the formulation mined whether promi played noticeably comparison, separation less By 14. doctrinal contributory negli relating earlier to whether nent role an decision McCown v. gence strict claim. In was an available defense to a (1975), Co., Court 342 A.2d Harvester 463 Pa. International in a contributory negligence was not an available defense held recognition liability case would contradict because such expectation product safety which the strict normal product premised. inspect action is "One does cause of guard against when one possibility defects defects or item to be Id. at 382. assumes the safe.” *57 366 However,
ment as the law of the for Pennsylvania. suggestion Restatement, “move” adoption a to the Third of certain of in principles, non-precedential opin- its has been made several ions. a question
In
the
before
six-Justice Court was wheth-
liability
er a
in strict
to a
supplier
responsible
was
consumer-
other than the intended user of the
plaintiff
product. See
(2003)
Phillips
Lighters,
v.
576 Pa.
The single Justice authored Mr. Chief Justice OAJC concluded that a if safe Cappy not defective it is for rejected its intended user. Id. at 1005. The OAJC the plaintiffs argument responsible that a manufacturer should be user, harm to a foreseeable albeit unintended that opining no foreseeability concepts application liability have strict theory may and foreseeable users by proving negli- recover other gence. Among things, recognized OAJC that some liability strict decisions relied upon princi- had foreseeability but the ples denounced the and have opinion practice would reaffirmed firm conceptual distinction between strict liabil- ity causes of action. at 1007 negligence (citing Id. Davis (1997)). v. Berwind 547 Pa. Corp., “Recogni- A.2d that liability tion strict type mongrel derivative of with negligence is also consistent the historical development cause of action. Strict was intended to be a cause separate of action and distinct from to fill negligence, designed Azzarello, perceived gap (citing our tort law.” Id. 1023-24). footnote, A.2d at In a the OAJC noted the suppli- Restatement, argument er’s alternative Third relating but deemed it waived. Justice Nigro Mr. concurred result, opinion. without an Madame filed a Justice Newman in which with agreed she concurring dissenting opinion, claims failed because OAJC adults; New- safe for its intended use Justice lighter was opinion addressing from of the part man dissented Id. at 1024 plaintiffs negligence claim. disposition (Newman, J., dissenting). concurring which this Saylor concurring opinion, authored a
Mr. Justice joined. Saylor Mr. Justice advocat- author and Justice Eakin matters, to ed to address foundational taking opportunity and to Pennsylvania’s approach, Restatement reassess Second measures, accessible, corrective range readily examine the *58 of In relevant adoption the Third Restatement. including first, three that strict points: the concurrence addressed part, concepts negli- with central to doctrine embedded liability second, in and inconsistencies gence theory; ambiguities that proper strict affected the prevailing liability jurisprudence third, that Restate- appeal; of the the Third disposition most to clarifi- would the viable route approach provide ment’s in liability jurisprudence cation and remediation of Pennsylvania. noted that the Second Saylor the first point,
On Justice cause of action liability articulation for the strict Restatement At design in to defect claims. posed application difficulties the derived from Saylor standard origin, explained, Justice cases, wrong “something defect in which went manufacturing the was manufacturing process” resulting product in the objectives of the Second safe as intended. The core not as of the consumer-plaintiffs had been to relieve Restatement had due care supplier the exercised proving burden (necessary negligence), to manufacturing process prove But, Justice among the risk of loss consumers. spread and to observed, recognized “limitations had since Saylor courts judicially via just spreading of loss implementation (citing Langston Id. n. 3 v. doctrine.” at 1013 Duchess crafted (2001)). 529, 1131, 1145 Pa. Consistent 564 769 A.2d Corp., a supplier Restatement declared with its Second purposes, preparation if it care in the possible liable even exercised all But, was of the doctrine product. application and sale 368 unreasonably
limited to products dangerous defective consumer or his The concurrence noted property. formulation, result, Second Restatement an as contained internal tension: the strict rule “was tempered by negligence-based concept application design of defect.” In claims, observed, defect the concurrence further courts (or role Pennsylvania “an recognized integral risk-utility cost-benefit) balancing, derived Id. negligence theory.” from Azzarello, 1026; Sears, at 1013-14 (citing 391 A.2d at Burch v. Co., (1983); 615, & Pa.Super. Roebuck 467 A.2d 618 Mallis, Dambacher v. Pa.Super. A.2d (1984)). result, As a while the of retaining rhetoric a firm separation between strict negligence remained law, pervasive in in application, decisional the distinction was unnecessary: design cases the “[i]n character and the conduct of the largely inseparable.” manufacturer are The concurrence recognition advocated the essential role played by risk-utility negligence-derived balancing design litigation. defect Id. at 1015-16.
Relating to the second point, the concurrence offered Azzarello, critique which is relevant particularly since Ome- Flex ga analysis echoes the appeal. According concurrence, have implemented courts the Azzarello decision (1) by: assigning risk-utility balancing to trial courts on *59 (2) the facts most favorable to the plaintiff; providing and juries that, with in minimalistic instructions an effort insu- to late the jury negligence terminology, from “lack essential guidance concerning the nature of the central of conception product defect.” Because the jury permitted is not to consid- factors, er the cost-benefit judge “actually neither nor jury decide whether the true proposed benefits of the alternative design the true in outweigh cost” and whether the product is fact dangerous Furthermore, or unreasonably defective. the that, concurrence by “unreasonably added the critical omitting instructions, dangerous” limitation on liability or cost-benefit the Azzarello-approved charge fails to define the term “de- fect” clearly, to in consequently guide and fails the jury distinguishing products safe and for their unsafe intended use. the use term “guaran- concurrence also noted that of the The the a sufficient limita- in relation to manufacturer tor” the liability, lay jury on because term “to will especially tion ” from surely indistinguishable seem ‘insurer.’ A.2d 232). Thomas, 71 L.Rev. at 225 & (citing Temp. 1016-18 the jurisprudence concurrence correction of this advocated justice. of interest the final the concurrence the Third point, suggested
On of Restatement as a viable alternative articulation the stan- potential persisting of with the to the proof, dard resolve in the efficacy liability difficulties and to enhance fairness and concurrence, Id. to the the Third According schema. at 1021. “the negligence-derived represents Restatement’s standard of expression thirty years design-defect litigation.” distilled Third general The concurrence summarized the rule the product Restatement as follows: “a deemed defective could or design when the foreseeable risks have been reduced by use of a design, avoided the reasonable alternative has caused the design when failure utilize such ex- to be ‘not safe.’” The concurrence reasonably that defect the Third Restate- plained design liability under in which predicated upon concept responsibility ment is an the determination is made reference to by independent rather advantages disadvantages, than assessment marketing own design reference the manufacturer’s standards, alleged which are in fact to be unreasonable Moreover, stressed, products are plaintiff. concurrence are Relevant to simply they dangerous. not defective because Third the issue in the concurrence added Phillips, expressly incorporates Restatement notions reasonable on the foreseeability temper that would exclusive reliance concurrence, Third risk-utility In the test. view ap- Restatement best-balanced and reasoned provided note, liability Pennsylvania. a final proach strict On of the strict doc- opined application concurrence closely existing trine should limited until the substantial be are deficiencies schema addressed *60 by remedied the Court.
In
Services,
the Court decided General
the case upon
which
Flex
Omega
extensively.
relies
The Court there award
trial,
ed the
a
supplier
holding
new
that the trial court erred in
failing to instruct
the jury that a supplier is liable
for
only
harm that
occurs
connection with the intended use of a
product by an intended user.
In an opinion by
Saylor,
Justice
the General Services Court
noted the consensus in Phillips, supra, against
“expanding
scope manufacturer liability without fault in a generalized
fashion”
an
pending
overhaul of
strict
by
doctrine
Court.
In
respect,
the Court acknowledged that acciden-
tal combustion of the building materials was foreseeable and
argument
an
could be
for
made
the notion
safety
an intended use of the materials should be deemed to encom-
pass safety under such circumstances. The Court neverthe-
rejected
less
the argument that expansion of liability premised
upon negligence-based foreseeability considerations was war-
ranted, emphasizing an incongruity with simultaneously con-
straining
supplier’s resort
to negligence-based use-related
defenses. See
In a
Justice
reiterated
liability
concerns
in the area of strict
persisted
foundational
and,
background,
of
the main
of
by way
recapitulated
points
the
the
concurrence. The dissent also noted that
Phillips
liability
negligence prin-
divide between strict
and
categorical
cases,
justified
is most
ciples,
readily
articulated
cases;
design
defect
claims
manufacturing
implicating
defect, however,
problematic.
are far more
Relevant
warning
claims,
that doctrinal
explained
defect
the dissent
design
the liability
product
evolved to contain
of
limiting principles
ill-
of
because traditional notions
strict
suppliers
were
open-ended damages
a tort
a
regime
largely
suited to
with
of
reality
capable
all
are
product designs
scheme and
dissent, According
to human
to the
contributing
injury.
mandatory
of a
insurance
judicially imposed
alternative
note,
Services,
part,
15.
of
in General
Justice Newman dissented
Also
joined
expression.
Newman’s
The dissent
and Mr. Justice Baer
Justice
user,
by
product
of
a
argued
implicated
that the matter
not a misuse
had,
during
an
Phillips
but a
in which
an intended use
as
situation
user,
easily
exposed
anticipated
conditions.
intended
was
liability appli-
would
the doctrine
strict
Newman
have found
Justice
cable,
theory
exception,”
would
a
akin
“crashworthiness
on
to the
request
a
Id. at 619.
for
new trial.
have denied
manufacturer’s
upon
theory
Omega
argues that
relied
described
Flex
the Tinchers
But,
rejected by
majority.
the General Services
the dissent
majority
that its "discussion
not address
[did]
General Services
noted
building
which a
in the
is the cause
situation in
defect
materials
ordinary
n.
occurring during
use.”
Going
the dissent
moving
advocated
beyond
doctrinal divide between strict
and
liability
negligence princi
ples
Azzarello,
that
was articulated
according
Azzarello.
dissent,
to the
not
was
reasoned well in its time
not
and has
withstood the test of time.
Id. at 1236-37 (criticizing, inter
alia,
Cronin,
121,
Azzarello Court’s reliance on
8
104
Cal.3d
Cal.Rptr.
Co.,
501 P.2d
v.
Ford Motor
123
Glass
(Law Div.1973)).
N.J.Super. 599,
The dissent
some
Assembly
existing
best
to alter the
positioned
General
But,
noted,
schema.
the dissent
because
product liability
arena,
which remained
Legislature
occupied
had
jurispru-
had “taken our
disrepair
state of substantial
from
home of tort law the
legitimate
dence too far
permis-
action
the Court was
concept
justice,”
of corrective
*63
necessary.
category
a distinct
degree
sible and
“To
most,
it
necessary,
doctrine is
‘strict’ product
be,
been,
rationally
quasi-strict
should
one of
always has
and
cases,
warning
with the
liability,
design
and
tempered,
and reason-
foreseeability
involvement of notions of
legitimate
Id. at 1240.
within the
the fact finder.”
purview
ableness
void” that
then
the “substantial
suggested filling
dissent
by
prospective
would
left
Azzarello with a
disapproval
be
position.
to the Third Restatement
movement
alternative,
that,
suggested
as an
the dissent
Importantly,
to
continuing
perfect
by
for the
vehicle which
while
search
scheme,
could
the Court
replacement
devise a
clearing
thus
prospectively,
“at least
from Azzarello
depart
courts
appellate
for our common
intermediate
path
pleas
to consider the reasoned recommendations of the Third Re
statement, as well as other reasoned alternatives
re
and/or
Bugosh,
finements.”
In
in parallel to the
proceedings 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 doc
trine to prevent recovery in strict
liability by
by
innocent
Berrier,
curiam).
standers. See
16.
In several recent
tangential
Court resolved other claims
Schmidt,
concepts
fundamental
liability.
of strict
See
375
of Appeals
relevant
U.S. Court
developments,
In other
that, if
this
were
predicted
for the Third Circuit has
Court
issue,
Third Restate
adopt
confront the
we would
directly
Berrier,
liability
formulation of the strict
doctrine. See
ment’s
40. The Third
reasoned that Justice
563 F.3d at
Circuit
in
concurring
Phillips foreshadowed
Saylor’s
opinion
2 of
Restate
of Sections 1 and
the Third
adoption
Court’s
cause
action. Id. at
definition
strict
of
ment’s
apply
on to
Third Restatement
53. The Berrier Court went
distinguished
a
as
from a user
permit
bystander,
principles
consumer,
in
Id. at
liability.
to state
cause of action
claim;
(intended
61
user
does not bar strict
doctrine
grant summary judgment).
trial court’s decision to
vacating
Cir.2011)
Inc.,
(3d
v. Bell
C. Progeny Azzarello and Its case, posed In this of whether question Azzarello, viability. its should retain progeny, rationale course, infallible; Precedent, if we ensure both not are to justice, willing and the we reality must be perception rule precedent prior reexamine if it is demonstrated that serve, serves, or no the interests of adequately does not longer 888; 505. justice. A.2d at 79 A.3d at Ayala, Carney, See 305 Here, articu- agree that the decision in Azzarello parties fail to realities legal which reflect the governing concepts lates Berrier, matters, diversity jurisdiction in Third Circuit 17. Until Pennsylvania Third Circuit applied law as articulated Azzarello. making analysis risk-utility predicted that this Court would utilize of whether loss should threshold determination the risk of Azzarello recognized had placed supplier. that this Court be on The Circuit matters; risk-utility approach design expressly approved of defect Superior precedent and Circuit relied Court the Third instead existing consistency pronouncements inquired into with this Court’s (3d Inc., Caterpillar, 1043-47 law. Surace v. F.3d decisional Lewis, Mallis, Cir.1997) Pa.Super. (citing v. supra, and Dambacher (1984)). n. 485 A.2d *65 376
of strict liability practice
justice.
and to serve the interests of
in
suggested
Several members
this Court have
past
See,
very assessment of Azzarello.
841 A.2d at
e.g., Phillips,
J.,
Eakin,
joined
1016-18 (Saylor,
concurring,
by Castille and
Berrier,
JJ.);
J.,
joined
As we have
phrase
Azzarello held that the
“unreason-
ably
and,
dangerous”
per misleading
lay jurors
se
as a
result, the Court dictated that any questions relating to the
risks and utilities of a product are to be decided
the trial
by
Moreover,
court as a matter of
policy.
law and
Azzarello
approved,
thereby
and
essentially required, instructions which
that,
jury
informed the
for the purposes
supplier’s
of a
strict
tort,
must,
therefore,
“the product
provided
be
with
(its intended)
every
necessary
element
to make it
safe
use.”
The Azzarello Court premised its broad on the holding assumption that the term “unreasonably dangerous” is mis- leading jurors because it suggest “tends to considerations which are usually identified with the law of negligence.” 391 A.2d at 1025. Although general notion had some support Berkebile, in prior Pennsylvania cases, observations in see 337 (Jones, C.J.), A.2d at 899-900 the Azzarello Court cemented the notion focusing expression “unreasonably on the dan- gerous” out of the context jury in which it charge appeared and it a pressing upon deceptively simple, indeed dogmatic, significance. See Commonwealth v. Mur-
377
(1999) (Court
71,
141, 146
jury
A.2d
evaluates
559 Pa.
739
phy,
and clear
to determine whether it is accurate
state
charge
entirety,
law;
and considered in its
charge
ment
read
controls);
v. Sepulve
Commonwealth
general
its
effect
accord
da,
(2012);
Pa.
A.3d
1142
v.
Commonwealth
(1977).
Lesher,
1088, 1091
Pa.
A.2d
negligence-strict
That
into a
keyed
Azzarello Court
may
be
the Second Restate-
liability dichotomy
explained
ie.,
explicit
negligence
negative,
ment’s
reference to
402A
compensation
require proof
under
does not
Section
of the Second
language
of due care.
Court parsed
Restatement,
condition”
the terms “defective
particularly
*66
dangerous,”
precise meaning
“unreasonably
in the utilization of those terms. See 391
reporter’s intent
(“We
requirements
set
upon
A.2d at 1024-25
must focus
two
liability (physical injury)
in
402A for
that the
forth
Section
‘unreasonably
be
and that it be
‘in defective condition’
added). But,
”)
402A
not
Section
does
dangerous.’
(emphasis
and,
may;
as a statute
more-
legal “requirements”
articulate
is,
course,
over, the
of the
of
not due the
reporter
“intent”
in
legislative
of
intent
statu-
weight
pronouncement
same
as a
section
Any
simply
construction.
restatement
tory
given
law,
states,
restates,
general
of the common
rules
principles
consensus,
validity ultimately
reflecting whose
purported
Coyle, 584
supports
on the
them.
depends
reasoning
Yet,
in a
engage
A.2d at
the Azzarello Court seemed
1385.
402A, including by pro-
construction of Section
statutory-type
every
effective. The
ceeding
Section 402A
presume
part
type
analysis
rule
Azzarello
premised
derived
although addressed
negligence concepts
is that
and rhetoric —
negative by
in the
affected a
Restatement —somehow
cases, regardless
proof
burden of
in all
plaintiffs
facts.
pertinent
in
the Azzarello
concluded
Speaking
generalities,
Court
in a strict
plaintiff
rhetoric saddles
liabili
negligence-related
ty
proof
case with an additional and unwarranted burden
every case.
A.2d at
Cronin v. J.B.E. Olson
(quoting
1025
501 P.2d
1161-62
Corp.,
Cal.Rptr.
Cal.3d
(1972)).
Azzarello,
The facts of
when viewed with the appro-
priate judicial
did
modesty,
require
such a
pro-
broad
nouncement. The issue of “jury confusion” there arose in a
distinct, fact-bound context of a
jury trial which claims of
strict liability and counter-claims of negligence were asserted
against
parties.
distinct
The Azzarello Court offered no ex-
planation of either the nature of the perceived unwarranted
additional burden nor how that burden altered the liability
calculus for the Azzarello jury. Nor did the Azzarello Court
explain the
leap
logic necessary to extrapolate that every
lay jury would relate reasonableness and other negligence
terminology, when offered in a strict
liability charge, to a
“heavier,” negligence-based burden
proof.
Jury charges
are generally delivered orally
citizens,
to ordinary
and not by
written transmission to be pored
over
lawyers
scholars or
aware of other forms of liability not always at issue. See
Sepulveda,
The Azzarello Court found support for its holding not in the itself, Restatement or in any law, source of Pennsylvania but in the decisions of the Supreme Cronin, Court of California in 121, 104 8 Cal.3d 433, 1153, Cal.Rptr. 501 P.2d and of the New Glass, Jersey Superior in 599, Court 123 N.J.Super. 304 A.2d 562. a While broad application of Cronin could support the
379 formulation, is notable the rationale it Azzarello Court’s as narrower significantly of decision was explained Barker, decisional law. Supreme latter Court See California 225, Meanwhile, was 573 at 446. 143 P.2d Glass Cal.Rptr. in Jersey New Court Supreme actually disapproved Co., 152, 76 386 A.2d N.J. Cepeda Engineering v. Cumberland (1978), v. San grounds by overruled on other Suter (1979) Co., & 81 N.J. 406 A.2d Foundry Mach. Angelo statute). Pennsylvania, unfortunately, in part by (superseded light developments of these adjust jurisprudence did not its Azzarello’s underpinnings. that eroded distinguishable also worth that Azzarello was noting It is Cronin, chal on the In the defendant from Cronin facts. an instruc deny the trial court’s decision to lenged appeal on that, pertinent tion which jury, provided part defect, had the adducing proof of a the plaintiff addition made it the defective condition proving burden of “[t]hat user or consumer.” Cal. unreasonably dangerous to the suggested 501 P.2d at n. 6. The defendant Rptr. proof, reminiscent distinction between two elements activity, blasting. an such as liability abnormally dangerous for 519(1) (“One on § who carries See Restatement (2d) of Torts abnormally dangerous activity subject for an resulting from harm to the land or chattels another person, care to although he has exercised the utmost activity, harm.”) added); §§ see id. 520- prevent the also (emphasis rejected challenge 524A. The Cronin Court defendant’s instructions, it an jury ground placed to the on the plaintiff. burden of on the proof unwarranted defendant’s decisional law eschews Cronin Importantly, 402A, in strict and the causes of action Section application activity abnormally dangerous for an products and the plaintiff. are as distinct burdens for recognized carrying Azzarello, plaintiff error of By which comparison, in a of reasonableness appeal speaking on was that complained in which only negligence instruction issued in a case jury cross-defendant/employer were against made allegations plaintiffs proof mislead the as to the burden jury tended to *68 in its own distinct strict against case the defen- similar While considerations have may dant/manufacturer. been pertinent, certainly a nuanced analysis the Cronin decision in the context of the arguments Azzarello would have served for better generalized guidance to the bench and bar.
This case
volumes to the
speaks
necessity of reading
legal
especially broad
against their facts and the
rules —
rules —
corollary
judicial
pronouncements
employ
should
due
(“For
modesty.
Maloney,
See
Compounding
problem
of extrapolating broad lessons
circumstances,
from very particular
the Azzarello Court ac-
complished
goal
its
of insulating juries from negligence con-
(1)
cepts
by:
and rhetoric
holding that the determination “as
to the risk of loss” is a decision to be
by
made
the trial court
(2)
rather than the jury; and
“approving” jury instructions in
liability cases generally. The Court
explained
decision
saying that: “While a lay finder of fact is obviously
competent
resolving
dispute as to the condition of a
an
product,
entirely different question is presented where a
decision as to whether
justifies
that condition
placing liability
upon the supplier must be made.” The Court then suggested
that it is
the trial court’s bailiwick to answer questions
within
of law whose resolution “depends upon social
such
policy”
as:
“Should an ill-conceived
which
design
exposes the user to the
risk of harm entitle
injured
one
to recover?
adequate
Should
warnings
dangerous
propensities of an
article insulate
injuries
one who suffers
from those propensi-
*69
product outweigh
the
of a
the un-
utility
ties? When does
Court,
the
may pose?” According
it
to
danger
“[i]t
avoidable
whether,
aver-
judicial
plaintiffs
function to decide
under
is
facts, recovery
justified;
only
the
be
and
after
ment of
would
to
judicial
is made is the cause submitted
determination
case
jury
support
to
whether
the facts of the
the
determine
complaint. They
do not fall "within the
the averments
of a
is
to the
dispute
properly assigned
orbit
factual
which
for resolution.” Without
further
these
jury
explanation
on notions of social
the
policy,
broad
bottomed
assumptions,
suggesting
concluded that
standard
existence
“[a]
Court
if
unreasonably
duly
the article is
dangerous
a ‘defect’
jury”
to
its stead
inadequate
guide
lay
adopted
safe
the seller would be held liable unless
a formulation
which
element
“provide[d]
every
the seller
with the
neces-
A.2d at
sary
(quoting
to make it safe
use.” 391
1025-27
C.J.)).
Berkebile,
(Jones,
at 902
The 1987 decision in
337 A.2d
innovation,
it
noting
Azzarello’s
acknowledged
Lewis
risk-utility
either a
test or a
offered a distinct standard from
test.
A.2d at
consumer
528
593.
expectation
the new
proof
The
attributed
standard
Azzarello Court
justice
Berke-
opinion
the one
lead
of Chief Justice Jones
bile,
quoted
Additionally,
which the
out of context.
Court
charge significantly
import
endorsed
altered
jury
Berkebile,
The difficulty Azzarello standard is impracticable. As an illustration of its new standard’s applica- tion, 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 of their explanation practical import, also mirrored the standard jury charge approved by Azzarello. purport Court did not to articulate a departure from the formulation, Second Restatement nor did it discuss the rea- Yet, for or soning implications of so. doing Azzarello Court chose this iteration of the law fill the legal void *70 by caused its bright-line any rule that negligence rhetoric carries an undue risk of misleading lay jurors in strict liability cases. Flex,
Omega subscribing existing criticism of this scheme, (1) faults Azzarello for removing from the jury the risk-utility calculus implicated in what Azzarello called “the determination; (2) risk of loss” the requiring trial court to make the determination before the evidence, facts even are in premised merely upon the plaintiffs allegations and with all inferences benefitting the plaintiff. Although the argument is Court, not explicitly made to this the obvious suggestion is that the scheme burdens the right defendant’s jury a fair trial. Setting any aside potential, but here unpreserved, due claims, or process right jury to a the unsupported assumptions and conclusory statements which Azzarello’s directives are built are problematic on their face.
First, the notion that a legal inquiry into “whether that justifies condition placing liability upon the supplier” (product is unreasonably is, dangerous) albeit distinguishable, entirely separable from a factual into inquiry predicate “condition (defective of a product” condition product) when determin- ing whether to affix liability upon a supplier is incompatible Thus, with basic principles of strict liability. jurisdiction in a following the Second Restatement formulation of strict liabili- tort, inty the critical inquiry in affixing liability is whether a “defective”; is product in the claim, context of a strict liability whether that product depends upon a is defective whether Yet, Azzarello “unreasonably dangerous.” divorced product scheme, under the Azzarello from the other: inquiry one of one with the gate-keeper question court serves as the trial a law policy task as matter of deciding apparent even to a strict susceptible is one whether matter, the Azzarello decision did practical claim. As of the trial the court should consider point indicate which evidence would be rele- pleadings what question, nor however, that the inquiry; suggest, vant to the the Court did a factual dispute.” not fall within orbit of “d[id] matter A.2d at 1026. Second, reality, as the matter practical exemplified us, is courts do not have simply necessarily before that trial into the social the risks expertise policy inquiry conduct decide, and to as a products utilities of a plethora law, unreasonably a product dangerous matter of whether injury perhaps {e.g., in the most obvious of cases where except knife), hardly where a function is gate-keeper’s is caused case, In necessary. Omega summary Flex moved trial, Tinch a nonsuit after the close judgment before case, and renewed the motion for a nonsuit after ers’ then rested, the court to determine whether parties asking both TracPipe System unreasonably dangerous. Although was motions, the addressed the merits trial court denied all court *71 in the only calculus on record context risk-utility (“The N.T., 10/18/2010, at 514-15 the motions nonsuit. See cjourt motion, [summary judgment] denied the had [trial sure, it I don’t know for because although presumably, to an that needed be heard this be issue fact thought might trial.”). on Flex’s Omega Given the to rule opportunity at nonsuit, trial reviewed the evidence motions for court motions, in at addition denying introduced trial before ie., proof of a rede evidence deemed inadmissible trial — “Counterstrike,” that as TracPipe System, marketed signed 721-41; at 514-26 resistant strikes. id. & lightning was See 8/5/2011, at 11-20. This matter illustrates Op., Tr. Ct. assigned which Azzarello Court assumptions upon determining task of whether a product unreasonably dan- alternative, are In gerous impractical. a strict reading Azzarello is undesirable because it encourage would trial courts to make either uninformed or unfounded decisions of policy social that then substantially determine the course and outcome of the trial.
Subsequent application of Azzarello elevated the notion that negligence create concepts confusion in strict liability cases to a doctrinal imperative, whose merits were not examined to determine whether such a rule bright-line was consistent with reason in light of the pertaining considerations to the case. Beyond cases, the merits of the narrow in the holdings several the effect of the per se rule that negligence rhetoric and concepts were to be eliminated from strict law was to validate the suggestion action, that the cause of so shaped, was viable, and to invite calls for reform. In the Third predicted Circuit that this Court would simply adopt Third approach doctrine; Restatement the strict Court has not taken that decisional leap. Liability
D. The Strict Product
Cause
Pennsylvania
of Action in
Overruling
forward,
Azzarello leaves a gap, going
our strict liability jurisprudence.
preferable
solution may
be to have the General Assembly address this arena of sub
But,
stantive law.
long
so
as the possibility of comprehensive
legislative reform
unlikely
uncertain,
remains
this Court
authority
retains the
and duty at common law to take neces
sary action to
injustice,
avoid
uncertainty, delay, and the
possibility of different standards and procedures being em
ployed
different courtrooms
throughout
Commonwealth.
Sanchez,
Accord
Commonwealth v.
614 Pa.
36 A.3d
(2011); see
Bugosh,
J.,
also
385 (doctrine immunity judicially imposed may be at 883 of A.2d terminated) v. Kaneland Commu (quoting Molitor judicially (1959) 302, Dist. 11, 89, No. 18 Ill.2d 163 N.E.2d 96 nity Unit (“ unjust found to be unsound and under ‘Having that doctrine conditions, have only we consider that we present We our immunity. but the to abolish that closed power, duty, and we likewise legislative help, doors can courtroom -without v. Mayle Dep’t Highways, Pa. ”)); 479 see also them.’ open of (1978) (Court 384, 709, judicial may 388 A.2d 720 abolish Pa. manifestly unfair and immunity, of which is sovereign doctrine in origin). non-constitutional in tort is a cause liability product
Strict
for
defects
and economic
of
policy
of action which
social
implicates
Co.,
Ash v.
Ins.
See
Continental
593 Pa.
this Commonwealth.
(“Tort
(2007)
523,
lie for
of
877,
932 A.2d
884
actions
breaches
policy,
as a matter of social
while
imposed by
duties
law
by
actions
for breaches of duties
only
imposed
contract
lie
individua
particular
between
agreements
mutual consensus
ls.”).18
and
concurring
The
policy
by
was articulated
Miller,
which
dissenting opinion of Justice Jones
liability
as a
Webb Court relied
theory
the strict
“adopting”
(i.e.,
a product
of
in tort:
who sell
distinct cause
action
those
in the
from
stream
making
putting
profit
commerce)
damage
are
caused to a con
responsible
held
Miller,
See
use
product.
sumer
reasonable
J.,
(Jones,
concurring
dissenting).
A.2d at 334-35
law,
liability
developed
at
Because the
cause
action
common
18.
strict
policy justifications are
from decisional law and schol-
relevant
derived
noted,
Assembly
commentary.
spoken
arly
the General
has not
As
action, although
affirmatively
to the strict
cause
relation
protecting
expressed its interest
consumers
the Commonwealth has
See,
1968,
e.g.,
arenas
Act 387
P.L.
in several
statute.
1166) (the
(reenacted
Act
P.L.
“Unfair Trade Practices
as
260 of
Law”).
arising
presumption
from
Consumer
The fair
Protection
acting
refraining
years
Assembly
for 50
from
otherwise
the General
Assembly
acquiesced in the
the General
has at least
existence
Everhart,
law
cause of action. See
938 A.2d
common
307;
Appeal
(Shoap),
compare
Hosp.
Comp.
v.
Bd.
Phoenixville
Workers’
(2013) (General Assembly
834-35
amended
623 Pa.
A.3d
which,
years,
governed
had
gap
to address
in interim nine
been
statute
law).
by common
*73
therefore,
injury
risk of
placed,
upon
supplier of prod-
Azzarello,
1023-24;
ucts.
391 A.2d at
accord Ellen Wertheim-
Dangers
er, Unknowable
and the Death of Strict Products
Liability:
Empire
1183,
U. Cin. L.Rev.
Back,
Strikes
(1992).
and,
1184-85
No
expressly exempt
as a
result, the presumption
liability
is that strict
may be available
with respect
any product,
provided
evidence is
sufficient to
prove
defect. See Restatement
(2d)
of Torts
(cause
§ 402A cmt. b
of action in
“cover[s]
any product which,
sale of
if
prove
defective,
it should
to be
may
expected
be
to cause
harm
physical
to the consumer or
added);
Prosser,
his property”) (emphasis
accord
69 Yale L.J.
1103-04;
Richter,
but see Hahn v.
543 Pa.
A broad reading of this policy statement
suggests
liability would attach absolutely, once the consumer or user
harm;
indeed,
suffers
early proponents supported such an
See,
application.
Escola
e.g.,
v. Coca Cola Bottling Co. of
Fresno,
(1944)
24 Cal.2d
J.,
150 P.2d
(Traynor,
(“In
concurring)
my opinion it should now recognized
be
that a
manufacturer
an
incurs
absolute
when
an article that
market,
he
placed
has
on the
knowing that it is to be used
without inspection, proves to have a defect that
injury
causes
But,
to human beings.”).
experience has taught otherwise
and, in modern application, strict liability doctrine is a sub
stantially
Prosser,
narrower theory.
To explain its proper post-Azzarello, boundaries we address the fundamental underpinnings of the cause of action: duty imposed by law and what constitutes a breach of the duty; and we also advert to additional matters such as causa- tion, defenses, damages, and effects on other doctrines where necessary. Duty
1. The
imposed
of duties
actions lie for breaches
“Tort
Ash,
A.2d at 884.
social policy____”
as a matter of
law
York’s 1916 MacPherson
with New
the tide turned
Since
the exis-
accepted
have
decision,19
jurisdictions
all American
supplier-consumer
from the
arising
in tort
duty
tence of
remains
jurisdictions
among
relationship. Disagreement
Thus, the
of some
policy
that duty.
the nature of
defining
selling
in the business
engage
is that those who
jurisdictions
manufacturing
care in
to a
of due
subject
duty
are
a product
Prentis,
See,
of care In (negligence)). incorporating the strict cause law, of action into Pennsylvania common the Webb Court expressly relied upon Second Restatement and relevant scholarly commentary justification. its supply 220 A.2d at Indeed, b, 854. c, comments g, and m to Section 402A of the Second Restatement offer reasoned consideration of factors relevant in Pennsylvania to explain existence and nature of duty seller’s in tort to a consumer. In part, comment c explains that: seller, by
[A] marketing his product for use and consump- tion, has undertaken and assumed a special responsibility toward any member of the consuming public who bemay injured it; that public has a right to and does expect, case of products [the] which it needs and for which it is forced to rely upon seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of injuries accidental caused by products intend- ed for consumption placed be them, those who market and be treated as a cost of production against which liability obtained; insurance can be and that consumer of such products is entitled to the maximum of protection at the someone, hands of and proper persons to afford it are those who market the products. § 402A cmt. c. (2d)
Restatement Torts This reasoning explains the nature of the non-delegable *75 duty articulated by the Second Restatement and in recognized Webb. Stated a affirmatively, person or entity in the engaged business of selling a product has a duty to make and/or market product “is expected to and does reach the —which user or consumer without substantial change the condition in which it is sold”—free from “a defective condition unreason- ably dangerous to the consumer or [the property.” consumer’s] Accord 402A(1). § (2d) Restatement of Torts Duty
2. Breach of Where a duty and, exists in the absence of a recognized immunity, breached, is duty and the breach of the duty is causally connected to a compensable results, injury
389 results, tortious regardless of whether the act is a tortious act v. Compare as fault. Outboard colloquially construed Welch (5th Cir.1973) (“Fault 252, as the Corp., 481 F.2d 256 Marine of negligence agrees of a in the absence duty violation — —even ____”) Putman, with 338 principles generally with civilian (unlike which a at 913 n. 8 is (“[W]arranty negligence F.2d fault) not a on fault or concept tort based on based concept But this not on the failure to exercise reasonable care. does or non-tortious warranty necessarily mean contractual nature.”). in a duty a breach strict To demonstrate (manufac- matter, prove a must that a seller liability plaintiff distributor) a in a turer or on market placed “defective condition.” context, is a legal
In this of defective condition concept art, colloquial import denotes neither its nor term which “The scientifically design immutable fact. term ‘defect’ ‘an for conclusion legal cases is epithet expression —an ” Prentis, than 365 reaching rather a test for conclusion.’ “Design Wade, at 182 John W. (quoting N.W.2d On Product 551, L.Rev. Van. Actionability, Defects” and Their (1980)); Wade, accord John W. On the Nature of Strict Tort (1973) (see Liability 44 Miss. L.J. 831-32 Products, 21). otherwise, evidentiary (e.g., n. considerations infra Stated defect) legal tends to the existence of a prove what evidence question not be mistaken for the of whether substan- should exist, or duty in exists or should what tive 57 A.3d duty. Scampone, constitutes a breach of that Accord (evidence nursing of whether home was similar to at 606 owed patient of whether home hospital dispositive nursing tort); Korvette, Inc., duty substantive v. Pa. Gilbert (1974) (correcting regarding A.2d confusion res 96-97 doctrine, which was “conceived as shorthand ipsa loquitur be evidentiary allowing negligence rule statement erroneously proof’ circumstantial but devel- established care). In duty into oped heightened proving burden whether those who make or Pennsylvania, question (in in strict addition to market have duties products in the affirmative the 1966 negligence) has been answered *76 substantially The question proven decision in which has Webb. more difficult been one of what evidence is relevant proof: has a condition” and how should that evidence prove “defective be weighed. Proving
3. The “Defective Condition” Standard Design-Related In of a the Context Claim21 of its colloquial Not least because use attendant implica- tions a level of courts certainty, jurisdic- scientific across legal tions have articulate the notion of “defect” struggled condition, in a account for an way alleged would such market, myriad way in encompassing products on effectively jury. difficulty that can resonate with a persists with to defects particularly respect design. See J., at 1234 Bugosh, (Saylor, dissenting); 971 A.2d see also Owen, (citing 73 Mo. L.Rev. at 291-92 n. 2 cases from & other jurisdictions). explained difficulty Dean John W. Wade22 as follows: term many
[T]he “defective” raises difficulties. Its natu- ral would be the situation in application limited to which in the something wrong manufacturing process, went so that the article defective in was the sense the manufacturer had not it to be in intended that condition. To it also apply to the case in a warning which is not attached to the chattel or the out one or design turns to be a bad condition, likely injurious to be its normal is to use the sense, term special, in a Pickwickian with esoteric mean- ing of its own. It is not without that some people, reason it, speak about writing requirement being “legally defective,” including the quotation marks. To have to de- fine the jury, meaning completely the term to with a differ- it, ent from they give the one would is to create normally they the chance that will To use be misled. it without "design 21. Our limited to the decision is context of defect” claim matter, principles upon the facts of this albeit the foundational which may ultimately we implications analogy. touch have broader University’s 22. John dean W. Wade was of Vanderbilt law school from authority publication 1952 to and a senior the case law "Prosser, Torts, book Wade Schwartz’s Cases and Materials.” *77 will be they almost to ensure jury it to the is defining illusion of an gives the term “defective” misled____Finally, specific purported -with a a word certainty by suggesting involving connoting a standard than a term rather meaning of factors. weighing the J., concurring) (quoting (Saylor, at 1017-18 841 A.2d
Phillips, omitted). 831-32) (footnote Wade, 44 Miss. L.J. of “defective notion addressing disputed
In
the
that,
any
as with
assumption
condition,”
start with the
we
are
and the consumer
the
relationship,
supplier
tort
other
interests;
purpose
the
conflicting
but
protecting legitimate
and
the interests
law is to evaluate
court at common
the
is drawn in
where the line
based
principles
articulate the
474,
Coll., 441 Pa.
Point Park
v.
individual cases. See Glenn
case,
(1971).
argumenta
any particular
In
272 A.2d
flair is offered—seeks
whatever creative
aby party
tion
—with
interests;
the most persua
party’s
to that
give ascendancy
preferably
parties,
the interests of all
advance
arguments
sive
The role of the
in
simply
appearance.
but often
actuality
in
motions,
law,
dispositive
and
deciding questions
court
it against
and test
validity
argumentation
to assess
law,
The court’s
and reason.
facts,
policy,
governing
which, in
denying
privilege
or
according
“results
process
at com
In
rules
articulating
Id.
turn,
liability.”
determines
then,
socially
area,
also outline
in this
we
mon law
the predi
that form
danger
a product’s
bounds of
acceptable
See id.
regards
privileged.
as
which the law
cate for conduct
predictability
and
regularity
to ensure
helps
function
This
of law.
processes
arena,
individual consumer
In the products
in the safe
interests
primary
retains
user of
and,
any
in the cost of
relatedly,
a product
continued use of
at 1387
584 A.2d
Coyle,
product.
See
injury caused
c).
§ 402A cmt.
(2d)
(quoting
Torts
Restatement
moral,
inter-
economic,
and visceral
has additional
consumer
of new or
availability
of the product,
in the sales price
ests
increased
(e.g.,
effects
in any spillover
products,
innovative
related
resources
public
strain on
and reduced
social welfare
health;
injuries
improved
fewer
employment,
increased
investment opportunities, value of shareholder
Ac-
equity).
cord,
AK
e.g., Tooey
v.
Steel
623 Pa.
Corp.,
81 A.3d
(2013) (cost of workers’ compensation
paid by
scheme is
but,
employer
ultimately, passed on to consuming public).
These interests are also shared by members of the public
generally, albeit more diffusely. For the individual supplier,
the assumed
interest
primary
generate
a sustained profit,
above the
doing
Wertheimer,
cost of
business. Accord
60 U.
Cin. L.Rev. at 1185. A supplier also retains complementary
economic interests in maintaining
reputable
name
new
providing
or innovative
which
products,
requires, among
other things,
flexibility
financial
beyond
profitability.
mere
*78
Beard,
16; Miller,
See
As have passed been down to present, the common law principles action, that delineate the liability cause of and the limits upon strict reflect liability, a balance of inter- ests respecting what is socially or economically desirable. Hintz, Accord Whitner v. Von 437 Pa. 263 A.2d 893 (common (1970) law notion of “proximate cause” allows period- industry-wide 23. The more public diffuse and represented interests are by filing the several amici curiae following briefs in this matter. The (1) support Omega entities have filed briefs: in Compa of Flex: Crane Foundation, ny, Foundation, Legal the Atlantic Legal the Pacific al., Pennsylvania Business Council et Liability Advisory the Product Council, Inc., al.; (2) and support Sherwin-Williams et and of the Pennsylvania Tinchers: Association for Justice. The amici offer essentially legal policy arguments same and parties as those that, support of whom their briefs were although filed. We note amicus arguments and dispositive general interests will not be proposition, as a representation their scope principle often affects the articulated (for example, amicus’s interests often perspec offer the court a broader tive on appropriately holding). the relevant issues to narrow the
393 and recovery wrong upon for limits adjustment ic between outcomes). policy The calculus to advance desirable liability and, of the interests some- varying magnitude sensitive each interest to the force with which perversely, times Escola, 150 441 Compare time P.2d at asserted from to time. (“The J., loss injury of an and the concurring) cost (Traynor, to the overwhelming of or health be an misfortune may time one, risk can injured, injury a needless for the of person and among be the manufacturer and distributed insured Prosser, business.”); at a cost of Yale L.J. public doing as (rejecting should never rest “liability 1119-22 idea fault,” in this certainly “a out date position but as anything at n. 9 Bugosh, with 971 A.2d 1235 & day generation”) Prentis, J., at 185 (citing N.W.2d (Saylor, dissenting) safer (justifications liability “incentivizing include: limiting manufacturers; the recognition careful design by rewarding case is product liability verdict for a plaintiff that a product an entire line is tantamount determination that ...; intrinsic greater a fault system incorporates defective manufacturers and their customers burdening fairness losses”); against cost of all Wor- insuring possible with the (addressing at 250-52 increase thington, S. Tex. L.Rev. Prosser, accord premiums)); cost of insurance (relating ascent of strict Yale L.J. 1104-06 Agriculture inves- “pitch hysteria” following Department into unsafe tigations unsanitary dangerously supply Sinclair); food, by Upton “sensational novel” publication *79 Emperor’s Vargo, John F. The American The New Clothes: A “New For Section 402A Law Institute Adorns Cloth” Liability Design Survey Of The States Products Defects —A 493, 26 515-36 A Mem. L.Rev. Weave, U. Reveals Different (1996) Amer- membership criticism that (describing internal Third largely Restatement drafting “[wa]s ican Law Institute interests” and represented] corporate of those who comprised door”). to leave the client “fail[ed] who two have emerged, standards Against background, interests of consumers and competing to reflect the purport sellers, American the ade- jurisdictions judge which all
quacy product’s one design: measures “consumer expec- tations,” and articulates the standard more from the perspec- consumer; tive of the reasonable the second balances “risk” “utility,” and and articulates the standard more from the perspective of the reasonable jurisdictions seller. Other and the Third Restatement have combined the two standards. See Owen, generally 73 Mo. L.Rev. at 299-300. We describe the alternatives. Expectations
Consumer
Standard
The consumer expectations test defines a “defective condi-
condition,
use,
tion” as a
upon normal
dangerous beyond the
See,
reasonable consumer’s contemplations.
Welch,
e.g.,
254;
F.2d at
Owen,
see also David G.
Liability
Law,
Products
(Hornbook Series) (2d ed.2008) (hereinafter
§at
5.6
referred
“Owen,
to as
(describing provenance and alterna-
Hornbook”)
formulations).
tive
The test offers a standard of consumer
which,
expectations
in typical
terms,
common law
states that:
the product is in a defective condition if
danger
is unknow-
able and unacceptable to the average
ordinary
or
consumer.
Welch,
(“A
See
395 among are or other seller manufacturer by a representations reasonable consumer’s assessing the relevant to considerations 1, See, Ill.Dec. 901 Mikolajczyk, e.g., expectations. Prods., 718, v. Jackson Ill.App.3d Jarke 336; at N.E.2d (1st Dist.1994); 238-40 631 N.E.2d Ill.Dec. 307-09; see also Restatement (2d) Owen, Hornbook, (“Good unreasonably is not i butter § 402A cmt. of Torts case, it because, deposits be the if such merely dangerous attacks; but bad leads to heart in the arteries and cholesterol oil, unreasonably fish butter, poisonous with contaminated dangerous.”). test derives expectations consumer of the language commentary principles on Restatement’s
from the Second i.e., “defective condition” liability, limit designated (2d) of Torts “unreasonably dangerous.” Restatement suggested have i. commentators g § 402A cmts. & Several law roots of strict warranty that this test reflects central to interests tort, significant vindicate and serves to of action in liability cause the strict policy justifying the public first place: of a consumer’s protections support Powerful reasons safety arise from the safety that product expectations seller, whether or other of a manufacturer representations making When implied. be express representations those a manu- products, to sell its an effort safety “promises” its affirma- buyers that potential convince facturer seeks to information Safety and true. are both valuable tions of reference” a “frame because it provides valuable to users cognitive or her limited a user to shift his permits pur- toward the away self-protection from other resources for responsibility in turn shifts goals suit of other —which manner, In this to the manufacturer. the user protecting by en- to the adds value information safety true the consumer which value autonomy, the user’s hancing true but So, is not if the information fairly pays price. well as autonomy, as false, significant loses purchaser purpose an important bargain. of the Since the benefit equality and the autonomy, to promote the law is deal, buyer to the seller as reflected in their fairly the law *81 may demand that the seller rectify underlying falsity and in the resulting inequality exchange transaction if harm results. (footnote
Owen, omitted); Putman, at 303 compare Hornbook, 338 F.2d at 913 n. 8 (“Liability warranty arises where damage is caused the failure of a product to measure toup express implied representations or on the part of the manufac- turer or other supplier.”). of the consumer
Application
expectations test in its purest
form, however, has theoretical
practical
limitations.
First, products whose
danger
ordinary
obvious or within the
contemplation
consumer’s
be exempt
would
from strict liabili-
ty; some therefore have said that related
safety
consumer
expectations regarding
presence
of the danger are too low.
See,
Co.,
(10th
e.g., Ahrens v. Ford Motor
397 reference to relevant building stronger Without products. data, has no for decid- jury special qualifications factual what is ing reasonable. 809; Corp., see v. Motors Cal.4th
Id. at also Soule Gen. (1994) (“[A] P.2d Cal.Rptr.2d complex intended, being even as often may when it is used product, engage ordinary its injury way cause does minimum assumptions per- reasonable about safe consumers’ consumer of an automo- ordinary For example, formance. has how it all foresee- simply perform bile ‘no idea’ should situations, it made all against how safe should be able hazards.”). foreseeable test, of the “obvious expectations
The consumer
because
concerns,
limita-
practical
has
exception
vagueness
defect”
*82
public
undergirding
basic
vindicating
policy
tions
i.e.,
a
held responsible
who sell
are
liability,
product
those
use
damage
despite
caused to a consumer
reasonable
for
is,
subject
product
any product
presumptively,
and that
liability premised upon
on a
of strict
theory
(Jones, J.,
Miller,
concurring
221 A.2d at
See
334-35
policy.
dissenting).
Risk-Utility Standard
difficulty
public policy
the salient
vindicating
related
alleged
in which the
defective condition is premised
in cases
an
or
outside the ordi-
danger
danger
either
obvious
a
ap-
that a different
nary
contemplation suggests
consumer’s
judging
the reason-
necessary
appropriate
proach
least
some
respecting
products.
ableness
at
danger,
test
jurisdictions,
including Pennsylvania,
a
apply
American
or,
terms, a
risks
utilities
in economic
balancing
stated
Owen,
5.7;
§at
Azza-
analysis.
cost-benefit
See
Hornbook,
which,
rello,
test
391 A.2d
1026. The
offers a standard
terms,
in a
product
common
states that:
law
typical
if a
would conclude
person”
defective condition
“reasonable
of harm caused
probability
that the
and seriousness
taking
or
outweigh
precautions.
the burden
costs of
product
248,
See,
Co.,
Denny
Motor
87 N.Y.2d
e.g.,
v. Ford
250,
730,
(1995); Barker,
N.Y.S.2d
662 N.E.2d
143 Cal.
225,
Rptr.
456;
Welch,
573 P.2d at
accord
The risk-utility test offers courts an opportunity to analyze
post hoc whether a manufacturer’s conduct in manufacturing
or
designing
reasonable,
was
which obviously re
flects the negligence roots of strict
liability. See Blue v.
Inc.,
Envt’l Eng’g,
78,
630,
215 Ill.2d
293 Ill.Dec.
828 N.E.2d
1128,
(2005) (“[I]t
1140-41
has been observed that the kind of
hindsight analysis
test,
inherent
the risk-utility
which re
quires juries to
weigh
risk inherent
in the product’s
design, has all the earmarks of determining negligence.”); see
also
Co.,
U.S. v.
Towing
Carroll
ty to the user and to the public as a whole. (2) The safety aspects of the product likelihood that it —the will cause injury, and the probable seriousness of injury. (3) The of availability a substitute product which would meet the same need and not be as unsafe.
(4) The manufacturer’s ability to eliminate the unsafe char- acter 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) of inher- anticipated dangers user’s awareness The availability, general their because of product ent in the of condition or public knowledge product, the obvious of warnings of or of the existence suitable instructions.
(7) manufacturer, of on of the feasibility, part The the loss or by setting price product spreading carrying liability insurance. 837-38). Wade, But, while these
Id. Miss. L.J. (quoting on a manu- may provide perspective a holistic considerations market, they may choice to to bring product facturer’s (typical) be in the case immediately responsive implicating Owen, to a allegations relating particular design feature. See (“[T]he al- at 315 issue almost properly litigated Hornbook, ways “micro-balance” and cons pros concerns narrow fea- particular design failure to some adopt manufacturer’s ____”); ture have harm prevented plaintiffs that would (trial Beard, but 41 A.3d restricted to see at 838 courts not defect, use single design of multi-use in considering threshold, The risk-utility balancing). difficulty presenting suggests, to the is resolved jury, issue Professor Owen formula, “succinctly Judge reference to Learned Hand’s which that captures products unaccept- the common sense idea are ably they dangers might if contain cost-effec- dangerous (and Owen, at 315 removed.” tively practicably) be Hornbook, jury formula will (applying Hand in strict means seller adopt precaution decide whether “fails to burden likely less than the it is magnitude prevent”). harm test in form risk-utility balancing purest of a its Application shortcomings. goal theoretical practical likewise has efficiency pure risk-utility of a test to achieve strength yet, is also its good”; or maximize the common “to For, Owen, while perceived weakness. See at 316. Hornbook, law, not its certainly a it is efficiency salutary goal and, bedrock it conflicts with only respects, some purpose com- justice proper regarding determining moral intuitions cases. injury persons property in individual pensation (“manufacturer anal- at 318 cost-benefit Compare applying id. faith necessari- ysis safety decision-making good thereby *84 ly respects equality safety rights consumers as Perversity Nelson, group”) with William E. The Moral (2001) Louis St. U.L.J. Calculus, (describing Hand risk-utility context; limitations of analysis negligence “[U]l- timately love, Hand calculus is not about social efficiency, friendship or moral It arrogance. only is about compensation. The Hand calculus does not tell an entrepreneur whether or engage in conduct that will hurt person one and help another.... The Hand calculus serves a much narrower func- that, tion. It tells an if entrepreneur only engages she conduct that causes others to lose more than she gains, she will losses, that, have to them compensate for their but if she lose, more than gains they no duty compensation will arise----It very narrowness of the Hand calculus that ”). makes it so morally perverse.... We should be mindful public adjusts policy expectations of efficiency and intu- justice considerations, itions of informing a seller’s conduct toward consumers as a group, ensuring proper compensa- tion in individual cases by judicial application of the strict liability cause of action. course,
Of
several other causes of action in tort incorporate
a risk-utility hindsight analysis: for example, negligence and
(ie.,
strict liability
abnormally
for
dangerous activities
the use
in manner
substantial,
and context where danger unavoidable, and
uses,
dissonant among neighboring
Owen,
see
328).
Hornbook,
Neither of those actions involves a pure
application of the risk-utility
Nelson,
calculus. Accord
45 St.
(“In sum,
Louis U.L.J. at 767
might
it
be right to understand
the Hand calculus as a device for
our moral
articulating
intuitions rather than a device
them.”);
for superceding
ac-
Blue,
cord
293 Ill.Dec.
Combined Tests jurisdictions have com implicitly A number expressly risk-utility and standards. expectations bined consumer alternative; in the the two standards approach One to state either test is met. injury compensable whether plaintiffs (dis See, Barker, P.2d at Cal.Rptr. 143 573 457-58 e.g., 257; Calles, 383, 864 infra); cussed 309 Ill.Dec. N.E.2d Welch, (“A F.2d unreason product at 254 is defective a reasonable seller would not sell the ably dangerous when if he risks or if the risks are knew of the involved product buyer than a The com expect.”). reasonable would greater standard, risk- states consumer expectations bined which test, alternative, of each tests retains the features utility most composite practice, offering parties Caterpillar of both tests. Tractor Co. workable features See (Alaska 1979) Beck, superseded part 593 P.2d 884-85 v. (1986); Soule, supra. § accord by Alaska Stat. 09.17.060 the risk calculus into a approach incorporate A second is to versa, or, vice expectations incorporate test of consumer determination. expectations risk-utility into consumer omitted) (internal See, Vautour, A.2d at 1182 citations e.g., (“[Pjroduct beyond to an extent dangerous ‘must be who ordinary would be consumer contemplated which it, purchases ordinary with the knowledge common to the [Wjhether community as to its ... characteristics.’ a product is unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer is deter- test.”); mined jury using risk-utility balancing Re- Liability (“A § 2 cmt. f (3d) of Torts: statement Products broad range may factors be considered in determining whether an alternative is reasonable design and whether its omission renders a not reasonably safe. The factors include ... the nature strength of consumer expectations regarding product, including expectations arising from (“consumer product portrayal and marketing.”); §id. cmt. g expectations do not constitute an independent standard for judging defectiveness of product designs”).
Courts, moreover, have offered some
on
variations
each of
California,
these approaches.
In
for
the
example,
Barker
court allocated to the
the
supplier
prove
burden to
the adequa
cy of a product’s
(i.e.,
design under the “risk-benefit” standard
to
disprove
plaintiffs prima
case that a product is
facie
defective). The Court reasoned that most of the evidentiary
matters which
be
may
relevant
in a typical case involve
technical issues peculiarly within the knowledge of the manu
facturer. 143 Cal.Rptr.
By the same it whenever expectations consumer ordinary violation of inference that an actually permit facts chooses. Unless safety minimum not meet the did performance the product’s in users, engage must jury ordinary of its expectations the second by required and benefits of risks balancing Barker. of prong and footnote (emphasis P.2d at 308-09 Cal.Rptr.2d that,
omitted).
light
prece-
concluded
court
Soule
dent, the
by
evidence offered
the plaintiff
probative
was not
(there,
the issue
placed
dispute
consumer
ordinary
expecta-
tions regarding excessive weakness or
in a
porosity
bracket
weld); but, the evidence offered raised an inference of defect
and, therefore,
under the risk-benefit analysis
the trial court
properly
should have
jury
limited its instructions to the
to that
test. The all-too-common
with
difficulty
the commentators’
interpretation of
that the
Soule is
court’s fact-bound evidentia-
ry
context,
is taken
holding
out of its
mistaken for establish-
ment of a distinct
proof,
burden of
and treated as doctrine.
606; Gilbert,
Compare Scampone,
The Third Restatement also offers a variation upon those primarily tests based upon risk-utility by determination 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 proof alternative design). states, The Third Restatement in illustra- tive part:
§ 1 Liability Commercial Seller or Distributor Harm Caused Products Defective
One engaged the business of or selling otherwise distributing products who sells or distributes a defective product subject to liability for harm to persons or proper- ty caused by the defect.
§ 2 Categories Product Defect when, A product is defective the time of sale or distribution, it defect, contains a manufacturing is defective or is design, defective because of inadequate instructions A warnings. product:
(a) contains a manufacturing defect when departs from its intended design even all though possible care was exercised in the preparation and marketing product;
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided of a adoption reasonable design alternative *88 distributor, in the predecessor seller or or a the other by distribution, the chain and the omission of commercial of safe; design product reasonably renders the not alternative (c) of instructions or inadequate is defective because the posed by when risks of harm warnings the foreseeable by provi- could reduced or avoided have been product by the seller or warnings of reasonable instructions or sion distributor, chain or a in the commercial predecessor other distribution, the omission of the instructions of reasonably safe. warnings product renders the Supporting § 3 Circumstantial Evidence of Inference Product Defect may by plain-
It be inferred that the harm sustained at time of existing was caused defect product tiff defect, distribution, proof specific of a when sale or without plaintiff: incident that harmed the (a) as result of ordinarily was of a kind that occurs defect; and product
(b) not, case, result of particular solely was in the other time of sale product existing causes than defect or distribution. (1998) Liability §§ 1-3 (3d) Torts:
Restatement Products Generally). Rules (Liability Products Applicable general 1 of Third Restatement articulates the Section through as well as policy liability. of strict Sections evidentiary questions. Notably, 6 and Sections address and, at least with types Section identifies three defects (subsection (b)), “design” general defect states respect risk- rule, which a defect reference to relative defines for and an alter- allegedly calculi defective utility Henderson, See also 83 Cornell natively designed product. (alternative technological design proof L.Rev. at 888-89 in the “an factor for courts to consider feasibility, empirical risk-utility balancing”). Application normative process result, is, compensation rule as a limited—and general which an alternative only products for those available— can design be shown to exist. The Restatement illustrates its view other evidence bemay probative in a design defect *89 case by Thus, 8, 4, articulating special rules. Sections comment e to Section 2 of the Third Restatement establish alternative means for proving design defect “in circum- stances in which common experience teaches that an inference of defect bemay facts,” warranted under the specific where the seller or distributor statutory violates and regulatory norms, and “when the product design is manifestly unreason- Meanwhile, able.” Sections and 7 address special rules of specific for products: prescription drugs and medical devices, See id. 6-7; and food products. see also §§ § (Section cmt. f 6 principle articulates judgment only attaches when certain type quantum of evidence is by plaintiff; that, adduced noting expectation very under “this objective standard, demanding liability is likely to be imposed circumstances”). only under unusual In relation to prescrip- tion drugs, for example, the rule special reflects in part an that, understanding for some products, there is no alternative design. Appropriate
4. The Post-Azzarello Liability Strict Construct a. The “Move” to the Third Restatement Guided by this decisional universe, and doctrinal we address the parties’ competing arguments, which rely, to a great extent, upon jurisprudential 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. Ome- Flex ga adds that a move to the Third Restatement is also the logical next step the evolution of the law given that several Justices of this Court and members of the U.S. Court of Circuit, Berrier, Appeals the Third have articulated its merits and supported its application. respond Tinchers that the Court has yet “adopt” Third Restatement and upon a basis which to do so. opinions are not non-precedential course, from this do not non-precedential expressions Of Court action, precedential expressions a course of nor do bind us to matters is the non-binding persuasiveness courts—what In particu- and the current decisional context. reasoning have lar, expressions Saylor proven of Justice separate in this awareness of difficulties crystallizing invaluable area of law. argues Flex also that the Third Restatement is the
Omega
law,
articulation of the
one
intended
specifically
better
the mainstream view
design
representing
address
defects and
Flex, the
Omega
on the
iteration
topic. According
present
proof
law
lowers
burden of
Pennsylvania
improperly
the Third
Omega
posits
Flex
plaintiffs generally.
Restatement,
contrast,
“closely
is a
reasoned and balanced
*90
efficacy
that enhances the fairness and
of
approach”
scheme.
Brief at 48
liability
Appellant’s
(citing Phillips,
J.,
Bugosh, 971 A.2d at
(Saylor,
concurring);
A.2d at 1021
J.,
Services,
In part, essential both ask parties this Court to engage questions whether their iteration of the preferred Restate- better, ment embodies a good, or more desirable public policy. As we have explained, adjudicative as an body, this Court is not particularly well-suited to such a broad appro- task. The which, either, priate question is if Restatement articulates the proof standard of in terms that effectuate the public policy this Commonwealth. follow,
For the reasons that
we conclude that
“adoption”
the Third Restatement approach is
For
problematic.
one
thing, articulating the burden of
proof
terms of evidence
(alternative design) deemed probative
general
of the
principle
of strict liability proscriptively
applicability
limits the
cause of action to
products
certain
as to which that sort of
evidence is available. The approach suggests a priori cate-
gorical
exemptions
products
some
as novel products
—such
with no
design
alternative
not others. The Connecticut
—but
*91
Supreme
suggested
Court
insight:
similar
“in some instanc-
es, a product may be in a defective condition unreasonably
dangerous to the user even though no feasible alternative
Potter,
design is available.”
Of legislatures, and the American Law Institute cannot myriad foresee all the products and circum- stances that may arise. The alternative means of proving liability in special recognized cases in the Third Restatement are designed to alleviate some of the harsh results of general foreseeable, rule which are currently suggesting some special in which the rules of liability limited circumstances e, 3, 4, 6, Nevertheless, or 7 apply. Sections 2—comment general special remains and rules taken question whether with principle liability state a of consistent together general injury is available for an public policy compensation that any Compare type product. Scampone, caused of defective negligence public at 606 as inconsistent with (rejecting 57 A.3d nursing argument nursing home’s that home lacked policy to law had prior of care because decisional duty patients only plaintiff of and negligence liability hospitals addressed offered health- proof not adduced home same nursing had case, jurisdiction’s as In either hospital). care services attempting with the of to articulate repercussions experience liability of broad principles application imple- of specific us the strict cause of action make reticent menting em- go beyond far the necessities an individual case and new what approach premised upon may prove brace a broad categorical be restrictions. procrustean Third respecting Our reticence Restatement that, not a on our as a matter of judgment part scheme is from policy, categorical exemptions strict articulating Courts, address is not a viable or desirable alternative. which cases, are arguments posi individual neither evidence tioned, resourced, to make kind of policy judgments nor to arrive at an a decision as to which individu required priori be products, al should products, categories types courts, Neither nor the American Law Institute for exempt. matter, articulating general princi are in the business of among and “losers” ples special tailored anoint “winners” view, the same of conduct. In our engage type those who sup tort-insulated status” certain question “special pliers products manufacturers of innovative example, —for an comparable design-optimally “requires with no alternative left to balancing policies best the General assessment 599; 57 A.3d but Assembly.” Ayala, supra; Scampone, (where Hahn, see, 558, adequacy 543 Pa. A.2d 888 e.g., issue, is at prescription drugs associated with warnings *92 liability is not recognized as basis for liability). As we ex- plained Scampone:
Immunity or exemption from 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 ... through evolves either directly applicable decisional law or by analogy, that a meaning defendant is not categorically exempt from liability simply because appel- late 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 1970s) immunities in the 1960s and only where the Assembly General has acted to create explicit policy-based immunities, e.g., protect the public purse. Where either exists, no immunity or the legislative branch created excep- tions to an conferred, immunity legislatively the default general rule of possible liability operates. (also
Scampone, A.3d at 599 alia, explaining, inter judicial from perspective, duty law is independent of finan- cial status industries). of individual defendants or of particular
The methodology employed by the reporters suggests addi- tional potential weaknesses the strict liability schemata of the Third Restatement that should caution courts against categorical pronouncements. Citing representative cases from jurisdictions, several the reporters offer that an alternative- design driven risk-utility general rule—with a special consum- er expectations rule for cases in which the design defect is demonstrable —reflects the consensus among juris- American dictions as to the applicable liability construct “classic design Henderson, cases.” See 83 Cornell L.Rev. at 887-901. Notably, while recognizing that “tort cases are particularly fact-sensitive,” the reporters purported to undertake an “em- pirical study of case law” to determine whether the alterna- tive-design driven risk-utility general rule has support in the decisional law a majority jurisdictions. The reporters commented that: “[t]ort cases are particularly fact-sensitive and courts are consequently prone pepper their decisions with dicta and footnotes to allow ‘wiggle room’ for cases that writers legal treatise In contrast in the future. may arise law, to speak tend who, in synthesizing restaters *93 published opinions courts in their categorically, and precisely indecisive.” Id. at and open-textured to be likely are more American the role of the no doubt fulfills This approach 888. restating clarify- and salutary task of Institute in its own Law to decisive that can be reduced a view strict ing Restatement effort of the Third respect terms. We also and judicial practically that non task in reporters approaching Institute and treatise But, drives the what humility. with nuance, and modesty, comparative make writers does not indecisive) (much in a less judiciary in the mistaken reticence date, area, has to Pennsylvania, like where jurisdiction, of the common law. exclusive province been the of an specifications evidence of the existence That highly probative and even is relevant design alternative case, as such in a products issues prove disputed That the cost, etc., true. certainly is feasibility, technological and circum- type products typical implicates more case design product of an alternative in which evidence stances the trier convincing means of and efficient the most persuasive evidence of an offering That also be true. may fact strategy preferred legal be the design may alternative may strategy be a in certain cases—or bar plaintiffs in bar plaintiffs on impose bar would like defense But, the report- true. while also be again may certain cases— certain are premised cases intuition that meritorious ers’ validity support general have some may evidence types of (and articulating litigants may prove helpful in practice defenses), commentary the reporters’ preparing claims and at least —of judiciary problem candidly betrays —for sugges- climate where at least in a Principally, perspective. or “moving simply “adopting” the lines of along tions are made construct, reporters’ view that the it is our a Restatement to” accounts insufficiently perspective categorical” “precise role, more modest decisional of the courts’ imperatives for the artic- purposeful the reasoned and describing by, example, for as “dicta.” principles of general ulation matter, a jurisprudential As common articulating law in terms principles extrapolations from evidence rele vant case is It typical problematic good reasons. worth that: reiterating against
[T]his Court’s decisions are read
the facts because
“our decisional law generally
incrementally, within
develops
the confines of the circumstances
they
of cases as
come
before the Court. For one
it is
thing,
very difficult for courts
to determine the range of factual circumstances to which a
particular rule should
apply
light of the often myriad
possibilities.”
[Maloney,
A.2d
Depending
489-90.]
Court,
on the perspective of the
prospective
retrospec
tive, this insight
separate
has
but related implications. Pro
we
spectively,
endeavor
to render determinations
“spring
from the facts before
appeal,
[]
us
while
th[e]
*94
case,
that our task
recognizing
is not
to decide this
simply
issue,”
but also to provide guidance
the broader
upon
legal
especially where the issue is one of first impression. “By
necessity,
undertaking
requires breadth of vision and
consideration of both
sides
the coin: the facts of a given
side,
law,
case on one
and
which will almost always be
more
on
conceptual,
the other.”
Wolfert,
v.
617
[Thierfelder
(2012)
1251, 1264
Pa.
hand,
A.3d
n. 9
On the other
].
recognizing the necessary narrowness of the individual deci
sional 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,
Indeed,
appel-
universe
reported
a confined
relying
(versus principle-based)
late
to draw evidence-based
cases
legal
as
matter in
mature
our
problematic
general
rules
posing
of cases
system. This is so because the small class
*95
prece-
result
consequence
reported,
issues of sufficient
to raise
unsettled
naturally
decisions
tends
dential
narrow
provide
rather than to
applications,
issues
fact-sensitive
and/or
“well
of the law that are so
parts
vehicles to illustrate those
course,
emergent general
as to reflect
rules. Of
accepted”
distinction,
general
illuminate
may, by analogy
these cases
but,
limit
rule to
issue;
the general
principles
purporting
law.
anathema to the common
the facts of those cases is
otherwise,
factually-margin-
in cases of
simply because
Stated
to alterna-
relating
courts
evidence
al
have found
applications
tive designs to be particularly probative and
in our
persuasive,
minds,
necessarily
does not
support
thesis that adducing
such evidence is dispositive of whether a plaintiff has carried
See,
Soule,
burden of proof.
e.g.,
34 Cal.Rptr.2d
his/her
24.
Dean
Page
Wade and Dean W.
Keeton of the
University
approaches
of Texas offered related
proof
to the standard of
design
premised
defect
upon imputation
cases
knowledge
of risks
knowledge
when such
prior
was
marketing.
unavailable
Although
offering
insight,
invaluable
imputation
an
knowledge approach
has
*96
that the Third Restatement
illustrates
analysis
previous
Our
to persuade
of the law sufficient
an articulation
not offer
does
of
Restatement formulation
to
abandon
Second
simply
us
to the
action and “move”
liability cause of
products
the strict
Restatement, we be-
the Third
Unlike
Third Restatement.
prop-
and
already adopted,
Restatement
that the Second
lieve
tailor their factual
calibrated,
to
plaintiffs
erly
permits
as
to the circumstances
argumentation
legal
and
allegations
litigation,
crucible of
in the real-world
themselves
they present
proof.
standard of
an evidence-bound
relying upon
than
rather
Prevailing
of Proof
b.
Standard
fill
the invitation to
and declined
overruled Azzarello
Having
Third Restatement formula-
by simply “adopting”
the void
of proof
standard
tion,
appropriate
to address
proceed
we
in Pennsylvania.
claim
of a strict
that,
re
Pennsylvania
although
we note
Initially,
of its
“adoption”
jurisdiction,
Restatement
mains a Second
concept
law is distinct
into our common
principles
of a statute
General
adoption
from the
application
sig
have intrinsic
words
Although
reporter’s
Assembly.
legal principle
is to
explain
their purpose
nificance because
fidelity
legislative
due
are not entitled to
clearly, they
intent, wise
judgment
whose
policy,
body’s expression
effectuate, absent
unwise,
obligated
generally
a court
or
restatement, as a
of a
language
The
infirmity.
constitutional
con
“statutory”-type
result,
necessarily susceptible
is not
valuable restatement
An effective and
parsing.
struction
of law
principle
articulation of a
pithy
the law offers instead
ones,
cases,
repre
or difficult
which,
including novel
many
whose
judiciary,
members of the
starting template
sents
educated, candid, and common-sense
an
employ
is then to
duty
citizenry.
justice to the
dispensation
to ensure
approach
itera
cases
clear
relies
individual
The common law
evolves in principle
advocacy,
facts and skillful
tions of the
by the
difficulties identified
gained
traction because of
substantial
Passage
Wade,
generally John W.
themselves. See
authors
Time-
The
Liability
Liability:
Implications
the Effect
in Product
on
for Product
(1983).
Knowledge
L.Rev. 734
Marketing,
58 N.Y.U.
Unavailable
Prior
distinction,
by analogy,
explication.
and reasoned
Accord
Scampone,
justice
With this in qualification explain: we (2) tort; liability that the strict cause of action that sounds the notion of “defective unreasonably dangerous” condition action, the normative of the strict cause of principle liability tort, which reflects the standard of review or of the application (3) and its and history; appropriate of interplay principle and evidence.25 tort,
It important to remember that the action sounds ie. the cause involves breach of “imposed by duties law as a ie., contract, matter of social rather than policy,” the cause involves breach of duties mutual consensus “imposed agree- Ash, ments between particular 884; individuals.” 932 A.2d at 402A(2). see Nevertheless, § (2d) Restatement of Torts tortious conduct at issue is not the same that as found traditional negligence claims of and commonly associated with the more colloquial sense, notion of “fault.” In this introduc- ing colloquial notion of “fault” into the conversation relating to strict product liability in tort detracts from the precision required to keep legal proposition within rational bounds.26
25. While the Second
principles govern-
Restatement formulation of the
ing
liability
the strict
may
proven
cause of action in tort
have
substan-
clear,
tially
policy
less than
that formulation embodies has not been
challenged
largely
here and has
remained uncontroverted. Accord
Henderson, 83
(premised upon survey
Cornell L.Rev. at 868
of deci-
law, noting rejection
sional
positions
of
question
“extreme
the need
develop
general
design,"
standard for defective
such as absolute
liability
liability
and
(“defer[ing]
responsibility
design
no strict
market”),
exclusively
choices
unnecessary "tilting
to the
as
at wind-
mills”).
Sherk,
26. But see
(equating liability
proof
The emergent single cause of action in tort —strict liabili-
nevertheless,
ty retained,
those aspects
negligence
—
breach of warranty liability theories from which it evolved.
otherwise,
Stated
theory
strict
as it evolved
overlaps
effect with the
negligence
theories of
and breach
of warranty.
(Parenthetically,
places
into context Section
402A(2), which states that the rule of
“applies
(a) the
although
seller has exercised all possible care in the
(b)
preparation and sale of
product,
his
the user or
consumer has not
bought
product from or entered into any
seller.”).
contractual relation with the
above,
As we explained
this is not an unusual
development
the common law: for
explained
27.
In
Dean
systemic efficiency
Prosser also
benefits
deriving
single
liability.
from a
According
cause
action in strict
Dean Prosser:
already possible
It
liability by
[wa]s
to enforce strict
resort
to a
*99
actions,
series of
in which the retailer
is first held liable on a
warranty
purchaser,
indemnity
warranty
to his
and
on a
is then
sought successively
suppliers,
from other
until
the manufacturer
finally pays
damages,
repeated litigation.
with the added costs of
expensive,
time-consuming,
This is an
process,
and wasteful
and it
may
disclaimers,
interrupted by insolvency,
jurisdiction,
be
lack of
limitations, anywhere
along
statute of
the line. What is needed is
any
a
supplier
blanket rule which
directly
makes
in the chain liable
user,
the ultimate
unwieldy process.
and so short-circuits the whole
interest,
consumer,
courts,
only
This is in the
not
but of the
even on
suppliers
occasion of the
themselves.
(footnote omitted).
The core which decision, the standard of is that in the 1978 Barker pioneered reflects properly cause of action liability in a strict proof thus articulated The Barker Court duality purpose. test expectations the consumer which stated proof standard of The alternative test in the alternative. risk-utility and the most retains “the “composite” proof standard of is test Caterpillar, each of the other tests.” features of workable P.2d at 884-85. in the duality picture: insight completes other
One expectation evident in the cause of action is strict legally responsible chain are in the distributive all sellers explained Dean Prosser liability. in strict liability: applying results of expected the manufacturer against the action is Where well be that there might very an honest estimate product, liability would in which strict not one case in a hundred this, not.... All does recovery negligence where result other sellers however, There are picture. but half of the through pass It will product. the manufacturer of the than dealers, plaintiff and the line of other the hands of a whole It is or all of them.... any reason to sue good have may wholesaler, breaks down. here that negligence simply negli- are normally the retailer jobber, *100 420 chattel,
gent. They duty are under no to test or inspect so; when, they do not do and as is usually case today, container, it comes to them in a sealed examination impossible becomes without No destroying marketability. sellers, inference of can arise negligence against these ipsa loquitur res is of no use at all. (footnote omitted).
Prosser,
The dual
structure also
historical
flow of consumer
and warran
expectations/risk-utility
and
that
Essen
ty/negligence
pervades
rhetoric
decisional law.
unreasonably
that a
like
condition
tially, given
term
“defective
not
have
self-defining,
multiple
courts
offered
dangerous”
in
in the several contexts which a defini
applicable
definitions
arisen,
effectuating
single
tional issue has
all
policy
damages
sell a
are
responsible
those who
held
of
product.
to a consumer
the reasonable use
caused
Miller,
(Jones, J.,
See,
at
e.g.,
concurring
221 A.2d
384-35
Barker,
Modern decisional law reflects that the disputes focus of —or at least those their disputes making way into the appellate courts—has been increasingly upon the negligence-derived risk-utility alternative formulation of the standard. The prominence of the legal issue in decisional law coincides with claims, design advent of defect in which issues of proof tend to more than complexity where a manufacturing defect is This dispute. development reflected the complex litigation implicated calculus in a strict liability claim premised upon this (for type of defect resulting from either lack of proof example in the case of known or foreseeable risks for which an avail- able cure ormay may not have been available at the time of design) or the relative deterrent inefficacy of a theory risks, for unknowable short of exiting market. Prosser, (“So Accord 69 Yale L.J. as long there is the *102 possibility that negligence found, not be may the defendant is encouraged by vain hopes, and the plaintiff gnawed by linger- doubts; ing and a case which can be decided for the defendant less, is worth settlement, terms of than one which can not. And so long as the defendant can introduce evidence of his care, own due the possibility remains that it may influence the verdict, size of as jurymen impressed with it stubbornly sum.”) hold out for no liability, or a smaller (emphasis omit- ted). Yet, some types of are disputes absent from the deci- indeed, sional law and may, provide rather strong evidence of strict liability as a deterrent by preventing bringing a product to market or encouraging settlement of claims—it must be remembered that an appellate expression is not necessary to illustrate the point that designers are properly deterred strict liability from using consumers as guinea pigs. See Henderson, (“Some 83 courts, dicta, Cornell L.Rev. at 901 hold out the possibility that the risk-utility imbalance might be so egregious that the product should not be marketed at all. Actual holdings effect, however, non-existent.”) to are (footnote omitted).28 Parenthetically,
28. manufacturing the number of significantly claims is design lower than that of explained: defect claims. Dean Prosser "It is
423 all case, theory of strict that the In either —like of fully capable providing not causes of action—is other tort safety goals perfect incentive to achieve deterrent sufficient restricting duty jettisoning justification not a remains of objective part compensatory whose liability, Ash, A.2d at 932 of this Commonwealth. See the public policy in a injured person an “put of torts law is to (purpose 882 tort”); position prior as to his possible as near position Tech., 596; Inc. v. Excavation 57 A.3d Scampone, accord (2009) 840, Pa., 50, 844 Pa. 985 A.2d 604 Gas Co. Columbia through allocation modify is to behavior (“object of tort law harm”) prevent positioned on best party financial risk Comm’n, 356, Pa. (citation omitted); 539 v. Civil Serv. Trosky (1995) 813, (2d) (quoting 652 A.2d 817 of Torts Restatement Vermont, (1979)); Indus. Browning-Ferris § cmt. a Inc., n. 109 S.Ct. Kelco U.S. Disposal, Inc. v. (1989) designed only are 2909, 106 (“Damages L.Ed.2d likewise as punish but injured person, satisfaction to as a for the such any proceeding to deter from guilty, ment to the jury of the detestation and as a proof future Schwartz, Mixed Theories itself.”); T. Gary action Tort Affirming Justice, and Corrective Both Deterrence Law: (1997). L.Rev. 1801 Tex. im- necessarily issues evidentiary we remark
Finally,
De-
have articulated.
we
proof
the standard
plicated
liabil-
the strict
dichotomy,
negligence-warranty
from its
rived
where
permits compensation
theoretically
cause of action
ity
(al-
foreseeable
are known or
from risks that
harm results
unavailable)
circumstance
bemay
of either
though proof
—a
theory is
negligence
in which traditional
similar to cases
*103
risks unknow-
results from
also where harm
implicated—and
circumstance
manufacture or sale—a
at
the time of
able
theory is
warranty
implied
in which traditional
similar to cases
seldom,
ever,
any
evidence of
if
has
direct
plaintiff]
also that [the
true
every jurisdiction, he is
plant. But in
in the defendant's
what went on
by
practical equivalent.”
ipsa loquitur,
its
by
of res
aided
the doctrine
omitted).
Prosser,
(footnote
design
In a
defect
Yale L.J. at 1114
69
case,
help
light
generally
little
ipsa loquitur is
of res
the doctrine
involved.
complexities of conduct
difficulty
cabining liability premised
The
is in
implicated.
manufacture/sale, which
a risk unknowable at the time of
upon
unavoidable,
in circumstances which
logically
was
(in
was
limitless
other
compensation
potentially
and attendant
words,
be shifted to
percent
suppliers).
of risk would
assessing
avoidability
and
of risk—
Imputing knowledge,
and
diffi-
theoretically
practical
was
counter-intuitive
offered
culties,
gener-
as illustrated
the Wade-Keeton debate. See
Passage
Implications
Wade,
ally
W.
John
The
of Time: The
Liability:
Liability
Product
on the Effect
in Product
for
Knowledge
Marketing,
Prior
Unavailable
N.Y.U.
(1983).
rationing
policy-as expressed
L.Rev. 734
Both
“unreasonably
limita-
qualification
dangerous” supported
—
calculus has been
as a nor-
risk-utility
suggested
tions.
mative solution to
of the
liability exposure regardless
cabin
(ie.,
of claim
of either a
or an
type
asserted
known/foreseeable
risk).
Beard,
unknown
Accord
By comparison, essentially the Tinchers’ claim was premised allegation that the risk of harm related to TracPipe’s avoidable, thickness was both foreseeable and as illustrated the resistance to of black iron These lightning pipe. allega- tions, least, Indeed, bear the indicia of in some negligence. case, respects this is the which “typical” explains both cases, insight that in the character of the design product and the conduct of the manufacturer are largely inseparable, the Third Restatement’s an alternative approach requiring See, design part proof. e.g., as of the standard of Phillips, J., Henderson, A.2d at 1013-14 (Saylor, concurring); 83 Cor- nell L.Rev. at 876-87 (“Developing General Defectiveness Cases”). Indeed, Design Standard Classic the Tinchers sought summary themselves relief and dismissal of this case premised upon the that the same result have argument would *104 the under either the or Third Restatement obtained Second iteration of the law.
But,
in this
that we have stressed
point
repeatedly
the
case
try
“typical” products
that courts
not
the
Opinion, do
common
must permit
and a
of the
law
exclusively
principle
that are be-
just
myriad
to
factual circumstances
application
like product
to conceive. Circumstances
yond
power
our
pro-
inherent in
creative
general uncertainties
diversity,
cess,
design process,
difficulties
recreating
difficulties
few,
just
may
to name
contribute
discovery process,
generate
other
case will
typical
whether cases
than
Nevertheless,
dispute
resulting
precedent.
and
decisional
circumstances,
be called
to examine
many
may
upon
courts
reason.
whether the rule has outrun the
Self-selection
(consumers
policy
cases
and
internalizing
manufacturers
and
conduct
liability theory
modifying
vindicated
the strict
result),
competing
as a
variations in the
and nuance in
quality
counsel,
fashioning
argumentation
including
from
case,
to a
courts’
suggested jury charges
particular
applicable
they pertain
of relevant
as
principles
articulation
normative
scenarios,
likely
will
specific
scholarly commentary
factual
and
law.
continually developing
contribute to
decisional
recogni
in this area
delivery
justice
requires
roles
significant
tion
appreciation
appropriate
advocates,
judiciary.
and the
played by
judges,
appellate
trial
here,
of strict
relevant
we note
the area
Particularly
and our
here does
complex
law remains
decision
or
myriad implications
foresee and
for the
purport to
account
Thus,
yet
as
potential pitfalls
unappreciated.
unarticulated
level,
“it is
legal
other
concepts,
at the trial
as with
to aid
through
attorneys,
their
parties,
incumbent
in
narrowing
formulating appropriate
courts in
issues and
juries
in their factual determinations----”
guide
structions
broad rules
reiterating
“[b]right
It is
lines and
worth
However, we
a superficially enticing option.
offer
always
balancing
the lull
over the
simplicity
cannot elevate
juris-
underpinning [the
embodied
the principles
interests
Scampone,
57 A.3d
prudence
law].”
of the relevant area of
598. The principal point
judicial
is that
modesty counsels that
we be content to
permit
common law to develop incremen-
tally,
provide
as we
explications
reasoned
of principles perti-
nent to factual circumstances of the cases that come before the
*105
605; Barker,
Court.
Scampone,
See
5. Deriving Considerations from Liability
the New Strict
Construct
Judge
Jury;
a.
Jury
and
Instructions
Having outlined these principles
law,
of strict liability
we
next offer the following guidance relating to the appropriate
provinces of the judge and jury, and to adequate, targeted
jury instructions in
noted,
a strict
liability case. As
the
that,
Azzarello Court held
as a gauge for whether
unreasonably dangerous, the balancing
utilities,
of risks and
when implicated, was an issue of law dependent upon social
to
policy
be decided
trial court.
jury
would then
simply resolve any
as to
“dispute
the condition of product,”
as a separate question.
As is generally the
plaintiff
is the master
of the claim in the first instance. The immediate implication
is that counsel must articulate
plaintiffs
claim by alleging sufficient facts to make a prima
case
facie
premised upon either a “consumer expectations” or “risk-
utility” theory, or both. The calculus for a plaintiff and a
plaintiffs advocate in
choosing
pursue either theory or both
account,
will likely
among other things, for the nature of the
of either alternative
limitations
the theoretical
for
product,
theories simulta-
both
pursuing
whether
proof,
standard
and, most
finder of fact
likely
to confuse
neously
to become
likely
available or
for the evidence
importantly,
proceed,
and case
discovery
preparation
As
for trial.
available
evolves,
choose to
may
the plaintiff
record
evidentiary
and
both,
if the
theory,
pursue
either
or abandon
pursue
to have
also seek
may
A defendant
so warrants.
evidence
via
plaintiff
appropriate
any overreaching by
dismissed
ordinary
act in its
The trial court is to
objection.
motion
adju-
mediating or
role,
litigation,
e.g., monitoring
gate-keeper
differences,
objections
pending
subsidiary
dicating any
narrow, or
motions,
expand,
including
seeking
those
Soule,
See,
e.g.,
at trial.
pursued
to be
litigation
theories
309.29
882 P.2d
Cal.Rptr.2d
is,
course,
trial court’s role
aspect
crucial
One
universe within which
liability legal
defining
the strict
task
*106
its
discharging
purposes
jury operates
particular
Graham,
580,
Pa.
9 A.3d
607
v.
function. See Commonwealth
Soule,
see,
To reiter-
(2010);
supra.
196,
e.g.,
201-02 & n.
are not made
“unless the issues
ate,
adequate
is
jury charge
instructions,
an
or there was
clear,
was misled
jury
error.”
to a fundamental
amounting
the charge
omission from
Soule,
two-prong
gave the standard
example,
the trial court
For
29.
modification, over the
design defect without
Barker instruction for
that,
argued
given
objection. The defendant
defendant-manufacturer’s
expecta-
instructing
jury on the consumer
product,
the nature of the
Supreme
of California
appeal, the
Court
was error. On
tions standard
agreed:
ordinary
find a violation of
jury may not be left free to
[T]he
facts actual-
Unless the
expectations whenever it chooses.
consumer
performance
not meet
product's
did
ly permit
inference that the
an
users,
ordinary
jury must
safety expectations of its
the minimum
required by the second
balancing
engage in the
of risks and benefits
indicated,
are
Accordingly,
instructions
as Barker
prong of Barker.
they
jury to avoid this risk-benefit
misleading
if
allow a
and incorrect
required.
Instructions based on
analysis
where it is
in a case
appropriate
expectations prong of Barker are not
ordinary consumer
law,
where,
support
jury
the evidence would
as a matter of
so,
jury
be
must
theory. Whenever
that
verdict on that
theory
design defect
solely
alternative risk-benefit
instructed
on the
announced in Barker.
303,
607,
Cal.Rptr.2d
In this in critical part, the trial court in structed the jury accordance with the law as articulated in N.T., Azzarello and its progeny. 10/19/2010, See at 794-98. We have now overruled Azzarello and we have additionally explained foundational issues related to the cause of action in Pennsylvania public policy which the —the vindicates, cause of action the duty recognized by public and the policy, standard and burden of proof necessary to prove forward, breach that duty. Going consistent with this decision, when a plaintiff proceeds on a theory implicates calculus, a risk-utility proof of risks and utilities are part of the burden to prove the harm suffered was due to the defective condition of the product. of wit credibility offered, nesses and testimony weight evidence relevant to the calculus, risk-utility and whether a has met the party burden to prove the elements of the strict liability cause of action fact, are issues for the finder of whether that finder of fact judge A jury. question whether the party has met its burden of proof is properly “removed”—for example, via adjudication of a dispositive motion—“from the jury’s consid only eration where it is clear that reasonable minds [cannot] differ on Bashline, the issue.” Hamil v. 481 Pa. 392 A.2d (1978). Thus, 1284-85 the strict liability construct we articulate today comfortably accommodates the gate-keeping role ordinarily relegated to the trial court in tort actions.
Our decision today allows for application of stan
dards of
proof
the alternative. Obviously, other examples
*107
of such
See,
decisional paradigms exist.
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
objective
court’s
is “to
to
explain
jury
how it should approach its task and
the factors it should consider in reaching its verdict.” Cham
bers,
429 defense, theory charge a or a instruction on party-requested point, warranted. Id. At that theory on the defense is has its instruc- phrasing trial court broad discretion “[t]he tions, wording so as the law may long and choose its own accurately presented jury and to the clearly, adequately, A.3d at Sepulveda, its consideration.” 55 1141. and bar that recognize
It is essential for the bench formula rigid articulate is not intended as a today test we to the in all situations. The alternate jury to be offered contour the notion of “defective condition” proof theories of that terms comprehensive guidelines intended as principled and product diversity are account for sufficiently malleable to claims, theory. of legal applications a of variety products, jury charge is to prepare The crucial role of trial court within the that of “defective condition” explicates meaning standard, law, ie., of the the alternative test boundaries Soule, 607, 882 P.2d Cal.Rptr.2d 34 pertain. facts Cf. at 308-11.
b. The Burden Proof im from existing precedent Another consideration derived in a strict case. As we plicates proof the burden ex noted, have consumer pioneered California alternate test as a standard pectations/risk-utility balancing prevailing Barker, 143 Cal.Rptr. in strict cases. See proof 225, court P.2d at 457-58. The Barker also concluded upon risk-utility theory, it was when appropriate, proceeding production persua defendant the burden of shift to the injury-producing product sion to demonstrate that an 225, 455. P.2d at design. Cal.Rptr. defective Id. 143 standard Other have subscribed to Barker jurisdictions courts shifted the only some of those have also proof, although Lamkin v. Compare, e.g., to the proof burden of defendant. Towner, 138 Ill.2d 150 Ill.Dec. 563 N.E.2d Knitz, (1990) similarity at 818. The with N.E.2d proof the Barker approach approved we have standard also Pennsylvania should may question raise of whether *108 a of the require shifting burden of to the proof defendant when the a plaintiff proceeds upon risk-utility theory.
Recently,
law,
in a case involving criminal
Court
that:
function of a
explained
proof,
“[t]he
standard of
as
is
Due
concept
embodied
Process Clause and in the
realm of
is
factfinding,
to instruct
the factfinder concerning
the degree of confidence our society thinks he should have in
the correctness of factual
particular
conclusions for a
of
type
adjudication.
the risk
in particular adjudica
While
of error
tion does not vary depending on the
proof
standard of
adopted, the burden allocates that risk between the parties.”
Sanchez,
(citations omitted).
at issue.
In
we consider difficulties of adducing
evidence to prove a
negative,
parties’ relative access to
evidence, and whether placing the burden
proof
on one
party
necessary to
enforce a
help
further right, constitution
Sanchez,
al or otherwise. See
Applying similar
the Barker court reasoned that
placing
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.,
feasibility
cost
designs
alternative
are similar to issues typically presented a negligent design case and involve technical
peculiar-
matters
within
ly
knowledge
manufacturer.” According Barker, the shift in the burden
proof
reflected the policy
judgment that “one of the principal purposes behind the strict
injured
plaintiff
is to relieve an
doctrine
negli
inherent
evidentiary burdens
of the onerous
many
225,
c. Related
recognize—
and bar should
the bench
recognize
We
—and
articulate a stan-
Azzarello and
the decision to overrule
tests in relation
alternative
premised upon
dard of proof
impact
have an
design may
of a
defective
claims
manufacturing
regarding
foundational issues
upon other
from
constructed
claims,
subsidiary issues
warning
Azzarello, such as the
availability
negligence-derived de
fenses, bystander compensation,
proper
or the
application of
the intended use doctrine. Accord Bugosh,
This does not purport to either approve or disap- law, prove prior decisional or available suggested alternatives Restatements, commentators or the relating to foundation- al or subsidiary considerations and consequences explic- our it holdings. discussion, In light prior of our the difficulties that justify our restraint should be readily apparent. The common regarding law these related considerations should within develop factual proper contexts against the back- ground of targeted advocacy.
IY. Conclusion/Mandate *110 At the request, Court’s the parties briefed a question con- cerning whether adoption Restatement, of the Third if such a made, decision were to be would have retroactive or prospec- tive effect. Having declined to “adopt” the Third Restate- ment, we need not reach the question of retroactive or pro- spective application Nevertheless, of the ruling. in light of the Azzarello, decision to overrule questions remain regarding whether Omega Flex should benefit from application our Opinion and, upon moreover, remand whether Omega Flex Here, entitled to a new trial. Flex Omega preserved and presented its claim that Azzarello should be overruled to the trial court and on appeal; result, as a we hold that Omega Flex is entitled to the benefit of our in decision this regard. Whether Omega Flex is relief, entitled to additional including trial new or judgment notwithstanding the verdict is not apparent Price, the record before us. See 735 A.2d at (new trial appropriate if erroneous jury instruction amounts to fundamental error or the record is insufficient determine verdict); whether error affected Degenhardt, 669 A.2d at 950 (judgment notwithstanding verdict is appropriate verdict disagree two minds could if no reasonable only movant). inbe favor of should reasons, reverse part these we in decision
For matter, remand to the trial court Court in this Superior remand, the Upon action motions. upon post-trial for further may parties supplemental post- to file trial court direct articulating positions regarding motions or briefs their verdict our of the matter in decision disposition light the proper in the further articulated this guidance overrule Azzarello and Opinion. relinquished.
Jurisdiction in the participate Justice McCAFFERY did not Former case. decision TODD, BAER, join opinion. and STEVENS
Justices
dissenting opinion
concurring
SAYLOR files
Justice
joins.
Justice EAKIN
which
SAYLOR,
dissenting.
concurring and
Justice
of Azza
join
long
overruling
I
overdue
majority
(1978).
Co.,
480 Pa.
Justice EAKIN this concurring and dissenting opinion.
v. ALL THAT CERTAIN LOT OR PARCEL OF LAND LOCATED DRIVE,
AT 605 College, County, UNIVERSITY State Centre Pennsylvania particularity and described with at Deed Book Page Deeds, 0976 in the Office of the Recorder Tax Gregory Palazzari, Parcel number Appellee. 36-014-123A Supreme Pennsylvania. Court of
Argued April 2014. Decided Nov. 2014. particularly 1. I am integration uncomfortable with the Pennsylva- into alternative, liability jurisprudence nia freestanding, of an skele- test, consumer-expectations tal particularly in the absence of essential advocacy Indeed, support magnitude. a decision of given this framed, more limited present appeal manner in which the has been I imagine development will be met surprise many with substantial quarters, say the least. was notes dangerous. Omega product Azzarello, to juries are instructed determine whether per is from into the any inquiry defective unmoored product and the reasonableness of the risks utilities product’s Flex that the Azza- Omega manufacturer’s conduct. suggests an between a illusory separation prod- rello creates approach conduct, which constitutes a uct defect and a manufacturer’s Restatement was pur- from the Second Court departure to porting follow. decision Omega Flex criticizes the Azzarello Additionally, to a threshold matter relegating risk-utility inquiry jury, issue be submitted to may whether defect judge. Omega into hands of the trial inquiry placing thereby that the decision lowers the suggests Flex Azzarello product unreasonably on to that a is plaintiff prove burden defective). (and, result, jury as a “The does dangerous factors, judge only even has risk-utility though balance the (quoting Moyer as Id. at 30-31 done so a threshold matter.” (3d Inc., Indus., 538-39 Dominion F.3d v. United Cir.2007)). Flex creates an Omega argues Azzarello requires risk-utility analysis process: anomalous Azzarello claim, from jury-factfinder prevents but dispositive and, essence, does not reviewing the relevant evidence actually decide jury either the trial court or permit dangerous because its risks unreasonably whether courts are decide outweigh permitted its benefits. “[T]rial sufficient submit cost- only th[e whether the evidence is from jury, prohibited are actual- they issue to the but benefit] "overlap” negligence principles proper with the case reflects an application Appellant’s Brief at 41. of strict law.