United States: Pennsylvania Supreme Court Directs A New Approach To Product Liability Claims

The Pennsylvania Supreme Court recently dramatically altered the approach of Pennsylvania state courts to product liability litigation. In Tincher v Omega Flex, Inc., a non-aviation case, the Court rejected and overruled more than three decades of precedent and adopted a "composite" liability standard incorporating negligence principles. This new standard allows a plaintiff to proceed under either a "consumer expectations" or a "risk/utility" theory of product defect. So holding, the Court rejected the negligence/strict liability dichotomy that had become the bedrock of Pennsylvania products liability law and instead found that "the theory of strict liability as it evolved overlaps in effect with the theories of negligence and breach of warranty."

Under the consumer expectations test, a product is not "defective if the ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk" of which a plaintiff is complaining. Under the risk/utility test, a product is defective if a reasonable person "would conclude that the probability and seriousness of harm caused by the product outweigh the burdens and or costs of taking precautions." As a practical matter, this decision creates a heavily fact-based standard of liability that has opened the door to introduction at trial of previously excluded negligence evidence. The decision has left many unanswered questions (such as what a plaintiff must prove to satisfy these two tests, the applicability of negligence based defenses such as state-of-the-art and comparative negligence, the impact of the new analysis on strict liability failure to warn claims, and the appropriate instructions now to be provided to juries) that will be developed and answered as trial and appellate courts are asked to implement the Supreme Court's new guidance. Tincher v Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).

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