Tincher, T. v. Omega Flex, Inc., Aplt.

[J-80-2013]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

TERRENCE D. TINCHER AND JUDITH : No. 17 MAP 2013

R. TINCHER, :

Appeal from the Order of the Superior Court,

:

Appellees Dated September 25, 2012, at No. 1472 EDA

: 2011, Affirming the Judgment of the Chester

: County Court of Common Pleas, Civil Division,

: Dated June 1, 2011, at No. 2008-00974-CA

v.

:

:

OMEGA FLEX, INC., :

:

Appellant : ARGUED: October 15, 2013

OPINION

MR. CHIEF JUSTICE CASTILLE DECIDED: November 19, 2014

Omega Flex, Inc., appeals the decision of the Superior Court to affirm the

judgment on the verdict entered in favor of Terrence D. Tincher and Judith R. Tincher

(the “Tinchers”) by the Chester County Court of Common Pleas, Civil Division. We

reverse the Superior Court decision in part, upon reasoning different from that

articulated by the courts below, and we remand to the trial court for further action upon

Omega Flex’s post-trial motions, consistent with the principles elucidated in this

Opinion. We hold that:

1. This Court’s decision in Azzarello v. Black Brothers

Company, 391 A.2d 1020 (Pa. 1978) is hereby overruled.

2. Having considered the common law of Pennsylvania,

the provenance of the strict product liability cause of action,

the interests and the policy which the strict liability cause of

action vindicates, and alternative standards of proof utilized

in sister jurisdictions, we conclude that a plaintiff pursuing a

cause upon a theory of strict liability in tort must prove that

the product is in a “defective condition.” The plaintiff may

prove defective condition by showing either that (1) the

danger is unknowable and unacceptable to the average or

ordinary consumer, or that (2) a reasonable person would

conclude that the probability and seriousness of harm

caused by the product outweigh the burden or costs of

taking precautions. The burden of production and

persuasion is by a preponderance of the evidence.

3. Whether a product is in a defective condition is a

question of fact ordinarily submitted for determination to the

finder of fact; the question is removed from the jury’s

consideration only where it is clear that reasonable minds

could not differ on the issue. Thus, the trial court is

relegated to its traditional role of determining issues of law,

e.g., on dispositive motions, and articulating the law for the

jury, premised upon the governing legal theory, the facts

adduced at trial and relevant advocacy by the parties.

4. To the extent relevant here, we decline to adopt the

Restatement (Third) of Torts: Products Liability §§ 1 et seq.,

albeit appreciation of certain principles contained in that

Restatement has certainly informed our consideration of the

proper approach to strict liability in Pennsylvania in the post-

Azzarello paradigm.

I. Background

Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at

the home of the Tinchers in Downingtown, Pennsylvania. The residence was the

central unit of a two-story triplex built in 1998-99, and purchased by the Tinchers in

2005. The fire was eventually extinguished and no persons were harmed.

Subsequently, investigators concluded that a lightning strike near the Tinchers’ home

caused a small puncture in the corrugated stainless steel tubing (“CSST”) transporting

natural gas to a fireplace located on the first floor of the residence. The CSST installed

[J-80-2013] - 2

in the Tinchers’ home was manufactured and sold by Omega Flex as part of a gas

transportations system marketed as the TracPipe System. The heat attending the

melting of the CSST caused by the lightning strike ignited the natural gas and fueled a

fire estimated to have burned for over an hour. The fire caused significant damage to

the Tinchers’ home and belongings.

After the fire, the Tinchers reported the incident to their insurer, United Services

Automobile Association (“USAA”). USAA compensated the Tinchers for their loss up to

the limit of their policy and received an assignment of liability claims. The Tinchers

suffered an additional out-of-pocket loss because a portion of their claimed loss

exceeded the limits of the USAA policy.

In January 2008, the Tinchers filed a complaint against Omega Flex in the

Chester County Court of Common Pleas.1 USAA prosecuted the claims in the name of

the Tinchers to obtain reimbursement of the insurance proceeds payout, but the

Tinchers retained an interest in the litigation to recover the losses exceeding their

insurance coverage. The Tinchers asserted claims premised upon theories of strict

liability, negligence, and breach of warranty.

In relevant part, the Tinchers’ complaint relies upon the theory of strict liability

articulated in Section 402A of the Second Restatement of Torts, but as followed and

construed in Pennsylvania. Complaint, 3/18/2008, at ¶¶ 19-25 (citing RESTATEMENT (2D)

OF TORTS § 402A). The Tinchers alleged that Omega Flex is liable for damages to their

home caused by the placement on the market and sale of the TracPipe System.

1

The Tinchers also named as defendants R & L Plumbing Contractors, Inc.,

Joseph Rosati Plumbing, Inc., and Joseph R. Rosati, Jr., individually and d/b/a Joseph

Rosati Plumbing & Heating. Omega Flex asserted cross-claims against its co-

defendants. In October 2010, the Tinchers and Omega Flex voluntarily dismissed with

prejudice all claims against these additional parties.

[J-80-2013] - 3

According to the Tinchers, the CSST incorporated into the TracPipe System is

defective, and unreasonably dangerous to intended users, because its walls are too thin

to withstand the effects of lightning. The Tinchers requested compensatory damages,

interest, fees, and costs of litigation. Omega Flex answered the complaint denying the

Tinchers’ allegations. The matter was assigned to the Honorable Ronald C. Nagle,

Senior Judge of the Chester County Court of Common Pleas. The parties proceeded

with discovery and the filing of dispositive motions, which the trial court denied.

In September 2010, in anticipation of trial, Omega Flex filed a motion in limine

requesting the application of Sections 1 and 2 of the Third Restatement of Torts to the

Tinchers’ strict liability claim. Omega Flex also proposed jury instructions and findings

of fact consistent with the provisions of the Third Restatement. The Tinchers opposed

Omega Flex’s motion in limine and offered proposed jury instructions and findings of

fact consistent with the Second Restatement and Azzarello, supra. The trial court did

not resolve Omega Flex’s motion before trial. See Notes of Testimony, 8/12/2011, at

17-22.

In October 2010, the parties proceeded to trial before a jury. At trial, the Tinchers

offered evidence regarding the events of June 20, 2007, the subsequent investigation

into the cause of the fire, the losses sustained by the Tinchers, and USAA’s process of

adjusting the insurance claim. The parties generally agreed that lightning had caused

the fire, although they disagreed as to the sequence of events or the cause of ignition in

the area of the fireplace. The Tinchers offered evidence that lightning transferred an

electrical charge to parts of the home, including the TracPipe System; the electrical

current then sought ground and created different electrical charges in the various metal

components of the structure. The Tinchers’ expert witnesses testified that a flow of

energy between a differently charged TracPipe and another metal component of the

[J-80-2013] - 4

home caused an electrical arc, and the accompanying heat punctured the CSST and

ignited the natural gas that the CSST transported. According to the Tinchers’ expert,

the perforation in the corrugated stainless steel tubing from the Tinchers’ home was

“characteristic of a lightning strike, not anything else.” By comparison, Omega Flex’s

witnesses testified that lightning measured near the Tinchers’ home on the night of the

fire did not carry sufficient energy to puncture the CSST. According to these witnesses,

once lightning entered the house, lightning-related high voltages -- although with low

energy -- broke down the insulation on electrical wires and, if the circuit breakers did not

interrupt the current, the electrical current caused the fire. Omega Flex also responded

that the conditions of the Tinchers’ home after the fire and after the investigation, during

which part of the evidence had been removed from its original location, made it

impossible to confirm the Tinchers’ theory. Finally, Omega Flex offered evidence that

an attempt had been made to bond the TracPipe System to the cold water pipe at the

Tinchers’ residence which, if successful, would have prevented the electrical arc -- and

the resulting fire -- from occurring. Witnesses testified that, after the fire, a bonding

clamp had been found connected to the CSST and near but disconnected from the cold

water pipe. The parties offered competing testimony as to whether the clamp had been

attached to the cold water pipe before the fire.

Relevant to their strict liability theory, the Tinchers offered testimony regarding a

defect in the TracPipe from experts in electrical engineering and metallurgy, electrical

arc physics, and material science -- Mr. Mark Goodson and Dr. Thomas Eager,

respectively. These experts opined that CSST is inherently defective because its wall is

1/100 of an inch thick -- the width of four sheets of paper -- and, as a result, the

probability is “very high,” “close to a hundred percent,” that a lightning-generated current

will perforate it. By comparison, an alternative natural gas conduit made of black iron

[J-80-2013] - 5

pipe is ten times thicker for a half-inch diameter pipe similar to the CSST present in the

Tincher home. According to the witnesses, CSST withstands the transfer of ten times

less energy than black iron pipe and, given the same energy, the amount of time to

puncture CSST is 1/100 the amount of time required to puncture black iron pipe.

Experts estimated that an electric arc is fifty thousand to a million times more likely to

perforate CSST than black iron pipe.

The witnesses acknowledged that the energy transferred by any particular

lightning strike is difficult to predict and cannot be replicated in a lab, but concluded that

the probability was high that CSST would be punctured by occurrences within expected

ranges of electrical current. Such results, according to the Tinchers’ experts, are

observable and predictable with equations developed in the Nineteenth Century.

Nevertheless, the experts noted that Omega Flex had not conducted testing on the

TracPipe’s ability to withstand lightning strikes, although testing for resistance to

lightning was necessary and available. Moreover, according to the Tinchers’ evidence,

the Omega Flex installation guide failed to direct compliance with lightning-related fire

protection codes.

The Tinchers’ witnesses also testified that Omega Flex recommended grounding

the TracPipe system by plugging any natural gas-fueled appliances into three-prong

outlets. Additional grounding, although attempted at the Tinchers’ residence, was not

required by the installation instructions provided by Omega Flex to professionals to

whom TracPipe was marketed and sold for installation in consumers’ homes.

Moreover, according to the Tinchers’ experts, the bonding of the TracPipe System at

one location would be insufficient to protect the CSST from the effects of lightning. To

be effective, the witnesses testified, bonding would be required every ten feet, which the

[J-80-2013] - 6

experts deemed to be an impractical and unfeasible solution. The alternative would be

to encase the CSST in black iron pipe. See N.T., 10/13/2010, at 291-98, 357-420.

After the Tinchers rested, Omega Flex moved for a nonsuit, citing the standard of

the Second Restatement and Azzarello; Omega Flex expressly assumed that the trial

court had denied its request to apply the Third Restatement. N.T., 10/18/2010, at 514-

16. The trial court denied the motion for a nonsuit. Id. at 525-26.

Subsequently, Omega Flex introduced the testimony of its own experts relating to

the defect in the TracPipe System alleged by the Tinchers. The witnesses were Dr.

James Dydo, an expert in metallurgy and mechanical engineering with a focus on fuel

gas piping, and Dr. Michael Stringfellow, an expert in physics with a focus on lightning

and the protection of structures from lightning. The Omega Flex experts opined that the

TracPipe System is not defective or unreasonably dangerous. According to the defense

experts, CSST is a technology with significant advantages, including resistance to

corrosion, structural shifts, and mechanical ruptures; ease of installation, relocation, and

retrofitting; and fewer joints accompanied by decreased susceptibility to natural gas

leaks at any required joints. The experts noted that these net benefits are marked

advantages over black iron pipe arising from the flexibility of CSST. If CSST’s walls

were thickened, according to the experts, there would be little practical difference

between CSST and black iron pipe.

The defense witnesses also testified that the TracPipe System meets and

exceeds all standards for minimum performance governing CSST developed by the

American National Standards Institute, a clearinghouse for trade groups. Additionally,

the witnesses stated, installation of the TracPipe System conforms with the Fuel Gas

Code and the National Electric Code in force in 1998-99. The experts emphasized that

these applicable standards did not anticipate intrusion by lightning as a possible safety

[J-80-2013] - 7

concern, suggesting that it was unnecessary for Omega Flex to have foreseen any

danger from lightning.

Finally, Omega Flex’s experts agreed that the installation instructions for the

TracPipe System did not require installation of a bonding clamp. The witnesses also

noted, however, that a disconnected clamp was consistent with Omega Flex’s

assessment of the circumstances surrounding the fire. The experts offered that the

attempt to bond the TracPipe System to the cold water pipe was inadequate and that a

successful attempt would have likely averted the resulting fire. Id. at 657-712.

After resting its defense, Omega Flex offered a motion for a directed verdict

premised upon Second Restatement principles and Azzarello. Omega Flex argued that

proof of the overall risks and benefits of the TracPipe System, and of any reasonable

alternative designs, showed that TracPipe was not unreasonably dangerous. The trial

court denied the motion for a directed verdict. Both parties then offered closing

arguments on their respective theories of the case. Subsequently, the trial court

instructed the jury with respect to the Tinchers’ strict liability claim as follows:

The contention of the [Tinchers] in this case is that

there is a defect in this product, this TracPipe. To state a

products liability claim, essentially it’s strict liability, a plaintiff

must prove, first, that the product was defective. Second,

that if [sic] a defect existed when it left the hands of the

defendant, that is, left the process by which it was produced

at the defendant[‘s] plant. And three, that the defect caused

the harm.

A product is defective when it is not safe for its

intended purpose. That is, it leaves the suppliers’ control

lacking any element necessary to make it safe for its

intended use. The inquiry is whether or not there is a defect,

not whether the defendant[’s] conduct was negligent. In

strict liability there is no consideration of negligence. It is

simply, was the product defective or wasn’t it defective.

[J-80-2013] - 8

* * * *

Defective design. The manufactur[er] of a product is

really a guarantor of its safety. When we talk about strict

liability, the product must be provided with every element

necessary to make it safe for its intended use. And without

any conditions that make[] it unsafe for its intended use. If

you find that the product in this case, the TracPipe, at the

time it left the defendant[’s] control, lacked any elements

necessary to make it safe for its intended use, or contained

any condition that made it unsafe for its intended use, and

there was an alternative more practical design, more safer

[sic] design, then the product is considered defective and the

defendant is liable for the harm, if you find that defect

caused the harm[,] was the proximate cause of the harm to

the plaintiffs.

Now, ladies and gentlemen, a product is not defective

merely because it is possible to be injured while using the

product. The imposition of strict liability is not meant to

transform manufacturers into insurers of all injuries that are

potentially possible and [sic] at the hands of a product. A

manufacturer of a product may be a guarantor of the

product[’s] safety, but under no circumstances is the

manufacturer an insurer of the safety of the product. The

law does not force the manufacturer to become the insurer

of the product under all conditions and uses. A

manufacturer is not required to make an already safe

product safer, or to utilize the safest of all designs. The

manufacturer is not required to produce or design a product

incorporating only features representing the ultimate in

safety design. To prevail on a design defect theory, plaintiffs

must prove that the product is defective and that at the time

it left the control of the manufacturer it lacked the feature

necessary to make it safe for its intended use, or contained a

feature that made it unsafe for its intended use.

In other words, you may not find that the TracPipe

product is defective merely because it could have been

made safer. Instead, you may only render a verdict for the

plaintiff if you conclude and are convinced that the TracPipe

is in fact defective and was so when it left the hands of the

[J-80-2013] - 9

manufacturer and that defect was the proximate cause of the

[Tinchers’] loss.

As I said before, and I instruct you that in order to

establish strict liability for putting a defective product in the

stream of commerce, the plaintiffs are not required to prove

that the defendant was negligent. Negligence and strict

liability are two separate concepts. I’ll get to negligence in a

second. And no consideration should be given to negligence

when considering strict liability for a defective product. It’s

two different concepts. I understand it’s not the easiest thing

to keep in mind. I’m trying to point out there is a difference

between strict liability for putting a defective product that was

defective when it was designed and made in this stream of

commerce that causes harm to someone else, an intended

user, not just any user, but an intend[ed] user of that

product.

Obviously, ladies and gentlemen, if this product was

manufactured and, obviously, the -- with all of the testimony

in this case and the steps that were taken during the design

and manufacturing process, Omega Flex knew it was going

to be used for its intended purposes, to carry gas[,] natural

gas, the manufacturer supplying the pipe guaranteed it

would be safe for its intend[ed] use. That is what strict

liability means. So if something that is intended to be safe

for the use intended to be made of it is not, and it’s proven

that it’s not, and that proof has to come from the plaintiff, and

that defect is the proximate cause of what happens, there is

a lot of testimony in this case about that, then that is what

strict liability means. It does not have anything to do with

negligence in that aspect of the case. That is why the risk of

loss, or if there is, or if you find there is a defect in strict

liability, the risk of loss is placed upon the supplier or

manufacturer that put that product in this stream of

commerce. The risk of loss for injuries resulting from the

defective product is best warned [sic] by the person who

manufactured it, principally because they are the ones that

put it in the stream of commerce and said it would work for

its intended purpose.

[J-80-2013] - 10

N.T., 10/19/2010, at 794-98. Additionally, the trial court defined “proximate cause,” and

instructed the jury with respect to damages. Id. at 802-07. After the trial court

concluded its instructions on the law, counsel for Omega Flex noted for the record that

Omega Flex had proposed instructions based upon the Third Restatement with respect

to the strict liability claim and that any Second Restatement instructions it proposed

were offered in the alternative. The trial court responded that it had declined to instruct

the jury in accordance with Third Restatement principles because Pennsylvania

appellate courts, and the Supreme Court especially, had not adopted the Third

Restatement.

Subsequently, the jury returned to the courtroom with several questions.

Relevant here, the trial court answered the jury by repeating definitions for the terms

“defect” and “defective design” as offered in the original instructions.

On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the

products liability claim, and awarded compensatory damages totaling $958,895.85.

Damages were divided as follows: $406,532.90 (building); $988.83 (additional property

and structures); $503,945.58 (contents); and $47,428.64 (alternate living expenses).

The trial court added $69,336.05 in delay damages, and entered judgment on the

verdict.2 In November 2010, Omega Flex filed a motion for post-trial relief and

supporting brief requesting, among other things, a new trial premised upon trial court

errors in denying its motion in limine and in failing to instruct the jury on the law as

articulated in the Third Restatement. Additionally, Omega Flex sought judgment

notwithstanding the verdict on the theory that the evidence introduced at trial was

insufficient to prove a claim of strict liability under Third Restatement principles.

2

The jury also returned a verdict in favor of Omega Flex on the negligence claim.

There are no claims before this Court related to this part of the verdict.

[J-80-2013] - 11

Relating to the motion for judgment notwithstanding the verdict, Omega Flex

argued that the evidence introduced at trial was insufficient as a matter of law to prove a

strict liability claim under the Third Restatement. In overlapping claims of error, Omega

Flex also asserted that the Tinchers had not met their burden of proof under the so-

called “fireworthiness” doctrine, which, as Omega Flex explained in its supporting brief,

was a Third-Restatement-like approach similar to the more familiar “crashworthiness”

exception to the Second Restatement. Appellant’s Brief in Support of Motion for Post-

Trial Relief 3/3/2011, at 9-27 (citing Pa. Dep’t of Gen. Serves. v. U.S. Mineral Prods.

Co., 898 A.2d 590 (Pa. 2006) (“General Services”) and Gaudio v. Ford Motor Co., 976

A.2d 524 (Pa. Super. 2009)). With respect to the motion for a new trial, Omega Flex

alleged that the trial court erred in denying its motion in limine seeking to conduct the

trial in accordance with Third Restatement principles, and in failing to issue a jury

charge premised upon the Third Restatement or the fireworthiness / crashworthiness

doctrine.

In the brief supporting the post-trial motion, Omega Flex distilled what were

several Third Restatement and fireworthiness doctrine claims into two main arguments.

First, according to Omega Flex, judgment notwithstanding the verdict or a new trial were

appropriate under the Second Restatement because lightning protection, the safe

conduction of electricity, or even a foreseeable event such as the fire are not intended

uses of the TracPipe System. In the alternative, Omega Flex argued that, once the

Tinchers offered evidence that lightning was a “foreseeable” event, the dispute

paradigm changed from a typical Second Restatement design defect case to a

fireworthiness / crashworthiness case, which required the trial court to issue a jury

instruction that the Tinchers had the burden to prove the existence of an alternative

safer design similar to the burden articulated by the Third Restatement.

[J-80-2013] - 12

Second, Omega Flex argued that a new trial was appropriate because the trial

court failed to charge the jury on the Third Restatement, which in its view stated the

relevant principle of law applicable to the circumstances alleged by the Tinchers.

Omega Flex argued that application of the Third Restatement was supported by

responsive opinions authored and joined by several Justices of this Court and the

decision of the U.S. Court of Appeals for the Third Circuit in Berrier v. Simplicity Mfg.,

563 F.3d 38 (3d Cir. 2009). Appellant’s Brief in Support of Motion for Post-Trial Relief

3/3/2011, at 36 (citing also Phillips v. Cricket Lighters, 841 A.2d 1000, 1020 (Pa. 2003)

(Saylor, J., concurring, joined by Castille and Eakin, JJ.)). Returning to its

fireworthiness doctrine theory, Omega Flex emphasized that the trial court’s Azzarello-

based instructions on the Second Restatement confused the jury: first, by mentioning,

without explaining, the relevance of evidence of a proposed alternative design, i.e., the

black pipe system; second, by failing to guide the jury on the burden of proof relating to

the alternative design; and, third, by failing to explain how the jury should consider the

role of lightning in assessing liability. Additionally, Omega Flex argued that the failure to

charge the jury, and relatedly the absence from the verdict sheet, of foreseeability-

based principles and elements related to the existence of a safer alternative design,

erroneously lessened the Tinchers’ burden of proof. Id. at 31-40.

In response, the Tinchers asserted that the “fireworthiness” instruction requested

by Omega Flex had no applicability to the Tinchers’ circumstances. The Tinchers

explained that the decision in General Services was distinguishable on the facts: in

General Services, the product released harmful chemicals when exposed to a fire

caused by unrelated events; because the fire was not an intended use of the product,

this Court held that strict liability principles were inapplicable. By comparison, the

Tinchers noted that the allegations in this matter were that the defect in CSST even

[J-80-2013] - 13

when employed for its intended use, i.e., carrying natural gas, caused the fire; these

allegations implicated a manufacturer’s strict liability for the alleged defect. The

Tinchers then argued that the evidence offered at trial was sufficient to support the trial

court’s gateway decision related to the risk-utility analysis as well as the jury’s ultimate

verdict. The Tinchers also responded that the Third Restatement was not applicable in

Pennsylvania and that, until this Court adopts the Third Restatement, the governing law

remains the Second Restatement. Moreover, the Tinchers asserted that the Third

Circuit’s prediction that this Court would eventually adopt the Third Restatement is

premature and unwarranted, citing the Superior Court decisions in Gaudio, supra, and

French v. Commonwealth Associates, 980 A.2d 623 (Pa. Super. 2009). Appellees’ Brief

in Opposition to Motion for Post-Trial Relief, 3/9/2011, at 2-15. At oral argument on the

post-trial motion, the parties offered similar arguments focusing on the fireworthiness

doctrine. Omega Flex noted that the case was appropriate for application of the Third

Restatement and emphasized the claims of jury confusion, but agreed not to press

arguments relating to the adoption of the Third Restatement at the trial court level. N.T.,

3/11/2011, at 9-10; 39-43. The trial court denied the motion. On June 2, 2011, the trial

court entered judgment on the verdict, in the amount of $1,028,231.90.

Omega Flex appealed the judgment to the Superior Court. The trial court

ordered Omega Flex to file a concise statement of errors complained of on appeal.

Order, 6/17/2011 (per curiam) (citing Pa.R.A.P. 1925(b)). In its Rule 1925(b) statement,

Omega Flex raised related claims of error, in relevant part, that the evidence introduced

at trial was insufficient to prove claims of strict liability under the Second and Third

Restatements; and that the jury should have been charged and offered a verdict form

premised upon the Third Restatement or the related theory of fireworthiness /

crashworthiness.

[J-80-2013] - 14

In the post-trial relief and Rule 1925(a) opinions, the trial court rejected Omega

Flex’s arguments. The trial court found no error in declining to apply and instruct the

jury on the Third Restatement, reasoning that this Court had yet to adopt that iteration of

tort law to replace the Second Restatement. The trial court noted that, while Omega

Flex “may have the right to advance on appeal to our Supreme Court that it should

adopt the [Third Restatement], under current law, [the Tinchers] bore no burden to

prove a safer alternate design existed in accordance with the latter standard.” Trial

Court Op., 8/5/2011, at 11.

In addition, the trial court explained that a “fireworthiness” instruction -- as an

extension of the “crashworthiness” doctrine, requiring “a more rigorous standard of proof

than the usual [Second Restatement] claim,” was not appropriate either, because

TracPipe had been employed for its intended use. According to the trial court, the

Tinchers’ case did not relate to how the TracPipe performed during the fire, as in

General Services; rather, the defect in the TracPipe they pursued was the proximate

cause of the Tinchers’ injuries. The trial court held that the trial court rather than the

jury properly decided the question of a feasible alternative design, and that the Tinchers

had carried their burden of proof.

The parties offered arguments in their briefing to the Superior Court on issues

similar to those raised in the post-trial motion and Rule 1925(b) statement. Relating to

the Third Restatement, Omega Flex acknowledged that decisions of this Court bound

the lower court, but offered that this case would be a fitting vehicle for this Court to

revisit strict liability standards. According to Omega Flex, the Third Restatement

expressly incorporates foreseeability standards into the strict liability analysis, and

requires a plaintiff to establish the existence of a reasonable alternative design for the

factfinder. The trial court, Omega Flex argued, following existing decisional law,

[J-80-2013] - 15

instructed the jury inadequately, noting in particular that the Tinchers were not “required

to prove the existence of a feasible alternative design to prevail on [their] strict-liability

claim.” Omega Flex claimed that the trial court erred in denying its motion for judgment

notwithstanding the verdict premised upon error in instructing the 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.

According to the Tinchers, the Second Restatement and its derivative decisional law

remains the law in Pennsylvania, and this Court rejected moving to the Third

Restatement on several occasions, including after the U.S. Court of Appeals for the

Third Circuit predicted its adoption.

In September 2012, the Superior Court affirmed the judgment, among other

things holding that the trial court did not err in declining to adopt the Third Restatement.

The court also rejected Omega Flex’s claim of error premised upon the fireworthiness

theory, concluding that although the occurrence of lightning was arguably random and

infrequent, lightning is a naturally occurring phenomenon outside the control of the

Tinchers, who were using the product for its intended use. As a result, the court held

that the Tinchers’ claims implicated notions of strict liability, and the Tinchers had

carried their burden of proof under the Second Restatement and Azzarello. Moreover,

the court concluded that it was obligated to follow Supreme Court precedent, which

remained premised upon the Second Restatement, following this Court’s then-recent

decision in Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). The panel

explained that the trial court did not err in denying Omega Flex’s request to proceed in

accordance with the Third Restatement because lower courts have no authority to

disapprove Supreme Court precedent.

[J-80-2013] - 16

Omega Flex filed a petition for allowance of appeal, which this Court granted,

limited to the following issue:

Whether this Court should replace the strict liability analysis

of Section 402A of the Second Restatement with the

analysis of the Third Restatement.

In addition, the parties were directed to brief the question of whether, if the Court were

to adopt the Third Restatement, that holding should be applied prospectively or

retroactively. Tincher v. Omega Flex, Inc., 64 A.3d 626 (Pa. 2013) (per curiam) (citing

Bugosh v. I.U. North America, Inc., 971 A.2d 1228, 1242-43 (Pa. 2009) (Saylor, J.,

dissenting, joined by Castille, C.J.)).

II. Arguments

Omega Flex suggests an affirmative answer to the question accepted on appeal,

and further argues that this Court should disapprove the decision in Azzarello, and

abandon the Second Restatement articulation of the law of strict liability in Pennsylvania

in favor of the approach in the Third Restatement. The Tinchers agree that Azzarello

was wrongly decided but argue in favor of otherwise retaining the principles of liability of

the Second Restatement.

Omega Flex begins by noting that Pennsylvania recognized strict liability in 1966.

Appellant’s Brief at 16 (citing Webb v. Zern, 220 A.2d 853 (Pa. 1966); RESTATEMENT

(2D) OF TORTS § 402A). According to Omega Flex, the Second Restatement was

“focused” on allegations of manufacturing defects rather than design defects and did not

address the latter “meaningfully, if at all.” Nevertheless, Omega Flex recounts,

Pennsylvania and other jurisdictions have applied the Second Restatement articulation

to design defects. Omega Flex states that early applications of the Second

Restatement in Pennsylvania called for a cost-benefit analysis to determine whether the

[J-80-2013] - 17

product, as designed, was defective or unreasonably dangerous; this approach “was

squarely in the mainstream of American tort law.” But, in 1978, according to Omega

Flex, the decision in Azzarello altered the legal landscape of products liability in

Pennsylvania by divorcing products strict liability from principles of negligence, and by

directing the trial court -- rather than the jury -- to make the only determination, upon a

lower burden of proof, regarding the defectiveness / dangerousness of the product.

Omega Flex argues that Azzarello is theoretically unsound and unworkable in

practice, suggesting that we should disapprove the decision. Initially, Omega Flex

claims that a core principle familiar in negligence law -- reasonableness -- inherently

infuses strict liability law: a product is defective only if “unreasonably” dangerous.

Omega Flex explains that a manufacturer is not the insurer of the consumer for any

injury caused by its product and may be held liable only if the product is “defective.” As

a practical matter, according to Omega Flex, a design is not defective “in the abstract,”

as a function of the injury caused a particular plaintiff, but as a function of its risks and

utilities. Omega Flex emphasizes that any product may cause injury, yet not every

product is “defective” as that concept is properly understood in the law of strict liability --

of note are inherently dangerous products such as knives and lighters. On this premise,

Omega Flex suggests that the risk-utility calculus is essentially a matter of whether the

manufacturer departed from the proper and reasonable standards of care. “To

condemn a design for being unreasonably dangerous is inescapably to condemn the

designer for having been negligent.” Appellant’s Brief at 29 (citing James A.

Henderson, Jr. and Aaron D. Twerski, ACHIEVING A CONSENSUS ON DEFECTIVE PRODUCT

DESIGN, 83 Cornell L. Rev. 867, 919 (1998)). From this perspective, Omega Flex

[J-80-2013] - 18

argues, the conceptual wall of separation between strict liability and negligence initially

articulated by Azzarello has “no practical significance.”3

Omega Flex notes that the Azzarello Court did not purport to depart from the

Second Restatement principle that a defective design analysis is an inquiry into the care

exercised by the manufacturer; the decision did not require proof of a defect separate

from proof that the product was unreasonably dangerous. The difficulty, according to

Omega Flex, is that the Court’s decision nevertheless prohibited the trial court from

submitting to the jury the factual question of whether the product was unreasonably

dangerous. Omega Flex notes that, per Azzarello, juries are instructed to determine

whether a product is defective unmoored from any inquiry into the product’s risks and

utilities and the reasonableness of the manufacturer’s conduct. Omega Flex suggests

that the Azzarello approach creates an illusory separation between a product defect and

a manufacturer’s conduct, which constitutes a departure from the Second Restatement

the Court was purporting to follow.

Additionally, Omega Flex criticizes the Azzarello decision for relegating the risk-

utility inquiry to a threshold matter of whether the defect issue may be submitted to the

jury, and placing that inquiry into the hands of the trial judge. Omega Flex suggests that

the Azzarello decision thereby lowers the burden on the plaintiff to prove that a product

3

Omega Flex surmises that the conceptual separation and the related idea that

the notion of “foreseeability” has no role in a strict liability case framed the parties’

dispute as one over whether exposure to lightning was an intended condition of using

the TracPipe System. The Superior Court, according to Omega Flex, focused instead

on whether the Tinchers could have avoided the harm rather than on the product,

necessarily injecting negligence concepts into the strict liability inquiry. Premised upon

these descriptions, Omega Flex emphasizes that this case reflects an “overlap” of

negligence principles with the proper application of strict liability law. Appellant’s Brief

at 41.

[J-80-2013] - 19

is unreasonably dangerous (and, as a result, is defective). “The jury does not balance

the risk-utility factors, even though the judge has only done so as a threshold matter.”

Id. at 30-31 (quoting Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 538-39 (3d

Cir. 2007)). Omega Flex argues that Azzarello creates an anomalous process:

Azzarello requires a risk-utility analysis dispositive of the claim, but prevents the jury-

factfinder from reviewing the relevant evidence and, in essence, does not permit either

the trial court or the jury to actually decide whether a product is unreasonably

dangerous because its risks outweigh its benefits. “[T]rial courts are permitted to decide

only whether the evidence is sufficient to submit th[e cost-benefit] issue to the jury, but

they are prohibited from actually submitting it.” Id. at 31 (quoting John M. Thomas,

DEFINING “DESIGN DEFECT” IN PENNSYLVANIA: RECONCILING AZZARELLO AND THE

RESTATEMENT (THIRD) OF TORTS, 71 Temp. L. Rev. 217, 232 (1998)).4 Omega Flex

notes that this process is unique to Pennsylvania and is not supported by any reasoned

authority cited in Azzarello.

Omega Flex also comments upon the practical implications of Azzarello.

According to Omega Flex, the central concept that negligence principles are wholly

separate from strict liability principles effectively generated minimalistic and circular

instructions for juries “which lack essential guidance concerning the key conception of

product defect.” Id. at 34 (quoting Schmidt v. Boardman, 11 A.3d 924, 940 (Pa. 2011)).

In this case, Omega Flex notes, the trial court offered the standard Azzarello charge,

which instructed the jury to decide whether the TracPipe System was defective without

4

Omega Flex notes that this approach has the collateral effect of rendering laws,

regulations, and industry standards irrelevant to the risk-utility inquiry, with deleterious

and unpredictable consequences for plaintiffs and defendants. Omega Flex does not

develop this assertion and, as a result, we do not address it in any detail.

[J-80-2013] - 20

any reference to whether the product was unreasonably dangerous. Omega Flex

argues that, absent a determination of whether the risk was unreasonable, the jury may

well have found that any risk -- including a justified risk -- rendered the TracPipe System

defective. The Azzarello instruction, Omega Flex claims, does not offer the jury any

guidance as to the critical concepts of defect and whether the product is “safe for its

intended use.” Moreover, Omega Flex argues that the use of the term of art “guarantor”

in relation to the product, without any explanation of its meaning, misleads the jury into

holding manufacturers absolutely liable for any injuries caused by the product. Omega

Flex further offers that the jury’s verdict in its favor on the negligence claim here

suggests confusion of the jury with respect to the standards applicable to the strict

liability claim. The Azzarello instructions, Omega Flex emphasizes, have “profoundly

unfair consequences” to a manufacturer against whom design defect claims are made.

Id. at 35-38.

Premised upon its criticism, Omega Flex advocates that this Court should

disapprove the Azzarello decision. Omega Flex acknowledges the principle of stare

decisis but argues that the Court is not bound to perpetuate the application of unsound

and unworkable precedent. Appellant’s Brief at 41-42 (citing, inter alia, Stilp v.

Commonwealth, 905 A.2d 918, 966-67 (Pa. 2006); Hack v. Hack, 433 A.2d 859, 867

(Pa. 1981)). According to Omega Flex, the Azzarello limitation on the jury’s role, and

the artificial distinction between negligence and strict liability, have been controversial

from the beginning, have no real reasoned support or practical importance, and have

remained unique to Pennsylvania. Omega Flex notes that individual Justices of this

Court have already suggested that Azzarello should be disapproved. Id. at 44 (citing

Bugosh, 971 A.2d at 1234 (Saylor, J., dissenting, joined by Castille, C.J.), Berrier v.

Simplicity Manuf., Inc., 959 A.2d 900, 901-02 (Pa. 2008) (Saylor, J., concurring, joined

[J-80-2013] - 21

by Castille, C.J.); Phillips, 841 A.2d at 1012-21 (Saylor, J., concurring, joined by Castille

and Eakin, JJ.)).

Next, Omega Flex suggests that, in addition to disapproving Azzarello, the Court

should adopt the approach to strict liability reflected in the Third Restatement. Omega

Flex recommends the Third Restatement on the grounds that its articulation of the law is

specifically intended to address design defects and represents the current mainstream

view on the topic. According to Omega Flex, the Third Restatement was drafted by “two

prominent product-liability scholars,” Professors James Henderson and Aaron Twerski,

and was reviewed in a comprehensive process. Appellant’s Brief at 45. Omega Flex

describes the Third Restatement as requiring, in design defect cases, a balancing of

risks and benefits by the finder of fact, upon consideration of a broad range of factors.

The critical distinction in approaches, as described by Omega Flex, is that “the plaintiff

could not simply criticize the existing design; instead, the plaintiff would be required to

prove that the manufacturer could and should have adopted a reasonable alternative

design.” Id. at 47 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2(b) cmt. d).

Omega Flex argues that the Third Restatement approach is already the accepted

practice in “crashworthiness” cases (as an exception to Azzarello) and is “neither

insurmountable nor unduly onerous,” permitting plaintiffs to prevail “regularly” in such

cases. Id. (citing Harsh v. Petroll, 887 A.2d 209, 211 (Pa. 2005)). Citing cases from

five states, Omega Flex claims that the Third Restatement has been “widely embraced”

in other jurisdictions. Id. at 48 (citing Branham v. Ford Motor Co., 701 S.E.2d 5, 16

(S.C. 2010); Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 169 (Iowa 2002); Williams v.

Bennett, 921 So.2d 1269, 1275 (Miss. 2006); Jones v. NordicTrack, Inc., 550 S.E.2d

101, 103 (Ga. 2001); Ruiz-Guzman v. Amvac Chem. Corp., 7 P.3d 795, 800 (Wash.

2000)). According to Omega Flex, the Court has the opportunity in this case “to return

[J-80-2013] - 22

Pennsylvania to the mainstream of American tort law in strict-liability design-defect

cases” by embracing the Third Restatement’s “closely reasoned and balanced

approach.” Id. at 48-49 (quoting Phillips and Bugosh, supra). Premised upon these

arguments, Omega Flex requests a new trial on the strict liability claim conducted under

the Third Restatement approach.

The Tinchers respond that the decision of the Superior Court should be affirmed,

and strict liability actions in Pennsylvania should continue to be governed by the Second

Restatement.5 According to the Tinchers, establishing the liability of a manufacturer on

5

Initially, the Tinchers suggest that the “Court should decline consideration of the

issue [on which we granted allowance of appeal], as it is not outcome determinative,

and affirm the lower court ruling.” According to the Tinchers, the circumstances of this

particular case required the Tinchers to offer evidence at trial that was sufficient to meet

the requirements of the Second Restatement and Azzarello, as well as the Third

Restatement. The Tinchers argue that, as a result, “[l]iability for the defective design of

the TracPipe product” -- and the jury’s verdict -- “is appropriate under either

Restatement standard.” The Tinchers claim that a judicial determination of the issue

upon which we granted appeal would be an advisory opinion with no legal effect.

Appellees’ Brief at 11-17.

The suggested approach is unpersuasive. The case was tried as it was tried,

which was according to the Second Restatement and Azzarello. This Court granted

allowance of appeal to address an issue of law, properly preserved and presented by

Omega Flex, regarding the very manner in which the legal theories and options were

apportioned between court and jury, and then the issues as posed to the jury. The

question of whether the evidence was sufficient to support the jury’s verdict is outside

the scope of the appeal.

Moreover, even if sufficiency of the evidence were implicated and was disputed

on appeal, this Court does not test the sufficiency of the evidence in the abstract: the

Court would have to engage the manner in which the Tinchers articulated their claims,

the theory of strict liability they pursued and, most importantly, the manner in which the

trial court responded and actually instructed the jury on the strict liability claim. A trial

court’s charge defines the legal universe in which a jury operates for the purposes of the

verdict. See Commonwealth v. Graham, 9 A.3d 196, 201-02 & n.9 (Pa. 2010). Yet, in

this argument, the Tinchers invite the Court to address whether the principles of the

Third Restatement (a theory outside the legal universe of the jury’s task here) was an

(continuedQ)

[J-80-2013] - 23

a strict liability theory is a two-step process in Pennsylvania: (1) the trial court

determines as a threshold matter whether a product is unreasonably dangerous and, as

a result, whether strict liability should be submitted to the jury; and (2) the jury-factfinder

decides whether the product at issue lacks any element necessary to make it safe for its

intended use -- or, is defective. The determination of whether a product is unreasonably

dangerous implicates a balancing of risks and utilities. Appellees’ Brief at 19-20 (citing

Azzarello, 391 A.2d at 1026).

The Tinchers posit that concepts of negligence have no place in strict liability

actions, explaining that strict liability is premised upon a social policy of holding

manufacturers responsible for casting a defective product into the stream of commerce.

Strict liability, the Tinchers argue, reflects a change in social policy from the principle of

caveat emptor -- buyer beware -- to the view that a supplier of products is a guarantor of

its products’ safety. The Tinchers suggest that, in the modern marketplace, the

emphasis is on protecting consumers and shifting the risk of loss for injury onto

suppliers of products because suppliers are in a better position to absorb or distribute

the loss as a cost of doing business. Id. at 21 (quoting Azzarello, supra). According to

the Tinchers, twenty-five years after Azzarello, the fundamental reasons for retaining a

separation between negligence and strict liability remain, and the Second Restatement

strikes the appropriate balance. The Second Restatement, the Tinchers argue, “makes

it clear that the imposition of strict liability for a product defect is not affected by the fact

(Qcontinued)

appropriate basis for that jury’s verdict. It would not be. See Schmidt, 11 A.3d at 944

(“The bare litmus of sufficiency review cannot correct a fundamental error in the

instructions to lay jurors concerning just what it is that they are deciding.”). Accord

Appellant’s Reply Brief at 5. Accordingly, we reject the Tinchers’ invitation to summarily

affirm the decision of the Superior Court on this ground.

[J-80-2013] - 24

that the manufacturer or other supplier has exercised ‘all possible care’”; in the

Tinchers’ view, the compartmentalizing of negligence and strict liability is necessary to

ensure that manufacturers are held responsible for their products regardless of fault. Id.

at 22 (quoting Phillips, supra).

According to the Tinchers, the decision in Azzarello “represents strict liability in

its purest form” because it places the emphasis on scrutinizing the product rather than

the manufacturer’s conduct. The Tinchers note that a manufacturer’s liability is limited

to defective products. The Tinchers claim that “defect” is difficult to define: the critical

consideration is whether the product is unreasonably dangerous. According to the

Tinchers, because the question of unreasonable dangerousness “could easily be

confused by a jury as importing concepts of negligence into a strict liability analysis,” the

Azzarello Court directed that decision to the trial court rather than to the jury. The

decision, the Tinchers explain, implicates the balancing of social policies “best

performed by the [trial] court in making a determination [of] law” and acting as a gate-

keeper to prevent claims regarding certain products from reaching the jury.

The Tinchers argue that the Third Restatement abandons a pure strict liability

analysis in favor of negligence principles. According to the Tinchers, the Third

Restatement explicitly provides for consideration of “foreseeable risks of harm proposed

by the product,” which is a negligence standard. The Tinchers suggest that the Third

Restatement is not a “natural” and “modest” evolution of strict liability but a “calamitous”

displacement of the social policy established by forty-seven years of Second

Restatement precedent. The Tinchers argue that “[s]uch a radical departure . . . is not

prudent or necessary.”

The Tinchers also note that a “clear minority” of states have adopted the Third

Restatement: one state -- Iowa – expressly, and several others have adopted single

[J-80-2013] - 25

sections of the Restatement or have used the doctrine as guidance for the formulation

of the common law. Appellees’ Brief at 28 (citing Wright v. Brooke Group Ltd., 652

N.W.2d 159 (Iowa 2002)). Other states, according to the Tinchers, have considered

and explicitly declined to adopt the Third Restatement. As example, the Tinchers note

that the Supreme Court of Illinois rejected the invitation to adopt the Third Restatement

on the ground that any change that broadly affects public policy was best left to the

legislature. Id. at 29 (citing Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 346 (Ill.

2008)). In Connecticut, the Tinchers state, the Supreme Court explained that the Third

Restatement places an undue burden of proof upon plaintiffs that might preclude valid

claims: a product may be defective and unreasonably dangerous to the user, although

no feasible alternative design may be available, and a jury may infer a defect from the

evidence without the necessity of expert testimony. Id. 29-30 (citing Potter v. Chicago

Pneumatic Tool Co., 694 A.2d 1319, 1332 (Conn. 1997); TRW Vehicle Safety Sys., Inc.

v. Moore, 936 N.E.2d 201 (Ind. 2010); Halliday v. Sturm, Ruger & Co., 792 A.2d 1145

(Md. 2002); Vautour v. Body Masters Sports Indus., Inc., 784 A.2d 1178 (N.H. 2001);

Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727 (Wis. 2001); Delaney v. Deere &

Co., 999 P.2d 930 (Kan. 2000); Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo.

1999); Sternhagen v. Dow Co., 935 P.2d 1139 (Mont. 1997)).

The Tinchers claim that Omega Flex erroneously relies upon cases implicating

the “crashworthiness” exception to general products liability theory under the Second

Restatement. This exception, according to the Tinchers, is accepted as such in

“virtually every [U.S.] jurisdiction” and is typically applied to cases in which an alleged

defect did not cause the automobile accident or initial impact, but served to increase the

severity of the injury. The Tinchers argue that “crashworthiness” doctrine cases offer no

indication that a jurisdiction has embraced the alternative design requirements of the

[J-80-2013] - 26

Third Restatement. Appellees’ Brief at 31 (citing Patrick Lavelle, CRASHING INTO PROOF

OF A REASONABLE ALTERNATIVE DESIGN; THE FALLACY OF THE RESTATEMENT (THIRD) OF

TORTS: PRODUCTS LIABILITY, 38 Duq. L. Rev. 1059, 1098-99 (2000)). The Tinchers

maintain that any suggestion -- including in the reporters’ commentary to Section 2(b) --

that the Third Restatement standards are widely accepted is inaccurate and misleading

because it is simply premised upon cases addressing the crashworthiness doctrine

exception. Id. at 32 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2(b) cmt.

d & nn. II-A, II-C (1997)).

Finally, the Tinchers argue that the Third Restatement would accomplish a

“radical departure” from existing public policy because it would impose “an undue

hardship on plaintiffs in the pursuit of meritorious claims.” According to the Tinchers,

the Third Restatement shifts the emphasis from the existing product to speculation of

what similar product could have been designed. In the Tinchers’ view, the Third

Restatement represents “an instrument of tort reform” rather than an articulation of

existing law, which will impose a prohibitive cost on plaintiffs and counsel to produce

alternative designs in the pursuit of otherwise meritorious claims. Id. at 33-34 (citing

Gary Wilson et al, THE FUTURE OF PRODUCTS LIABILITY IN AMERICA, 27 Wm. Mitchell L.

Rev. 85, 99-100 (2000); Frank J. Vandall and Joshua F. Vandall, A CALL FOR AN

ACCURATE RESTATEMENT (THIRD) OF TORTS: DESIGN DEFECT, 33 U. Mem. L. Rev. 909,

923 (2003)). The Third Restatement, according to the Tinchers, is a boon to

manufacturers by placing at a “tremendous disadvantage” injured consumers who

would necessarily have to become experts and seek to redesign the product that

caused the injury; the cost of this exercise may exceed the benefit of a recovery.

Additionally, the Tinchers argue that the attendant costs of representing an injured

plaintiff in a Third Restatement jurisdiction would discourage counsel from representing

[J-80-2013] - 27

injured consumers. The Tinchers suggest that application of the Third Restatement

would vitiate the public policy upon which products liability law is premised, i.e., of

holding manufacturers liable for defects in products placed in the stream of commerce;

manufacturers are in a better position to absorb the costs of injuries than are individual

consumers.

In an alternative argument, the Tinchers suggest that the Court could disapprove

Azzarello but continue to apply the Second Restatement rather than the Third

Restatement articulation of the law. The Tinchers note that this resolution of the matter

would protect the social policies underlying products liability yet remove any difficulties

caused by the decision in Azzarello. See Appellees’ Brief at 41 n.16. Ultimately,

however, the Tinchers ask the Court to affirm the decision of the Superior Court.

In reply, Omega Flex reiterates its position that the differences between the

Second Restatement and the Third Restatement are modest; the difficulty with

Pennsylvania’s approach to products liability instead results from the application of

Azzarello. Omega Flex suggests that the Tinchers do not oppose a disposition of this

appeal in which the Court would disapprove Azzarello, although the parties disagree

whether the Court should go further and adopt the Third Restatement. With regard to

the Third Restatement, Omega Flex argues that the “reasonable alternative design”

element of proof does not erect the types of insurmountable barriers to meritorious

claims that the Tinchers portray: plaintiffs may adduce proof of existing products (i.e.,

predecessor products or competitor products) or no expert proof at all if the feasibility of

an alternative design is obvious and understandable to lay persons. Appellant’s Reply

Brief at 20 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f). Omega

Flex presents the Third Restatement as a refinement of its predecessor with specific

provisions for design defects, whose approach has already been accepted in the form of

[J-80-2013] - 28

numerous exceptions to the general Second Restatement rules. Moreover, Omega

Flex claims that, contrary to the Tinchers’ representations, adherence to the Second

Restatement view has become the minority position. Omega Flex concludes that the

case should be retried before a jury properly instructed, and the instruction should be

premised upon the Third Restatement.

III. Analysis

A. The Scope and Standard of Review

As a preliminary matter, we observe that the parties pose and argue a seemingly

pristine question of law, little dependent on the facts of record, primarily regarding

whether this Court should replace the strict liability analysis of the Second Restatement

with the analysis of the Third Restatement. In part, this is a function of how the issues

were presented to the lower courts and of the lower courts’ recognition that the question

of whether to “move” to the Third Restatement has been a matter of debate and

speculation in interested legal circles and in federal court cases (as well as in separate

opinions in this Court); all recognize that, as a common law matter, the decision of

whether to adopt principles from the Third Restatement would ultimately be made by

this Court. As a result of this background circumstance, the lower courts offered no

principled assessment or practical perspective regarding the core, and strictly legal,

positions now presented by the parties to this Court. While the importance of lower

courts’ analysis of a proposed change in the law as applied to the facts of a particular

case and the centrality of such analysis to the development of the common law cannot

be understated, we note, nevertheless, that there is no suggestion by either party that

the issue so presented was waived. See Scampone v. Highland Park Care Center,

LLC, 57 A.3d 582, 604-05 (Pa. 2012) (judicial determinations to be read against facts);

[J-80-2013] - 29

Schmidt, 11 A.3d at 941-42 (listing considerations relevant on appeal to presentation

and preservation of challenges to prevailing precedent). Accordingly, we proceed to a

review of the merits of the parties’ dispute.

Properly framed, then, the question before the Court is whether Omega Flex was

entitled to relief, in the form of judgment notwithstanding the verdict or a new trial,

premised upon its argument that the jury should have been instructed on the law

represented by the Third Restatement. The relevant facts are not in dispute and the

issue posed is one of law. Accordingly, our review of the Superior Court’s decision is

plenary and de novo. Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d

468, 474-75 (Pa. 2011).

This Court has explained that, “[w]hen a court instructs the jury, the objective is

to explain to the jury how it should approach its task and the factors it should consider in

reaching its verdict.” On appeal, this Court examines jury instructions to determine

whether the trial court abused its discretion or offered an inaccurate statement of law

controlling the outcome of the case. A jury charge is adequate “unless the issues are

not made clear, the jury was misled by the instructions, or there was an omission from

the charge amounting to a fundamental error.” Commonwealth v. Chambers, 980 A.2d

35, 49-50 (Pa. 2009); see also Price v. Guy, 735 A.2d 668, 670 (Pa. 1999). This Court

will afford a new trial if an erroneous jury instruction amounted to a fundamental error or

the record is insufficient to determine whether the error affected the verdict. See, e.g.,

Price, 735 A.2d at 672.

Meanwhile, greater relief in the form of a judgment notwithstanding the verdict is

appropriate only if the movant is entitled to judgment as a matter of law, i.e., if the

evidence presented at trial was such that no two reasonable minds could disagree that

the verdict should be in favor of the movant. Degenhardt v. Dillon Co., 669 A.2d 946,

[J-80-2013] - 30

950 (Pa. 1996) (citing Boettger v. Miklich, 633 A.2d 1146, 1148 n.2 (Pa. 1993)). An

award of judgment notwithstanding the verdict “is appropriate only if, reading the record

in the light most favorable to [the verdict winner], and affording [the verdict winner] the

benefit of all reasonable inferences, we would conclude that there is insufficient

competent evidence to sustain the verdict.” General Services, 898 A.2d at 604.

The parties’ present dispute implicates foundational notions in the law of strict

liability. To decide the dispute, we necessarily address: (1) what evidence is sufficient

under Pennsylvania law to prove a claim of strict liability in tort; (2) the proper role of the

trial judge; and (3) the appropriate manner of instructing the jury. As we will explain,

these questions can be further complicated by the particulars of the tort, or the product,

at issue.

Furthermore, central to the parties’ dispute are questions of whether this Court

should disapprove the 1978 decision in Azzarello, and whether the Court should

abandon the Second Restatement articulation of the strict liability cause of action and,

in its place, “adopt” as the law of Pennsylvania the Third Restatement formulation of

strict liability in tort. These questions implicate separate foundational principles of stare

decisis and judicial restraint.

The doctrine of stare decisis “commands judicial respect for prior decisions of

this Court and the legal rules contained in those decisions.” Stilp, 905 A.2d at 954 n.31;

see also Kendrick v. District Attorney of Philadelphia County, 916 A.2d 529, 539 (Pa.

2007). The Court honors the stare decisis doctrine to ensure “evenhanded, predictable,

and consistent development of legal principles, foster[] reliance on judicial decisions,

and contribute[] to the actual and perceived integrity of the judicial process.” Stilp, 905

A.2d at 954 n.31. But, the Court’s general faithfulness to precedent is not sufficient

justification to buttress judicial decisions proven wrong in principle or “which are

[J-80-2013] - 31

unsuited to modern experience and which no longer adequately serve the interests of

justice.” In re Carney, 79 A.3d 490, 505 (Pa. 2013); Ayala v. Philadelphia Bd. of Public

Ed., 305 A.2d 877, 888 (Pa. 1973) (quoting Griffith v. United Air Lines, Inc., 203 A.2d

796, 806 (Pa. 1964)). In this sense, we have long recognized that the doctrine of stare

decisis is not a vehicle for perpetuating error, but “a legal concept which responds to the

demands of justice and, thus, permits the orderly growth processes of the law to

flourish.” Pa. State Ass’n of County Comm’rs v. Commonwealth, 52 A.3d 1213, 1230

(Pa. 2012) (quoting Buckwalter v. Bor. of Phoenixville, 985 A.2d 728, 730-31 (Pa.

2009)). Common law permits adjustment and development in the law, recognizing that

precedent is not infallible and judicial honesty demands corrective action in appropriate

cases. See Ayala, 305 A.2d at 888 (quoting Olin Mathieson C. Corp. v. White C.

Stores, 199 A.2d 266, 268 (Pa. 1964)).

We have recently stressed in multiple cases that the common law “develops

incrementally, within the confines of the circumstances of cases as they come before

the Court.” Scampone, 57 A.3d at 604 (quoting Maloney v. Valley Med. Facilities, Inc.,

984 A.2d 478, 489–90 (Pa. 2009)). Causes of action at common law evolve through

either directly applicable decisional law or by analogy and distinction. Id.; accord City of

Philadelphia v. Cumberland County Bd. of Assessment Appeals, 81 A.3d 24, 54 (Pa.

2013). Among the duties of courts is “to give efficacy to the law . . . and though they

cannot make laws, they may mould the forms of the ancient laws to the exigency of the

new case.” Reed v. Garvin’s Executors, 1821 WL 1898 at *7 (Pa. 1821). Notably, its

equitable powers afford the Court the authority to modify the common law forms of

action to the right involved, rather than limiting the authority to testing the right by the

forms of action. See Kase v. Kase, 34 Pa. 128, 1859 WL 8779 at *4 (Pa. 1859). See

also PA. CONST. art. V, § 10(c) (Supreme Court has power “to prescribe general rules

[J-80-2013] - 32

governing practice, procedure and the conduct of all courts . . . if such rules are

consistent with this Constitution and neither abridge, enlarge nor modify the substantive

rights of any litigant. . . .”); e.g., Pa.R.C.P. No. 1001(b) (“There shall be a civil action in

which “shall be brought all claims for relief heretofore asserted in (1) the action for

assumpsit, (2) the action of trespass, and (3) the action in equity”).

Reliance upon the inherent and necessary flexibility of common law rules does

not provide, however, the dispositive answer to the question of whether “adoption” of

the American Law Institute’s new formulation for tort law is appropriate or advisable.

This Court has grown more careful over the years when presented with invitations to

issue broad-based pronouncements in areas where it is apparent that such

pronouncements are better suited to the information-gathering and give-and-take

balancing of competing concerns available in the legislative arena. Thus, for example, it

is difficult to imagine a modern court simply adopting something so broad-based and

legislative in character as an outside organization’s Restatement of the Law, even if it is

the product of an esteemed organization. That being said, the fact is that, in this

particular area of the law, the Court has played a major developmental role; and when

an issue is properly joined in a case, we are of course duty-bound to resolution and

explication of the matter. And, in this process, while the line of demarcation between

advancing or correcting the common law -- or, perhaps, accounting for nuance not

advanced, perceived, or predicted in the crucible of prior cases -- and a foray into

legislative policy-making is a gray area, some principles governing decision are readily

apparent.

The first principle applies generally and involves the policy-making authority of

the General Assembly. In considering whether a long-established common law rule is

out of step with modern experience, we assume that the General Assembly is aware of

[J-80-2013] - 33

the rule, which, if unchanged by legislation, presumably reflects continued legislative

policy. See Everhart v. PMA Ins. Group, 938 A.2d 301, 307 (Pa. 2007). Of course,

“[t]here is not a rule of the common law in force today that has not evolved from some

earlier rule of common law, gradually in some instances, more suddenly in others,

leaving the common law of today when compared with the common law of centuries ago

as different as day is from night.” Hack, 433 A.2d at 868-69. Change is more often

gradual because a court seldom is in possession of sufficient information concerning all

relevant factors to justify support of a rule of general application inconsistent with the

existing common law formulation of the tort. See Official Comm. of Unsecured

Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers,

LLP, 989 A.2d 313, 332-33 (Pa. 2010). “[C]ommon-law decision-making is subject to

inherent limitations, as it is grounded in records of individual cases and the advocacy by

the parties shaped by those records. Unlike the legislative process, the adjudicatory

process is structured to cast a narrow focus on matters framed by litigants before the

Court in a highly directed fashion.” Id. Consistency with the general rule permits the

Court to benefit from the honed sensibilities and accumulated wisdom of the rule’s

application in a myriad of individual cases.

Two other considerations are specific to the nature and recognized role of a

“Restatement” of law in the development of Pennsylvania common law. Restatements

of law published by the American Law Institute purport to offer a synthesis of American

common law, which articulates the reasoned, mainstream, modern consensus on

principles of broad application intended to govern large numbers of cases. Scampone,

57 A.3d at 606; see also Coyle v. Richardson-Merrell, Inc., 584 A.2d 1383, 1385 (Pa.

[J-80-2013] - 34

1991).6 Consistent with its adjudicative rather than policy-making role, the Court has

“adopted” or deemed sections of a restatement a proper statement of Pennsylvania law

if the cause of action and its contours are consistent with the nature of the tort and

Pennsylvania’s traditional common law formulation. See, e.g., Scampone, 57 A.3d at

606; Walnut Street Assocs., 20 A.3d at 478-79; Bilt-Rite Contractors, Inc. v. The

Architectural Studio, 866 A.2d 270, 285 (Pa. 2005). In this sense, the adoption of a

restatement formulation intended to advance the law cannot be so unmoored from

existing common law and produce such a policy shift that it amounts in actuality or

public perception to a derogation of legislative authority, and the concomitant

suggestion that such authority is reposed in the Judiciary or in the American Law

Institute. Consistent with this principle, the Court must generally show restraint in

6

The Institute is a non-profit organization of 4000 lawyers, judges, and law

professors, established to produce scholarly work to clarify, modernize, and otherwise

improve the law. Among other tasks, the Institute drafts, discusses, revises, and

publishes Restatements of the Law.

The parties here, and several commentators, have engaged in a debate over

whether the Third Restatement of Torts, Products Liability, does indeed articulate the

modern consensus in the area of strict liability. Some commentators have questioned

whether the reporters of the Third Restatement favored an industry viewpoint in their

task. Compare Henderson, 83 Cornell L. Rev. 867 (reporters defend process of drafting

Third Restatement) with John F. Vargo, THE EMPEROR’S NEW CLOTHES: THE AMERICAN

LAW INSTITUTE ADORNS A “NEW CLOTH” FOR SECTION 402A PRODUCTS LIABILITY DESIGN

DEFECTS -- A SURVEY OF THE STATES REVEALS A DIFFERENT W EAVE, 26 U. Mem. L. Rev.

493 (1996) (criticizing drafting process of Third Restatement, surveying law in fifty

states, and cataloguing several approaches to strict liability). As an institution, this

Court is not particularly equipped to resolve such disputes, and in light of our

disposition, we find it unnecessary to engage the debate. But see, e.g., Halliday v.

Sturm, Ruger & Co., Inc., 792 A.2d 1145, 1159 (Md. 2002) (in light of ongoing

controversy, declining to “cast aside” existing jurisprudence in favor of broad application

of Third Restatement’s risk-utility standard). The fact of the debate, however, is a

reminder of the imperative of judicial modesty in passing upon a request to “adopt” a

Restatement wholesale.

[J-80-2013] - 35

altering existing allocations of risk created by long-tenured common law rules and resist

the temptation of experimentation with untested social policies, especially where the

individual record and the advocacy of the parties in the context of that record offer little

more than abstract justifications. Thus, the Court is not in a position to upend risks and

expectations premised upon broad-based arguments calling for a judgment about

socially acceptable economic incentives; the legislative setting is a preferable forum for

such an endeavor. See City of Philadelphia, 81 A.3d at 55; accord Pegram v. Herdrich,

530 U.S. 211, 221-22 (2000) (“[C]omplicated factfinding and . . . debatable social

judgment are not wisely required of courts unless for some reason resort cannot be had

to the legislative process, with its preferable forum for comprehensive investigations and

judgments of social value. . . .”); Kristen David Adams, THE FOLLY OF UNIFORMITY?

LESSONS FROM THE RESTATEMENT MOVEMENT, 33 Hofstra L. Rev. 423 (2004) (assessing

effect of employing restatement as default common law in Virgin Islands).

Moreover, because the language of a provision of the restatement, even to the

extent it was adopted by the Court verbatim, has not been vetted through the crucible of

the legislative process, a court applying the restatement formulation should betray

awareness that the language of an “adopted” restatement provision is not “considered

controlling in the manner of a statute.” A given restatement section simply states

principles of the common law, general rules whose validity depends on the reasoning

that supports them. Coyle, 584 A.2d at 1385. As with any other common law rules, the

normative principles of an “adopted” section of a restatement are properly tested

against the facts of each case. “For one thing, it is very difficult for courts to determine

the range of factual circumstances to which a particular rule should apply in light of the

often myriad possibilities”; of particular concern is “the possibility that words or phrases

or sentences may be taken out of context and treated as doctrines.” Maloney, 984 A.2d

[J-80-2013] - 36

at 489–90. In this regard, we underscore the importance of avoiding formulaic reading

of common law principles and “wooden application of abstract principles to

circumstances in which different considerations may pertain.” Scampone, 57 A.3d at

605 (citing Maloney, 984 A.2d at 485-86). Thus, as to any particular claim in a disputed

matter, a court should consider whether the application is logical and serves the

interests of justice, and whether the general principle has been accepted elsewhere.7

“[T]he court always retains the right and the duty to test the reason behind a common

law rule in determining the applicability of such rule to the facts before it. In the face of

contrary arguments as to why the rule should not apply in a given case, it is not enough

to say merely that the rule as stated contains no exceptions.” Coyle, 584 A.2d at 1385.

Stated otherwise, “[w]here the facts of a case demonstrate that the rule outruns the

reason, the court has the power, indeed the obligation, to refuse to apply the rule, a

power for the most part unavailable where the rule is legislatively ordained.” Id.

B. Strict Liability in Pennsylvania: the Common Law

In the arena of strict liability, this Court does not write on a blank slate; the

common law is the starting point of our explication of the conceptual framework for strict

7

Consideration for whether the general principle has been accepted elsewhere

reflects the understanding that the restatement purports to represent the majority view

on the subject in the United States. See Adams, 33 Hofstra L. Rev. at 443-44. But,

questions remain subject to dispute regarding the “essential nature of the modern

Restatements” and whether uniformity among jurisdictions is necessary and wise. See

generally Vargo, 26 U. Mem. L. Rev. at 515-36 (describing internal criticism of some

that membership of American Law Institute drafting Third Restatement “[wa]s largely

comprised of those who represent[ed] corporate interests” and who “fail[ed] to leave the

client at the door”); and see Adams, 33 Hofstra L. Rev. at 443-44 (offering argument

that “fit” for jurisdiction that shapes common law “is more important than uniformity”

among American jurisdictions).

[J-80-2013] - 37

liability in tort in Pennsylvania. The evolution of strict liability jurisprudence has four

distinct, relevant periods: early cases addressing the evolution of strict liability and the

adoption of the Second Restatement’s articulation of the cause of action; the advent of

Azzarello; post-Azzarello jurisprudence; and recent judicial expressions addressing the

Third Restatement.

At the outset, we note that disputes over liability for personal and economic harm

caused by products, although perhaps not articulated in those same terms, likely

accompanied the earliest division of labor. Efficiency, specialization, and the evolution

of expertise, separately and as precursors to invention and innovation, were significant

benefits of this division of labor.8 But, the same division of labor, especially in its

increasingly complex permutations, caused a physical and moral separation between

sellers and buyers that inevitably generated disputes. The resolution of these disputes

in English and American jurisdictions over the several centuries created a rich body of

experience-based common sensibilities and wisdom from which the modern principles

8

David Hume said of the “partition of employments”:

When every individual person labours a-part, and only

for himself, his force is too small to execute any considerable

work; his labour being employ’d in supplying all his different

necessities, he never attains a perfection in any particular

art; and as his force and success are not at all times equal,

the least failure in either of these particulars must be

attended with inevitable ruin and misery. Society provides a

remedy for these three inconveniences. By the conjunction

of forces, our power is augmented: By the partition of

employments, our ability [in]creases: And by mutual succor

we are less expos’d to fortune and accidents. ’Tis by this

additional force, ability, and security, that society becomes

advantageous.

David Hume, A Treatise of Human Nature (1739).

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of the common law of products liability evolved. Review of decisional law illustrates a

general trend of gradual expansion of civil liability for harm to persons or property; as it

happens, whether a particular development occurred in the context of injury caused by

a product or not, the principles of liability were generally articulated in broad terms

applicable to products. Compare, e.g., Breckbill v. Lancaster Turnpike Co., 3 U.S. 496,

499 (1799) (action for implied assumpsit (i.e., breach of implied contract) cannot be

maintained because corporation can only contract by deed under corporate seal) with

Bank of Columbia v. Patterson’s Administrators, 7 Cranch 299, 306 (U.S. February 05,

1813) (corporation may, without seal and upon parol, enter into contract, express or

implied, for enforcement of which, action may lie); Chestnut Hill & Springhouse Turnpike

Co. v. Rutter, 1818 WL 2109 at *7 (Pa. 1818) (corporation, whose employees cause

injury while acting under its authority, is liable in tort for employees’ negligent or

intentional acts; rejecting argument that, because corporation cannot be authorized by

law to commit tort, corporation can invest no one with power for that purpose and, as

result, is not liable for torts of employees); Appeal of Williams, 47 Pa. 307, 1864 WL

4682 at *2 (Pa. 1864) (Agnew, J.) (common law rule of corporate immunity, premised

upon “the quaint aphorism that a corporation has no soul,” was legal fiction that gave

“place to sound reason and a better morality” of holding corporations liable in tort);

Centofanti v. Pennsylvania R. Co., 90 A. 558, 560 (Pa. 1914) (applying remedial statute

that addressed absence of common law right of action for injury resulting in death);

MacPherson v. Buick Motor Co., 217 N.Y. 382 (N.Y. 1916) (if manufacturer, who sells

product for use without inspection by customers, is negligent, where danger is to be

foreseen, liability will follow; discarded burden to prove that product was inherently

dangerous); Flagiello v. Pennsylvania Hosp., 208 A.2d 193, 208 (Pa. 1965) (discarded

judicially-created charitable immunity in tort, i.e., for hospitals); Kassab v. Central Soya,

[J-80-2013] - 39

246 A.2d 848, 853-56 (Pa. 1968) (remote supplier of defective product may be sued for

breach of warranty; discarded burden to prove vertical privity); Salvador v. Atlantic Steel

Boiler Co., 319 A.2d 903, 907 (Pa. 1974) (injured user may sue for breach of warranty,

even if user is not purchaser, member of purchaser’s family or household, or guest in

purchaser’s house; discarded burden to prove horizontal privity). Accord

Commonwealth v. Koczwara, 155 A.2d 825, 828 n.1 (Pa. 1959) (application of absolute

vicarious liability for acts of another in criminal case resulting in imprisonment deprives

criminal defendant of due process of law; “[D]istinction between respondeat superior in

tort law and its application to the criminal law is obvious[: i]n tort law, the doctrine is

employed for the purpose of settling the incidence of loss upon the party who can best

bear such loss[; but, w]e impose penal treatment upon those who injure or menace

social interests, partly in order to reform, partly to prevent the continuation of the anti-

social activity and partly to deter others.”).

By the 1960s, Pennsylvania was among those jurisdictions whose courts had

accepted an application of civil liability without proof of negligence in cases of injury

caused by food products. See William L. Prosser, THE ASSAULT UPON THE CITADEL

(STRICT LIABILITY TO THE CONSUMER), 69 Yale L. J. 1099, 1103-10 (1960) (citing, inter

alia, Caskie v. Coca-Cola Bottling Co., 96 A.2d 901 (Pa. 1953) (plaintiff who drank from

bottle contaminated with hydrochloric acid established breach of implied warranty of

fitness and did not have burden to prove that contamination was due to defendant’s

negligence or dereliction).9 See also Catani v. Swift & Co., 95 A. 931 (Pa. 1915) (where

sale of food article is for immediate consumption, there is implied warranty that food is

9

William L. Prosser was the Dean of the School of Law at the University of

California, Berkeley, from 1948 to 1961 and a senior authority in the publication of the

case law book “Prosser, Wade and Schwartz’s Torts, Cases and Materials.”

[J-80-2013] - 40

wholesome and fit for purpose intended, irrespective of seller’s knowledge of disease or

defects therein; “prima facie case is made out by proof that the meat sold by defendant

was diseased and caused the death of plaintiff’s husband”)). Redress for injury caused

by other products was available in tort (by asserting, e.g., negligence,

misrepresentation, or fraud claims) or by asserting breach of warranty claims. These

causes of action, and their attendant respective forms of pleading, remain available to

plaintiffs today, forming the greater body of products liability law. Accord Lance, 85

A.3d at 440 n.8.

By the 1960s, plaintiffs had sought to establish liability of sellers of products

primarily via actions in negligence and breach of warranty, on the assumption that these

recognized causes of action provided the best approximation of justice in individual

cases then available. Negligence, in tort, spoke to the notion of redress for a legal

wrong or direct and forcible injury to the person, land, or chattels of another. See R.F.V.

Heuston, SALMOND ON THE LAW OF TORTS 4 (17th ed. 1977). Negligence theory also

offered the convenience that it did not require proof of knowledge of a particular defect

in the product, but simply the failure to exercise due care had the defect been

foreseeable. Meanwhile, a breach of warranty action, sounding in assumpsit, was at its

origin an action in tort, which “transformed into an action of contract, becoming

afterwards a remedy where there was neither tort nor contract.” James Barr Ames, The

History of Assumpsit in 3 SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY 1, 298

(1909). The word assumpsit suggested the making of a promise and, originally, the

actionable conduct was the breach of an express promise. The cause of action

evolved, however, to encompass the breach of an implied promise, and even of a

fictitious promise. See id. (commenting upon “assumpsit” as illustration of “the flexibility

and power of self-development of the Common Law”). “[W]arranty (unlike negligence

[J-80-2013] - 41

which is a tort concept based on fault) is not a concept based on fault or on the failure to

exercise reasonable care. But this does not mean that warranty is necessarily

contractual or non-tortious in nature. Liability in warranty arises where damage is

caused by the failure of a product to measure up to express or implied representations

on the part of the manufacturer or other supplier. Accordingly, an injured person is not

required to prove negligence in a warranty-products liability case.” Putman v. Erie City

Mfg. Co., 338 F.2d 911, 913 n.8 (5th Cir. 1964) (quoting Frumer and Friedman § 16A p.

358). Elements of both the negligence and breach of warranty causes of action, as they

had thus developed, foreshadowed the evolution of jurisprudence in the area of strict

liability, and increasingly resonated with courts.

1. The Second Restatement and the Early Cases

Early decisional law in Pennsylvania explained the genesis and nature of the

strict liability cause of action, with reference to Section 402A of the Second

Restatement. Section 402A of the Second Restatement states:

§ 402A Special Liability of Seller of Product for

Physical Harm to User or Consumer

(1) One who sells any product in a defective condition

unreasonably dangerous to the user or consumer or to his

property is subject to liability for physical harm thereby

caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling

such a product, and

(b) it is expected to and does reach the user or

consumer without substantial change in the condition in

which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the

preparation and sale of his product, and

[J-80-2013] - 42

(b) the user or consumer has not bought the product

from or entered into any contractual relation with the seller.

RESTATEMENT (2D) OF TORTS § 402A (1965).

The commentary to the Second Restatement traces the roots of the higher

degree of responsibility placed upon sellers of goods to English criminal statutes of the

Thirteenth Century that imposed penalties upon persons who supplied “corrupt food and

drink.” RESTATEMENT (2D) OF TORTS § 402A cmt. b. As these criminal statutes were

repealed, judicial decisions referred in dicta to the civil liability of sellers to those to

whom they sold “corrupt victuals.” See Prosser, 69 Yale L.J. at 1104. Early American

jurisprudence denominated the special civil responsibility as “warranty,” imposed upon

the seller of food in favor of the direct purchaser. At the beginning of the Twentieth

Century, judicial decisions extended sellers’ “strict liability” beyond the direct purchaser

to injured consumers. Id. The decisions articulated an exception to the general rule of

more direct liability premised upon proof of negligence or privity of contract. “In the

beginning, these decisions displayed considerable ingenuity in evolving more or less

fictitious theories of liability to fit the case. The various devices included an agency of

the intermediate dealer or another to purchase for the consumer, or to sell for the seller;

a theoretical assignment of the seller’s warranty to the intermediate dealer; a third party

beneficiary contract; and an implied representation that the food was fit for consumption

because it was placed on the market, as well as numerous others.” RESTATEMENT (2D)

OF TORTS § 402A cmt. b. Later jurisprudence settled upon a theory of warranty “running

with the goods” or made directly to the consumer; the alternative was strict liability in

tort. After 1950, jurisdictions extended the rule of strict liability beyond the sale of food

for human consumption, to other products intended for intimate bodily use. Finally, in

the late 1950s, courts began applying these developed rules of strict liability to the sale

of any product. Id.; see also Prosser, 69 Yale L.J. at 1103-14 (stating, inter alia, that

[J-80-2013] - 43

Pennsylvania had extended application of a heightened responsibility to sellers of

products other than food in Jarnot v. Ford Motor Co., 156 A.2d 569 (Pa. Super. 1959),

premised upon misconstruction of language in earlier cases).

In 1966, this Court took a major step by “adopting” the formulation of Section

402A of the Second Restatement of Torts as the common law of Pennsylvania. In

Webb, 220 A.2d 853, the Court vacated the trial court’s order to dismiss the case and

remanded with instructions for the trial court to permit the plaintiff to amend his

complaint to add a cause of action premised upon the theory of strict liability in tort as

articulated by the Second Restatement. The plaintiff in Webb had been severely injured

when a beer keg exploded and, as a result, filed a complaint “in trespass,” asserting an

“exclusive control” theory of negligence -- essentially res ipsa loquitur, see, e.g., Loch v.

Confair, 93 A.2d 451 (Pa. 1953) -- against the beer distributor, the brewer who had filled

the keg, and the manufacturer of the keg. The trial court sustained preliminary

objections, reasoning that the plaintiff had not joined in the suit before the expiration of

the statute of limitations all parties against whom an inference of negligence could be

drawn, i.e., the plaintiff’s father, who had purchased the keg, and the plaintiff’s brother,

who had tapped the keg. On appeal, the Court, in an opinion by Mr. Justice Cohen,

offered little explanation of its reasoning for formally adopting the Second Restatement

except by reference to the responsive opinions of Messrs. Justice Jones and Roberts in

Miller v. Preitz, 221 A.2d 320 (Pa. 1966), filed in a companion decision entered the

same day as Webb. The relevant reasoning of the Webb Court in its entirety reads as

follows:

We need not, however, determine whether or not the

lower court erred with regard to the law of exclusive control,

for there is another and clearer issue which is determinative

of this appeal. That issue is the nature and scope of the

liability in trespass of one who produces or markets a

[J-80-2013] - 44

defective product for use or consumption. The development

of the law in that area is chronicled in the Concurring and

Dissenting Opinions of Justices Jones and Roberts to the

decision of this Court in Miller v. Preitz, 221 A.2d 320 (Pa.

1966). One will also find there citations to modern case law

and commentaries which extend and recommend the

extension of the law of strict liability in tort for defective

products. The new Restatement of Torts reflects this

modern attitude. Section 402A thereof states: [Quoting in

full Section 402A of the Second Restatement.]

We hereby adopt the foregoing language as the law

of Pennsylvania.

The plaintiff in this litigation, therefore, must be given

an opportunity to plead and prove his case. . . .

220 A.2d at 854. Mr. Justice Eagen filed a joining concurring opinion, noting his

preference for a limited application of the Second Restatement. Mr. Chief Justice Bell

filed a dissenting opinion. See n.10 infra.

The several opinions filed in Miller offer substantially more insight than Webb into

the genesis of the strict liability tort in Pennsylvania and the Court’s decision to adopt

the Second Restatement to define its parameters. The Miller plaintiff was the estate

administrator of a deceased infant, who was fatally injured when a vaporizer-humidifier

used to relieve congestion in his nose shot boiling water on his body. The plaintiff filed

a complaint asserting a breach of the implied warranty of merchantability against the

manufacturer, the distributor, and the retail pharmacy that had sold the vaporizer-

humidifier to the deceased infant’s aunt. The infant had used the product in the aunt’s

home, next door to his family’s home. In relevant part, the trial court sustained

preliminary objections to the complaint, on the ground that the implied warranty did not

extend to the deceased infant because he had not been in privity of contract with any of

the defendants.

[J-80-2013] - 45

The Miller Court reversed the judgment as a matter of law entered in favor of a

retailer because the deceased infant, who was harmed by the vaporizer-humidifier sold

by the retailer, was “in the buyer’s family” and, notwithstanding the infant’s lack of privity

with the retailer, his representative had met the prerequisites for pursuing a breach of

warranty action under the plain language of the Uniform Commercial Code. (By

comparison, the Webb plaintiff had pursued an action in tort on a theory of negligence.)

Additionally, the Miller Court affirmed the judgment in favor of the manufacturer and of

the distributor, reasoning that the Code’s provisions did not extend warranty liability to

remote sellers in the chain of distribution. Id. at 324 (citing 12A P.S. § 2-318). In both

respects, according to the Court, the language of the Uniform Commercial Code was

dispositive. The Miller Court viewed abandoning the requirement of privity in warranty

actions as unnecessary, noting the expectation that strict liability in tort would vindicate

public policy relating to products liability and accomplished a similar result to

abandoning privity.

Justice Jones concurred in the decision to reverse the judgment against the

retailer, but dissented from the Court’s disposition with respect to the manufacturer and

distributor of the product. The dissent was premised in part upon the view that, if the

Court retained the requirement of privity, the Court should adopt the Second

Restatement and thereby relegate all actions in the 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 assumpsit. In [Loch v. Confair, 63 A.2d 24 (Pa.

1949)], we said “that a person who has effected the

purchase of particular goods and sustains injury because of

unfitness for an intended purpose may institute an action in

assumpsit based upon a breach of implied warranty Or an

action in trespass based upon specific averments of

[J-80-2013] - 46

negligence. In both instances the elements of damage may

be identical, viz, the damage naturally and proximately

resulting from a breach of implied warranty or a breach of

duty. . . . An election of remedies in this regard has,

however, never been held by this Court to authorize

institution of a contract action based upon averments of

negligence. Nor, conversely, has it authorized institution of a

negligence action based upon averments of contract.

Essential distinctions which exist have been recognized.”

[63 A.2d at 26]. Thus, while a person injured by a defective

product has an election of remedies, however, each remedy

has acquired distinct characteristics.

221 A.2d at 329 (Jones, J., concurring and dissenting) (footnote omitted).

Justice Jones then expressed support for the approach of the Second

Restatement whose purpose, he stated, was to ensure “that the costs of injuries

resulting from defective products are borne by the manufacturers that put such products

on the market rather than by the injured persons who are powerless to protect

themselves.” Id. at 334.

According to Justice Jones, the judgments that would result from application of

the Second Restatement were “not a far cry” from the doctrines of res ipsa loquitur and

of exclusive control. The dissent viewed manufacturers and sellers, proximate or

remote, of products for consumption by the public as subject “to a special responsibility

to any member of the using and consuming public who may be injured by the use and

consumption of the product.” The dissent reasoned that the public expects such

manufacturers and sellers to stand behind their products; therefore, the financial burden

of injuries caused by defective products “should fall upon those who make and market

the products and the consuming public is entitled to the maximum protection.” Id. at

334-35.

In his dissent, Justice Roberts, joined by Mr. Justice Musmanno, would also have

reversed the summary judgment entered by the trial court as to all defendants. These

[J-80-2013] - 47

dissenters reasoned that the majority’s decision elevated form over substance, and they

would have allowed the cause of action in the matter to proceed either in assumpsit, on

the basis of a breach of warranty, or in trespass, on the basis of strict liability. In this

regard, the dissent suggested that the same results would obtain whether a plaintiff

chose to pursue his products liability claim on a breach of warranty theory or under the

Second Restatement.

The dissenters remarked that the duty of sellers of products for human

consumption “extended beyond the mere avoidance of negligence,” and had been

characterized as a “special responsibility . . . in the nature of an implied warranty that

such products would be fit for human consumption. . . .” The duty had been limited to

the immediate buyer; but, the dissent noted, courts “recognized the injustice inherent in

such a limitation” and had developed theories of strict liability in defective food cases.

At the same time, according to the dissent, the privity requirement was not eliminated as

to non-food products, which presented equal dangers. The dissenters questioned the

merit of that distinction. From a practical perspective, the dissent also noted that the

doctrine of privity did not insulate defendants from liability because an action by a

consumer against a seller simply started a chain reaction of indemnity; “[a]ll that is really

accomplished by the restriction [of privity] is to expose [the] plaintiff to the risk that the

retail seller may not be financially able to make redress and to deprive [the plaintiff] of

the opportunity of proceeding directly against the more financially able parties in the

distributive chain.” 221 A.2d at 336-38.

The dissent then expressed its disapproval of the “conceptual abstractions and

niceties of pleading” that had obscured what it believed was essentially a strict liability

cause of action and the considerations that supported it, and encouraged the Court to

adopt the Second Restatement. In the dissent’s view:

[J-80-2013] - 48

The public interest in affording the maximum

protection possible under the law to human life, health and

safety; the inability of the consumer to protect himself; the

seller’s implied assurance of the safety of a product on the

open market; the superior ability of the manufacturer or

seller to distribute the risk of loss; the needless circuity of

recovery and the expensive, time consuming, wasteful and

often unjust process which insistence upon privity frequently

occasions -- all support the extension of the protection of

strict liability beyond the food cases to those involving other

consumer goods as well.

221 A.2d at 338-39.

Thus, the 6 to 1 Webb decision itself contained no developed majority

expression, despite the important transitional point it marked in 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

concerning the tort.11 In a series of cases, the Court addressed narrow applications of

broader questions relating to burdens of proof, evidence, and jury instructions in strict

10

In Webb, Chief Justice Bell dissented, premised primarily upon the argument that

the majority was overruling numerous decisions sub silentio in favor of a “new rule . . .

[that] so completely changes, not by legislative action but by judicial ukase, the law with

respect to trespass actions for injuries resulting from non-inherently dangerous products

that are either manufactured or bottled or sold by any vendor . . . that in [the Chief

Justice’s] opinion it is not only very unfair but absolutely Unjustifiable in Justice or in

Law.” 220 A.2d at 855 (Bell, C.J., dissenting).

11

In the interim, the Court addressed several corollary matters, without offering any

insight into foundational matters of concern here. See, e.g., Ferraro v. Ford Motor Co.,

223 A.2d 746 (Pa. 1966) (reversing judgment notwithstanding verdict and remanding for

new trial; in strict liability case, “if the buyer knows of the defect and Voluntarily and

Unreasonably proceeds to use the product or encounter a known danger, this should

preclude recovery and constitute a complete defense to the action”); Burbage v. Boiler

Eng’g & Supply Co., 249 A.2d 563 (Pa. 1969) (affirming judgment in favor of consumer;

manufacturer of replacement part is subject in strict liability to consumer).

[J-80-2013] - 49

liability litigation. To the extent these decisions necessitated explication of conceptual

foundations, much like the Second Restatement and the commentary, the Court’s

efforts centered on describing in affirmative terms the theoretical basis for strict liability

but lapsed, generally, into comparisons with the more familiar negligence and warranty

causes of action in which strict liability was rooted. See, e.g., RESTATEMENT (2D) OF

TORTS § 402A(2) & cmt. a, c & m.

For example, in Bialek v. Pittsburgh Brewing Co., 242 A.2d 231 (Pa. 1968), the

Court noted and rejected a challenge to that part of a jury charge which, the plaintiff

argued, imposed an unwarranted burden upon the plaintiff to prove which particular

seller in the distribution chain had caused the defect in the product. The Court

reasoned that for liability to attach per Section 402A, “the seller need only sell a

defective product [and need not] have caused the defect.” The Court added that the

trial court should instruct the jury that a plaintiff “is not required to prove that the

defendants were negligent, that the defendants can be held liable even if they exercised

all possible care and that no consideration should be given to negligence.” But, the

Court explained, sellers in a distributive chain who precede a seller that caused the

defect do not sell a defective product and are not liable. In this sense, according to the

Court, the plaintiff’s theory of the case is relevant and the trial court has discretion to

tailor the charge to reflect the evidence and theories of the parties. Id. at 235-36.

In Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974) (Opinion and

Opinion Announcing Judgment of Court), the expression authored by Mr. Justice

Pomeroy, in which Mr. Justice O’Brien joined, did not summon a majority of the

members of the Court for disposition of the strict liability-related claims, which several

Justices would not have reached on appeal. The OAJC offered an explication of the

burden of proof in a strict liability case premised upon circumstantial rather than direct

[J-80-2013] - 50

evidence of a defect, i.e., the so-called malfunction theory; the theory is of major

importance as it was later adopted by a majority of the Court in Rogers v. Johnson &

Johnson Products, Inc., 565 A.2d 751 (Pa. 1989). See also Barnish v. KWI Building

Co., 980 A.2d 535 (Pa. 2009).

In Kuisis, the plaintiff alleged that he was injured when a crane’s brake locking

mechanism became disengaged, causing a load of steel pipe suspended on the crane

to fall on him. The plaintiff proceeded on theories of negligence and strict liability in the

design and manufacture of the brake locking mechanism. At the close of evidence, the

trial court granted summary relief to the manufacturer on the negligence claim and

submitted the strict liability claims to the jury; the jury was dismissed when it could not

agree on a verdict. Subsequently, the trial court granted the manufacturer’s motion for

judgment on the record. On appeal, this Court reversed the trial court’s judgment and

awarded the plaintiff a new trial. Justice Pomeroy’s OAJC reasoned that evidence

relating to the accident, in addition to the occurrence of five similar malfunctions of the

locking mechanism, was sufficient to show that the product was defective, even absent

direct evidence of a specific defect. According to the OAJC, in the absence of other

identifiable causes, the malfunction itself was evidence of a defective condition; “[t]his

rule reflects the fact that liability under [Section] 402A turns on a lack of fitness in the

defendant’s product, as in the case of an action for breach of warranty, rather than on

the breach of a particular duty of care by the defendant, as in the case of an action for

negligence.” The OAJC continued: “[w]hile a plaintiff’s hand in a strict liability case will

obviously be strengthened by evidence of a specific defect in the defendant’s product

such evidence is not necessary to take . . . the plaintiff’s case to a jury.” Id. at 920.

Finally, the OAJC commented upon the relevance of proof that the crane

operator had left the controls while the pipe was suspended. According to the OAJC,

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the operator’s alleged negligence was legally significant as a potential superseding

cause of the plaintiff’s injuries. Kuisis, 319 A.2d at 920; see also Rogers, 565 A.2d at

755. But, the opinion continued, operator negligence was not a superseding cause of

the plaintiff’s injuries unless the negligent conduct was outside the manufacturer’s

“reasonable range of foreseeability.” Justice Pomeroy opined that the principle of

foreseeability “carries over from traditional negligence law to strict liability cases. . . . It

makes no difference in this regard whether the operator’s conduct is characterized as

an intervening act of negligence or as an ‘abnormal use’ of the crane; where under

[Section] 402A a particular use of a product is abnormal depends on whether the use

was reasonably foreseeable by the seller.” Kuisis, 319 A.2d at 920-21 & n.13. Other

proof relevant to the question of foreseeability, the OAJC added, was the passage of

twenty years since the crane had been manufactured and any interim alterations. Id. at

922 & n.15.12

Following the decision in Kuisis, the Court revisited questions relating both to a

plaintiff’s burden of proving a strict liability claim, and relevant jury instructions, in

12

In parallel developments, the Court dispensed with privity prerequisites for stating

a breach of an implied warranty claim, by reference to the Second Restatement. The

Kassab Court reasoned that clarity in the law and consistency of results, whether one

labeled a complaint in assumpsit / warranty or trespass / strict liability, counseled

abandoning vertical privity requirements. See Kassab, 246 A.2d at 853-56 overruled in

part on other grounds by AM/PM Franchise Ass’n v. Atl. Richfield Co., 584 A.2d 915

(Pa. 1990) (remote supplier of defective product may be sued for breach of warranty).

In Salvador, the Court discarded horizontal privity stating that: “Today . . . a

manufacturer by virtue of [S]ection 402A is effectively the guarantor of his products’

safety. . . . [A manufacturer] may not preclude an injured plaintiff’s recovery by forcing

him to prove negligence in the manufacturing process. Neither may the manufacturer

defeat the claim by arguing that the purchaser has no contractual relation to him.”

Salvador, 319 A.2d at 907 (injured user may sue for breach of warranty, even if user is

not purchaser, member of purchaser’s family or household, or guest in purchaser’s

house).

[J-80-2013] - 52

Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa. 1975) (Opinion Announcing

Judgment of Court). The Court affirmed by unanimous mandate the decision of the

Superior Court to reverse the judgment on the verdict granted to the defendant and to

award the plaintiff a new (third) trial. The decision generated several opinions, among

them the OAJC of Chief Justice Jones, joined by Justice Nix, parts of which later

became law in Azzarello. See 391 A.2d at 1027 and discussion infra. Justices Roberts

and Pomeroy filed separate concurring opinions, while Justices Eagen, O’Brien, and

Manderino concurred in the result without opinion.

The Berkebile OAJC commenced its analysis by noting the necessity “to clarify

the concepts of strict liability in Pennsylvania,” so as to avoid further confusion in the

case upon remand for a third trial. In concurring, Justices Roberts and Pomeroy would

have decided the matter on the separate issue of strict liability for a failure to warn. 337

A.2d at 903-04.

In Berkebile, following the death of her husband in a helicopter crash, the

administratrix of the estate sued the manufacturer, premised upon theories of strict

liability for defective design of the helicopter’s rotor system, for defective manufacturing

and design of the rotor blade, for inadequate warnings regarding the inherent risks and

limitations of the rotor system, and for misrepresentation of the helicopter’s safety in the

manufacturer’s advertising brochures. The defendant denied the existence of a defect

and argued that the decedent’s abnormal use had caused the crash.

The Berkebile OAJC reiterated that strict liability, as a cause of action,

implemented a policy of consumer protection. According to the OAJC, “[t]he increasing

complexity of the manufacturing and distributional process placed upon the injured

plaintiff a nearly impossible burden of proving negligence where, for policy reasons, it

was felt that a seller should be responsible for injuries caused by defects in his

[J-80-2013] - 53

products.” Id. at 898 (citing RESTATEMENT (2D) OF TORTS § 402A cmt. c). The OAJC

explained that, in a strict liability matter, proof of a seller’s due care and breach of due

care are unnecessary because liability attaches “without fault.” Id. (citing Salvador, 319

A.2d at 907). Instead, to recover, a plaintiff must prove that the product was defective,

and that the defect was a proximate cause of the plaintiff’s injuries. In addition,

according to the OAJC, the plaintiff has the burden to prove that the defect causing the

injury existed at the time that the product left the seller’s hands. The OAJC then warned

of attempts by a defendant-seller at “indirectly . . . injecting negligence concepts into

strict liability theory.” Id. at 899.

The Berkebile OAJC also parsed the language of the Second Restatement,

opining that the Restatement imposes a seemingly contradictory burden of proving that

a “defect” is “unreasonably dangerous.” According to the OAJC, the standards are

reconcilable if the purpose of the “unreasonably dangerous” qualification is “to

differentiate those products which are by their very nature unsafe but not defective from

those which can truly be called defective.” The OAJC rejected the notion that defect

should be defined based upon the negligence-oriented reasonable man concept, which

tended to dilute the strict liability concept, and offered that the “unreasonably dangerous

clause” should be included in articulating the issue of proximate cause to the jury. Chief

Justice Jones explained that the result of limiting the liability of a seller premised upon a

“reasonable man” standard, which the clause “unreasonably dangerous” could suggest,

protects the seller from becoming “an insurer of his products with respect to all harm

generated by their use.” But, such standard would also require an injured consumer-

plaintiff to prove an element of negligence, which means in practice that, regardless of

the injured consumer’s expectations regarding the product, the injured consumer would

be unable to recover if an “ordinary consumer” would have expected the product’s

[J-80-2013] - 54

defective condition. Chief Justice Jones opined that it is unnecessary to place the

additional burden upon the injured consumer to limit a seller’s liability because the seller

is adequately protected “by the necessity of proving that there was a defect in the

manufacture or design of the product, and that such defect was a proximate cause of

the injuries.” Id. at 899-900 (quoting Cronin v. J.B.E. Olson Corp., 501 P.2d 1153, 1161

(Cal. 1972), whose holding we address infra). As a result, the OAJC concluded that the

jury should not be instructed as to the reasonable man standard or reasonableness “in

any form.” Id. at 900.

Chief Justice Jones added that proof of strict liability is not premised upon

whether the seller could have foreseen a particular injury, for to articulate the burden of

proof in terms of foreseeability is to require the plaintiff to prove that the seller exercised

due care. But, because the seller is liable in strict liability regardless of any negligence,

whether the seller could have foreseen a particular injury is irrelevant. Once a product

is proved defective, the seller is responsible for all the unforeseen harm it caused, no

matter how remote. Moreover, Chief Justice Jones reasoned, a plaintiff’s negligence

does not bar recovery in strict liability, although evidence that would tend to prove such

negligence may be relevant for the purpose of rebutting the plaintiff’s contentions of

defect and proximate cause. Id. at 901.

Finally, the Berkebile OAJC addressed the viability of the plaintiff’s failure to warn

claims, reasoning that the trial court had erred in failing to charge the jury on the point.

Chief Justice Jones stated: “A ‘defective condition’ is not limited to defects in design or

manufacture. The seller must provide with the product every element necessary

to make it safe for use. One such element may be warnings and/or instructions

concerning use of the product. A seller must give such warning and instructions as are

required to inform the user or consumer of the possible risks and inherent limitations of

[J-80-2013] - 55

his product.” Id. at 902 (emphasis added) (citing RESTATEMENT (2D) OF TORTS § 402A

cmt. c). The portion of the Berkebile lead opinion emphasized above was quoted

subsequently out of context by the majority in Azzarello as the standard of proof in a

strict liability action.

Looking back, it is now apparent that the first decade of applying the doctrine of

strict liability in Pennsylvania offered a series of missed opportunities to develop a

vibrant and coherent body of common law on the issue. The difficulties arose from the

happenstance of the idiosyncratic procedural postures of cases in which the Court

nevertheless apparently sought to make conceptual advances in the arena. To start,

the Webb Court “adopted” the Second Restatement and remanded the case to the trial

court for application, without offering much explanation of either how Section 402A

derived from or complemented existing common law, or direction concerning its

application by the lower courts, including the realm of jury charges. The procedural

posture of Webb -- an appeal from a trial court decision sustaining preliminary

objections -- and some consensus regarding the direction of the law, perhaps explain

the approach. The concurring and dissenting expressions in Miller, upon which the

Webb Court relied, offered a more reasoned explanation for the availability of strict

liability in tort as a separate cause of action and attenuated, to a degree, the stark

approach of the summary Webb majority decision. But, the responsive expressions --

offered in the context of a breach of warranty case no less -- suggested little in terms of

an explication of essential foundational concepts or practical application, which are

generally the sine qua non of common law decisions.

And so, much like the Second Restatement articulation of strict liability,

Pennsylvania decisional law did not speak affirmatively to the plaintiff’s burden of proof

in strict liability cases but addressed it by negation, i.e., as compared to then-more

[J-80-2013] - 56

familiar theories of breach of warranty initially and, later, negligence. In the subsequent

decade, foundational issues regarding the strict liability in tort cause of action did not

reach the Supreme Court or, when questions were presented, expressions failed to

command clear majority support. To the extent that the Court spoke to broader

considerations, several trends became evident: the original prominence of warranty-

related attempts to limit application of strict liability theory decreased, and the relevance

of negligence-related encroachments commenced its ascent; rhetoric emerged not only

to distinguish strict liability from its negligence roots, but also to excise negligence

principles and terms (such as foreseeability) from strict liability theory; the reliance upon

formulaic reiteration of consumer protection-related policies, offered as a bulwark

against attempts to dilute the application of strict liability theory in individual cases; and

then a focus in strict liability theory that ultimately turned upon a statutory construction-

type of analysis of the Second Restatement. Experience suggests that these trends,

and fits and starts, have proven antithetical to the orderly evolution of our decisional

law, one that must be responsive to new problems, perspectives, and consequences.

2. Azzarello

In 1978, the Court was confronted with the question of whether the trial court had

adequately charged a jury on the law of products liability in Pennsylvania. The

Azzarello plaintiff had been injured when he pinched his hand between two hard rubber

rolls in a coating machine manufactured by Black Brothers Company. The plaintiff

proceeded on a theory of strict liability against the manufacturer, but the manufacturer

also joined the plaintiff’s employer as a co-defendant, asserting that the employer’s

negligence was the sole or contributing cause of the plaintiff’s injuries. See Azzarello,

391 A.2d at 1022. In a unanimous opinion, the Court held that the jury charge issued by

[J-80-2013] - 57

the trial court was misleading and affirmed the decision of the Superior Court, which had

granted the plaintiff a new trial. The Azzarello Court approved an alternative charge.

Id. at 1027 n.12.

The Court addressed two related and important questions: whether a

determination as to the risk of loss in a strict liability case is a decision for the judge or

the jury, and whether the words “unreasonably dangerous” have any place in the strict

liability jury instruction. The Court concluded that the words “unreasonably dangerous”

explain the term “defective” but have “no independent significance and merely represent

a label to be used where it is determined that the risk of loss should be placed upon the

supplier.” The words “unreasonably dangerous” limit liability and signal that a seller is

not an insurer but a guarantor of the product. However, the difficulty with the use of the

term in jury instructions, the Court reasoned, was that it signaled to the jury that the

consumer has the burden to prove an element of negligence. According to the Court, in

strict liability cases, burdening a plaintiff with proof of negligence is unwarranted; the

seller’s liability is limited “by the necessity of proving that there was a defect in the

manufacture or design of the product, and that such defect was a (legal) cause of the

injuries.” Id. at 1025 (quoting Cronin, 501 P.2d at 1161-62); see also Berkebile, 337

A.2d at 899-900.

The Azzarello Court further reasoned that a change in terminology to avoid

references to negligence principles would be insufficient to articulate instructions

appropriate for a lay jury. Indeed, according to the Court, the formulation of the Second

Restatement was not intended to articulate jury instructions but employed principles

designed instead to predict responsibility and to guide the professional bench and bar.

The Court then concluded that the best means to implement the principles of the

Second Restatement was to direct: (1) that the phrases “defective condition” and

[J-80-2013] - 58

“unreasonably dangerous,” which predict whether recovery would be justified, are

issues of law and policy entrusted solely for decision to the trial court; and (2) that the

inquiry into whether a plaintiff has proven the factual allegations in the complaint is a

question for the jury. According to the Court, in cases of an alleged defective design,

the dispositive question is whether the product is safe for its intended use. The Court

emphasized that the seller is the “guarantor” of the product, and a jury could find a

defect “where the product left the supplier’s control lacking any element necessary to

make it safe for its intended use or possessing any feature that renders it unsafe for the

intended use.” Id. at 1027 (citing Berkebile, 337 A.2d at 902). Having concluded that

the jury should not be instructed on the “unreasonably dangerous” standard, the Court

then affirmed the Superior Court’s decision to remand the case to the trial court for a

new trial.

3. Post-Azzarello Design Defect Jurisprudence

Following Azzarello, decisional focus in strict liability cases shifted to reflect an

increasing concern with segregating strict liability and negligence concepts. The Court

addressed several evidentiary questions, in the process touching upon foundational

notions of strict liability relevant to a design defect claim.13

13

The jurisprudence of strict liability for failure to warn also developed in parallel.

See, e.g., Sherk v. Daisy-Heddon, 450 A.2d 615 (Pa. 1982) (where lethal propensity of

toy gun was known or should have been known to user, manufacturer not strictly liable

for failure to warn); Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100 (Pa. 1990)

(capacitor not defective for failure to warn electrician/intended user of obvious danger of

live, exposed electrical wires); Coyle, 584 A.2d at 1383 (strict liability for failure to warn

of prescription drug’s dangerous propensities is not recognized as cause of action

against pharmacist); Hahn v. Richter, 673 A.2d 888 (Pa. 1996) (where adequacy of

warnings associated with prescription drugs is at issue, strict liability is not recognized

as basis for liability); Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997) (notwithstanding

(continuedQ)

[J-80-2013] - 59

In Lewis v. Coffing Hoist Division, Duff-Norton Co., 528 A.2d 590 (Pa. 1987), the

Court affirmed the Superior Court’s decision to uphold a jury verdict in favor of a plaintiff

who alleged that the design of a control box for an overhead electric hoist was defective

because it lacked a safety mechanism to prevent accidental depression of the control

buttons. The plaintiff had injured his legs when he accidentally depressed the control

buttons, which caused the hoist to swing its load into his body. The Court rejected the

defendant’s claim that the trial court erred in excluding expert testimony relating to

industry standards and practices, e.g., that ninety percent of similar hoists lacked a

guard around the control panel and that a nationwide trade group had certified the

product design as safe.

Before addressing whether particular expert testimony was relevant to a strict

liability cause of action, the Lewis Court set out its view of the applicable substantive

law. The Court noted that strict liability in tort was a cause of action available when an

injury is caused by a defect in design. The Second Restatement, according to the

Court, does not provide a definition of the term “defect,” and jurisdictions have

articulated diverse formulas on the subject of design defect. The Court noted a

“consumer expectations” approach, which is an inquiry into whether the product “failed

to perform as safely as an ordinary consumer would expect when used in an intended

or reasonably foreseeable manner.” Id. at 593 (citing Barker v. Lull Engineering Co.,

573 P.2d 443 (Cal. 1978)). A second accepted approach, according to the Court,

involves “risk-utility” balancing. Id. (citing Barker, supra, and A. Weinstein et al,

PRODUCTS LIABILITY AND THE REASONABLY SAFE PRODUCT, at 43-59 (1978)). However, in

(Qcontinued)

ease of removing safety device, warning on blender sufficient to caution operator

against conduct that caused injury).

[J-80-2013] - 60

Pennsylvania, the Court explained, Azzarello articulated a distinct approach: “the jury

may find a defect where the product left the supplier’s control lacking any element

necessary to make it safe for its intended use or possessing any feature that renders it

unsafe for the intended use.” Id. (citing Azzarello, 391 A.2d 1027).

The Lewis Court observed that jurisdictions with various approaches agreed that

relevant at trial is the condition of the product rather than the reasonableness of the

manufacturer’s conduct. As a result, the Court concluded, a strict liability claim does not

sound in negligence -- a proposition in harmony with the Azzarello decision. The Court

held that, because “due care” has no bearing upon liability in a strict liability case, proof

of industry standards -- which go to a negligence concept of reasonable care -- are

irrelevant and “created a strong likelihood of diverting the jury’s attention from [the

product] to the reasonableness of the [manufacturer-defendant’s] conduct in choosing

its design.” Id. at 593-94.

Mr. Justice Larsen concurred, adding that because of their “inherently self-

serving nature,” admission of industry standards evidence would be highly prejudicial to

the consumer. In a dissent, Mr. Justice Flaherty criticized the majority’s approach to

strict liability claims, noting that evidence of injury alone is insufficient to prove a strict

liability claim; rather, industry standards are relevant to the question of defect. This is

so, the dissent said, because suppliers are liable only if an unsafe product is placed on

the market: strict liability “does not impose liability for failing to make an already safe

product somewhat safer, or for failing to utilize the safest of all possible designs. We

are simply not dealing with conceptual Platonic ideals of perfection when a jury

considers whether any given product is safe.” Id. at 595. In a separate dissent, Mr.

Justice Hutchinson, also joined by Justice Flaherty, opined that industry standards are

written by specialized individuals with knowledge of product design superior to that of

[J-80-2013] - 61

courts and, as a result, evidence of such standards is relevant to the question of defect.

Justices Flaherty and Hutchinson concluded that evidence of industry standards was

admissible although not necessarily highly probative.

Later, in Kimco Development Corporation v. Michael D’s Carpet Outlets, 637

A.2d 603 (Pa. 1993), the Court affirmed the decision of the Superior Court, and held

that the comparative negligence of a co-defendant is not a basis upon which to

decrease the amount of damages available premised upon a strict liability claim. In

Kimco, a shopping center owner and several tenants sued the manufacturer of

polyurethane foam carpet padding, which caught fire and damaged the shopping center,

as well as the tenant in whose store the fire broke out; the tenant-defendant

countersued the manufacturer and shopping center owner. The parties asserted claims

of negligence, breach of warranty, and strict liability in tort. The jury returned a verdict

in favor of the plaintiffs on theories of strict liability and negligence, apportioning

negligence responsibility 80/20 to the tenant-defendant and manufacturer, respectively.

In addition, the jury found in favor of the tenant-defendant and against the manufacturer

on a strict liability theory. The trial court denied a motion to reduce the tenant-

defendant’s strict liability verdict against the manufacturer premised upon the

apportionment of responsibility in negligence. The Superior Court affirmed.

On appeal, this Court rejected the manufacturer’s argument that comparative

negligence is a defense to a claim in strict liability. Initially, the Court noted that “[t]he

law amongst the various states is in considerable disarray on the point in question.”

The Court then reasoned that applying contributory negligence principles to strict liability

claims would cause “conceptual confusion” and would undermine the purpose of strict

liability: “[t]hroughout the development of [Section] 402A liability, we have been

adamant that negligence concepts have no place in a strict liability action.” Id. at 605-

[J-80-2013] - 62

06 (citing Azzarello, McCown, and Berkebile). According to the Court, in strict liability,

“the focus is on the nature of the product and the consumer’s reasonable expectations

with regard to the product, rather than upon the conduct of either the manufacturer or

the person injured.” The Court concluded that permitting recoveries to be reduced

premised on negligence concepts would weaken the deterrent effect of the policy to

protect the consumer and to shift the risk of loss to the supplier of the defective product

“without regard to fault or privity of contract.” Id. at 605-07.14 Justice Flaherty

dissented, premised upon the argument that strict liability without regard to

proportionate faults burdened business enterprises with liabilities that worked serious

detriment to the economy.

4. Recent Cases and the Third Restatement

In 1998, the ALI proposed a new restatement of the law relating specifically to

products liability. See RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY §§ 1-8 (1998)

(Liability Rules Applicable to Products Generally). As is evident from the premise of this

litigation, this Court has not yet determined whether to adopt the formulation of the Third

Restatement as the law of Pennsylvania. However, the suggestion for a “move” to the

Third Restatement, or adoption of certain of its principles, has been made in several

non-precedential opinions.

14

By comparison, doctrinal separation played a noticeably less prominent role in an

earlier decision relating to whether contributory negligence was an available defense to

a strict liability claim. In McCown v. International Harvester Co., 342 A.2d 381 (Pa.

1975), the Court held that contributory negligence was not an available defense in a

strict liability case because such recognition would contradict the normal expectation of

product safety upon which the strict liability cause of action is premised. “One does not

inspect a product for defects or guard against the possibility of product defects when

one assumes the item to be safe.” Id. at 382.

[J-80-2013] - 63

In 2003, the question before a six-Justice Court was whether a supplier was

responsible in strict liability to a consumer-plaintiff other than the intended user of the

product. See Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) (OAJC). The

plaintiff had alleged that the butane lighter designed and manufactured by the defendant

was defective because it lacked a safety device that would have prevented a two year-

old from setting the tragic fire that killed the child, his sibling and his mother. In relevant

part, the Court reversed the decision of the Superior Court and reinstated the trial

court’s summary judgment order. The Court was deeply divided in its reasoning.

The single Justice OAJC authored by Mr. Chief Justice Cappy concluded that a

product is not defective if it is safe for its intended user. Id. at 1005. The OAJC rejected

the plaintiff’s argument that a manufacturer should be responsible for harm to a

foreseeable albeit unintended user, opining that foreseeability concepts have no

application in strict liability theory and foreseeable users may recover by proving

negligence. Among other things, the OAJC recognized that some strict liability

decisions had relied upon foreseeability principles but the opinion denounced the

practice and would have reaffirmed the firm conceptual distinction between strict liability

and negligence causes of action. Id. at 1007 (citing Davis v. Berwind Corp., 690 A.2d

186 (Pa. 1997)). “Recognition that strict liability is not a type of mongrel derivative of

negligence is also consistent with the historical development of this cause of action.

Strict liability was intended to be a cause of action separate and distinct from

negligence, designed to fill a perceived gap in our tort law.” Id. (citing Azzarello, 391

A.2d at 1023-24). In a footnote, the OAJC noted the supplier’s alternative argument

relating to the Third Restatement, but deemed it waived. Mr. Justice Nigro concurred in

the result, without an opinion. Madame Justice Newman filed a concurring and

dissenting opinion, in which she agreed with the OAJC that the strict liability claims

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failed because the lighter was safe for its intended use by adults; Justice Newman

dissented from that part of the opinion addressing the disposition of the plaintiff’s

negligence claim. Id. at 1024 (Newman, J., concurring and dissenting).

Mr. Justice Saylor authored a concurring opinion, which this author and Mr.

Justice Eakin joined. Justice Saylor advocated taking the opportunity to address

foundational matters, to reassess Pennsylvania’s Second Restatement approach, and

to examine the range of readily accessible, corrective measures, including adoption of

the Third Restatement. In relevant part, the concurrence addressed three points: first,

that strict liability doctrine is embedded with concepts central to negligence theory;

second, that ambiguities and inconsistencies in prevailing strict liability jurisprudence

affected the proper disposition of the appeal; and third, that the Third Restatement’s

approach would provide the most viable route to clarification and remediation of strict

liability jurisprudence in Pennsylvania.

On the first point, Justice Saylor noted that the Second Restatement articulation

for the strict liability cause of action posed difficulties in application to design defect

claims. At origin, Justice Saylor explained, the standard derived from manufacturing

defect cases, in which “something went wrong in the manufacturing process” and the

resulting product was not as safe as intended. The core objectives of the Second

Restatement had been to relieve consumer-plaintiffs of the burden of proving that the

supplier had exercised due care in the manufacturing process (necessary to prove

negligence), and to spread the risk of loss among consumers. But, Justice Saylor

observed, courts had since recognized the “limitations of the just implementation of loss

spreading via judicially crafted doctrine.” Id. at 1013 n.3 (citing Duchess v. Langston

Corp., 769 A.2d 1131, 1145 (Pa. 2001)). Consistent with its purposes, the Second

Restatement declared a supplier liable even if it exercised all possible care in the

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preparation and sale of the product. But, application of the doctrine was limited to

defective products unreasonably dangerous to the consumer or his property. The

concurrence noted that the Second Restatement formulation, as a result, contained an

internal tension: the strict liability rule “was tempered by a negligence-based concept of

defect.” In application to design defect claims, the concurrence further observed, courts

in Pennsylvania recognized “an integral role for risk-utility (or cost-benefit) balancing,

derived from negligence theory.” Id. at 1013-14 (citing Azzarello, 391 A.2d at 1026;

Burch v. Sears, Roebuck & Co., 467 A.2d 615, 618 (Pa. Super. 1983); Dambacher v.

Mallis, 485 A.2d 408, 422 (Pa. Super. 1984)). As a result, while the rhetoric of retaining

a firm separation between strict liability and negligence remained pervasive in

decisional law, in application, the distinction was unnecessary: “[i]n design cases the

character of the product and the conduct of the manufacturer are largely inseparable.”

The concurrence advocated recognition of the essential role played by negligence-

derived risk-utility balancing in design defect litigation. Id. at 1015-16.

Relating to the second point, the concurrence offered a critique of Azzarello,

which is particularly relevant since Omega Flex echoes the analysis in this appeal.

According to the concurrence, courts have implemented the Azzarello decision by: (1)

assigning the risk-utility balancing to trial courts on the facts most favorable to the

plaintiff; and (2) providing juries with minimalistic instructions that, in an effort to insulate

the jury from negligence terminology, “lack essential guidance concerning the nature of

the central conception of product defect.” Because the jury is not permitted to consider

the cost-benefit factors, neither judge nor jury “actually decide whether the true benefits

of the proposed alternative design outweigh the true cost” and whether the product is in

fact unreasonably dangerous or defective. Furthermore, the concurrence added that,

by omitting the critical “unreasonably dangerous” limitation on liability or cost-benefit

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instructions, the Azzarello-approved charge fails to define the term “defect” clearly, and

consequently fails to guide the jury in distinguishing products safe and unsafe for their

intended use. The concurrence also noted that the use of the term “guarantor” in

relation to the manufacturer is not a sufficient limitation on liability, especially because

the term “to a lay jury will surely seem indistinguishable from ‘insurer.’” 841 A.2d at

1016-18 (citing Thomas, 71 Temp. L. Rev. at 225 & 232). The concurrence advocated

correction of this jurisprudence in the interest of justice.

On the final point, the concurrence suggested the Third Restatement as a viable

alternative articulation of the standard of proof, with the potential to resolve the

persisting difficulties and to enhance fairness and efficacy in the liability schema. Id. at

1021. According to the concurrence, the Third Restatement’s negligence-derived

standard represents “the distilled expression of thirty years of design-defect litigation.”

The concurrence summarized the general rule of the Third Restatement as follows: “a

product is deemed defective in design when the foreseeable risks could have been

reduced or avoided by the use of a reasonable alternative design, and when the failure

to utilize such a design has caused the product to be ‘not reasonably safe.’” The

concurrence explained that design defect liability under the Third Restatement is

predicated upon a concept of responsibility in which the determination is made by

reference to an independent assessment of advantages and disadvantages, rather than

by reference to the manufacturer’s own design or marketing standards, which are in fact

alleged to be unreasonable by the plaintiff. Moreover, the concurrence stressed,

products are not defective simply because they are dangerous. Relevant to the issue in

Phillips, the concurrence added that the Third Restatement expressly incorporates

notions of reasonable foreseeability that would temper the exclusive reliance on the

risk-utility test. In the view of the concurrence, the Third Restatement provided the best-

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balanced and reasoned approach to strict liability in Pennsylvania. On a final note, the

concurrence opined that application of the strict liability doctrine should be closely

limited until the existing substantial deficiencies in the strict liability schema are

addressed and remedied by the Court.

In 2006, the Court decided General Services, the case upon which Omega Flex

relies extensively. The Court there awarded the supplier a new trial, holding that the

trial court erred in failing to instruct the jury that a supplier is liable only for harm that

occurs in connection with the intended use of a product by an intended user. 898 A.2d

at 600 (citing Phillips, 841 A.2d at 1007 (OAJC); id. at 1018 (Saylor, J., concurring,

joined by Castille & Eakin, JJ.); id. at 1023 (Newman, J., concurring and dissenting). In

General Services, a Commonwealth agency asserted claims in strict liability against,

inter alia, the manufacturer of a synthetic chemical detected on surfaces and in the

ambient air of the Transportation and Safety Building, an office tower in Harrisburg,

following a fire that consumed building materials containing the chemical. The supplier

offered proposed jury instructions, which the trial court rejected, that would have

distinguished between the supplier’s liability exposure for fire-related and other

contamination with the synthetic chemical.

In an opinion by Justice Saylor, the General Services Court noted the consensus

in Phillips, supra, against “expanding the scope of manufacturer liability without fault in a

generalized fashion” pending an overhaul of strict liability doctrine by the Court. In this

respect, the Court acknowledged that accidental combustion of the building materials

was foreseeable and that an argument could be made for the notion that safety for an

intended use of the materials should be deemed to encompass safety under such

circumstances. The Court nevertheless rejected the argument that expansion of liability

premised upon negligence-based foreseeability considerations was warranted,

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emphasizing an incongruity with simultaneously constraining a supplier’s resort to

negligence-based use-related defenses. See 898 A.2d at 600-04. Absent expansion of

liability, the Court explained, the Commonwealth agency could not recover damages

caused by the incineration of building materials, which was not a use intended by the

manufacturer. A cause of action in strict liability remained viable for harm caused by

contamination of the Commonwealth agency’s office building through off-gassing of the

chemical. Id. at 604.15

Poised to address foundational questions relating to the application of the strict

liability doctrine in Pennsylvania, in 2008, the Court granted allowance of appeal in

Bugosh v. I.U. North Am., Inc., 942 A.2d 897 (Pa. 2008) (per curiam). In 2009,

however, the Court dismissed the ensuing appeal as improvidently granted; Justice

Saylor, joined by this author, dissented from the summary disposition. See Bugosh,

971 A.2d at 1228; id. at 1229-44 (Saylor J., dissenting, joined by Castille, C.J.).

In a dissenting statement, Justice Saylor reiterated that foundational concerns

persisted in the area of strict liability and, by way of background, recapitulated the main

15

Also of note, in General Services, Justice Newman dissented in part, and Mr.

Justice Baer joined Justice Newman’s expression. The dissent argued that the matter

implicated not a misuse of the product by a user, as Phillips had, but a situation in which

during an intended use by an intended user, the product was exposed to easily

anticipated conditions. Justice Newman would have found the doctrine of strict liability

applicable, on a theory akin to the “crashworthiness exception,” and would have denied

the manufacturer’s request for a new trial. Id. at 619. Omega Flex argues that the

Tinchers relied upon the theory described by the dissent and rejected by the General

Services majority. But, the General Services majority noted that its “discussion [did] not

address a situation in which a defect in the building materials is the cause of

combustion occurring during their ordinary use.” 898 A.2d at 601 n.11. The Tinchers’

allegations are precisely that a defect in the CSST was a cause of the fire occurring

during the CSST’s ordinary use. The decision in General Services is, as a result,

distinguishable on its face, notwithstanding Omega Flex’s arguments to the contrary.

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points of the Phillips concurrence. The dissent also noted that the categorical divide

between strict liability and negligence principles, articulated in the cases, is most readily

justified in manufacturing defect cases; claims implicating design or warning defect,

however, are far more problematic. Relevant to design defect claims, the dissent

explained that doctrinal limiting principles evolved to contain the liability of product

suppliers because traditional notions of strict liability were ill-suited to a tort regime with

a largely open-ended damages scheme and the reality that all product designs are

capable of contributing to human injury. According to the dissent, the alternative of a

judicially imposed mandatory insurance scheme upon the business community is

unpalatable and incongruent with the general rejection of a pure loss-spreading tort

system. Id. at 1234-35 & n.10 (citing Cafazzo v. Central Med. Health Servs., Inc., 668

A.2d 521, 526 (Pa. 1995); Coyle, 584 A.2d at 1387). The dissent suggested a

negligence-derived risk-utility approach to limiting supplier liability, aimed at establishing

liability boundaries and reconciling strict liability doctrine with the historical grounding of

tort law in notions of corrective justice. In this regard, the dissent noted with approval

decisional law regarding policy justifications for limiting supplier liability: “incentivizing

safer design by rewarding careful manufacturers; the recognition that a verdict for a

plaintiff in a product liability case is tantamount to a determination that an entire product

line is defective, and therefore, the higher threshold of fault is justified; a fault system

incorporates greater intrinsic fairness by not burdening manufacturers and their

customers with the cost of insuring against all possible losses; and liberalized modern

discovery rules should enable plaintiffs to learn the facts surrounding manufacturers’

deliberate design decisions.” Id. at 1235 & n.9 (citing Prentis v. Yale Mfg. Co., 365

N.W.2d 176, 185 (Mich. 1984)); see also id. at 1239-40; 1235 n.11 (quoting Wm. A.

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Worthington, THE “CITADEL” REVISITED: STRICT TORT LIABILITY AND THE POLICY OF LAW , 36

S. Tex. L. Rev. 227, 250-52 (1995)).

Going forward, the dissent advocated moving beyond the doctrinal divide

between strict liability and negligence principles that was articulated by Azzarello.

Azzarello, according to the dissent, was not reasoned well in its time and has not

withstood the test of time. Id. at 1236-37 (criticizing, inter alia, Azzarello Court’s

reliance on Cronin, 501 P.2d 1153, and Glass v. Ford Motor Co., 304 A.2d 562 (N.J.

Super. Ct. Law Div. 1973)). The dissent suggested that existing jurisprudence

attempting to justify the doctrinal divide upon loss-spreading and deterrence-based

rationales was stated in “too conclusory terms” and “too powerful” language to be well-

reasoned. “Courts are not experts in manufacturer behavior, and there are equally

reasonable arguments to be made that a negligence-based standard does more to

encourage safer products than an absolute liability scheme. Moreover, courts and

commentators have noted that these types of unsupported social policy judgments can

have tremendous social consequences.” Id. at 1239 (citing Prentis, supra; David G.

Owen, SYMPOSIUM: A TRIBUTE TO PROFESSOR DAVID FISCHER: DESIGN DEFECTS, 73 Mo. L.

Rev. 291, 296 (2008)). Among the consequences, the dissent noted that when a verdict

for the plaintiff in a design defect case effectively suggests that an entire product line is

defective, the consequence may involve a significant portion of a supplier’s assets and

deprive the public of the product. On a broader scale, such a liability scheme has the

potential to unduly disrupt product investment and innovation. Id.; see also Beard, 41

A.3d at 837 (same). According to the dissent, these potential effects are relevant in any

viable strict liability scheme.

The dissent recognized some force in the argument that the General Assembly is

best positioned to alter the existing product liability schema. But, the dissent noted,

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because the Legislature had not occupied the arena, which remained in a state of

substantial disrepair that had “taken our jurisprudence too far from the legitimate home

of tort law in the concept of corrective justice,” action by the Court was permissible and

necessary. “To the degree a distinct category of ‘strict’ product liability doctrine is

necessary, at most, it always has been, and rationally should be, one of quasi-strict

liability, tempered, in design and warning cases, with the legitimate involvement of

notions of foreseeability and reasonableness within the purview of the fact finder.” Id. at

1240. The dissent then suggested filling the “substantial void” that would be left by

disapproval of Azzarello with a prospective movement to the Third Restatement

position.

Importantly, as an alternative, the dissent suggested that, while continuing the

search for the perfect vehicle by which to devise a replacement strict liability scheme,

the Court could “at least depart from Azzarello prospectively, thus clearing a path for our

common pleas and intermediate appellate courts to consider the reasoned

recommendations of the Third Restatement, as well as other reasoned alternatives

and/or refinements.” Bugosh, 942 A.2d at 1241. This latter approach would be

adequate because the difficulties described by the dissent are with Azzarello rather than

the Second Restatement itself. In the dissent’s view, the Court should start by

reaffirming the understanding that “modern products liability law rests fundamentally on

the premise that manufacturers are fairly held to answer in the courts for the basic

safety of their products’ designs.” Id. at 1242 (citing Owen, 73 Mo. L. Rev. at 291). The

dissent suggested that, in that scenario, the Legislature could appropriately undertake

timely, comprehensive reform in light of the broader tools that it has available for

weighing competing interests.

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In 2008, in parallel to the proceedings in Bugosh, the Court denied the request of

the U.S. Court of Appeals for the Third Circuit for certification of a question of law

relating to the application under Pennsylvania law of the intended use doctrine to

prevent recovery in strict liability by innocent bystanders. See Berrier, 959 A.2d at 901

(per curiam). In a concurring statement, Justice Saylor noted his preference for

addressing the global issues pervading strict liability doctrine, before engaging in the

collateral effects implicated by the certified questio

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