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ALERT: Did Tincher Change How Product Liability Cases in Pennsylvania Should Be Defended?

April 4, 2016

The impact of the Tincher decision on Product Liability law in Pennsylvania.

While Pennsylvania courts have historically created a rather unique standard for products liability litigation, the Pennsylvania Supreme Court’s recent ruling in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014),  updated and more closely aligned Pennsylvania products liability law with other states.  Prior to the Tincher decision, Pennsylvania followed a combination of the Restatement (Second) of Torts § 402A and its own standards based on the Supreme Court’s interpretation of §402A, which provided a plaintiff friendly burden of proof and created a strict separation between negligence and strict liability causes of action.  This framework was established in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which resulted in a series of muddled common law applications that ultimately allowed a jury to find in favor of the plaintiff without any review of the actual product. 

The Tincher court refused to adopt the Restatement (Third) of Torts like many states before it, but overruled Azzarello and arguably the common law application that followed it.  Tincher created a new “composite standard” for product liability cases that requires the plaintiff to prove either that the product failed the “consumer expectations test” or the risk-utility test.  “The consumer expectation test defines a 'defective condition' as a condition, upon normal use, dangerous beyond the reasonable consumer's contemplation."  Tincher, 104 A.3d at 386.  Therefore, if an ordinary consumer understands the potential risks involved with using the product, the manufacturer will not be held liable.  Under the risk-utility test, a "product is in a defective condition if a 'reasonable person' would conclude that the probability and seriousness of harm caused by the product outweigh the burden or cost of taking precautions." Id. at 389.  Consequently, the seller should take certain steps to prevent potential injury of the user based on the “type and magnitude of the risk” posed by the product.  Based on Tincher, a plaintiff will only prevail in their claim if they establish that the product caused their injury and that it failed either of the above-mentioned tests.

Tincher was a step in the right direction for Pennsylvania product liability law, but its overall impact remains to be seen.   As the Court acknowledged, “[t]he area of strict liability law remains complex and our decision here does not purport to foresee and account for the myriad of implications or potential pitfalls as yet unarticulated or unappreciated.”  Id. at 406.  These issues include whether a plaintiff can attempt to establish liability through either the consumer expectations test or risk-utility test, or if they are required to set forth arguments based on both.  Additionally, there are several evidentiary matters and jury instruction issues that have yet to be answered.  Clarification on many of these issues will take years, as the lower courts continue to digest and interpret the Tincher decision.

There is no doubt, however, that Tincher changed the landscape of product liability litigation in Pennsylvania.  Because Azzarello was overruled, it can be argued that the stringent separation between strict liability and negligence action is no more, which would mean evidence of a product user’s comparative negligence could be introduced at the time of trial even if the negligence claim is withdrawn by the plaintiff.  It can also be argued that evidence of a product’s compliance with industry standards is admissible to prove that it is not defective.  More generally, a broader spectrum of evidence on the design and features of a product should be admissible to address the strict liability standards enunciated in Tincher.  These issues and several others will be raised and addressed by Pennsylvania courts moving forward and as such, it is important that the tenets of Tincher are advocated as much as possible when appropriate to develop favorable precedent.

For more information, please contact Chris Mavros at 

*This case was not handled by Zarwin Baum attorneys.

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