Sunday, November 23, 2014

Pennsylvania Rejects Product Liability Restatement, Sticks to Consumer Expectations Test

TortsProf Blog: "On Wednesday, the Pennsylvania Supreme Court, 4-2, in Tincher v. Omega Flex, Inc. decided to continue using the Restatement (Second) of Torts for products liability cases.  

Some highlights: 
" 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. 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. 
 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." 
 In a Concurring and Dissenting Opinion Justice Saylor lamented the embrace of a consumer expectations test.

No comments:

Post a Comment