Atlantic Legal has filed an amicus brief in the Pennsylvania Supreme Court in Tincher v. Omgea Flex, Inc., a design defect case which arises out of the failure of flexible steel piping carrying natural gas which was struck by lightning, resulting in a serious fire.
The Pennsylvania Supreme Court asked the parties (and amici) for supplemental briefing on two questions: (1) Whether Pennsylvania should replace the strict liability analysis of Section 402A of the Restatement (Second) of Torts with the analysis of the Restatement (Third) of Torts: Product Liability, section 2 and (2) Whether the holding should be applied retroactively.
The Restatement (Third) (issued in 1998) is a major overhaul of the Restatement (Second) of Torts, (1966) on the issue of strict liability for product defects.. The Restatement (Second) contained a single provision dealing with products strict liability, Section 402A. The major thrust of this section was to eliminate privity, so that any person injured by a defective product, not just the purchaser, could directly sue the manufacturer and members of the chain of distribution. The Restatement (Third) emphasizes safer product design. The core provision of the Restatement (Third), 2, states that a product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design or is defective because of inadequate instructions or warnings. To prove design defect, the Restatement (Third), unlike the Restatement (Second), requires a plaintiff to demonstrate the existence of a reasonable alternative product design (RAD). Comment d to 2 of the Restatement (Third) defines RAD in terms of the risk-utility balancing test: whether a reasonable alternative design would, at a reasonable cost, have reduced the foreseeable risk of harm posed by the product and, if so, whether the omission of the alternative design by the seller . . . rendered the product not reasonably safe.
One of the themes of the Restatement (Third) is to avoid doctrinal tort categories such as negligence, strict liability, and breach of warranty and instead define product defect functionally in terms of its design, manufacturing, and warning.
The utility-based approach acknowledges that no design is completely risk-free, and sellers should only be liable when the harm in question was reasonably preventable through the adoption of a practical alternative design available at the time of sale. It further presumes the manufacturer made a reasonable choice in choosing its particular design. Burden of proof is rightly put on the plaintiffs to demonstrate, on an objective basis, that the manufacturers choice was unreasonable. Adopting the Third Restatement both creates a rational system of products liability and creates predictability in decisions that makes litigation more efficient.
The Foundation argues that Pennsylvania should explicitly adopt Restatement (Third) of Torts: Products Liability. Pennsylvanias implementation of the Restatement (Second) has been inconsistent, contradictory, somewhat illogical, and confusing. While repeatedly stating in decisional law that strict product liability law allows of no negligence concepts, the Pennsylvania Supreme Court and Superior Court have created numerous exceptions that do, in fact, import negligence concepts (such as forseeability or intended use).
Strong concurring opinions and dissents in recent Pennsylvania Supreme Court cases have called for a clear break with the Restatement (Second), and a majority of the Pennsylvania Supreme Court has agreed that the strict liability doctrine in Pennsylvania has become muddied. The U.S. Court of Appeals for the Third Circuit, when called upon to apply Pennsylvania law has at least since 2009 predicted that Pennsylvania would adopt the Restatement (Third), and has decided cases applying Restatement (Third) rules.
In addition, the Restatement (Third)s approach is doctrinally more consistent with the trend in Pennsylvania, and is more consistent with the way manufacturers make decisions about the design and marketing of products.
The Pennsylvania Supreme Court should be commended for seeking input on whether to adopt a new products liability standard. This is the sort of issue that is both doctrinally and practically important.
Atlantic Legal elected not to take a position on the question of retroactive application, but observed that should the court decide to make the change retroactive there were numerous procedural mechanisms and safeguards to protect plaintiffs and their counsel from any negative impact the new standard would have on their presentation of their case.
To view the Foundation’s brief, please click here.