Introduction
In Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014), the Pennsylvania Supreme Court opened a new chapter in the state’s strict product liability law by overruling Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which precluded any jury determination regarding whether a product was unreasonably dangerous. In doing so, the court laid the groundwork for a new “composite standard” under which plaintiff can satisfy his or her burden of proof for a strict product liability claim in the design defect context through either the “risk-utility test” or the “consumer expectations test.” Although Tincher declined to adopt wholesale the Restatement (Third) of Torts: Product Liability, the court—as predicted by several commentators [1]—abandoned the state’s widely criticized approach to strict product liability law and aligned the state with the more modern and prevailing attitude of tort law.

The Facts and Procedural History of Tincher
Tincher presented the Supreme Court with a strict product liability case in which plaintiffs/appellees Terence and Judith Tincher (“Plaintiffs”) sued defendant/appellant Omega Flex, Inc. (“Omega Flex”) for personal property and real property damages arising from a fire at the Tinchers’ primary residence.[2] According to the evidence presented at trial, the fire began when a lightning strike melted corrugated stainless steel tubing connected to the Tinchers’ natural gas fireplace.[3] The melting ignited the natural gas in the tubing, which, in turn, caused the fire.[4] Omega Flex manufactured and sold the corrugated stainless steel tubing used in the Tinchers’ fireplace under the name “TracPipe.”[5]

After Plaintiffs dismissed their failure-to-warn claim and the jury returned a defense verdict on Plaintiffs’ negligence claim, the jury found in favor of Plaintiffs on their design defect claim.[6] Consistent with the framework outlined in Azzarello, the trial court (not the jury) initially conducted a risk-utility analysis, concluded that the risks of the TracPipe outweighed their benefits, and then submitted the design defect claim to the jury so that the jury could consider whether a defect existed in the TracPipe.[7] The jury determined that a defect did exist and awarded Plaintiffs over $950,000 in compensatory damages.[8]

Following the denial of Omega Flex’s post-trial motions, Omega Flex appealed to the Pennsylvania Superior Court, which affirmed the trial court.[9] Omega Flex then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which granted review on the issue of “[w]hether this Court should replace the strict liability analysis of Section 402A of the Restatement with the analysis of the Third Restatement.”[10] The Supreme Court heard oral arguments on October 15, 2013 and issued its 137-page opinion, accompanied by a two-page dissent, on November 19, 2014.

The Supreme Court Overrules Azzarello and Its Progeny
At the outset, Tincher overruled Azzarello, a 1978 Pennsylvania Supreme Court opinion, which announced that “negligence concepts have no place in Pennsylvania strict liability doctrine” and “led to puzzling trial directives that the bench and bar understandably have had difficulty following in practice....”[11] In overruling Azzarello, the court noted that the decision no longer remained viable in light of the realities that:

1. The Azzarello court based its holding on the faulty premise that “negligence-related rhetoric saddles a plaintiff with an additional and unwarranted burden of proof in every case” and results in jury confusion;[12]
2. The California and New Jersey cases upon which Azzarello relied were narrowed (as was the case in California[13]), or disapproved of (as was the case in New Jersey[14]) in subsequent opinions from each state’s highest court; and
3. The bright-line standard in Azzarello “is impracticable” given that the decision divorced the inquiry regarding “defect” from the related inquiry of whether the product is “unreasonably dangerous,” and trial courts lack the expertise necessary to conduct a risk-utility analysis and decide whether a product is unreasonably dangerous as a matter of law.[15]

In sum, because the “unsupported assumptions and conclusory statements upon which Azzarello’s directives are built are problematic,”[16] overruling the case better effectuated the policy considerations underlying Pennsylvania’s product liability law.

The New “Composite Standard” for Strict Product Liability Claims in Pennsylvania[17]
Although Tincher overruled Azzarello, which was the necessary predicate to adopting the Restatement (Third) of Torts: Product Liability, the Supreme Court declined to make the “decisional leap” and adopt the Third Restatement in Pennsylvania.[18] Instead, the court emphasized the need to exhibit “judicial modesty,” and in reaffirming the viability of a “properly calibrated” Second Restatement, outlined a “composite standard” for strict product liability claims under which plaintiff can demonstrate that a product contains a “defective condition” through the “consumer expectations test” or the “risk-utility test,” or both.[19] The Tincher court advanced this “composite standard” because it “retains the best-functioning features of each test, when applied in the appropriate factual context."[20]

The consumer expectations test provides that a “product is in a defective condition if the danger is unknowable and unacceptable to the average consumer.”[21] A product liability defendant can demonstrate that the product is not defective “if the ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product and the attendant risk of injury of which the plaintiff complains.”[22] Relevant considerations in evaluating a consumer’s expectations include the product’s nature, the user’s identity, the product’s intended use and intended users, and any seller or manufacturer representations regarding the product, whether implied or express.[23] The consumer expectations test originates from comments g and i of Section 402A of the Second Restatement, but the test’s shortcomings include that obviously dangerous products may be exempt from liability and that complex products may be subject to arbitrary application of strict product liability law.[24]

The risk-utility test provides that a “product is in a defective condition if a ‘reasonable person’ would conclude that the probability and seriousness of the harm caused by the product outweigh the burden or costs of taking precautions.”[25] The risk-utility test is a “post hoc” test in which the court evaluates “whether a manufacturer’s conduct in manufacturing or designing a product was reasonable.”[26] Relevant considerations in applying the risk-utility test include the product’s usefulness, the likelihood the product will cause injury, the availability of an alternative or substitute product, the manufacturer’s ability to eliminate the harmful aspect of the product without limiting its usefulness, the user’s ability to avoid harm through the use of due care, the user’s awareness of the dangers through the product’s condition or warnings, and the likelihood of loss spreading through insurance or otherwise.[27] The risk-utility test maximizes efficiency goals, but also conflicts with the law’s stated goal of compensating victims harmed by tortious actions.[28]   

Impact of Tincher on Manufacturing Defect and Failure to Warn Claims
For product liability defendants facing manufacturing defect and failure to warn claims in Pennsylvania, the Tincher decision—which concerned a design defect claim—has further implications. The court noted that while its “decision is limited to the context of a ‘design defect’ claim... the foundational principles upon which we touch may ultimately have broader implications by analogy.”[29] Indeed, the court expressly noted that its holding “may have an impact upon other foundational issues regarding manufacturing or warning claims.”[30] Thus, while the decision rejected broadly adopting the Third Restatement, the opinion did not foreclose the court from adopting “available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations” in the manufacturing defect and failure-to-warn contexts.[31] In short, the court signaled its willingness to reevaluate Pennsylvania’s manufacturing defect and failure-to-warn jurisprudence in light of the more modern and prevailing attitude of tort law.

At bottom, Tincher raises many new questions, which the court itself stated needed to be presented to future courts. As noted by the court, “The delivery of justice in this area requires a recognition and appreciation of the appropriate and significant roles played by advocates, trial judges, and the appellate judiciary.... [T]he area of strict liability law remains complex and our decision here does not purport to foresee and account for the myriad implications or potential pitfalls as yet unarticulated or unappreciated.”[32] Accordingly, the Tincher decision may be seen as recalibrating Pennsylvania’s product liability law to that which existed prior to the 1978 Azzarello decision, but there exists decades of interpretive precedents left to be re-examined in light of the Azzarello’s demise.

Change that appears to be inevitable is the introduction of state-of-the-art evidence in failure to warn claims. To date, Pennsylvania has been among a small minority of jurisdictions willing to hold a product supplier liable for failing to warn of dangers that were completely unknowable to both science and industry at the time of the product’s sale.[33] In light of Tincher’s overruling of Azzarello, Pennsylvania juries should now be permitted to consider a product defendant’s reasonableness in marketing and selling the product. That reasonableness, then, will turn in whole or in part on whether the product’s risks were known or knowable at the time of the product’s sale.

Conclusion
Tincher stands as a strong step in the right direction for Pennsylvania product liability defendants. Nevertheless, it also leaves a significant amount of precedents left to be considered, and Pennsylvania law will continue to develop toward the modern view in the coming years.

[1] See, e.g., Nicholas P. Vari & Michael J. Ross, In a League of Its Own: Restoring Pennsylvania Product Liability Law to the Prevailing Modern “Attitude” of Tort Law, 23 Widener L.J. 279 (2013).

[2] Tincher v. Omega Flex, Inc., No. 17 MAP 2013, at 2-3 (Pa. Nov. 19, 2014) (hereinafter “Tincher”).

[3] Id. at 2-3.

[4] Id. at 3.

[5] Id.

[6] Id. at 11.

[7] Id. at 9-11.

[8]  Id. at 11.

[9] Id. at 16.

[10] Id. at 17.

[11] Id. at 75.

[12] Id. at 76-77.

[13] See Barker v. Lull Eng’g Co., 573 P.2d 443 (Cal. 1978), which narrowed the holding in Cronin v. J.B.E. Olson Corp., 501 P.2d 1153 (Cal. 1972).

[14] See Cepeda v. Cumberland Eng’g Co., 386 A.2d 829 (N.J. 1978), which disapproved of Glass v. Ford Motor Co., 304 A.2d 562 (N.J. Super. 1973).

[15] Tincher at 82-83.

[16] Id.

[17] In addition to articulating a new “composite standard,” The Tincher court also clarified the proper jury instructions and burdens of proof in strict product liability cases, and in particular with the risk-utility analysis. Notably, when plaintiff proceeds on a risk-utility theory, “proof of risks and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product.” Tincher at 131.

[18] Id. at 84.

[19] Id. at 119.

[20] Id.

[21] Id. at 95.

[22] Id.

[23] Id.

[24] Id. at 97.

[25] Id. at 98.

[26] Id. at 99.

[27] Id. at 99, quoting Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 260-61 (Ill. 2007).

[28] Tincher at 100.

[29] Id. at 90 n.21.

[30] Id. at 135.

[31] Id. at 136.

[32] Id. at 128.

[33] See, e.g., Carrecter v. Colson Equip. Co., 499 A.2d 326, 331 (Pa. Super. 1985).