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The Pennsylvania Supreme Court, in Tincher v. Omega Flex on November 20, 2014, declined to adopt the Restatement (Third) of Torts

/ 24.Nov, 2014
The Pennsylvania Supreme Court issued its 128 page opinion in Tincher v. Omega Flex on November 20, 2014, in which the court declined to adopt the Restatement (Third) of Torts, holding that Pennsylvania will continue to follow the Restatement (Second) of Torts.
In addition to rejecting the Third Restatement, the court overruled its 1978 decision in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which had served as the controlling standard for strict liability cases. The court determined that the question of a defective condition is a question of fact ordinarily submitted for determination to the jury and is only removed from the jury’s consideration where it is clear that reasonable minds could not differ on the issue. In rejecting the Third Restatement and overruling Azzarello, the court enunciated the following standard in strict liability cases:
“…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.” Therefore, in pursuing strict liability claims, plaintiffs may assert liability against product manufacturers through the “consumer expectancy” standard or through a “risk – utility” analysis. The new standard will invariably introduce concepts of negligence in strict liability claims and reintroduce the concept of “unreasonably dangerous” products in claims of defective design, and presumably failure to warn. Tincher throws all parties – plaintiffs and defendants – in uncharted waters. The opinion admits to various “grey areas” that will need to be determined by the trial court and future appellate claims. Included in the areas of concern are the nature of jury instructions, the shifting of burdens of proof in establishing claims and defenses, and the expected protraction of discovery. Additionally, the new requirements may compel revised expert opinions and reports for both plaintiffs and defendants to satisfy the prima facie burden in proving claims, defenses and cross-claims and will likely result in lengthened trials. The 128 page majority opinion issued by the PA Supreme Court likely raises more questions than answers.


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