In a landmark decision, the Pennsylvania Supreme Court declined to adopt the Restatement (Third) of Torts in product liability cases. Jurisdictions that adopted the Third Restatement allow defendants to introduce evidence regarding the foreseeability of a product’s risks and require plaintiffs to establish that a safer alternative design was viable when the product was manufactured. In a 4-2 decision in the matter of Tincher v. OmegaFlex, the Court continued to apply the Second Restatement, which focuses upon the characteristics of the product and does not permit consideration of a manufacturer’s conduct or the feasibility of an alternative design.

In support of its determination, the Court stated that the Second Restatement permitted plaintiffs to tailor their factual allegations and legal arguments “as they present themselves in the real-world crucible of litigation, rather than relying upon an evidence-based standard of proof.” The Court also noted that under the Third Restatement, certain types of cases could be off-limits, such as cases involving novel products in which there is no alternative design. In addition, the Court found that the Third Restatement was likely to hinder the development of product liability law.

While electing to continue to utilize the Second Restatement to products liability cases, the Tincher Court slightly modified its application. Specifically, the Court held that a plaintiff bringing a products liability action must either demonstrate that the product does not meet the safety expectations of reasonable consumers, or show that a product’s risks outweigh its utility. In doing so, the Court overruled its 1978 decision Azarello v. Black Brothers, which precluded juries from deciding issues of negligence in a products liability action, and instead limited the jury’s analysis to whether a product was unsafe for its intended use. Following Tincher, juries will now be authorized to decide risk-utility matters that were previously a threshold issue for courts.

While generally viewed as a positive development for plaintiffs, Tincher leaves many open questions pertaining to product liability actions, including matters regarding evidentiary issues, the burden of proof, and jury instructions. These issues will likely result in numerous products liability decisions by Pennsylvania appellate courts in the years to come.

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