By way of update to my previous blogs, the Pennsylvania Supreme Court released its much anticipated decision this week, declining to adopt the Restatement (Third) of Torts for Products Liability cases. See Terrence D. Tincher and Judith R. Tichner v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014, Castille, C.J.).
The Court overruled its decision in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978) and its negligence/strict liability analysis.
Although the Court declined to adopt the Restatement (Third) of Torts for Products Liability cases, the Court noted that certain principles in the Restatement (Third) informed the Court’s approach to analyze products liability cases in the post Azzarello paradigm:
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. 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.
Terrence at 1-2.