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PA Supreme Court passes on Third Restatement's product liability adoption; strong concurrence sets stage for future

 

In a decision that affirmed Pennsylvania's explicit separation of negligence and strict product liability legal concepts in design defect cases, the state Supreme Court in Phillips v. Cricket Lighters4 perhaps created more confusion in this area of Pennsylvania law.

 

Three people died in a 1993 fire that allegedly started when a two-year-old burned his house down with his mother's lighter.  The trial court granted the manufacturer's motion for summary judgment and dismissed both strict liability and negligence claims, finding where a product is found not to be defective for strict liability purposes then the design defect claim sounding in negligence must also fail.  The Superior Court reversed and reinstated both claims, purportedly affirming Pennsylvania law stating a product must be safe for its intended use when used by any user - intended or unintended.

 

The Supreme Court partially affirmed and reversed the Superior Court.  The plaintiff argued it was reasonably foreseeable to the manufacturer a small child could encounter the lighter and "grievous damages" could result with no child-safety device.  Thus, plaintiff argued, strict liability should attach to the manufacturer.  The court (through its lead opinion) disagreed, holding the concept of foreseeability has no place in strict product liability law.  However, it also reined in the Superior Court and ruled a plaintiff must specifically prove a product is unsafe for its intended user in order to prevail in design defect cases.  It therefore affirmed the dismissal of plaintiff's product liability claims (since the lighter explicitly warned it was intended solely for adult use), yet remanded the negligence claim for trial, determining plaintiff had presented enough evidence for a jury to decide whether the manufacturer had breached its duty of care by not including a child-safety device on the lighter.

 

The Phillips decision demonstrates the fallacy of the negligence/strict liability dichotomy that has existed in Pennsylvania since the 1978 Pennsylvania Supreme Court decision of Azzarello v. Black Brothers Co.,5 which set forth a generally plaintiff-friendly regime.  Since Azzarello, negligence and strict liability concepts have been strictly separated, juries have been told manufacturers are "guarantors" of safe products, and that products are defective if they lack any element needed to make them safe.  Most importantly, juries have not been allowed to balance the risks and benefits of asserted product defects.  In this regard, manufacturers have generally been barred from introducing otherwise relevant evidence such as the conduct of the plaintiff using the product and compliance of the product with industry standards and state-of-the-art.

Although Azzarello permitted judges to perform a risk/benefit analysis as a threshold determination for the claim to proceed to a jury, Pennsylvania is the only state in the country to not permit juries to ultimately perform the analysis.  In contrast, the majority of jurisdictions have recognized the "reasonableness" of a manufacturer's design choice is completely relevant to design defect cases, and have thus adopted the products liability section of the Third Restatement of Torts (1998), which allows juries to apply a "reasonableness" standard to design and warning cases.

 

Three justices in Phillips (a plurality, but not majority) concurred with the court's ultimate decision, but urged adoption of the Third Restatement, arguing negligence concepts are inherently embedded in the strict liability doctrine and noting most courts and commentators "have come to realize that in design cases the character of the product and the conduct of the manufacturer are largely inseparable."  Therefore, they argued, only the failure to design against "foreseeable risks" should deem a product defective.

 

The two justices joining in the lead opinion (two of the seven justices neither filed nor joined any opinion) did not reach the Third Restatement issue because they deemed it waived/moot by the parties on appeal.  Indeed, it was plaintiff - not defendant - who argued for mixing strict liability with negligence concepts.  However, given the strong faction of the court pushing the Third Restatement, and given the "foreseeability" concepts already inherent in Pennsylvania's "intended user" test, it is clearly only a matter of time until the court does the right thing and formally adopts it.

 

4 841 A.2d 1000 (Pa. 2003)

5 391 A.2d 1020 (Pa. 1978)

 

 

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