By:
Keith E.
Johnston
In Berrier v. Simplicity Manufacturing, Inc., 2008 WL
538912 (January 17, 2008) the Third Circuit Court of Appeals requested the
Pennsylvania Supreme Court to decide an important and unresolved question under
Pennsylvania’s products liability law whether a bystander may pursue a strict
liability claim for injuries caused by a product (riding lawnmower) when the
bystander is not an intended user of the product. The certification procedure
permits a federal court to request the highest state court to resolve a question
of Pennsylvania law.
In Berrier a four year old child was injured when her
grandfather backed over her foot with a riding lawnmower. The complaint against
Simplicity alleged theories of a recovery in both negligence and strict products
liability. The federal trial court granted the motion for summary judgment
filed by the manufacturer because the judge concluded the child was not an
“intended user” of the lawnmower. 413 F. Supp. 2d 431 (2005). The intended use
doctrine is based on Pennsylvania’s interpretation of Section 402A of the
Restatement (Second) of Torts that a product must be made safe for its intended
use.
Pennsylvania adopted Section 402A of the Restatement
(Second) of Torts in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). According
to Pennsylvania’s interpretation of Section 402A, a determination of whether a
product is defective requires a two-step analysis: (i) whether, as a matter of
law, the product was unreasonably dangerous to the intended user or consumer;
and (ii) if so, whether as a matter of fact for the jury, the product was sold
in a defective condition. Azzarello v. Black Bros. Co. Inc., 480 Pa. 547, 391
A.2d 1020, 1026 (Pa. 1978). The “unreasonably dangerous” analysis requires the
court to determine as a matter of policy whether the risk of loss should be
placed on the supplier of the product based upon a risk-utility analysis. If
the court determines that a product is “unreasonably dangerous,” the issue of
whether the product was sold in a defective condition is submitted to the jury.
Pennsylvania decisions interpreting the requirement that a
manufacturer supply a product that is safe for its “intended use” have evolved
into a doctrine that a product must be made safe only for its “intended user.”
The most recent discussion of the intended user doctrine by the Pennsylvania
Supreme Court is a plurality opinion in Phillips v. Cricket Lighters, 576 Pa.
644, 841 A.2d 1000 (2003) which applied the intended user doctrine to deny
recovery in a strict product liability design defect claim. In Phillips a two
year old child used a disposable butane lighter obtained from his mother’s purse
to start a fire which resulted in three deaths. Phillips held that judgment was
properly granted in favor of the manufacturer of the butane lighter because the
child was not an intended user of the lighter.
Of the six Supreme Court Justices who heard the Phillips
appeal, two reasoned that the intended user doctrine barred recovery because the
butane lighter was intended to be used solely by adults. Three Pennsylvania
Supreme Court Justices agreed that “present” Pennsylvania law would find that
the child was not an intended user of the lighter, but suggested they would
adopt prospectively the Restatement (Third) of Torts formulation of product
liability which replaces the “intended user” doctrine with a reasonably
unforeseeable use standard. Under Section 2 of the Restatement (Third) of
Torts, a design defect exists when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a reasonable
alternative design by the supplier and the omission of the alternative design
renders the product not reasonably safe. This definition of “design defect”
removes the “user or consumer” limitations, and permits recovery whenever a
product is put to uses that it is reasonable to expect a seller or distributor
to foresee. Although a plurality opinion, Phillips has been cited for the
proposition that the manufacturer is deemed liable only for injury that occurs
in connection with a product’s intended use by an intended user. Pa. Department
of General Services v. U.S. Mineral Products Co., 587 Pa 236, 898 A.2d 590
(206).
Although the federal trial judge in Berrier questioned the
logic of preventing an innocent bystander from recovering for injuries caused by
a defective product, the court believed that the “intended user” doctrine
remained the law in Pennsylvania and required that he enter summary judgment in
favor of the manufacturer. On appeal to the Third Circuit Court of Appeals, the
three-judge panel chose not to predict how the Pennsylvania Supreme Court would
decide the question and instead certified the question to the Pennsylvania
Supreme Court.
The Third Circuit’s certification of the question offers
the opportunity for the Pennsylvania Supreme Court to clarify whether
Pennsylvania will adopt Section 1 of the Restatement (Third) of Torts which
eliminates the reference to “user or consumer”. The third Restatement
formulation is a blend of strict liability and negligence principles. In the 30
years since the 1978 decision in Azzarello Pennsylvania courts have resisted the
introduction of negligence principles into Pennsylvania’s formulation of strict
product liability. Three justices in the plurality opinion of Phillips stated a
preference to adopt the Third Restatement for future cases. With a different
composition of Justices on the Pennsylvania Supreme Court the certification of
the question by the Third Circuit court of appeals invites the current
Pennsylvania Supreme Court to revisit the question of whether Pennsylvania will
adopt the Third Restatement. If the certification request is accepted the
answer from the Pennsylvania Supreme Court has the potential to reverse 30 years
of Pennsylvania’s adherence to Section 402A and the exclusion of any negligence
principles in the formulation of strict product liability.
