This past November, the Pennsylvania Supreme Court issued its long-awaited decision in Tincher v. Omega Flex. The court overruled Azzarello v. Black Brothers, yet declined to replace it with the mandates of the Restatement (Third) of Torts.

At its core, the court held 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 outweighs the burden or costs of taking precautions.

The plaintiff, in proving its case, can proceed on one or both of the following theories of law: The “consumer expectation” and “risk utility” definitions of defect. The “consumer expectation” standard is that “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.” The “risk/utility” standard is “a test balancing risks and utilities or, stated in economic terms, a cost-benefit analysis.”

Perhaps most importantly, Tincher held that whether a product is in a “defective condition” is to be a question of fact ordinarily submitted to the jury. Therefore, the question is removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue. Thus, unlike under Azzarello, the trial court is relegated to its traditional role of determining issues of law.

What It Means to You

While the ultimate effects of Tincher are uncertain, what is clear is that the case will have a significant impact on the product liability litigation landscape in Pennsylvania. In fact, the majority opinion admits that it is part of an “incremental approach,” and that much lies ahead in “the development of strict liability law in Pennsylvania.”

The prevailing thought on the Tincher decision is that while it did not fully adopt the Restatement Third, as the defendants hoped, it did overrule Azzarello. Thus, while the Tincher decision is not everything the defense bar hoped it would be, some believe it has created a more level playing field in the product liability arena by, at a minimum, allowing in evidence of alternative designs and other reasonableness considerations, formerly prohibited by Azzarello and its progeny