January 06, 2016

Negligence Concepts in Strict Liability: No Longer a Small-Town Girl, Since We’re Living in a Post-Tincher World

In pursuing products liability cases, plaintiffs’ attorneys have long asserted that pursuant to Pennsylvania case law, negligence concepts have no place in strict liability cases as a means of thwarting a defense predicated on a plaintiff’s contributory negligence. However, in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), the Pennsylvania Supreme Court rejected this assertion and overruled prior Pennsylvania case law that had elevated the “notion that negligence concepts create confusion in strict liability cases to a doctrinal imperative.” Id at 381. The importance of the opinion in Tincher, which is nearly 100 pages long, is best understood in the context of the recent Pennsylvania Superior Court decision, Amato v. Bell & Gossett, 116 A.3d 607 (Pa. Super. 2015), tasked with interpreting the meaning of its holding.

In Amato, supra, the Superior Court reiterated that Tincher concluded that “the question of whether a product is unreasonably dangerous is one for the fact finder.” Amato, 116 A.3d at 619 (citing Tincher). The Amato court characterized the holding in Tincher as specifically rejecting the blanket principle that negligence concepts have no place in strict liability cases. Amato, 116 A.3d at 620 (citing Tincher). “[W]hether a product is defective depends upon whether that product is ‘unreasonably dangerous’ and to entirely separate the inquiry into the former from the inquiry into the latter ‘is incompatible with basic principles of strict liability’.” Under Tincher, the question of whether a product is “unreasonably dangerous” is left to the finder of fact, “as that determination is part and parcel of whether the product is, in fact, defective.” Amato, 116 A.3d at 620.

Under Tincher, consideration of whether a product is unreasonably dangerous necessarily involves consideration of a plaintiff’s own potentially negligent conduct in contributing to an accident involving the product; the issue of whether an ordinary consumer would perceive the risk of injury, or a reasonable person would conclude that the risks outweigh the benefits, and cannot be separated from an inquiry as to whether the plaintiff’s conduct in a particular case would not be considered that of an “ordinary consumer” or a “reasonable person.”

1Phillips v. Cricket Lighters, 576 Pa. 644, 655, 841 A.2d 1000, 1006 (2003).