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)
