Product manufacturers and sellers faced with strict products liability claims often look to industry and government safety standards in formulating their defense. While most states permit this type of evidence, the Pennsylvania Supreme Court in Sullivan v. Werner Co., 306 A.3d 846 (Pa. 2023), has again reaffirmed Pennsylvania's stance that its Courts will not follow this trend. Thus, evidence of this nature will not be allowed to be introduced in strict products liability cases in the Commonwealth. In what many consider an outdated viewpoint, the Pennsylvania high court ruled that the introduction of this evidence would only confuse the issue for jurors. Practitioners defending products liability cases in Pennsylvania should apprise themselves of the details of this decision and plan their case strategies accordingly.
Products Liability Cases in Pennsylvania
Pennsylvania follows Section 402A of the Second Restatement of Torts in its analysis of strict products liability cases. Webb v. Sern, 220 A.2d 853, 854 (Pa. 1966). Section 402A provides that "one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property subject to liability for physical harm thereby caused the ultimate user or consumer, or to his property, if:
- The seller is engaged in the business of selling such a product, and
- It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
This general rule applies in Pennsylvania even if:
- The seller has exercised all possible care in the preparation and sale of his product, and
- The user or consumer has not bought the product from or entered any contractual relationship with the seller. Restatement (Second) of Torts §402A
The application of the law for many decades relied on Azzarello v. Black Brothers Co, Inc. 391 A.2d 1020 (Pa. 1978), which held that negligence standards such as "defective condition" and "unreasonably dangerous" were not appropriate guideposts in a strict products liability case and thus only served to confuse the jurors.
More recently, however, the court in Tincher v. Omega Flex, Inc., 104 A.3d 328 (2014), overruled Azzarello's narrow interpretation of Section 402A which "prevented the jury from considering negligence-related rhetoric and concepts." Tincher found that a seller has a duty to provide a product that is "free from a defective condition unreasonably dangerous to the consumer or the consumer's property." Id. at 383.
Tincher shook up decades of precedent with its finding that a plaintiff must prove that a seller (manufacturer or distributor) placed a product on the market in a defective condition. Id. at 384. It identified two tests as possible bases for a court's analysis: the risk-utility test and the consumer expectations test. The court explained, "The cause of action in a strict products liability case requires proof, in the alternative, of either of the ordinary consumer's expectations or the risk-utility of a product." Id. at 401. Under consumer expectations test, "the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer." Id. at 387. Under the risk-utility test, "a product is in a defective condition if a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions." Id. at 389. A plaintiff may proceed under either theory, or both theories in the alternative. Id. at 408.
Despite this groundbreaking decision, the Court in Sullivan was not persuaded that the tenets of Tincher spoke to the main question, which is whether evidence of industry and government standards should be admitted into evidence.
Factual History
Michael Sullivan sustained serious injuries at a jobsite when the platform of a six-foot mobile scaffold gave way beneath him, sending him falling to the ground. The platform was fastened to the scaffold frame by two spring-loaded deck pins that the user rotated to cover the platform after it was seated in the scaffold. Sullivan brought an action for strict liability against Appellants Werner Company and Lowe's Companies, Inc. He claimed that a defective design of the mobile scaffold system, which allowed users to inadvertently rotate the deck pins off the platform during normal use, caused his injuries. Sullivan filed a motion in limine to prevent Appellants from admitting into evidence any industry or government standards, asserting that such evidence was not permitted under Pennsylvania law.
Issue Before the Court
Was it an error of law, under the products liability principles this Court established in Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), to prevent the jury from considering the product's compliance with pertinent industry and governmental safety standards in strict liability cases?
Court's Conclusion & Analysis
The Supreme Court concluded that evidence of compliance with industry standards is inadmissible under the risk-utility test in strict products liability cases. In making that determination, it looked closely at Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987), which excluded evidence of industry standards and government regulations in strict liability cases. The Supreme Court emphasized that Tincher did not overrule Lewis or its reasoning and reiterated that "evidence of compliance with government or industry standards is not evidence of the underlying attributes of the product."
The Lewis Court determined that evidence relating to industry standards was important because it demonstrates to "the reasonableness of the defendant's conduct in making its design choice, and that such evidence would have improperly brought into the case concepts of negligence law." Lewis at 594. The court should avoid introducing negligence concepts into strict liability cases because the Restatement Second of Torts clearly provides that strict liability for a defective product should not be impacted by the possibility that a manufacturer or supplier exercised due care according to a negligence standard. Lewis explained it as follows, "Industry standards evidence would have created a strong likelihood of diverting the jury's attention from the defendant's product to the reasonableness of the defendant's conduct in choosing its design." Id. at 594. In sum, the court found that this type of evidence is likely to confuse or mislead the jury. Although Tincher overruled Azzarello, the Supreme Court held that Tincher did not overrule Lewis or criticize its reasoning.
The Supreme Court in Sullivan thus reaffirmed Lewis and held that evidence of a product's compliance with governmental regulations or industry standards is inadmissible in design defect cases to argue that a product is not defective under the risk-utility theory. The focus of a design defect case must be limited to the characteristics of the product, and not the conduct of the manufacturer or seller. Evidence of compliance with government standards does not serve to prove any characteristic of the product, rather it diverts attention from the product's attributes to both the manufacturer's conduct and whether a standards-issuing organization would consider the product to be free from defects. Neither of these considerations are pertinent to the risk-utility analysis. Further, to maintain the distinction between strict liability and negligence, the Court found that it could not permit negligence concepts such as fault and due care to be analyzed in a case for strict liability.
Appellants argued that the Court should employ the Third Restatement of Torts approach to compliance evidence which states that "a product's compliance with an applicable product safety statute or administrative regulation is properly considered in determining whether the product is defective with respect to the risks sought to be reduced by the statute or regulation, but such compliance does not preclude as a matter of law a finding of product defect." Restatement (Third) of Torts; Products Liability §4. The Tincher decision did not adopt the Third Restatement, and the Court in Sullivan also chose not to do so. The Court explained, "unlike the Third Restatement, we believe that the Second Restatement already adopted, and properly calibrated, permits the plaintiffs to tailor their factual allegations and legal argumentation to the circumstances as they present themselves in the real world crucible of litigation, rather than relying upon an evidence-bound standard of proof."
Conclusion
This decision by the Supreme Court of Pennsylvania demonstrates that strict liability analyses remain distinct from negligence in that it imposes liability without fault. Strict liability reflects the "social and economic policy of this Commonwealth" that "those who sell a product are held responsible for damage caused to a consumer by the reasonable use of the product." The focus in a design defect case must remain on the product and not on the manufacturer's conduct. Thus, the Court concluded that Lewis remained the law in Pennsylvania and evidence of a product's adherence to governmental or industry standards is not admissible in design defect cases.
Key Takeaways
- This decision continues to place stringent limitations upon defendants' ability to utilize industry and government standards evidence as a defense in defective design products liability actions.
- Defendants may still introduce industry or government standards evidence in negligence claims, or if the plaintiff opens the door by introducing it during their case in chief.
- The risk-utility test remains entirely focused on a product's characteristics and not the manufacturer's conduct.