3rd Circuit Predicts PA Supremes Will Adopt Product Liability Sections of Restatement (Third) of Torts

Wesley R. Payne, IV, Esq.

Since the late 1960's when Pennsylvania Supreme Court adopted the Restatement (Second) of Torts, § 402(a) in the matter of Webb v. Zern, 220 A.2d 853 (Pa. 1966) and subsequently further refined the law in Azzarello v. Black Brothers Company, Inc., 391 A.2d 1020 (Pa. 1978), generations of Pennsylvania product liability practitioners have accepted two basic limitations in product cases: (1) that the class of potential plaintiffs was limited to "intended users" of a product, and (2) that the negligence concepts were inappropriate in a product liability analysis. However, recently in Berrier v. Simplicity Manufacturing, Inc., F.3d, 2009 WL 1054684, C.A. 3 (Pa.), April 21, 2009, Justice McKee writing on behalf of the Third Circuit Court of Appeals, in a 73 page opinion, predicted that the Pennsylvania Supreme Court will abandon its longstanding adherence to § 402 (A) and adopt the negligence based concept for product liability claims articulated in the Statement (Third)of Torts.

In Berrier, a child was injured when her grandfather backed over her foot while using a riding mower that lacked a back-over protection device. Plaintiffs brought suit against the manufacturer, Simplicity Corp., and alleged both negligence and product liability claims. The Trial Court upon review of the evidence granted Simplicity Corp. summary judgment on all claims. See, Berrier v. Simplicity Corp., 413 F.Supp. 2d 431 (E.D. Pa. 2005). With respect to the product liability claims, the Trial Court primarily relied upon Phillip v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), and held that plaintiffs could not recover in strict liability under Pennsylvania law because the minor plaintiff was not an intended user of the lawnmower. However, upon review, the Third Circuit did not believe that the Phillip's case was controlling because bystander liability was not the issue in the Phillip case.

In its analysis of Phillip, the Third Circuit acknowledged the Pennsylvania Supreme Courts statements that it remains steadfast in . . . proclamations that negligence concepts should not be imported into strict liability law, and that [it had] muddied the water at times with the careless use of negligence terms in the strict liability arena. Berrier at 33-34. Notwithstanding, the Third Circuit's relying upon Pennsylvania Supreme Court Justice Sailor's concurring opinion in Phillip in which Justice Sailor stated that Pennsylvania law demonstrates a compelling need for reasoned alternatives, such as are reflected in the position of the Third Restatement, Berrier at 36, predicted that the Pennsylvania Supreme Court will adopt the Restatement (Third) of Torts §§1 and §§ 2.

The Restatement (Third) of Torts §§1 read as follows:

§§ 1-liability of commercial seller or distributor for harm caused by defective products

One engaged in the business of selling or otherwise distributing products themselves or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

Restatement (Third) of Torts; product liability §§ 1. As a result, the Third Circuit overturned the Trial Court's decision and remanded the case for trial.

Additionally, The Restatement (Third) of Torts §§2 read as follows:

§ 2- CATEGORIES OF PRODUCT DEFECT

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:

1. containing a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;
2. is defective in design when the foreseeable risk of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor or a possessor in the commercial chain of distribution, and the omission of the alternative design rendered the product not reasonably safe;
3. is defective because of inadequate instructions or warnings when the foreseeable risk of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributors, or a predecessor in the commercial chain of distribution, and the omission of the instruction or warnings renders the product not reasonably safe.

The Restatement (Third) is a significant departure from current product liability practice. The Restatement (Third) §§1 does not limit the use of strict liability claims to intended users but permits any person or owner of property harmed by an allegedly defective product to recover under a product liability theory. Further, under §§2, manufacturers may be able to produce evidence regarding plaintiff fault (or the fault of others) and the manufacturers compliance with regulations as defenses at the time of trial. Therefore, there may be more potential plaintiffs but there may also be additional defenses available to defend the claims.

We must wait and see if the Pennsylvania Supreme Court actually adopts the Restatement (Third), but practitioners may not have to wait too long. The Supreme Court has accepted the appeal in Bogosh v. I.U. North American, Inc., 596 Pa. 265, 942 A.2d 897 (2008). Bogosh addresses the issue of whether the strict liability doctrine applies in design defect cases and may be the perfect vehicle for the Court to also address the issue as to whether Pennsylvania will join the growing number of states that have adopted the Restatement of Torts Third.