Local businesses, as well as businesses all across Pennsylvania are keeping an eye, through their legal counsel, on the increasing split of authority among Pennsylvania courts on the correct standards to be applied by juries in deciding products liability lawsuits alleging personal injuries as a result of the use of defective products. Such confusion does not bode well for either the defendant businesses or injured consumers.
While one Pennsylvania federal court judge has politely noted that this area of the law in Pennsylvania is in a "state of flux," another has more aptly described Pennsylvania products liability law as being "a maze of uncertainty."
Ordinarily, courts attempt to avoid confusing any area of the law by following the doctrine of "stare decisis," Latin for "to stand by decided matters." The doctrine of stare decisis is a legal principle that generally demands that courts obey the rules or principles laid down in previous judicial decisions to thereby create a consistent body of law on a particular issue. With recent decisions in Pennsylvania products liability cases, that doctrine has been turned on its head.
The split of authority among the Pennsylvania courts involves a debate over which standards to apply in determining whether an injured party has met his or her burden of proving that their injuries were the result of a defective product.
Since 1966, Pennsylvania Supreme Court has consistently applied the principles set forth in the legal treatise known as the Restatement (Second) of Torts to determine whether a product should be deemed "defective." That book, which contains generalized restatements, or summaries, of commonly agreed upon principles of law, called for the application of a strict liability test in products liability cases. That is, if a plaintiff could prove an injury that was caused by a defect with the product itself or in the design of the product, the manufacturer, distributor or seller of that product could be held strictly liable to the plaintiff, without regard to fault.
In 1998, the American Law Institute, an organization of legal scholars and practitioners, drafted an updated treatise, titled the Restatement (Third) of Torts, in which it was recommended that there be a movement away from strict liability concepts towards negligence-based principles of law in products liability cases.
Overall, with the recommended movement away from strict liability toward a more negligence-based analysis in the Restatement (Third) of Torts, it would appear that most defendants in products cases would advocate for the adoption and application of the Restatement (Third) standard as imposing a more difficult test upon injured parties seeking a verdict or settlement. In contrast, most plaintiffs would likely favor the strict liability analysis under the Restatement (Second) as a more straightforward path to compensation for their injuries.
To date, the newer Restatement (Third) of Torts analysis has not been adopted by the Pennsylvania Supreme Court. In fact, in a recent 2012 decision in the case titled Beard v. Johnson & Johnson, the Pennsylvania Supreme Court reiterated its continuing preference for the strict liability concepts advocated in the Restatement (Second) of Torts.
Despite this recent pronouncement by the Pennsylvania Supreme Court in favor of the Restatement (Second) analysis, in the Pennsylvania federal court system, the United States Court of Appeals for the Third Circuit has repeatedly predicted in its recent decisions in the cases of Berrier v. Simplicity Manufacturing, Inc. and Covell v. Bell Sports, Inc. that, if faced with the issue again, the Pennsylvania Supreme Court would instead choose to adopt and apply the negligence principles espoused in the Restatement (Third) of Torts.
With these different signals emanating out of the highest state court of Pennsylvania as well as the highest federal court covering Pennsylvania matters, the lower courts in the state and federal system have begun to issue a number of conflicting decisions, some ruling that the strict liability test of the Restatement (Second) should be applied and some holding that the negligence principles of the Restatement (Third) are applicable in Pennsylvania products liability cases.
The end result is a total lack of consistency in not only the law but also the ability of each party to prevail at trial. Rather than having the same chance of prevailing regardless of which Pennsylvania court the case is pending as is the goal of a unified court system, litigants instead face a different burden of proof and, therefore, a different chance of prevailing depending upon in which courtroom the case is pending.
The current situation is not fair to either business defendants or injured plaintiffs as the uncertainty currently reigning in this area of the law prevents each side from properly evaluating their chances for success at trial. This confusion in the law not only precludes effective settlement negotiations but, more importantly, also clouds the discussion on whether a particular product should be deemed to be defective and corrected to prevent further injury to the public at large.
The hope for Pennsylvania businesses is that the Pennsylvania Supreme Court will move to adopt the pro-business Restatement (Third) of Torts and thereby replace the threat of strict liability with negligence-based principles requiring injured parties to prove fault to prevail.
Injured consumers, on the other hand, will continue to advocate for the continuing application of the strict liability concepts.
However, until this issue comes before the Pennsylvania Supreme Court again, it is not likely to be resolved otherwise any time soon.
DANIEL E. CUMMINS is a partner and an insurance defense civil litigator with the Scranton law firm Foley Comerford & Cummins. His state civil litigation blog, Tort Talk, may be viewed at www.TortTalk.com.
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