LEGAL UPDATE: Pennsylvania remains a Second Restatement jurisdiction: The impact of the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc.

By: Stephanie Solomon, Esq. and Nichole Humes, Esq.

The Pennsylvania Supreme Court has politely declined an invitation to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq., opting instead to “appreciate certain principles” contained in that Restatement in a new standard of proof which allows a plaintiff pursuing a cause upon a theory of strict liability an “either” approach to sustain its burden. Releasing its much anticipated products liability decision in Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.), the Court concluded that a plaintiff may prove a defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer (via the consumer expectations test), or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions (via the risk utility test). Tincher, No. 17 MAP 2013 at 2. In an attempt to “maintain the integrity and fairness of the strict products liability cause of action,” the Court held that proof must be offered as to either the ordinary consumer expectations test or the risk-utility test. 119.

Why did the Court refuse to adopt the Third Restatement? The Court’s main reason for concluding that the “adoption” of the Third Restatement’s approach is problematic is a product may be deemed in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available. Id.

Does the Court’s decision change the duty owed by a seller? No. The Court noted that its prescribed change is not a change in the duties owed by “sellers,” rather it answers the question “what evidence is relevant to prove a ‘defective condition’ and how should that evidence be weighed.” Id. at 90.

What is the consumer expectations test? The consumer expectations standard defines a “defective condition” as a “condition upon normal use, dangerous beyond the reasonable consumer’s contemplations.” Id. at 94. The danger must be unknowable and unacceptable to the average consumer. Id. at 95. “The nature of the product, the identity of the user, the product’s intended use and intended user, and any express or implied representations by a manufacturer or other seller are among considerations relevant to assessing the reasonable consumer’s expectations.” Id. This test has been described as reflecting the “surprise element of danger.” Id. A product under this test is not defective if an ordinary consumer would reasonably anticipate and appreciate the dangerous condition of the product. Id.

What is the risk-utility test? Noting the practical limitations of the consumer expectations standard, the Court felt it necessary to posit an alternative standard, the risk utility standard (or stated in economic terms, a cost-benefit analysis). Id. at 98. “This test offers a standard which, in typical common law terms, states that: a product is in a defective condition if a “reasonable person” would conclude that the probability and seriousness of harm caused by the product would outweigh the burden or costs of taking precautions.” Id. The focus under the risk-utility test is on the manufacturer’s conduct in manufacturing or designing the product.

  1. The factors noted by the Court, as pronounced by other jurisdictions, are:
  2. The usefulness and desirability of the product—its utility to the user and to the public as a whole;
  3. The safety aspects of the product—the likelihood that it will cause injury, and the probable seriousness of the injury
  4. The availability of a substitute product which would meet the need for the same need and not be as unsafe;
  5. The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility;
  6. The user’s ability to avoid danger by the exercise of care in the use of the product;
  7. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; and
  8. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

Id. at 99.

How are strict liability claims now to be plead? The Court noted that the plaintiff’s strict liability claim must allege sufficient facts to make a prima facie case premised upon either the consumer expectations test or risk-utility test or both. Id. at 130. The calculus will account for the nature of the product, the available evidence, the theoretical limitations associated with each standard of proof, and whether pursuing both theories is likely to confuse the finder of fact. Id.

Can a plaintiff proceed to trial under both theories? According to the Court, yes. A plaintiff may choose to pursue or abandon either theory, or to pursue both, if the evidence so warrants. Id. A defendant may also seek to have dismissed any overreaching by the plaintiff via appropriate motion and objection. Id.

Has the role of the jury (or the finder of fact) changed? Yes. Under the long-standing case law set forth by the Court in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), whether a product was “unreasonably dangerous” was a question for the trial court, based upon social policy considerations. The jury would then simply resolve any dispute as to the “condition of the product,” as a separate question. The Tincher case explicitly overrules Azzarello. Now, when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risk and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product.

How is the jury to be charged? Under the new standards, when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risks and utilities are part of the burden to prove that harm was suffered due to the defective condition of the product. The jury is to be instructed on the credibility of witnesses and testimony offered, the weight of the evidence relevant to the risk-utility calculus, and whether a party has met the burden to provide the elements of the cause of action. Id. at 131-132.

What questions are left unanswered? The Court noted that other courts have also concluded that it was appropriate, when proceeding upon a risk-utility theory, to shift to the defendant the burden of production and persuasion to demonstrate that an injury-producing product is not defective in design. The Court briefly touched upon the concerns with each party bearing this burden, stating that “the ultimate answer to the question best awaits balancing in an appropriate case.” Id. at 135. That being said, the Court noted that “Pennsylvania does not presume a product to be defective until proven otherwise” and currently assigns the burden of proof in a strict liability case to the plaintiff. Id. at 135. The Court continued stating that “proving a negative is generally not desirable as a jurisprudential matter because of fairness concerns related to anticipating and rebutting allegations and because of the encumbrances placed upon the judicial system by an open-ended approach to pleading and trying a case.” Id.

The Court went on to note that the decision to explicitly overrule Azzarello may have impact upon other foundational issues regarding manufacturing or warning claims, and upon subsidiary issues constructed from Azzarello, “such as the availability of negligence-derived defenses, bystander compensation, [and] the proper application of the intended use doctrine.” Id.


  1. Azzarello is no longer good law.
  2. In order to prove a product is in a “defective condition,” the plaintiff may utilize either the consumer expectations test or the risk-utility test, or both.
  3. Whether the product is in a defective condition is a question of fact to be submitted for determination to the jury unless it is clear that reasonable minds could not differ on the issue.
  4. The Pennsylvania Supreme Court declined to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq