Pennsylvania Supreme Court to Decide Whether to Adopt the Third Restatement of Torts


The Pennsylvania Supreme Court recently agreed to hear an appeal in the matter of Tincher v. Omega Flex, Inc., 64 A.3d 626 (2013), in order to decide whether to replace the strict products liability analysis of Section 402A of the Second Restatement of Torts with the analysis of the Third Restatement of Torts. This is a significant development, as Pennsylvania strict liability law has been in a state of flux for several years, and it has widely been speculated that the Pennsylvania Supreme Court has been waiting for an appropriate case to provide guidance on this issue. If the court adopts the Third Restatement, as expected, it will be a big win for manufacturers, as the focus of the liability analysis will shift from the product itself to the responsibilities of the manufacturer. In particular, the Third Restatement permits the fact finder to consider whether the manufacturer acted reasonably in designing the product and whether it could have foreseen the product’s risks. In addition, the Third Restatement requires plaintiffs to establish that an alternative, safer design was viable when the product was manufactured. In contrast, the Second Restatement focuses solely on the characteristics of the product. Under the Second Restatement, the manufacturer’s conduct, however reasonable and appropriate, is not to be considered. The Second Restatement also permits plaintiffs to rely on alternative safer designs that are not feasible or practical.       


The Tincher case is a strict products liability action involving a fire at a home that was allegedly caused when lightning struck near a corrugated stainless steel pipe that transported natural gas to the plaintiffs’ fireplace.  The resulting electric arc burned a hole through the pipe and ignited the natural gas within. The plaintiffs asserted that the piping, manufactured by defendant Omega Flex, Inc., was defective because of its inferior wall thickness, which rendered it incapable of withstanding perforation by an electrical arc produced by lightning. The jury ultimately found that the piping was defective and that the defect existed when it left Omega’s possession, but also determined that Omega was not negligent in designing the piping. On appeal, the Superior Court of Pennsylvania affirmed the jury’s verdict, reasoning that the trial court performed the appropriate risk-utility analysis on the pipe, the jury determined that it left Omega’s control lacking certain features necessary to make it safe for its intended use, and pipe was being used as intended when the perforation and fire occurred. As such, the Superior Court’s inquiry proceeded no further, and it expressly declined to decide whether to adopt the Third Restatement. 


The Pennsylvania Supreme Court subsequently issued an order, granting Omega’s petition for allowance of appeal, to decide the issue of “[w]hether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement.” Although it may take up to one year before the Pennsylvania Supreme Court issues a written opinion in the Tincher matter, manufacturers and their attorneys should keep a close eye on this case. This is because it could change the law in Pennsylvania and provide additional angles of defense that had heretofore been disallowed due to Pennsylvania’s refusal to permit negligence concepts to be introduced in strict liability cases.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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