Products Liability Defendants Must Plead Highly Reckless Conduct as an Affirmative Defense

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On November 26, 2012, the Supreme Court of Pennsylvania handed down a decision in Reott v. Asia Trend, Inc., et al., Nos 27-30 WAP 2011, slip op. (Pa. Nov. 26, 2012), that changes the way defendants in product liability actions must plead and prove an affirmative defense of highly reckless conduct as the sole or superseding cause of plaintiff's injury.

The Reott case involved a manufacturing defect in the locking strap of a tree stand used for hunting. Mr. Reott owned two identical tree stands manufactured and/or sold by the defendants, both with locking straps designed to secure the stand to the tree. Evidence at trial demonstrated that the locking strap for the first tree stand was both glued and stitched together, while the locking strap on the second stand was only glued. Mr. Reott used the first tree stand numerous times without incident. However, when he installed the second tree stand using what was described as a "self-taught maneuver" to set the stand securely and take any slack out of the locking strap, the locking strap that had no stitching broke, and Mr. Reott fell to the ground sustaining significant injury.

Mr. Reott sued the defendants under Section 402A of the Restatement (Second) of Torts alleging strict liability for manufacturing defect. The defendants answered the Complaint, raising product misuse as an affirmative defense, and averring assumption of the risk and superseding or intervening cause in their answers. Although two of the defendants alleged in their answer that plaintiff's conduct was highly reckless, none specifically pleaded highly reckless conduct as an affirmative defense. At trial, the judge entered a directed verdict against defendants that the tree stand locking strap was defective but denied a motion for directed verdict regarding causation. Defendants presented evidence at trial that plaintiff's self-taught maneuver to set the stand constituted highly reckless conduct that defeated causation. The jury found in favor of defendants, however, the Pennsylvania Superior Court reversed, on the grounds that highly reckless conduct is an affirmative defense that must be pled as such in the Answer, and for which the defendant bears the burden of proof at trial.

The Pennsylvania Supreme Court affirmed the decision of the Superior Court with a majority opinion authored by Justice Baer and joined by Chief Justice Castille and Justices Saylor, Eakin and McCaffery. The Majority held that "a defendant in a Section 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted." Reott at p. 22. In so holding, the Court specifically placed the burden on the defendant in such cases to prove that the plaintiff knew or should have known of the high degree of risk associated with his actions. The Majority Opinion also noted that placing the burden of proof on the defendant to demonstrate that highly reckless conduct was the sole or intervening cause of plaintiff's injury, "prevent[s] the impermissible blending of negligence and strict liability concepts" whenever highly reckless conduct is raised as a defense. Reott at p. 23.

A concurring opinion was filed by Justice Saylor, expressly declining to extend the Reott holding beyond the context of a manufacturing-defect case under 402A. Justice Todd dissented on the grounds that where highly reckless conduct is asserted to be the sole cause of a plaintiff's injury, that assertion cannot be an affirmative defense because the conduct-based evidence rebuts the element of causation, rather than providing a grounds for the avoidance of liability.

Impact on Product Liability Defendants

The Reott opinion provides defendant-manufacturers with a crucial pleading guideline in manufacturing defect cases: Defendants in 402A actions in Pennsylvania will not be permitted to raise highly reckless conduct to disprove causation without first raising the affirmative defense that highly reckless conduct was the sole or superseding cause of injury. Defendants in pending product liability actions should consider revisiting their pleadings to ascertain whether amended pleadings should be filed promptly to include the affirmative defense of highly reckless conduct.