Pennsylvania law of strict liability has recently been judicially described as being in a "state of flux" in Sikkelee v. Precision Airmotive, 2012 U.S. Dist. LEXIS 91497, 26 (M.D.Pa. 2012). Other courts have been less gracious, using phrases such as a "maze of uncertainty," in Sansom v. Crown Equipment, 2012 U.S. Dist. LEXIS 102734, 11 (W.D. Pa. 2012), "foundational problems," in Schmidt v. Boardman, 608 Pa. 327, 353, 11 A.3d 924, 940-41 (Pa. 2011), and "almost unfathomable" and "continuing state of disrepair" in Beard v. Johnson & Johnson, 41 A.3d 823, 836 (Pa. 2012).
Pennsylvania courts have long adhered to the Restatement (Second) of Torts §402A for the doctrine of strict liability in tort. However, with the recent promulgation of the Restatement (Third) of Torts, Sections I and II, there has been a growing tension between the state and federal courts in Pennsylvania. Before analyzing the current case law and the effects thereof, it will be helpful to review the significant language of the respective Restatements.
Section 402A defines strict products liability in tort as:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm ... if (a) a seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."
By way of contrast however, in pertinent part, Section II of the Restatement (Third) reads as follows:
A product "is defective in design when the foreseeable risks 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 predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe."
The U.S. Court of Appeals for the Third Circuit in two recent opinions has addressed the issue of whether it should apply the Restatement (Second) or (Third) when sitting in diversity jurisdiction in Pennsylvania, which is a challenge because the Pennsylvania Supreme Court has yet to affirmatively state that it has adopted the Restatement (Third). This debate began with Berrier v. Simplicity Mfg., 563 F.3d 38 (3d. Cir. 2009). In Berrier, the Third Circuit forecast the route of the future of Pennsylvania strict products liability law by predicting that the Pennsylvania Supreme Court, if presented with the opportunity, would abandon Pennsylvania precedent of following the Restatement (Second) in favor of the Restatement (Third).
Berrier was issued while the Pennsylvania Supreme Court was presented with just that opportunity in Bugosh v. IU North America, 942 A.2d 897 (Pa. 2008). However, the court dismissed the appeal as improvidently granted and avoided adopting the Restatement (Third). Shortly after Berrier, federal trial courts within the Third Circuit began to split on which Restatement to follow.
The Pennsylvania Supreme Court had another opportunity to address the issue in Schmidt. In that case, Justice Thomas G. Saylor noted the need to resolve the uncertainty in the law, yet declined to rule directly on the issue, stating "this case was not selected to address the foundational concerns, and, accordingly, the pathways to global resolution are not developed in significant detail in the briefing," which now leaves the "present status quo in Pennsylvania to entail the continued application of Section 402A of the Restatement (Second)." This opinion would appear to indicate that, as of 2011, Pennsylvania courts should continue to follow the Restatement (Second).
Subsequent to Schmidt, however, the Third Circuit held in Covell v. Bell Sports, 651 F.3d 357 (3d Cir. 2011), that a defendant in a products liability case may rely on evidence that a product satisfied the standards of the U.S. Consumer Product Safety Commission. In this opinion, the Third Circuit, following Berrier, applied the Restatement (Third) and again predicted that if presented with the opportunity, the Pennsylvania Supreme Court would adopt the Restatement (Third).