To develop a Pennsylvania products liability case, practitioners must already prepare the case under two different analyses: that of the Restatement (Second) of Torts and the Restatement (Third) of Torts. No one knows how the Pennsylvania Supreme Court will rule in the pending Tincher v. Omega Flex, 64 A.3d 626 (2013), where the court will decide which restatement on strict liability will apply.
A recent decision in the U.S. District Court for the Middle District of Pennsylvania, Vaskas v. Kenworth Truck, 3:10-CV-1024 (M.D. Pa. March 18, 2013), highlights another danger in the application of the Restatement (Third) of Torts: elimination of the negligent design and warnings claim. The effect of the Third Restatement is to combine the negligence and products liability design/warnings claims into a single claim based on the risk-utility analysis of the Third Restatement’s Sections 2(b) and 2(c). To prevail in a design claim, plaintiffs counsel must focus on each element of Section 2(b)’s risk-utility analysis.
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