ANALYSIS

Is the battle over which Restatement of Torts governs products liability in Pennsylvania finally settled?

In light of the state Supreme Court’s recent ruling in Reott v. Asia Trend, some attorneys across the state told the Law Weekly they believe it should be, but several others said the decision did nothing to advance the argument either way.

The six justices who decided Reott voted 5-1 that “highly reckless” conduct is an affirmative defense in products liability cases, requiring defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.

The majority opinion, penned by Justice Max Baer, relied on Section 402A ofthe Restatement (Second) of Torts, which pertains to strict liability in products cases.

Alan M. Feldman of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in Philadelphia, for example, said he believes the Reott decision clearly constituted an adoption of the Second Restatement of Torts by the Supreme Court.

“I think this disposes of any lingering issue about what the law in Pennsylvania is in products liability cases,” Feldman said.

Feldman was one of several attorneys who were critical of the high court’s ruling in Beard v. Johnson & Johnson in March, in which the justices held that courts must consider a product’s multiple uses when assessing that product’s risk.

Feldman told the Law Weekly at the time that he thought the Beard decision only served to further confuse products liability law in Pennsylvania.
In his majority opinion in Beard, Justice Thomas G. Saylor, joined by Chief Justice Ronald D. Castille along with Justices J. Michael Eakin and Joan Orie Melvin, wrote in a footnote, “It may be cogently argued that risk-utility balancing is more legitimately assigned to a jury,” referring to the approach endorsed by the Restatement (Third) of Torts.

But Baer filed a concurring opinion in Beard, which Justices Debra Todd and Seamus P. McCaffery joined, in an attempt to “distance” himself from what he viewed as Saylor’s rejection of Section 402A, under which risk-utility analyses are performed by judges.

Feldman told the Law Weekly in April that although the majority in Beard refused to expressly adopt the Third Restatement, there remained an “incredible dichotomy” between federal and state courts on the issue.

That incongruity between courts has continued in the months since Beard came down, with several district courts interpreting the Supreme Court’s ruling in Beard as a rejection of the Third Restatement, while the Third Circuit remains steadfast in its belief that the Third Restatement is the applicable law in Pennsylvania.

U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania wrote in a memorandum opinion filed October 31 that the substantive law governing a products liability claim against a company that designed a swimming pool and water slide is the Second Restatement.

While “there is a sharp split in this district on whether the Restatement (Second) of Torts or the Restatement (Third) of Torts applies in strict product liability actions,” Schwab said he agreed with a judge in the Eastern District of Pennsylvania and a judge in the Middle District of Pennsylvania that the Supreme Court’s decision in Beard is in direct conflict with the Third Circuit’s prediction in Covell v. Bell Sports that the state Supreme Court would make the Third Restatement the law of the land in Pennsylvania.

But the Third Circuit said in a recent en banc decision denying a petition for clarification, Sikkelee v. Precision Airmotive, that federal trial courts in Pennsylvania should apply the Third Restatement.

Feldman, however, told the Law Weekly on Tuesday that the Reott decision should put this debate to rest once and for all because it relies squarely on the tenets of the Restatement Second.

“I don’t see how you could read this opinion and not conclude that 402A is the law of Pennsylvania,” Feldman said, adding that, in light of the Reott decision, he would be “very upset” if he were a plaintiff in federal court and the judge continued to rely on the Third Restatement.

“I think the Third Circuit has to consider this decision as essentially being dispositive on which law Pennsylvania applies in products liability cases,” Feldman said.

But not everyone shares Feldman’s point of view.

For one, plaintiffs counsel in Reott, David A. Neely of Lawrence D. Brudy & Associates in Wexford, Pa., said he did not believe the issue of which Restatement applies in Pennsylvania could have even come into play in the case, because it involved a manufacturing defect and the Third Restatement appears to center more on design defect cases.

Similarly, James M. Beck, a defense attorney who is counsel at Reed Smith and who has written more than 50 amicus curiae briefs on behalf of the Products Liability Advisory Committee, called the notion that Reott made a definitive statement about which Restatement is the law of the land in Pennsylvania “silly.”

Beck said Reott was a manufacturing defect case and noted that both the Second Restatement and Third Restatement agree that strict liability applies in manufacturing defect cases.

The only way the Supreme Court can effectively settle the Restatement issue is to address it directly in either a design defect or failure-to-warn case and expressly reject one in favor of the other, Beck said.

Beck said the same flaw plagues the argument that the Beard decision constituted an explicit rejection of the Third Restatement.

While some district court judges have signed onto the notion that the Supreme Court resolved the Restatement dispute with the Beard decision, the Third Circuit “shot them down” because the dispute was never squarely before the justices in the first place, Beck said.

“I don’t think [Reott] is going to do anything to change the Third Circuit’s mind because, once again, the argument was not even discussed,” Beck said.

Indeed, Baer made no mention of the Third Restatement in the majority opinion and, as Beck pointed out, Saylor used his one-paragraph concurring opinion to caution against the “uncritical extension” of the majority’s holding beyond manufacturing defect cases.

But Feldman told the Law Weekly that he believed the nature of the defect in Reott was irrelevant to the decision’s bearing on the Restatement argument and found it telling that no other justice joined Saylor’s concurrence.

Feldman said he believed the plaintiff’s conduct was the true of crux of Reott and that the high court’s decision reflected its belief that contributory negligence has no place in products liability cases, a philosophy that is in keeping with Section 402A.

In Reott, Baer said the state Superior Court has consistently found highly reckless conduct to be “akin” to product misuse and similar to assumption of risk in that all three require a defendant to prove that a plaintiff had a conscious understanding of the risks involved in either using a product or using a product in an unanticipated and dangerous way.

“Given the inherent parallels between these concepts, we further note that while many of our sister supreme courts do not speak of highly reckless conduct in products liability cases, they do discuss product misuse as an affirmative defense and in a manner analogous to highly reckless conduct,” Baer said.

The Supreme Court of Arizona’s 1995 ruling in Jiminez v. Sears, Roebuck & Co., for example, broadly defines “misuse” as conduct that is “‘so rare and unusual’” that, if proven by the defense, precludes a plaintiff’s recovery in strict liability, Baer said.

“However, under Pennsylvania’s scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff’s assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury,” Baer said. “Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate a Section 402A action by demonstrating a plaintiff’s comparative or contributory negligence.”

According to Baer, the Jiminez ruling provides guidance on this issue, holding that proof of a plaintiff’s misuse precludes recovery because it shows that the “‘defendant’s fault in distributing a defective product did not cause the plaintiff’s injuries.’”

In order to avoid “the impermissible blending of negligence and strict liability concepts,” the burden of proof is on the defense to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of an injury, Baer said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI. •