When Pennsylvania judicially adopted strict liability in tort for the manufacture, sale or lease of a defective product, it embraced Section 402A of the Restatement of Torts 2d. Fifty years later, in Tincher v. Omega Flex, 628 Pa. 296, the Pennsylvania Supreme Court reinvested our common law in the principles articulated in Section 402A. Civil litigators are acutely aware that the predicate upon which a manufacturer, seller or supplier may be found liable for the harm caused by a defective product is proof that the product failed to meet the ordinary consumer expectations test or failed to comport with the risk-utility/benefit test. And despite the clarity with which Tincher explained these two tests, Tincher has left in its wake questions about a host of other legal issues, including whether a plaintiff’s alleged misconduct provides a new defense to a strict liability claim? The court in Tincher obliquely commented that the decision to overrule Azzarello “may have an impact upon other foundational issues … such as the availability of negligence-derived defenses … but these considerations and effects are outside the scope of the facts of this dispute … “ It is this question that we address here.

At this juncture, neither the common law nor any statutory conscript allows evidence of a product user’s contributory negligence or comparative fault as a defense to a strict liability claim, see Tincher, supra., 628 Pa. at 364-365; and Dyvex Industries v. Agilex Flavors and Fragrances, 2018 WL 4469639 (M.D. Pa.). Even when a plaintiff seeks recovery upon evidence that the product was defective because it breached the risk-utility test, the “risk of harm still rests with the manufacturer or seller of the product and the focus remains on the product” Rapchak v. Haldex Brake Products, 2016 WL 3752908 (W.D. Pa.). While this test invites inquiry into the manufacturer’s actions before the product was sold, the post-marketing conduct of a particular user is irrelevant to determine defect. And, the consideration (one of the elements of the risk-utility test) of whether the careful use of the product would have avoided the risk is an objective one—used to analyze the products design—rather than a review of the plaintiff’s particular use. Here is a brief synopsis of how courts have recently—in the post-Tincher era—responded to defense efforts to import evidence of a plaintiff’s careless use of the product into products liability cases.

‘Dyvex Industries v. Agilex Flavors & Fragrances’