In 2014, the Pennsylvania Supreme Court issued an opinion in the case of Tincher v. Omega Flex, 628 Pa. 296. Since then, the legal community has been abuzz over the literal changes that decision made to products liability law, as well as claims for changes in other related aspects of our law. One of the most confounding issues that the Tincher court touched upon but (with due respect) without any thoughtful analysis, is the underlying defense notion that a jury needs to be instructed that a product is defective only if it is also “unreasonably dangerous.”

As the Tincher court addressed the historical rationale for strict liability in product cases and grappled with the niceties and distinctions between tort principles of negligence and strict liability, the court embraced two legal tests jurors should be instructed to use in deciding whether a product is defective: the consumer expectation test (CET) and the risk utility test (RUT). Stated simply, the court concluded that in determining if a product is unreasonably dangerous a jury must apply either the CET or the RUT. Therein lies the issue: if a jury is instructed and finds that a product is defective because it did not comport with the CET or the RUT, then what practical or legal purpose is obtained by instructing or permitting argument of counsel inserting the phrase unreasonably dangerous? In other words, because a finding of defect can only be obtained upon proof that the design/manufacture/warning violated the CET or RUT, what possible interest is served by inserting this phrase? Stated otherwise, does the Tincher decision excuse dangerous consumer products so long as the product is not unreasonably dangerous? We think not. And, we suggest that adding this phrase to standard jury instruction or allowing counsel to argue that a defect can only exist if the product is both defective and unreasonably dangerous adds a layer of proof that is both unwarranted and dangerously inconsistent with the CET and the RUT.