In 2014, when the Pennsylvania Supreme Court revised the commonwealth’s application of the Restatement of Torts 2d, Section 402 A, to common law products liability defect cases, it left somewhat unsettled a host of issues, including what the court characterized as the application of strict tort liability to “bystander compensation.” See Tincher v. Omega Flex, 104 A. 3d 328, 432 (Pa. 2014). While this issue was not ripe for analysis, the Tincher court mentioned earlier precedent in both state and federal courts that have commented upon the application of strict liability to nonusers injured by a defective product, citing to Berrier v. Simplicity Manufacturing, 563 F. 3d 38 (3rd Cir. 2009) (which cited to state and federal court decisions allowing nonuser strict liability recovery.)

In Berrier—while the court relied upon application of the Third Restatement, which Tincher rejected—the court referenced a number of Pennsylvania appellate courts that have applied Section 402 A to allow nonusers to recover: Salvador v. Atlantic Steel Boiler, 319 A.2d 903 (Pa. 1974); Pegg v. General Motors, 391 A.2d 1074 (Pa. Super. 1978). But see, Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) (rejecting application of strict liability—but permitting a negligence claim—for burn injuries suffered by a child from accidental lighting of a cigarette lighter). It is this somewhat inconsistency in the law which we now review to demonstrate the legal and public policy bases for application of strict liability to anyone “within the product’s zone of danger.”

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