Pennsylvania courts prohibit the introduction of negligence concepts in the trial of a strict-liability products case. This prohibition prevents any consideration of “reasonableness” from entering the evidence, the arguments of counsel and the court’s charge in such a case. Adherence to this rule has contributed to the state of confusion that now prevails in Pennsylvania products liability law, and the rule should, therefore, be abandoned.
One justice of the Pennsylvania Supreme Court has already called for the rejection of this antiquated precept. In Bugosh v. I.U. North America , Justice Thomas Saylor decried the rule’s role in the non-evolution of Pennsylvania products law:
“[T]he reality is that necessary modernization of the law of Pennsylvania has been suppressed for so long by the no-negligence-in-strict-liability mantra that we are essentially thirty years behind.”
Saylor expressed this view while dissenting from the court’s decision to reject the appeal in Bugosh , a case that provided the court an opportunity to address the confusion currently entrenched in Pennsylvania products law. Instead, the “mantra” remains the law.
The Pennsylvania Supreme Court should, at the earliest opportunity, declare that the “no negligence in strict liability” rule is no longer the law in Pennsylvania. Abandonment of this rule would not eradicate the important distinction between a strict-liability case and a negligence case.
The Outdated Distinction of Azzarello
Pennsylvania’s adoption of Section 402A of the Restatement (Second) of Torts in 1962 was followed in 1978 by the Pennsylvania Supreme Court’s decision in Azzarello v. Black . In Azzarello , the court examined whether a jury instruction directing the jury to consider whether a product was unreasonably dangerous was proper under Pennsylvania law. Although the phrase “unreasonably dangerous” appears in the text of Section 402A, the Azzarello court concluded that use of the phrase in a jury charge on strict liability was erroneous, as the phrase brings with it considerations of negligence.
Since Azzarello , Pennsylvania courts have taken care to disallow evidence or arguments that arguably inject the issue of the reasonableness of the defendant’s actions into a strict-liability case. Pennsylvania law provides that strict liability and negligence are wholly distinct theories of liability and attempts to erect an impervious wall between the two. Rabid adherence to this distinction has resulted in confusing legal standards and unfair evidentiary rulings.
Adherence to the mantra results in a jury instruction on design defect that is unfairly pro-plaintiff. Consider Pennsylvania Standard Jury Instruction 8.02:
“The [specify type of supplier, e.g., manufacturer, distributor, wholesaler, etc.] of a product is a guarantor of its safety. The product must be provided with every element necessary to make it safe for [its intended use], and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant’s control, lacked any element necessary to make it safe for [its intended] use, or contained any condition that made it unsafe for [its intended] use, [and there was an alternative, safer practicable design], then the product was defective and the defendant is liable for all harm caused by the defect.”
Striving to avoid any reference to reasonableness, Pennsylvania law essentially provides jurors with a tautology: An unsafe or defective product is one that lacks any element to make it safe or includes an element that makes it unsafe.
Huh? To a juror, this language sounds like an endorsement of the plaintiff’s case, since if the product had every element to make it safe and did not have any element making it unsafe, the plaintiff, arguably, would never have been injured.
Despite this unfair, tautological instruction, jurors still return defense verdicts in strict-liability cases. One explanation is that the instruction is so sufficiently unhelpful that they simply ignore it. A second is that the jurors innately understand that “safe” does not equate to “incapable of causing harm” and apply their common experience to the issue, as they are elsewhere instructed to do. Either way, the jurors have injected a “reasonableness” factor into their decision.
Adherence to the mantra also results in illogical and unfair evidentiary rulings based on the notion that the proffered evidence would inject negligence principles into the case. A recent example of this tendency is Hicks v. Dana Companies LLC , in which defendants in an asbestos case attempted to introduce evidence of Occupational Safety and Health Administration and Environmental Protection Agency standards for asbestos exposure to demonstrate that the decedent had not been exposed to levels of airborne asbestos that exceeded those standards.
The Superior Court affirmed the trial court’s decision to exclude such evidence, explaining, “One who asserts that their product is not defective because it is in compliance with either industry or governmental standards necessarily implicates their behavior in seeing to it that their product so complies.”
While it is undoubtedly true that evidence of compliance with government or industry standards is relevant to the defendant’s liability in a negligence claim, it does not follow that such evidence is necessarily irrelevant to a strict-liability claim. Compliance with a government standard does not establish a product’s safety — and the jury could be so instructed — but it is undoubtedly a relevant piece of evidence, one factor to be weighed in determining whether a product is “defective.” There is no doubt that evidence that a product generated airborne asbestos levels in excess of OSHA and EPA standards would be admissible to prove product defect.
Pennsylvania courts sometimes justify the exclusion of evidence of compliance with applicable standards on the ground that such evidence improperly focuses the fact-finder’s attention on the defendant’s conduct rather than the product’s attributes. This issue could easily be remedied with a jury instruction, and jurors are frequently asked to understand that evidence may be admitted for one purpose but not another. There is a difference between determining that a manufacturer or distributor acted reasonably and determining that a product is not unreasonably dangerous. Courts, lawyers and parties routinely ask jurors to make those types of distinctions. Instead of admitting the highly relevant evidence and instructing the jury on how it is to be considered, Pennsylvania law precludes its admission.
A ‘Reasonable’ Alternative
The obsession with excluding notions of negligence and reasonableness in strict-liability cases should come to an end. The Supreme Court should do away with this artificial and now-outdated precept. Pennsylvania products liability law might then be updated, as Saylor suggests, rather than clinging to the unreal notion that the evidence relevant to and the principles applicable to strict-liability and negligence cases are mutually exclusive. That notion may have been legitimate back in 1978 when Azzarello was decided, but if it was, it no longer is.
Once the mantra is rejected, Pennsylvania courts must turn their attention to a realistic definition of “product defect.” The Restatement (Third) of Torts incorporates concepts of foreseeability and reasonableness into its definitions of defect. For example, the Restatement (Third) provides that a product “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor … and the omission of the alternative design renders the product not reasonably safe.”
The Restatement (Third) also allows the concepts of foreseeability and reasonableness to enter a warnings case: a product “is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller … and the omission of the instructions or warnings renders the product not reasonably safe.”
In Berrier v. Simplicity Corp. , the 3rd U.S. Circuit Court of Appeals predicted that the Pennsylvania Supreme Court would adopt the Restatement (Third) in design defect cases. The Pennsylvania Supreme Court initially granted allocatur in Bugosh , presumably to address the appellant’s request that the Restatement (Third) be applied to its liability as a supplier.
Then, in a June 16, 2009, per curium opinion, the Pennsylvania Supreme Court decided that allocatur in Bugosh had been “improvidently granted.” The momentum building toward a necessary updating of Pennsylvania products liability law was lost, to Saylor’s regret.
Adoption of the Restatement (Third) would clarify Pennsylvania law regarding product defect and would explicitly reject the Azzarello mantra prohibiting concepts of reasonableness from entering strict-liability actions. It would do so without eliminating the essential distinction between strict-liability and negligence cases. In the former, the focus would still be on the product, and in the latter the focus would still be on the defendant’s conduct.
Employing “reasonableness” concepts, the Restatement (Third) would provide, however, meaningful and realistic guidelines to courts and juries as to what it is that makes a product defective. •
Stephen J. Imbriglia is co-administrative director of the Philadelphia office of Gibbons P.C., where he is a director in the products liability department.
Stephen J. Finley Jr. is an associate in the firm’s products liability department.