Even though the en banc U.S. Court of Appeals for the Third Circuit recently indicated that the Restatement (Third) of Torts applies to products liability cases in district courts in Pennsylvania, another district judge opined last week that the Restatement (Second) of Torts governs products liability cases.

U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania, writing in a memorandum opinion filed October 31, said 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 that he agreed with a judge in the Eastern District of Pennsylvania and a judge in the Middle District of Pennsylvania that a recent state Supreme Court decision, in which it did not expressly adopt the Third Restatement, is in direct conflict with the second time the Third Circuit predicted that the Supreme Court would make the Third Restatement the law of the land in Pennsylvania.

The Third Circuit, however, rejected the rationale expressed by U.S. District Judge John E. Jones III of the Middle District of Pennsylvania, who said the state Supreme Court’s decision in Beard v. Johnson & Johnson is in direct conflict with the Third Circuit’s decision in Covell v. Bell Sports.

The Third Circuit said in its recent en banc decision, in denying a petition for clarification in Sikkelee v. Precision Airmotive, that federal trial courts in Pennsylvania should apply the Third Restatement. That was one of the cases cited by Schwab.

When circuit courts predict how state supreme courts will rule, the district courts in the circuit are to apply the circuit court’s holding “‘unless the state supreme court issues a contrary decision,’” Schwab said, citing Lynn ex rel Lynn v. Yamaha Golf-Car. Another district judge, Judge Mark R. Hornak of the Western District of Pennsylvania, applied the Third Restatement in Lynn.

The question is if Beard is a contrary decision to Covell, and Schwab said he thought it was.

He noted Jones’ opinion, which said: “‘The Pennsylvania Supreme Court, by again declining to take advantage of the opportunity to adopt the Restatement Third, has indicated that the Restatement Second remains the law in Pennsylvania. Indeed, Justice [Max] Baer, in a concurring opinion, expressly observed the same, stating that “the current law of Pennsylvania … is Section 402A of the Restatement Second.”‘”

Within the Western District, Schwab’s decision recounted that Judge Nora Barry Fischer in Gross v. Stryker has said the Second Restatement applies to strict liability claims, while Hornak, Judge Donetta W. Ambrose in Zollars v. Troy-Built and Judge Maurice B. Cohill Jr. in Spowal v. ITW Food Equipment Group have applied the Third Restatement.

Section 402A of the Restatement (Second) of Torts, as articulated in Azzarello v. Black Brothers, has governed Pennsylvania products liability law for a generation.

The Third Restatement would integrate some negligence and foreseeability concepts into products law.

In the underlying case, Michael Konold was at the Mack Park Pool in Indiana County, Pa., on July 4, 2010, when he hit a bar located above steps leading to a water slide and he fell backward onto the landing, Schwab said. The pool was leased by the YMCA, and the YMCA as well as J.S. Mack were responsible for operating the premises.

Aquatic Facility Design designed the swimming pool and water slide, while Small Water Slides made the water slide.

Schwab dismissed a strict liability claim against Aquatic because under the Second Restatement, it is not a seller.

“In this case, Aquatic entered into a design services agreement with J.S. Mack to design the pool and water slide,” Schwab said. “Even assuming that Aquatic was somehow responsible for the sale of the water slide as a one-time intermediary, it cannot be held strictly liable.”

Schwab dismissed a claim for negligence against Aquatic because the plaintiffs did not file a certification that the architects and/or engineers of Aquatic deviated from an acceptable professional standard.

Schwab also dismissed breach of express warranty and breach of implied warranty claims against Aquatic.

Schwab ruled against dismissing the federal lawsuit because a parallel case is pending in the Indiana County Court of Common Pleas.

Peter D. Friday of Friday & Cox in Pittsburgh is the attorney for Konold. He did not respond to a request for comment.

Stuart H. Sostmann of Marshall, Dennehey, Warner, Coleman & Goggin in Pittsburgh is the attorney for Aquatic Facility Design. He declined to comment.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the 14-page opinion in Konold v. Superior International Industries, PICS No. 12-4539, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •