Fuse

A decision saying it was a jury question—and not a matter of law—whether caustic wet cement was unreasonably dangerous has been allowed to stand as the Pennsylvania Supreme Court declined to review the products liability case.

The justices’ denial of allocatur means they won’t take up the opportunity to 
fine-tune the roles of fact-finder and trial judge under a products liability regime that is still finding its shape in the wake of the game-changing decision Tincher v. Omega Flex.

On Sept. 26, the justices declined to hear the case High v. Pennsy Supply.

The trial court tossed the case on summary judgment, finding that the plaintiffs could not prove the product was dangerous under the consumer expectation test, which is one of two products liability theories plaintiffs can pursue in the wake of Tincher.

Thomas, Thomas & Hafer attorney John Yaninek, who is handling the case for the defendants, said he believes his clients have a strong case before a jury, but he was disappointed with the Supreme Court’s decision.

“We thought we had a case that could bring some clarity to an uncertain legal situation with products liability in Pennsylvania,” he said. “We were hoping we were going to be the product on the end of the spectrum the court talked about in Tincher, where these are known products with dangers that people can recognize, like alcohol, or weapons.”

Schmidt Kramer attorney Daryl Christopher, who is representing the plaintiffs, said he would also like to see more guidance on products liability issues in the wake of Tincher, but he said High was not the case to make those pronunciations, as the issue is a clear question of fact.

“I think the Superior Court got it right,” he said. “We’re going to have a jury trial, and let the jury be the finders of fact.”

The Superior Court’s decision to 
reinstate High had been a win for the plaintiffs in the case, but numerous 
attorneys said the decision may have 
been a victory for the defense bar on 
the issue of whether jurors can be asked whether a product is “unreasonably dangerous.” That language has been hotly-contested in the unsettled products liability landscape 
following the 2014 decision in Tincher.

Tincher recalibrated products liability law in Pennsylvania by doing away with the strict separation of negligence and strict liability principals. The ruling said plaintiffs could pursue claims on either a risk utility or consumer expectation test, and overruled a foundational opinion from the 1970s that had provided guidance on what questions juries should be allowed to consider.

High, according to Superior Court Judge Correale Stevens, who wrote the Superior Court’s decision, stemmed from a 2012 incident in which the plaintiffs, brothers Jeffrey and Charles High, came into contact with wet concrete during a project in Jeffrey High’s basement. Jeffrey High 
had sought to buy flowable fill concrete, which is self-leveling, but, after they learned that regular concrete had been delivered, the brothers leveled the concrete themselves. The two worked for about 90 minutes with the wet concrete, and their clothes became saturated in the process, Stevens said.

During a break, Jeffrey High saw his skin peel off as he washed his hands, and Charles High realized that the skin on his legs was turning black. Stevens said the brothers did not seek immediate medical attention, but attempted to treat their injuries by soaking in a tub with water, vinegar and sea salt—a treatment Jeffrey High had found online. However, those treatments worsened the symptoms, and they eventually were taken by an ambulance to Lehigh Valley Medical Center, where they were found to have second- and third-degree chemical burns. The burns, according to Stevens, required surgeries and allografts.

The brothers individually sued Pennsy Supply, which had sold them the wet concrete.

In ruling on summary judgment, the trial court noted that there is no Pennsylvania precedent considering whether wet concrete is unreasonably dangerous, and looked to six cases from across the country dating as far back as 1951 in which courts have determined that the dangers of wet concrete are common knowledge and not subject to liability.