After the Pennsylvania Supreme Court issued its decision in Tincher v. Omega Flex, the committee appointed by the court to prepare jury instructions issued “suggested standard products liability instructions” (published by the PBI) in an effort to provide guidance to the bench and bar. These instructions have been questioned by the Pennsylvania Defense Institute (PDI), which in 201, issued countervailing instructions. Because the Supreme Court only rules on the propriety of each jury instruction on a case-by-case basis, our courts and trial advocates are left to their own devices to postulate which of these instructions represent the most accurate account of the law that juries must follow in deciding products liability cases. To assist the legal community in reconciling these instructions, and to help avoid or minimize a cascade of appellate work, this comparative review has been undertaken.

Products Liability Duty of Care Statement:

A seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that public has a right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that consumer of such products is entitled to the maximum of protection at the hands of someone, and proper persons to afford it are those who market the products. Stated affirmatively, a person or entity engaged in the business of selling a product has a duty to make and/or market the product—which is expected to and does reach the user or consumer without substantial change in the condition in which it is sold—free from a defective condition.

Comments: The suggested language is taken directly from Tincher. The proposed instruction retains the descriptor of a product supplier as the “guarantor of its safety” because it is an explicit predicate of our product liability law, as in Salvador v. Atlantic Steel Boiler, 457 Pa. 24, 32 (1974) and the Tincher court’s recognition of the supplier’s special responsibility toward consumers highlights the conceptional importance of this term. This instruction does not include the phrase “unreasonably dangerous” for several reasons: while Tincher mentioned this descriptor, the court did not rule that it is an explicit prerequisite to strict product liability; and, the several cases from California that Tincher relied upon to embrace new definitions of strict products liability (consumer expectation test and risk utility test) do not use this descriptor—and in fact California precedent has rejected this phrase.

General Rule of Strict Liability:

A product is defective and the defendant is liable for all harm caused by the product if you find that: at the time the product left [name of defendant]‘s control, it lacked any element necessary to make it safe for [its intended] use [or use in an unintended but reasonably foreseeable way], or contained any condition that made it unsafe for its intended use [or use in an unintended but reasonably foreseeable way]; and the product reached the user or consumer without substantial change in the condition in which it is sold. Under the law, a [specify type of supplier: distributor/manufacturer/seller/etc.] of a defective product is strictly liable for the injuries caused by such defect, even if the [specify type of supplier: distributor/manufacturer/seller/etc.] has taken all possible care in the design, manufacture, distribution, and sale of the product.

Pennsylvania Defense Institute: General Rule of Strict Liability (16.10) [Name of defendant] is in the business of distributing, manufacturing, selling such a product; t he product in question had a defect that made it unreasonably dangerous; the product’s unreasonably dangerous condition existed at the time the product left the defendant’s control; the product was expected to and did in fact reach the plaintiff, and was thereafter used at the time of the accident exposure, without substantial change in its condition; and, the unreasonably dangerous condition of the product was a substantial factor in causing harm to the plaintiff.

Comments: PBI Standard Instruction: the language is consistent with Tincher because it references each type of vendor who may be liable; briefly explains a distinction between strict liability and negligence; includes the notion that products must be safe which is an understandable descriptor; and, includes the scope of responsibility as “intended use.”

PDI Standard instruction reintroduces to Pennsylvania law the phrase “unreasonably dangerous” as the characterization required to find a product defective; includes a requirement of proximate cause (using the phrase “substantial factor”) before a jury can find a product defective. The phrase “unreasonably dangerous” without a lay definition or without an explanation how that phrase relates to the two definitions a jury must use to find defect (e.g., consumer expectation test or risk utility test) leaves the jury without needed guidance. And, while Restatement of Torts 2d, Sec. 402A includes the phrase “unreasonably dangerous,” this phrase is inconsistent with the definitional standards to find defect, as in Barker v. Lull Engineering, 473 P.2d 443, 450-451 (CA 1978), rejecting the use of this phrase—cited and relied upon in Tincher. Further, including as part of the definition of defect the need to find the defect was a substantial factor in causing the plaintiff’s harm commingles two entirely separate issues. To preserve the clarity of the law, assuming other jury instructions address proximate causation, these two legal principles should not be redundantly addressed.

Strict Liability versus Negligence

A manufacturer can be held liable even if it took all reasonable steps to make the product safe. That is the law provides that if a product is unsafe in its design, then the manufacturer should, as a matter of public policy, be responsible for all resulting harm. Recall that this is a case involving the plaintiffs’ claim of strict liability, not negligence. Under strict liability, the due care of a supplier is not relevant and must not be considered by you. The focus is on the product not the conduct of the manufacturer.

Comments: This instruction addresses the distinction the Tincher court mentioned between traditional claims of negligence and strict product liability. There is no comparable PBI or PDI instruction. 

The Consumer Expectation Test

[Name of plaintiff] claims that he was harmed by a product that was defective under the consumer expectation test. To establish his claim under the consumer expectation test, [name of plaintiff] must prove all of the following: that [name of defendant] designed, manufactured distributed, sold the product; and the product did not perform as safely as an ordinary consumer would have expected it to perform when used in an intended way [or used in an unintended but reasonably foreseeable way]; and the product’s defective condition was a factual cause of [name of plaintiff]‘s harm. In determining whether a product’s condition was defective under this test, you may consider the following factors: the nature of the product; the identity of the user; the product’s intended use; 4. the intended user of the product; and, any express or implied representations by specify type of supplier.

PDI: Consumer Expectation Test: 16.20(2) The plaintiff claims that [he/she] was harmed by a product that was defective in that it was unreasonably dangerous under the consumer expectation test. Under the consumer expectation test, a product is unreasonably dangerous if you find that the product is dangerous to an extent beyond what would be contemplated by the ordinary consumer who purchases the product, taking into account that ordinary consumer’s knowledge of the product and its characteristics. Under the consumer expectations test, a product is unreasonably dangerous only if the plaintiff proves first, that the risk that the plaintiff claims caused harm was unknowable; and, second, that the risk the plaintiff claims caused harm was unacceptable to the average or ordinary consumer. In making this determination, you should consider factors such as the nature of the product and its intended use; the product’s intended user; whether any warnings or instructions that accompanied the product addressed the risk involved; and the level of knowledge in the general community about the product and its risks.

Comments: While the PBI jury instruction correctly included the definition of the CET adopted in Tincher, it added to that definition that to find defect the jury must also find the defect was a factual cause of the harm. Combining principles of defect and proximate cause in one instruction is problematic and unnecessary. Because causation is separately charged, this redundancy should be avoided. The PDI instructions introduce and co-mingle the CET and the risk utility test (RUT). Further, the PDI repeats the phrase “unreasonably dangerous” three times in four sentences. That phrase is factually meaningless and requires proof beyond the CET. See, discussion in Barker, supra. Equally problematic is that the PDI does not relate the CET definition to how the product “performed”. The essential element of the CET is the ordinary consumer’s expectation whether the product “performed” as safely as an ordinary consumer would expect. Equally inapposite to the CET definition is the inclusion of words limiting this test to “purchasers” and adding phrases: “the risk was unknowable”, “the risk of harm was unacceptable,, the use of warnings or instructions and “the level of knowledge in the general community about the product and its risks. ”These phrases introduce to the CET principles of negligence, comparative fault and a standard beyond the ordinary consumer. Finally, the extensive “rationale” provided by the PDI seeking to limit the use of the CET is not consistent with Tincher or the case law the Court cited from several jurisdictions.

The Risk Utility Test 

To establish his claim under the risk-utility test, [name of plaintiff] must prove the following:  that [name of defendant] designed, manufactured, distributed, sold the product;.a reasonable person would conclude that the possibility and seriousness of harm outweighed the burden or cost of making the product safe; and the product’s defective condition was a factual cause of [name of plaintiff]‘s harm. To decide whether the product is defective under this test you may consider the following factors: the seriousness of the potential harm resulting from the use of the product; the likelihood that the harm would occur; the feasibility of an alternative safer design at the time of the manufacture or sale of the product; the cost of an alternative design; and the disadvantages of an alternative design. [Add any other relevant factor(s) presented in evidence.]

PDI: Risk-Utility Test: 16.20(3) The plaintiff claims that [he/she] was harmed by a product that was defective in that it was unreasonably dangerous under the risk/utility test. The risk-utility test requires the plaintiff prove how a reasonable manufacturer should weigh the benefits and risks involved with a particular product, and whether the omission of any feasible alternative design proposed by the plaintiff rendered the product unreasonably dangerous. In determining whether the product was defectively designed under the risk-utility test, and whether its risks outweighed the benefits, or utility, of the product, you may consider the following factors: [not all factors apply to every case; charge only those reasonably raised by the evidence]

Comments: The PBI instruction contains the same infirmity mentioned in connection with the CET: a finding of defect should not include proof of factual causation—which is a separate element of proof. Further, the PBI instruction is deficient in failing to instruct that the RUT uses the “hindsight test.” As Tincher mentioned, the RUT applies a hindsight test, holding manufacturers responsible for the safety of the product by judging the quality of the product; and, the quality of the product is measured by the information available to the manufacturer at the time of design and the information available to the trier of fact at the time of trial. The test is articulated as follows: “whether a reasonable manufacturer would continue to market his product in the same condition as he sold it to the plaintiff with knowledge of the potential dangerous consequences the trial just revealed.”

This proposition is partially articulated in the following suggested instruction: PBI: 16.122 Knowledge of Defect A [specify type of supplier] is presumed to have known at all relevant times the facts that had been revealed about the harmful characteristics or consequences of the product’s design, even if the [specify type of supplier] did not know those facts. If you find that it would not be reasonable for a [specify type of supplier] with such presumed knowledge to have put the product on the market without changing the design, then the product is defective. The PBI “risk-utility” instruction does not include the shifting of the burden of proof instruction alluded to in Tinchervii and adopted by the California courts: “once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective”.viii The PDI proposed “risk utility” instruction includes several problems: it uses the phrase “unreasonably dangerous”, it requires that the plaintiff prove an alternative design, it compels the plaintiff to prove “how a reasonable manufacturer should weigh the benefits and risks” of the product, and it lists an expansive and (some) immaterial factors that a jury may consider such as: the desirability of the productix, the foreseeability of users of the product, an analysis of the use of an alternative design to “other users of the product, and the public in general,” it requires a review of the advantages and disadvantages related to the longevity of the product’s use, and the maintenance and repair of the product, it requires consideration of the ability of the product user to avoid the danger by exercising due care, and  factors in the public’s knowledge of the dangers associated with the product.

While the PDI does not explain the origin of each of these provisions, the application of some or all of them would lead to a negligence based product liability jury instruction and inappropriate comparative fault. 

Defenses: State of the Art, State of the Industry, Compliance With Standards and Comparative Fault 

Negligence of the plaintiff (except in substantial change or use of product in unintended qay cases) In determining whether a product is defective or a factual cause of the plaintiff’s harm, you may not consider any negligence of [name of plaintiff]. Under Pennsylvania law, the [specify type of supplier] is not permitted to defend against this claim by asserting that [name of plaintiff] was at fault. Industry Customs or Standards A [specify type of supplier] cannot escape a finding of defect because the product met industry customs or standards on safety.

Comments: The PBI instructions remain consistent with Pennsylvania law. Because these defenses were not addressed in Tincher, any suggestion which attempts to alter these aspects of the law must be viewed with serious reservations. The PBI instruction mentioning industry customs or standards provides a basic comment, but the instruction should be more direct and inform the jury that it is not to consider or discuss the existence or applicability of industry customs or government standards because they are not relevant in deciding whether a product is defective. The PDI instructions attempt to radically alter Pennsylvania law by introducing defenses which were not addressed in Tincher and which our courts have consistently rejected.x

The PDI contention that the risk-utility test opens the door for evidence of the state of the art defense, customs and practices in the industry and compliance with government standards is not well taken and the references to a few post-Tincher cases to support its position are mistaken. For instance, while the PDI comments reference High v. Pennsy Supply, that decision did not address the admissibility of compliance with industry standards as a defense. Likewise, the PDI reference to Amato v. Bell & Gossett, is misplaced because it did not rule on the propriety of evidence of compliance with the state of the art—in fact the court ruled that refusing an instruction on that topic was not error. And, finally, the PDI reference to Rapchak v. Haldex Brake Products, is misplaced because the court ruled that there was no predicate to decide the admissibility or inadmissibility of evidence of state of the art, industry practices or government standards.

Conclusions

When the court decided Tincher, it cautioned trial courts and the trial bar that only one issue was addressed in this case: the definitional methods (i.e., test) to prove a defective product. It further cautioned that: “this opinion does not purport to either approve or disapprove prior decisional law, or … subsidiary considerations and consequences of our explicit holding … The common law regarding these related considerations should develop within the proper factual contexts against the background of targeted advocacy.”

The court’s legal restraint should not, therefore, serve as a tool to rewrite all of the proposed jury instructions and alter Pennsylvania common law. For these reasons, the more cautious approach taken by the PBI Suggested Jury Instructions seems appropriate.

Larry Coben, a shareholder at AnopolWeiss, handles products liability cases at the firm.