Thursday, November 11, 2010

Products Liability Claim For Faulty Construction of a Building Rejected

In the case of Cooper v. Gerald W. Erdley General Contracting,, No. 09-Civil-0478 (Union Co. Oct. 21, 2010, Sholley, J.), Judge Michael H. Sholley addressed the issue of whether or not a products liability claim can be asserted in a matter arising from the property losses sustained by Plaintiffs incident through the destruction by fire of their home, garage, and personal property.

The case became before the Court by way of Preliminary Objections by the general contractor Defendant. The Plaintiffs were attempting to assert a cause of action in strict/products liability against the contractor under allegations that the contractor was strictly liable for producing the subject premises in a defective condition. More specifically, it was alleged that the contractor failed to install fire/rated sheet rock or drywall in the common wall adjacent to the living space in the residence and the garage such that a fire in the garage would not have spread to the home.

The Defendant contractor objected to the Plaintiff’s cause of action based upon §402A of the Restatement (Second) Torts on the grounds that the contractor was not a “seller” nor was the constructed residence a “product” as contemplated by the strict products liability law.

The trial court noted that they were unaware of any Supreme Court decision directly addressing the issue of whether a deficient construction of a home could give rise to a products liability claim. However, in the Superior Court case of Cox v. Shaffer, 302 A.2d 456 (Pa. Super. 1973), the Superior Court stated that a constructed building is not a product within the intent and meaning of §402A. The trial court in this matter noted that its research revealed that Cox v. Shaffer remained good law (other citations omitted).

In so ruling, the trial court in Cooper did also acknowledge the Plaintiff’s reliance on Judge William J. Nealon’s Federal Court Opinion in which Judge Nealon predicted in Bednarski v. Hideout Homes & Realty, Inc., 711 F. Supp. 823 (M.D. Pa. 1989), that the Pennsylvania Supreme Court may decide that builders may be held liable under §402A. However, the Cooper court noted that the federal court’s decision in Bednarski was not binding precedent.

As such, the trial court in Cooper dismissed the strict liability claim in this context.

Anyone desiring a copy of this Cooper Opinion may contact me at

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