Uncertainty Continues with Products Liability Standard

In a recent decision, Judge Arthur J. Schwab of the Western District of Pennsylvania, ruled in the case of Konold v. Superior International Industries, 2012 WL 5381700 (W.D. Pa. Oct. 31, 2012 Schwab, J.), that the Restatement (Second) should be applied in products liability cases since, despite an opportunity to adopt the Restatement (Third) in the case of Beard v. Johnson & Johnson, the Pennsylvania Supreme Court declined to do so.

In Konold, Judge Schwab noted that here remains a sharp split among the federal courts, and more particularly, the judges that make up the Western District Federal Court of Pennsylvania, on whether the Restatement (Second) of Torts or the Restatement (Third) of Torts applies in strict product liability actions.

Those Western District decisions ruling that the Restatement (Second) should be applied include Schif v. Hurwitz, 2012 WL 1828035 (W.D.Pa. May 18, 2012 Schwab, J.) and Gross v. Stryker Corp., 858 F.Supp.2d. 466, 479–80 (W.D.Pa.2012 Fischer, J.).

The recent Western District federal court decisions that instead state that the Restatement (Third) should be applied included Zollars v. Troy–Built, LLC, 2012 WL 4922689 (W.D.Pa. Oct.16, 2012 Ambrose, J.) and Lynn ex rel Lynn v. Yamaha Golf–Car Co., ––– F .Supp.2d. ––––, 2012 WL 3544774 (W.D.Pa. Aug.16, 2012 Hornak, J.) and Spowal v. ITW Food Equip. Group LLC, 2012 U.S. Dist. LEXIS 47614 (W.D.Pa. Apr. 4, 2012) (Cohill, J.).

As such, there remains a split of authority in the federal courts as to which Restatement of Torts should be utilized in the products liability context. This issue is important given that the Restatement (Second) of Torts calls for more narrow negligence principles to be utilized in this context.

In contrast, the Restatement (Third) decreases the emphasis upon the concepts of “intended use” and “intended user” along with placing a greater emphasis on the doctrine of “reasonable foreseeability” all of which arguably allows for a wider class of parties to recover against a manufacturer of a defective product under a more lenient test of liability.

The hope remains that this issue will come back before the Pennsylvania Supreme Court soon for a clarifying opinion.  The trouble there is that the Pennsylvania Supreme Court is currently working with only a slate of six Justices given Justice Orie Melvin's suspension from the bench.  If such a case should reach the Court again with a less than full complement of judges, the result could be a 3-3 split which will leave the issue unsettled.