Pennsylvania Supreme Court Issues Tincher Decision: Declines to Adopt Restatement Third for Products Cases

The Pennsylvania Supreme Court has released its much anticipated products liability decision in Tincher v. Omega Flex, Inc., No. 17 MAP 2013 (Pa. Nov. 19, 2014 Castille, C.J.)

When the Court accepted the appeal in Tincher it defined the issue presented as "Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement."

 In the Tincher 128 page majority Opinion, the Court overruled the Azzarrello  v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978) decision and its negligence/strict liability analysis.

While the Tincher court declined to adopt the Restatement Third for products cases, the Court did note that certain principles therein guided its framework for a proper analysis of such claims in the post-Azzarrello era.

The new strict products liability analysis adopted by the Supreme Court was enunciated, as follows:

"...we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a “defective condition.” The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a  preponderance of the evidence."

The Court went on to emphasize that the issue of whether or not a product is in a defective condition was a question of fact to be considered by a jury and could only be decided by a court on a motion for summary judgment if the court found that no reasonable minds on a jury could differ on a conclusion that a product was not defective.

To review a copy of the Pennsylvania Supreme Court's lengthy decision in Tincher v. Omega Flex, click HERE.

In his Dissenting and Concurring Opinion, which can be viewed HERE, Justice Saylor noted, in part, that he favored the adoption of the Restatement Third for products cases.


I send thanks to Attorney Ken Newman of the law firm of Thomas, Thomas & Hafer for bringing this case to my attention.  I also thank the excellent Drug and Device Law Blog in the same regard.