In a recent decision in the case of
High v. Pennsy Supply, Inc., No. 2013-CV-06181 C.V. (C.P. Dauph.
Co. Feb. 18, 2016 Dowling, J.), the court granted summary judgment in favor of
the Defendant in a products liability case.
In this Opinion, Judge Andrew H. Dowling of the Dauphin County Court of Common Pleas provides an excellent synopsis and overview of the Pennsylvania Supreme Court's products liability decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).
The Plaintiff’s products liability case alleged that the
concrete at issue in the matter was defective because it had a pH in excess of
11.5, and was allegedly capable of causing burns to the skin upon prolonged
exposure.
The Defendant moved for summary judgment asserting that Plaintiffs
failed to prove a case that wet concrete, which normally has a pH range of
12-13, is an unreasonably dangerous and defective product.
According to the Opinion, two (2) homeowners ordered
concrete from the Defendant for use in a basement crawlspace.
After using the product, the homeowner
sustained burn injuries to his hands that allegedly later required skin
grafting and resulted in a permanent injury.
The Court noted that there was no showing by the Plaintiff
that the concrete delivery was somehow defective, that it contained a pH
outside of the normal range, or that it contained anything unusual.
Rather, it was the Plaintiff’s claim that the
concrete itself as a product was in a “defective condition” and created a
danger that was unreasonable and unacceptable to the average or ordinary
customer.”
In granting summary judgment in favor of the defense, the
court in
High applied the new standard
of review for 402(A) strict liability cases announced in the Pennsylvania
Supreme Court decision of
Tincher v.
Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).
According to the court in
High, the Supreme Court in
Tincher
held that the non-delegable duty in a strict liability case is that the “a
person or entity engaging in the business of selling a product has a duty to
make and/or market the product-which ‘is expected to and does reach its user or
consumer without substantial change in the condition in which it is sold’- free
from ‘a defective condition unreasonably dangerous to the consumer or [the
consumer’s] property.’”
See High
at p. 3
quoting Tincher, 104 A.3d at 383.
The
High court
also noted that, under
Tincher, “[t]o
demonstrate a breach of duty in a strict liability matter, a Plaintiff must
prove that a seller (manufacturer or distributor) placed on the market a
product in a ‘defective condition.’”
High at p. 3-4
quoting Tincher, 104 A.3d
at 384.
The
High court
also noted that, under
Tincher, “the
cause of action in strict products liability requires proof, in the
alternative, either of the ordinary consumer’s expectations or of the
risk-utility of a product.”
High, at p. 4
quoting Tincher, 104 A.3d
at 401.
The alternative test, or standard
of proof, is a “composite,” i.e., a standard of proof which states the consumer
expectations test and the risk-utility test in the alternative.
High
at p. 4
citing Tincher, 104 A.3d at
402.
The
High court
also noted that, under
Tincher, the
overall standard of review mandates that “the strict liability cause of action
theoretically permits compensation where harm results from risk that are known
or foreseeable… and also where harm results from risks annullable at the time
of manufacture or sale…...”
High at
p. 4 quoting
Tincher, 104 A.3d at
404-05.
The
High court
stated that, under
Tincher the
consumer expectations test defines a “defective condition” as a condition, upon
normal use, dangerous beyond the reasonable consumer’s contemplations.
High
at p. 4
citing Tincher, 104 A.3d at
387.
In contrast, the risk-utility test “offers a standard which,
in typical common law terms, states that:
a product is in a defective condition if a ‘reasonable person’ would
conclude that the probability and seriousness of harm caused by the product
outweigh the burden of costs of taking precautions.”
High
at p. 4
citing Tincher, 104 A.3d at
389.
The court went on to review the at
least seven (7) factors to be considered under the risk-utility test as
enunciated in
Tincher.
High
at p. 4-5
citing Tincher, 104 A.3d at 389-390.
Turning back to the facts before it, the court in
High stated that the Plaintiffs were
required to prove a defective condition by showing that a danger was
unreasonable and unacceptable to the average or ordinary consumer, or that a
reasonable person would conclude that the probability and seriousness of the
harm caused by the product outweighed the burden or costs of taking
precautions.
High at p. 5.
After noting that no Pennsylvania court decision was found
considering whether concrete is unreasonably dangerous by virtue of its capacity
for causing burns while in a liquid state, and after reviewing the law and
cases of other jurisdictions, the
High
court granted summary judgment in favor of the Defendants finding that the
Plaintiffs had failed to produce evidence that wet concrete is in a defective
condition.
The court also ruled
that the Plaintiffs failed to show that the
danger with wet concrete is unreasonable and unacceptable to the average or
ordinary consumer.
To the contrary, the
High court found that the dangers
associated with wet concrete are well known and are acceptable.
The court additionally found that the Plaintiffs failed to
produce evidence that the seriousness of harm caused by concrete outweighed the
burden or costs of taking precautions.
The court stated that concrete obviously is useful and provides utility
to the public as whole and, when used with the proper precautions and
equipment, it would seem that there would be a very low probability of serious
injury.
The court also noted that no
evidence was presented by the Plaintiff of the availability of a substitute
product that would meet the same needs and would not be as allegedly
unsafe.
The court also noted that there did not appear to be a way
to eliminate any unsafe character of the wet cement product without impairing
its usefulness or making it too expensive to maintain its utility.
Moreover, the court stated that proper
attire and basic safety precautions could have prevented the Plaintiffs’
injury.
Consequently, the court found that the Plaintiffs had failed
to prove that the seriousness of the harm caused by wet concrete outweighs the
burden of costs of taking precautions.
As such, the court entered summary judgment in favor of the
Defendant.
A copy of this decision can be viewed by clicking this
LINK
I send thanks to Attorney Kenneth T. Newman, Esquire of the
Pittsburgh, PA office of Thomas, Thomas & Hafer for bringing this case to
my attention.