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.