November 21, 2014

Tort law remains a mess in Pennsylvania

By Deborah J. La Fetra Senior Attorney

Pity the Pennsylvania lawyers who practice tort law.  Or, pity their clients, who will be billed for their attorneys’ time spent reading the Pennsylvania Supreme Court’s 136-page magnum opus on strict liability law, issued yesterday in the form of a 4-2 opinion deciding Tincher v. Omega Flex, Inc.  A bloated law review article masquerading as a judicial opinion, Tincher covers the entire history of tort law in Pennsylvania, an exhaustive review of the history of this particular case, including what each side argued at every level of litigation, general musings about the functions of the American Law Institute, which publishes the Restatement of Products Liability, and, eventually, a decision of sorts.

After the longest possible wind-up, the pitch itself only just grazes the strike zone.  The court refuses to announce a categorical rule.  After cataloguing its previous decisions that failed to provide clarity or justice in the law, the court is, perhaps, understandably gun-shy in trying anew to establish a clear rule for strict liability:

[C]ourts do not try the “typical” products case exclusively and a principle of the common law must permit just application to myriad factual circumstances that are beyond our power to conceive.  Circumstances like product diversity, general uncertainties inherent in the creative process, difficulties in recreating the design process, difficulties in the discovery process, to name just a few, may contribute to whether cases other than the typical case will generate a dispute and resulting decisional precedent. 

In a nutshell, tort law is hard.  Agreed.  But as Pacific Legal Foundation argued in its amicus brief, the court should have simply adopted Section 2 of the Third Restatement of Products Liability, which defines a “design defect”  such that a manufacturer is liable for harm caused by its product only if the product’s risk of harm could have been reduced by use of a reasonable alternative design.  Fearing a bright-line rule of any sort, the court declined to adopt Section 2.  However, it did overrule an earlier case, Azzarello v. Black Bros. Co., that had resulted in strict liability in name, negligence in theory, and absolute liability in practice, recognizing that it was “impracticable and inconsistent.”

Two justices concurred in the “long overdue overruling” of Azzarello, and dissented as to the rest of the opinion, arguing instead that the court should have adopted Section 2.  All in two succinct, straightforward paragraphs.

How all this will play out in future cases in Pennsylvania is anyone’s guess.  As the court notes at the end, “This Opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to foundational or subsidiary considerations and consequences of our explicit holdings.”   Such a decision does lasting harm to certainty in the law, to the detriment not only to lawyers who must attempt to counsel clients, and lower courts that must decide cases, but also to the state’s economy.  Certainty promotes business innovation and development by letting companies know what they can and cannot do  Certainty avoids the costs of lawyers and consultants who must interpret, clarify, explain, and advise manufacturers about the potential liabilities that follow every business decision.  Without predictable liability costs, Pennsylvania business are rendered less competitive.  Having failed to bring clarity and coherence to design defect liability in Pennsylvania, the state’s supreme court failed its individual and business citizens as well as the legal community that serves them.

Many thanks to Mark Jakubik, our local counsel who assisted with the filing our PLF’s brief.

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