Because the Pennsylvania Supreme Court has not adopted the Restatement (Third) of Torts to replace the Restatement (Second) and, in a recent decision, demonstrated strong favor for the separation of negligence and strict liability concepts under the Restatement (Second), litigants in Pennsylvania continue to face uncertainty as to which version of the Restatement will apply in a product liability case. While the Restatement (Second) continues to be the law in Pennsylvania state courts, recent federal court decisions in Pennsylvania product liability cases have split on which Restatement applies. Litigants should be aware of the latest developments as they evaluate their cases.
On October 17, 2012, in Sikkelee v. Precision Airmotive, the U.S. Court of Appeals for the Third Circuit, for the third time since 2009, determined that the Restatement (Third) of Torts applies to a Pennsylvania product liability action. In denying interlocutory appeal, the court held that it would follow its own precedent established in Covell v. Bell Sports (2011) and in Berrier v. Simplicity Manufacturing (2009), predicting that the Restatement (Third) would be adopted in Pennsylvania.
Although district courts must apply a circuit court’s holding and prediction as to how a state court would rule, absent a contrary decision by the state court, there is a surprising split in the federal district courts as to whether a Pennsylvania appellate court has issued a contrary decision. Several district court judges in Pennsylvania have held that the Restatement (Third) applies, finding that they are bound by the Third Circuit’s prediction that the Pennsylvania Supreme Court will adopt the Restatement (Third), and that the Pennsylvania Supreme Court has not issued a contrary decision. Other district courts insist that the Restatement (Second) must apply since the Pennsylvania Supreme Court, despite several opportunities to do so in recent years, has not adopted the Restatement (Third) and that the Pennsylvania Supreme Court has issued a decision contrary to the Third Circuit’s prediction. For example, on October 31, 2012, just two weeks after the Third Circuit’s Sikkelee decision, U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania ruled in Konold v. Superior International Industries, Inc., et al. that the Pennsylvania Supreme Court’s March 22, 2012, holding in Beard v. Johnson & Johnson, Inc. is a decision contrary to Covell, citing comments made by Justice Baer in Beard that the Third Circuit’s prediction of the Pennsylvania Supreme Court’s inclination to adopt the Restatement (Third) was based on inaccurate assumptions.
The inconsistent rulings by courts on this issue stem from the Pennsylvania Supreme Court’s failure to clarify whether the Restatement (Second) or Restatement (Third) applies in Pennsylvania. In the 2011 case of Schmidt v. Boardman Co., the Pennsylvania Supreme Court acknowledged the inconsistencies in Pennsylvania law, but felt that the issues had not been briefed in sufficient detail in the case. Most recently, in Beard, the Supreme Court declined to adopt the Restatement (Third), although Justice Saylor, writing for the court, noted the Third Circuit Court’s prediction in Covell, recognized the state of disrepair of Pennsylvania strict-liability design defect law, and in footnote 18 of the decision acknowledged the Restatement (Third) approach to assign risk-utility balancing to the jury. On the other hand, the concurring opinion by Justice Baer (joined by Justices Todd and McCaffery) adamantly refused to express any opinion on the merits of adopting the Restatement (Third), but at the same time did not speak out against the Third Circuit’s prediction that the Pennsylvania Supreme Court would one day adopt the Restatement (Third).
Nevertheless, on November 26, 2012, in Reott v. Asia Trend, the Pennsylvania Supreme Court held that in a product liability case, where the defendants alleged that the plaintiff’s injuries were a result of his “highly reckless conduct,” the defendants were responsible for pleading and proving that this conduct was the sole or superseding cause of the plaintiff’s injuries. The court rejected the defendants’ attempt to present evidence of highly reckless conduct simply to rebut evidence of causation and held under the Restatement (Second) that a defendant is required to prove that the use was so extraordinary and unforeseeable as to constitute a superseding cause of the plaintiff’s injuries. The majority in Reott, relying heavily on the application of the Restatement (Second), reasoned that the decision should further prevent the impermissible blending of negligence and strict liability concepts.
For years, Pennsylvania courts, in adhering to the Restatement (Second), have resisted the introduction of negligence principles into Pennsylvania’s definition of strict product liability. The Pennsylvania Supreme Court adopted Section 402A of the Restatement (Second) of Torts in Webb v. Zern, 220 A.2d 853 (Pa. 1966), and since Webb, Pennsylvania courts have maintained a strict separation between negligence and strict liability principles (see, e.g., Phillips v. Cricket Lighters, 883 A.2d 439 (Pa. 2005)). Under Section 402A of the Restatement (Second) of Torts, sellers are strictly liable for injuries caused by defective products that are unreasonably dangerous to the intended user. The manufacturer is liable only for an injury that occurs in connection with a product’s intended use by an intended user.
Conversely, under the Restatement (Third), negligence and foreseeability concepts are integrated into product law. The “intended use” doctrine is replaced with a “reasonably foreseeable use” standard, where a design defect exists when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the supplier and the omission of the alternative design renders the product not reasonably safe. Recovery is permitted whenever a product is put to uses that are reasonably foreseeable to a seller or distributor. Additionally, a risk-utility balancing test is incorporated into the strict liability design defect analysis, as well as evidence of standards or customs in the industry and the consideration of comparative fault.
Litigants must wait – and carefully navigate the courts armed with the language of these decisions. While defendants may benefit from the Restatement (Third) in that they can introduce standard-of-care and state-of-the-art evidence, plaintiffs’ cases may have new life where the plaintiff was not using the product for its intended use or was not the intended user. Which version of the Restatement will apply may depend on whether the case is sitting in federal or state court and, if in federal court, which judge is hearing the case. Until the uncertainty is resolved, it is critical for parties confronted with litigation to be aware of the status of Pennsylvania law so that they are in a position to evaluate and make informed strategic decisions about their cases.
Antranig Garibian is an Associate in the Litigation practice group at Stradley Ronon Stevens & Young, LLP. Mr. Garibian represents clients in a variety of business, commercial, product liability, contract and employment matters throughout Pennsylvania, Delaware, New Jersey and New York.