The Legal Intelligencer

Authors: James M. Beck

During the long reign of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978), as the foundation of strict products liability in Pennsylvania, the strict separation of "negligence" and "strict liability" imposed by that decision led to a number of secondary exclusions of evidence and theories. The first of these involved so-called "state of the art" evidence, of which there are several subsets: (1) scientific unknowability; (2) governmental standards; and (3) industry standards.

In Lewis v. Coffing Hoist Division, 528 A.2d 590 (Pa. 1987), the court, citing to Azzarello's negligence/strict liability dichotomy, held that evidence of industry customs and standards should be inadmissible in strict liability actions. Discussing Azzarello, the court said, "We also concluded, if not expressly, then certainly by clear implication, that negligence concepts have no place in a case based on strict liability." Therefore, the court decided, "evidence of industry standards ... go to the reasonableness of the [defendant's] conduct in making its design choice," and "conclude[d] that such evidence would have improperly brought into the case concepts of negligence law."

Even before Lewis, however, the Superior Court in Carrecter v. Colson Equipment, 499 A.2d 326 (Pa. Super. 1985), had held that Azzarello barred manufacturers from defending on the basis that either the risk or the curative measure at issue was scientifically unknowable at the time of the product's manufacture. Carrecter rejected any defense based on "the technological feasibility aspect of state of the art," because "in the Pennsylvania law of products liability there is no room for a negligence based defense under the guise of 'state of the art.'"

Last to fall to the negligence/strict liability dichotomy was compliance with mandatory government standards. In Hicks v. Dana Cos., 984 A.2d 943 (Pa. Super. 2009), the en banc court held that "governmental regulations are inadmissible in strict liability cases ... based upon the general premise that the introduction of such evidence has the effect of shifting the jury's attention from the existence of a defect to the reasonableness of the manufacturer's conduct, which is irrelevant in strict liability actions." Cases that had allowed compliance evidence "were predicated upon [a] definition of defect ... which differs from the one articulated by our Supreme Court in Azzarello." Governmental and industry standards were indistinguishable. "In either situation the use of such evidence interjects negligence concepts and tends to divert the jury from their proper focus, which must remain upon whether or not the product, when it left the control of the manufacturer, was 'lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.'"

Another negligence defense fell, in Kimco Development v. Michael D's Carpet Outlets, 637 A.2d 603 (Pa. 1993), where the court held that comparative fault did not apply to cases litigated on strict liability principals. Relying, in part, on a pre-Azzarello case, McCown v. International Harvester, 342 A.2d 381 (Pa. 1975), which had abrogated the common-law defense of contributory negligence in strict liability, the court held that "the underlying purpose of strict products liability is undermined by introducing negligence concepts into it." Kimco quoted Azzarello at length for this proposition.

Finally, the admissibility of plaintiff fault as bearing on causation vexed Pennsylvania courts for many years. In one of the Pennsylvania Supreme Court's last decisions applying the Azzarello standard, Reott v. Asia Trend, 55 A.3d 1088 (Pa. 2012), sought to keep negligence and strict liability separate by restricting such evidence to a plaintiff's "highly reckless conduct." Only "highly reckless conduct"—not mere "contributory negligence"—was admissible in strict liability. The dichotomy between negligence and strict liability forced this distinction:

"Under Pennsylvania's scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence. ... Without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate a Section 402A action by demonstrating a plaintiff's comparative or contributory negligence."

The conduct at issue in Reott was deemed insufficiently "unforeseeable and outrageous" to be admissible.

Then the court expressly overruled Azzarello in Tincher v. Omega Flex, ___ A.3d ___, No. 17 MAP 2013 (Pa. Nov. 19, 2014). Azzarello "articulate[d] governing legal concepts which fail to reflect the realities of strict liability practice and to serve the interests of justice." Thus, Tincher repudiated the negligence/strict liability dichotomy upon which the exclusions in cases such as Lewis was predicated. Instead of strict separation, Tincher recognized that "the theory of strict liability as it evolved overlaps in effect with the theories of negligence and breach of warranty."

"A strict reading of Azzarello is undesirable," the Tincher court said. "Subsequent application of Azzarello elevated the notion that negligence concepts create confusion in strict liability cases to a doctrinal imperative, whose merits were not examined to determine whether such a bright-line rule was consistent with reason. ... The effect of the per se rule that negligence rhetoric and concepts were to be eliminated from strict liability law was to validate the suggestion that the cause of action, so shaped, was not viable."

As the court said, "those decisions essentially led to puzzling trial directives that the bench and bar understandably have had difficulty following in practice." Azzarello's "negligence rhetoric-related doctrinal proscription arising from a peculiar set of circumstances had long-term deleterious effects on the development of strict liability law in Pennsylvania."

According to Tincher, a "typical" design defect case involves foreseeable risks, akin to negligence, and thus approximates the "alternative design" approach of the Restatement (Third) of Torts:

"[This] claim was essentially premised upon the allegation that the risk of harm related to [the product's design] was both foreseeable and avoidable. ... These allegations, at least, bear the indicia of negligence. Indeed, in some respects this is the 'typical' case, which explains both the insight that in design cases, the character of the product and the conduct of the manufacturer are largely inseparable, and the Third Restatement's approach of requiring an alternative design as part of the standard of proof."

The court cautioned, however, that not every case was typical. "Courts do not try the 'typical' products case exclusively."

Under Tincher's "composite" standard, both "risk/utility" and "consumer expectation" theories of defect are permitted. This duality recognizes that "the theory of strict liability as it evolved overlaps in effect with the theories of negligence and breach of warranty." Manufacturers typically "engage in a risk-utility calculus" typical of negligence whereas intermediate sellers "implicitly represent" their products' nondefectiveness analogously to a warranty.

Tincher refrained from passing on any of the Azzarello-based restrictions on defenses and evidence, because those questions were not before it. As the court stated:

"We recognize—and the bench and bar should recognize—that the decision to overrule Azzarello ... may have an impact ... upon subsidiary issues constructed from Azzarello, such as the availability of negligence-derived defenses. ... These considerations and effects are outside the scope of [this case]."

The court continued: "This opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the Restatements, relating to ... or subsidiary considerations and consequences of our explicit holdings."

Tincher thus made explicit the court's understanding that, with Azzarello and its negligence/strict liability dichotomy overruled, all of the prior restrictions on what were previously considered "negligence-derived" or "use-related" defenses and evidence are now fair game for reconsideration. By no means are any or all of them defunct, as yet, but these restrictions on how defendants may try their cases must now be evaluated on their substantive merit, and can no longer be justified simply because they involve negligence principles or evidence.

In the new, post-Tincher era, litigants will be required to preserve for appellate review numerous issues that were previously thought settled under Azzarello's negligence/strict liability dichotomy. Tincher's seismic shift in the fundamental bases for products liability demands no less.

Reprinted with permission from the February 3, 2015 edition of The Legal Intelligencer © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit