Introduction and historical overview

The first installment of this series, titled “Pennsylvania Supreme Court Overrules Azzarello, Only to Have PBI Suggested Jury Instructions Seek Azzarello’s Reinstatement (Vol. 1),” was published in the February 2017 edition of COUNTERPOINT. That article discussed the key holdings of the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), namely: (1) Pennsylvania’s strict liability design defect law remains grounded in the Restatement (Second) of Torts §402A (1965); (2) the 1978 decision in Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), improperly attempted to exclude negligence concepts from strict liability design defect jurisprudence, in a vain attempt at “social engineering” through products liability; (3) Azzarello is expressly overruled; and (4) the key inquiry in strict liability design defect cases under Tincher is whether a “defective condition unreasonably dangerous” to the user existed.

Authors: James M. Beck

The first installment (“Volume 1”) was inspired by then-recent publication by the Pennsylvania Bar Institute (“PBI”) of post-Tincher revisions to its “Pennsylvania Suggested Standard Civil Jury Instructions” for Products Liability (Chapter 16) (“Bar Institute SSJI”). As the PBI’s opening “Note to the User” confirmed, the Bar Institute SSJI are only suggested, and are not submitted to the Pennsylvania Supreme Court or to anyone else for approval.

Volume 1 identified numerous, systematic and recurring problems with the “new” Bar Institute SSJI, in particular: (1) they ignored the overruling of Azzarello by retaining core “any element” jury instruction language drawn directly from Azzarello, and repudiated by Tincher; (2) they ignored Tincher’s requirement that a “defective condition unreasonably dangerous” to the user is the “normative principle” of Pennsylvania products liability, and that at trial the jury must be so instructed; (3) they contained numerous unfounded assertions of law on corollary issues that the Tincher Court expressly declined to address, and for future incremental resolution; and (4) all of the PBI departures from Tincher construed Pennsylvania law in a one-sided fashion beneficial only to plaintiffs.

Finally, Volume. 1 explained how in June 2016, more than 50 legal organizations, business and insurance organizations, firms and experienced products liability lawyers formed an ad hoc group, which then invited the sub-committee responsible for the Bar Institute SSJI to open a dialogue to work toward a consensus set of SSJI that would accurately reflect the paradigm Tincher decision. As almost all COUNTERPOINT readers already know, the PBI sub-committee completely ignored that invitation.

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