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Products Liability, Tincher Rule

April 11th, 2017

In Renninger v. A&R Machine Shop, et al, 2017 WL 1326515 (Pa. Superior Ct., 4/11/2017), a unanimous three judge panel of the Pennsylvania Superior Court handed down one of the first appellate court decisions since the law of Products liability in Pennsylvania was changed by the Pennsylvania Supreme Court in Tincher v. Omega Flex, Inc., 104 A.3rd 328 (Pa. 2014).  Tincher overruled Azzarella v. Black Brothers, 391 A.2d 1020 (Pa 1978), which required a strict separation of negligence and products liability principles.

In Tincher, the Court held that a plaintiff may establish a defective condition by showing either that, “(1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.”  These are issues of fact for the jury unless reasonable minds could not differ on the issue.

The Courts had held in several cases following Azzarella, that the introduction of industry standards in a products liability case was prohibited.  The Tincher court did not expressly overrule these cases, or any case other than Azzarella, thus, leaving open the question of whether industry standards may be introduced in a products liability case in Pennsylvania.

In Renninger, the Clarion CCP admitted evidence of ANSI standards and violations of OSHA standards at plaintiff’s employer’s plant and steps that plaintiff’s employer could have taken to prevent plaintiff’s injuries.  However, the trial court instructed the jury that the employer’s conduct was relevant only if the jury deemed it a superseding cause of the accident.  In addition, the Superior Court noted that question one on the verdict slip asked the jury whether the product was defective.

Question three on the verdict slip asked the jury to assess whether plaintiff or his employer was a cause of the accident.  The jury answered question one in the negative.  As a result, the Pennsylvania Superior Court sidestepped the issue of the admissibility of industry standards, and instead concluded that if the trial court erred, it was not reversible error.  Before, Stabile, Lazarus, and Strassburger, JJ. Opinion by Stabile, J.


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