                                  [J-80-2013]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.


TERRENCE D. TINCHER AND JUDITH             :   No. 17 MAP 2013
R. TINCHER,                                :
                                               Appeal from the Order of the Superior Court,
                                           :
                    Appellees                  Dated September 25, 2012, at No. 1472 EDA
                                           :   2011, Affirming the Judgment of the Chester
                                           :   County Court of Common Pleas, Civil Division,
                                           :   Dated June 1, 2011, at No. 2008-00974-CA
             v.
                                           :
                                           :
OMEGA FLEX, INC.,                          :
                                           :
                    Appellant              :   ARGUED: October 15, 2013



                                       OPINION


MR. CHIEF JUSTICE CASTILLE                              DECIDED: November 19, 2014
      Omega Flex, Inc., appeals the decision of the Superior Court to affirm the

judgment on the verdict entered in favor of Terrence D. Tincher and Judith R. Tincher

(the “Tinchers”) by the Chester County Court of Common Pleas, Civil Division. We

reverse the Superior Court decision in part, upon reasoning different from that

articulated by the courts below, and we remand to the trial court for further action upon

Omega Flex’s post-trial motions, consistent with the principles elucidated in this

Opinion. We hold that:

             1.   This Court’s decision in Azzarello v. Black Brothers
             Company, 391 A.2d 1020 (Pa. 1978) is hereby overruled.

             2.     Having considered the common law of Pennsylvania,
             the provenance of the strict product liability cause of action,
             the interests and the policy which the strict liability cause of
              action vindicates, and alternative standards of proof utilized
              in sister jurisdictions, we conclude that a plaintiff pursuing a
              cause upon a theory of strict liability in tort must prove that
              the product is in a “defective condition.” The plaintiff may
              prove 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.        The burden of production and
              persuasion is by a preponderance of the evidence.

              3.     Whether a product is in a defective condition is a
              question of fact ordinarily submitted for determination to the
              finder of fact; the question is removed from the jury’s
              consideration only where it is clear that reasonable minds
              could not differ on the issue. Thus, the trial court is
              relegated to its traditional role of determining issues of law,
              e.g., on dispositive motions, and articulating the law for the
              jury, premised upon the governing legal theory, the facts
              adduced at trial and relevant advocacy by the parties.

              4.     To the extent relevant here, we decline to adopt the
              Restatement (Third) of Torts: Products Liability §§ 1 et seq.,
              albeit appreciation of certain principles contained in that
              Restatement has certainly informed our consideration of the
              proper approach to strict liability in Pennsylvania in the post-
              Azzarello paradigm.



                                   I.       Background

        Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at

the home of the Tinchers in Downingtown, Pennsylvania.            The residence was the

central unit of a two-story triplex built in 1998-99, and purchased by the Tinchers in

2005.     The fire was eventually extinguished and no persons were harmed.

Subsequently, investigators concluded that a lightning strike near the Tinchers’ home

caused a small puncture in the corrugated stainless steel tubing (“CSST”) transporting

natural gas to a fireplace located on the first floor of the residence. The CSST installed


                                        [J-80-2013] - 2
in the Tinchers’ home was manufactured and sold by Omega Flex as part of a gas

transportations system marketed as the TracPipe System.           The heat attending the

melting of the CSST caused by the lightning strike ignited the natural gas and fueled a

fire estimated to have burned for over an hour. The fire caused significant damage to

the Tinchers’ home and belongings.

        After the fire, the Tinchers reported the incident to their insurer, United Services

Automobile Association (“USAA”). USAA compensated the Tinchers for their loss up to

the limit of their policy and received an assignment of liability claims. The Tinchers

suffered an additional out-of-pocket loss because a portion of their claimed loss

exceeded the limits of the USAA policy.

        In January 2008, the Tinchers filed a complaint against Omega Flex in the

Chester County Court of Common Pleas.1 USAA prosecuted the claims in the name of

the Tinchers to obtain reimbursement of the insurance proceeds payout, but the

Tinchers retained an interest in the litigation to recover the losses exceeding their

insurance coverage. The Tinchers asserted claims premised upon theories of strict

liability, negligence, and breach of warranty.

        In relevant part, the Tinchers’ complaint relies upon the theory of strict liability

articulated in Section 402A of the Second Restatement of Torts, but as followed and

construed in Pennsylvania. Complaint, 3/18/2008, at ¶¶ 19-25 (citing RESTATEMENT (2D)

OF   TORTS § 402A). The Tinchers alleged that Omega Flex is liable for damages to their

home caused by the placement on the market and sale of the TracPipe System.

1
       The Tinchers also named as defendants R & L Plumbing Contractors, Inc.,
Joseph Rosati Plumbing, Inc., and Joseph R. Rosati, Jr., individually and d/b/a Joseph
Rosati Plumbing & Heating. Omega Flex asserted cross-claims against its co-
defendants. In October 2010, the Tinchers and Omega Flex voluntarily dismissed with
prejudice all claims against these additional parties.




                                      [J-80-2013] - 3
According to the Tinchers, the CSST incorporated into the TracPipe System is

defective, and unreasonably dangerous to intended users, because its walls are too thin

to withstand the effects of lightning. The Tinchers requested compensatory damages,

interest, fees, and costs of litigation. Omega Flex answered the complaint denying the

Tinchers’ allegations. The matter was assigned to the Honorable Ronald C. Nagle,

Senior Judge of the Chester County Court of Common Pleas. The parties proceeded

with discovery and the filing of dispositive motions, which the trial court denied.

         In September 2010, in anticipation of trial, Omega Flex filed a motion in limine

requesting the application of Sections 1 and 2 of the Third Restatement of Torts to the

Tinchers’ strict liability claim. Omega Flex also proposed jury instructions and findings

of fact consistent with the provisions of the Third Restatement. The Tinchers opposed

Omega Flex’s motion in limine and offered proposed jury instructions and findings of

fact consistent with the Second Restatement and Azzarello, supra. The trial court did

not resolve Omega Flex’s motion before trial. See Notes of Testimony, 8/12/2011, at

17-22.

         In October 2010, the parties proceeded to trial before a jury. At trial, the Tinchers

offered evidence regarding the events of June 20, 2007, the subsequent investigation

into the cause of the fire, the losses sustained by the Tinchers, and USAA’s process of

adjusting the insurance claim. The parties generally agreed that lightning had caused

the fire, although they disagreed as to the sequence of events or the cause of ignition in

the area of the fireplace. The Tinchers offered evidence that lightning transferred an

electrical charge to parts of the home, including the TracPipe System; the electrical

current then sought ground and created different electrical charges in the various metal

components of the structure. The Tinchers’ expert witnesses testified that a flow of

energy between a differently charged TracPipe and another metal component of the




                                        [J-80-2013] - 4
home caused an electrical arc, and the accompanying heat punctured the CSST and

ignited the natural gas that the CSST transported. According to the Tinchers’ expert,

the perforation in the corrugated stainless steel tubing from the Tinchers’ home was

“characteristic of a lightning strike, not anything else.” By comparison, Omega Flex’s

witnesses testified that lightning measured near the Tinchers’ home on the night of the

fire did not carry sufficient energy to puncture the CSST. According to these witnesses,

once lightning entered the house, lightning-related high voltages -- although with low

energy -- broke down the insulation on electrical wires and, if the circuit breakers did not

interrupt the current, the electrical current caused the fire. Omega Flex also responded

that the conditions of the Tinchers’ home after the fire and after the investigation, during

which part of the evidence had been removed from its original location, made it

impossible to confirm the Tinchers’ theory. Finally, Omega Flex offered evidence that

an attempt had been made to bond the TracPipe System to the cold water pipe at the

Tinchers’ residence which, if successful, would have prevented the electrical arc -- and

the resulting fire -- from occurring. Witnesses testified that, after the fire, a bonding

clamp had been found connected to the CSST and near but disconnected from the cold

water pipe. The parties offered competing testimony as to whether the clamp had been

attached to the cold water pipe before the fire.

       Relevant to their strict liability theory, the Tinchers offered testimony regarding a

defect in the TracPipe from experts in electrical engineering and metallurgy, electrical

arc physics, and material science -- Mr. Mark Goodson and Dr. Thomas Eager,

respectively. These experts opined that CSST is inherently defective because its wall is

1/100 of an inch thick -- the width of four sheets of paper -- and, as a result, the

probability is “very high,” “close to a hundred percent,” that a lightning-generated current

will perforate it. By comparison, an alternative natural gas conduit made of black iron




                                      [J-80-2013] - 5
pipe is ten times thicker for a half-inch diameter pipe similar to the CSST present in the

Tincher home. According to the witnesses, CSST withstands the transfer of ten times

less energy than black iron pipe and, given the same energy, the amount of time to

puncture CSST is 1/100 the amount of time required to puncture black iron pipe.

Experts estimated that an electric arc is fifty thousand to a million times more likely to

perforate CSST than black iron pipe.

       The witnesses acknowledged that the energy transferred by any particular

lightning strike is difficult to predict and cannot be replicated in a lab, but concluded that

the probability was high that CSST would be punctured by occurrences within expected

ranges of electrical current.    Such results, according to the Tinchers’ experts, are

observable and predictable with equations developed in the Nineteenth Century.

Nevertheless, the experts noted that Omega Flex had not conducted testing on the

TracPipe’s ability to withstand lightning strikes, although testing for resistance to

lightning was necessary and available. Moreover, according to the Tinchers’ evidence,

the Omega Flex installation guide failed to direct compliance with lightning-related fire

protection codes.

       The Tinchers’ witnesses also testified that Omega Flex recommended grounding

the TracPipe system by plugging any natural gas-fueled appliances into three-prong

outlets. Additional grounding, although attempted at the Tinchers’ residence, was not

required by the installation instructions provided by Omega Flex to professionals to

whom TracPipe was marketed and sold for installation in consumers’ homes.

Moreover, according to the Tinchers’ experts, the bonding of the TracPipe System at

one location would be insufficient to protect the CSST from the effects of lightning. To

be effective, the witnesses testified, bonding would be required every ten feet, which the




                                       [J-80-2013] - 6
experts deemed to be an impractical and unfeasible solution. The alternative would be

to encase the CSST in black iron pipe. See N.T., 10/13/2010, at 291-98, 357-420.

       After the Tinchers rested, Omega Flex moved for a nonsuit, citing the standard of

the Second Restatement and Azzarello; Omega Flex expressly assumed that the trial

court had denied its request to apply the Third Restatement. N.T., 10/18/2010, at 514-

16. The trial court denied the motion for a nonsuit. Id. at 525-26.

       Subsequently, Omega Flex introduced the testimony of its own experts relating to

the defect in the TracPipe System alleged by the Tinchers. The witnesses were Dr.

James Dydo, an expert in metallurgy and mechanical engineering with a focus on fuel

gas piping, and Dr. Michael Stringfellow, an expert in physics with a focus on lightning

and the protection of structures from lightning. The Omega Flex experts opined that the

TracPipe System is not defective or unreasonably dangerous. According to the defense

experts, CSST is a technology with significant advantages, including resistance to

corrosion, structural shifts, and mechanical ruptures; ease of installation, relocation, and

retrofitting; and fewer joints accompanied by decreased susceptibility to natural gas

leaks at any required joints. The experts noted that these net benefits are marked

advantages over black iron pipe arising from the flexibility of CSST. If CSST’s walls

were thickened, according to the experts, there would be little practical difference

between CSST and black iron pipe.

       The defense witnesses also testified that the TracPipe System meets and

exceeds all standards for minimum performance governing CSST developed by the

American National Standards Institute, a clearinghouse for trade groups. Additionally,

the witnesses stated, installation of the TracPipe System conforms with the Fuel Gas

Code and the National Electric Code in force in 1998-99. The experts emphasized that

these applicable standards did not anticipate intrusion by lightning as a possible safety




                                      [J-80-2013] - 7
concern, suggesting that it was unnecessary for Omega Flex to have foreseen any

danger from lightning.

       Finally, Omega Flex’s experts agreed that the installation instructions for the

TracPipe System did not require installation of a bonding clamp. The witnesses also

noted, however, that a disconnected clamp was consistent with Omega Flex’s

assessment of the circumstances surrounding the fire. The experts offered that the

attempt to bond the TracPipe System to the cold water pipe was inadequate and that a

successful attempt would have likely averted the resulting fire. Id. at 657-712.

       After resting its defense, Omega Flex offered a motion for a directed verdict

premised upon Second Restatement principles and Azzarello. Omega Flex argued that

proof of the overall risks and benefits of the TracPipe System, and of any reasonable

alternative designs, showed that TracPipe was not unreasonably dangerous. The trial

court denied the motion for a directed verdict.             Both parties then offered closing

arguments on their respective theories of the case.               Subsequently, the trial court

instructed the jury with respect to the Tinchers’ strict liability claim as follows:


                      The contention of the [Tinchers] in this case is that
              there is a defect in this product, this TracPipe. To state a
              products liability claim, essentially it’s strict liability, a plaintiff
              must prove, first, that the product was defective. Second,
              that if [sic] a defect existed when it left the hands of the
              defendant, that is, left the process by which it was produced
              at the defendant[‘s] plant. And three, that the defect caused
              the harm.

                       A product is defective when it is not safe for its
              intended purpose. That is, it leaves the suppliers’ control
              lacking any element necessary to make it safe for its
              intended use. The inquiry is whether or not there is a defect,
              not whether the defendant[’s] conduct was negligent. In
              strict liability there is no consideration of negligence. It is
              simply, was the product defective or wasn’t it defective.


                                         [J-80-2013] - 8
                    *      *      *       *

         Defective design. The manufactur[er] of a product is
really a guarantor of its safety. When we talk about strict
liability, the product must be provided with every element
necessary to make it safe for its intended use. And without
any conditions that make[] it unsafe for its intended use. If
you find that the product in this case, the TracPipe, at the
time it left the defendant[’s] control, lacked any elements
necessary to make it safe for its intended use, or contained
any condition that made it unsafe for its intended use, and
there was an alternative more practical design, more safer
[sic] design, then the product is considered defective and the
defendant is liable for the harm, if you find that defect
caused the harm[,] was the proximate cause of the harm to
the plaintiffs.

         Now, ladies and gentlemen, a product is not defective
merely because it is possible to be injured while using the
product. The imposition of strict liability is not meant to
transform manufacturers into insurers of all injuries that are
potentially possible and [sic] at the hands of a product. A
manufacturer of a product may be a guarantor of the
product[’s] safety, but under no circumstances is the
manufacturer an insurer of the safety of the product. The
law does not force the manufacturer to become the insurer
of the product under all conditions and uses.                A
manufacturer is not required to make an already safe
product safer, or to utilize the safest of all designs. The
manufacturer is not required to produce or design a product
incorporating only features representing the ultimate in
safety design. To prevail on a design defect theory, plaintiffs
must prove that the product is defective and that at the time
it left the control of the manufacturer it lacked the feature
necessary to make it safe for its intended use, or contained a
feature that made it unsafe for its intended use.

        In other words, you may not find that the TracPipe
product is defective merely because it could have been
made safer. Instead, you may only render a verdict for the
plaintiff if you conclude and are convinced that the TracPipe
is in fact defective and was so when it left the hands of the


                        [J-80-2013] - 9
manufacturer and that defect was the proximate cause of the
[Tinchers’] loss.

         As I said before, and I instruct you that in order to
establish strict liability for putting a defective product in the
stream of commerce, the plaintiffs are not required to prove
that the defendant was negligent. Negligence and strict
liability are two separate concepts. I’ll get to negligence in a
second. And no consideration should be given to negligence
when considering strict liability for a defective product. It’s
two different concepts. I understand it’s not the easiest thing
to keep in mind. I’m trying to point out there is a difference
between strict liability for putting a defective product that was
defective when it was designed and made in this stream of
commerce that causes harm to someone else, an intended
user, not just any user, but an intend[ed] user of that
product.

         Obviously, ladies and gentlemen, if this product was
manufactured and, obviously, the -- with all of the testimony
in this case and the steps that were taken during the design
and manufacturing process, Omega Flex knew it was going
to be used for its intended purposes, to carry gas[,] natural
gas, the manufacturer supplying the pipe guaranteed it
would be safe for its intend[ed] use. That is what strict
liability means. So if something that is intended to be safe
for the use intended to be made of it is not, and it’s proven
that it’s not, and that proof has to come from the plaintiff, and
that defect is the proximate cause of what happens, there is
a lot of testimony in this case about that, then that is what
strict liability means. It does not have anything to do with
negligence in that aspect of the case. That is why the risk of
loss, or if there is, or if you find there is a defect in strict
liability, the risk of loss is placed upon the supplier or
manufacturer that put that product in this stream of
commerce. The risk of loss for injuries resulting from the
defective product is best warned [sic] by the person who
manufactured it, principally because they are the ones that
put it in the stream of commerce and said it would work for
its intended purpose.




                       [J-80-2013] - 10
N.T., 10/19/2010, at 794-98. Additionally, the trial court defined “proximate cause,” and

instructed the jury with respect to damages.          Id. at 802-07.    After the trial court

concluded its instructions on the law, counsel for Omega Flex noted for the record that

Omega Flex had proposed instructions based upon the Third Restatement with respect

to the strict liability claim and that any Second Restatement instructions it proposed

were offered in the alternative. The trial court responded that it had declined to instruct

the jury in accordance with Third Restatement principles because Pennsylvania

appellate courts, and the Supreme Court especially, had not adopted the Third

Restatement.

       Subsequently, the jury returned to the courtroom with several questions.

Relevant here, the trial court answered the jury by repeating definitions for the terms

“defect” and “defective design” as offered in the original instructions.

       On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the

products liability claim, and awarded compensatory damages totaling $958,895.85.

Damages were divided as follows: $406,532.90 (building); $988.83 (additional property

and structures); $503,945.58 (contents); and $47,428.64 (alternate living expenses).

The trial court added $69,336.05 in delay damages, and entered judgment on the

verdict.2   In November 2010, Omega Flex filed a motion for post-trial relief and

supporting brief requesting, among other things, a new trial premised upon trial court

errors in denying its motion in limine and in failing to instruct the jury on the law as

articulated in the Third Restatement.        Additionally, Omega Flex sought judgment

notwithstanding the verdict on the theory that the evidence introduced at trial was

insufficient to prove a claim of strict liability under Third Restatement principles.

2
      The jury also returned a verdict in favor of Omega Flex on the negligence claim.
There are no claims before this Court related to this part of the verdict.




                                      [J-80-2013] - 11
       Relating to the motion for judgment notwithstanding the verdict, Omega Flex

argued that the evidence introduced at trial was insufficient as a matter of law to prove a

strict liability claim under the Third Restatement. In overlapping claims of error, Omega

Flex also asserted that the Tinchers had not met their burden of proof under the so-

called “fireworthiness” doctrine, which, as Omega Flex explained in its supporting brief,

was a Third-Restatement-like approach similar to the more familiar “crashworthiness”

exception to the Second Restatement. Appellant’s Brief in Support of Motion for Post-

Trial Relief 3/3/2011, at 9-27 (citing Pa. Dep’t of Gen. Serves. v. U.S. Mineral Prods.

Co., 898 A.2d 590 (Pa. 2006) (“General Services”) and Gaudio v. Ford Motor Co., 976

A.2d 524 (Pa. Super. 2009)). With respect to the motion for a new trial, Omega Flex

alleged that the trial court erred in denying its motion in limine seeking to conduct the

trial in accordance with Third Restatement principles, and in failing to issue a jury

charge premised upon the Third Restatement or the fireworthiness / crashworthiness

doctrine.

       In the brief supporting the post-trial motion, Omega Flex distilled what were

several Third Restatement and fireworthiness doctrine claims into two main arguments.

First, according to Omega Flex, judgment notwithstanding the verdict or a new trial were

appropriate under the Second Restatement because lightning protection, the safe

conduction of electricity, or even a foreseeable event such as the fire are not intended

uses of the TracPipe System. In the alternative, Omega Flex argued that, once the

Tinchers offered evidence that lightning was a “foreseeable” event, the dispute

paradigm changed from a typical Second Restatement design defect case to a

fireworthiness / crashworthiness case, which required the trial court to issue a jury

instruction that the Tinchers had the burden to prove the existence of an alternative

safer design similar to the burden articulated by the Third Restatement.




                                     [J-80-2013] - 12
       Second, Omega Flex argued that a new trial was appropriate because the trial

court failed to charge the jury on the Third Restatement, which in its view stated the

relevant principle of law applicable to the circumstances alleged by the Tinchers.

Omega Flex argued that application of the Third Restatement was supported by

responsive opinions authored and joined by several Justices of this Court and the

decision of the U.S. Court of Appeals for the Third Circuit in Berrier v. Simplicity Mfg.,

563 F.3d 38 (3d Cir. 2009). Appellant’s Brief in Support of Motion for Post-Trial Relief

3/3/2011, at 36 (citing also Phillips v. Cricket Lighters, 841 A.2d 1000, 1020 (Pa. 2003)

(Saylor, J., concurring, joined by Castille and Eakin, JJ.)).             Returning to its

fireworthiness doctrine theory, Omega Flex emphasized that the trial court’s Azzarello-

based instructions on the Second Restatement confused the jury: first, by mentioning,

without explaining, the relevance of evidence of a proposed alternative design, i.e., the

black pipe system; second, by failing to guide the jury on the burden of proof relating to

the alternative design; and, third, by failing to explain how the jury should consider the

role of lightning in assessing liability. Additionally, Omega Flex argued that the failure to

charge the jury, and relatedly the absence from the verdict sheet, of foreseeability-

based principles and elements related to the existence of a safer alternative design,

erroneously lessened the Tinchers’ burden of proof. Id. at 31-40.

       In response, the Tinchers asserted that the “fireworthiness” instruction requested

by Omega Flex had no applicability to the Tinchers’ circumstances.            The Tinchers

explained that the decision in General Services was distinguishable on the facts: in

General Services, the product released harmful chemicals when exposed to a fire

caused by unrelated events; because the fire was not an intended use of the product,

this Court held that strict liability principles were inapplicable.    By comparison, the

Tinchers noted that the allegations in this matter were that the defect in CSST even




                                      [J-80-2013] - 13
when employed for its intended use, i.e., carrying natural gas, caused the fire; these

allegations implicated a manufacturer’s strict liability for the alleged defect.       The

Tinchers then argued that the evidence offered at trial was sufficient to support the trial

court’s gateway decision related to the risk-utility analysis as well as the jury’s ultimate

verdict. The Tinchers also responded that the Third Restatement was not applicable in

Pennsylvania and that, until this Court adopts the Third Restatement, the governing law

remains the Second Restatement.        Moreover, the Tinchers asserted that the Third

Circuit’s prediction that this Court would eventually adopt the Third Restatement is

premature and unwarranted, citing the Superior Court decisions in Gaudio, supra, and

French v. Commonwealth Associates, 980 A.2d 623 (Pa. Super. 2009). Appellees’ Brief

in Opposition to Motion for Post-Trial Relief, 3/9/2011, at 2-15. At oral argument on the

post-trial motion, the parties offered similar arguments focusing on the fireworthiness

doctrine. Omega Flex noted that the case was appropriate for application of the Third

Restatement and emphasized the claims of jury confusion, but agreed not to press

arguments relating to the adoption of the Third Restatement at the trial court level. N.T.,

3/11/2011, at 9-10; 39-43. The trial court denied the motion. On June 2, 2011, the trial

court entered judgment on the verdict, in the amount of $1,028,231.90.

       Omega Flex appealed the judgment to the Superior Court.              The trial court

ordered Omega Flex to file a concise statement of errors complained of on appeal.

Order, 6/17/2011 (per curiam) (citing Pa.R.A.P. 1925(b)). In its Rule 1925(b) statement,

Omega Flex raised related claims of error, in relevant part, that the evidence introduced

at trial was insufficient to prove claims of strict liability under the Second and Third

Restatements; and that the jury should have been charged and offered a verdict form

premised upon the Third Restatement or the related theory of fireworthiness /

crashworthiness.




                                     [J-80-2013] - 14
       In the post-trial relief and Rule 1925(a) opinions, the trial court rejected Omega

Flex’s arguments. The trial court found no error in declining to apply and instruct the

jury on the Third Restatement, reasoning that this Court had yet to adopt that iteration of

tort law to replace the Second Restatement. The trial court noted that, while Omega

Flex “may have the right to advance on appeal to our Supreme Court that it should

adopt the [Third Restatement], under current law, [the Tinchers] bore no burden to

prove a safer alternate design existed in accordance with the latter standard.” Trial

Court Op., 8/5/2011, at 11.

       In addition, the trial court explained that a “fireworthiness” instruction -- as an

extension of the “crashworthiness” doctrine, requiring “a more rigorous standard of proof

than the usual [Second Restatement] claim,” was not appropriate either, because

TracPipe had been employed for its intended use. According to the trial court, the

Tinchers’ case did not relate to how the TracPipe performed during the fire, as in

General Services; rather, the defect in the TracPipe they pursued was the proximate

cause of the Tinchers’ injuries. The trial court held that the trial court rather than the

jury properly decided the question of a feasible alternative design, and that the Tinchers

had carried their burden of proof.

       The parties offered arguments in their briefing to the Superior Court on issues

similar to those raised in the post-trial motion and Rule 1925(b) statement. Relating to

the Third Restatement, Omega Flex acknowledged that decisions of this Court bound

the lower court, but offered that this case would be a fitting vehicle for this Court to

revisit strict liability standards.   According to Omega Flex, the Third Restatement

expressly incorporates foreseeability standards into the strict liability analysis, and

requires a plaintiff to establish the existence of a reasonable alternative design for the

factfinder.   The trial court, Omega Flex argued, following existing decisional law,




                                       [J-80-2013] - 15
instructed the jury inadequately, noting in particular that the Tinchers were not “required

to prove the existence of a feasible alternative design to prevail on [their] strict-liability

claim.” Omega Flex claimed that the trial court erred in denying its motion for judgment

notwithstanding the verdict premised upon error in instructing the jury, and requested a

new trial on this basis. Appellant’s Super. Ct. Brief at 33-36. The Tinchers responded

that Omega Flex’s arguments relating to the Third Restatement have no legal support.

According to the Tinchers, the Second Restatement and its derivative decisional law

remains the law in Pennsylvania, and this Court rejected moving to the Third

Restatement on several occasions, including after the U.S. Court of Appeals for the

Third Circuit predicted its adoption.

       In September 2012, the Superior Court affirmed the judgment, among other

things holding that the trial court did not err in declining to adopt the Third Restatement.

The court also rejected Omega Flex’s claim of error premised upon the fireworthiness

theory, concluding that although the occurrence of lightning was arguably random and

infrequent, lightning is a naturally occurring phenomenon outside the control of the

Tinchers, who were using the product for its intended use. As a result, the court held

that the Tinchers’ claims implicated notions of strict liability, and the Tinchers had

carried their burden of proof under the Second Restatement and Azzarello. Moreover,

the court concluded that it was obligated to follow Supreme Court precedent, which

remained premised upon the Second Restatement, following this Court’s then-recent

decision in Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). The panel

explained that the trial court did not err in denying Omega Flex’s request to proceed in

accordance with the Third Restatement because lower courts have no authority to

disapprove Supreme Court precedent.




                                        [J-80-2013] - 16
        Omega Flex filed a petition for allowance of appeal, which this Court granted,

limited to the following issue:

                Whether this Court should replace the strict liability analysis
                of Section 402A of the Second Restatement with the
                analysis of the Third Restatement.
In addition, the parties were directed to brief the question of whether, if the Court were

to adopt the Third Restatement, that holding should be applied prospectively or

retroactively. Tincher v. Omega Flex, Inc., 64 A.3d 626 (Pa. 2013) (per curiam) (citing

Bugosh v. I.U. North America, Inc., 971 A.2d 1228, 1242-43 (Pa. 2009) (Saylor, J.,

dissenting, joined by Castille, C.J.)).



                                     II.       Arguments

        Omega Flex suggests an affirmative answer to the question accepted on appeal,

and further argues that this Court should disapprove the decision in Azzarello, and

abandon the Second Restatement articulation of the law of strict liability in Pennsylvania

in favor of the approach in the Third Restatement. The Tinchers agree that Azzarello

was wrongly decided but argue in favor of otherwise retaining the principles of liability of

the Second Restatement.

        Omega Flex begins by noting that Pennsylvania recognized strict liability in 1966.

Appellant’s Brief at 16 (citing Webb v. Zern, 220 A.2d 853 (Pa. 1966); RESTATEMENT

(2D)   OF   TORTS § 402A).    According to Omega Flex, the Second Restatement was

“focused” on allegations of manufacturing defects rather than design defects and did not

address the latter “meaningfully, if at all.”         Nevertheless, Omega Flex recounts,

Pennsylvania and other jurisdictions have applied the Second Restatement articulation

to design defects.        Omega Flex states that early applications of the Second

Restatement in Pennsylvania called for a cost-benefit analysis to determine whether the



                                          [J-80-2013] - 17
product, as designed, was defective or unreasonably dangerous; this approach “was

squarely in the mainstream of American tort law.” But, in 1978, according to Omega

Flex, the decision in Azzarello altered the legal landscape of products liability in

Pennsylvania by divorcing products strict liability from principles of negligence, and by

directing the trial court -- rather than the jury -- to make the only determination, upon a

lower burden of proof, regarding the defectiveness / dangerousness of the product.

       Omega Flex argues that Azzarello is theoretically unsound and unworkable in

practice, suggesting that we should disapprove the decision.           Initially, Omega Flex

claims that a core principle familiar in negligence law -- reasonableness -- inherently

infuses strict liability law: a product is defective only if “unreasonably” dangerous.

Omega Flex explains that a manufacturer is not the insurer of the consumer for any

injury caused by its product and may be held liable only if the product is “defective.” As

a practical matter, according to Omega Flex, a design is not defective “in the abstract,”

as a function of the injury caused a particular plaintiff, but as a function of its risks and

utilities. Omega Flex emphasizes that any product may cause injury, yet not every

product is “defective” as that concept is properly understood in the law of strict liability --

of note are inherently dangerous products such as knives and lighters. On this premise,

Omega Flex suggests that the risk-utility calculus is essentially a matter of whether the

manufacturer departed from the proper and reasonable standards of care.                    “To

condemn a design for being unreasonably dangerous is inescapably to condemn the

designer for having been negligent.”          Appellant’s Brief at 29 (citing James A.

Henderson, Jr. and Aaron D. Twerski, ACHIEVING A CONSENSUS           ON   DEFECTIVE PRODUCT

DESIGN, 83 Cornell L. Rev. 867, 919 (1998)). From this perspective, Omega Flex




                                      [J-80-2013] - 18
argues, the conceptual wall of separation between strict liability and negligence initially

articulated by Azzarello has “no practical significance.”3

       Omega Flex notes that the Azzarello Court did not purport to depart from the

Second Restatement principle that a defective design analysis is an inquiry into the care

exercised by the manufacturer; the decision did not require proof of a defect separate

from proof that the product was unreasonably dangerous. The difficulty, according to

Omega Flex, is that the Court’s decision nevertheless prohibited the trial court from

submitting to the jury the factual question of whether the product was unreasonably

dangerous. Omega Flex notes that, per Azzarello, juries are instructed to determine

whether a product is defective unmoored from any inquiry into the product’s risks and

utilities and the reasonableness of the manufacturer’s conduct. Omega Flex suggests

that the Azzarello approach creates an illusory separation between a product defect and

a manufacturer’s conduct, which constitutes a departure from the Second Restatement

the Court was purporting to follow.

       Additionally, Omega Flex criticizes the Azzarello decision for relegating the risk-

utility inquiry to a threshold matter of whether the defect issue may be submitted to the

jury, and placing that inquiry into the hands of the trial judge. Omega Flex suggests that

the Azzarello decision thereby lowers the burden on the plaintiff to prove that a product


3
       Omega Flex surmises that the conceptual separation and the related idea that
the notion of “foreseeability” has no role in a strict liability case framed the parties’
dispute as one over whether exposure to lightning was an intended condition of using
the TracPipe System. The Superior Court, according to Omega Flex, focused instead
on whether the Tinchers could have avoided the harm rather than on the product,
necessarily injecting negligence concepts into the strict liability inquiry. Premised upon
these descriptions, Omega Flex emphasizes that this case reflects an “overlap” of
negligence principles with the proper application of strict liability law. Appellant’s Brief
at 41.




                                      [J-80-2013] - 19
is unreasonably dangerous (and, as a result, is defective). “The jury does not balance

the risk-utility factors, even though the judge has only done so as a threshold matter.”

Id. at 30-31 (quoting Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 538-39 (3d

Cir. 2007)).    Omega Flex argues that Azzarello creates an anomalous process:

Azzarello requires a risk-utility analysis dispositive of the claim, but prevents the jury-

factfinder from reviewing the relevant evidence and, in essence, does not permit either

the trial court or the jury to actually decide whether a product is unreasonably

dangerous because its risks outweigh its benefits. “[T]rial courts are permitted to decide

only whether the evidence is sufficient to submit th[e cost-benefit] issue to the jury, but

they are prohibited from actually submitting it.” Id. at 31 (quoting John M. Thomas,

DEFINING “DESIGN DEFECT”         IN   PENNSYLVANIA: RECONCILING AZZARELLO         AND   THE

RESTATEMENT (THIRD)     OF   TORTS, 71 Temp. L. Rev. 217, 232 (1998)).4 Omega Flex

notes that this process is unique to Pennsylvania and is not supported by any reasoned

authority cited in Azzarello.

       Omega Flex also comments upon the practical implications of Azzarello.

According to Omega Flex, the central concept that negligence principles are wholly

separate from strict liability principles effectively generated minimalistic and circular

instructions for juries “which lack essential guidance concerning the key conception of

product defect.” Id. at 34 (quoting Schmidt v. Boardman, 11 A.3d 924, 940 (Pa. 2011)).

In this case, Omega Flex notes, the trial court offered the standard Azzarello charge,

which instructed the jury to decide whether the TracPipe System was defective without


4
       Omega Flex notes that this approach has the collateral effect of rendering laws,
regulations, and industry standards irrelevant to the risk-utility inquiry, with deleterious
and unpredictable consequences for plaintiffs and defendants. Omega Flex does not
develop this assertion and, as a result, we do not address it in any detail.




                                       [J-80-2013] - 20
any reference to whether the product was unreasonably dangerous.             Omega Flex

argues that, absent a determination of whether the risk was unreasonable, the jury may

well have found that any risk -- including a justified risk -- rendered the TracPipe System

defective. The Azzarello instruction, Omega Flex claims, does not offer the jury any

guidance as to the critical concepts of defect and whether the product is “safe for its

intended use.” Moreover, Omega Flex argues that the use of the term of art “guarantor”

in relation to the product, without any explanation of its meaning, misleads the jury into

holding manufacturers absolutely liable for any injuries caused by the product. Omega

Flex further offers that the jury’s verdict in its favor on the negligence claim here

suggests confusion of the jury with respect to the standards applicable to the strict

liability claim. The Azzarello instructions, Omega Flex emphasizes, have “profoundly

unfair consequences” to a manufacturer against whom design defect claims are made.

Id. at 35-38.

       Premised upon its criticism, Omega Flex advocates that this Court should

disapprove the Azzarello decision. Omega Flex acknowledges the principle of stare

decisis but argues that the Court is not bound to perpetuate the application of unsound

and unworkable precedent.       Appellant’s Brief at 41-42 (citing, inter alia, Stilp v.

Commonwealth, 905 A.2d 918, 966-67 (Pa. 2006); Hack v. Hack, 433 A.2d 859, 867

(Pa. 1981)). According to Omega Flex, the Azzarello limitation on the jury’s role, and

the artificial distinction between negligence and strict liability, have been controversial

from the beginning, have no real reasoned support or practical importance, and have

remained unique to Pennsylvania. Omega Flex notes that individual Justices of this

Court have already suggested that Azzarello should be disapproved. Id. at 44 (citing

Bugosh, 971 A.2d at 1234 (Saylor, J., dissenting, joined by Castille, C.J.), Berrier v.

Simplicity Manuf., Inc., 959 A.2d 900, 901-02 (Pa. 2008) (Saylor, J., concurring, joined




                                     [J-80-2013] - 21
by Castille, C.J.); Phillips, 841 A.2d at 1012-21 (Saylor, J., concurring, joined by Castille

and Eakin, JJ.)).

       Next, Omega Flex suggests that, in addition to disapproving Azzarello, the Court

should adopt the approach to strict liability reflected in the Third Restatement. Omega

Flex recommends the Third Restatement on the grounds that its articulation of the law is

specifically intended to address design defects and represents the current mainstream

view on the topic. According to Omega Flex, the Third Restatement was drafted by “two

prominent product-liability scholars,” Professors James Henderson and Aaron Twerski,

and was reviewed in a comprehensive process. Appellant’s Brief at 45. Omega Flex

describes the Third Restatement as requiring, in design defect cases, a balancing of

risks and benefits by the finder of fact, upon consideration of a broad range of factors.

The critical distinction in approaches, as described by Omega Flex, is that “the plaintiff

could not simply criticize the existing design; instead, the plaintiff would be required to

prove that the manufacturer could and should have adopted a reasonable alternative

design.” Id. at 47 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2(b) cmt. d).

Omega Flex argues that the Third Restatement approach is already the accepted

practice in “crashworthiness” cases (as an exception to Azzarello) and is “neither

insurmountable nor unduly onerous,” permitting plaintiffs to prevail “regularly” in such

cases. Id. (citing Harsh v. Petroll, 887 A.2d 209, 211 (Pa. 2005)). Citing cases from

five states, Omega Flex claims that the Third Restatement has been “widely embraced”

in other jurisdictions. Id. at 48 (citing Branham v. Ford Motor Co., 701 S.E.2d 5, 16

(S.C. 2010); Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 169 (Iowa 2002); Williams v.

Bennett, 921 So.2d 1269, 1275 (Miss. 2006); Jones v. NordicTrack, Inc., 550 S.E.2d

101, 103 (Ga. 2001); Ruiz-Guzman v. Amvac Chem. Corp., 7 P.3d 795, 800 (Wash.

2000)). According to Omega Flex, the Court has the opportunity in this case “to return




                                      [J-80-2013] - 22
Pennsylvania to the mainstream of American tort law in strict-liability design-defect

cases” by embracing the Third Restatement’s “closely reasoned and balanced

approach.” Id. at 48-49 (quoting Phillips and Bugosh, supra). Premised upon these

arguments, Omega Flex requests a new trial on the strict liability claim conducted under

the Third Restatement approach.

       The Tinchers respond that the decision of the Superior Court should be affirmed,

and strict liability actions in Pennsylvania should continue to be governed by the Second

Restatement.5 According to the Tinchers, establishing the liability of a manufacturer on

5
       Initially, the Tinchers suggest that the “Court should decline consideration of the
issue [on which we granted allowance of appeal], as it is not outcome determinative,
and affirm the lower court ruling.” According to the Tinchers, the circumstances of this
particular case required the Tinchers to offer evidence at trial that was sufficient to meet
the requirements of the Second Restatement and Azzarello, as well as the Third
Restatement. The Tinchers argue that, as a result, “[l]iability for the defective design of
the TracPipe product” -- and the jury’s verdict -- “is appropriate under either
Restatement standard.” The Tinchers claim that a judicial determination of the issue
upon which we granted appeal would be an advisory opinion with no legal effect.
Appellees’ Brief at 11-17.

       The suggested approach is unpersuasive. The case was tried as it was tried,
which was according to the Second Restatement and Azzarello. This Court granted
allowance of appeal to address an issue of law, properly preserved and presented by
Omega Flex, regarding the very manner in which the legal theories and options were
apportioned between court and jury, and then the issues as posed to the jury. The
question of whether the evidence was sufficient to support the jury’s verdict is outside
the scope of the appeal.

        Moreover, even if sufficiency of the evidence were implicated and was disputed
on appeal, this Court does not test the sufficiency of the evidence in the abstract: the
Court would have to engage the manner in which the Tinchers articulated their claims,
the theory of strict liability they pursued and, most importantly, the manner in which the
trial court responded and actually instructed the jury on the strict liability claim. A trial
court’s charge defines the legal universe in which a jury operates for the purposes of the
verdict. See Commonwealth v. Graham, 9 A.3d 196, 201-02 & n.9 (Pa. 2010). Yet, in
this argument, the Tinchers invite the Court to address whether the principles of the
Third Restatement (a theory outside the legal universe of the jury’s task here) was an
(continuedQ)

                                      [J-80-2013] - 23
a strict liability theory is a two-step process in Pennsylvania: (1) the trial court

determines as a threshold matter whether a product is unreasonably dangerous and, as

a result, whether strict liability should be submitted to the jury; and (2) the jury-factfinder

decides whether the product at issue lacks any element necessary to make it safe for its

intended use -- or, is defective. The determination of whether a product is unreasonably

dangerous implicates a balancing of risks and utilities. Appellees’ Brief at 19-20 (citing

Azzarello, 391 A.2d at 1026).

       The Tinchers posit that concepts of negligence have no place in strict liability

actions, explaining that strict liability is premised upon a social policy of holding

manufacturers responsible for casting a defective product into the stream of commerce.

Strict liability, the Tinchers argue, reflects a change in social policy from the principle of

caveat emptor -- buyer beware -- to the view that a supplier of products is a guarantor of

its products’ safety.    The Tinchers suggest that, in the modern marketplace, the

emphasis is on protecting consumers and shifting the risk of loss for injury onto

suppliers of products because suppliers are in a better position to absorb or distribute

the loss as a cost of doing business. Id. at 21 (quoting Azzarello, supra). According to

the Tinchers, twenty-five years after Azzarello, the fundamental reasons for retaining a

separation between negligence and strict liability remain, and the Second Restatement

strikes the appropriate balance. The Second Restatement, the Tinchers argue, “makes

it clear that the imposition of strict liability for a product defect is not affected by the fact


(Qcontinued)
appropriate basis for that jury’s verdict. It would not be. See Schmidt, 11 A.3d at 944
(“The bare litmus of sufficiency review cannot correct a fundamental error in the
instructions to lay jurors concerning just what it is that they are deciding.”). Accord
Appellant’s Reply Brief at 5. Accordingly, we reject the Tinchers’ invitation to summarily
affirm the decision of the Superior Court on this ground.




                                       [J-80-2013] - 24
that the manufacturer or other supplier has exercised ‘all possible care’”; in the

Tinchers’ view, the compartmentalizing of negligence and strict liability is necessary to

ensure that manufacturers are held responsible for their products regardless of fault. Id.

at 22 (quoting Phillips, supra).

       According to the Tinchers, the decision in Azzarello “represents strict liability in

its purest form” because it places the emphasis on scrutinizing the product rather than

the manufacturer’s conduct. The Tinchers note that a manufacturer’s liability is limited

to defective products. The Tinchers claim that “defect” is difficult to define: the critical

consideration is whether the product is unreasonably dangerous.           According to the

Tinchers, because the question of unreasonable dangerousness “could easily be

confused by a jury as importing concepts of negligence into a strict liability analysis,” the

Azzarello Court directed that decision to the trial court rather than to the jury. The

decision, the Tinchers explain, implicates the balancing of social policies “best

performed by the [trial] court in making a determination [of] law” and acting as a gate-

keeper to prevent claims regarding certain products from reaching the jury.

       The Tinchers argue that the Third Restatement abandons a pure strict liability

analysis in favor of negligence principles.       According to the Tinchers, the Third

Restatement explicitly provides for consideration of “foreseeable risks of harm proposed

by the product,” which is a negligence standard. The Tinchers suggest that the Third

Restatement is not a “natural” and “modest” evolution of strict liability but a “calamitous”

displacement of the social policy established by forty-seven years of Second

Restatement precedent. The Tinchers argue that “[s]uch a radical departure . . . is not

prudent or necessary.”

       The Tinchers also note that a “clear minority” of states have adopted the Third

Restatement: one state -- Iowa – expressly, and several others have adopted single




                                      [J-80-2013] - 25
sections of the Restatement or have used the doctrine as guidance for the formulation

of the common law. Appellees’ Brief at 28 (citing Wright v. Brooke Group Ltd., 652

N.W.2d 159 (Iowa 2002)). Other states, according to the Tinchers, have considered

and explicitly declined to adopt the Third Restatement. As example, the Tinchers note

that the Supreme Court of Illinois rejected the invitation to adopt the Third Restatement

on the ground that any change that broadly affects public policy was best left to the

legislature. Id. at 29 (citing Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 346 (Ill.

2008)). In Connecticut, the Tinchers state, the Supreme Court explained that the Third

Restatement places an undue burden of proof upon plaintiffs that might preclude valid

claims: a product may be defective and unreasonably dangerous to the user, although

no feasible alternative design may be available, and a jury may infer a defect from the

evidence without the necessity of expert testimony. Id. 29-30 (citing Potter v. Chicago

Pneumatic Tool Co., 694 A.2d 1319, 1332 (Conn. 1997); TRW Vehicle Safety Sys., Inc.

v. Moore, 936 N.E.2d 201 (Ind. 2010); Halliday v. Sturm, Ruger & Co., 792 A.2d 1145

(Md. 2002); Vautour v. Body Masters Sports Indus., Inc., 784 A.2d 1178 (N.H. 2001);

Green v. Smith & Nephew AHP, Inc., 629 N.W.2d 727 (Wis. 2001); Delaney v. Deere &

Co., 999 P.2d 930 (Kan. 2000); Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo.

1999); Sternhagen v. Dow Co., 935 P.2d 1139 (Mont. 1997)).

       The Tinchers claim that Omega Flex erroneously relies upon cases implicating

the “crashworthiness” exception to general products liability theory under the Second

Restatement.    This exception, according to the Tinchers, is accepted as such in

“virtually every [U.S.] jurisdiction” and is typically applied to cases in which an alleged

defect did not cause the automobile accident or initial impact, but served to increase the

severity of the injury. The Tinchers argue that “crashworthiness” doctrine cases offer no

indication that a jurisdiction has embraced the alternative design requirements of the




                                     [J-80-2013] - 26
Third Restatement. Appellees’ Brief at 31 (citing Patrick Lavelle, CRASHING INTO PROOF

OF A   REASONABLE ALTERNATIVE DESIGN; THE FALLACY        OF THE   RESTATEMENT (THIRD)   OF

TORTS: PRODUCTS LIABILITY, 38 Duq. L. Rev. 1059, 1098-99 (2000)).            The Tinchers

maintain that any suggestion -- including in the reporters’ commentary to Section 2(b) --

that the Third Restatement standards are widely accepted is inaccurate and misleading

because it is simply premised upon cases addressing the crashworthiness doctrine

exception. Id. at 32 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2(b) cmt.

d & nn. II-A, II-C (1997)).

        Finally, the Tinchers argue that the Third Restatement would accomplish a

“radical departure” from existing public policy because it would impose “an undue

hardship on plaintiffs in the pursuit of meritorious claims.” According to the Tinchers,

the Third Restatement shifts the emphasis from the existing product to speculation of

what similar product could have been designed.           In the Tinchers’ view, the Third

Restatement represents “an instrument of tort reform” rather than an articulation of

existing law, which will impose a prohibitive cost on plaintiffs and counsel to produce

alternative designs in the pursuit of otherwise meritorious claims. Id. at 33-34 (citing

Gary Wilson et al, THE FUTURE   OF   PRODUCTS LIABILITY   IN   AMERICA, 27 Wm. Mitchell L.

Rev. 85, 99-100 (2000); Frank J. Vandall and Joshua F. Vandall, A CALL             FOR AN

ACCURATE RESTATEMENT (THIRD)     OF   TORTS: DESIGN DEFECT, 33 U. Mem. L. Rev. 909,

923 (2003)).     The Third Restatement, according to the Tinchers, is a boon to

manufacturers by placing at a “tremendous disadvantage” injured consumers who

would necessarily have to become experts and seek to redesign the product that

caused the injury; the cost of this exercise may exceed the benefit of a recovery.

Additionally, the Tinchers argue that the attendant costs of representing an injured

plaintiff in a Third Restatement jurisdiction would discourage counsel from representing




                                      [J-80-2013] - 27
injured consumers. The Tinchers suggest that application of the Third Restatement

would vitiate the public policy upon which products liability law is premised, i.e., of

holding manufacturers liable for defects in products placed in the stream of commerce;

manufacturers are in a better position to absorb the costs of injuries than are individual

consumers.

       In an alternative argument, the Tinchers suggest that the Court could disapprove

Azzarello but continue to apply the Second Restatement rather than the Third

Restatement articulation of the law. The Tinchers note that this resolution of the matter

would protect the social policies underlying products liability yet remove any difficulties

caused by the decision in Azzarello.      See Appellees’ Brief at 41 n.16.       Ultimately,

however, the Tinchers ask the Court to affirm the decision of the Superior Court.

       In reply, Omega Flex reiterates its position that the differences between the

Second Restatement and the Third Restatement are modest; the difficulty with

Pennsylvania’s approach to products liability instead results from the application of

Azzarello. Omega Flex suggests that the Tinchers do not oppose a disposition of this

appeal in which the Court would disapprove Azzarello, although the parties disagree

whether the Court should go further and adopt the Third Restatement. With regard to

the Third Restatement, Omega Flex argues that the “reasonable alternative design”

element of proof does not erect the types of insurmountable barriers to meritorious

claims that the Tinchers portray: plaintiffs may adduce proof of existing products (i.e.,

predecessor products or competitor products) or no expert proof at all if the feasibility of

an alternative design is obvious and understandable to lay persons. Appellant’s Reply

Brief at 20 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f). Omega

Flex presents the Third Restatement as a refinement of its predecessor with specific

provisions for design defects, whose approach has already been accepted in the form of




                                     [J-80-2013] - 28
numerous exceptions to the general Second Restatement rules. Moreover, Omega

Flex claims that, contrary to the Tinchers’ representations, adherence to the Second

Restatement view has become the minority position. Omega Flex concludes that the

case should be retried before a jury properly instructed, and the instruction should be

premised upon the Third Restatement.



                                    III.   Analysis

                      A.     The Scope and Standard of Review

      As a preliminary matter, we observe that the parties pose and argue a seemingly

pristine question of law, little dependent on the facts of record, primarily regarding

whether this Court should replace the strict liability analysis of the Second Restatement

with the analysis of the Third Restatement. In part, this is a function of how the issues

were presented to the lower courts and of the lower courts’ recognition that the question

of whether to “move” to the Third Restatement has been a matter of debate and

speculation in interested legal circles and in federal court cases (as well as in separate

opinions in this Court); all recognize that, as a common law matter, the decision of

whether to adopt principles from the Third Restatement would ultimately be made by

this Court. As a result of this background circumstance, the lower courts offered no

principled assessment or practical perspective regarding the core, and strictly legal,

positions now presented by the parties to this Court. While the importance of lower

courts’ analysis of a proposed change in the law as applied to the facts of a particular

case and the centrality of such analysis to the development of the common law cannot

be understated, we note, nevertheless, that there is no suggestion by either party that

the issue so presented was waived. See Scampone v. Highland Park Care Center,

LLC, 57 A.3d 582, 604-05 (Pa. 2012) (judicial determinations to be read against facts);




                                    [J-80-2013] - 29
Schmidt, 11 A.3d at 941-42 (listing considerations relevant on appeal to presentation

and preservation of challenges to prevailing precedent). Accordingly, we proceed to a

review of the merits of the parties’ dispute.

       Properly framed, then, the question before the Court is whether Omega Flex was

entitled to relief, in the form of judgment notwithstanding the verdict or a new trial,

premised upon its argument that the jury should have been instructed on the law

represented by the Third Restatement. The relevant facts are not in dispute and the

issue posed is one of law. Accordingly, our review of the Superior Court’s decision is

plenary and de novo. Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d

468, 474-75 (Pa. 2011).

       This Court has explained that, “[w]hen a court instructs the jury, the objective is

to explain to the jury how it should approach its task and the factors it should consider in

reaching its verdict.” On appeal, this Court examines jury instructions to determine

whether the trial court abused its discretion or offered an inaccurate statement of law

controlling the outcome of the case. A jury charge is adequate “unless the issues are

not made clear, the jury was misled by the instructions, or there was an omission from

the charge amounting to a fundamental error.” Commonwealth v. Chambers, 980 A.2d

35, 49-50 (Pa. 2009); see also Price v. Guy, 735 A.2d 668, 670 (Pa. 1999). This Court

will afford a new trial if an erroneous jury instruction amounted to a fundamental error or

the record is insufficient to determine whether the error affected the verdict. See, e.g.,

Price, 735 A.2d at 672.

       Meanwhile, greater relief in the form of a judgment notwithstanding the verdict is

appropriate only if the movant is entitled to judgment as a matter of law, i.e., if the

evidence presented at trial was such that no two reasonable minds could disagree that

the verdict should be in favor of the movant. Degenhardt v. Dillon Co., 669 A.2d 946,




                                      [J-80-2013] - 30
950 (Pa. 1996) (citing Boettger v. Miklich, 633 A.2d 1146, 1148 n.2 (Pa. 1993)). An

award of judgment notwithstanding the verdict “is appropriate only if, reading the record

in the light most favorable to [the verdict winner], and affording [the verdict winner] the

benefit of all reasonable inferences, we would conclude that there is insufficient

competent evidence to sustain the verdict.” General Services, 898 A.2d at 604.

       The parties’ present dispute implicates foundational notions in the law of strict

liability. To decide the dispute, we necessarily address: (1) what evidence is sufficient

under Pennsylvania law to prove a claim of strict liability in tort; (2) the proper role of the

trial judge; and (3) the appropriate manner of instructing the jury. As we will explain,

these questions can be further complicated by the particulars of the tort, or the product,

at issue.

       Furthermore, central to the parties’ dispute are questions of whether this Court

should disapprove the 1978 decision in Azzarello, and whether the Court should

abandon the Second Restatement articulation of the strict liability cause of action and,

in its place, “adopt” as the law of Pennsylvania the Third Restatement formulation of

strict liability in tort. These questions implicate separate foundational principles of stare

decisis and judicial restraint.

       The doctrine of stare decisis “commands judicial respect for prior decisions of

this Court and the legal rules contained in those decisions.” Stilp, 905 A.2d at 954 n.31;

see also Kendrick v. District Attorney of Philadelphia County, 916 A.2d 529, 539 (Pa.

2007). The Court honors the stare decisis doctrine to ensure “evenhanded, predictable,

and consistent development of legal principles, foster[] reliance on judicial decisions,

and contribute[] to the actual and perceived integrity of the judicial process.” Stilp, 905

A.2d at 954 n.31. But, the Court’s general faithfulness to precedent is not sufficient

justification to buttress judicial decisions proven wrong in principle or “which are




                                      [J-80-2013] - 31
unsuited to modern experience and which no longer adequately serve the interests of

justice.” In re Carney, 79 A.3d 490, 505 (Pa. 2013); Ayala v. Philadelphia Bd. of Public

Ed., 305 A.2d 877, 888 (Pa. 1973) (quoting Griffith v. United Air Lines, Inc., 203 A.2d

796, 806 (Pa. 1964)). In this sense, we have long recognized that the doctrine of stare

decisis is not a vehicle for perpetuating error, but “a legal concept which responds to the

demands of justice and, thus, permits the orderly growth processes of the law to

flourish.” Pa. State Ass’n of County Comm’rs v. Commonwealth, 52 A.3d 1213, 1230

(Pa. 2012) (quoting Buckwalter v. Bor. of Phoenixville, 985 A.2d 728, 730-31 (Pa.

2009)). Common law permits adjustment and development in the law, recognizing that

precedent is not infallible and judicial honesty demands corrective action in appropriate

cases.    See Ayala, 305 A.2d at 888 (quoting Olin Mathieson C. Corp. v. White C.

Stores, 199 A.2d 266, 268 (Pa. 1964)).

         We have recently stressed in multiple cases that the common law “develops

incrementally, within the confines of the circumstances of cases as they come before

the Court.” Scampone, 57 A.3d at 604 (quoting Maloney v. Valley Med. Facilities, Inc.,

984 A.2d 478, 489–90 (Pa. 2009)). Causes of action at common law evolve through

either directly applicable decisional law or by analogy and distinction. Id.; accord City of

Philadelphia v. Cumberland County Bd. of Assessment Appeals, 81 A.3d 24, 54 (Pa.

2013). Among the duties of courts is “to give efficacy to the law . . . and though they

cannot make laws, they may mould the forms of the ancient laws to the exigency of the

new case.” Reed v. Garvin’s Executors, 1821 WL 1898 at *7 (Pa. 1821). Notably, its

equitable powers afford the Court the authority to modify the common law forms of

action to the right involved, rather than limiting the authority to testing the right by the

forms of action. See Kase v. Kase, 34 Pa. 128, 1859 WL 8779 at *4 (Pa. 1859). See

also PA. CONST. art. V, § 10(c) (Supreme Court has power “to prescribe general rules




                                     [J-80-2013] - 32
governing practice, procedure and the conduct of all courts . . . if such rules are

consistent with this Constitution and neither abridge, enlarge nor modify the substantive

rights of any litigant. . . .”); e.g., Pa.R.C.P. No. 1001(b) (“There shall be a civil action in

which “shall be brought all claims for relief heretofore asserted in (1) the action for

assumpsit, (2) the action of trespass, and (3) the action in equity”).

       Reliance upon the inherent and necessary flexibility of common law rules does

not provide, however, the dispositive answer to the question of whether “adoption” of

the American Law Institute’s new formulation for tort law is appropriate or advisable.

This Court has grown more careful over the years when presented with invitations to

issue broad-based pronouncements in areas where it is apparent that such

pronouncements are better suited to the information-gathering and give-and-take

balancing of competing concerns available in the legislative arena. Thus, for example, it

is difficult to imagine a modern court simply adopting something so broad-based and

legislative in character as an outside organization’s Restatement of the Law, even if it is

the product of an esteemed organization.         That being said, the fact is that, in this

particular area of the law, the Court has played a major developmental role; and when

an issue is properly joined in a case, we are of course duty-bound to resolution and

explication of the matter. And, in this process, while the line of demarcation between

advancing or correcting the common law -- or, perhaps, accounting for nuance not

advanced, perceived, or predicted in the crucible of prior cases -- and a foray into

legislative policy-making is a gray area, some principles governing decision are readily

apparent.

       The first principle applies generally and involves the policy-making authority of

the General Assembly. In considering whether a long-established common law rule is

out of step with modern experience, we assume that the General Assembly is aware of




                                      [J-80-2013] - 33
the rule, which, if unchanged by legislation, presumably reflects continued legislative

policy. See Everhart v. PMA Ins. Group, 938 A.2d 301, 307 (Pa. 2007). Of course,

“[t]here is not a rule of the common law in force today that has not evolved from some

earlier rule of common law, gradually in some instances, more suddenly in others,

leaving the common law of today when compared with the common law of centuries ago

as different as day is from night.” Hack, 433 A.2d at 868-69. Change is more often

gradual because a court seldom is in possession of sufficient information concerning all

relevant factors to justify support of a rule of general application inconsistent with the

existing common law formulation of the tort.        See Official Comm. of Unsecured

Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers,

LLP, 989 A.2d 313, 332-33 (Pa. 2010). “[C]ommon-law decision-making is subject to

inherent limitations, as it is grounded in records of individual cases and the advocacy by

the parties shaped by those records. Unlike the legislative process, the adjudicatory

process is structured to cast a narrow focus on matters framed by litigants before the

Court in a highly directed fashion.” Id. Consistency with the general rule permits the

Court to benefit from the honed sensibilities and accumulated wisdom of the rule’s

application in a myriad of individual cases.

       Two other considerations are specific to the nature and recognized role of a

“Restatement” of law in the development of Pennsylvania common law. Restatements

of law published by the American Law Institute purport to offer a synthesis of American

common law, which articulates the reasoned, mainstream, modern consensus on

principles of broad application intended to govern large numbers of cases. Scampone,

57 A.3d at 606; see also Coyle v. Richardson-Merrell, Inc., 584 A.2d 1383, 1385 (Pa.




                                     [J-80-2013] - 34
1991).6 Consistent with its adjudicative rather than policy-making role, the Court has

“adopted” or deemed sections of a restatement a proper statement of Pennsylvania law

if the cause of action and its contours are consistent with the nature of the tort and

Pennsylvania’s traditional common law formulation. See, e.g., Scampone, 57 A.3d at

606; Walnut Street Assocs., 20 A.3d at 478-79; Bilt-Rite Contractors, Inc. v. The

Architectural Studio, 866 A.2d 270, 285 (Pa. 2005). In this sense, the adoption of a

restatement formulation intended to advance the law cannot be so unmoored from

existing common law and produce such a policy shift that it amounts in actuality or

public perception to a derogation of legislative authority, and the concomitant

suggestion that such authority is reposed in the Judiciary or in the American Law

Institute.   Consistent with this principle, the Court must generally show restraint in

6
       The Institute is a non-profit organization of 4000 lawyers, judges, and law
professors, established to produce scholarly work to clarify, modernize, and otherwise
improve the law. Among other tasks, the Institute drafts, discusses, revises, and
publishes Restatements of the Law.

       The parties here, and several commentators, have engaged in a debate over
whether the Third Restatement of Torts, Products Liability, does indeed articulate the
modern consensus in the area of strict liability. Some commentators have questioned
whether the reporters of the Third Restatement favored an industry viewpoint in their
task. Compare Henderson, 83 Cornell L. Rev. 867 (reporters defend process of drafting
Third Restatement) with John F. Vargo, THE EMPEROR’S NEW CLOTHES: THE AMERICAN
LAW INSTITUTE ADORNS A “NEW CLOTH” FOR SECTION 402A PRODUCTS LIABILITY DESIGN
DEFECTS -- A SURVEY OF THE STATES REVEALS A DIFFERENT W EAVE, 26 U. Mem. L. Rev.
493 (1996) (criticizing drafting process of Third Restatement, surveying law in fifty
states, and cataloguing several approaches to strict liability). As an institution, this
Court is not particularly equipped to resolve such disputes, and in light of our
disposition, we find it unnecessary to engage the debate. But see, e.g., Halliday v.
Sturm, Ruger & Co., Inc., 792 A.2d 1145, 1159 (Md. 2002) (in light of ongoing
controversy, declining to “cast aside” existing jurisprudence in favor of broad application
of Third Restatement’s risk-utility standard). The fact of the debate, however, is a
reminder of the imperative of judicial modesty in passing upon a request to “adopt” a
Restatement wholesale.




                                     [J-80-2013] - 35
altering existing allocations of risk created by long-tenured common law rules and resist

the temptation of experimentation with untested social policies, especially where the

individual record and the advocacy of the parties in the context of that record offer little

more than abstract justifications. Thus, the Court is not in a position to upend risks and

expectations premised upon broad-based arguments calling for a judgment about

socially acceptable economic incentives; the legislative setting is a preferable forum for

such an endeavor. See City of Philadelphia, 81 A.3d at 55; accord Pegram v. Herdrich,

530 U.S. 211, 221-22 (2000) (“[C]omplicated factfinding and . . . debatable social

judgment are not wisely required of courts unless for some reason resort cannot be had

to the legislative process, with its preferable forum for comprehensive investigations and

judgments of social value. . . .”); Kristen David Adams, THE FOLLY         OF   UNIFORMITY?

LESSONS FROM THE RESTATEMENT MOVEMENT, 33 Hofstra L. Rev. 423 (2004) (assessing

effect of employing restatement as default common law in Virgin Islands).

       Moreover, because the language of a provision of the restatement, even to the

extent it was adopted by the Court verbatim, has not been vetted through the crucible of

the legislative process, a court applying the restatement formulation should betray

awareness that the language of an “adopted” restatement provision is not “considered

controlling in the manner of a statute.”     A given restatement section simply states

principles of the common law, general rules whose validity depends on the reasoning

that supports them. Coyle, 584 A.2d at 1385. As with any other common law rules, the

normative principles of an “adopted” section of a restatement are properly tested

against the facts of each case. “For one thing, it is very difficult for courts to determine

the range of factual circumstances to which a particular rule should apply in light of the

often myriad possibilities”; of particular concern is “the possibility that words or phrases

or sentences may be taken out of context and treated as doctrines.” Maloney, 984 A.2d




                                     [J-80-2013] - 36
at 489–90. In this regard, we underscore the importance of avoiding formulaic reading

of common law principles and “wooden application of abstract principles to

circumstances in which different considerations may pertain.” Scampone, 57 A.3d at

605 (citing Maloney, 984 A.2d at 485-86). Thus, as to any particular claim in a disputed

matter, a court should consider whether the application is logical and serves the

interests of justice, and whether the general principle has been accepted elsewhere.7

“[T]he court always retains the right and the duty to test the reason behind a common

law rule in determining the applicability of such rule to the facts before it. In the face of

contrary arguments as to why the rule should not apply in a given case, it is not enough

to say merely that the rule as stated contains no exceptions.” Coyle, 584 A.2d at 1385.

Stated otherwise, “[w]here the facts of a case demonstrate that the rule outruns the

reason, the court has the power, indeed the obligation, to refuse to apply the rule, a

power for the most part unavailable where the rule is legislatively ordained.” Id.



               B.     Strict Liability in Pennsylvania: the Common Law

       In the arena of strict liability, this Court does not write on a blank slate; the

common law is the starting point of our explication of the conceptual framework for strict


7
        Consideration for whether the general principle has been accepted elsewhere
reflects the understanding that the restatement purports to represent the majority view
on the subject in the United States. See Adams, 33 Hofstra L. Rev. at 443-44. But,
questions remain subject to dispute regarding the “essential nature of the modern
Restatements” and whether uniformity among jurisdictions is necessary and wise. See
generally Vargo, 26 U. Mem. L. Rev. at 515-36 (describing internal criticism of some
that membership of American Law Institute drafting Third Restatement “[wa]s largely
comprised of those who represent[ed] corporate interests” and who “fail[ed] to leave the
client at the door”); and see Adams, 33 Hofstra L. Rev. at 443-44 (offering argument
that “fit” for jurisdiction that shapes common law “is more important than uniformity”
among American jurisdictions).




                                      [J-80-2013] - 37
liability in tort in Pennsylvania. The evolution of strict liability jurisprudence has four

distinct, relevant periods: early cases addressing the evolution of strict liability and the

adoption of the Second Restatement’s articulation of the cause of action; the advent of

Azzarello; post-Azzarello jurisprudence; and recent judicial expressions addressing the

Third Restatement.

       At the outset, we note that disputes over liability for personal and economic harm

caused by products, although perhaps not articulated in those same terms, likely

accompanied the earliest division of labor. Efficiency, specialization, and the evolution

of expertise, separately and as precursors to invention and innovation, were significant

benefits of this division of labor.8    But, the same division of labor, especially in its

increasingly complex permutations, caused a physical and moral separation between

sellers and buyers that inevitably generated disputes. The resolution of these disputes

in English and American jurisdictions over the several centuries created a rich body of

experience-based common sensibilities and wisdom from which the modern principles


8
       David Hume said of the “partition of employments”:

                     When every individual person labours a-part, and only
              for himself, his force is too small to execute any considerable
              work; his labour being employ’d in supplying all his different
              necessities, he never attains a perfection in any particular
              art; and as his force and success are not at all times equal,
              the least failure in either of these particulars must be
              attended with inevitable ruin and misery. Society provides a
              remedy for these three inconveniences. By the conjunction
              of forces, our power is augmented: By the partition of
              employments, our ability [in]creases: And by mutual succor
              we are less expos’d to fortune and accidents. ’Tis by this
              additional force, ability, and security, that society becomes
              advantageous.

David Hume, A Treatise of Human Nature (1739).



                                       [J-80-2013] - 38
of the common law of products liability evolved. Review of decisional law illustrates a

general trend of gradual expansion of civil liability for harm to persons or property; as it

happens, whether a particular development occurred in the context of injury caused by

a product or not, the principles of liability were generally articulated in broad terms

applicable to products. Compare, e.g., Breckbill v. Lancaster Turnpike Co., 3 U.S. 496,

499 (1799) (action for implied assumpsit (i.e., breach of implied contract) cannot be

maintained because corporation can only contract by deed under corporate seal) with

Bank of Columbia v. Patterson’s Administrators, 7 Cranch 299, 306 (U.S. February 05,

1813) (corporation may, without seal and upon parol, enter into contract, express or

implied, for enforcement of which, action may lie); Chestnut Hill & Springhouse Turnpike

Co. v. Rutter, 1818 WL 2109 at *7 (Pa. 1818) (corporation, whose employees cause

injury while acting under its authority, is liable in tort for employees’ negligent or

intentional acts; rejecting argument that, because corporation cannot be authorized by

law to commit tort, corporation can invest no one with power for that purpose and, as

result, is not liable for torts of employees); Appeal of Williams, 47 Pa. 307, 1864 WL

4682 at *2 (Pa. 1864) (Agnew, J.) (common law rule of corporate immunity, premised

upon “the quaint aphorism that a corporation has no soul,” was legal fiction that gave

“place to sound reason and a better morality” of holding corporations liable in tort);

Centofanti v. Pennsylvania R. Co., 90 A. 558, 560 (Pa. 1914) (applying remedial statute

that addressed absence of common law right of action for injury resulting in death);

MacPherson v. Buick Motor Co., 217 N.Y. 382 (N.Y. 1916) (if manufacturer, who sells

product for use without inspection by customers, is negligent, where danger is to be

foreseen, liability will follow; discarded burden to prove that product was inherently

dangerous); Flagiello v. Pennsylvania Hosp., 208 A.2d 193, 208 (Pa. 1965) (discarded

judicially-created charitable immunity in tort, i.e., for hospitals); Kassab v. Central Soya,




                                      [J-80-2013] - 39
246 A.2d 848, 853-56 (Pa. 1968) (remote supplier of defective product may be sued for

breach of warranty; discarded burden to prove vertical privity); Salvador v. Atlantic Steel

Boiler Co., 319 A.2d 903, 907 (Pa. 1974) (injured user may sue for breach of warranty,

even if user is not purchaser, member of purchaser’s family or household, or guest in

purchaser’s    house;    discarded     burden    to   prove   horizontal   privity).     Accord

Commonwealth v. Koczwara, 155 A.2d 825, 828 n.1 (Pa. 1959) (application of absolute

vicarious liability for acts of another in criminal case resulting in imprisonment deprives

criminal defendant of due process of law; “[D]istinction between respondeat superior in

tort law and its application to the criminal law is obvious[: i]n tort law, the doctrine is

employed for the purpose of settling the incidence of loss upon the party who can best

bear such loss[; but, w]e impose penal treatment upon those who injure or menace

social interests, partly in order to reform, partly to prevent the continuation of the anti-

social activity and partly to deter others.”).

       By the 1960s, Pennsylvania was among those jurisdictions whose courts had

accepted an application of civil liability without proof of negligence in cases of injury

caused by food products. See William L. Prosser, THE ASSAULT UPON                  THE   CITADEL

(STRICT LIABILITY TO    THE   CONSUMER), 69 Yale L. J. 1099, 1103-10 (1960) (citing, inter

alia, Caskie v. Coca-Cola Bottling Co., 96 A.2d 901 (Pa. 1953) (plaintiff who drank from

bottle contaminated with hydrochloric acid established breach of implied warranty of

fitness and did not have burden to prove that contamination was due to defendant’s

negligence or dereliction).9 See also Catani v. Swift & Co., 95 A. 931 (Pa. 1915) (where

sale of food article is for immediate consumption, there is implied warranty that food is

9
       William L. Prosser was the Dean of the School of Law at the University of
California, Berkeley, from 1948 to 1961 and a senior authority in the publication of the
case law book “Prosser, Wade and Schwartz’s Torts, Cases and Materials.”




                                        [J-80-2013] - 40
wholesome and fit for purpose intended, irrespective of seller’s knowledge of disease or

defects therein; “prima facie case is made out by proof that the meat sold by defendant

was diseased and caused the death of plaintiff’s husband”)). Redress for injury caused

by   other   products   was    available      in    tort    (by   asserting,   e.g.,   negligence,

misrepresentation, or fraud claims) or by asserting breach of warranty claims. These

causes of action, and their attendant respective forms of pleading, remain available to

plaintiffs today, forming the greater body of products liability law. Accord Lance, 85

A.3d at 440 n.8.

       By the 1960s, plaintiffs had sought to establish liability of sellers of products

primarily via actions in negligence and breach of warranty, on the assumption that these

recognized causes of action provided the best approximation of justice in individual

cases then available. Negligence, in tort, spoke to the notion of redress for a legal

wrong or direct and forcible injury to the person, land, or chattels of another. See R.F.V.

Heuston, SALMOND    ON THE    LAW   OF   TORTS 4 (17th ed. 1977). Negligence theory also

offered the convenience that it did not require proof of knowledge of a particular defect

in the product, but simply the failure to exercise due care had the defect been

foreseeable. Meanwhile, a breach of warranty action, sounding in assumpsit, was at its

origin an action in tort, which “transformed into an action of contract, becoming

afterwards a remedy where there was neither tort nor contract.” James Barr Ames, The

History of Assumpsit in 3 SELECT ESSAYS            IN   ANGLO-AMERICAN LEGAL HISTORY 1, 298

(1909). The word assumpsit suggested the making of a promise and, originally, the

actionable conduct was the breach of an express promise.                   The cause of action

evolved, however, to encompass the breach of an implied promise, and even of a

fictitious promise. See id. (commenting upon “assumpsit” as illustration of “the flexibility

and power of self-development of the Common Law”). “[W]arranty (unlike negligence




                                         [J-80-2013] - 41
which is a tort concept based on fault) is not a concept based on fault or on the failure to

exercise reasonable care.       But this does not mean that warranty is necessarily

contractual or non-tortious in nature.     Liability in warranty arises where damage is

caused by the failure of a product to measure up to express or implied representations

on the part of the manufacturer or other supplier. Accordingly, an injured person is not

required to prove negligence in a warranty-products liability case.” Putman v. Erie City

Mfg. Co., 338 F.2d 911, 913 n.8 (5th Cir. 1964) (quoting Frumer and Friedman § 16A p.

358). Elements of both the negligence and breach of warranty causes of action, as they

had thus developed, foreshadowed the evolution of jurisprudence in the area of strict

liability, and increasingly resonated with courts.



                 1.     The Second Restatement and the Early Cases

       Early decisional law in Pennsylvania explained the genesis and nature of the

strict liability cause of action, with reference to Section 402A of the Second

Restatement. Section 402A of the Second Restatement states:

                    § 402A Special Liability of Seller of Product for
              Physical Harm to User or Consumer

                     (1) One who sells any product in a defective condition
              unreasonably dangerous to the user or consumer or to his
              property is subject to liability for physical harm thereby
              caused to the ultimate user or consumer, or to his property, if
                     (a) the seller is engaged in the business of selling
              such a product, and
                     (b) it is expected to and does reach the user or
              consumer without substantial change in the condition in
              which it is sold.

                    (2) The rule stated in Subsection (1) applies although
                    (a) the seller has exercised all possible care in the
              preparation and sale of his product, and



                                      [J-80-2013] - 42
                     (b) the user or consumer has not bought the product
               from or entered into any contractual relation with the seller.
RESTATEMENT (2D) OF TORTS § 402A (1965).

        The commentary to the Second Restatement traces the roots of the higher

degree of responsibility placed upon sellers of goods to English criminal statutes of the

Thirteenth Century that imposed penalties upon persons who supplied “corrupt food and

drink.” RESTATEMENT (2D)     OF   TORTS § 402A cmt. b. As these criminal statutes were

repealed, judicial decisions referred in dicta to the civil liability of sellers to those to

whom they sold “corrupt victuals.” See Prosser, 69 Yale L.J. at 1104. Early American

jurisprudence denominated the special civil responsibility as “warranty,” imposed upon

the seller of food in favor of the direct purchaser. At the beginning of the Twentieth

Century, judicial decisions extended sellers’ “strict liability” beyond the direct purchaser

to injured consumers. Id. The decisions articulated an exception to the general rule of

more direct liability premised upon proof of negligence or privity of contract. “In the

beginning, these decisions displayed considerable ingenuity in evolving more or less

fictitious theories of liability to fit the case. The various devices included an agency of

the intermediate dealer or another to purchase for the consumer, or to sell for the seller;

a theoretical assignment of the seller’s warranty to the intermediate dealer; a third party

beneficiary contract; and an implied representation that the food was fit for consumption

because it was placed on the market, as well as numerous others.” RESTATEMENT (2D)

OF   TORTS § 402A cmt. b. Later jurisprudence settled upon a theory of warranty “running

with the goods” or made directly to the consumer; the alternative was strict liability in

tort. After 1950, jurisdictions extended the rule of strict liability beyond the sale of food

for human consumption, to other products intended for intimate bodily use. Finally, in

the late 1950s, courts began applying these developed rules of strict liability to the sale

of any product. Id.; see also Prosser, 69 Yale L.J. at 1103-14 (stating, inter alia, that



                                      [J-80-2013] - 43
Pennsylvania had extended application of a heightened responsibility to sellers of

products other than food in Jarnot v. Ford Motor Co., 156 A.2d 569 (Pa. Super. 1959),

premised upon misconstruction of language in earlier cases).

       In 1966, this Court took a major step by “adopting” the formulation of Section

402A of the Second Restatement of Torts as the common law of Pennsylvania. In

Webb, 220 A.2d 853, the Court vacated the trial court’s order to dismiss the case and

remanded with instructions for the trial court to permit the plaintiff to amend his

complaint to add a cause of action premised upon the theory of strict liability in tort as

articulated by the Second Restatement. The plaintiff in Webb had been severely injured

when a beer keg exploded and, as a result, filed a complaint “in trespass,” asserting an

“exclusive control” theory of negligence -- essentially res ipsa loquitur, see, e.g., Loch v.

Confair, 93 A.2d 451 (Pa. 1953) -- against the beer distributor, the brewer who had filled

the keg, and the manufacturer of the keg.           The trial court sustained preliminary

objections, reasoning that the plaintiff had not joined in the suit before the expiration of

the statute of limitations all parties against whom an inference of negligence could be

drawn, i.e., the plaintiff’s father, who had purchased the keg, and the plaintiff’s brother,

who had tapped the keg. On appeal, the Court, in an opinion by Mr. Justice Cohen,

offered little explanation of its reasoning for formally adopting the Second Restatement

except by reference to the responsive opinions of Messrs. Justice Jones and Roberts in

Miller v. Preitz, 221 A.2d 320 (Pa. 1966), filed in a companion decision entered the

same day as Webb. The relevant reasoning of the Webb Court in its entirety reads as

follows:

                       We need not, however, determine whether or not the
              lower court erred with regard to the law of exclusive control,
              for there is another and clearer issue which is determinative
              of this appeal. That issue is the nature and scope of the
              liability in trespass of one who produces or markets a


                                      [J-80-2013] - 44
              defective product for use or consumption. The development
              of the law in that area is chronicled in the Concurring and
              Dissenting Opinions of Justices Jones and Roberts to the
              decision of this Court in Miller v. Preitz, 221 A.2d 320 (Pa.
              1966). One will also find there citations to modern case law
              and commentaries which extend and recommend the
              extension of the law of strict liability in tort for defective
              products. The new Restatement of Torts reflects this
              modern attitude. Section 402A thereof states: [Quoting in
              full Section 402A of the Second Restatement.]

                    We hereby adopt the foregoing language as the law
              of Pennsylvania.

                    The plaintiff in this litigation, therefore, must be given
              an opportunity to plead and prove his case. . . .
220 A.2d at 854.     Mr. Justice Eagen filed a joining concurring opinion, noting his

preference for a limited application of the Second Restatement. Mr. Chief Justice Bell

filed a dissenting opinion. See n.10 infra.

       The several opinions filed in Miller offer substantially more insight than Webb into

the genesis of the strict liability tort in Pennsylvania and the Court’s decision to adopt

the Second Restatement to define its parameters. The Miller plaintiff was the estate

administrator of a deceased infant, who was fatally injured when a vaporizer-humidifier

used to relieve congestion in his nose shot boiling water on his body. The plaintiff filed

a complaint asserting a breach of the implied warranty of merchantability against the

manufacturer, the distributor, and the retail pharmacy that had sold the vaporizer-

humidifier to the deceased infant’s aunt. The infant had used the product in the aunt’s

home, next door to his family’s home.         In relevant part, the trial court sustained

preliminary objections to the complaint, on the ground that the implied warranty did not

extend to the deceased infant because he had not been in privity of contract with any of

the defendants.




                                     [J-80-2013] - 45
       The Miller Court reversed the judgment as a matter of law entered in favor of a

retailer because the deceased infant, who was harmed by the vaporizer-humidifier sold

by the retailer, was “in the buyer’s family” and, notwithstanding the infant’s lack of privity

with the retailer, his representative had met the prerequisites for pursuing a breach of

warranty action under the plain language of the Uniform Commercial Code.                  (By

comparison, the Webb plaintiff had pursued an action in tort on a theory of negligence.)

Additionally, the Miller Court affirmed the judgment in favor of the manufacturer and of

the distributor, reasoning that the Code’s provisions did not extend warranty liability to

remote sellers in the chain of distribution. Id. at 324 (citing 12A P.S. § 2-318). In both

respects, according to the Court, the language of the Uniform Commercial Code was

dispositive. The Miller Court viewed abandoning the requirement of privity in warranty

actions as unnecessary, noting the expectation that strict liability in tort would vindicate

public policy relating to products liability and accomplished a similar result to

abandoning privity.

       Justice Jones concurred in the decision to reverse the judgment against the

retailer, but dissented from the Court’s disposition with respect to the manufacturer and

distributor of the product. The dissent was premised in part upon the view that, if the

Court retained the requirement of privity, the Court should adopt the Second

Restatement and thereby relegate all actions in the products liability field to tort. The

dissent described the state of the law then existing:

                     In the field of product liability, resort for redress for
              injury arising from a defective product may be had either in
              tort or assumpsit. In [Loch v. Confair, 63 A.2d 24 (Pa.
              1949)], we said “that a person who has effected the
              purchase of particular goods and sustains injury because of
              unfitness for an intended purpose may institute an action in
              assumpsit based upon a breach of implied warranty Or an
              action in trespass based upon specific averments of



                                      [J-80-2013] - 46
             negligence. In both instances the elements of damage may
             be identical, viz, the damage naturally and proximately
             resulting from a breach of implied warranty or a breach of
             duty. . . . An election of remedies in this regard has,
             however, never been held by this Court to authorize
             institution of a contract action based upon averments of
             negligence. Nor, conversely, has it authorized institution of a
             negligence action based upon averments of contract.
             Essential distinctions which exist have been recognized.”
             [63 A.2d at 26]. Thus, while a person injured by a defective
             product has an election of remedies, however, each remedy
             has acquired distinct characteristics.
221 A.2d at 329 (Jones, J., concurring and dissenting) (footnote omitted).

      Justice Jones then expressed support for the approach of the Second

Restatement whose purpose, he stated, was to ensure “that the costs of injuries

resulting from defective products are borne by the manufacturers that put such products

on the market rather than by the injured persons who are powerless to protect

themselves.” Id. at 334.

      According to Justice Jones, the judgments that would result from application of

the Second Restatement were “not a far cry” from the doctrines of res ipsa loquitur and

of exclusive control.   The dissent viewed manufacturers and sellers, proximate or

remote, of products for consumption by the public as subject “to a special responsibility

to any member of the using and consuming public who may be injured by the use and

consumption of the product.”     The dissent reasoned that the public expects such

manufacturers and sellers to stand behind their products; therefore, the financial burden

of injuries caused by defective products “should fall upon those who make and market

the products and the consuming public is entitled to the maximum protection.” Id. at

334-35.

      In his dissent, Justice Roberts, joined by Mr. Justice Musmanno, would also have

reversed the summary judgment entered by the trial court as to all defendants. These



                                    [J-80-2013] - 47
dissenters reasoned that the majority’s decision elevated form over substance, and they

would have allowed the cause of action in the matter to proceed either in assumpsit, on

the basis of a breach of warranty, or in trespass, on the basis of strict liability. In this

regard, the dissent suggested that the same results would obtain whether a plaintiff

chose to pursue his products liability claim on a breach of warranty theory or under the

Second Restatement.

       The dissenters remarked that the duty of sellers of products for human

consumption “extended beyond the mere avoidance of negligence,” and had been

characterized as a “special responsibility . . . in the nature of an implied warranty that

such products would be fit for human consumption. . . .” The duty had been limited to

the immediate buyer; but, the dissent noted, courts “recognized the injustice inherent in

such a limitation” and had developed theories of strict liability in defective food cases.

At the same time, according to the dissent, the privity requirement was not eliminated as

to non-food products, which presented equal dangers. The dissenters questioned the

merit of that distinction. From a practical perspective, the dissent also noted that the

doctrine of privity did not insulate defendants from liability because an action by a

consumer against a seller simply started a chain reaction of indemnity; “[a]ll that is really

accomplished by the restriction [of privity] is to expose [the] plaintiff to the risk that the

retail seller may not be financially able to make redress and to deprive [the plaintiff] of

the opportunity of proceeding directly against the more financially able parties in the

distributive chain.” 221 A.2d at 336-38.

       The dissent then expressed its disapproval of the “conceptual abstractions and

niceties of pleading” that had obscured what it believed was essentially a strict liability

cause of action and the considerations that supported it, and encouraged the Court to

adopt the Second Restatement. In the dissent’s view:




                                      [J-80-2013] - 48
                      The public interest in affording the maximum
             protection possible under the law to human life, health and
             safety; the inability of the consumer to protect himself; the
             seller’s implied assurance of the safety of a product on the
             open market; the superior ability of the manufacturer or
             seller to distribute the risk of loss; the needless circuity of
             recovery and the expensive, time consuming, wasteful and
             often unjust process which insistence upon privity frequently
             occasions -- all support the extension of the protection of
             strict liability beyond the food cases to those involving other
             consumer goods as well.
221 A.2d at 338-39.

      Thus, the 6 to 1 Webb decision itself contained no developed majority

expression, despite the important transitional point it marked in Pennsylvania law.10

      The commentary to the Second Restatement and the Court’s decisional law over

the subsequent decade reflect early foundational debates among members of the Court

concerning the tort.11 In a series of cases, the Court addressed narrow applications of

broader questions relating to burdens of proof, evidence, and jury instructions in strict

10
        In Webb, Chief Justice Bell dissented, premised primarily upon the argument that
the majority was overruling numerous decisions sub silentio in favor of a “new rule . . .
[that] so completely changes, not by legislative action but by judicial ukase, the law with
respect to trespass actions for injuries resulting from non-inherently dangerous products
that are either manufactured or bottled or sold by any vendor . . . that in [the Chief
Justice’s] opinion it is not only very unfair but absolutely Unjustifiable in Justice or in
Law.” 220 A.2d at 855 (Bell, C.J., dissenting).

11
       In the interim, the Court addressed several corollary matters, without offering any
insight into foundational matters of concern here. See, e.g., Ferraro v. Ford Motor Co.,
223 A.2d 746 (Pa. 1966) (reversing judgment notwithstanding verdict and remanding for
new trial; in strict liability case, “if the buyer knows of the defect and Voluntarily and
Unreasonably proceeds to use the product or encounter a known danger, this should
preclude recovery and constitute a complete defense to the action”); Burbage v. Boiler
Eng’g & Supply Co., 249 A.2d 563 (Pa. 1969) (affirming judgment in favor of consumer;
manufacturer of replacement part is subject in strict liability to consumer).




                                     [J-80-2013] - 49
liability litigation. To the extent these decisions necessitated explication of conceptual

foundations, much like the Second Restatement and the commentary, the Court’s

efforts centered on describing in affirmative terms the theoretical basis for strict liability

but lapsed, generally, into comparisons with the more familiar negligence and warranty

causes of action in which strict liability was rooted. See, e.g., RESTATEMENT (2D)         OF

TORTS § 402A(2) & cmt. a, c & m.

       For example, in Bialek v. Pittsburgh Brewing Co., 242 A.2d 231 (Pa. 1968), the

Court noted and rejected a challenge to that part of a jury charge which, the plaintiff

argued, imposed an unwarranted burden upon the plaintiff to prove which particular

seller in the distribution chain had caused the defect in the product.            The Court

reasoned that for liability to attach per Section 402A, “the seller need only sell a

defective product [and need not] have caused the defect.” The Court added that the

trial court should instruct the jury that a plaintiff “is not required to prove that the

defendants were negligent, that the defendants can be held liable even if they exercised

all possible care and that no consideration should be given to negligence.” But, the

Court explained, sellers in a distributive chain who precede a seller that caused the

defect do not sell a defective product and are not liable. In this sense, according to the

Court, the plaintiff’s theory of the case is relevant and the trial court has discretion to

tailor the charge to reflect the evidence and theories of the parties. Id. at 235-36.

       In Kuisis v. Baldwin-Lima-Hamilton Corp., 319 A.2d 914 (Pa. 1974) (Opinion and

Opinion Announcing Judgment of Court), the expression authored by Mr. Justice

Pomeroy, in which Mr. Justice O’Brien joined, did not summon a majority of the

members of the Court for disposition of the strict liability-related claims, which several

Justices would not have reached on appeal. The OAJC offered an explication of the

burden of proof in a strict liability case premised upon circumstantial rather than direct




                                      [J-80-2013] - 50
evidence of a defect, i.e., the so-called malfunction theory; the theory is of major

importance as it was later adopted by a majority of the Court in Rogers v. Johnson &

Johnson Products, Inc., 565 A.2d 751 (Pa. 1989). See also Barnish v. KWI Building

Co., 980 A.2d 535 (Pa. 2009).

       In Kuisis, the plaintiff alleged that he was injured when a crane’s brake locking

mechanism became disengaged, causing a load of steel pipe suspended on the crane

to fall on him. The plaintiff proceeded on theories of negligence and strict liability in the

design and manufacture of the brake locking mechanism. At the close of evidence, the

trial court granted summary relief to the manufacturer on the negligence claim and

submitted the strict liability claims to the jury; the jury was dismissed when it could not

agree on a verdict. Subsequently, the trial court granted the manufacturer’s motion for

judgment on the record.     On appeal, this Court reversed the trial court’s judgment and

awarded the plaintiff a new trial.     Justice Pomeroy’s OAJC reasoned that evidence

relating to the accident, in addition to the occurrence of five similar malfunctions of the

locking mechanism, was sufficient to show that the product was defective, even absent

direct evidence of a specific defect. According to the OAJC, in the absence of other

identifiable causes, the malfunction itself was evidence of a defective condition; “[t]his

rule reflects the fact that liability under [Section] 402A turns on a lack of fitness in the

defendant’s product, as in the case of an action for breach of warranty, rather than on

the breach of a particular duty of care by the defendant, as in the case of an action for

negligence.” The OAJC continued: “[w]hile a plaintiff’s hand in a strict liability case will

obviously be strengthened by evidence of a specific defect in the defendant’s product

such evidence is not necessary to take . . . the plaintiff’s case to a jury.” Id. at 920.

       Finally, the OAJC commented upon the relevance of proof that the crane

operator had left the controls while the pipe was suspended. According to the OAJC,




                                      [J-80-2013] - 51
the operator’s alleged negligence was legally significant as a potential superseding

cause of the plaintiff’s injuries. Kuisis, 319 A.2d at 920; see also Rogers, 565 A.2d at

755. But, the opinion continued, operator negligence was not a superseding cause of

the plaintiff’s injuries unless the negligent conduct was outside the manufacturer’s

“reasonable range of foreseeability.”       Justice Pomeroy opined that the principle of

foreseeability “carries over from traditional negligence law to strict liability cases. . . . It

makes no difference in this regard whether the operator’s conduct is characterized as

an intervening act of negligence or as an ‘abnormal use’ of the crane; where under

[Section] 402A a particular use of a product is abnormal depends on whether the use

was reasonably foreseeable by the seller.” Kuisis, 319 A.2d at 920-21 & n.13. Other

proof relevant to the question of foreseeability, the OAJC added, was the passage of

twenty years since the crane had been manufactured and any interim alterations. Id. at

922 & n.15.12

       Following the decision in Kuisis, the Court revisited questions relating both to a

plaintiff’s burden of proving a strict liability claim, and relevant jury instructions, in

12
       In parallel developments, the Court dispensed with privity prerequisites for stating
a breach of an implied warranty claim, by reference to the Second Restatement. The
Kassab Court reasoned that clarity in the law and consistency of results, whether one
labeled a complaint in assumpsit / warranty or trespass / strict liability, counseled
abandoning vertical privity requirements. See Kassab, 246 A.2d at 853-56 overruled in
part on other grounds by AM/PM Franchise Ass’n v. Atl. Richfield Co., 584 A.2d 915
(Pa. 1990) (remote supplier of defective product may be sued for breach of warranty).
In Salvador, the Court discarded horizontal privity stating that: “Today . . . a
manufacturer by virtue of [S]ection 402A is effectively the guarantor of his products’
safety. . . . [A manufacturer] may not preclude an injured plaintiff’s recovery by forcing
him to prove negligence in the manufacturing process. Neither may the manufacturer
defeat the claim by arguing that the purchaser has no contractual relation to him.”
Salvador, 319 A.2d at 907 (injured user may sue for breach of warranty, even if user is
not purchaser, member of purchaser’s family or household, or guest in purchaser’s
house).




                                       [J-80-2013] - 52
Berkebile v. Brantly Helicopter Corp., 337 A.2d 893 (Pa. 1975) (Opinion Announcing

Judgment of Court). The Court affirmed by unanimous mandate the decision of the

Superior Court to reverse the judgment on the verdict granted to the defendant and to

award the plaintiff a new (third) trial. The decision generated several opinions, among

them the OAJC of Chief Justice Jones, joined by Justice Nix, parts of which later

became law in Azzarello. See 391 A.2d at 1027 and discussion infra. Justices Roberts

and Pomeroy filed separate concurring opinions, while Justices Eagen, O’Brien, and

Manderino concurred in the result without opinion.

       The Berkebile OAJC commenced its analysis by noting the necessity “to clarify

the concepts of strict liability in Pennsylvania,” so as to avoid further confusion in the

case upon remand for a third trial. In concurring, Justices Roberts and Pomeroy would

have decided the matter on the separate issue of strict liability for a failure to warn. 337

A.2d at 903-04.

       In Berkebile, following the death of her husband in a helicopter crash, the

administratrix of the estate sued the manufacturer, premised upon theories of strict

liability for defective design of the helicopter’s rotor system, for defective manufacturing

and design of the rotor blade, for inadequate warnings regarding the inherent risks and

limitations of the rotor system, and for misrepresentation of the helicopter’s safety in the

manufacturer’s advertising brochures. The defendant denied the existence of a defect

and argued that the decedent’s abnormal use had caused the crash.

       The Berkebile OAJC reiterated that strict liability, as a cause of action,

implemented a policy of consumer protection. According to the OAJC, “[t]he increasing

complexity of the manufacturing and distributional process placed upon the injured

plaintiff a nearly impossible burden of proving negligence where, for policy reasons, it

was felt that a seller should be responsible for injuries caused by defects in his




                                     [J-80-2013] - 53
products.” Id. at 898 (citing RESTATEMENT (2D)      OF     TORTS § 402A cmt. c). The OAJC

explained that, in a strict liability matter, proof of a seller’s due care and breach of due

care are unnecessary because liability attaches “without fault.” Id. (citing Salvador, 319

A.2d at 907). Instead, to recover, a plaintiff must prove that the product was defective,

and that the defect was a proximate cause of the plaintiff’s injuries.          In addition,

according to the OAJC, the plaintiff has the burden to prove that the defect causing the

injury existed at the time that the product left the seller’s hands. The OAJC then warned

of attempts by a defendant-seller at “indirectly . . . injecting negligence concepts into

strict liability theory.” Id. at 899.

       The Berkebile OAJC also parsed the language of the Second Restatement,

opining that the Restatement imposes a seemingly contradictory burden of proving that

a “defect” is “unreasonably dangerous.” According to the OAJC, the standards are

reconcilable if the purpose of the “unreasonably dangerous” qualification is “to

differentiate those products which are by their very nature unsafe but not defective from

those which can truly be called defective.” The OAJC rejected the notion that defect

should be defined based upon the negligence-oriented reasonable man concept, which

tended to dilute the strict liability concept, and offered that the “unreasonably dangerous

clause” should be included in articulating the issue of proximate cause to the jury. Chief

Justice Jones explained that the result of limiting the liability of a seller premised upon a

“reasonable man” standard, which the clause “unreasonably dangerous” could suggest,

protects the seller from becoming “an insurer of his products with respect to all harm

generated by their use.” But, such standard would also require an injured consumer-

plaintiff to prove an element of negligence, which means in practice that, regardless of

the injured consumer’s expectations regarding the product, the injured consumer would

be unable to recover if an “ordinary consumer” would have expected the product’s




                                        [J-80-2013] - 54
defective condition. Chief Justice Jones opined that it is unnecessary to place the

additional burden upon the injured consumer to limit a seller’s liability because the seller

is adequately protected “by the necessity of proving that there was a defect in the

manufacture or design of the product, and that such defect was a proximate cause of

the injuries.” Id. at 899-900 (quoting Cronin v. J.B.E. Olson Corp., 501 P.2d 1153, 1161

(Cal. 1972), whose holding we address infra). As a result, the OAJC concluded that the

jury should not be instructed as to the reasonable man standard or reasonableness “in

any form.” Id. at 900.

       Chief Justice Jones added that proof of strict liability is not premised upon

whether the seller could have foreseen a particular injury, for to articulate the burden of

proof in terms of foreseeability is to require the plaintiff to prove that the seller exercised

due care. But, because the seller is liable in strict liability regardless of any negligence,

whether the seller could have foreseen a particular injury is irrelevant. Once a product

is proved defective, the seller is responsible for all the unforeseen harm it caused, no

matter how remote. Moreover, Chief Justice Jones reasoned, a plaintiff’s negligence

does not bar recovery in strict liability, although evidence that would tend to prove such

negligence may be relevant for the purpose of rebutting the plaintiff’s contentions of

defect and proximate cause. Id. at 901.

       Finally, the Berkebile OAJC addressed the viability of the plaintiff’s failure to warn

claims, reasoning that the trial court had erred in failing to charge the jury on the point.

Chief Justice Jones stated: “A ‘defective condition’ is not limited to defects in design or

manufacture. The seller must provide with the product every element necessary

to make it safe for use.       One such element may be warnings and/or instructions

concerning use of the product. A seller must give such warning and instructions as are

required to inform the user or consumer of the possible risks and inherent limitations of




                                      [J-80-2013] - 55
his product.” Id. at 902 (emphasis added) (citing RESTATEMENT (2D)      OF   TORTS § 402A

cmt. c).    The portion of the Berkebile lead opinion emphasized above was quoted

subsequently out of context by the majority in Azzarello as the standard of proof in a

strict liability action.

        Looking back, it is now apparent that the first decade of applying the doctrine of

strict liability in Pennsylvania offered a series of missed opportunities to develop a

vibrant and coherent body of common law on the issue. The difficulties arose from the

happenstance of the idiosyncratic procedural postures of cases in which the Court

nevertheless apparently sought to make conceptual advances in the arena. To start,

the Webb Court “adopted” the Second Restatement and remanded the case to the trial

court for application, without offering much explanation of either how Section 402A

derived from or complemented existing common law, or direction concerning its

application by the lower courts, including the realm of jury charges. The procedural

posture of Webb -- an appeal from a trial court decision sustaining preliminary

objections -- and some consensus regarding the direction of the law, perhaps explain

the approach. The concurring and dissenting expressions in Miller, upon which the

Webb Court relied, offered a more reasoned explanation for the availability of strict

liability in tort as a separate cause of action and attenuated, to a degree, the stark

approach of the summary Webb majority decision. But, the responsive expressions --

offered in the context of a breach of warranty case no less -- suggested little in terms of

an explication of essential foundational concepts or practical application, which are

generally the sine qua non of common law decisions.

        And so, much like the Second Restatement articulation of strict liability,

Pennsylvania decisional law did not speak affirmatively to the plaintiff’s burden of proof

in strict liability cases but addressed it by negation, i.e., as compared to then-more




                                     [J-80-2013] - 56
familiar theories of breach of warranty initially and, later, negligence. In the subsequent

decade, foundational issues regarding the strict liability in tort cause of action did not

reach the Supreme Court or, when questions were presented, expressions failed to

command clear majority support.        To the extent that the Court spoke to broader

considerations, several trends became evident: the original prominence of warranty-

related attempts to limit application of strict liability theory decreased, and the relevance

of negligence-related encroachments commenced its ascent; rhetoric emerged not only

to distinguish strict liability from its negligence roots, but also to excise negligence

principles and terms (such as foreseeability) from strict liability theory; the reliance upon

formulaic reiteration of consumer protection-related policies, offered as a bulwark

against attempts to dilute the application of strict liability theory in individual cases; and

then a focus in strict liability theory that ultimately turned upon a statutory construction-

type of analysis of the Second Restatement. Experience suggests that these trends,

and fits and starts, have proven antithetical to the orderly evolution of our decisional

law, one that must be responsive to new problems, perspectives, and consequences.



                                      2.     Azzarello

       In 1978, the Court was confronted with the question of whether the trial court had

adequately charged a jury on the law of products liability in Pennsylvania.              The

Azzarello plaintiff had been injured when he pinched his hand between two hard rubber

rolls in a coating machine manufactured by Black Brothers Company.               The plaintiff

proceeded on a theory of strict liability against the manufacturer, but the manufacturer

also joined the plaintiff’s employer as a co-defendant, asserting that the employer’s

negligence was the sole or contributing cause of the plaintiff’s injuries. See Azzarello,

391 A.2d at 1022. In a unanimous opinion, the Court held that the jury charge issued by




                                      [J-80-2013] - 57
the trial court was misleading and affirmed the decision of the Superior Court, which had

granted the plaintiff a new trial. The Azzarello Court approved an alternative charge.

Id. at 1027 n.12.

       The Court addressed two related and important questions: whether a

determination as to the risk of loss in a strict liability case is a decision for the judge or

the jury, and whether the words “unreasonably dangerous” have any place in the strict

liability jury instruction. The Court concluded that the words “unreasonably dangerous”

explain the term “defective” but have “no independent significance and merely represent

a label to be used where it is determined that the risk of loss should be placed upon the

supplier.” The words “unreasonably dangerous” limit liability and signal that a seller is

not an insurer but a guarantor of the product. However, the difficulty with the use of the

term in jury instructions, the Court reasoned, was that it signaled to the jury that the

consumer has the burden to prove an element of negligence. According to the Court, in

strict liability cases, burdening a plaintiff with proof of negligence is unwarranted; the

seller’s liability is limited “by the necessity of proving that there was a defect in the

manufacture or design of the product, and that such defect was a (legal) cause of the

injuries.” Id. at 1025 (quoting Cronin, 501 P.2d at 1161-62); see also Berkebile, 337

A.2d at 899-900.

       The Azzarello Court further reasoned that a change in terminology to avoid

references to negligence principles would be insufficient to articulate instructions

appropriate for a lay jury. Indeed, according to the Court, the formulation of the Second

Restatement was not intended to articulate jury instructions but employed principles

designed instead to predict responsibility and to guide the professional bench and bar.

The Court then concluded that the best means to implement the principles of the

Second Restatement was to direct: (1) that the phrases “defective condition” and




                                      [J-80-2013] - 58
“unreasonably dangerous,” which predict whether recovery would be justified, are

issues of law and policy entrusted solely for decision to the trial court; and (2) that the

inquiry into whether a plaintiff has proven the factual allegations in the complaint is a

question for the jury. According to the Court, in cases of an alleged defective design,

the dispositive question is whether the product is safe for its intended use. The Court

emphasized that the seller is the “guarantor” of the product, and a jury could find a

defect “where the product left the supplier’s control lacking any element necessary to

make it safe for its intended use or possessing any feature that renders it unsafe for the

intended use.” Id. at 1027 (citing Berkebile, 337 A.2d at 902). Having concluded that

the jury should not be instructed on the “unreasonably dangerous” standard, the Court

then affirmed the Superior Court’s decision to remand the case to the trial court for a

new trial.



                  3.      Post-Azzarello Design Defect Jurisprudence

       Following Azzarello, decisional focus in strict liability cases shifted to reflect an

increasing concern with segregating strict liability and negligence concepts. The Court

addressed several evidentiary questions, in the process touching upon foundational

notions of strict liability relevant to a design defect claim.13


13
        The jurisprudence of strict liability for failure to warn also developed in parallel.
See, e.g., Sherk v. Daisy-Heddon, 450 A.2d 615 (Pa. 1982) (where lethal propensity of
toy gun was known or should have been known to user, manufacturer not strictly liable
for failure to warn); Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100 (Pa. 1990)
(capacitor not defective for failure to warn electrician/intended user of obvious danger of
live, exposed electrical wires); Coyle, 584 A.2d at 1383 (strict liability for failure to warn
of prescription drug’s dangerous propensities is not recognized as cause of action
against pharmacist); Hahn v. Richter, 673 A.2d 888 (Pa. 1996) (where adequacy of
warnings associated with prescription drugs is at issue, strict liability is not recognized
as basis for liability); Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997) (notwithstanding
(continuedQ)

                                       [J-80-2013] - 59
       In Lewis v. Coffing Hoist Division, Duff-Norton Co., 528 A.2d 590 (Pa. 1987), the

Court affirmed the Superior Court’s decision to uphold a jury verdict in favor of a plaintiff

who alleged that the design of a control box for an overhead electric hoist was defective

because it lacked a safety mechanism to prevent accidental depression of the control

buttons. The plaintiff had injured his legs when he accidentally depressed the control

buttons, which caused the hoist to swing its load into his body. The Court rejected the

defendant’s claim that the trial court erred in excluding expert testimony relating to

industry standards and practices, e.g., that ninety percent of similar hoists lacked a

guard around the control panel and that a nationwide trade group had certified the

product design as safe.

       Before addressing whether particular expert testimony was relevant to a strict

liability cause of action, the Lewis Court set out its view of the applicable substantive

law. The Court noted that strict liability in tort was a cause of action available when an

injury is caused by a defect in design. The Second Restatement, according to the

Court, does not provide a definition of the term “defect,” and jurisdictions have

articulated diverse formulas on the subject of design defect.          The Court noted a

“consumer expectations” approach, which is an inquiry into whether the product “failed

to perform as safely as an ordinary consumer would expect when used in an intended

or reasonably foreseeable manner.” Id. at 593 (citing Barker v. Lull Engineering Co.,

573 P.2d 443 (Cal. 1978)).      A second accepted approach, according to the Court,

involves “risk-utility” balancing.   Id. (citing Barker, supra, and A. Weinstein et al,

PRODUCTS LIABILITY AND THE REASONABLY SAFE PRODUCT, at 43-59 (1978)). However, in


(Qcontinued)
ease of removing safety device, warning on blender sufficient to caution operator
against conduct that caused injury).




                                      [J-80-2013] - 60
Pennsylvania, the Court explained, Azzarello articulated a distinct approach: “the jury

may find a defect where the product left the supplier’s control lacking any element

necessary to make it safe for its intended use or possessing any feature that renders it

unsafe for the intended use.” Id. (citing Azzarello, 391 A.2d 1027).

       The Lewis Court observed that jurisdictions with various approaches agreed that

relevant at trial is the condition of the product rather than the reasonableness of the

manufacturer’s conduct. As a result, the Court concluded, a strict liability claim does not

sound in negligence -- a proposition in harmony with the Azzarello decision. The Court

held that, because “due care” has no bearing upon liability in a strict liability case, proof

of industry standards -- which go to a negligence concept of reasonable care -- are

irrelevant and “created a strong likelihood of diverting the jury’s attention from [the

product] to the reasonableness of the [manufacturer-defendant’s] conduct in choosing

its design.” Id. at 593-94.

       Mr. Justice Larsen concurred, adding that because of their “inherently self-

serving nature,” admission of industry standards evidence would be highly prejudicial to

the consumer. In a dissent, Mr. Justice Flaherty criticized the majority’s approach to

strict liability claims, noting that evidence of injury alone is insufficient to prove a strict

liability claim; rather, industry standards are relevant to the question of defect. This is

so, the dissent said, because suppliers are liable only if an unsafe product is placed on

the market: strict liability “does not impose liability for failing to make an already safe

product somewhat safer, or for failing to utilize the safest of all possible designs. We

are simply not dealing with conceptual Platonic ideals of perfection when a jury

considers whether any given product is safe.” Id. at 595. In a separate dissent, Mr.

Justice Hutchinson, also joined by Justice Flaherty, opined that industry standards are

written by specialized individuals with knowledge of product design superior to that of




                                      [J-80-2013] - 61
courts and, as a result, evidence of such standards is relevant to the question of defect.

Justices Flaherty and Hutchinson concluded that evidence of industry standards was

admissible although not necessarily highly probative.

       Later, in Kimco Development Corporation v. Michael D’s Carpet Outlets, 637

A.2d 603 (Pa. 1993), the Court affirmed the decision of the Superior Court, and held

that the comparative negligence of a co-defendant is not a basis upon which to

decrease the amount of damages available premised upon a strict liability claim. In

Kimco, a shopping center owner and several tenants sued the manufacturer of

polyurethane foam carpet padding, which caught fire and damaged the shopping center,

as well as the tenant in whose store the fire broke out; the tenant-defendant

countersued the manufacturer and shopping center owner. The parties asserted claims

of negligence, breach of warranty, and strict liability in tort. The jury returned a verdict

in favor of the plaintiffs on theories of strict liability and negligence, apportioning

negligence responsibility 80/20 to the tenant-defendant and manufacturer, respectively.

In addition, the jury found in favor of the tenant-defendant and against the manufacturer

on a strict liability theory.   The trial court denied a motion to reduce the tenant-

defendant’s strict liability verdict against the manufacturer premised upon the

apportionment of responsibility in negligence. The Superior Court affirmed.

       On appeal, this Court rejected the manufacturer’s argument that comparative

negligence is a defense to a claim in strict liability. Initially, the Court noted that “[t]he

law amongst the various states is in considerable disarray on the point in question.”

The Court then reasoned that applying contributory negligence principles to strict liability

claims would cause “conceptual confusion” and would undermine the purpose of strict

liability: “[t]hroughout the development of [Section] 402A liability, we have been

adamant that negligence concepts have no place in a strict liability action.” Id. at 605-




                                      [J-80-2013] - 62
06 (citing Azzarello, McCown, and Berkebile). According to the Court, in strict liability,

“the focus is on the nature of the product and the consumer’s reasonable expectations

with regard to the product, rather than upon the conduct of either the manufacturer or

the person injured.” The Court concluded that permitting recoveries to be reduced

premised on negligence concepts would weaken the deterrent effect of the policy to

protect the consumer and to shift the risk of loss to the supplier of the defective product

“without regard to fault or privity of contract.”       Id. at 605-07.14   Justice Flaherty

dissented, premised upon the argument that strict liability without regard to

proportionate faults burdened business enterprises with liabilities that worked serious

detriment to the economy.



                   4.     Recent Cases and the Third Restatement

      In 1998, the ALI proposed a new restatement of the law relating specifically to

products liability. See RESTATEMENT (3D)   OF   TORTS: PRODUCTS LIABILITY §§ 1-8 (1998)

(Liability Rules Applicable to Products Generally). As is evident from the premise of this

litigation, this Court has not yet determined whether to adopt the formulation of the Third

Restatement as the law of Pennsylvania. However, the suggestion for a “move” to the

Third Restatement, or adoption of certain of its principles, has been made in several

non-precedential opinions.

14
         By comparison, doctrinal separation played a noticeably less prominent role in an
earlier decision relating to whether contributory negligence was an available defense to
a strict liability claim. In McCown v. International Harvester Co., 342 A.2d 381 (Pa.
1975), the Court held that contributory negligence was not an available defense in a
strict liability case because such recognition would contradict the normal expectation of
product safety upon which the strict liability cause of action is premised. “One does not
inspect a product for defects or guard against the possibility of product defects when
one assumes the item to be safe.” Id. at 382.




                                     [J-80-2013] - 63
       In 2003, the question before a six-Justice Court was whether a supplier was

responsible in strict liability to a consumer-plaintiff other than the intended user of the

product.   See Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) (OAJC).             The

plaintiff had alleged that the butane lighter designed and manufactured by the defendant

was defective because it lacked a safety device that would have prevented a two year-

old from setting the tragic fire that killed the child, his sibling and his mother. In relevant

part, the Court reversed the decision of the Superior Court and reinstated the trial

court’s summary judgment order. The Court was deeply divided in its reasoning.

       The single Justice OAJC authored by Mr. Chief Justice Cappy concluded that a

product is not defective if it is safe for its intended user. Id. at 1005. The OAJC rejected

the plaintiff’s argument that a manufacturer should be responsible for harm to a

foreseeable albeit unintended user, opining that foreseeability concepts have no

application in strict liability theory and foreseeable users may recover by proving

negligence.    Among other things, the OAJC recognized that some strict liability

decisions had relied upon foreseeability principles but the opinion denounced the

practice and would have reaffirmed the firm conceptual distinction between strict liability

and negligence causes of action. Id. at 1007 (citing Davis v. Berwind Corp., 690 A.2d

186 (Pa. 1997)). “Recognition that strict liability is not a type of mongrel derivative of

negligence is also consistent with the historical development of this cause of action.

Strict liability was intended to be a cause of action separate and distinct from

negligence, designed to fill a perceived gap in our tort law.” Id. (citing Azzarello, 391

A.2d at 1023-24). In a footnote, the OAJC noted the supplier’s alternative argument

relating to the Third Restatement, but deemed it waived. Mr. Justice Nigro concurred in

the result, without an opinion.       Madame Justice Newman filed a concurring and

dissenting opinion, in which she agreed with the OAJC that the strict liability claims




                                      [J-80-2013] - 64
failed because the lighter was safe for its intended use by adults; Justice Newman

dissented from that part of the opinion addressing the disposition of the plaintiff’s

negligence claim. Id. at 1024 (Newman, J., concurring and dissenting).

       Mr. Justice Saylor authored a concurring opinion, which this author and Mr.

Justice Eakin joined.    Justice Saylor advocated taking the opportunity to address

foundational matters, to reassess Pennsylvania’s Second Restatement approach, and

to examine the range of readily accessible, corrective measures, including adoption of

the Third Restatement. In relevant part, the concurrence addressed three points: first,

that strict liability doctrine is embedded with concepts central to negligence theory;

second, that ambiguities and inconsistencies in prevailing strict liability jurisprudence

affected the proper disposition of the appeal; and third, that the Third Restatement’s

approach would provide the most viable route to clarification and remediation of strict

liability jurisprudence in Pennsylvania.

       On the first point, Justice Saylor noted that the Second Restatement articulation

for the strict liability cause of action posed difficulties in application to design defect

claims. At origin, Justice Saylor explained, the standard derived from manufacturing

defect cases, in which “something went wrong in the manufacturing process” and the

resulting product was not as safe as intended. The core objectives of the Second

Restatement had been to relieve consumer-plaintiffs of the burden of proving that the

supplier had exercised due care in the manufacturing process (necessary to prove

negligence), and to spread the risk of loss among consumers. But, Justice Saylor

observed, courts had since recognized the “limitations of the just implementation of loss

spreading via judicially crafted doctrine.” Id. at 1013 n.3 (citing Duchess v. Langston

Corp., 769 A.2d 1131, 1145 (Pa. 2001)). Consistent with its purposes, the Second

Restatement declared a supplier liable even if it exercised all possible care in the




                                     [J-80-2013] - 65
preparation and sale of the product. But, application of the doctrine was limited to

defective products unreasonably dangerous to the consumer or his property.                  The

concurrence noted that the Second Restatement formulation, as a result, contained an

internal tension: the strict liability rule “was tempered by a negligence-based concept of

defect.” In application to design defect claims, the concurrence further observed, courts

in Pennsylvania recognized “an integral role for risk-utility (or cost-benefit) balancing,

derived from negligence theory.” Id. at 1013-14 (citing Azzarello, 391 A.2d at 1026;

Burch v. Sears, Roebuck & Co., 467 A.2d 615, 618 (Pa. Super. 1983); Dambacher v.

Mallis, 485 A.2d 408, 422 (Pa. Super. 1984)). As a result, while the rhetoric of retaining

a firm separation between strict liability and negligence remained pervasive in

decisional law, in application, the distinction was unnecessary: “[i]n design cases the

character of the product and the conduct of the manufacturer are largely inseparable.”

The concurrence advocated recognition of the essential role played by negligence-

derived risk-utility balancing in design defect litigation. Id. at 1015-16.

       Relating to the second point, the concurrence offered a critique of Azzarello,

which is particularly relevant since Omega Flex echoes the analysis in this appeal.

According to the concurrence, courts have implemented the Azzarello decision by: (1)

assigning the risk-utility balancing to trial courts on the facts most favorable to the

plaintiff; and (2) providing juries with minimalistic instructions that, in an effort to insulate

the jury from negligence terminology, “lack essential guidance concerning the nature of

the central conception of product defect.” Because the jury is not permitted to consider

the cost-benefit factors, neither judge nor jury “actually decide whether the true benefits

of the proposed alternative design outweigh the true cost” and whether the product is in

fact unreasonably dangerous or defective. Furthermore, the concurrence added that,

by omitting the critical “unreasonably dangerous” limitation on liability or cost-benefit




                                       [J-80-2013] - 66
instructions, the Azzarello-approved charge fails to define the term “defect” clearly, and

consequently fails to guide the jury in distinguishing products safe and unsafe for their

intended use.    The concurrence also noted that the use of the term “guarantor” in

relation to the manufacturer is not a sufficient limitation on liability, especially because

the term “to a lay jury will surely seem indistinguishable from ‘insurer.’” 841 A.2d at

1016-18 (citing Thomas, 71 Temp. L. Rev. at 225 & 232). The concurrence advocated

correction of this jurisprudence in the interest of justice.

        On the final point, the concurrence suggested the Third Restatement as a viable

alternative articulation of the standard of proof, with the potential to resolve the

persisting difficulties and to enhance fairness and efficacy in the liability schema. Id. at

1021.    According to the concurrence, the Third Restatement’s negligence-derived

standard represents “the distilled expression of thirty years of design-defect litigation.”

The concurrence summarized the general rule of the Third Restatement as follows: “a

product is deemed defective in design when the foreseeable risks could have been

reduced or avoided by the use of a reasonable alternative design, and when the failure

to utilize such a design has caused the product to be ‘not reasonably safe.’” The

concurrence explained that design defect liability under the Third Restatement is

predicated upon a concept of responsibility in which the determination is made by

reference to an independent assessment of advantages and disadvantages, rather than

by reference to the manufacturer’s own design or marketing standards, which are in fact

alleged to be unreasonable by the plaintiff.         Moreover, the concurrence stressed,

products are not defective simply because they are dangerous. Relevant to the issue in

Phillips, the concurrence added that the Third Restatement expressly incorporates

notions of reasonable foreseeability that would temper the exclusive reliance on the

risk-utility test. In the view of the concurrence, the Third Restatement provided the best-




                                       [J-80-2013] - 67
balanced and reasoned approach to strict liability in Pennsylvania. On a final note, the

concurrence opined that application of the strict liability doctrine should be closely

limited until the existing substantial deficiencies in the strict liability schema are

addressed and remedied by the Court.

       In 2006, the Court decided General Services, the case upon which Omega Flex

relies extensively. The Court there awarded the supplier a new trial, holding that the

trial court erred in failing to instruct the jury that a supplier is liable only for harm that

occurs in connection with the intended use of a product by an intended user. 898 A.2d

at 600 (citing Phillips, 841 A.2d at 1007 (OAJC); id. at 1018 (Saylor, J., concurring,

joined by Castille & Eakin, JJ.); id. at 1023 (Newman, J., concurring and dissenting). In

General Services, a Commonwealth agency asserted claims in strict liability against,

inter alia, the manufacturer of a synthetic chemical detected on surfaces and in the

ambient air of the Transportation and Safety Building, an office tower in Harrisburg,

following a fire that consumed building materials containing the chemical. The supplier

offered proposed jury instructions, which the trial court rejected, that would have

distinguished between the supplier’s liability exposure for fire-related and other

contamination with the synthetic chemical.

       In an opinion by Justice Saylor, the General Services Court noted the consensus

in Phillips, supra, against “expanding the scope of manufacturer liability without fault in a

generalized fashion” pending an overhaul of strict liability doctrine by the Court. In this

respect, the Court acknowledged that accidental combustion of the building materials

was foreseeable and that an argument could be made for the notion that safety for an

intended use of the materials should be deemed to encompass safety under such

circumstances. The Court nevertheless rejected the argument that expansion of liability

premised upon negligence-based foreseeability considerations was warranted,




                                      [J-80-2013] - 68
emphasizing an incongruity with simultaneously constraining a supplier’s resort to

negligence-based use-related defenses. See 898 A.2d at 600-04. Absent expansion of

liability, the Court explained, the Commonwealth agency could not recover damages

caused by the incineration of building materials, which was not a use intended by the

manufacturer. A cause of action in strict liability remained viable for harm caused by

contamination of the Commonwealth agency’s office building through off-gassing of the

chemical. Id. at 604.15

       Poised to address foundational questions relating to the application of the strict

liability doctrine in Pennsylvania, in 2008, the Court granted allowance of appeal in

Bugosh v. I.U. North Am., Inc., 942 A.2d 897 (Pa. 2008) (per curiam).                 In 2009,

however, the Court dismissed the ensuing appeal as improvidently granted; Justice

Saylor, joined by this author, dissented from the summary disposition. See Bugosh,

971 A.2d at 1228; id. at 1229-44 (Saylor J., dissenting, joined by Castille, C.J.).

       In a dissenting statement, Justice Saylor reiterated that foundational concerns

persisted in the area of strict liability and, by way of background, recapitulated the main


15
       Also of note, in General Services, Justice Newman dissented in part, and Mr.
Justice Baer joined Justice Newman’s expression. The dissent argued that the matter
implicated not a misuse of the product by a user, as Phillips had, but a situation in which
during an intended use by an intended user, the product was exposed to easily
anticipated conditions. Justice Newman would have found the doctrine of strict liability
applicable, on a theory akin to the “crashworthiness exception,” and would have denied
the manufacturer’s request for a new trial. Id. at 619. Omega Flex argues that the
Tinchers relied upon the theory described by the dissent and rejected by the General
Services majority. But, the General Services majority noted that its “discussion [did] not
address a situation in which a defect in the building materials is the cause of
combustion occurring during their ordinary use.” 898 A.2d at 601 n.11. The Tinchers’
allegations are precisely that a defect in the CSST was a cause of the fire occurring
during the CSST’s ordinary use. The decision in General Services is, as a result,
distinguishable on its face, notwithstanding Omega Flex’s arguments to the contrary.




                                     [J-80-2013] - 69
points of the Phillips concurrence. The dissent also noted that the categorical divide

between strict liability and negligence principles, articulated in the cases, is most readily

justified in manufacturing defect cases; claims implicating design or warning defect,

however, are far more problematic.        Relevant to design defect claims, the dissent

explained that doctrinal limiting principles evolved to contain the liability of product

suppliers because traditional notions of strict liability were ill-suited to a tort regime with

a largely open-ended damages scheme and the reality that all product designs are

capable of contributing to human injury. According to the dissent, the alternative of a

judicially imposed mandatory insurance scheme upon the business community is

unpalatable and incongruent with the general rejection of a pure loss-spreading tort

system. Id. at 1234-35 & n.10 (citing Cafazzo v. Central Med. Health Servs., Inc., 668

A.2d 521, 526 (Pa. 1995); Coyle, 584 A.2d at 1387).               The dissent suggested a

negligence-derived risk-utility approach to limiting supplier liability, aimed at establishing

liability boundaries and reconciling strict liability doctrine with the historical grounding of

tort law in notions of corrective justice. In this regard, the dissent noted with approval

decisional law regarding policy justifications for limiting supplier liability: “incentivizing

safer design by rewarding careful manufacturers; the recognition that a verdict for a

plaintiff in a product liability case is tantamount to a determination that an entire product

line is defective, and therefore, the higher threshold of fault is justified; a fault system

incorporates greater intrinsic fairness by not burdening manufacturers and their

customers with the cost of insuring against all possible losses; and liberalized modern

discovery rules should enable plaintiffs to learn the facts surrounding manufacturers’

deliberate design decisions.” Id. at 1235 & n.9 (citing Prentis v. Yale Mfg. Co., 365

N.W.2d 176, 185 (Mich. 1984)); see also id. at 1239-40; 1235 n.11 (quoting Wm. A.




                                      [J-80-2013] - 70
Worthington, THE “CITADEL” REVISITED: STRICT TORT LIABILITY AND THE POLICY OF LAW , 36

S. Tex. L. Rev. 227, 250-52 (1995)).

       Going forward, the dissent advocated moving beyond the doctrinal divide

between strict liability and negligence principles that was articulated by Azzarello.

Azzarello, according to the dissent, was not reasoned well in its time and has not

withstood the test of time.       Id. at 1236-37 (criticizing, inter alia, Azzarello Court’s

reliance on Cronin, 501 P.2d 1153, and Glass v. Ford Motor Co., 304 A.2d 562 (N.J.

Super. Ct. Law Div. 1973)).          The dissent suggested that existing jurisprudence

attempting to justify the doctrinal divide upon loss-spreading and deterrence-based

rationales was stated in “too conclusory terms” and “too powerful” language to be well-

reasoned. “Courts are not experts in manufacturer behavior, and there are equally

reasonable arguments to be made that a negligence-based standard does more to

encourage safer products than an absolute liability scheme.          Moreover, courts and

commentators have noted that these types of unsupported social policy judgments can

have tremendous social consequences.” Id. at 1239 (citing Prentis, supra; David G.

Owen, SYMPOSIUM: A TRIBUTE TO PROFESSOR DAVID FISCHER: DESIGN DEFECTS, 73 Mo. L.

Rev. 291, 296 (2008)). Among the consequences, the dissent noted that when a verdict

for the plaintiff in a design defect case effectively suggests that an entire product line is

defective, the consequence may involve a significant portion of a supplier’s assets and

deprive the public of the product. On a broader scale, such a liability scheme has the

potential to unduly disrupt product investment and innovation. Id.; see also Beard, 41

A.3d at 837 (same). According to the dissent, these potential effects are relevant in any

viable strict liability scheme.

       The dissent recognized some force in the argument that the General Assembly is

best positioned to alter the existing product liability schema. But, the dissent noted,




                                       [J-80-2013] - 71
because the Legislature had not occupied the arena, which remained in a state of

substantial disrepair that had “taken our jurisprudence too far from the legitimate home

of tort law in the concept of corrective justice,” action by the Court was permissible and

necessary.   “To the degree a distinct category of ‘strict’ product liability doctrine is

necessary, at most, it always has been, and rationally should be, one of quasi-strict

liability, tempered, in design and warning cases, with the legitimate involvement of

notions of foreseeability and reasonableness within the purview of the fact finder.” Id. at

1240. The dissent then suggested filling the “substantial void” that would be left by

disapproval of Azzarello with a prospective movement to the Third Restatement

position.

       Importantly, as an alternative, the dissent suggested that, while continuing the

search for the perfect vehicle by which to devise a replacement strict liability scheme,

the Court could “at least depart from Azzarello prospectively, thus clearing a path for our

common pleas and intermediate appellate courts to consider the reasoned

recommendations of the Third Restatement, as well as other reasoned alternatives

and/or refinements.”    Bugosh, 942 A.2d at 1241.        This latter approach would be

adequate because the difficulties described by the dissent are with Azzarello rather than

the Second Restatement itself.       In the dissent’s view, the Court should start by

reaffirming the understanding that “modern products liability law rests fundamentally on

the premise that manufacturers are fairly held to answer in the courts for the basic

safety of their products’ designs.” Id. at 1242 (citing Owen, 73 Mo. L. Rev. at 291). The

dissent suggested that, in that scenario, the Legislature could appropriately undertake

timely, comprehensive reform in light of the broader tools that it has available for

weighing competing interests.




                                     [J-80-2013] - 72
       In 2008, in parallel to the proceedings in Bugosh, the Court denied the request of

the U.S. Court of Appeals for the Third Circuit for certification of a question of law

relating to the application under Pennsylvania law of the intended use doctrine to

prevent recovery in strict liability by innocent bystanders. See Berrier, 959 A.2d at 901

(per curiam).        In a concurring statement, Justice Saylor noted his preference for

addressing the global issues pervading strict liability doctrine, before engaging in the

collateral effects implicated by the certified question. Relating to the application of the

intended user doctrine to limit liability, the concurrence observed that fair compensation

to bystanders was not precluded but, rather, it was channeled into negligence theory,

where claims would rise or fall on their merits. Id. (Saylor, J., concurring, joined by

Castille, C.J.).16

       In other relevant developments, the U.S. Court of Appeals for the Third Circuit

has predicted that, if this Court were to directly confront the issue, we would adopt the

Third Restatement’s formulation of the strict liability doctrine. See Berrier, 563 F.3d at

40.   The Third Circuit reasoned that Justice Saylor’s concurring opinion in Phillips

foreshadowed this Court’s adoption of Sections 1 and 2 of the Third Restatement’s

definition of the strict liability cause of action. Id. at 53. The Berrier Court went on to

apply Third Restatement principles to permit a bystander, as distinguished from a user

16
       In several recent cases, the Court resolved other claims tangential to
fundamental concepts of strict liability. See Schmidt, 11 A.3d at 939-41 (implicating
issues relating to product-line exception to general rule of successor non-liability, and to
whether plaintiff must show physical injury as threshold for recovery in strict liability);
Beard, 41 A.3d 823 (trial courts not restricted to considering single use of multi-use
product in design defect, threshold, risk-utility balancing); Reott v. Asia Trend, Inc., 55
A.3d 1088 (Pa. 2012) (supplier asserting that injured plaintiff’s “highly reckless conduct”
is sole and superseding cause of injury must plead and prove claim as affirmative
defense); Lance v. Wyeth, 85 A.3d 434 (Pa. 2014) (drug manufacturer subject to liability
in negligence for design defect).




                                       [J-80-2013] - 73
or consumer, to state a cause of action in strict liability. Id. at 61 (intended user doctrine

does not bar strict liability claim; vacating trial court’s decision to grant summary

judgment). See also Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011) (Third

Circuit applies Third Restatement, in accordance with which evidence of industry

standards is admissible because such evidence is relevant to question of whether

product is defective).17



             C.     The Continuing Viability of Azzarello and Its Progeny

       In this case, the question is posed of whether the rationale of Azzarello, and its

progeny, should retain viability.    Precedent, of course, is not infallible; if we are to

ensure both the perception and the reality of justice, we must be willing to reexamine

precedent if it is demonstrated that a prior rule does not serve, or no longer adequately

serves, the interests of justice. See Ayala, 305 A.2d at 888; Carney, 79 A.3d at 505.

       Here, the parties agree that the decision in Azzarello articulates governing legal

concepts which fail to reflect the realities of strict liability practice and to serve the

interests of justice. Several members of this Court have suggested in the past this very

assessment of Azzarello.        See, e.g., Phillips, 841 A.2d at 1016-18 (Saylor, J.,

concurring, joined by Castille and Eakin, JJ.); Berrier, 959 A.2d at 901 (Saylor, J.,


17
       Until Berrier, in diversity jurisdiction matters, the Third Circuit applied
Pennsylvania law as articulated in Azzarello. The Third Circuit predicted that this Court
would utilize a risk-utility analysis in making the Azzarello threshold determination of
whether the risk of loss should be placed on the supplier. The Circuit recognized that
this Court had not expressly approved of risk-utility approach in design defect matters;
the Third Circuit relied instead upon Superior Court precedent and inquired into
consistency with this Court’s pronouncements in existing decisional law. Surace v.
Caterpillar, Inc., 111 F.3d 1039, 1043-47 (3d Cir. 1997) (citing Lewis, supra, and
Dambacher v. Mallis, 485 A.2d 408, 423 n.5 (Pa. Super. 1984)).




                                      [J-80-2013] - 74
concurring, joined by Castille, C.J.); Bugosh, 971 A.2d at 1236-37 (Saylor, J.,

dissenting, joined by Castille, C.J.).   We agree that reconsideration of Azzarello is

necessary and appropriate and, to the extent that the pronouncements in Azzarello are

in tension with the principles articulated in this Opinion, the decision in Azzarello is

overruled. We add the following observations.

        As we have noted, Azzarello held that the phrase “unreasonably dangerous” is

per se misleading to lay jurors and, as a result, the Court dictated that any questions

relating to the risks and utilities of a product are to be decided by the trial court as a

matter of law and policy.      Moreover, Azzarello approved, and thereby essentially

required, instructions which informed the jury that, for the purposes of a supplier’s strict

liability in tort, “the product must, therefore, be provided with every element necessary

to make it safe for its intended) use.” 391 A.2d at 1025 & 1027 n.12. Subsequent

decisional law has applied Azzarello broadly, to the point of directing that negligence

concepts have no place in Pennsylvania strict liability doctrine; and, as we explain,

those decisions essentially led to puzzling trial directives that the bench and bar

understandably have had difficulty following in practice, including in the present matter.

Cf. Phillips, supra.

        The Azzarello Court premised its broad holding on the assumption that the term

“unreasonably dangerous” is misleading to jurors because it “tends to suggest

considerations which are usually identified with the law of negligence.” 391 A.2d at

1025.    Although that general notion had some support in prior observations in

Pennsylvania cases, see Berkebile, 337 A.2d at 899-900 (Jones, C.J.), the Azzarello

Court cemented the notion by focusing on the expression “unreasonably dangerous” out

of the context of the jury charge in which it appeared and pressing upon it a deceptively

simple, and indeed dogmatic, significance. See Commonwealth v. Murphy, 739 A.2d




                                     [J-80-2013] - 75
141, 146 (Pa. 1999) (Court evaluates jury charge to determine whether it is accurate

and clear statement of law; charge is read and considered in its entirety, and its general

effect controls); accord Commonwealth v. Sepulveda, 55 A.3d 1108, 1142 (Pa. 2012);

Commonwealth v. Lesher, 373 A.2d 1088, 1091 (Pa. 1977).

       That the Azzarello Court keyed into a negligence-strict liability dichotomy may be

explained by the Second Restatement’s explicit reference to negligence in the negative,

i.e., that compensation under Section 402A does not require proof of due care. The

Court parsed the language of the Second Restatement, particularly the terms “defective

condition” and “unreasonably dangerous,” for a precise meaning and the reporter’s

intent in the utilization of those terms. See 391 A.2d at 1024-25 (“We must focus upon

two requirements set forth in Section 402A for liability (physical injury) that the product

be ‘in defective condition’ and that it be ‘unreasonably dangerous.’”) (emphasis added).

But, Section 402A does not articulate legal “requirements” as a statute may; and,

moreover, the “intent” of the reporter is, of course, not due the same weight as a

pronouncement of legislative intent in statutory construction. Any given restatement

section simply states, or restates, principles of the common law, general rules reflecting

a purported consensus, whose validity ultimately depends on the reasoning that

supports them. Coyle, 584 A.2d at 1385. Yet, the Azzarello Court seemed to engage in

a statutory-type construction of Section 402A, including by proceeding to presume every

part of Section 402A effective. The rule derived by Azzarello premised upon this type of

analysis is that negligence concepts and rhetoric -- although addressed in the negative

by the Restatement -- somehow affected a plaintiff’s burden of proof in all strict liability

cases, regardless of the pertinent facts.

       Speaking in generalities, the Azzarello Court concluded that negligence-related

rhetoric saddles a plaintiff in a strict liability case with an additional and unwarranted




                                     [J-80-2013] - 76
burden of proof in every case. 391 A.2d at 1025 (quoting Cronin v. J.B.E. Olson Corp.,

501 P.2d 1153, 1161-62 (Cal. 1972)). The facts of Azzarello, when viewed with the

appropriate judicial modesty, did not require such a broad pronouncement. The issue of

“jury confusion” there arose in a distinct, fact-bound context of a jury trial in which claims

of strict liability and counter-claims of negligence were asserted against distinct parties.

The Azzarello Court offered no explanation of either the nature of the perceived

unwarranted additional burden nor how that burden altered the liability calculus for the

Azzarello jury.   Nor did the Azzarello Court explain the leap in logic necessary to

extrapolate that every lay jury would relate reasonableness and other negligence

terminology, when offered in a strict liability charge, to a “heavier,” negligence-based

burden of proof. Jury charges are generally delivered orally to ordinary citizens, and not

by written transmission to be pored over by scholars or lawyers aware of other forms of

liability not always at issue. See Sepulveda, 55 A.3d at 1142. The concern with across-

the-board jury confusion, especially where counsel is there to suggest adaptation of

standard charges and to hear the charge as a whole, is simply overstated. See id.

Distinctions in theories of products liability are no more or less confusing than in other

difficult areas of law -- note, as but one example, the shifting burdens, levels of proof,

and consensus requirements in the penalty phase of a capital case. It is generally

“incumbent upon the parties, through their attorneys, to aid courts in narrowing issues

and formulating appropriate instructions to guide juries in their factual determinations . .

. .”   Scampone, 57 A.3d at 598.        Yet, the Azzarello Court issued a decision that

conflated a determination of the facts and its related yet distinct conceptual

underpinnings, which essentially perpetuated jury confusion in future strict liability

cases, rather than dissipating it.




                                      [J-80-2013] - 77
        The Azzarello Court found support for its holding not in the Restatement itself, or

in any source of Pennsylvania law, but in the decisions of the Supreme Court of

California in Cronin, 501 P.2d 1153, and of the New Jersey Superior Court in Glass, 304

A.2d 562. While a broad application of Cronin could support the Azzarello Court’s

formulation, it is notable that the rationale of the decision was explained as significantly

narrower by latter California Supreme Court decisional law. See Barker, 573 P.2d at

446. Meanwhile, Glass was actually disapproved by the New Jersey Supreme Court in

Cepeda v. Cumberland Engineering Co., 386 A.2d 816, 829 (N.J. 1978), overruled on

other grounds by Suter v. San Angelo Foundry & Mach. Co., 406 A.2d 140 (N.J. 1979)

(superseded in part by statute).        Pennsylvania, unfortunately, did not adjust its

jurisprudence in light of these developments that eroded Azzarello’s underpinnings.

        It is also worth noting that Azzarello was distinguishable from Cronin on the facts.

In Cronin, the defendant challenged on appeal the trial court’s decision to deny an

instruction to the jury, which provided in pertinent part that, in addition to adducing proof

of a defect, the plaintiff had the burden of proving “[t]hat the defective condition made it

unreasonably dangerous to the user or consumer.”            501 P.2d at 1158 n.6.       The

defendant suggested a distinction between the two elements of proof, reminiscent of

liability for an abnormally dangerous activity, such as blasting. See RESTATEMENT (2D)

OF   TORTS § 519(1) (“One who carries on an abnormally dangerous activity is subject

to liability for harm to the person, land or chattels of another resulting from the activity,

although he has exercised the utmost care to prevent the harm.”) (emphasis added);

see also id. §§ 520-524A. The Cronin Court rejected the defendant’s challenge to the

jury instructions, on the ground that it placed an unwarranted burden of proof on the

plaintiff.




                                      [J-80-2013] - 78
       Importantly, decisional law eschews the Cronin defendant’s application of

Section 402A, and the causes of action in strict liability for products and for an

abnormally dangerous activity are recognized as carrying distinct burdens for the

plaintiff. By comparison, in Azzarello, the error of which the plaintiff complained on

appeal was that speaking of reasonableness in a jury instruction issued in a case in

which only negligence allegations were made against a cross-defendant/employer

tended to mislead the jury as to the plaintiff’s burden of proof in its own distinct strict

liability case against the defendant/manufacturer.       While similar considerations may

have been pertinent, certainly a nuanced analysis of the Cronin decision in the context

of the Azzarello arguments would have served for better generalized guidance to the

bench and bar.

       This case speaks volumes to the necessity of reading legal rules -- especially

broad rules -- against their facts and the corollary that judicial pronouncements should

employ due modesty. See Maloney, 984 A.2d at 489–90 (“For one thing, it is very

difficult for courts to determine the range of factual circumstances to which a particular

rule should apply in light of the often myriad possibilities”; of particular concern is “the

possibility that words or phrases or sentences may be taken out of context and treated

as doctrines.”). As courts have struggled with the application of the deceptively simple

Azzarello rule that a jury must be insulated from negligence concepts and rhetoric in

strict liability cases, decisional law has lapsed into an arguably unprincipled formulaic

application of rhetoric, threatening to render the strict liability cause of action hopelessly

unmoored in modern circumstances.

       Compounding the problem of extrapolating broad lessons from very particular

circumstances, the Azzarello Court accomplished its goal of insulating juries from

negligence concepts and rhetoric by: (1) holding that the determination “as to the risk of




                                      [J-80-2013] - 79
loss” is a decision to be made by the trial court rather than the jury; and (2) “approving”

jury instructions in strict liability cases generally. The Court explained this decision by

saying that: “While a lay finder of fact is obviously competent in resolving a dispute as to

the condition of a product, an entirely different question is presented where a decision

as to whether that condition justifies placing liability upon the supplier must be made.”

The Court then suggested that it is within the trial court’s bailiwick to answer questions

of law whose resolution “depends upon social policy” such as: “Should an ill-conceived

design which exposes the user to the risk of harm entitle one injured by the product to

recover? Should adequate warnings of the dangerous propensities of an article insulate

one who suffers injuries from those propensities? When does the utility of a product

outweigh the unavoidable danger it may pose?” According to the Court, “[i]t is a judicial

function to decide whether, under plaintiff’s averment of the facts, recovery would be

justified; and only after this judicial determination is made is the cause submitted to the

jury to determine whether the facts of the case support the averments of the complaint.

They do not fall within the orbit of a factual dispute which is properly assigned to the jury

for resolution.” Without further explanation of these broad assumptions, bottomed on

notions of social policy, the Court concluded that “[a] standard suggesting the existence

of a ‘defect’ if the article is unreasonably dangerous or not duly safe is inadequate to

guide a lay jury” and adopted in its stead a formulation by which the seller would be held

liable unless the seller “provide[d] with the product every element necessary to make it

safe for use.” 391 A.2d at 1025-27 (quoting Berkebile, 337 A.2d at 902 (Jones, C.J.)).

The 1987 decision in Lewis acknowledged Azzarello’s innovation, noting that it offered a

distinct standard from either a risk-utility test or a consumer expectation test. 528 A.2d

at 593.




                                      [J-80-2013] - 80
        The Azzarello Court attributed the new standard of proof to the one-justice lead

opinion of Chief Justice Jones in Berkebile, which the Court quoted out of context.

Additionally, the endorsed jury charge significantly altered the import of the Berkebile

passage. Compare Berkebile, 337 A.2d at 902 (Jones, C.J.) (emphasis added) (“seller

must provide with the product every element necessary to make it safe for use”;

notion of defect includes claim for failure to warn, in addition to claims for manufacturing

and design defects) (emphasis added) with Azzarello, 391 A.2d at 1027 n.12 (“product

must, therefore, be provided with every element necessary to make it safe for (its

intended) use, and without any condition that makes it unsafe for (its intended) use”)

(emphasis added).        Predictably, the “approval” of such jury instructions operated to

discourage the exercise of judicial discretion in charging the jury, including in the

Tinchers’ case, and likely stunted the development of the common law in this area from

proceeding in a more logical, experience-based and reason-bound fashion. See, e.g.,

N.T., 10/20/2010, at 825 (emphasis added).

        The greater difficulty is that the Azzarello standard is impracticable.        As an

illustration of its new standard’s application, the Azzarello Court offered that a supplier is

not an insurer of a product, although it is a guarantor; these terms of art, with no further

explanation of their practical import, also mirrored the standard jury charge approved by

Azzarello.     The Court did not purport to articulate a departure from the Second

Restatement formulation, nor did it discuss the reasoning for or implications of doing so.

Yet, the Azzarello Court chose this iteration of the law to fill the legal void caused by its

bright-line rule that any negligence rhetoric carries an undue risk of misleading lay jurors

in strict liability cases.

        Omega Flex, subscribing to existing criticism of this scheme, faults Azzarello for

(1) removing from the jury the risk-utility calculus implicated in what Azzarello called “the




                                       [J-80-2013] - 81
risk of loss” determination; and (2) requiring the trial court to make the determination

before the facts even are in evidence, premised merely upon the plaintiff’s allegations

and with all inferences benefitting the plaintiff. Although the argument is not explicitly

made to this Court, the obvious suggestion is that the scheme burdens the defendant’s

right to a fair jury trial. Setting aside any potential, but here unpreserved, due process

or right to a jury claims, the unsupported assumptions and conclusory statements upon

which Azzarello’s directives are built are problematic on their face.

       First, the notion that a legal inquiry into “whether that condition justifies placing

liability upon the supplier” (product is unreasonably dangerous) is, albeit distinguishable,

entirely separable from a factual inquiry into the predicate “condition of a product”

(defective condition of product) when determining whether to affix liability upon a

supplier is incompatible with basic principles of strict liability. Thus, in a jurisdiction

following the Second Restatement formulation of strict liability in tort, the critical inquiry

in affixing liability is whether a product is “defective”; in the context of a strict liability

claim, whether a product is defective depends upon whether that product is

“unreasonably dangerous.” Yet, Azzarello divorced one inquiry from the other: under

the Azzarello scheme, the trial court serves as the gate-keeper of one question with the

apparent task of deciding as a matter of law and policy whether a product is one even

susceptible to a strict liability claim. As a practical matter, the Azzarello decision did not

indicate at which point of the trial the court should consider the question, nor what

pleadings or evidence would be relevant to the inquiry; the Court did suggest, however,

that the matter “d[id] not fall within the orbit of a factual dispute.” 391 A.2d at 1026.

       Second, the practical reality, as exemplified by the matter before us, is that trial

courts simply do not necessarily have the expertise to conduct the social policy inquiry

into the risks and utilities of a plethora of products and to decide, as a matter of law,




                                      [J-80-2013] - 82
whether a product is unreasonably dangerous except perhaps in the most obvious of

cases (e.g., where injury is caused by a knife), where a gate-keeper’s function is hardly

necessary.    In this case, Omega Flex moved for summary judgment before trial, a

nonsuit after the close of the Tinchers’ case, and then renewed the motion for a nonsuit

after both parties rested, asking the court to determine whether the TracPipe System

was unreasonably dangerous. Although the trial court denied all motions, the court

addressed the merits of the risk-utility calculus on the record only in the context of the

motions for nonsuit. See N.T., 10/18/2010, at 514-15 (“The [trial c]ourt had denied the

[summary judgment] motion, presumably, although I don’t know for sure, because it

thought this might be an issue of fact that needed to be heard at trial.”). Given the

opportunity to rule on Omega Flex’s motions for nonsuit, the trial court reviewed the

evidence introduced at trial before denying the motions, in addition to evidence deemed

inadmissible at trial -- i.e., proof of a redesigned TracPipe System, marketed as

“Counterstrike,” that was resistant to lightning strikes. See id. at 514-26 & 721-41; Tr.

Ct. Op., 8/5/2011, at 11-20. This matter illustrates that the assumptions upon which the

Azzarello Court assigned the task of determining whether a product is unreasonably

dangerous are impractical. In the alternative, a strict reading of Azzarello is undesirable

because it would encourage trial courts to make either uninformed or unfounded

decisions of social policy that then substantially determine the course and outcome of

the trial.

        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 in

light of the considerations pertaining to the case. Beyond the merits of the narrow

holdings in the several cases, the effect of the per se rule that negligence rhetoric and




                                     [J-80-2013] - 83
concepts were to be eliminated from strict liability law was to validate the suggestion

that the cause of action, so shaped, was not viable, and to invite calls for reform. In

2009, the Third Circuit predicted that this Court would simply adopt the Third

Restatement approach to the strict liability doctrine; this Court has not taken that

decisional leap.



         D.     The Strict Product Liability Cause of Action in Pennsylvania

       Overruling Azzarello leaves a gap, going forward, in our strict liability

jurisprudence. The preferable solution may be to have the General Assembly address

this arena of substantive law.       But, so long as the possibility of comprehensive

legislative reform remains unlikely or uncertain, this Court retains the authority and duty

at common law to take necessary action to avoid injustice, uncertainty, delay, and the

possibility of different standards and procedures being employed in different courtrooms

throughout the Commonwealth. Accord Commonwealth v. Sanchez, 36 A.3d 24, 52

(Pa. 2011); see also Bugosh, 971 A.2d at 1240 & n.19 (Saylor, J., dissenting, joined by

Castille, C.J.) (addressing legislative and judicial roles in strict liability arena). This is

particularly so when the underlying problem derives from our own decisional law. The

Court is positioned to take the necessary corrective action in this matter and offer

guidance. See, e.g., Ayala, 305 A.2d at 883 (doctrine of immunity judicially imposed

may be judicially terminated) (quoting Molitor v. Kaneland Community Unit Dist. No.

302, 163 N.E.2d 89, 96 (Ill. 1959) (“‘Having found that doctrine to be unsound and

unjust under present conditions, we consider that we have not only the power, but the

duty, to abolish that immunity. We closed our courtroom doors without legislative help,

and we can likewise open them.’”)); see also Mayle v. Pa. Dep’t of Highways, 388 A.2d




                                      [J-80-2013] - 84
709, 720 (Pa. 1978) (Court may abolish judicial doctrine of sovereign immunity, which is

manifestly unfair and non-constitutional in origin).

        Strict liability in tort for product defects is a cause of action which implicates the

social and economic policy of this Commonwealth. See Ash v. Continental Ins. Co.,

932 A.2d 877, 884 (Pa. 2007) (“Tort actions lie for breaches of duties imposed by law as

a matter of social policy, while contract actions lie only for breaches of duties imposed

by mutual consensus agreements between particular individuals.”).18 The policy was

articulated by the concurring and dissenting opinion of Justice Jones in Miller, upon

which the Webb Court relied in “adopting” the strict liability theory as a distinct cause of

action in tort: those who sell a product (i.e., profit from making and putting a product in

the stream of commerce) are held responsible for damage caused to a consumer by the

reasonable use of the product. See Miller, 221 A.2d at 334-35 (Jones, J., concurring

and dissenting). The risk of injury is placed, therefore, upon the supplier of products.

Azzarello, 391 A.2d at 1023-24; accord Ellen Wertheimer, UNKNOWABLE DANGERS               AND

THE   DEATH OF STRICT PRODUCTS LIABILITY: THE EMPIRE STRIKES BACK, 60 U. Cin. L. Rev.

1183, 1184-85 (1992).        No product is expressly exempt and, as a result, the

presumption is that strict liability may be available with respect to any product, provided

18
       Because the strict liability cause of action developed at common law, relevant
policy justifications are derived from decisional law and scholarly commentary. As
noted, the General Assembly has not spoken affirmatively in relation to the strict liability
cause of action, although the Commonwealth has expressed its interest in protecting
consumers in several arenas by statute. See, e.g., Act 387 of 1968, P.L. 1224
(reenacted as Act 260 of 1976, P.L. 1166) (the “Unfair Trade Practices and Consumer
Protection Law”). The fair presumption arising from the General Assembly refraining for
50 years from acting otherwise is that the General Assembly has at least acquiesced in
the existence of the common law strict liability cause of action. See Everhart, 938 A.2d
at 307; compare Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d
830, 834-35 (Pa. 2013) (General Assembly amended statute to address gap which, in
interim nine years, had been governed by common law).




                                      [J-80-2013] - 85
that the evidence is sufficient to prove a defect. See RESTATEMENT (2D)         OF   TORTS §

402A cmt. b (cause of action in strict liability “cover[s] the sale of any product which, if

it should prove to be defective, may be expected to cause physical harm to the

consumer or his property”) (emphasis added); accord Prosser, 69 Yale L. J. 1103-04;

but see Hahn v. Richter, 673 A.2d 888 (Pa. 1996) (manufacturer immune from strict

liability defective design claim premised upon sale of prescription drugs without

adequate warning).

       A broad reading of this policy statement suggests that liability would attach

absolutely, once the consumer or user suffers harm; indeed, early proponents

supported such an application. See, e.g., Escola v. Coca Cola Bottling Co. of Fresno,

150 P.2d 436, 440 (Cal. 1944) (Traynor, J., concurring) (“In my opinion it should now be

recognized that a manufacturer incurs an absolute liability when an article that he has

placed on the market, knowing that it is to be used without inspection, proves to have a

defect that causes injury to human beings.”). But, experience has taught otherwise and,

in modern application, strict liability doctrine is a substantially narrower theory. Prosser,

69 Yale L. J. at 1143-46 (“Few products can ever be made entirely safe, and the

producer cannot be made an insurer of every one who may possibly be hurt.”).

       To explain its proper boundaries post-Azzarello, we address the fundamental

underpinnings of the cause of action: the duty imposed by law and what constitutes a

breach of the duty; and we also advert to additional matters such as causation,

damages, defenses, and effects on other doctrines where necessary.



                                     1.     The Duty

       “Tort actions lie for breaches of duties imposed by law as a matter of social policy

. . . .” Ash, 932 A.2d at 884. Since the tide turned with New York’s 1916 MacPherson




                                      [J-80-2013] - 86
decision,19 all American jurisdictions have accepted the existence of a duty in tort

arising from the supplier-consumer relationship.         Disagreement among jurisdictions

remains in defining the nature of that duty. Thus, the policy of some jurisdictions is that

those who engage in the business of selling a product are subject to a duty of due care

in manufacturing and selling the product.        See, e.g., Prentis, 365 N.W.2d at 186

(Michigan).20 By comparison, the policy of those jurisdictions that have incorporated the

Second Restatement into their common law is that those who engage in the business of

selling a product are subject to both a duty of care in manufacturing and selling the

product and a duty to sell a product free from a “defective condition.” The duty spoken

of in strict liability is intended to be distinct from the duty of due care in negligence.

RESTATEMENT (2D) OF TORTS § 402A(2).

       The duty in strict liability pertains to the duty of a manufacturer and of suppliers in

the chain of distribution to the ultimate consumer. The Restatement offers a functional

shorthand for the balancing of interests implicit in assessing the existence of the strict

liability duty in tort between those in a consumer/user-supplier relationship.           See

Scampone, 57 A.3d at 606; cf. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000)

(recognizing balancing calculus implicit in determining whether therapist owed parents


19
      MacPherson, supra, 217 N.Y. at 389 (“[i]f the nature of a thing is such that it is
reasonably certain to place life and limb in peril when negligently made, it is then a thing
of danger”; discarding requirement to prove that product was inherently dangerous (e.g.,
“poisons, explosives, and things of like nature”) to obtain compensation for harm caused
by negligent conduct).

20
       But, even the development of the proper bounds of the duty of care was not
without decades-long growing pains. See generally Martin v. Herzog, 126 N.E. 814
(N.Y. 1920); Palsgraf v. Long Island R. Co., 162 N.E. 99 (N.Y. 1928); The No. 1 of New
York, 61 F.2d 783 (2d Cir. 1932); Sinram v. Pennsylvania R. Co., 61 F.2d 767 (2d Cir.
1932); U.S. v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).




                                      [J-80-2013] - 87
of patient alleged duty of care (negligence)). In incorporating the strict liability cause of

action into Pennsylvania common law, the Webb Court expressly relied upon the

Second Restatement and relevant scholarly commentary to supply its justification. 220

A.2d at 854.       Indeed, comments b, c, g, and m to Section 402A of the Second

Restatement offer reasoned consideration of factors relevant in Pennsylvania to explain

the existence and nature of a seller’s duty in tort to a consumer. In part, comment c

explains that:

                          [A] seller, by marketing his product for use and
                 consumption, has undertaken and assumed a special
                 responsibility toward any member of the consuming public
                 who may be injured by it; that public has a right to and does
                 expect, in [the] case of products which it needs and for which
                 it is forced to rely upon the seller, that reputable sellers will
                 stand behind their goods; that public policy demands that the
                 burden of accidental injuries caused by products intended for
                 consumption be placed upon those who market them, and
                 be treated as a cost of production against which liability
                 insurance can be obtained; and that consumer of such
                 products is entitled to the maximum of protection at the
                 hands of someone, and proper persons to afford it are those
                 who market the products.
RESTATEMENT (2D) OF TORTS § 402A cmt. c.

       This reasoning explains the nature of the non-delegable duty articulated by the

Second Restatement and recognized in Webb. Stated affirmatively, a person or entity

engaged in the business of selling a product has a duty to make and/or market the

product -- which “is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold” -- free from “a defective condition

unreasonably dangerous to the consumer or [the consumer’s] property.”                Accord

RESTATEMENT (2D) OF TORTS § 402A(1).




                                        [J-80-2013] - 88
                                   2.      Breach of Duty

       Where a duty exists and, in the absence of a recognized immunity, the duty is

breached, and the breach of the duty is causally connected to a compensable injury

results, a tortious act results, regardless of whether the tortious act is construed

colloquially as fault. Compare Welch v. Outboard Marine Corp., 481 F.2d 252, 256 (5th

Cir. 1973) (“Fault as the violation of a duty -- even in the absence of negligence --

agrees with civilian principles generally . . . .”) with Putman, 338 F.2d at 913 n.8

(“[W]arranty (unlike negligence which is a tort concept based on fault) is not a concept

based on fault or on the failure to exercise reasonable care. But this does not mean

that warranty is necessarily contractual or non-tortious in nature.”). To demonstrate a

breach of duty in a strict liability matter, a plaintiff must prove that a seller (manufacturer

or distributor) placed on the market a product in a “defective condition.”

       In this context, the concept of defective condition is a legal term of art, which

denotes neither its colloquial import nor a scientifically immutable fact.           “The term

‘defect’ in design cases is ‘an epithet -- an expression for the legal conclusion rather

than a test for reaching that conclusion.’” Prentis, 365 N.W.2d at 182 (quoting John W.

Wade, ON PRODUCT “DESIGN DEFECTS”           AND   THEIR ACTIONABILITY, 33 Van. L. Rev. 551,

552 (1980)); accord John W. Wade, ON              THE   NATURE   OF   STRICT TORT LIABILITY   FOR

PRODUCTS, 44 Miss. L.J. 825, 831-32 (1973) (see infra n.21).                  Stated otherwise,

evidentiary considerations (e.g., what evidence tends to prove the existence of a legal

defect) should not be mistaken for the question of whether a substantive duty in strict

liability exists or should exist, or what constitutes a breach of that duty.            Accord

Scampone, 57 A.3d at 606 (evidence of whether nursing home was similar to hospital

not dispositive of whether nursing home owed patient substantive duty in tort); Gilbert v.

Korvette, Inc., 327 A.2d 94, 96-97 (Pa. 1974) (correcting confusion regarding res ipsa




                                        [J-80-2013] - 89
loquitur doctrine, which was “conceived as a shorthand statement of the evidentiary rule

allowing negligence to be established by circumstantial proof” but erroneously

developed into heightened burden of proving duty of care).            In Pennsylvania, the

question of whether those who make or market products have duties in strict liability (in

addition to negligence) has been answered in the affirmative by the 1966 decision in

Webb. The question which has proven substantially more difficult has been one of

proof: what evidence is relevant to prove a “defective condition” and how should that

evidence be weighed.



                3.     The Standard of Proving “Defective Condition”

                      In the Context of a Design-Related Claim21

       Not least because of its colloquial use and attendant implications of a scientific

level of certainty, courts across jurisdictions have struggled to articulate the legal notion

of “defect” in a way that would account for such an alleged condition, encompassing the

myriad products on the market, in a way that can effectively resonate with a jury. The

difficulty persists particularly with respect to defects in design. See Bugosh, 971 A.2d at

1234 (Saylor, J., dissenting); see also Owen, 73 Mo. L. Rev. at 291-92 & n.2 (citing

cases from other jurisdictions).     Dean John W. Wade22 explained the difficulty as

follows:



21
       Our decision is limited to the context of a “design defect” claim by the facts of this
matter, albeit the foundational principles upon which we touch may ultimately have
broader implications by analogy.

22
      John W. Wade was dean of Vanderbilt University’s law school from 1952 to
1971, and a senior authority in the publication of the case law book “Prosser, Wade and
Schwartz’s Torts, Cases and Materials.”




                                      [J-80-2013] - 90
                     [T]he term “defective” raises many difficulties. Its
              natural application would be limited to the situation in which
              something went wrong in the manufacturing process, so that
              the article was defective in the sense that the manufacturer
              had not intended it to be in that condition. To apply it also to
              the case in which a warning is not attached to the chattel or
              the design turns out to be a bad one or the product is likely
              to be injurious in its normal condition, is to use the term in a
              Pickwickian sense, with a special, esoteric meaning of its
              own. It is not without reason that some people, in writing
              about it, speak of the requirement of being “legally
              defective,” including the quotation marks. To have to define
              the term to the jury, with a meaning completely different from
              the one they would normally give to it, is to create the
              chance that they will be misled. To use it without defining it
              to the jury is almost to ensure that they will be misled. . . .
              Finally, the term “defective” gives an illusion of certainty by
              suggesting a word with a purported specific meaning rather
              than a term connoting a standard involving the weighing of
              factors.
Phillips, 841 A.2d 1017-18 (Saylor, J., concurring) (quoting Wade, 44 Miss. L. J. at 831-

32) (footnote omitted).

       In addressing the disputed notion of “defective condition,” we start with the

assumption that, as with any other tort relationship, the supplier and the consumer are

protecting legitimate but conflicting interests; the purpose of the court at common law is

to evaluate the interests and articulate the principles based upon where the line is

drawn in individual cases. See Glenn v. Point Park Coll., 272 A.2d 895, 899 (Pa. 1971).

In any particular case, argumentation by a party -- with whatever creative flair is offered

-- seeks to give ascendancy to that party’s interests; the most persuasive arguments

advance the interests of all parties, preferably in actuality but often simply in

appearance. The role of the court in deciding questions of law, and dispositive motions,

is to assess the validity of the argumentation and test it against the facts, the governing

law, policy, and reason. The court’s process “results in according or denying a privilege




                                     [J-80-2013] - 91
which, in turn, determines liability.” Id. In articulating rules at common law in this area,

then, we also outline the socially acceptable bounds of a product’s danger that form the

predicate for conduct which the law regards as privileged. See id. This function helps

to ensure regularity and predictability in the processes of law.

       In the products liability arena, the individual consumer or user of the product

retains primary interests in the safe continued use of a product and, relatedly, in the

cost of any injury caused by the product.        See Coyle, 584 A.2d at 1387 (quoting

RESTATEMENT (2D)    OF   TORTS § 402A cmt. c). The consumer has additional economic,

moral, and visceral interests in the sales price of the product, the availability of new or

innovative products, and in any spillover effects (e.g., increased social welfare and

reduced strain on public resources related to fewer injuries and improved health;

increased employment, investment opportunities, value of shareholder equity). Accord,

e.g., Tooey v. AK Steel Corp., 81 A.3d 851, 857 (Pa. 2013) (cost of workers’

compensation scheme is paid by employer but, ultimately, passed on to consuming

public). These interests are also shared by members of the public generally, albeit

more diffusely. For the individual supplier, the assumed primary interest is to generate

a sustained profit, above the cost of doing business. Accord Wertheimer, 60 U. Cin. L.

Rev. at 1185. A supplier also retains complementary economic interests in maintaining

a reputable name and in providing new or innovative products, which requires, among

other things, financial flexibility beyond mere profitability. See Beard, 41 A.3d at 837 &

n.16; Miller, 221 A.2d at 334-35 (Second Restatement reflects expectation that

manufacturers and sellers will stand behind their products). Another motivating factor

may be a moral interest in providing a safe product with minimal negative externalities

or spillover effects (e.g., environmental impact). Concomitantly, suppliers across the




                                     [J-80-2013] - 92
same and/or related industries may share similar, albeit diluted, interests regarding

profitability and reputability on industry-wide bases.23

       As they have been passed down to the present, the common law principles that

delineate the strict liability cause of action, and the limits upon strict liability, reflect a

balance of interests respecting what is socially or economically desirable.            Accord

Whitner v. Von Hintz, 263 A.2d 889, 893 (Pa. 1970) (common law notion of “proximate

cause” allows periodic adjustment between recovery for wrong and limits upon liability

to advance desirable policy outcomes).          The calculus is sensitive to the varying

magnitude of the interests and, sometimes perversely, to the force with which each

interest is asserted from time to time. Compare Escola, 150 P.2d at 441 (Traynor, J.,

concurring) (“The cost of an injury and the loss of time or health may be an

overwhelming misfortune to the person injured, and a needless one, for the risk of injury

can be insured by the manufacturer and distributed among the public as a cost of doing

business.”); Prosser, 69 Yale L. J. at 1119-22 (rejecting idea that “liability should never

rest upon anything but fault,” as “a position certainly out of date in this day and

generation”) with Bugosh, 971 A.2d at 1235 & n.9 (Saylor, J., dissenting) (citing Prentis,

365 N.W.2d at 185) (justifications for limiting liability include: “incentivizing safer design

by rewarding careful manufacturers; the recognition that a verdict for a plaintiff in a

23
       The more diffuse industry-wide and public interests are represented by the
several amici curiae filing briefs in this matter. The following entities have filed briefs:
(1) in support of Omega Flex: Crane Company, the Atlantic Legal Foundation, the
Pacific Legal Foundation, the Pennsylvania Business Council et al., the Product Liability
Advisory Council, Inc., and Sherwin-Williams et al.; and (2) in support of the Tinchers:
the Pennsylvania Association for Justice. The amici offer essentially the same legal and
policy arguments as those parties in support of whom their briefs were filed. We note
that, although amicus arguments and interests will not be dispositive as a general
proposition, their representation often affects the scope of the principle articulated (for
example, amicus’s interests often offer the court a broader perspective on the relevant
issues to appropriately narrow the holding).



                                      [J-80-2013] - 93
product liability case is tantamount to a determination that an entire product line is

defective. . . ; a fault system incorporates greater intrinsic fairness by not burdening

manufacturers and their customers with the cost of insuring against all possible losses”);

Worthington, 36 S. Tex. L. Rev. at 250-52 (addressing increase in cost of product

liability insurance premiums)); accord Prosser, 69 Yale L. J. at 1104-06 (relating ascent

of strict liability to “pitch of hysteria” following Department of Agriculture investigations

into unsanitary and dangerously unsafe supply of food, and publication of “sensational

novel” by Upton Sinclair); John F. Vargo, THE EMPEROR'S NEW CLOTHES: THE AMERICAN

LAW INSTITUTE ADORNS A “NEW CLOTH” FOR SECTION 402A PRODUCTS LIABILITY DESIGN

DEFECTS--A SURVEY OF THE STATES REVEALS A DIFFERENT W EAVE, 26 U. Mem. L. Rev.

493, 515-36 (1996) (describing internal criticism that membership of American Law

Institute drafting Third Restatement “[wa]s largely comprised of those who represent[ed]

corporate interests” and who “fail[ed] to leave the client at the door”).

       Against this background, two standards have emerged, that purport to reflect the

competing interests of consumers and sellers, upon which all American jurisdictions

judge the adequacy of a product’s design: one measures “consumer expectations,” and

articulates the standard more from the perspective of the reasonable consumer; the

second balances “risk” and “utility,” and articulates the standard more from the

perspective of the reasonable seller. Other jurisdictions and the Third Restatement

have combined the two standards. See generally Owen, 73 Mo. L. Rev. at 299-300.

We describe the alternatives.



                           Consumer Expectations Standard

       The consumer expectations test defines a “defective condition” as a condition,

upon normal use, dangerous beyond the reasonable consumer’s contemplations. See,




                                      [J-80-2013] - 94
e.g., Welch, 481 F.2d at 254; see also David G. Owen, PRODUCTS LIABILITY LAW , at § 5.6

(Hornbook Series) (2d ed. 2008) (hereinafter referred to as “Owen, HORNBOOK”)

(describing provenance and alternative formulations). The test offers a standard of

consumer expectations which, in typical common law terms, states that: the product is

in a defective condition if the danger is unknowable and unacceptable to the average or

ordinary consumer.         See Welch, 481 F.2d at 254 (“A product is defective and

unreasonably dangerous[, inter alia,] if the risks are greater than a reasonable buyer

would expect.”). The test has been described as reflecting the “surprise element of

danger.” Owen, HORNBOOK, at 303 n.12 (quoting Hon. Roger Traynor, THE W AYS          AND

MEANINGS    OF   DEFECTIVE PRODUCTS     AND   STRICT LIABILITY, 32 Tenn. L. Rev. 363, 370

(1965)).   The product is not defective if the ordinary consumer would reasonably

anticipate and appreciate the dangerous condition of the product and the attendant risk

of injury of which the plaintiff complains (e.g., a knife). See Vincer v. Esther Williams

All-Aluminum Swimming Pool Co., 230 N.W.2d 794, 798 (Wis. 1975); see also

RESTATEMENT (2D)      OF   TORTS § 402A cmt. i (“The article sold must be dangerous to an

extent beyond that which would be contemplated by the ordinary consumer who

purchases it, with the ordinary knowledge common to the community as to its

characteristics.”).   The nature of the product, the identity of the user, the product’s

intended use and intended user, and any express or implied representations by a

manufacturer or other seller are among considerations relevant to assessing the

reasonable consumer’s expectations. See, e.g., Mikolajczyk, 901 N.E.2d at 336; Jarke

v. Jackson Prods., 631 N.E.2d 233, 238-40 (Ill. App. 1st Dist. 1994); Owen, HORNBOOK,

at 303, 307-09; see also RESTATEMENT (2D) OF TORTS § 402A cmt. i (“Good butter is not

unreasonably dangerous merely because, if such be the case, it deposits cholesterol in




                                       [J-80-2013] - 95
the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish

oil, is unreasonably dangerous.”).

       The language of the consumer expectations test derives from the Second

Restatement’s commentary on the principles designated to limit liability, i.e., “defective

condition” and “unreasonably dangerous.” RESTATEMENT (2D) OF TORTS § 402A cmts. g

& i. Several commentators have suggested that this test reflects the warranty law roots

of strict liability in tort, and serves to vindicate significant interests central to the public

policy justifying the strict liability cause of action in the first place:


                       Powerful reasons support protections of a consumer’s
               expectations of product safety that arise from the safety
               representations of a manufacturer or other seller, whether
               those representations be express or implied. When making
               safety “promises” in an effort to sell its products, a
               manufacturer seeks to convince potential buyers that its
               affirmations are both valuable and true. Safety information is
               valuable to users because it provides a “frame of reference”
               that permits a user to shift his or her limited cognitive and
               other resources away from self-protection toward the pursuit
               of other goals -- which in turn shifts responsibility for
               protecting the user to the manufacturer. In this manner, true
               safety information adds value to the product by enhancing
               the user’s autonomy, for which value the consumer fairly
               pays a price. So, if the information is not true but false, the
               purchaser loses significant autonomy, as well as the benefit
               of the bargain. Since an important purpose of the law is to
               promote autonomy, and the equality of the buyer to the seller
               as reflected in their deal, the law fairly may demand that the
               seller rectify the underlying falsity and resulting inequality in
               the exchange transaction if harm results.
Owen, HORNBOOK, at 303 (footnote omitted); compare Putman, 338 F.2d at 913 n.8

(“Liability in warranty arises where damage is caused by the failure of a product to

measure up to express or implied representations on the part of the manufacturer or

other supplier.”).


                                         [J-80-2013] - 96
       Application of the consumer expectations test in its purest form, however, has

theoretical and practical limitations. First, products whose danger is obvious or within

the ordinary consumer’s contemplation would be exempt from strict liability; some

therefore have said that related consumer safety expectations regarding the presence

of the danger are too low. See, e.g., Ahrens v. Ford Motor Co., 340 F.3d 1142 (10th

Cir. 2003) (affirming district court decision that manufacturer not liable for defective

design of tractor without seatbelt or for failing to warn of danger because plaintiff failed

to adduce sufficient evidence that risk of danger was beyond contemplation of ordinary

consumer).    Second, a product whose danger is vague or outside the ordinary

consumer’s contemplation runs the risk of being subjected to arbitrary application of the

strict liability doctrine; jury determinations of consumer expectations regarding the

presence of danger are unpredictable. This difficulty is characteristic of products of

relatively complex design. See, e.g., Heaton v. Ford Motor Co., 435 P.2d 806 (Or.

1967). The Heaton Court explained:

                     [A product] should be strong enough to perform as the
              ordinary consumer expects. . . . The jury is supposed to
              determine the basically factual question of what reasonable
              consumers do expect from the product. Where the jury has
              no experiential basis for knowing this, the record must
              supply such a basis. In the absence of either common
              experience or evidence, any verdict would, in effect, be the
              jury’s opinion of how strong the product [s]hould be. Such
              an opinion by the jury would be formed without the benefit of
              data concerning the cost or feasibility of designing and
              building stronger products. Without reference to relevant
              factual data, the jury has no special qualifications for
              deciding what is reasonable.
Id. at 809; see also Soule v. Gen. Motors Corp., 882 P.2d 298, 308 (Cal. 1994) (“[A]

complex product, even when it is being used as intended, may often cause injury in a

way that does not engage its ordinary consumers’ reasonable minimum assumptions



                                     [J-80-2013] - 97
about safe performance. For example, the ordinary consumer of an automobile simply

has ‘no idea’ how it should perform in all foreseeable situations, or how safe it should be

made against all foreseeable hazards.”).

       The consumer expectations test, because of the “obvious defect” exception and

vagueness concerns, has practical limitations in vindicating the basic public policy

undergirding strict liability, i.e., that those who sell a product are held responsible for

damage caused to a consumer despite the reasonable use of the product and that any

product is, presumptively, subject to liability on a theory of strict liability premised upon

this policy. See Miller, 221 A.2d at 334-35 (Jones, J., concurring and dissenting).



                                  Risk-Utility Standard

       The difficulty related to vindicating the salient public policy in cases in which the

alleged defective condition is premised upon either an obvious danger or a danger

outside the ordinary consumer’s contemplation suggests that a different approach is

necessary and appropriate for judging the reasonableness of danger, at least respecting

some products. American jurisdictions, including Pennsylvania, apply a test balancing

risks and utilities or, stated in economic terms, a cost-benefit analysis. See Owen,

HORNBOOK, at § 5.7; Azzarello, 391 A.2d at 1026. The test offers a standard which, in

typical common law terms, states that: a product is in a defective condition if a

“reasonable person” would conclude that the probability and seriousness of harm

caused by the product outweigh the burden or costs of taking precautions. See, e.g.,

Denny v. Ford Motor Co., 662 N.E.2d 730, 735 (N.Y. 1995); Barker, 573 P.2d at 456;

accord Welch, 481 F.2d at 256 (product is defective if reasonable seller would not sell

product knowing of risks involved). Stated otherwise, a seller’s precautions to advert

the danger should anticipate and reflect the type and magnitude of the risk posed by the




                                      [J-80-2013] - 98
sale and use of the product.        See Owen, HORNBOOK, at 315 (risk-utility standard

“demands that manufacturers adopt precautions proportionate to the magnitude of the

expected risk”).

       The risk-utility test offers courts an opportunity to analyze post hoc whether a

manufacturer’s conduct in manufacturing or designing a product was reasonable, which

obviously reflects the negligence roots of strict liability. See Blue v. Envt’l Eng’g, Inc.,

828 N.E.2d 1128, 1140-41 (Ill. 2005) (“[I]t has been observed that the kind of hindsight

analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in

the product's design, has all the earmarks of determining negligence.”); see also U.S. v.

Carroll Towing Co., 159 F.2d at 174 (Judge Learned Hand’s formula).                     Other

jurisdictions have generally cited favorably the works of Dean Wade, which articulated

factors relevant to the manufacturer’s risk-utility calculus implicated in manufacturing or

designing a product. See, e.g., Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 260-61

(Ill. 2007) (citing cases from multiple jurisdictions). The factors are:

              (1) The usefulness and desirability of the product—its utility
              to the user and to the public as a whole.
              (2) The safety aspects of the product—the likelihood that it
              will cause injury, and the probable seriousness of the injury.
              (3) The availability of a substitute product which would meet
              the same need and not be as unsafe.
              (4) The manufacturer’s ability to eliminate the unsafe
              character of the product without impairing its usefulness or
              making it too expensive to maintain its utility.
              (5) The user’s ability to avoid danger by the exercise of care
              in the use of the product.
              (6) The user’s anticipated awareness of the dangers inherent
              in the product and their availability, because of general
              public knowledge of the obvious condition of the product, or
              of the existence of suitable warnings or instructions.
              (7) The feasibility, on the part of the manufacturer, of
              spreading the loss by setting the price of the product or
              carrying liability insurance.



                                      [J-80-2013] - 99
Id. (quoting Wade, 44 Miss. L. J. at 837–38). But, while these considerations may

provide a holistic perspective on a manufacturer’s choice to bring a product to market,

they may not be immediately responsive in the (typical) case implicating allegations

relating to a particular design feature. See Owen, HORNBOOK, at 315 (“[T]he issue

properly litigated almost always concerns the narrow “micro-balance” of pros and cons

of a manufacturer’s failure to adopt some particular design feature that would have

prevented the plaintiff’s harm. . . .”); but see Beard, 41 A.3d at 838 (trial courts not

restricted to considering single use of multi-use product in design defect, threshold, risk-

utility balancing). The difficulty in presenting the issue to the jury, Professor Owen

suggests, is resolved by reference to Judge Learned Hand’s formula, which “succinctly

captures the common sense idea that products are unacceptably dangerous if they

contain dangers that might cost-effectively (and practicably) be removed.”             Owen,

HORNBOOK, at 315 (applying Hand formula in strict liability means that jury will decide

whether seller “fails to adopt a burden of precaution of less magnitude than the harm it

is likely to prevent”).

       Application of a risk-utility balancing test in its purest form likewise has theoretical

and practical shortcomings. The goal and strength of a pure risk-utility test is to achieve

efficiency or “to maximize the common good”; yet, this is also its perceived weakness.

See Owen, HORNBOOK, at 316. For, while efficiency is certainly a salutary goal of the

law, it is not its only purpose and, in some respects, it conflicts with bedrock moral

intuitions regarding justice in determining proper compensation for injury to persons or

property in individual cases. Compare id. at 318 (“manufacturer applying cost-benefit

analysis to safety decision-making in good faith thereby necessarily respects the

equality and safety rights of consumers as a group”) with William E. Nelson, THE MORAL

PERVERSITY    OF THE   HAND CALCULUS, 45 St. Louis U. L. J. 759, 761 (2001) (describing




                                      [J-80-2013] - 100
limitations of risk-utility analysis in negligence context; “[U]ltimately the Hand calculus is

not about social efficiency, love, friendship or moral arrogance.           It is only about

compensation. The Hand calculus does not tell an entrepreneur whether or not to

engage in conduct that will hurt one person and help another. . . . The Hand calculus

serves a much narrower function. It tells an entrepreneur only that, if she engages in

conduct that causes others to lose more than she gains, she will have to compensate

them for their losses, but that, if she gains more than they lose, no duty of

compensation will arise. . . . It is this very narrowness of the Hand calculus that makes

it so morally perverse. . . . ”).      We should be mindful that public policy adjusts

expectations of efficiency and intuitions of justice considerations, informing a seller’s

conduct toward consumers as a group, and ensuring proper compensation in individual

cases by judicial application of the strict liability cause of action.

       Of course, several other causes of action in tort incorporate a risk-utility hindsight

analysis: for example, negligence and strict liability for abnormally dangerous activities

(i.e., the use of product in manner and context where danger is substantial,

unavoidable, and dissonant among neighboring uses, see Owen, HORNBOOK, at 328).

Neither of those actions involves a pure application of the risk-utility calculus. Accord

Nelson, 45 St. Louis U. L. J. at 767 (“In sum, it might be right to understand the Hand

calculus as a device for articulating our moral intuitions rather than a device for

superceding them.”); accord Blue, 828 N.E.2d at 1140-41 (hindsight analysis inherent in

risk-utility test has earmarks of determining negligence). Nor are these causes of action

the same, albeit when they define the scope of compensation, they use similar rhetoric

implicating danger / risk and reasonableness. See generally, supra, n.18 (explaining

Cronin). The distinction draws upon the public policy that each cause of action

vindicates, which incorporates moral intuitions drawn from communal social experience




                                       [J-80-2013] - 101
for the purposes of modifying (most often attenuating) the effect of a risk-utility

application to ascertain appropriate compensation. Ultimately, distinct duties (whether

statutory or common law) and related causes of action develop to reflect determinations

regarding a desirable allocation of risk. Cf. Kernan v. Am. Dredging Co., 355 U.S. 426,

438 (1958) (Federal Employers’ Liability Act aimed at “adjusting equitably between the

worker and his corporate employer the risks inherent in the railroad industry . . . plainly

rejected many of the refined distinctions necessary in common-law tort doctrine for the

purpose of allocating risks between persons who are more nearly on an equal footing as

to financial capacity and ability to avoid the hazards involved.”).



                                     Combined Tests

       A number of jurisdictions have expressly or implicitly combined the consumer

expectations and risk-utility standards. One approach is to state the two standards in

the alternative; a plaintiff’s injury is compensable whether either test is met. See, e.g.,

Barker, 573 P.2d at 457-58 (discussed infra); Calles, 864 N.E.2d at 257; Welch, 481

F.2d at 254 (“A product is defective and unreasonably dangerous when a reasonable

seller would not sell the product if he knew of the risks involved or if the risks are greater

than a reasonable buyer would expect.”).          The combined standard, which states

consumer expectations and risk-utility tests in the alternative, retains the features of

each test, in practice, offering the parties a composite of the most workable features of

both tests. See Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 884-85 (Alaska 1979)

superseded in part by Alaska Stat. § 09.17.060 (1986); accord Soule, supra.

       A second approach is to incorporate the risk calculus into a test of consumer

expectations or, vice versa, to incorporate consumer expectations into the risk-utility

determination.    See, e.g., Vautour, 784 A.2d at 1182 (internal citations omitted)




                                     [J-80-2013] - 102
(“[P]roduct ‘must be dangerous to an extent beyond that which would be contemplated

by the ordinary consumer who purchases it, with the ordinary knowledge common to the

community as to its characteristics.’ . . .      [W]hether a product is unreasonably

dangerous to an extent beyond that which would be contemplated by the ordinary

consumer is determined by the jury using a risk-utility balancing test.”); RESTATEMENT

(3D)   OF   TORTS: PRODUCTS LIABILITY § 2 cmt. f (“A broad range of factors may be

considered in determining whether an alternative design is reasonable and whether its

omission renders a product not reasonably safe. The factors include . . . the nature and

strength of consumer expectations regarding the product, including expectations arising

from product portrayal and marketing.”); id. § 2 cmt. g (“consumer expectations do not

constitute an independent standard for judging the defectiveness of product designs”).

        Courts, moreover, have offered some variations on each of these approaches. In

California, for example, the Barker court allocated to the supplier the burden to prove

the adequacy of a product’s design under the “risk-benefit” standard (i.e., to disprove a

plaintiff’s prima facie case that a product is defective). The Court reasoned that most of

the evidentiary matters which may be relevant in a typical case involve technical issues

peculiarly within the knowledge of the manufacturer. 573 P.2d at 455. Commentators

have suggested that another California case, see Soule, supra, offered yet another

variation by which the applicability of either prong of the combined Barker test depends

upon the complexity of the product. See Owen, HORNBOOK, at 325; Henderson, 83

Cornell L. Rev. at 899 (Soule “found the test unsuitable for cases involving product

designs of any complexity. The court in Soule held that it would thereafter countenance

use of a limited consumer expectations test in cases ‘in which the everyday experience

of the product’s users permits a conclusion that the product’s design violated minimum

safety assumptions.’”) (footnotes omitted).




                                    [J-80-2013] - 103
       It is questionable, however, that the Soule court sought to foreclose strict liability

claims premised upon a simple / complex classification, as the commentators have

suggested. Such a standard begs -- or shifts -- the question of which designs are

complex enough for application of the preferred test. Moreover, the implication that a

distinct class of “simple” products is subject to a consumer expectations standard of

liability which is relatively unsuccessful at producing fair results is contradicted by

Soule’s continued adherence to that standard. See Henderson, 83 Cornell L. Rev. at

879-82 (disappointment of consumer expectations is inappropriate standard for

defectiveness in classic design cases).       Ourselves having had the experience of

attempting to bring various principles to bear upon a single complex case, we believe

that, placed into its proper context, Soule may be read as simply commenting upon the

court’s experience with analogous matters and offering guidance to aid trial courts in

properly guiding the parties and the jury through the litigation process:

                     As we have seen, the consumer expectations test is
              reserved for cases in which the everyday experience of the
              product’s users permits a conclusion that the product’s
              design violated minimum safety assumptions, and is thus
              defective regardless of expert opinion about the merits of the
              design. It follows that where the minimum safety of a product
              is within the common knowledge of lay jurors, expert
              witnesses may not be used to demonstrate what an ordinary
              consumer would or should expect. Use of expert testimony
              for that purpose would invade the jury’s function (see Evid.
              Code, § 801, subd. (a)), and would invite circumvention of
              the rule that the risks and benefits of a challenged design
              must be carefully balanced whenever the issue of design
              defect goes beyond the common experience of the product's
              users.

                     By the same token, the jury may not be left free to find
              a violation of ordinary consumer expectations whenever it
              chooses. Unless the facts actually permit an inference that
              the product’s performance did not meet the minimum safety


                                     [J-80-2013] - 104
               expectations of its ordinary users, the jury must engage in
               the balancing of risks and benefits required by the second
               prong of Barker.
882 P.2d at 308-09 (emphasis and footnote omitted). The Soule court concluded that,

in light of precedent, the evidence offered by the plaintiff was not probative of the issue

placed in dispute (there, ordinary consumer expectations regarding excessive

weakness or porosity in a bracket weld); but, the evidence offered raised an inference of

defect under the risk-benefit analysis and, therefore, the trial court should have properly

limited its instructions to the jury to that test. The all-too-common difficulty with the

commentators’ interpretation of Soule is that the court’s fact-bound evidentiary holding

is taken out of its context, mistaken for establishment of a distinct burden of proof, and

treated as doctrine. Compare Scampone, 57 A.3d at 606; Gilbert, 327 A.2d at 96-97.

       The Third Restatement also offers a variation upon those tests primarily based

upon a risk-utility determination by requiring proof of a reasonable alternative design.

See Henderson, 83 Cornell L. Rev. at 884-87 (explaining standard of proof premised

upon risk-utility balancing and proof of alternative design).       The Third Restatement

states, in illustrative part:

                       § 1 Liability of Commercial Seller or Distributor for
               Harm Caused by Defective Products
                       One engaged in the business of selling or otherwise
               distributing products who sells or distributes a defective
               product is subject to liability for harm to persons or property
               caused by the defect.


                       § 2 Categories of Product Defect
                       A product is defective when, at the time of sale or
               distribution, it contains a manufacturing defect, is defective in
               design, or is defective because of inadequate instructions or
               warnings. A product:
                       (a) contains a manufacturing defect when the product
               departs from its intended design even though all possible



                                      [J-80-2013] - 105
             care was exercised in the preparation and marketing of the
             product;
                    (b) is defective in design 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 seller or other distributor, or a predecessor in the
             commercial chain of distribution, and the omission of the
             alternative design renders the product not reasonably safe;
                    (c) is defective because of inadequate instructions or
             warnings when the foreseeable risks of harm posed by the
             product could have been reduced or avoided by the
             provision of reasonable instructions or warnings by the seller
             or other distributor, or a predecessor in the commercial chain
             of distribution, and the omission of the instructions or
             warnings renders the product not reasonably safe.


                     § 3 Circumstantial Evidence Supporting Inference of
             Product Defect
                     It may be inferred that the harm sustained by the
             plaintiff was caused by a product defect existing at the time
             of sale or distribution, without proof of a specific defect,
             when the incident that harmed the plaintiff:
                     (a) was of a kind that ordinarily occurs as a result of
             product defect; and
                     (b) was not, in the particular case, solely the result of
             causes other than product defect existing at the time of sale
             or distribution.

                           *      *       *      *


RESTATEMENT (3D)     OF   TORTS: PRODUCTS LIABILITY §§ 1-3 (1998) (Liability Rules

Applicable to Products Generally).

      Section 1 of the Third Restatement articulates the general policy of strict liability.

Sections 2 through 4, as well as Sections 6 and 7, address evidentiary questions.

Notably, Section 2 identifies three types of defects and, at least with respect to “design”

defect (subsection (b)), states a general rule, which defines a defect by reference to the

relative risk-utility calculi for the allegedly defective product and an alternatively



                                      [J-80-2013] - 106
designed product.     See also Henderson, 83 Cornell L. Rev. at 888-89 (alternative

design is proof of technological feasibility, “an empirical factor for courts to consider in

the normative process of risk-utility balancing”). Application of this general rule is, as a

result, limited -- and compensation is available -- only for those products for which an

alternative design can be shown to exist. The Restatement illustrates its view that other

evidence may be probative in a design defect case by articulating special rules. Thus,

Sections 3, 4, and comment e to Section 2 of the Third Restatement establish

alternative means for proving a design defect “in circumstances in which common

experience teaches that an inference of defect may be warranted under the specific

facts,” where the seller or distributor violates statutory and regulatory norms, and “when

the product design is manifestly unreasonable.” Meanwhile, Sections 6 and 7 address

special rules of liability for specific products: prescription drugs and medical devices,

and food products. See id. at §§ 6-7; see also § 6 cmt. f (Section 6 principle articulates

judgment that liability attaches only when certain type and quantum of evidence is

adduced by plaintiff; noting expectation that, under “this very demanding objective

standard, liability is likely to be imposed only under unusual circumstances”). In relation

to prescription drugs, for example, the special rule reflects in part an understanding that,

for some products, there is no alternative design.



          4.      The Appropriate Post-Azzarello Strict Liability Construct

                     a.     The “Move” to the Third Restatement

       Guided by this decisional and doctrinal universe, we address the parties’

competing arguments, which rely, to a great extent, upon jurisprudential and policy

assertions. Initially, from a jurisprudential perspective, Omega Flex argues that the

Third Restatement offers a clearer and more precise articulation of strict liability doctrine




                                     [J-80-2013] - 107
than does the Second Restatement, and adoption of the new formulation would return

Pennsylvania into the mainstream in this arena. Omega Flex adds that a move to the

Third Restatement is also the next logical step in the evolution of the law given that

several Justices of this Court and members of the U.S. Court of Appeals for the Third

Circuit, in Berrier, have articulated its merits and supported its application.        The

Tinchers respond that the Court has yet to “adopt” the Third Restatement and non-

precedential opinions are not a basis upon which to do so. Of course, non-precedential

expressions from this Court do not bind us to a course of action, nor do precedential

expressions of non-binding courts -- what matters is the persuasiveness of the

reasoning and the current decisional context. In particular, the separate expressions of

Justice Saylor have proven invaluable in crystallizing awareness of the difficulties in this

area of law.

       Omega Flex also argues that the Third Restatement is the better articulation of

the law, one specifically intended to address design defects and representing the

mainstream view on the topic.       According to Omega Flex, the present iteration of

Pennsylvania law improperly lowers the burden of proof upon plaintiffs generally.

Omega Flex posits that the Third Restatement, in contrast, is a “closely reasoned and

balanced approach” that enhances the fairness and efficacy of the liability scheme.

Appellant’s Brief at 48 (citing Phillips, 841 A.2d at 1021 (Saylor, J., concurring); Bugosh,

971 A.2d at 1231 (Saylor, J., dissenting); General Services, 898 A.2d at 616 (Newman,

J., concurring and dissenting)). According to Omega Flex, the Third Restatement is

already widely accepted and, as illustrated by this case, does not place an overly

onerous burden of proof upon plaintiffs.      Finally, Omega Flex claims that the Third

Restatement is not a departure from but a refinement of the Second Restatement,

which “simply elevates the availability of a safer alternative design from a factor to be




                                     [J-80-2013] - 108
considered in the risk-utility analysis to a requisite element of a cause of action for

defective design.” Appellant’s Reply Brief at 17, 21. According to Omega Flex, the

Second Restatement did not specifically articulate the alternative design requirement

because that Restatement “was focused on manufacturing, not design, defects.” Id. at

20.

       The Tinchers respond that the Third Restatement replaces the Second

Restatement liability scheme with a negligence standard, which heightens the plaintiff’s

burden of proof and, as a result, “compromises the deeply-rooted social policy of

protecting citizens through the imposition of strict liability under [the Second]

Restatement.”     Appellees’ Brief at 23.     The Tinchers do not share Omega Flex’s

“refinement” view of the Third Restatement, but instead describe the iteration as a

“radical departure from established precedent [that] is not prudent or necessary.” Id. at

26. The Tinchers also assert that the Third Restatement has limited support in other

jurisdictions. Moreover, the Tinchers claim that the Third Restatement standard will

result in a denial of compensation for meritorious claims by raising the cost of pursuing

the claims: “[t]he plaintiff will have to become an expert in the technology that caused

the plaintiff’s injury, and will need to re-design the product himself.” Id. at 34.

       In essential part, both parties ask this Court to engage questions of whether their

preferred iteration of the Restatement embodies a good, better, or more desirable public

policy. As we have explained, as an adjudicative body, this Court is not particularly

well-suited to such a broad task.         The appropriate question is which, if either,

Restatement articulates the standard of proof in terms that effectuate the public policy of

this Commonwealth.

       For the reasons that follow, we conclude that “adoption” of the Third Restatement

approach is problematic. For one thing, articulating the burden of proof in terms of




                                      [J-80-2013] - 109
evidence (alternative design) deemed probative of the general principle of strict liability

proscriptively limits the applicability of the cause of action to certain products as to

which that sort of evidence is available. The approach suggests a priori categorical

exemptions for some products -- such as novel products with no alternative design --

but not others. The Connecticut Supreme Court suggested a similar insight: “in some

instances, a product may be in a defective condition unreasonably dangerous to the

user even though no feasible alternative design is available.” Potter, 694 A.2d at 1332.

      Of course, the courts, legislatures, and the American Law Institute cannot

foresee all the myriad products and circumstances that may arise.          The alternative

means of proving liability in special cases recognized in the Third Restatement are

designed to alleviate some of the harsh results of the general rule which are currently

foreseeable, suggesting some limited liability in circumstances in which the special rules

of Sections 2 -- comment e, 3, 4, 6, or 7 apply. Nevertheless, a question remains

whether the general and special rules taken together state a general principle of liability

consistent with the public policy that compensation is available for an injury caused by

any type of defective product.     Compare Scampone, 57 A.3d at 606 (rejecting as

inconsistent with negligence public policy nursing home’s argument that nursing home

lacked duty of care to patients because prior decisional law had addressed only

negligence liability of hospitals and plaintiff had not adduced proof that nursing home

offered same healthcare services as hospital).          In either case, this jurisdiction’s

experience with the repercussions of attempting to articulate specific principles of

liability of broad application in implementing the strict liability cause of action make us

reticent to go far beyond the necessities of an individual case and embrace a broad new

approach premised upon what may prove to be procrustean categorical restrictions.




                                    [J-80-2013] - 110
       Our reticence respecting the Third Restatement scheme is not a judgment on our

part that, as a matter of policy, articulating categorical exemptions from strict liability is

not a viable or desirable alternative. Courts, which address evidence and arguments in

individual cases, are neither positioned, nor resourced, to make the kind of policy

judgments required to arrive at an a priori decision as to which individual products, or

categories and types of products, should be exempt. Neither courts, nor the American

Law Institute for that matter, are in the business of articulating general principles tailored

to anoint special “winners” and “losers” among those who engage in the same type of

conduct. In our view, the question of “special tort-insulated status” for certain suppliers -

- for example, manufacturers of innovative products with no comparable alternative

design -- optimally “requires an assessment and balancing of policies best left to the

General Assembly.” Scampone, 57 A.3d at 599; Ayala, supra; but see, e.g., Hahn, 673

A.2d 888 (where adequacy of warnings associated with prescription drugs is at issue,

strict liability is not recognized as basis for liability). As we explained in Scampone:

                     Immunity or exemption from liability is the exception
              to the general rule that an entity must meet the obligations it
              incurs in functioning. . . . [A]ny other cause of action at
              common law. . . evolves through either directly applicable
              decisional law or by analogy, meaning that a defendant is
              not categorically exempt from liability simply because
              appellate decisional law has not specifically addressed a
              theory of liability in a particular context.         Categorical
              exemptions from liability exist (following the dismantling by
              this Court of judicial immunities in the 1960s and 1970s) only
              where the General Assembly has acted to create explicit
              policy-based immunities, e.g., to protect the public purse.
              Where either no immunity exists, or the legislative branch
              created exceptions to an immunity legislatively conferred,
              the default general rule of possible liability operates.




                                     [J-80-2013] - 111
Scampone, 57 A.3d at 599 (also explaining, inter alia, that from judicial perspective,

duty at law is independent of financial status of individual defendants or of particular

industries).

       The methodology employed by the reporters suggests additional potential

weaknesses in the strict liability schemata of the Third Restatement that should caution

courts against categorical pronouncements. Citing representative cases from several

jurisdictions, the reporters offer that an alternative-design driven risk-utility general rule -

- with a special consumer expectations rule for cases in which the design defect is

demonstrable -- reflects the consensus among American jurisdictions as to the

applicable liability construct in “classic design cases.” See Henderson, 83 Cornell L.

Rev. at 887-901.      Notably, while recognizing that “tort cases are particularly fact-

sensitive,” the reporters purported to undertake an “empirical study of case law” to

determine whether the alternative-design driven risk-utility general rule has support in

the decisional law in a majority of jurisdictions. The reporters commented that: “[t]ort

cases are particularly fact-sensitive and courts are consequently prone to pepper their

decisions with dicta and footnotes to allow ‘wiggle room’ for cases that may arise in the

future. In contrast to legal treatise writers and restaters who, in synthesizing the law,

tend to speak precisely and categorically, courts in their published opinions are more

likely to be open-textured and indecisive.” Id. at 888. This approach no doubt fulfills the

role of the American Law Institute in its own salutary task of restating and clarifying a

view of strict liability that can be reduced to decisive terms. We also respect the effort

of the Third Restatement reporters in approaching that non-judicial task practically and

with humility.    But, what drives the Institute and treatise writers does not make

comparative modesty, nuance, and reticence in the judiciary mistaken (much less




                                      [J-80-2013] - 112
indecisive) in a jurisdiction, like Pennsylvania, where the area, to date, has been the

exclusive province of the common law.

       That evidence of the existence and specifications of an alternative design is

relevant and even highly probative to prove disputed issues in a products liability case,

such as technological feasibility, cost, etc., is certainly true. That the more typical case

implicates the type of products and circumstances in which evidence of an alternative

product design is the most persuasive and efficient means of convincing the trier of fact

may also be true. That offering evidence of an alternative product design may be the

preferred legal strategy of the plaintiff’s bar in certain cases -- or may be a strategy the

defense bar would like to impose on the plaintiff’s bar in certain cases -- again may also

be true. But, while the reporters’ intuition that meritorious cases are premised upon

certain types of evidence may have some general validity and support in practice (and

may prove helpful to litigants in articulating claims and preparing defenses), the

reporters’ commentary candidly betrays a problem -- for the judiciary at least -- of

perspective. Principally, at least in a climate where suggestions are made along the

lines of simply “adopting” or “moving to” a Restatement construct, it is our view that the

reporters’ “precise and categorical” perspective insufficiently accounts for the

imperatives of the courts’ more modest decisional role, by, for example, describing the

reasoned and purposeful articulation of general principles as “dicta.”

       As a jurisprudential matter, articulating common law principles in terms of

extrapolations from evidence relevant in the typical case is problematic for good

reasons. It is worth reiterating that:

                    [T]his Court’s decisions are read against the facts
              because “our decisional law generally develops
              incrementally, within the confines of the circumstances of
              cases as they come before the Court. For one thing, it is
              very difficult for courts to determine the range of factual


                                         [J-80-2013] - 113
              circumstances to which a particular rule should apply in light
              of the often myriad possibilities.” [Maloney, 984 A.2d at 489-
              90.] Depending on the perspective of the Court, prospective
              or retrospective, this insight has separate but related
              implications.     Prospectively, we endeavor to render
              determinations that “spring [ ] from the facts before us in
              th[e] appeal, while recognizing that our task is not simply to
              decide this case, but also to provide guidance upon the
              broader legal issue,” especially where the issue is one of first
              impression. “By necessity, this undertaking requires breadth
              of vision and consideration of both sides of the coin: the
              facts of a given case on one side, and the law, which will
              almost always be more conceptual, on the other.”
              [Thierfelder v. Wolfert, 52 A.3d 1251, 1264 n.9 (Pa. 2012)].
              On the other hand, recognizing the necessary narrowness of
              the individual decisional task and the limitations of imperfect
              foresight, we aspire to embrace precision and avoid “the
              possibility that words or phrases or sentences may be taken
              out of context and treated as doctrines.” Maloney, 984 A.2d
              at 490 (quoting Northwestern Nat’l Ins. Co. v. Maggio, 976
              F.2d 320, 323 (7th Cir. 1992)).


Scampone, 57 A.3d at 604-05. Particularly relevant here, we added: “In considering

decisions retrospectively, when called upon to apply them, the law does not lose its

precedential mantle based simply on formulaic reading; the intent of the principle that

decisions are to be read against their facts is simply to prevent ‘wooden application of

abstract principles to circumstances in which different considerations may pertain.’” Id.

at 605 (quoting Maloney, 984 A.2d at 485-86). As a practical matter, courts articulate

general principles -- what the Restatement reporters may in some instances call “dicta” -

- before applying them to the facts in order to place a set a facts in perspective, to

explain and ground the disposition.      This is because, at its best, decisional law is

principle-driven and not result-driven (although just results are certainly the overarching

goal).   And, a reasoned decision will always permit easy or intuitive drafting and

explication of the relevant principles. Candid decision-making articulates governing,



                                    [J-80-2013] - 114
and occasionally competing principles, and has the flexibility to reassess a prior

principle upon confrontation with nuance, better or different advocacy, or articulation of

a previously unperceived principle of salutary value.

       Insight into the reporters’ perspective on how the nature of decisions at common

law informs their consensus effort to speak otherwise, i.e., to “speak precisely and

categorically” by classifying defect claims (i.e., classic design cases, prescription drugs

cases, etc.) and inserting evidentiary prerequisites into general and special rules

applicable to the distinct categories to which they pertain, should serve as a reminder of

comparative judicial modesty. The Third Restatement approach presumes too much

certainty about the range of circumstances, factual or otherwise, to which the “general

rule” articulated should apply.

       Indeed, relying upon a confined universe of reported appellate cases to draw

evidence-based (versus principle-based) rules is problematic as a general matter in our

mature legal system. This is so because the small class of cases posing issues of

sufficient consequence to result in reported, precedential decisions naturally tends to

raise narrow unsettled issues and / or fact-sensitive applications, rather than to provide

vehicles to illustrate those parts of the law that are so “well accepted” as to reflect

emergent general rules.      Of course, these cases may, by analogy and distinction,

illuminate general principles at issue; but, purporting to limit the general rule to the facts

of those cases is anathema to the common law. Stated otherwise, simply because in

cases of factually-marginal applications courts have found evidence relating to

alternative designs to be particularly probative and persuasive, in our minds, does not

necessarily support a thesis that adducing such evidence is dispositive of whether a

plaintiff has carried his / her burden of proof. See, e.g., Soule, 882 P.2d at 308. The

principal point is that a jurisdiction is free to adopt a policy that reduces a supplier’s




                                     [J-80-2013] - 115
exposure to strict liability for a product. But, it would either be naïve or inaccurate to

declare that existing decisional law in Pennsylvania expressly articulates, or

contemplates, only the general principle in the terms of the Third Restatement. And, if

adopted as a broadly applicable legal regime, the Third Restatement would engender a

self-fulfilling prophecy by providing for a future restatement, going forward, of only those

cases that meet the evidentiary threshold the regime permits.

       Additionally, the Third Restatement construct, because unmoored from guidance

upon the broader legal issue, would likely impede the principled development of the law

in this arena.   Although “[b]right lines and broad rules always offer a superficially

enticing option,” they also risk elevating the lull of simplicity to doctrine. See, e.g.,

Scampone, 57 A.3d at 598; Azzarello.          And, finally, our reticence respecting broad

approval of the Third Restatement is separately explainable by looking no further than

to the aftermath of Azzarello, whose 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. Azzarello and Scampone illustrate, in

different ways, how dogmatic pronouncements are difficult to apply in individual cases

without guidance upon the broader legal issue and the result is often that litigation will

derail into irrelevant, unreasoned, or unprincipled factual disputes (an issue to which we

also adverted in our discussion of Soule, supra). As a Court, in this dynamic area, we

must settle for the incremental approach.24

24
       Commentary by Dean Wade and Dean W. Page Keeton of the University of
Texas offered related approaches to the standard of proof in design defect cases
premised upon imputation of knowledge of risks when such knowledge was unavailable
prior to marketing. Although offering invaluable insight, an imputation of knowledge
approach has not gained substantial traction because of difficulties identified by the
authors themselves. See generally John W. Wade, THE PASSAGE OF TIME: THE
IMPLICATIONS FOR PRODUCT LIABILITY: ON THE EFFECT IN PRODUCT LIABILITY OF KNOWLEDGE
UNAVAILABLE PRIOR TO MARKETING, 58 N.Y.U. L. Rev. 734 (1983).



                                     [J-80-2013] - 116
       Our previous analysis illustrates that the Third Restatement does not offer an

articulation of the law sufficient to persuade us to simply abandon the Second

Restatement formulation of the strict products liability cause of action and “move” to the

Third Restatement.       Unlike the Third Restatement, we believe that the Second

Restatement already adopted, and properly calibrated, permits the plaintiffs to tailor

their factual allegations and legal argumentation to the circumstances as they present

themselves in the real-world crucible of litigation, rather than relying upon an evidence-

bound standard of proof.



                           b.     Prevailing Standard of Proof

       Having overruled Azzarello and declined the invitation to fill the void by simply

“adopting” the Third Restatement formulation, we proceed to address the appropriate

standard of proof of a strict liability claim in Pennsylvania.

       Initially, we note that, although Pennsylvania remains a Second Restatement

jurisdiction, “adoption” of its principles into our common law is distinct in concept and

application from the adoption of a statute by the General Assembly.             Although the

reporter’s words have intrinsic significance because their purpose is to explain the legal

principle clearly, they are not entitled to the fidelity due a legislative body’s expression of

policy, whose judgment and intent, wise or unwise, a court generally is obligated to

effectuate, absent constitutional infirmity. The language of a restatement, as a result, is

not necessarily susceptible to “statutory”-type construction or parsing. An effective and

valuable restatement of the law offers instead a pithy articulation of a principle of law

which, in many cases, including novel or difficult ones, represents a starting template for

members of the judiciary, whose duty is then to employ an educated, candid, and

common-sense approach to ensure dispensation of justice to the citizenry.                 The




                                      [J-80-2013] - 117
common law relies in individual cases upon clear iterations of the facts and skillful

advocacy, and evolves in principle by analogy, distinction, and reasoned explication.

Accord Scampone, 57 A.3d at 605. This is the essence of justice at common law.

       With this qualification in mind, we explain: (1) that the strict liability cause of

action sounds in tort; (2) that the notion of “defective condition unreasonably dangerous”

is the normative principle of the strict liability cause of action, which reflects the standard

of review or application of the tort, and its history; and (3) the appropriate interplay of

principle and evidence.25

       It is important to remember that the action sounds in tort, i.e. the cause involves

breach of duties “imposed by law as a matter of social policy,” rather than contract, i.e.,

the cause involves breach of duties “imposed by mutual consensus agreements

between particular individuals.” Ash, 932 A.2d at 884; see RESTATEMENT (2D) OF TORTS

§ 402A(2). Nevertheless, the tortious conduct at issue is not the same as that found in

traditional claims of negligence and commonly associated with the more colloquial

notion of “fault.”   In this sense, introducing a colloquial notion of “fault” into the

conversation relating to strict product liability in tort detracts from the precision required

to keep this legal proposition within rational bounds.26

25
         While the Second Restatement formulation of the principles governing the strict
liability cause of action in tort may have proven substantially less than clear, the policy
that formulation embodies has not been challenged here and has largely remained
uncontroverted. Accord Henderson, 83 Cornell L. Rev. at 868 (premised upon survey of
decisional law, noting rejection of “extreme positions that question the need to develop
a general standard for defective design,” such as absolute liability and no strict liability
(“defer[ing] responsibility for design choices exclusively to the market”), as unnecessary
“tilting at windmills”).

26
         But see Sherk, 450 A.2d at 621 (equating liability without proof of negligence,
i.e., breach of duty of care, to liability without fault). Consider a counterexample of tort
liability without fault and its reasoned justification. We have explained that:

(continuedQ)

                                      [J-80-2013] - 118
         As we explain, after reviewing the provenance of the cause of action, the Second

Restatement reporter’s choice of words, and the evolution of the cause of action in

application, we hold that, in Pennsylvania, the cause of action in strict products liability

requires proof, in the alternative, either of the ordinary consumer’s expectations or of

the risk-utility of a product. To maintain the integrity and fairness of the strict products

liability cause of action, each part of this standard of proof remains subject to its

theoretical limitations, as explained above.       We believe that the demands of strict

liability policy are met because the composite standard retains the best functioning

features of each test, when applied in the appropriate factual context. See Caterpillar,

supra.

         Decisional law and commentary from the 1960s that expressly endorsed a

separate tort in strict liability illustrate that the cause of action streamlined access to



(Qcontinued)
                      [V]icarious liability is a policy-based allocation of risk.
               Crowell v. City of Philadelphia, 613 A.2d 1178, 1181 (Pa.
               1992). “Vicarious liability, sometimes referred to as imputed
               negligence, means in its simplest form that, by reason of
               some relation existing between A and B, the negligence of A
               is to be charged against B although B has played no part in
               it, has done nothing whatever to aid or encourage it, or
               indeed has done all that he possibly can to prevent it.” Id.
               (quoting Prosser and Keeton on Torts § 69, at 499 (5th ed.
               1984)). Once the requisite relationship (i.e., employment,
               agency) is demonstrated, “the innocent victim has recourse
               against the principal,” even if “the ultimately responsible
               agent is unavailable or lacks the ability to pay.” Mamalis v.
               Atlas Van Lines, Inc., 560 A.2d 1380, 1383 (Pa. 1989);
               accord Crowell, 613 A.2d at 1182 (vicarious liability is policy
               response to ‘specific need’ of how to fully compensate
               victim).

Scampone, 57 A.3d at 597.



                                      [J-80-2013] - 119
compensation already available, at least in some cases, under either negligence or

breach of warranty theories. In other cases, however, the substantive or procedural

conventions appurtenant to theories of negligence (e.g., requirement to join all potential

tortfeasors) and breach of warranty (e.g., requirement of privity), deemed at the time

necessary to vindicate interests that underpinned the respective theories, failed to

generate fair, coherent results and doctrine, in the face of evolving or newly-revealed

circumstances (i.e., an increasingly vibrant market for products) and an evolving interest

in protecting consumers.     See, e.g., Webb, 220 A.2d at 854 (trial court dismissed

negligence claim, reasoning that plaintiff had not joined all parties against whom

inference of negligence could be drawn); Miller, 221 A.2d at 324 (trial court dismissed

breach of warranty claim, reasoning that infant-plaintiff was not in privity with

manufacturer, distributor, or retailer). Although courts subsequently abandoned some

narrow pleading and proof conventions (in the case of privity, for example) or justified

results on equitable bases in other cases, the doctrinal strain opened the possibility of a

separate tort that tailored itself to the articulated policy goals. See, e.g., Salvador, 319

A.2d at 907 (discarded burden to prove horizontal privity); Henningsen v. Bloomfield

Motors, Inc., 161 A.2d 69 (N.J. 1960) (disclaimer of implied warranty of merchantability

by dealer and attempted elimination of all obligations other than replacement of

defective parts violate public policy and are void).27

27
       In 1960, Dean Prosser also explained the systemic efficiency benefits deriving
from a single cause of action in strict liability. According to Dean Prosser:

                    It [wa]s already possible to enforce strict liability by
            resort to a series of actions, in which the retailer is first held
            liable on a warranty to his purchaser, and indemnity on a
            warranty is then sought successively from other suppliers,
            until the manufacturer finally pays the damages, with the
            added costs of repeated litigation. This is an expensive,
(continuedQ)

                                     [J-80-2013] - 120
       The emergent single cause of action in tort -- strict liability -- retained,

nevertheless, those aspects of negligence and breach of warranty liability theories from

which it evolved. Stated otherwise, the theory of strict liability as it evolved overlaps in

effect with the theories of negligence and breach of warranty. (Parenthetically, this

places into context Section 402A(2), which states that the rule of strict liability “applies

although (a) the seller has exercised all possible care in the preparation and sale of his

product, and (b) the user or consumer has not bought the product from or entered into

any contractual relation with the seller.”). As we explained above, this is not an unusual

development in the common law: for example, negligence and strict liability for

abnormally dangerous activities also overlap in the sense that they both are premised

upon a risk-utility hindsight analysis with different public policy overlays to modify their

application to distinct conduct. Relevant here, public policy also adjusts expectations of

efficiency and intuitions of justice considerations in the context of products liability,

informing a seller’s conduct toward consumers as a group and ensuring compensation

in individual cases by judicial application of the strict liability cause of action.

Essentially, strict liability is a theory that effectuates a further shift of the risk of harm

onto the supplier than either negligence or breach of warranty theory by combining the

balancing of interests inherent in those two causes of action.


(Qcontinued)
            time-consuming, and wasteful process, and it may be
            interrupted by insolvency, lack of jurisdiction, disclaimers, or
            the statute of limitations, anywhere along the line. What is
            needed is a blanket rule which makes any supplier in the
            chain liable directly to the ultimate user, and so short-circuits
            the whole unwieldy process. This is in the interest, not only
            of the consumer, but of the courts, and even on occasion of
            the suppliers themselves.

69 Yale L. J. at 1123-24 (footnote omitted).



                                     [J-80-2013] - 121
       The core insight, which the Supreme Court of California pioneered in the 1978

Barker decision, is that the standard of proof in a strict liability cause of action properly

reflects this duality of purpose. The Barker Court thus articulated a standard of proof

which stated the consumer expectations test and the risk-utility test in the alternative.

The alternative test standard of proof is a “composite” that retains “the most workable

features of each of the other tests.” Caterpillar, 593 P.2d at 884-85.

       One other insight completes the picture: a duality in the strict liability cause of

action is evident in the expectation that all sellers in the distributive chain are legally

responsible for the product in strict liability.    Dean Prosser explained the expected

results of applying strict liability:

                      Where the action is against the manufacturer of the
               product, an honest estimate might very well be that there is
               not one case in a hundred in which strict liability would result
               in recovery where negligence does not. . . . All this,
               however, is but half of the picture. There are other sellers
               than the manufacturer of the product. It will pass through the
               hands of a whole line of other dealers, and the plaintiff may
               have good reason to sue any or all of them. . . . It is here
               that negligence liability breaks down. The wholesaler, the
               jobber, and the retailer normally are simply not negligent.
               They are under no duty to test or inspect the chattel, and
               they do not do so; and when, as is usually the case today, it
               comes to them in a sealed container, examination becomes
               impossible without destroying marketability. No inference of
               negligence can arise against these sellers, and res ipsa
               loquitur is of no use at all.
Prosser, 69 Yale L. J. at 1116-17 (footnote omitted).

       Thus, in placing a product on the market, a manufacturer acts to design (and

manufacture) the product and, along with other distributors, to sell the product, including

making the product attractive for sale by making implicit representations of the product’s

safety. See Knitz v. Minster Mach. Co., 432 N.E.2d 814, 818 (Ohio 1982) (quoting



                                        [J-80-2013] - 122
Greenman v. Yuba Power Prods., 377 P.2d 897 (Cal. 1963)) (Second Restatement

standard “followed as a logical development from commercial warranty origins of strict

liability in tort” and reflected “the commercial reality that ‘(i)mplicit in . . . (a product’s)

presence on the market . . . (is) a representation that it (will) safely do the jobs for which

it was built.’”); accord Owen, HORNBOOK, at 303. A manufacturer, in designing the

product, engages in a risk-utility calculus; the policy-driven post hoc risk-utility calculus

necessary to determine whether the design choice thus made may justly require

compensation for injury explains the relevance of that standard of proof in strict liability.

Meanwhile, a seller of the product -- whether the manufacturer or the supplier in the

chain of distribution -- implicitly represents by placing a product on the market that the

product is not in a defective condition unreasonably dangerous.             Accord Markle v.

Mulholland’s Inc., 509 P.2d 529, 532 (Or. 1973) (implied representation of merchantable

quality accounts for Restatement formulation, whose “language is consistent only with

something conceptually similar to an expectation by the consumer of merchantable

quality. It is an expectation which is the result of the manufacturer’s or seller’s placing

the article in the stream of commerce with the intention that it be purchased. This

expectation is given legal sanction by the law through an assumption that the seller, by

so placing the article in the stream of commerce, has represented that the article is not

unreasonably dangerous if put to its intended use.”).                  Express and implied

representations by the manufacturer and other suppliers in the distributive chain,

contextualized by common human experience to evolve the notion of fault in strict

liability, explain the relevance of evidence regarding consumer expectations, both as an

independent source of liability (e.g., expectations created by advertising or warnings)

and as part of the calculus of risk (e.g., expectations that drive product design choices).




                                      [J-80-2013] - 123
       The dual analytical structure also explains the historical ebb and flow of

consumer expectations / risk-utility and warranty / negligence rhetoric that pervades

decisional law. Essentially, given that a term like “defective condition unreasonably

dangerous” is not self-defining, courts have offered multiple definitions applicable in the

several contexts in which a definitional issue has arisen, all effectuating the single policy

that those who sell a product are held responsible for damages caused to a consumer

by the reasonable use of the product. See, e.g., Miller, 221 A.2d at 334-35 (Jones, J.,

concurring and dissenting); accord Barker, 573 P.2d at 453 (“term defect as utilized in

the strict liability context is neither self-defining nor susceptible to a single definition

applicable in all contexts”). The exposition of strict liability in Pennsylvania and in other

jurisdictions illustrates that the original disputes implicated tensions over how warranty

principles limited liability on a strict liability in tort theory. Decisional law that derived

from the tension reflected a period of expanding liability (because plaintiffs were not

required to prove privity as in a breach of warranty action, see, e.g., Miller). These

types of disputes waned as the law settled in, both by way of decisional law discarding

privity in breach of warranty cases and by clarification of this part of the law in the late

1960s and early 1970s, which may have aided suppliers to internalize the effects of

warranty-type strict liability into their conduct and to pass the attendant costs on to

consumers. In a sense, then, the consumer expectations gauge for strict liability has

had some apparent success in vindicating the policy of strict liability.

       Modern decisional law reflects that the focus of disputes -- or at least those

disputes making their way into the appellate courts -- has increasingly been upon the

negligence-derived risk-utility alternative formulation of the standard. The prominence

of the legal issue in decisional law coincides with the advent of design defect claims, in

which issues of proof tend to more complexity than where a manufacturing defect is in




                                     [J-80-2013] - 124
dispute. This development reflected the complex litigation calculus implicated in a strict

liability claim premised upon this type of defect resulting from either lack of proof (for

example in the case of known or foreseeable risks for which an available cure may or

may not have been available at the time of design) or the relative deterrent inefficacy of

a theory of liability for unknowable risks, short of exiting the market. Accord Prosser, 69

Yale L. J. at 1116 (“So long as there is the possibility that negligence may not be found,

the defendant is encouraged by vain hopes, and the plaintiff gnawed by lingering

doubts; and a case which can be decided for the defendant is worth less, in terms of

settlement, than one which can not.       And so long as the defendant can introduce

evidence of his own due care, the possibility remains that it may influence the size of

the verdict, as jurymen impressed with it stubbornly hold out for no liability, or a smaller

sum.”) (emphasis omitted). Yet, some types of disputes are absent from the decisional

law and may, indeed, provide rather strong evidence of strict liability as a deterrent by

preventing bringing a product to market or encouraging settlement of claims -- it must

be remembered that an appellate expression is not necessary to illustrate the point that

designers are properly deterred by strict liability from using consumers as guinea pigs.

See Henderson, 83 Cornell L. Rev. at 901 (“Some courts, in dicta, hold out the

possibility that the risk-utility imbalance might be so egregious that the product should

not be marketed at all.     Actual holdings to this effect, however, are non-existent.”)

(footnote omitted).28

28
       Parenthetically, the number of manufacturing claims is significantly lower than
that of design defect claims. Dean Prosser explained: “It is true also that [the plaintiff]
seldom, if ever, has any direct evidence of what went on in the defendant’s plant. But in
every jurisdiction, he is aided by the doctrine of res ipsa loquitur, or by its practical
equivalent.” Prosser, 69 Yale L. J. at 1114 (footnote omitted). In a design defect case,
the doctrine of res ipsa loquitur is generally of little help in light of the complexities of
conduct involved.




                                     [J-80-2013] - 125
       In either case, that the theory of strict liability -- like all other tort causes of action

-- is not fully capable of providing a sufficient deterrent incentive to achieve perfect

safety goals is not a justification for jettisoning or restricting the duty in strict liability,

whose compensatory objective remains part of the public policy of this Commonwealth.

See Ash, 932 A.2d at 882 (purpose of torts law is to “put an injured person in a position

as near as possible to his position prior to the tort”); accord Scampone, 57 A.3d at 596;

Excavation Tech., Inc. v. Columbia Gas Co. of Pa., 985 A.2d 840, 844 (Pa. 2009)

(“object of tort law is to modify behavior through allocation of financial risk on party best

positioned to prevent harm”) (citation omitted); Trosky v. Civil Serv. Comm’n, 652 A.2d

813, 817 (Pa. 1995) (quoting RESTATEMENT (2D)             OF   TORTS § 901, cmt. a (1979));

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 275 n.20

(1989) (“Damages are designed not only as a satisfaction to the injured person, but

likewise as punishment to the guilty, to deter from any such proceeding for the future

and as a proof of the detestation of the jury to the action itself.”); Gary T. Schwartz,

MIXED THEORIES    OF   TORT LAW : AFFIRMING BOTH DETERRENCE          AND   CORRECTIVE JUSTICE,

75 Tex. L. Rev. 1801 (1997).

       Finally, we remark upon evidentiary issues necessarily implicated by the

standard of proof we have articulated. Derived from its negligence-warranty dichotomy,

the strict liability cause of action theoretically permits compensation where harm results

from risks that are known or foreseeable (although proof of either may be unavailable) --

a circumstance similar to cases in which traditional negligence theory is implicated --

and also where harm results from risks unknowable at the time of manufacture or sale --

a circumstance similar to cases in which traditional implied warranty theory is

implicated. The difficulty is in cabining liability premised upon a risk unknowable at the

time of manufacture / sale, which was logically unavoidable, in circumstances in which




                                       [J-80-2013] - 126
liability and attendant compensation was potentially limitless (in other words, 100

percent of risk would be shifted to suppliers). Imputing knowledge, and assessing the

avoidability of risk -- was theoretically counterintuitive and offered practical difficulties,

as illustrated by the Wade-Keeton debate. See generally John W. Wade, THE PASSAGE

OF TIME: THE IMPLICATIONS FOR PRODUCT LIABILITY: ON THE EFFECT IN PRODUCT LIABILITY OF

KNOWLEDGE UNAVAILABLE PRIOR        TO   MARKETING, 58 N.Y.U. L. Rev. 734 (1983). Both

rationing and policy -- as expressed in the qualification “unreasonably dangerous” --

supported limitations.    The risk-utility calculus has been suggested as a normative

solution to cabin liability exposure regardless of the type of claim asserted (i.e., of either

a known / foreseeable or an unknown risk). Accord Beard, 41 A.3d at 838 (meaningful

risk-utility evaluation is effort to implement rational limits on strict liability in tort).

Because the circumstance is not before us, and in light of the complexities and dearth of

persuasive authority, we will await the appropriate case to speak definitively to this

issue.

         By comparison, the Tinchers’ claim was essentially premised upon the allegation

that the risk of harm related to TracPipe’s thickness was both foreseeable and

avoidable, as illustrated by the resistance to lightning of black iron pipe.           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. See, e.g., Phillips, 841 A.2d at 1013-14 (Saylor, J., concurring); Henderson, 83

Cornell L. Rev. at 876-87 (“Developing a General Defectiveness Standard for Classic

Design Cases”). Indeed, the Tinchers themselves sought summary relief and dismissal




                                     [J-80-2013] - 127
of this case premised upon the argument that the same result would have obtained

under either the Second or the Third Restatement iteration of the law.

       But, the point that we have stressed repeatedly in this Opinion, is that courts 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. Nevertheless, in many

circumstances, courts may be called upon to examine whether the rule has outrun the

reason. Self-selection of cases (consumers and manufacturers internalizing the policy

vindicated by the strict liability theory and modifying conduct as a result), variations in

the quality and nuance in competing argumentation from counsel, including in the

fashioning of suggested jury charges applicable to a particular case, courts’ articulation

of relevant normative principles as they pertain to specific factual scenarios, and

scholarly commentary will likely contribute to the continually developing decisional law.

       The delivery of justice in this area requires a recognition and appreciation of the

appropriate and significant roles played by advocates, trial judges, and the appellate

judiciary. Particularly relevant here, we note that the area of strict liability law remains

complex and our decision here does not purport to foresee and account for the myriad

implications or potential pitfalls as yet unarticulated or unappreciated. Thus, at the trial

level, and as with other legal concepts, “it is incumbent upon the parties, through their

attorneys, to aid courts in narrowing issues and formulating appropriate instructions to

guide juries in their factual determinations. . . .” It is worth reiterating that “[b]right lines

and broad rules always offer a superficially enticing option.            However, we cannot




                                       [J-80-2013] - 128
elevate the lull of simplicity over the balancing of interests embodied by the principles

underpinning [the jurisprudence of the relevant area of law].” Scampone, 57 A.3d at

598. The principal point is that judicial modesty counsels that we be content to permit

the common law to develop incrementally, as we provide reasoned explications of

principles pertinent to factual circumstances of the cases that come before the Court.

See Scampone, 57 A.3d at 605; Barker, 573 P.2d at 453 (difficulties inherent in giving

content to defectiveness standard “could best be resolved by resort to the ‘cluster of

useful precedents’ which have been developed in the product liability field. . . .”).



                   5.     Litigation Considerations Deriving from the

                              New Strict Liability Construct

                        a.     Judge and Jury; Jury Instructions

        Having outlined these principles of strict liability law, we next offer the following

guidance relating to the appropriate provinces of the judge and jury, and to adequate,

targeted jury instructions in a strict liability case. As noted, the Azzarello Court held

that, as a gauge for whether a product is unreasonably dangerous, the balancing of

risks and utilities, when implicated, was an issue of law dependent upon social policy to

be decided by the trial court. The jury would then simply resolve any “dispute as to the

condition of a product,” as a separate question.         391 A.2d at 1025-27.      We have

explained why we believe that severing findings relating to the risk-utility calculus from

findings related to the condition of the product is impracticable and inconsistent with the

theory of strict liability. We offer additional guidance to confirm our departure from that

aspect of Azzarello that assigned these roles to the judge and jury in a strict liability

case.




                                     [J-80-2013] - 129
       As is generally the case, the plaintiff is the master of the claim in the first

instance. The immediate implication is that counsel must articulate the plaintiff’s strict

liability claim by alleging sufficient facts to make a prima facie case premised upon

either a “consumer expectations” or “risk-utility” theory, or both. The calculus for a

plaintiff and a plaintiff’s advocate in choosing to pursue either theory or both will likely

account, among other things, for the nature of the product, for the theoretical limitations

of either alternative standard of proof, for whether pursuing both theories simultaneously

is likely to confuse the finder of fact and, most importantly, for the evidence available or

likely to become available for trial. As discovery and case preparation proceed, and the

evidentiary record evolves, the plaintiff may choose to pursue or abandon either theory,

or pursue both, if the evidence so warrants.        A defendant may also seek to have

dismissed any overreaching by the plaintiff via appropriate motion and objection. The

trial court is to act in its ordinary gate-keeper role, e.g., monitoring litigation, mediating

or adjudicating any subsidiary differences, and pending objections and motions,

including those seeking to narrow, or expand, the theories of litigation to be pursued at

trial. See, e.g., Soule, 882 P.2d at 303, 309.29

29
        For example, in Soule, the trial court gave the standard two-prong Barker
instruction for design defect without modification, over the defendant-manufacturer’s
objection. The defendant argued that, given the nature of the product, instructing the
jury on the consumer expectations standard was error. On appeal, the Supreme Court
of California agreed:

                   [T]he jury may not be left free to find a violation of
            ordinary consumer expectations whenever it chooses.
            Unless the facts actually permit an inference that the
            product’s performance did not meet the minimum safety
            expectations of its ordinary users, the jury must engage in
            the balancing of risks and benefits required by the second
            prong of Barker.        Accordingly, as Barker indicated,
            instructions are misleading and incorrect if they allow a jury
(continuedQ)

                                     [J-80-2013] - 130
       One crucial aspect of the trial court’s role is, of course, the task of defining the

strict liability legal universe within which a particular jury operates for purposes of

discharging its function. See Commonwealth v. Graham, 9 A.3d 196, 201-02 & n.9 (Pa.

2010); see, e.g., Soule, supra. To reiterate, a jury charge is adequate “unless the

issues are not made clear, the jury was misled by the instructions, or there was an

omission from the charge amounting to a fundamental error.” Chambers, 980 A.2d at

49-50; see also Price v. Guy, 735 A.2d 668, 670 (Pa. 1999).

       In this case, in critical part, the trial court instructed the jury in accordance with

the law as articulated in Azzarello and its progeny. See N.T., 10/19/2010, at 794-98.

We have now overruled Azzarello and we have additionally explained foundational

issues related to the strict liability cause of action in Pennsylvania -- the public policy

which the cause of action vindicates, the duty recognized by the public policy, and the

standard and burden of proof necessary to prove breach that duty. Going forward,

consistent with this decision, when a plaintiff proceeds on a theory that implicates a risk-

utility calculus, proof of risks and utilities are part of the burden to prove that the harm

suffered was due to the defective condition of the product. The credibility of witnesses

and testimony offered, the weight of evidence relevant to the risk-utility calculus, and

whether a party has met the burden to prove the elements of the strict liability cause of


(Qcontinued)
            to avoid this risk-benefit analysis in a case where it is
            required. Instructions based on the ordinary consumer
            expectations prong of Barker are not appropriate where, as a
            matter of law, the evidence would not support a jury verdict
            on that theory. Whenever that is so, the jury must be
            instructed solely on the alternative risk-benefit theory of
            design defect announced in Barker.

882 P.2d at 303, 309.




                                     [J-80-2013] - 131
action are issues for the finder of fact, whether that finder of fact is judge or jury. A

question of whether the party has met its burden of proof is properly “removed” -- for

example, via adjudication of a dispositive motion -- “from the jury’s consideration only

where it is clear that reasonable minds [cannot] differ on the issue.” Hamil v. Bashline,

392 A.2d 1280, 1284-85 (Pa. 1978). Thus, the strict liability construct we articulate

today comfortably accommodates the gate-keeping role ordinarily relegated to the trial

court in tort actions.

       Our decision today allows for application of standards of proof in the alternative.

Obviously, other examples of such decisional paradigms exist. See, e.g., 18 Pa.C.S. §

2503 (describing offense of voluntary manslaughter as action under heat of passion or

premised upon imperfect belief of self-defense). In charging the jury, the trial court’s

objective is “to explain to the jury how it should approach its task and the factors it

should consider in reaching its verdict.”         Chambers, 980 A.2d at 49 (quoting

Commonwealth v. Hartman, 638 A.2d 968, 971 (Pa. 1994)). Where evidence supports

a party-requested instruction on a theory or defense, a charge on the theory or defense

is warranted. Id. At that point, “[t]he trial court has broad discretion in phrasing its

instructions, and may choose its own wording so long as the law is clearly, adequately,

and accurately presented to the jury for its consideration.” Sepulveda, 55 A.3d at 1141.

       It is essential for the bench and bar to recognize that the test we articulate today

is not intended as a rigid formula to be offered to the jury in all situations. The alternate

theories of proof contour the notion of “defective condition” in principled terms intended

as comprehensive guidelines that are sufficiently malleable to account for product

diversity and a variety of legal claims, products, and applications of theory. The crucial

role of the trial court is to prepare a jury charge that explicates the meaning of “defective




                                     [J-80-2013] - 132
condition” within the boundaries of the law, i.e., the alternative test standard, and the

facts that pertain. Cf. Soule, 882 P.2d at 308-11.



                              b.     The Burden of Proof

       Another consideration derived from existing precedent implicates the burden of

proof in a strict liability case. As we have noted, California pioneered the alternate

consumer expectations / risk-utility balancing test as a prevailing standard of proof in

strict liability cases. See Barker, 573 P.2d at 457-58. The Barker court also concluded

that it was appropriate, when proceeding upon a risk-utility theory, to shift to the

defendant the burden of production and persuasion to demonstrate that an injury-

producing product is not defective in design.        Id. at 455.    Other jurisdictions have

subscribed to the Barker standard of proof, although only some of those courts have

also shifted the burden of proof to the defendant. Compare, e.g., Lamkin v. Towner,

563 N.E.2d 449, 457 (Ill. 1990) with Knitz, 432 N.E.2d at 818. The similarity of the

approach we have approved to the Barker standard of proof may raise a question of

whether Pennsylvania should also require a shifting of the burden of proof to the

defendant when the plaintiff proceeds upon a risk-utility theory.

       Recently, in a case involving criminal law, this Court explained that: “[t]he

function of a standard of proof, as that concept is embodied in the Due Process Clause

and in the realm of factfinding, is to instruct the factfinder concerning the degree of

confidence our society thinks he should have in the correctness of factual conclusions

for a particular type of adjudication. While the risk of error in a particular adjudication

does not vary depending on the standard of proof adopted, the burden allocates that

risk between the parties.” Sanchez, 36 A.3d at 65 (citations omitted). In strict liability

cases, as ordinarily in other civil actions, the burden of proof is sustained by a




                                    [J-80-2013] - 133
preponderance of the evidence. See, e.g., Summers v. Certainteed Corp., 997 A.2d

1152, 1163-64 (Pa. 2010) (quoting Hamil, 392 A.2d at 1284-85). A more stringent

burden of production and persuasion imposes a higher risk of an erroneous decision on

the party upon which the burden rests.        Thus, shifting the burden of proof onto a

defendant places the risk of an erroneous decision upon the defendant.                  The

determination of whether such a shift is suitable rests, as the Barker court also noted,

primarily on considerations of whether the shift vindicates the public policy at issue. In

addition, we consider difficulties of adducing evidence to prove a negative, the parties’

relative access to evidence, and whether placing the burden of proof on one party is

necessary to help enforce a further right, constitutional or otherwise. See Sanchez, 36

A.3d at 67.

       Applying similar criteria, the Barker court reasoned that placing the burden on the

defendant was appropriate “[b]ecause most of the evidentiary matters which may be

relevant to the determination of the adequacy of a product’s design under the ‘risk-

benefit’ standard e.g., the feasibility and cost of alternative designs are similar to issues

typically presented in a negligent design case and involve technical matters peculiarly

within the knowledge of the manufacturer.” According to Barker, the shift in the burden

of proof reflected the policy judgment that “one of the principal purposes behind the

strict product liability doctrine is to relieve an injured plaintiff of many of the onerous

evidentiary burdens inherent in a negligence cause of action.” 573 P.2d at 455.

       The parties obviously have not briefed the question of burden-shifting in risk-

utility cases -- they had no reason to -- and we need not decide it to resolve this appeal,

nor is it apparent that it will matter upon remand.      We note, however, that whatever

may be the merit of the Barker court’s concerns, countervailing considerations may also

be relevant. For example, it is consistent with the treatment of tort causes of action




                                     [J-80-2013] - 134
generally, and the notion that Pennsylvania does not presume a product to be defective

until proven otherwise, to assign the burden of proof in a strict liability case to the

plaintiff. Moreover, proving a negative is generally not desirable as a jurisprudential

matter because of fairness concerns related to anticipating and rebutting allegations,

and because of the encumbrances placed upon the judicial system by an open-ended

approach to pleading and trying a case. Finally, evidence relevant to a risk-utility test,

including the feasibility and cost of alternative designs, while involving technical matters,

would seem to be within the knowledge of expert witnesses available to either plaintiff or

defendant in many cases; and liberal discovery may also aid the plaintiff.

       These interests, and others that we may not perceive, are implicated in

answering the question of whether the burden should be on the plaintiff or on the

defendant, generally or in particular cases involving a risk-utility theory. The ultimate

answer to the question best awaits balancing in an appropriate case, specifically raising

the question, with attendant briefing from parties.



                               c.     Related Legal Issues

       We recognize – and the bench and bar should recognize -- that the decision to

overrule Azzarello and articulate a standard of proof premised upon alternative tests in

relation to claims of a product defective in design may have an impact upon other

foundational issues regarding manufacturing or warning claims, and upon subsidiary

issues constructed from Azzarello, such as the availability of negligence-derived

defenses, bystander compensation, or the proper application of the intended use

doctrine. Accord Bugosh, 971 A.2d at 1244-45 & 1248-49. These considerations and

effects are outside the scope of the facts of this dispute and, understandably, have not

been briefed by the Tinchers or Omega Flex.




                                     [J-80-2013] - 135
       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.

In light of our prior discussion, the difficulties that justify our restraint should be readily

apparent.   The common law regarding these related considerations should develop

within the proper factual contexts against the background of targeted advocacy.



                               IV.    Conclusion / Mandate

       At the Court’s request, the parties briefed a question concerning whether

adoption of the Third Restatement, if such a decision were to be made, would have

retroactive or prospective effect. Having declined to “adopt” the Third Restatement, we

need not reach the question of retroactive or prospective application of the ruling.

Nevertheless, in light of the decision to overrule Azzarello, questions remain regarding

whether Omega Flex should benefit from the application of our Opinion upon remand

and, moreover, whether Omega Flex is entitled to a new trial.            Here, Omega Flex

preserved and presented its claim that Azzarello should be overruled to the trial court

and on appeal; as a result, we hold that Omega Flex is entitled to the benefit of our

decision in this regard. Whether Omega Flex is entitled to additional relief, including a

new trial or judgment notwithstanding the verdict is not apparent upon the record before

us.   See Price, 735 A.2d at 672 (new trial appropriate if erroneous jury instruction

amounts to fundamental error or the record is insufficient to determine whether error

affected verdict); Degenhardt, 669 A.2d at 950 (judgment notwithstanding verdict is

appropriate only if no two reasonable minds could disagree that verdict should be in

favor of movant).




                                      [J-80-2013] - 136
       For these reasons, we reverse in part the decision of the Superior Court in this

matter, and remand to the trial court for further action upon post-trial motions. Upon

remand, the trial court may direct the parties to file supplemental post-verdict motions or

briefs articulating their positions regarding the proper disposition of the matter in light of

our decision to overrule Azzarello and the further guidance articulated in this Opinion.

       Jurisdiction relinquished.

       Former Justice McCaffery did not participate in the decision of this case.

       Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.

       Mr. Justice Saylor files a concurring and dissenting opinion in which Mr. Justice
Eakin joins.




                                     [J-80-2013] - 137
