Berks Barrister Summer 2018 - 8

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Making Sense of Tincher II
and What It Means for a
Product to be "Defective"

By Bradley Smith, Esquire

I

n 2014, the Pennsylvania Supreme Court altered the product
liability landscape in Pennsylvania with its decision in Tincher
v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) ("Tincher I").
Now that same case is making its way back through the appellate
system as Pennsylvania courts try to make sense of the Supreme
Court's 128-page opinion. The Superior Court's February 16,
2018 published opinion in this same matter focused on how courts
should define the term "defect" in their jury instructions. Tincher v.
Omega Flex, Inc., 180 A.3d 386 (Pa. 2018) ("Tincher II").
Although it was clear that Tincher I set forth new tests for
how plaintiffs could prove a defective condition, it was ambiguous
whether Tincher I had actually altered how Pennsylvania defines
a defective condition. While the Pennsylvania Supreme Court
Committee for Proposed Jury Instructions opted not to change
its definition of a defective condition in its Suggested Standard
Civil Jury Instructions ("PaSSJI"), Tincher II holds that the
decades-old definition no longer accurately reflects the law of this
Commonwealth.
Whether a product is defective is for the jury to decide, hence
the importance of the court's definition of defect to the jury. For
many years, Pennsylvania products liability law was guided by
Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978). Azzarello

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defined a defective condition as "lacking any element necessary to
make [the product] safe for its intended use." 391 A.2d at 1027,
n.12. Azzarello also required the trial court to analyze, pre-trial,
whether the product was "unreasonably dangerous," essentially
conducting its own risk-utility test.
However, the "lacks any element necessary to make it safe"
definition of a defect did not originate with Azzarello. Rather, that
definition originated with Berkebile v. Brantly Helicopter Corp.,
337 A.2d 893 (Pa. 1975), which largely remains good law. By
the time Azzarello was decided, that definition had already been
incorporated into the PaSSJI for products liability cases in 1976.
The "lacks every element necessary to make it safe" definition of
defect has been part of the PaSSJI ever since, through the most
recent revision in 2016. That may change in the wake of Tincher
II.
What it means for a product to be defective is central to
products liability law. If a product is defective, the supplier(s) of
that product is strictly liable for any harm that the product causes.
It does not matter if a supplier of the product exercised reasonable
care, as it would in a negligence case. If a product is "in a defective
condition unreasonably dangerous to the user" and that defect
was a factual cause of personal injuries, the supplier will have to
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Berks Barrister Summer 2018

Table of Contents for the Digital Edition of Berks Barrister Summer 2018
