Berks Barrister Summer 2018 - 10

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

Continued from page 9

proving a defective condition.
Noting that an inaccurate definition of "defect" was enough
to merit a reversal under Azzarello, Tincher II held that the court's
definition of defect-"lacking every element necessary to make
it safe"-and its instructions on how the jury was to determine
whether the product was in a defective condition were wrong,
therefore reversal was required. Tincher II did not exactly offer a
new definition of "defect" that could be inserted into the PaSSJI,
but rather simply held the current definition was inconsistent with
the alternative test framework set forth in Tincher I.
Tincher II's decision to throw out the "lacks every element
necessary to make it safe" definition of defect due to its ties to
Azzarello is based on dicta in Tincher I, but was not a course that
was mandated by the Pennsylvania Supreme Court. Tincher I
overruled Azzarello "to the extent that the pronouncements in
Azzarello are in tension with the principles articulated in this

Opinion." Tincher I, 104 A.3d at 376. But that definition of defect
is not necessarily in tension with Tincher I. Clearly the Supreme
Court's Committee for Proposed Jury Instructions believed
Tincher I and the "lacks every element necessary to make it safe"
definition could coexist. When revising the PaSSJI post-Tincher
I in 2016, the Committee did not alter the definition of defect.
The comments to PaSSJI ยง 16.10 discussed Tincher I extensively.
However, the Committee did not read Tincher I as necessitating a
shift in this fundamental definition.
The Superior Court's decision in Tincher II presents an
unusual scenario, as it essentially holds that charging the jury with
the relevant PaSSJI is reversible error. Tincher II held that courts
should no longer equate a defective product with one that lacks
any element necessary to make it safe. Tincher II, 180 A.3d at 397.
As a result of Tincher II, it seems likely that courts will shy
away from the current PaSSJI, despite its release being post-

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Berks Barrister Summer 2018

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

Berks Barrister Summer 2018 - 1
Berks Barrister Summer 2018 - 2
Berks Barrister Summer 2018 - 3
Berks Barrister Summer 2018 - 4
Berks Barrister Summer 2018 - 5
Berks Barrister Summer 2018 - 6
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