Berks Barrister Summer 2018 - 11

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Tincher I. However, that does not mean that a product that
lacks every element necessary to make it safe is not defective.
It is easy to see how such a definition plays into the consumer
expectations and risk-utility tests that are set forth in Tincher I.
For example, a product that lacks a guard to protect a user from
a rotating part is obviously lacking every element necessary to
make it safe.
Under Tincher I's consumer expectations test, a product
is defective if the danger is unknowable and unacceptable to
the average or ordinary consumer. Tincher I, 104 A.3d at 387.
A product that is lacking a necessary element to make it safe,
such as a guard to prevent body parts from coming into contact
with a rotating part, is certainly one that a reasonable consumer
would find dangerous.
Likewise, under Tincher I's risk-utility test, a product
is defective 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. Tincher I,
104 A.3d at 389. If a product is missing an element necessary
to make it safe, especially where that element is not costprohibitive, then that product would be defective under the
risk-utility test.
While juries may no longer be instructed that the definition
of a defective product is one that "lacks every element necessary
to make it safe" at the time it left the supplier's control, that
does not mean such language has to be scrubbed from plaintiff 's
lawyers' vocabulary. Rather, it can and should be worked into
the current framework of the consumer expectations and riskutility tests, even if this definition is no longer part of the jury
instructions.
Bradley Smith, Esquire, is with the
law firm of Galfand Berger, LLP.

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Summer 2018 | 11

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Berks Barrister Summer 2018

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