Berks Barrister Summer 2018 - 9

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compensate the injured party. RST. (SECOND) OF TORTS ยง
402A.
The Tincher case, which has now provided the Pennsylvania
product liability world with two precedential opinions, arises
from an action brought by homeowners for property damage
that occurred as a result of a fire that erupted in their home after
lightning struck steel tubing that was used to transport natural gas
to the homeowners' fireplace. The homeowners alleged that there
was a design defect in the tubing that allowed the lightning strike
to ignite the natural gas and, therefore, sued the manufacturer.
After a jury awarded the homeowners a verdict of nearly a million
dollars, a lengthy battle began over the proper law to apply and
the proper instructions to the jury.
The defendant, and the defense bar as a whole, hoped that
the Pennsylvania Supreme Court would take the opportunity
to adopt the Restatement (Third) of Torts, which would have
entirely overturned decades of product liability law in this
Commonwealth. Adopting the Third Restatement would have
placed a much greater burden on the plaintiff in products liability
cases by requiring that the plaintiff show negligence on the part
of the manufacturer and requiring that the plaintiff not just show
that the product was defective, but show a reasonable alternative
design that the manufacturer could and should have adopted.
Tincher I expressly refused to adopt the Third Restatement, but
the Court's opinion went on to reshape how trial courts were
required to handle product liability cases.
Most importantly in Tincher I, the Supreme Court (1)
eliminated the requirement that trial courts make a threshold
determination about whether the product was unreasonably
dangerous, and (2) set forth two tests by which the plaintiff may
prove a defective condition. Those two tests were the consumer
expectations test and the risk-utility test. While those two tests
set forth means for how to prove a defect, it was subject to
debate whether the actual definition of a defective condition had
changed.
The plaintiffs and defense bars both claimed victory after
Tincher I. Eliminating the requirement that trial courts make
a determination about whether the product is unreasonably
dangerous means more cases are likely to survive summary
judgment, which was considered a victory for plaintiffs. However,
the risk-utility test articulated by Tincher I for plaintiffs to prove a
defect was seen by many to favor defendants compared to
prior law.

While lawyers and judges alike wrestled with how to interpret
Tincher I, the opinion itself warned that it was not to be read too
strictly, thus possibly leading to even more ambiguity:
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
condition" within the boundaries of the law, i.e., the
alternative test standard, and the facts that pertain.
Tincher I, 104 A.3d at 408.
The consumer expectations and risk-utility tests provide some
clarity for how plaintiffs are to prove a defect, but they do not
necessarily answer the question of how to define "defect." This is
not simply a matter of semantics, as after Tincher I there began
an immediate fight amongst litigators when the Committee for
Proposed Standard Jury Instructions released the post-Tincher
PaSSJI that still included the same definition of defective
condition: lacking every element necessary to make it safe. The
Pennsylvania Defense Institute formulated alternative postTincher I standard jury instructions due to its dissatisfaction with
the retention of the old definition.
While Tincher I certainly did enact some changes to
Pennsylvania law, it remanded to the trial court for a decision
on whether the defendant manufacturer was entitled to a new
trial or a judgment notwithstanding the verdict in the wake
of the Supreme Court's opinion. The defendant manufacturer
subsequently requested a new trial. At the trial years earlier, before
any appeals, the jury had twice sent a question to the judge asking
for the definition of "defective," hence the importance of this
question that Tincher II would address. The trial court, however,
denied the motion for a new trial as it believed the Tincher I
framework wouldn't change the result based on how the jury had
been charged and the evidence with which it had been presented.
On appeal, the Superior Court disagreed, and held that the preTincher I jury charges did not hold up under the new law for
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