It’s finally here: Tincher v. Omega Flex, the Pennsylvania Supreme Court’s overhaul of strict liability. If you’re unfamiliar with the recent turbulence surrounding strict liability, check out this post of mine from July 2012, which will take you all the way from Webb v. Zern, 220 A.2d 853, 854 (1966) to Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Tincher is a foundational opinion, one that resets the landscape of strict liability and puts it on a more secure and coherent framework for the future.

The 137-page majority opinion written by Chief Justice Castille may become his magnum opus. It rises swiftly into the high politics of separation of powers (pp. 29–37), unearths the half-century-old foundations of strict liability in Pennsylvania (pp. 37–57), reviews the entirety of the precedent (pp. 57–74), explains the practical problems of the doctrine as used today (pp. 74–84), outlines the conceptual framework for strict liability (pp. 84–107), and charts the path forward (pp. 107–137).

It even quotes David Hume (p. 38) and includes a sly reference to Einstein’s dual theories of relativity (p. 110, criticizing the Third Restatement as having “general and special rules” for different types of products, rules that together fail to “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”).

The opinion is also unanimous, given that the whole court joined it, although Justice Saylor wrote and Justice Eakin joined a two-page “concurring and dissenting” opinion. Justice Saylor says that, if “left to [his] own devices,” he would adopt the product liability segment of the Third Restatement of Torts — an approach the majority opinion he joined eviscerated (pp. 33-37, 107-117), concluding it was “unmoored from guidance upon the broader legal issue,” making it at best “a superficially enticing option” that “risk[s] elevating the lull of simplicity to doctrine.” Slip op. at 116 (quoting Scampone). Frankly, I don’t see the incongruous ‘concurring and dissenting’ opinion having much impact going forward.

The majority opinion admits that it is part of an “incremental approach,” and that much lies ahead in “the development of strict liability law in Pennsylvania.” Slip op., p. 116. So let’s roll up our sleeves and figure out how to best apply the case going forward.

Predictably, the defense bar, the big corporate manufacturers, and the insurance companies have started claiming that Tincher actually adopted the Third Restatement by stealth, that this stunning reaffirmation of the purpose of strict liability and of the role of the jury as ultimate fact-finder is somehow favorable for them. See, e.g., Ballard Spahr,Morgan Lewis, and, of course, Drug and Device Law. We’ll come back to them.

Here are the five key points I’ve drawn from the opinion:

1. Plaintiffs Should Start Using Tincher In Complaints 

Plaintiffs bringing strict liability claims need to start alleging, specifically, a factual foundation for strict liability under the consumer expectation and/or risk-utility tests:

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. … 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.

Slip op., p. 130. I’m not so fond of the holding that a plaintiff “must” articulate the detailed legal theory upon which they’re proceeding; generally, Pennsylvania law requires the pleading of facts, not legal theories. That said, at least Tincher recognizes that these issues are to be resolved “as discovery and case preparation proceed,” rather than at the pleading stage.

2. Lower Courts Need To Consider The Underlying Policies Behind Strict Liability 

The holding of Tincher is stated twice in the opinion, first in the opening:

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.

Slip op., p. 2 (emphasis added). Then again in the opinion:

[A]fter 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.

Slip op., p. 119 (emphasis added).

The italicized language isn’t mere verbiage. At its core, Tincher is a mandate from the Supreme Court urging lower courts to eschew simplistic rule-following — which is what caused all the trouble from Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978)onward — and to instead fashion their decisions in particular cases by looking to the policies underlying strict liability. Consider this rejoinder to the very purpose of the Restatement of Torts: “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.’”

So what are those policies?

3. The Policies Underlying Strict Liability Strongly Disfavor Courts Granting Immunity or Exemption To The Manufacturers and Sellers Of Products Which Cause Injuries 

As I mentioned back in 2012, the point of strict liability is to ensure compensation for people injured by unexpected dangers of a product. Tincher affirmed that loudly and clearly. Thus, four key points should be reiterated in the onset of every brief on strict liability. All of these are direct quotes from the Tincher opinion:

  • Immunity or exemption from liability is the exception to the general rule that an entity must meet the obligations it incurs in functioning.” Slip op., p. 111, quoting Scampone.
  • “[T]hose 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. … The risk of injury is placed, therefore, upon the supplier of products.” Slip op., p. 85 (citing Miller and Webb).
  • “[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.” Slip op, p. 88, quoting RESTATEMENT (2D) OF TORTS § 402A(1). Slip op, p.
  • “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.” Slip op, p. 90.

Bolding mine. These are not minor points: the default rule is to impose liability on sellers; the risk of injury is upon the supplier; the supplier has a duty to ensure their product is free of defects; and, strict liability is independent from negligence.

Plaintiffs’ lawyers should expect to see insurance companies and big companies pretending that Tincher says something different from what it actually says. Indeed, the defense lawyers over at Drug and Device Law are so upset by the opinion that they just pretend the fourth point didn’t happen: “Tincher gets rid of… the negligence/strict liability dichotomy which is the basis for several awful evidentiary exclusions.” Absolutely not. That’s just wishful thinking, as if the Third Restatement had prevailed.Tincher reiterated that strict liability is a completely different claim from negligence, with different purposes and different methods of proof. See also slip op., p. 121 (“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.”).

Parenthetically, the Drug and Device Law folks also wrongly claim Tincher contains an “express rejection of absolute liability” on page 85. I read that page up and down, it says nothing of the sort. In fact, the very core of the opinion laying out the new standard clearly notes that, under strict liability law, a defendant may indeed be liable on the theory that a product is so dangerous that it should never be marketed at all:

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 thatdesigners are properly deterred by strict liability from using consumers as guinea pigs.

Slip op., p. 125.

4. Under Tincher, All Factual Issues Are Left To The Jury, And The Trial Court’s Primary Role Is To Fashion Jury Instructions

Tincher summarizes the consumer expectations test (p. 94) and the risk-utility test (p. 98), and there will be time in the future for the details of those under Pennsylvania law to be hashed out. But the key point here is, whatever the legal standard, all of those issues are for the jury to decide. As the opening states:

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.

Slip op., p. 2. The opinion then explains in detail, from pp. 129-133, that 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,” and that the remainder is up to the jury. Summary judgments in strict liability cases should thus become few and far between.

5. Most Of The Precedent Favorable To Plaintiffs — Like Deeming Industry Standards Irrelevant — Remains Viable

For years, manufacturers and their insurers have sought to make strict liability all about “industry standards” and “government regulations.” It’s not hard to see why: they make the “industry standards” themselves, and the “government regulations” are bare-minimum requirements that are typically too low anyway thanks to lobbying by the manufacturers.

The key case on that point in Pennsylvania is Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590 (Pa. 1987), which held that evidence of industry standards are inadmissible in strict products liability actions. Accord Estate of Hicks v. Dana Companies, 984 A. 2d 943, 2009 PA Super 220 (Pa. Super. Ct. 2009). Tincher placesLewis in its historical context, but never even hints that it has been overruled. Rather,Tincher is quite clear in the beginning that the issue isn’t even up for debate, because it wasn’t developed by the defendant:

Omega Flex notes that this approach [under Azzarello] 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.

Slip op., p. 20, footnote 4. The Drug and Device folks try to claim that a discussion on pp. 126-127 somehow implicitly overrules Lewis, but that’s because they omit the last sentence of the paragraph: “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.”


All in all, Tincher is a big win for the law in general — there’s no denying the prior standard was a confusing mess that created all sorts of complications and inconsistencies. It is also a win for the victims of unsafe products placed into the market by manufacturers and sellers. Much remains to be done, however, as the contours of this new structure are chiseled out on the facts of future cases.