Court changes Pennsylvania process for determining product defects

February 5, 2015 By and    

In Tincher v. Omega Flex, a Pennsylvania Supreme Court decision issued Nov. 19, the state court changed the law of product liability within its borders. The state law had existed for more than 50 years.

This decision gets rid of a product liability pattern that left to a trial judge the preliminary decision of whether a product was “unreasonably dangerous.” If the judge made this decision, the product liability claim was presented to the jury against the manufacturer and anyone in distribution.

The case involved a June 2007 fire in a home owned by the Tincher family in Downingtown, Pa. Investigations revealed that a lightning strike near the residence caused a puncture of the home’s corrugated stainless steel tubing (CSST), which had been manufactured by Omega Flex and marketed as the TracPipe system. The Tinchers’ insurer paid the loss and brought a suit against Omega Flex, alleging claims of strict liability, negligence and breach of warranty.

The jury favored the Tincher family’s case over Omega Flex, and an appeal by Omega Flex followed. On appeal, the state Supreme Court introduced a new process for determining whether a product is defective. The process looks at the consumer expectation test or the risk-utility test.

The consumer expectation test defines a “defective condition” that is dangerous beyond the reasonable consumer’s contemplations. This test asks if the defective condition is unknowable and unacceptable to the average consumer. It considers the consumer’s knowledge; the intended use of the product; the intended user for the product; and warranties that apply to the product.

The risk-utility test is a manufacturer-based analysis of the product that compares the value of the product to the consumer versus the risk of injury from its use. The state Supreme Court determined seven factors to consider in this analysis:

  • the usefulness of the product;
  • the safety of the product;
  • the ability to eliminate the harm without destroying the function of the product;
  • the availability of substitute products that are safer;
  • the ability of the user to avoid the risk;
  • the knowledge of the risk by the consumer through common knowledge or information provided by the manufacturer; and
  • the ability of the manufacturer to spread the loss through pricing or liability insurance.

A plaintiff can try to prove a case of product liability using one or both of the theories mentioned above. Laws requiring a defendant to prove the risk-utility theory as a defense may develop from this.

Typically, the plaintiff has to prove its theory of liability against any defendant. In the Tincher case, the state Supreme Court looked at California laws to find support for its opinion. Under California court cases, there are instances where the burden-shifting approach has been adopted.

One takeaway from this decision is that the court did not issue any guidelines on how the new rules for determining product liability claims will be made. Defenses can be raised and jury instructions do not exist for the set of rules that governed admission of evidence at trial. Instead, the state Supreme Court will allow the trial process to develop these procedures, meaning the law in this area is in a major state of flux.

For industry members, this case is of importance since it reframes the question of product liability law in Pennsylvania to one that looks at the product focused on practical considerations that inform the actions of daily life. This approach is more pragmatic and allows the jury to consider facts relevant to a product’s reasonable safety. In the past, these decisions were mostly left to the judge.

The case was sent back to the trial court following this decision for additional proceedings, so there may be more information on this topic in upcoming columns.

John V. McCoy is with McCoy Leavitt Laskey LLC, and his firm represents industry members nationally. He can be reached at or 262-522-7007.


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