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Sullivan v. Werner Co., 2023 Pa. LEXIS 1715, 2023 WL 8859656 (December 22, 2023) (Mundy, JJ.).

We granted allowance of appeal to consider whether evidence of a product’s compliance with industry and governmental safety standards is admissible in products liability cases following this Court’s decision in Tincher v. Omega Flex, Inc., 628 Pa. 296, 104 A.3d 328 (Pa. 2014). Because we conclude compliance evidence remains inadmissible, we affirm the order of the Superior Court.

In Tincher, this Court overruled Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (Pa. 1978).

The Tincher Court explained that a seller of a product has a duty to provide a product that is free from “a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.” Id. at 383 (citing Restatement (Second) of Torts § 402A(1)) (brackets in original). To prove a breach of this duty, “a plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a ‘defective condition.'” Id. at 384. The Tincher Court then analyzed the evidence necessary to prove a defective condition in a design defect case, holding “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.” Id. at 401. Under the consumer expectations test, “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer.” Id. at 387. Under the risk-utility test, “a product is in a defective condition 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.” Id. at 389. The Court stated that a plaintiff may proceed under either theory, or both theories in the alternative. Id. at 408.

Significant to this opinion, this Court had concluded, when Azzarello was the law, that evidence of industry and governmental standards was not admissible in strict products liability cases because such evidence went to the reasonableness of the manufacturer’s design choice, which improperly injected negligence concepts such as due care into strict liability cases and misled the jury from the product’s design. Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334, 528 A.2d 590, 594 (Pa. 1987); see also Gaudio v. Ford Motor Co., 2009 PA Super 102, 976 A.2d 524, 544 (Pa. Super. 2009) (listing cases extending Lewis to evidence of compliance with government standards). Tincher did not overrule Lewis or decide whether evidence of compliance with industry and government standards was admissible in a design defect case.

Appellee Michael Sullivan was seriously injured at a jobsite when the platform of a six-foot tall mobile scaffold collapsed, causing him to fall through the scaffold to the ground. The platform of the scaffold was secured to the frame by two spring-loaded deck pins that the user rotated to cover the platform after it was seated in the scaffold. Sullivan brought a strict liability action against Appellants Werner Company (Werner) and Lowe’s Companies, Inc. (Lowe’s), alleging that the mobile scaffold system was defectively designed because it was possible for a user to inadvertently rotate the deck pins off the platform during normal use.

The trial court instructed the jury as follows:

Under the risk utility test[,] a product is defective if a reasonable person would conclude that the possibility and seriousness of harm outweighed the burden or cost to the manufacturer of making the product safe.

To decide whether the product is defective under this test, you should consider the following factors: The usefulness and desirability of the product, its utility to the user and to the public as a whole, the safety aspects of the product, the likelihood that it will cause injury, and the probable seriousness of the injury, the availability of a substitute product which would meet the same need and not be as unsafe, the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility, the user’s ability to avoid danger by the exercise of care in the use of the product, the user’s anticipated awareness of the dangers inherent in the product and their availability, because of the general public knowledge of the obvious condition of the product or the existence of suitable warnings or instructions.

You may not consider any negligence, that is lack of due care, by Plaintiff, Michael Sullivan, when performing this test for defectiveness. Rather, you must consider what product a reasonable manufacturer would design, given all the factors listed above.

Ultimately, the jury found New Werner and Lowe’s liable on the design defect claim and awarded Sullivan $2.5 million in damages.

Sullivan continues that our decision in Roverano v. John Crane, Inc., 657 Pa. 484, 226 A.3d 526 (Pa. 2020), shows that our Court has preserved the distinction between negligence and strict liability claims. Id. at 35. In concluding that Pennsylvania’s Fair Share Act did not require a jury to apportion strictly liable defendants’ shares of liability on a percentage basis, Sullivan notes that our Court “reaffirmed that ‘strict liability is ‘liability without fault.”” Id. at 37 (quoting Roverano, 226 A.3d at 538).

Amici curiae American Association for Justice, Pennsylvania Association for Justice, et al. (AAJ), argue that “unreasonably dangerous” applies to the nature of the product, not to the manufacturer’s conduct in complying with industry or government standards. Thus, Appellants’ approach of focusing on compliance is not relevant to the issue of whether the product was unreasonably dangerous and defectively designed. “The conduct of the manufacturer should not be judged by reference to other manufacturers; it is the product which must be judged as either sufficient or deficient, a focus that the Tincher court reaffirmed.” AAJ’s Amici Br. at 25 (emphasis in original).

in Lewis, this Court concluded that evidence of industry standards and a product’s widespread design within an industry “go to the reasonableness of the [defendant’s] conduct in making its design choice, [and] that such evidence would have improperly brought into the case concepts of negligence law.” Lewis, 528 A.2d at 594. The Lewis Court explained that the proper focus of a design defect case is on the characteristics of the product and not the conduct of the manufacturer. Id. at 593.

The Lewis Court also reasoned that industry standards evidence “would have created a strong likelihood of diverting the jury’s attention from the [defendant’s product] to the reasonableness of the [defendant’s] conduct in choosing its design.” Id. at 594. Accordingly, Lewis held compliance evidence was inadmissible as it had “a tendency to distract the jury from its main inquiry or confuse the issue.” Id.

Although Tincher overruled Azzarello, it did not overrule Lewis or criticize its reasoning.

To prove a breach of this duty in design defect cases, Tincher replaced the Azzarello standard with a “composite test” in which the consumer-plaintiff may show a defective condition through either (or both) the consumer expectations test or the risk-utility test. Id. at 401. In its thorough exposition of the development of strict liability, the Court explained that the consumer expectations test, based on the consumer’s expectation that a seller placing a product on the market impliedly represents the product is not unreasonably dangerous, derived from the breach of warranty roots of strict liability. Id. at 402-03. Meanwhile, the risk-utility test, focusing on the manufacturer’s risk-benefit calculus, reflected its negligence strands. Id. at 403-04. Regardless of which test is used, the duty is to provide a product free from a defective condition unreasonably dangerous to the consumer, and liability may be incurred irrespective of fault. Id. at 403 (recognizing all definitions of defect “effectuat[e] the single policy that those who sell a product are held responsible for damages caused to a consumer by the reasonable use of the product.”). In articulating the composite test to prove a defect, the Tincher Court did not address the viability of the Lewis rule going forward. Id. at 410.

The Tincher Court adopted the composite test as set forth by the California Supreme Court in Barker v. Lull Engineering Co., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (Cal. 1978), which contained a nonexclusive list of risk-utility factors: “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.” Barker, 573 P.2d at 455.

The Pennsylvania Suggested Standard Civil Jury Instructions (PA-JIICIV) are modeled after the Barker factors. See PA-JIICIV 16.20 and Subcommittee Note.

Regardless of the formulation of the risk-utility test, the focus is clearly on the characteristics of the product.

We reaffirm Lewis and hold that evidence of a product’s compliance with governmental regulations or industry standards is inadmissible in design defect cases to show a product is not defective under the risk-utility theory. To be clear, compliance evidence is simply evidence of the ultimate conclusion that a product complies with government regulations or industry standards, i.e., that a government agency or industry organization would deem the product not defective. It is not evidence of the underlying attributes of the product that make it compliant with regulations or standards, which is presumably admissible subject to the ordinary Rules of Evidence. We agree with the Lewis Court’s assessment that the focus of a design defect case must be limited to the characteristics of the product, and not the conduct of the manufacturer or seller. See Lewis, 528 A.2d at 593. Compliance evidence does not prove any characteristic of the product; rather, it diverts attention from the product’s attributes to both the manufacturer’s conduct and whether a standards-issuing organization would consider the product to be free from defects. Neither of these considerations are pertinent to a risk-utility analysis.

That OSHA or ANSI would deem a defendant’s conduct compliant with its standards is not relevant to the risk-utility test and diverts the jury’s attention from the relevant inquiry.

Tincher reaffirmed that Pennsylvania is a Second Restatement jurisdiction. Further, to maintain the distinction between strict liability and negligence, we cannot permit negligence concepts such as fault and due care to creep into strict liability. See Tincher, 104 A.3d at 400 (“introducing a colloquial notion of ‘fault’ into the conversation relating to strict product liability in tort detracts from the precision required to keep this legal proposition within its rational bounds.”). Compliance evidence shifts the jury’s focus away from the characteristics of the product and suggests that the jury consider the manufacturer’s conduct or an organization’s safety standards. While Appellants assert that compliance evidence is relevant to whether a product is unreasonably dangerous and the condition of the product, evidence that [*39] a third-party does not consider the product defective or that a manufacturer complied with those standards does have any tendency to make any of the risk-utility factors outlined above more probable.

In essence, Appellants are proposing that we adopt the Third Restatement of Torts’ approach to compliance evidence, which states that “a product’s compliance with an applicable product safety statute or administrative regulation is properly considered in determining whether the product is defective with respect to the risks sought to be reduced by the statute or regulation, but such compliance does not preclude as a matter of law a finding of product defect.” Restatement (Third) of Torts: Products Liability § 4. However, Tincher refused to adopt the Third Restatement, explaining its approach was “problematic” for numerous reasons, including that its limitation of strict liability to cases where an alternate design existed and its special evidentiary rules (including its position on compliance evidence in Section 4) may not be “consistent with the public policy that compensation is available for an injury caused by any type of defective product.” Tincher, 104 A.3d at 395-96. Ultimately, Tincher concluded the Third Restatement’s approach was an insufficient reflection of the law and decided to retain the Second Restatement, explaining “[u]nlike the Third Restatement, we believe that the Second Restatement already adopted, and properly calibrated, permits the plaintiffs to tailor their factual allegations and legal argumentation to the circumstances as they present themselves in the real-world crucible of litigation, rather than relying upon an evidence-bound standard of proof.” Id. at 399. Because Tincher considered and rejected the Third Restatement, we reject Appellants’ attempt to move us toward the Third Restatement in this case.

The focus in a design defect case must remain on the product and not on the manufacturer’s conduct. Accordingly, we conclude that Lewis remains the law and evidence of a product’s compliance with industry or government standards is not admissible in design defect cases to show a product is not defective under the risk-utility theory.


The Manufacturers did not attempt to establish the relevance of the applicable industry standards to any of the factors previously identified as relevant to the jury’s determination that a product is unreasonably dangerous.

This shortcoming gives rise to the second deficiency in the Manufacturers’ argument in opposition to the motion in limine: the record is devoid of any information about what ANSI standards are, how they are developed, or what their purpose, application or interpretation is. In other words, are any of the various factors to be considered by the jury taken into account in the process of developing the standards.

From the outset, I was struck by the omission from the record of the actual ANSI or OSHA standard sought to be admitted by the Manufacturers. As the proponent of the admission of the evidence, the Manufacturers had the burden of establishing its relevance. Instead, the Manufacturers assumed that merely invoking the acronym “ANSI” sufficiently apprised the trial court of the relevance of the evidence. Although one would not know it from the record in this case, the development, interpretation and application of ANSI standards are complicated.

Any decision on the admissibility of industry or governmental standards in a design defect products liability case requires a developed record containing evidence establishing the relevance of the standard to a factor or factors that a jury must consider in reaching its liability verdict. Here, the trial court did not have that record and thus, the trial court did not err in excluding the evidence.

Given the lack of a record supporting the admissibility of industry standards, the trial court did not err in excluding the evidence. Thus, I concur in the result reached in the OAJC.