One of the widely asked questions in the wake of Tincher v. Omega Flex, Inc., ___ A.3d ____, 2014 WL 6474923 (Pa. Nov. 19, 2014) is whether a jury should still be told that a product must contain every element necessary to make it safe. As a corollary to this, lawyers have asked whether a jury must be told that while a manufacturer is not an insurer of product, it is a guarantor of the product safety.
While the majority written authored by Mr. Chief Justice Castille appears on its face to be critical of Berkebile v. Brantley Helicopter Corp., 337 A.2d 893 (Pa. 1975), the court does not overrule Berkebile. There is some question as to whether the court’s overruling Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978), which relied upon Berkebile, negates both the “every element” and the “guarantor” language.
In responding to those inquiries, it is necessary to read the opinion, for the umpteenth time, from back to front. The key heading in Tincher is as follows:
5. Litigation Considerations Deriving from the
New Strict Liability Construct
a. a. Judge and Jury; Jury Instructions
The chief thrust of Tincher is to relocate the Azzarello “risk-utility” calculus from the judge to the jury. In a broad sense, that is all Tincher is about, in addition to adding the very pro-plaintiff California consumer expectation alternative route for plaintiffs to utilize in reaching a jury verdict.
The Tincher court offers “additional guidance” to confirm its “departure from that aspect of Azzarello that assigned these roles to the judge and jury in a strict liability case.” At Slip Opinion p. 129 (emphasis added).
The court reminds the bench and bar that the plaintiff, generally, is the master of the claim in the first instance. At 130. The court will be the “gatekeeper” as it is in the other case with respect to summary judgment principles, but otherwise the balancing of factors in a risk-utility case will be performed by the jury consistent with preexisting Azzarello principles.
Therefore, this decision can be seen, on its most basic level, as nothing more than moving the court’s balancing function in Azzarello to the jury, adding another cause of action for plaintiffs and otherwise choosing a conservative route with respect to altering Pennsylvania strict liability law. “Going forward, consistent with the decision, when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risks and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product.” At 131.
With respect to the jury charge, 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.” At 132-133. Finally, the court discusses the burden of proof, noting that the burden may be shifted to the defendant in a particular case involving risk-utility theory. That certainly would be of great assistance to plaintiffs.
The question persists, though, as to what becomes of the “every element necessary” or “guarantor” language? The court’s problem with that language seems to be its use in isolation, where the court retained the risk balancing component, rather than the use or the integrity of the underlying test encompassed within the Azzarello/Berkebile framework. Justice Castille opined that the “every element” language in Berkebile was taken out of context by the majority in Azzarello “as the standard of proof in a strict liability action.” The court never says that such language would be inappropriate, once the burden of weighing risk/utility is shifted to the jury.
In fact, there is some language in Justice Castille’s opinion to support continued use of the Berkebile/Azzarello language at 57. Both Berkebile and Azzarello spoke to “broader considerations” which feature a warranty rationale. That approach is not wrong, but simply, according to Tincher, did not give the jury sufficient guidance.
At Slip Opinion p. 59, Justice Castille mentioned the “guarantor” language and criticized it not at all.
Under subsection C, the court addressed the “continuing viability” of Azzarello and its progeny. At Slip Opinion 75, the majority found that, “to the extent that the pronouncements in Azzarello are in tension with the principles articulated in this Opinion, the decision in Azzarello is overruled.” What is overruled in Azzarello are “pronouncements” which by themselves the court has found to be inadequate or not serving the interests of justice. See, i.e., Slip Opinion p. 74. The inconsistent “pronouncements” wording is followed by an explanation that it is a mistake to direct questions relating to the risks and utilities of a product to the trial court as a matter of law and policy instead of to the jury. Once again the court alluded to the “every element necessary” verbiage and was critical of decisional case law applying Azzarello broadly “to the point of directing that negligence concepts have no place in Pennsylvania strict liability doctrine; and, as we explain, those decisions essentially led to puzzling trial directives that the bench and bar understandably have had difficulty following in practice, including in the present matter.” At 75.
Tincher struggled with where Azzarello came up with its negligence-strict liability “dichotomy.” At 76. The court blamed the fact that prior judiciary treated Section 402A of the Restatement as a legislative mandate rather than a statement of general principles.
It seems arguable that Tincher did not clearly, or even in a murky fashion, forbid the use of “every element” necessary language or “guarantor” wording except to the extent that it stood alone with the jury unable to balance risk-utility. This position is further strengthened by the court’s conclusion that products liability will develop on a common law basis, case by case. The court by no means was attempting to answer every question, except for the notion that risk-utility is an analysis to be performed by the jury, that plaintiffs may avail themselves in the proper case of consumer expectation and that the burden of proof in a risk-utility case may rest upon a defendant. Whether “every element necessary” or “guarantor” language applies in a given case would depend on the facts of that case, utilizing the manner of analysis which we find in Tincher v. Omega Flex.
It seems perfectly reasonable, to argue, that in a highly toxic or dangerous product where the risk of harm is high and designing a safer product is doable, it would be perfectly proper to instruct the jury in connection with “every element” to make the product safe as well as the “guarantor” wording.