Pennsylvania Supreme Court to Consider Whether Section 402A of the Restatement (Second) of Torts (Strict Liability) Should Be Replaced by Section 2 of the Restatement (Third) of Torts

On February 27, the Pennsylvania Supreme Court entered an order accepting allocatur to address the issue: “Whether this Court should apply § 2 of the Restatement (Third) of Torts in place of § 402A of the Restatement (Second) of Torts.” Section 2, which distinguishes among products liability based upon manufacturing defects, design defects, and failure to warn, effectively eliminates strict liability in product liability cases based on defective design and inadequate warnings, reserving it only for cases involving manufacturing defects. Should the court adopt Section 2 in place of Section 402A, the approach will give trial courts more guidance in hearing cases and instructing juries in product liability cases. The new standard could provide greater range to defendants to introduce arguments based on a risk/benefit balance, state of the art, industry standards, and obviousness of risk.
 
Currently, pursuant to the seminal Pennsylvania case Azzarello v. Black Brothers Co., 391 A.2d 1020, 1022 (Pa. 1978), strict liability cases are controlled by Section 402A of the Restatement (Second) of Torts. Under Section 402A, the seller of a product is liable for harm caused by such product when it is sold in a “defective condition unreasonably dangerous to the user.” A product is deemed defective if it “left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Id. at 1027. Under Section 402A, the imposition of strict liability for a product defect is not affected by the fact that the manufacturer or other supplier has exercised all possible care. Section 402A, while lacking detail on its application, has the intended upside of drawing a bright line between strict liability and negligence standards.

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