As noted in Larry Coben's thoughtful article in the Pennsylvania Law Weekly (“A Comparative Review of Products Liability Jury Instructions,” Jan. 30, 2018), many issues remain to be worked out as a result of the Pennsylvania Supreme Court's 2014 Tincher v. Omega Flex, opinion, which overruled the venerable Azzarello v. Black Brothers, 480 Pa. 547, 391, A.2d 1020 (1978). The Supreme Court itself noted that its “opinion does not purport to either approve or disapprove prior decisional law, or available alternatives suggested by commentators or the restatements. … The difficulties that justify our restraint should be readily apparent. The common law regarding these related considerations should develop with the proper factual contexts.”

In the absence of court precedent providing the relevant law, Coben, as a learned commentator, wrote to provide his view regarding proper jury instructions on six different products liability issues. After his article appeared in the Law Weekly, however, the Superior Court issued an opinion, advancing the common law in the way foreseen by the Supreme Court. That opinion is a subsequent opinion in the Tincher case, reversing the trial court's decision that the pre-Tincher jury instructions it had given were adequate, and no new trial was required, even though the instructions were based on Azzarello. Tincher v. Omega Flex, __ A.3d __, 2018 Pa. Super. 33 (Feb. 16) (Tincher II). The Superior Court opinion is a published opinion on the adequacy of post-Tincher jury instructions, and provides the most authoritative guidance yet available on the topic addressed by Coben.

In its opinion, the Superior Court first provided a clear statement of what the Supreme Court held in Tincher I, and what parts of Azzarello were overruled:

The Supreme Court reviewed the elements of Azzarello that needed to be jettisoned because they “fail to reflect the realities of strict liability practice and to serve the interests of justice.” The court explained that Azzarello's insistence on purging “negligence-related rhetoric” from strict liability cases was applied in an overly broad manner that ultimately “perpetuated jury confusion.” To achieve its goal, Azzarello prohibited a jury from considering whether a product because it is unreasonably dangerous or not duly safe, reserving the critical issue that critical issue to the trial court itself, even though “trial courts simply do not necessarily have the expertise” to decide such issue. For the jury charge, it created a requirement that a product have “every element necessary to make it safe for use,” a standard that was “impractical” in application. Azzarello coupled that new standard with a confusing statement that a product supplier “is not an insurer of a product, although it is a guarantor”―terms of art that were given “no further explanation of their practical import.”

Tincher II, slip op. at 11. In summary, then, the Superior Court confirmed that in Tincher I the Supreme Court “jettisoned” these Azzarello elements:

• The overly broad rejection of negligence-related rhetoric.
• The removal of the question of whether the product is “unreasonably dangerous” from the jury and giving it to the judge.
• The “every element necessary to make it safe” jury charge.
• The instruction that the manufacturer is the “guarantor” of a product's safety.

After stating the state of the law after Tincher I, the Superior Court took up the question of whether the trial court was correct that the pre-Tincher I instruction on defect remained adequate. Tincher II states that the charge “contained all the product liability law under Azzarello that the Supreme Court has now disapproved, including a definition equating a defective product with one that 'leaves the suppliers' control lacking any element necessary to make it safe for its intended use,' and a declaration that a manufacturer 'is really a guarantor of a product's safety' but not 'an insurer of that safety.'”

With that background, not available to Coben when he wrote his article, we can examine his six suggestions.

Products Liability Duty of Care Statement

Coben provides a long excerpt from the Supreme Court's Tincher I opinion as his proposed instruction on the topic of the “Products Liability Duty of Care.” The Supreme Court's opinion includes an extensive quote from Comment c of Section 402A of the Restatement (Second) of Torts. 104 A.3d at 383. Comment c provides the legal justification for imposing strict liability on sellers, and, therefore Coben's proposed jury instruction does not, in fact, deal with a “Products Liability Duty of Care” at all. Duty is not an element of strict liability, and never has been. Instead, the proposed instruction simply provides a justification for providing plaintiffs with a legal remedy for injuries caused by defective products. To make such an instruction fair it would also have to explain the rationale for not imposing liability when the product is not defective, or when a defect did not cause injury to the plaintiff, that is, explain to the jury why the courts have determined that absolute liability should not be imposed on product manufacturers.

Even a jury charge that provided a balanced account of the policy considerations for the legal rules established by the Supreme Court would not be appropriate. In a negligence case, for example, the jury is provided with the elements of a negligence cause of action, but not a justification for why courts have adopted these elements. There is no reason to give the jury a policy justification for the applicable law.

Further, after the long quote from Comment c, Coben includes a truncated portion of a sentence by the Supreme Court summarizing Comment c: “Stated affirmatively, 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.'” The full sentence used by the Supreme Court to summarize Comment c reads: “Stated affirmatively, 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.” Coben's position is that the jury should not be instructed that a defect exists only if a product is unreasonably dangerous. This was the holding of Azzarello, clearly reversed by Tincher I, and explicitly rejected by Tincher II.

General Rule of Strict Liability

Coben endorses the Suggested Standard Jury Instructions prepared by the Supreme Court's Civil Instructions' Subcommittee and published by the Pennsylvania Bar Institute (PBI), titled “General Rule of Strict Liability.” That instruction, however, erroneously provides the jury with the “lacked any element necessary to make it safe” definition of defect from Azzarello, rejected by Tincher I, 104 A.3d at 380, and by Tincher II¸ slip op. at 18. “The Supreme Court has now overruled Azzarello and determined that this statement of product liability law is incorrect. The trial court's jury charge, therefore, was erroneous.” Coben cites Barker v. Lull Engineering, 473 P.2d 443, 450-51 (Ca. 1978), in support of his avoidance of the “unreasonably dangerous” concept. The Tincher opinions are controlling here, however, and Pa. SSJI 16.10 (Civ) is an erroneous statement of the law.

Coben criticizes the alternate instruction provided by Pennsylvania Defense Institute (PDI), General Rule of Strict Liability, 16.10, but that proposed instruction accurately states the elements of a strict liability claim, along with the correct definition of defect: “The product in question had a defect that made it unreasonably dangerous.” Under Tincher I and Tincher II, this instruction, or another very much like it, is now required.

The Tincher I opinion restored the “unreasonably dangerous” question to the jury with the explanation that the “words 'unreasonably dangerous' limit liability and signal that a seller is not an insurer, but a guarantor of the product.” The words signal nothing at all to the jury, of course, unless they are part of the charge. The “notion of 'defective condition unreasonably dangerous' is the normative principle of the strict liability cause of action.” If the jury decides defect, and never hears “defective condition unreasonably dangerous,” it is not a “normative principle.” It is nothing at all.

Despite this holding in Tincher I the trial court on remand held that no re-trial was required. “Omega Flex argues that on Azzarello instruction on whether [the product] lacked any element necessary to make it safe for its intended use is distinct from whether [the product] was unreasonably dangerous under Tincher's new, decidedly different formulation.” Slip op. at 19. The Superior Court agreed: “If an incorrect definition of 'defect' under Azzarello calls for a new trial, an incorrect definition under Tincher should call for the same result.” The “every element necessary to make it safe” charge is error. The jury cannot know of the new normative principle unless hears the phrase “unreasonably dangerous.”

Strict Liability Versus Negligence

Coben's third proposed instruction, like his first, is original with him and is not addressed by the Pennsylvania Suggested Standard Jury Instructions or the Pennsylvania Defense Institute's proposed instructions. It states that a “manufacturer can be held liable even if it took all reasonable steps to make the product safe,” and then goes on to distinguish between the law of negligence and strict liability. The charge is both unnecessary and unbalanced. Providing the jurors with the elements of the claim is sufficient. There is no reason to assume that the jurors come to the courtroom with an understanding of the law of negligence, which must be corrected.

The instruction seems to assume that the defendant is claiming that it should not be liable because it took all reasonable steps. It could be interpreted to mean a plaintiff's verdict is appropriate even if “all reasonable steps” resulted in a product which was not unreasonably dangerous. In the event a court concluded that such a charge should be given, because of the facts of the case, or how the case was tried, fairness would require that it be balanced by also explaining to the jury that a verdict for the plaintiff would be improper, unless the jury found that the plaintiff had proven every element of the claim.

Consumer Expectation Test

Coben favors Pa. SSJI 16.20 (Civ) over the PDI alternative, 16.20(2), because it does not use the phrase “unreasonably dangerous,” and because the PDI instruction includes certain limitations on the use of the consumer expectation test. The limitations placed on the test by the PDI instruction are directly taken from the Tincher I opinion. Tincher I states that under the consumer expectations test a finding of a defect requires a finding that the “danger is unknowable and unacceptable to the average or ordinary consumer.”

The opinion also states that the consumer expectation test is not appropriate for all cases. When the risk of injury is “outside the ordinary consumer's contemplation” use of the test may result in “arbitrary application of the strict liability doctrine; jury determinations of consumer expectations regarding the presence of dangers are unpredictable. The difficulty is characteristic of products of relatively complex design.” The law stated in PDI instruction is provided by Tincher I. Jury instructions must reflect the law stated by the Supreme Court, as Tincher II emphasizes.

Risk-Utility Test

For the risk-utility test, Coben again favors Pa. SSJI 16.20 over the PDI's 16.20(3). Again, the PDI instruction, anticipating Tincher II, uses the correct phrase, “unreasonably dangerous,” and is a superior statement of the applicable law. Coben also faults Pa. SSJI 16.20, the instruction prepared by the Civil Instructions Committee, for not putting the burden of proof for defect under the risk-utility test onto defendant rather than plaintiff. Putting the burden of proof for defect, one of the elements of plaintiff's case, on a defendant, is an odd artifact of California law that has only been followed in Alaska and Hawaii. Though the issue has been raised in numerous other states, none have adopted it. The Supreme Court of Tennessee called the California rule “aberrant,” see Ray by Holman v. BIC, 925 S.W.2d 527, 532–33 (Tenn. 1996). Putting the burden of proof on the defendant to disprove defect is illogical.

The rule places an enormous burden on the concept of a “product design that proximately causes injury,” a burden which the concept seems ill-equipped to handle. People fall off ladders all the time, and the fact that ladders are both high and in some general way unstable enables these falls to occur. Does it or doesn't it follow that in every case of a person's falling off a ladder, the ladder's design proximately causes the fall?

State of the Art, Industry and Government Standards

The final topic of Coben's review of product liability jury instructions includes such issues as state of the art and compliance with government and industry standards. Coben calls these issues “defenses,” and states there should be no evidence admitted on these topics, because, under Azzarello, such evidence was not permitted, and further the jury should be specifically instructed that such evidence, although not admitted, would not be relevant. These issues are not “defenses” but evidentiary questions. Relevant evidence is admissible. If the evidence is relevant to an issue before the jury, it should be admissible. Since the question of whether the product is unreasonably dangerous is again before the jury, this evidence is admissible as relevant to that question.

Before Azzarello, Pennsylvania courts admitted evidence of compliance with government regulations to counter allegations of defect in strict liability actions. Berkebile v. Brantley Helicopter, 281 A.2d 707, 710 (Pa. Super. 1971). In Berkebile, for example, “compliance with the FAA regulations was offered to show that the helicopter was not unreasonably dangerous within the meaning of [the Restatement (Second) of Torts Section] 402A.” Although the compliance evidence was not “conclusive,” it “was certainly evidence to be considered by the jury.”

After Azzarello the rule of relevance changed, because the substantive law changed. Under Azzarello, although government safety standards were irrelevant to the issue to be decided by the jury, they were relevant, and therefore admissible, for the judge's consideration when determining whether the product was “unreasonably dangerous.”

Two Azzarello-era cases explain this judge-jury division of responsibility. First, in Lewis v. Coffing Hoist Division, Duff-Norton, 528 A.2d 590, 592 (Pa. 1987) the Pennsylvania Supreme Court held that the jury was not to be informed of industry safety standards in a strict liability trial. Relying on the definition of defect provided by Azzarello, the court held that industry standards “go to the reasonableness of the appellant's conduct in making its design choice” and “further conclude[d] that such evidence would have improperly brought into the case concepts of negligence law.”

The second case is Fitzpatrick v. Madonna, decided six years after Lewis v. Coffing Hoist, and it illustrates the judge's responsibility in the Azzarello era to consider government regulations. There, the court used the federal government's safety standards to support a finding that a product was not unreasonably dangerous, and therefore not defective. Plaintiff argued that a boat's propeller was defective because it did not have a guard that would protect swimmers from being hit by the propeller blades. In support of its finding that the boat was not unreasonably dangerous, the court stated “the U.S. Coast Guard, acting on recommendation of a subcommittee of the National Boating Safety Advisory Council convened to study the use of propeller guards, determined … that it would continue to refrain from issuing any regulation that would require propeller guards on open screw propellers.” When determining whether the product was unreasonably dangerous was the judge's job, the judge could consider government regulations.

Post-Tincher the extreme separation of negligence concepts from strict liability is no longer in effect. Now that the critical question―whether the product is “unreasonably dangerous”―is for the jury, the jury must have the benefit of the same evidence that judges were required to consider under Azzarello, and that juries were routinely permitted to have and consider before Azzarello.

Conclusion

Coben concludes his article by arguing that the Supreme Court's Tincher opinion is not a reason “to rewrite all of the proposed jury instructions and alter the common law” and that “the more cautious approach taken by the PBI Suggested Standard Jury Instructions seems appropriate.” However, Tincher II holds that Tincher I has already altered the common law, and Pennsylvania courts are bound to follow that opinion, and not to wait for the Supreme Court to announce every implication of the overruling of Azzarello.

Under the reasoning of Tincher II the Suggested Standard Jury Instructions are incorrect. There is no reason to pretend Azzarello remains the law of the commonwealth. Juries should be instructed on the basis of a fair reading of Tincher I, the Supreme Court definitive statement of the controlling law.

Gerard Cedrone is a founding attorney at Lavin, O'Neil, Cedrone & DiSipio and serves as the firm's vice president and a member of the firm's executive committee.

Eugene Hamill is a shareholder of the firm, where both defend auto makers in products liability litigation.