According to the game-changing products liability case Tincher v. Omega-Flex, plaintiffs are the “master” of their case, but that doesn’t mean judges should be barred from instructing juries on both the consumer expectation and risk-utility tests, even when the plaintiff has only pursued one of those theories of liability, a Pennsylvania appellate court has ruled.

A three-judge Superior Court panel ruled in Davis v. Volkswagen that the Lehigh County Court of Common Pleas did not err when it instructed juries on both theories of liability that the state Supreme Court established in Tincher, even though the plaintiff only litigated her case under the consumer expectation test. The ruling leaves in place a defense verdict in the crashworthiness case.

The plaintiff, Jane Davis, who is suing Volkswagen on behalf of her deceased husband, argued that since Tincher says a “plaintiff is the master of the claim in the first instance,” the judge should not have instructed the jury on both the consumer expectation and risk-utility theories. But Judge Maria McLaughlin, who wrote the court’s 28-page majority opinion, said the Tincher court went further to say that, “Where evidence supports a party-requested instruction on a theory or defense, a charge on the theory or defense is warranted.”

“That is precisely the situation here,” McLaughlin said. “In this case, the defense admitted into evidence expert testimony that the fuel tank was not punctured, and that the fire started in the engine, not near the fuel tank. This evidence puts the risk-utility test into issue, and the court properly instructed as to that test.”

McLaughlin was joined by Judges Mary Jane Bowes and Victor Stabile, who also issued a concurring opinion saying that, even if the trial court had erred with the jury instruction, it would have been a harmless error.

The ruling, which was issued as a memorandum opinion, delved into how juries should be instructed in the wake of the Supreme Court’s seminal products liability ruling in Tincher. That landmark 2014 decision resulted in the Supreme Court doing away with the strict separation of negligence and strict liability principals. Specifically, the decision held that plaintiffs in products liability cases can pursue claims on either a risk utility or consumer expectation test. The decision also overruled a foundational opinion from the 1970s that provided guidance on what questions juries should be allowed to consider.

In Davis, the plaintiff sued on behalf of her husband who died after the Volkswagen Passat he was driving was hit by another car and caught fire. Davis raised claims including strict liability based on an alleged defect in the vehicle’s fuel tank.

According to McLaughlin, Davis asked the court to apply the consumer expectation test, but Volkswagen contended that the risk-utility test was the only appropriate test. The trial court ultimately determined that Davis could establish the fuel tank was defective under either theory.

Following trial, the jury found that although the Passat had a defective fuel tank and was not crashworthy, the defective fuel tank did not bring about the harm.

Davis appealed, making several challenges to the jury instructions. Along with contending that the judge should have only instructed on the consumer expectation test, Davis also contended that the instructions improperly used the term “factual cause,” instead of “proximate cause,” and that the instructions failed to adequately explain certain aspects of liability.

Davis also contended that the court’s decision to enter a directed verdict against the driver who hit the Passat and to instruct the jury that the driver had been both negligent and a cause of harm prevented the jury from finding that the defect also caused the harm.

McLaughlin, however, said the instructions did not materially differ from those that Davis proposed, or those outlined in the Pennsylvania Standard Civil Jury Instructions, and further determined that nothing in the instructions prevented the jury from finding that the allegedly defective fuel tank caused the harm.

Larry Coben of Anapol Weiss, who represented the plaintiffs, said he planned on filing a petition for review with the Supreme Court.

Gerard Cedrone of Lavin, Cedrone, Graver, Boyd & DiSipio, who represented Volkswagen, did not return a call seeking comment.