For more than two decades, the distinction between negligence and strict liability was fundamental. The philosophical basis for the distinction was expressed in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978).
The case described the distinction, in which the modern industrial society, “With its proliferation of new products and vast changes in the private enterprise system, has inspired a change in legal philosophy … to the view that a supplier of products should be deemed to be the guarantor of his products’ safety. …
“[T]he risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business. … Courts have increasingly adopted the position that the risk of loss must be placed upon the supplier of the defective product without regard to fault.”.
In Azzarello, the court prohibited the term “unreasonably dangerous” in strict liability jury instructions because “‘unreasonably dangerous’ tends to suggest considerations which are usually identified with the law of negligence.” Azzarello was influenced by California precedent that originally created the doctrine of strict liability.
For many years, the court maintained and expanded the negligence/strict liability distinction in product liability. See Kimco Development Corp. v. Michael D’s Carpet Outlets, 637 A.2d 603 (Pa. 1993), where there was no comparative fault in strict liability; Walton v. Avco Corp., 610 A.2d 454 (Pa. 1992) where there was no comparative fault among negligent and strictly liable defendants; Lewis v. Coffing Hoist Division, Duff-Norton Co., 528 A.2d 590 (Pa. 1987) where there was evidence of industry standards not admissible in strict liability, although admissible in negligence. See also McCown v. International Harvester Co., 342 A.2d 381 (Pa. 1975), where there was no contributory negligence in strict liability).
These decisions suggested that Pennsylvania “perhaps more than any other state … has been emphatic in divorcing negligence concepts from product-liability doctrine.” Staymates v. ITT Holub Industries, 527 A.2d 140 (Pa. Super. 1987).
In Duchess, the Supreme Court said goodbye to all that. Duchess found little difference between strict liability and negligence, particularly in design defect cases. The court was “unable to meaningfully distinguish claims asserting negligent design from those asserting a design defect in terms of their effect on the implementation of subsequent remedial measures.”
In such cases, any doctrinal difference is “theoretical” and “marginal”, “[P]articularly as relates to claims of defective design, relevant differences between negligence and strict liability at both the theoretical and practical levels are marginal. . . . [D]esign defect cases employ risk-utility balancing similar to that utilized in negligence claims.”
The court expressly “agree[d]” with those courts that found no significant differences between the two theories.
The court quoted several of them in footnote 14: “Strict liability is something of a misnomer in products cases. There is liability only if a product is defective or unreasonably dangerous, and the concepts of ‘defect’ and ‘unreasonableness’ bring into play factors of cost and risk similar to those that determine negligence. … This analysis is not fundamentally affected by whether the basis of liability is the defendant’s negligence or his product’s defectiveness.”
The court reinforced the point with the Restatement (Third) of Torts, Products Liability Section 2 & comment d (1997). The basic thrust of Restatement Section 2, as explained in comment d, is that there is no difference between strict liability and negligence in design and warning defect cases.
Fundamentals of Pa. Products Law
Duchess recognized “the fundamental tenet of Pennsylvania strict products liability law that the alleged defectiveness of the product be assessed as of the time it left the hands of the manufacturer.”
“[O]ur jurisprudence requires that products are to be evaluated at the time of distribution when examining a claim of product defect.”.
In design defect cases “based upon the availability of an alternate, safer design,” the court emphasized that the plaintiff must prove what was feasible at the time of sale: “[S]uch evidence is an essential element of the plaintiff’s liability case. … The reasonableness of choosing from among various alternative product designs and adopting the safest one if it is feasible is not only relevant in a design defect action, but is at the very heart of the case.”
In design defect claims, not only is feasibility evidence admissible under Duchess, but it is required. Without such evidence, the plaintiff does not establish an “essential element” of his or her case.
Under Duchess, feasibility “relates not only to actual possibility of operation, and its cost and convenience, but also to its ultimate utility and success in its intended performance; that is to say, ‘feasible’ means not only possible, but also capable of being utilized, or dealt with successfully.”
Duchess decisively broke with California strict liability doctrine, rejecting Ault v. International Harvester Co., 528 P.2d 1148 (Cal. 1974).
Ault, like Azzarello, justified admission of subsequent remedial measures in strict liability based upon the same sort of assumptions about “contemporary corporate mass producer[s] of goods.”
“[I]t would be manifestly unrealistic to suggest that such a producer will forgo making improvements in its product, and risk innumerable additional lawsuits … simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability.”
Duchess dismissed this reasoning for three reasons. First, product defectiveness is measured at the time of sale. Second, not all products subject to strict liability are made by “mass producers,” and for “mass producers” the same reasoning would apply in negligence. Finally, the rationale assumes that all products are defective.
Duchess was also unimpressed with a common policy argument for strict liability – that “proof without fault” was intended “to alleviate the burden on injured plaintiffs and to provide a mechanism to achieve loss spreading.”
The court responded: “Such policies, however, have not been, and cannot be, applied to remove all forms of restriction imposed upon plaintiffs’ proofs in products liability actions.”
Under Duchess, evidentiary issues in strict liability follow the same rules applicable to negligence, unless a strong countervailing policy is involved.
Absent consideration of the pertinent social policy concerns, “it would be possible to relegate the Rule 403 weighing function to our trial judges … to apply in individual cases, allowing the use of the evidence where its prejudicial impact may be kept in proper balance, and excluding it where this is not possible.”
The overriding public policy of not deterring safety-enhancing product innovations had the same force in both negligence and strict liability.
