After 'Tincher,' Tried and True Products Liability Defenses Remain Just That

Since the Pennsylvania Supreme Court’s 2014 decision in Tincher v. Omega Flex, courts and practitioners alike have struggled to discern the legal standard for determining whether a product is defective under Pennsylvania product liability law. That question remains very much unsettled. However, case law interpreting Tincher shows that tried and true product liability defenses, such as assumption of the risk, product misuse, and the claims limiting effect of Comment K to the Restatement (Second) of Torts, remain valid and in force. Moreover, many cases discussing the scope of these defenses continue to rely upon pre-Tincher precedent. This article addresses those cases and explains that, while courts and practitioners answer the Supreme Court’s call to grapple with the many issues left unanswered by the Tincher decision, practitioners defending a product seller should continue to rely on well-established, tried and true defenses to a product liability claim.

The ‘Tincher’ Decision

In Tincher v. Omega Flex, (Pa. 2014), plaintiff-homeowners brought a product liability action against the manufacturer of stainless steel tubing. The Tincher court held that “in Pennsylvania, the cause of action in strict products liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.” Under the approach set forth in Tincher, a plaintiff may prove that a product is defective by showing either that the danger is unknowable and unacceptable to the average or ordinary consumer (the consumer expectations test); or a reasonable person would conclude that the probability and seriousness of harm caused by the product outweighs the burden or costs of taking precautions (the risk-utility test). In Tincher¸ the Pennsylvania Supreme Court did away with the unwieldy framework that had developed in Pennsylvania since Azzarello v. Black Brothers, (Pa. 1978), but declined to adopt the Restatement (Third) of Torts. The court left it to the General Assembly, the lower courts, and the bar to answer questions regarding the legal principles that now govern Pennsylvania product-liability law. What Tincher did not do, however, is upend the defenses to a product liability claim.

Product Misuse