In the two years since the state Supreme Court recalibrated products liability law in Pennsylvania with its decision in Tincher v. Omega Flex, several contentious battles over the meaning of the seminal decision have repeatedly cropped up.
Prior to the justices’ decision in Tincher, life was easy: Pennsylvania was clearly following the Restatement (Second) of Torts, which focuses litigation on the characteristics of the products at issue and does not allow juries to consider a manufacturer’s conduct. Many attorneys thought Tincher would provide an opportunity for the court to adopt the Restatement (Third) of Torts, which allows defendants to introduce elements about the foreseeability of a product’s risk and the availability of a safer alternative design; however, the court declined to do so, and left the state of products liability law some place in between the two—with some attorneys even referring to Pennsylvania as following the “Restatement 2.5,” or “Restatement Second Lite.”
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