In 2014, the Pennsylvania Supreme Court revved its engine and took a step “back to the future.” In Tincher v. Omega Flex, 104 A. 3d 328, the court re-defined products liability law, embracing two definitional tests articulated in 1965 in the Restatement of Torts 2d, Section 402A. These tests are labeled the “consumer expectation test,” (CET) and the “risk benefit test,” (RBT). Despite this change, the court emphasized the distinctions between strict products liability and negligence: “the tortious conduct at issue is not the same as that found in traditional claims of negligence and commonly associated with the more colloquial notion of “fault.” In this sense, introducing a colloquial notion of fault into the conversation relating to strict products liability in tort detracts from the precision required to keep this legal proposition within rational bounds.”

Tincher did not decide a host of issues including the parties’ respective burden of proof to satisfy either of these tests or the evidence each party may present in support or defense of these claims, as in Cancelleri v. Ford Motor, 2016 Pa. Super. Unpub. LEXIS 53; Webb v. Volvo Cars of North America, 2016 Pa. Super. LEXIS 2214. This article provides guidance regarding the precedent in pursuing a defective product claim based upon the consumer expectation test.

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