Products Liability Update: Will the Pennsylvania Supreme Court adopt the Restatement (Third) of Torts?

Currently, the Pennsylvania law of strict product liability is based on §402A of the Restatement (2d) of Torts. Under Pennsylvania law, a manufacture/supplier of a product is the guarantor of its safety. The manufacturer/supplier is liable for any harm that a defect in its product was a substantial factor in bringing about the harm. A defect may be found where the product left the manufacturer and supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that rendered it unsafe for the intended use. Intended use includes any reasonably foreseeable use or misuse of the product. Up until now, Pennsylvania law has only extended to “intended” users of the product.

In the case of Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003), a child was injured by a cigarette lighter that was not equipped with known safety features. The Pennsylvania Supreme Court stated that in order for a plaintiff to bring a claim for strict liability based on defective design under 402A, he/she must establish that the product was unsafe for its “intended user”. Accordingly, the Court held a child is not an intended user of a cigarette lighter.

However, that may change. In a significant product liability opinion published recently, a three judge panel of the United States Court of Appeals for the Third Circuit predicted that Pennsylvania would adopt the Restatement (Third) of Torts, opening a new door for plaintiffs and strict liability cases. In the case of Berrier v. Simplicity Mfg., No. 05-3621 (3rd Cir. April 21, 2009), the Federal Appellate Court ruled that a “bystander” plaintiff can pursue a strict liability claim against a manufacturer to recover for injuries that occur while a third party actually operated the product.

Berrier involved negligence and strict liability claims arising from a lawn mower accident. Ashley Berrier, a minor, was injured when a riding mower that was being operated by her grandfather backed up over her left foot resulting in a traumatic amputation. The trial court reasoned that the mower was intended to be operated only by an adult and was designed accordingly. The blades could be disengaged by use of a lever on the side of the control panel. Adequate instructions were provided to clearly warn against operating the mower while anyone was within the area of operation. However, the mower, manufactured by Simplicity, was not equipped with a known safety device that prevented the blades from operating when the mower was placed in reverse. The utility of a “no mow in reverse” feature and a roller barrier at the rear of the blade deck, was not added to Simplicity mowers until sometime later. At the conclusion of discovery, Simplicity filed a Motion for Summary Judgment premised on current Pennsylvania strict products liability law which does not permit recovery for injuries for anyone other than the “intended user” of the product. See Phillips.

On appeal, the Third Circuit first tried to certify the question of whether a mere bystander was entitled to recover under a strict liability theory to the Pennsylvania Supreme Court. However, the Pennsylvania Supreme Court declined the invitation in 2008. So, the Third Circuit pronounced that in the absence of controlling authority, it was going to predict how Pennsylvania’s highest court would decide the case at hand.

The Third Circuit held that Pennsylvania would adopt §1 and §2 of the Restatement (Third) of Torts for strict liability matters, therefore affording bystanders a cause of action which until now was limited to only “intended users” of a product. The Court reasoned that the Pennsylvania Supreme Court was ready to adopt the Restatement (Third) of Torts, “which does not limit a strict liability cause of action to the “user or consumer”, and broadly permits any person harmed by a defective product to recover in strict liability.”

However, we may soon see if Berrier will remain the “law of the land” for strict liability cases defended under Pennsylvania law. At this time, the Pennsylvania Supreme Court has before it the certified question of whether to apply the Restatement (Third) of Torts in the case of Bogosh v. I.U. North America, 941 A.2d 897 (Pa.2008).

The Third Circuit has opened the door to a new class of plaintiffs in Federal Court. It is quite possible that a significant shift in the law applicable to products liability cases under Pennsylvania law could be coming soon as well, depending on how the Pennsylvania Supreme Court decides Bogosh.