The Purpose of Strict Liability In Pennsylvania
Do you think it’s fair to ask riding lawnmower manufacturers to pay for the medical care of children injured in riding lawnmower accidents? How about asking meat blender suppliers to compensate people injured by commercial blenders? Neither of these events happen all that often, and the cost would be passed on to consumers, making the question: would you mind paying a little bit more for your lawnmower to set up a fund for children who lost part of their leg, sometimes much more, after being run over by riding lawnmower? How about a little bit more for your hamburger in case the person blending the meat loses their hand when the blades unexpectedly keep spinning?
Sometimes, a court just plain gets it right, and Justice Nix of the Pennsylvania Supreme Court got it right 34 years ago in adopting strict liability in the Commonwealth of Pennsylvania:
The realities of our economic society as it exists today forces the conclusion that the 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. In an era of giant corporate structures, utilizing the national media to sell their wares, the original concern for an emerging manufacturing industry has given way to the view that it is now the consumer who must be protected.
Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978). That’s the argument eminent torts professor William Prosser had been making for “strict liability” for decades. See, e.g. Prosser’s Strict Liability to the Consumer, 18 Hastings L.J. 9 (1966). The concept of strict liability was quite simple: whereas an injured person could always sue a manufacturer for negligence and then prevail by proving the manufacturer acted unreasonably by failing to guard against foreseeable harms, strict liability eschewed any question of the manufacturer’s conduct and instead focused on the product itself, making manufacturers liable for injuries caused by products that were so unsafe as to be “defective.”
The whole point of strict liability was, as explained by Azzarello, to make suppliers of surprisingly unsafe goods (i.e., goods that turned out to be more dangerous than consumers expected they would be) the insurer for accidents caused by the product. It’s a recognition that, in this day and age, consumer goods can contain a variety of risks that are more easily borne by the manufacturer, which made the decision to market the product, has better access to insurance, and can distribute the costs of these unexpected injuries on other consumers. In practice, strict liability is usually only successful where the product totally failed, resulting in catastrophic injuries. Consider some of the early strict liability cases, the ones characterized more as warranty cases than as the tort of strict liability:
Chapman v. Brown, 198 F. Supp. 78, 81 (D. Haw. 1961) (hula skirt that burst into flames and burned 75% of plaintiff‘s body); McBurnette v. Playground Equip. Corp., 137 So. 2d 563, 564 (Fla. 1962) (sharp piece on playground equipment amputated three-year-old‘s finger); McCabe v. L. K. Liggett Drug Co., 112 N.E.2d 254, 257 (Mass. 1953) (coffee maker exploded in plaintiff‘s face); Bruns v. Jordan Marsh Co., 26 N.E.2d 368, 373 (Mass. 1940) (heel separated from plaintiff‘s shoe as she descended staircase); Souden v. Fore River Shipbuilding Co., 112 N.E. 82, 84 (Mass. 1916) (“The fact that the explosion occurred while the boiler was subject to the use for which it was designed is of itself evidence of a defective condition.”); DiVello v. Gardner Mach. Co., 102 N.E.2d 289, 293 (Ohio C.P. 1951) (grinder disintegrated in hands of Plaintiff during normal use).
Quote from Michael Green’s’ The Unappreciated Congruity of the Second and Third Restatements on Design Defects (2009). Modern strict liability cases often look the same: the cases cited in this post include the aforementioned lawn mower and blender, as well as a lighter that wasn’t childproof, a bicycle helmet that didn’t protect the rider’s skull in a car crash, and a fire hose that came loose from a fire truck and struck (and killed) a young bystander.
Part of that concentration on catastrophic injury and wrongful death cases arises from the nature of the doctrine itself; whatever you hear about “jackpot juries,” juries are not prone to finding a product “unreasonably dangerous” or the like where the product only caused a minor injury. There’s a lot of self-selection at work: given the variety of experts who must be called as witnesses and the depth of discovery that has to be undertaken, product liability cases aren’t cheap for lawyers to pursue. $100,000 in out-of-pocket expenses is a starting point — and the real numbers are more like $250,000 to $500,000 — which is why the bulk of product liability court opinions involve horrific accidents like amputations, burns, or death. Those are the only cases that have the possibility of recovering a settlement or judgment that will justify the costs in pursuing the case. I’m sympathetic when someone breaks their leg falling off a defective bike (like the bikes on the CSPC’s annual list), but given the costs and difficulty involved, it’s not a viable case unless they suffer a spinal cord or brain injury.
Which brings us back to the law of strict liability. The Restatement of Torts (Second), for which Prosser was the Reporter, held manufacturers liable for injuries caused by a “product in a defective condition unreasonably dangerous to the user or consumer or to his property.” The California Supreme Court’s Greenman opinion wasn’t the first to adopt strict liability — the original “strict liability” laws date back to the 1200s, holding the purveyors of tainted food liable for illnesses — but it was the most prominent formulation of the general tort of strict liability, which quickly became the law across the country. Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57 (Cal. 1963)(“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”) Pennsylvania adopted the same in Webb v. Zern, 220 A.2d 853, 854 (1966).
The phrase, “a defective condition unreasonably dangerous to the user,” is less than self-explanatory — among other issues, is the key component the existence of a “defective condition” or the fact the product is “unreasonably dangerous”? — and so courts in each state came up with their own formulation for how courts should phrase the issue for themselves and for juries. Azzarello set the standard for Pennsylvania: “the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.”
From thereon, the Pennsylvania Supreme Court consistently applied § 402A of the Second Restatement, to reach the same conclusions as the Second Restatement, or to decide for itself issues left unsaid by the Second Restatement:
- Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d 590 (Pa. 1987)(evidence of industry standards are inadmissible in strict products liability actions)
- Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997)(a manufacturer may be held strictly liable for subsequent changes to an otherwise safe product, where such alterations are reasonably foreseeable; and, an otherwise safe product can be deemed “defective” for strict liability purposes if it is distributed without adequate warnings to notify the user of the dangers inherent in the product.),
- Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003)(plurality)(like in a failure to warn strict liability case, “in a strict liability design defect claim, the plaintiff must establish that the product was unsafe for its intended user”)
- Bugosh v. I.U. North America, Inc., 971 A. 2d 1228 (Pa. 2009)(dismissing appeal asking whether, in product liability actions in Pennsylvania, to move from Section 402A of the Second Restatement of Torts to Section 2 of the Third Restatement of Torts: Product Liability).
- Schmidt v. Boardman Co., 11 A. 3d 924 (Pa. 2011)(“the present status quo in Pennsylvania entails the continued application of Section 402A of the Restatement Second”)
- Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012)(in making a threshold determination as to whether the utility of the product is outweighed by the risk, “trial courts are not restricted to considering a single use of a multi-use product in design defect” case)
Some of these cases were good for injured persons, like Davis (upholding strict liability claim in a blender accident, where company failed to warn blades could keep spinning), and others were not good, like Phillips (dismissing strict liability claim where young child obtained a cigarette lighter that was not child-resistant because child was not the “intended user” of the lighter).
By and large, the rules worked and made sense in practice — a supplier of unsafe products is liable for injuries caused by ordinary use of the product — but it’s been under relentless attack since the release of the Third Restatement of Torts (more on that in a moment). Just this year Justice Saylor of the Pennsylvania Supreme Court, the greatest nemesis of the Second Restatement in Pennsylvania, lamented a claimed “continuing state of disrepair in the arena of Pennsylvania strict-liability” law. Beard v. Johnson & Johnson, Inc., 41 A.3d 823 (Pa. 2012). Justice Saylor summed up his complaint in Dept. of Gen. Serv. v. US Mineral Prod., 898 A. 2d 590 (Pa. 2006):
In summary, too much of Pennsylvania’s scheme of liability without fault has been fashioned on the notion that negligence-based concepts have no place in strict liability to permit a generalized conditions-of-use/outside-cause-or-instigator exception at this juncture in the history of Pennsylvania product liability jurisprudence. Moreover, consumers are protected by the availability of negligence theory to vindicate meritorious design-defect claims that are grounded in negligence concepts, and in this setting, disputes may be resolved on a level field, as defendants may avail themselves of established negligence-based defenses.
The core complaint is that negligence concepts are not used to assess the fact of liability — which is why in Lewis industry standards were inadmissible for the defense — but are used to determine the scope of potential liability, like how Davis allowed a claim where a modification to the project was foreseeable.
I, frankly, don’t see the problem: there’s a big difference between what concepts we use to fashion evidence and jury instructions, and what concepts we use to fashion legal rules. Just because the jury shouldn’t be confused by instructions that incorporate “negligence-based concepts” doesn’t mean the law of strict liability can’t be evaluated by courts by reference to those concepts. The scope of strict liability is a policy choice, not a factual issue for a jury; restricting courts to evaluating strict liability under the same terms as the jury instructions is silly, not least because we don’t follow that sort of strange compartmentalization of thought in any other field of law.
Indeed, the original drafters of the Second Restatement embraced the overlap between negligence concepts and strict liability. As Michael Green explains in his article, The Unappreciated Congruity of the Second and Third Restatements on Design Defects:
Wade states: “In strict liability, except for the element of defendant‘s scienter, the test is the same as that for negligence.” In other words, rather than proving the foreseeability of risk, Wade developed his famous imputation-of-knowledge standard for strict products liability. The issue was whether a manufacturer who knew of the dangerous condition in the product would put it on the market, thereby eliminating the matter of foreseeability, a central concept in negligence claims. Wade‘s foreseeability-free standard for design defectiveness is, thus, not the same as negligence, as we dramatically discovered when products whose risks were unknowable at the time of manufacture appeared front-and-center on the products liability stage.
The Third Restatement of Torts, and Justice Saylor, want simply to eliminate strict liability entirely for design defect claims, arguing “consumers are protected by the availability of the negligence theory.” The Third Restatement gets rid of “product in a defective condition unreasonably dangerous to the user or consumer or to his property” and replaces it with a new definition of “defective,” so that a product:
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
The Third Restatement’s version of “strict liability,” however, is not substantially different from ordinary negligence. Proving that “a reasonable alternative design” would have been safer is the same thing as proving supplier was negligent in using that design. Proving that “the foreseeable risk of harm of a product could have been reduced or avoided by the provision of reasonable instructions or warnings” is the same thing as proving the supplier was negligent in not providing a better warning.
All of which misses the point of strict liability: to ensure compensation for people injured by unexpected dangers of a product. As James A. Henderson, Jr., one of the reporters for the Third Restatement later argued, “the law of torts imbedded within our legal system is based on, and at its core reflects, noninstrumental principles of fairness—relational notions of right and wrong.” That is exactly correct: torts law is — or should be — first about fundamental principles of fairness and justice, and, once those ends are met, we are free to tinker with the details to ensure more economic efficiency.
Which brings me back to the very beginning of the post: we know that, in the course of modern society, every year a certain number of people will be horrifically injured by an unexpected problem that occurs in the ordinary use of their lawn mowers, their blenders, their cars, their SUVs, their industrial lifts, the lead paint in their homes, their prescription drugs, their boilers, even the cribs they put their kids in. Do you think it’s fair to add a small percentage, rarely more than 1%, to the purchase of the consumer items to help compensate whatever poor soul fate chooses to suffer the loss? If so, then you believe in strict liability.
P.S. Part of this discussion was prompted by Judge John Jones’ opinion in Sikkelee v. Precision Airmotive Corp. holding that the Second Restatement was still the law in Pennsylvania, despite the Third Circuit’s bumbling in Berrier v. Simplicity Manufacturing, Inc., 563 F.3d 38 (3d Cir. 2009)(a fine opinion on bystander recovery that didn’t need to address the Third Restatement) and Covell v. Bell Sports, Inc., 651 F.3d 357 (3d Cir. 2011)(an absurdist down-the-rabbit-hole opinion that blithely ignored every single Pennsylvania Supreme Court case relating to strict liability). Tort talk summarizes the issue here, and I argue with James Beck about it here.
[Update October 19, 2012: The Third Circuit, while denying an interlocutory appeal in Sikkelee, nonetheless opined — despite having received no briefs, and holding no argument — that "we will follow the precedent set out in Covell and Berrier." Aside from the problem of deciding an appeal while denying an appeal is proper, and thus having no jurisdiction to rule on anything at all, the Third Circuit is simply wrong that "The Pennsylvania Supreme Court has not issued a definitive opinion on whether the Restatement (Third) of Torts or the Restatement (Second) of Torts applies to to strict liabilty and product defect cases." As explained above, for decades the Pennsylvania Supreme Court has ruled that the Restatement (Second) of Torts applies. It has never held otherwise.]
[Update March 26, 2013: The Pennsylvania Supreme Court granted allocatur in Tincher v. Omega Flex to "Whether this Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement." Additionally, the parties are to brief whether such a change, if made, should be applied prospectively or retroactively.]