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Tincher v. Omega Flex. Inc.

Supreme Court of Pennsylvania

November 19, 2014

TERRENCE D. TINCHER AND JUDITH R. TINCHER, Appellees
v.
OMEGA FLEX, INC., Appellant

Argued October 15, 2013

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Appeal from the Order of the Superior Court, Dated September 25, 2012, at No. 1472 EDA 2011, Affirming the Judgment of the Chester County Court of Common Pleas, Civil Division, Dated June 1, 2011, at No. 2008-00974-CA. Nagle, Ronald C., Senior Judge, Trial Court Judge. Musmanno, John L., Judge, Mundy, Sallie, Judge, Fitzgerald, James J., III, Justice, Intermediate Court Judges.

For Omega Flex, Inc., Appellant: William J. Conroy, Esq., Katherine Ann Wang, Esq., Campbell Campbell Edwards & Conroy, P.C., Christopher Landau, Esq., Kirkland & Ellis, LLP.

For Terrence D. Tincher and Judith R. Tincher, Appellees: Mark Elliot Utke, Esq., Cozen O'Connor.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Saylor files a concurring and dissenting opinion in which Mr. Justice Eakin joins.

OPINION

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MR. CASTILLE, CHIEF JUSTICE

Omega Flex, Inc., appeals the decision of the Superior Court to affirm the judgment on the verdict entered in favor of Terrence D. Tincher and Judith R. Tincher (the " Tinchers" ) by the Chester County Court of Common Pleas, Civil Division. We reverse the Superior Court decision in part, upon reasoning different from that articulated by the courts below, and we remand to the trial court for further action upon Omega Flex's post-trial motions, consistent with the principles elucidated in this Opinion. We hold that:

1. This Court's decision in Azzarello v. Black Brothers Company, 480 Pa. 547, 391 A.2d 1020 (Pa. 1978) is hereby overruled.
2. Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a " defective condition." The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. The burden of production and persuasion is by a preponderance of the evidence.
3. Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.
4. To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability § § 1 et seq., albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post- Azzarello paradigm.

I. Background

Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at the home of the Tinchers in Downingtown, Pennsylvania. The residence was the

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central unit of a two-story triplex built in 1998-99, and purchased by the Tinchers in 2005. The fire was eventually extinguished and no persons were harmed. Subsequently, investigators concluded that a lightning strike near the Tinchers' home caused a small puncture in the corrugated stainless steel tubing (" CSST" ) transporting natural gas to a fireplace located on the first floor of the residence. The CSST installed in the Tinchers' home was manufactured and sold by Omega Flex as part of a gas transportations system marketed as the TracPipe System. The heat attending the melting of the CSST caused by the lightning strike ignited the natural gas and fueled a fire estimated to have burned for over an hour. The fire caused significant damage to the Tinchers' home and belongings.

After the fire, the Tinchers reported the incident to their insurer, United Services Automobile Association (" USAA" ). USAA compensated the Tinchers for their loss up to the limit of their policy and received an assignment of liability claims. The Tinchers suffered an additional out-of-pocket loss because a portion of their claimed loss exceeded the limits of the USAA policy.

In January 2008, the Tinchers filed a complaint against Omega Flex in the Chester County Court of Common Pleas.[1] USAA prosecuted the claims in the name of the Tinchers to obtain reimbursement of the insurance proceeds payout, but the Tinchers retained an interest in the litigation to recover the losses exceeding their insurance coverage. The Tinchers asserted claims premised upon theories of strict liability, negligence, and breach of warranty.

In relevant part, the Tinchers' complaint relies upon the theory of strict liability articulated in Section 402A of the Second Restatement of Torts, but as followed and construed in Pennsylvania. Complaint, 3/18/2008, at ¶ ¶ 19-25 (citing Restatement (2D) of Torts § 402A). The Tinchers alleged that Omega Flex is liable for damages to their home caused by the placement on the market and sale of the TracPipe System. According to the Tinchers, the CSST incorporated into the TracPipe System is defective, and unreasonably dangerous to intended users, because its walls are too thin to withstand the effects of lightning. The Tinchers requested compensatory damages, interest, fees, and costs of litigation. Omega Flex answered the complaint denying the Tinchers' allegations. The matter was assigned to the Honorable Ronald C. Nagle, Senior Judge of the Chester County Court of Common Pleas. The parties proceeded with discovery and the filing of dispositive motions, which the trial court denied.

In September 2010, in anticipation of trial, Omega Flex filed a motion in limine requesting the application of Sections 1 and 2 of the Third Restatement of Torts to the Tinchers' strict liability claim. Omega Flex also proposed jury instructions and findings of fact consistent with the provisions of the Third Restatement. The Tinchers opposed Omega Flex's motion in limine and offered proposed jury instructions and findings of fact consistent with the Second Restatement and Azzarello, supra. The trial court did not resolve Omega Flex's motion before trial. See Notes of Testimony, 8/12/2011, at 17-22.

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In October 2010, the parties proceeded to trial before a jury. At trial, the Tinchers offered evidence regarding the events of June 20, 2007, the subsequent investigation into the cause of the fire, the losses sustained by the Tinchers, and USAA's process of adjusting the insurance claim. The parties generally agreed that lightning had caused the fire, although they disagreed as to the sequence of events or the cause of ignition in the area of the fireplace. The Tinchers offered evidence that lightning transferred an electrical charge to parts of the home, including the TracPipe System; the electrical current then sought ground and created different electrical charges in the various metal components of the structure. The Tinchers' expert witnesses testified that a flow of energy between a differently charged TracPipe and another metal component of the home caused an electrical arc, and the accompanying heat punctured the CSST and ignited the natural gas that the CSST transported. According to the Tinchers' expert, the perforation in the corrugated stainless steel tubing from the Tinchers' home was " characteristic of a lightning strike, not anything else." By comparison, Omega Flex's witnesses testified that lightning measured near the Tinchers' home on the night of the fire did not carry sufficient energy to puncture the CSST. According to these witnesses, once lightning entered the house, lightning-related high voltages -- although with low energy -- broke down the insulation on electrical wires and, if the circuit breakers did not interrupt the current, the electrical current caused the fire. Omega Flex also responded that the conditions of the Tinchers' home after the fire and after the investigation, during which part of the evidence had been removed from its original location, made it impossible to confirm the Tinchers' theory. Finally, Omega Flex offered evidence that an attempt had been made to bond the TracPipe System to the cold water pipe at the Tinchers' residence which, if successful, would have prevented the electrical arc -- and the resulting fire -- from occurring. Witnesses testified that, after the fire, a bonding clamp had been found connected to the CSST and near but disconnected from the cold water pipe. The parties offered competing testimony as to whether the clamp had been attached to the cold water pipe before the fire.

Relevant to their strict liability theory, the Tinchers offered testimony regarding a defect in the TracPipe from experts in electrical engineering and metallurgy, electrical arc physics, and material science -- Mr. Mark Goodson and Dr. Thomas Eager, respectively. These experts opined that CSST is inherently defective because its wall is 1/100 of an inch thick -- the width of four sheets of paper -- and, as a result, the probability is " very high," " close to a hundred percent," that a lightning-generated current will perforate it. By comparison, an alternative natural gas conduit made of black iron pipe is ten times thicker for a half-inch diameter pipe similar to the CSST present in the Tincher home. According to the witnesses, CSST withstands the transfer of ten times less energy than black iron pipe and, given the same energy, the amount of time to puncture CSST is 1/100 the amount of time required to puncture black iron pipe. Experts estimated that an electric arc is fifty thousand to a million times more likely to perforate CSST than black iron pipe.

The witnesses acknowledged that the energy transferred by any particular lightning strike is difficult to predict and cannot be replicated in a lab, but concluded that the probability was high that CSST would be punctured by occurrences within expected ranges of electrical current. Such results, according to the Tinchers' experts, are observable and predictable

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with equations developed in the Nineteenth Century. Nevertheless, the experts noted that Omega Flex had not conducted testing on the TracPipe's ability to withstand lightning strikes, although testing for resistance to lightning was necessary and available. Moreover, according to the Tinchers' evidence, the Omega Flex installation guide failed to direct compliance with lightning-related fire protection codes.

The Tinchers' witnesses also testified that Omega Flex recommended grounding the TracPipe system by plugging any natural gas-fueled appliances into three-prong outlets. Additional grounding, although attempted at the Tinchers' residence, was not required by the installation instructions provided by Omega Flex to professionals to whom TracPipe was marketed and sold for installation in consumers' homes. Moreover, according to the Tinchers' experts, the bonding of the TracPipe System at one location would be insufficient to protect the CSST from the effects of lightning. To be effective, the witnesses testified, bonding would be required every ten feet, which the experts deemed to be an impractical and unfeasible solution. The alternative would be to encase the CSST in black iron pipe. See N.T., 10/13/2010, at 291-98, 357-420.

After the Tinchers rested, Omega Flex moved for a nonsuit, citing the standard of the Second Restatement and Azzarello; Omega Flex expressly assumed that the trial court had denied its request to apply the Third Restatement. N.T., 10/18/2010, at 514-16. The trial court denied the motion for a nonsuit. Id. at 525-26.

Subsequently, Omega Flex introduced the testimony of its own experts relating to the defect in the TracPipe System alleged by the Tinchers. The witnesses were Dr. James Dydo, an expert in metallurgy and mechanical engineering with a focus on fuel gas piping, and Dr. Michael Stringfellow, an expert in physics with a focus on lightning and the protection of structures from lightning. The Omega Flex experts opined that the TracPipe System is not defective or unreasonably dangerous. According to the defense experts, CSST is a technology with significant advantages, including resistance to corrosion, structural shifts, and mechanical ruptures; ease of installation, relocation, and retrofitting; and fewer joints accompanied by decreased susceptibility to natural gas leaks at any required joints. The experts noted that these net benefits are marked advantages over black iron pipe arising from the flexibility of CSST. If CSST's walls were thickened, according to the experts, there would be little practical difference between CSST and black iron pipe.

The defense witnesses also testified that the TracPipe System meets and exceeds all standards for minimum performance governing CSST developed by the American National Standards Institute, a clearinghouse for trade groups. Additionally, the witnesses stated, installation of the TracPipe System conforms with the Fuel Gas Code and the National Electric Code in force in 1998-99. The experts emphasized that these applicable standards did not anticipate intrusion by lightning as a possible safety concern, suggesting that it was unnecessary for Omega Flex to have foreseen any danger from lightning.

Finally, Omega Flex's experts agreed that the installation instructions for the TracPipe System did not require installation of a bonding clamp. The witnesses also noted, however, that a disconnected clamp was consistent with Omega Flex's assessment of the circumstances surrounding the fire. The experts offered that the attempt to bond the TracPipe System to the cold water pipe was inadequate and

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that a successful attempt would have likely averted the resulting fire. Id. at 657-712.

After resting its defense, Omega Flex offered a motion for a directed verdict premised upon Second Restatement principles and Azzarello. Omega Flex argued that proof of the overall risks and benefits of the TracPipe System, and of any reasonable alternative designs, showed that TracPipe was not unreasonably dangerous. The trial court denied the motion for a directed verdict. Both parties then offered closing arguments on their respective theories of the case. Subsequently, the trial court instructed the jury with respect to the Tinchers' strict liability claim as follows:

The contention of the [Tinchers] in this case is that there is a defect in this product, this TracPipe. To state a products liability claim, essentially it's strict liability, a plaintiff must prove, first, that the product was defective. Second, that if [sic] a defect existed when it left the hands of the defendant, that is, left the process by which it was produced at the defendant['s] plant. And three, that the defect caused the harm.
A product is defective when it is not safe for its intended purpose. That is, it leaves the suppliers' control lacking any element necessary to make it safe for its intended use. The inquiry is whether or not there is a defect, not whether the defendant['s] conduct was negligent. In strict liability there is no consideration of negligence. It is simply, was the product defective or wasn't it defective.
* * * *
Defective design. The manufactur[er] of a product is really a guarantor of its safety. When we talk about strict liability, the product must be provided with every element necessary to make it safe for its intended use. And without any conditions that make[] it unsafe for its intended use. If you find that the product in this case, the TracPipe, at the time it left the defendant['s] control, lacked any elements necessary to make it safe for its intended use, or contained any condition that made it unsafe for its intended use, and there was an alternative more practical design, more safer [sic] design, then the product is considered defective and the defendant is liable for the harm, if you find that defect caused the harm[,] was the proximate cause of the harm to the plaintiffs.
Now, ladies and gentlemen, a product is not defective merely because it is possible to be injured while using the product. The imposition of strict liability is not meant to transform manufacturers into insurers of all injuries that are potentially possible and [sic] at the hands of a product. A manufacturer of a product may be a guarantor of the product['s] safety, but under no circumstances is the manufacturer an insurer of the safety of the product. The law does not force the manufacturer to become the insurer of the product under all conditions and uses. A manufacturer is not required to make an already safe product safer, or to utilize the safest of all designs. The manufacturer is not required to produce or design a product incorporating only features representing the ultimate in safety design. To prevail on a design defect theory, plaintiffs must prove that the product is defective and that at the time it left the control of the manufacturer it lacked the feature necessary to make it safe for its intended use, or contained a feature that made it unsafe for its intended use.
In other words, you may not find that the TracPipe product is defective merely because it could have been made safer. Instead, you may only render a verdict for the plaintiff if you conclude and are

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convinced that the TracPipe is in fact defective and was so when it left the hands of the manufacturer and that defect was the proximate cause of the [Tinchers'] loss.
As I said before, and I instruct you that in order to establish strict liability for putting a defective product in the stream of commerce, the plaintiffs are not required to prove that the defendant was negligent. Negligence and strict liability are two separate concepts. I'll get to negligence in a second. And no consideration should be given to negligence when considering strict liability for a defective product. It's two different concepts. I understand it's not the easiest thing to keep in mind. I'm trying to point out there is a difference between strict liability for putting a defective product that was defective when it was designed and made in this stream of commerce that causes harm to someone else, an intended user, not just any user, but an intend[ed] user of that product.
Obviously, ladies and gentlemen, if this product was manufactured and, obviously, the -- with all of the testimony in this case and the steps that were taken during the design and manufacturing process, Omega Flex knew it was going to be used for its intended purposes, to carry gas[,] natural gas, the manufacturer supplying the pipe guaranteed it would be safe for its intend[ed] use. That is what strict liability means. So if something that is intended to be safe for the use intended to be made of it is not, and it's proven that it's not, and that proof has to come from the plaintiff, and that defect is the proximate cause of what happens, there is a lot of testimony in this case about that, then that is what strict liability means. It does not have anything to do with negligence in that aspect of the case. That is why the risk of loss, or if there is, or if you find there is a defect in strict liability, the risk of loss is placed upon the supplier or manufacturer that put that product in this stream of commerce. The risk of loss for injuries resulting from the defective product is best warned [sic] by the person who manufactured it, principally because they are the ones that put it in the stream of commerce and said it would work for its intended purpose.

N.T., 10/19/2010, at 794-98. Additionally, the trial court defined " proximate cause," and instructed the jury with respect to damages. Id. at 802-07. After the trial court concluded its instructions on the law, counsel for Omega Flex noted for the record that Omega Flex had proposed instructions based upon the Third Restatement with respect to the strict liability claim and that any Second Restatement instructions it proposed were offered in the alternative. The trial court responded that it had declined to instruct the jury in accordance with Third Restatement principles because Pennsylvania appellate courts, and the Supreme Court especially, had not adopted the Third Restatement.

Subsequently, the jury returned to the courtroom with several questions. Relevant here, the trial court answered the jury by repeating definitions for the terms " defect" and " defective design" as offered in the original instructions.

On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the products liability claim, and awarded compensatory damages totaling $958,895.85. Damages were divided as follows: $406,532.90 (building); $988.83 (additional property and structures); $503,945.58 (contents); and $47,428.64 (alternate living expenses). The trial court added $69,336.05 in delay damages, and entered

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judgment on the verdict.[2] In November 2010, Omega Flex filed a motion for post-trial relief and supporting brief requesting, among other things, a new trial premised upon trial court errors in denying its motion in limine and in failing to instruct the jury on the law as articulated in the Third Restatement. Additionally, Omega Flex sought judgment notwithstanding the verdict on the theory that the evidence introduced at trial was insufficient to prove a claim of strict liability under Third Restatement principles.

Relating to the motion for judgment notwithstanding the verdict, Omega Flex argued that the evidence introduced at trial was insufficient as a matter of law to prove a strict liability claim under the Third Restatement. In overlapping claims of error, Omega Flex also asserted that the Tinchers had not met their burden of proof under the so called " fireworthiness" doctrine, which, as Omega Flex explained in its supporting brief, was a Third-Restatement-like approach similar to the more familiar " crashworthiness" exception to the Second Restatement. Appellant's Brief in Support of Motion for Post-Trial Relief 3/3/2011, at 9-27 (citing Pa. Dep't of Gen. Servs. v. U.S. Mineral Prods. Co.., 587 Pa. 236, 898 A.2d 590 (Pa. 2006) (" General Services" ) and Gaudio v. Ford Motor Co., 2009 PA Super 102, 976 A.2d 524 (Pa. Super. 2009)). With respect to the motion for a new trial, Omega Flex alleged that the trial court erred in denying its motion in limine seeking to conduct the trial in accordance with Third Restatement principles, and in failing to issue a jury charge premised upon the Third Restatement or the fireworthiness / crashworthiness doctrine.

In the brief supporting the post-trial motion, Omega Flex distilled what were several Third Restatement and fireworthiness doctrine claims into two main arguments. First, according to Omega Flex, judgment notwithstanding the verdict or a new trial were appropriate under the Second Restatement because lightning protection, the safe conduction of electricity, or even a foreseeable event such as the fire are not intended uses of the TracPipe System. In the alternative, Omega Flex argued that, once the Tinchers offered evidence that lightning was a " foreseeable" event, the dispute paradigm changed from a typical Second Restatement design defect case to a fireworthiness / crashworthiness case, which required the trial court to issue a jury instruction that the Tinchers had the burden to prove the existence of an alternative safer design similar to the burden articulated by the Third Restatement.

Second, Omega Flex argued that a new trial was appropriate because the trial court failed to charge the jury on the Third Restatement, which in its view stated the relevant principle of law applicable to the circumstances alleged by the Tinchers. Omega Flex argued that application of the Third Restatement was supported by responsive opinions authored and joined by several Justices of this Court and the decision of the U.S. Court of Appeals for the Third Circuit in Berrier v. Simplicity Mfg., 563 F.3d 38 (3d Cir. 2009). Appellant's Brief in Support of Motion for Post-Trial Relief 3/3/2011, at 36 (citing also Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1020 (Pa. 2003) (Saylor, J., concurring, joined by Castille and Eakin, JJ.)). Returning to its fireworthiness doctrine theory, Omega Flex emphasized that the trial court's Azzarello-based instructions on the Second Restatement confused the jury: first, by mentioning, without explaining, the relevance of evidence of a

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proposed alternative design, i.e., the black pipe system; second, by failing to guide the jury on the burden of proof relating to the alternative design; and, third, by failing to explain how the jury should consider the role of lightning in assessing liability. Additionally, Omega Flex argued that the failure to charge the jury, and relatedly the absence from the verdict sheet, of foreseeability-based principles and elements related to the existence of a safer alternative design, erroneously lessened the Tinchers' burden of proof. Id. at 31-40.

In response, the Tinchers asserted that the " fireworthiness" instruction requested by Omega Flex had no applicability to the Tinchers' circumstances. The Tinchers explained that the decision in General Services was distinguishable on the facts: in General Services, the product released harmful chemicals when exposed to a fire caused by unrelated events; because the fire was not an intended use of the product, this Court held that strict liability principles were inapplicable. By comparison, the Tinchers noted that the allegations in this matter were that the defect in CSST even when employed for its intended use, i.e., carrying natural gas, caused the fire; these allegations implicated a manufacturer's strict liability for the alleged defect. The Tinchers then argued that the evidence offered at trial was sufficient to support the trial court's gateway decision related to the risk-utility analysis as well as the jury's ultimate verdict. The Tinchers also responded that the Third Restatement was not applicable in Pennsylvania and that, until this Court adopts the Third Restatement, the governing law remains the Second Restatement. Moreover, the Tinchers asserted that the Third Circuit's prediction that this Court would eventually adopt the Third Restatement is premature and unwarranted, citing the Superior Court decisions in Gaudio, supra, and French v. Commonwealth Associates, 2009 PA Super 152, 980 A.2d 623 (Pa. Super. 2009). Appellees' Brief in Opposition to Motion for Post-Trial Relief, 3/9/2011, at 2-15. At oral argument on the post-trial motion, the parties offered similar arguments focusing on the fireworthiness doctrine. Omega Flex noted that the case was appropriate for application of the Third Restatement and emphasized the claims of jury confusion, but agreed not to press arguments relating to the adoption of the Third Restatement at the trial court level. N.T., 3/11/2011, at 9-10; 39-43. The trial court denied the motion. On June 2, 2011, the trial court entered judgment on the verdict, in the amount of $1,028,231.90.

Omega Flex appealed the judgment to the Superior Court. The trial court ordered Omega Flex to file a concise statement of errors complained of on appeal. Order, 6/17/2011 ( per curiam ) (citing Pa.R.A.P. 1925(b)). In its Rule 1925(b) statement, Omega Flex raised related claims of error, in relevant part, that the evidence introduced at trial was insufficient to prove claims of strict liability under the Second and Third Restatements; and that the jury should have been charged and offered a verdict form premised upon the Third Restatement or the related theory of fireworthiness / crashworthiness.

In the post-trial relief and Rule 1925(a) opinions, the trial court rejected Omega Flex's arguments. The trial court found no error in declining to apply and instruct the jury on the Third Restatement, reasoning that this Court had yet to adopt that iteration of tort law to replace the Second Restatement. The trial court noted that, while Omega Flex " may have the right to advance on appeal to our Supreme Court that it should adopt the [Third Restatement], under current law, [the Tinchers] bore no burden to prove a safer alternate design existed in accordance with the

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latter standard." Trial Court Op., 8/5/2011, at 11.

In addition, the trial court explained that a " fireworthiness" instruction -- as an extension of the " crashworthiness" doctrine, requiring " a more rigorous standard of proof than the usual [Second Restatement] claim," was not appropriate either, because TracPipe had been employed for its intended use. According to the trial court, the Tinchers' case did not relate to how the TracPipe performed during the fire, as in General Services; rather, the defect in the TracPipe they pursued was the proximate cause of the Tinchers' injuries. The trial court held that the trial court rather than the jury properly decided the question of a feasible alternative design, and that the Tinchers had carried their burden of proof.

The parties offered arguments in their briefing to the Superior Court on issues similar to those raised in the post-trial motion and Rule 1925(b) statement. Relating to the Third Restatement, Omega Flex acknowledged that decisions of this Court bound the lower court, but offered that this case would be a fitting vehicle for this Court to revisit strict liability standards. According to Omega Flex, the Third Restatement expressly incorporates foreseeability standards into the strict liability analysis, and requires a plaintiff to establish the existence of a reasonable alternative design for the factfinder. The trial court, Omega Flex argued, following existing decisional law, instructed the jury inadequately, noting in particular that the Tinchers were not " required to prove the existence of a feasible alternative design to prevail on [their] strict-liability claim." Omega Flex claimed that the trial court erred in denying its motion for judgment notwithstanding the verdict premised upon error in instructing the jury, and requested a new trial on this basis. Appellant's S.Ct. Brief at 33-36. The Tinchers responded that Omega Flex's arguments relating to the Third Restatement have no legal support. According to the Tinchers, the Second Restatement and its derivative decisional law remains the law in Pennsylvania, and this Court rejected moving to the Third Restatement on several occasions, including after the U.S. Court of Appeals for the Third Circuit predicted its adoption.

In September 2012, the Superior Court affirmed the judgment, among other things holding that the trial court did not err in declining to adopt the Third Restatement. The court also rejected Omega Flex's claim of error premised upon the fireworthiness theory, concluding that although the occurrence of lightning was arguably random and infrequent, lightning is a naturally occurring phenomenon outside the control of the Tinchers, who were using the product for its intended use. As a result, the court held that the Tinchers' claims implicated notions of strict liability, and the Tinchers had carried their burden of proof under the Second Restatement and Azzarello. Moreover, the court concluded that it was obligated to follow Supreme Court precedent, which remained premised upon the Second Restatement, following this Court's then-recent decision in Beard v. Johnson & Johnson, Inc., 615 Pa. 99, 41 A.3d ...


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