The inscrutable wisdom of Solomon: Pennsylvania splits the baby by rejecting the Third Restatement of Torts (Products Liability), but overrules Azzarello.

A lightning strike caused a puncture in a natural gas line in a building and ignited the gas. The building’s owners sued the manufacturer of the pipe and won at trial on a strict product liability theory. On appeal, the Pennsylvania Supreme Court voted 6-0 to overrule Azzarello v. Black Brothers (Pa. 1978), the key case that formalized Pennsylvania’s rigid distinction between strict liability and negligence. But in a surprising move, the Court also voted 4-2 to reject the Third Restatement and to continue to follow the Second. A claim of strict product liability can now be proven in two ways: a plaintiff may show either that (1) the danger is unknowable and unacceptable to the average 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. In this new chapter in product liability law history, the Supreme Court expressly calls for “targeted advocacy” on how to rectify questions, such as which post-Azzarello cases survive and whether any negligence concept rejected on the authority of Azzarello can safely be grafted back onto strict product liability law.

Case Law Alerts, 1st Quarter, January 2015