In 2014, the Pennsylvania Supreme Court decided a major products liability case, Tincher v. Omega Flex, Inc., 104 A.3d 328, (Pa. 2014). The case expressly overturned an earlier decision (p 373) in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978) and adopted a new standard for articulating design defect in Pennsylvania.
In 2007 the Tinchers' house in Downingtown, Pennsylvania caught fire. The Tinchers' lived in the middle unit of a triplex. The fire burned for an hour before it was extinguished. No one was harmed but the fire "caused significant damage to the Tinchers' home and belongings." The source of the fire turned out to be a lightning strike. The lightning had "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 "heat attending the melting of the CSST caused by the lightning strike ignited the natural gas." The Tinchers filed an insurance claim with United Services Automobiles Association ("USAA"), and the Tinchers received compensation, up to their policy limits, but this did not cover all the damage caused by the fire. USAA was assigned the liability claims.
The piping that caused the fire was manufactured and sold by Omega Flex. The Tinchers filed suit against the company in 2008 for products liability asserting "claims premised upon theories of strict liability, negligence, and breach of warranty." USAA litigated the suit 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 that "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. " Omega Flex denied that the CSST was defective. The jury found in favor of the Tinchers and awarded them near a million dollars in damages.
Omega Flex appealed and the case wound its way through the court system, eventually landing at the Supreme Court of Pennsylvania. The issue before the Supreme Court was whether the court "should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement." In addition, the court asked the parties to "brief the question of whether, if the Court were to adopt the Third Restatement, that holding should be applied prospectively or retroactively."
The prior governing case was Azzarello. Because the court in Azzarello was worried about jury confusion it decided that "the phrase “unreasonably dangerous” is per se misleading to lay jurors and, as a result, the Court dictated that any questions relating to the risks and utilities of a product are to be decided by the trial court as a matter of law and policy."
The Court in Tincher changed this rule. Now, in a design defect case, plaintiffs must prove that a product is in a defective condition. The plaintiff may prove this by showing that either:
(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.
This question of whether or not a product is in a defective condition is now a question for the jury and must be proved by a preponderance of the evidence.