• TJ Schick

What is Products Liability?

All of us interact with countless manufactured products every day. From the beds our children sleep in, to the cars we drive, and the equipment we use at work -- almost everything around us is a product that was manufactured and sold. We trust the manufacturers and sellers to provide safe products that are not unreasonably dangerous to us. If the product is dangerous in some way that is not obvious, we trust that the manufacturers and sellers will warn us about those dangers.


Unfortunately, occasionally we might encounter a product that is defective in a way that makes it dangerous. Something may have gone wrong in the manufacturing process, or the product might have been designed in a way that made it less safe than it should have been. If one of these products causes you injury or harm because of the defective way it was manufactured or designed, the manufacturers and sellers of the product are “strictly liable” under Pennsylvania law and must cover your injuries and damages.


The Pennsylvania courts have adopted the following consumer protection rule, which holds sellers strictly liable for their defective products:


(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.


(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.


Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966) (quoting Restatement (Second) of Torts § 402A).


The rule holds sellers liable as long as they are “engaged in the business of selling” the product. This is because we trust that sellers who make it their business to sell a product will ensure that their products are safe. The rule also says that, if a product was changed after it was sold, the seller might not be responsible for the product after it was changed.


Importantly, the second part of the rule says that sellers or manufacturers may be liable even if they “exercised all possible care in the preparation and sale of [the] product.” This is an important part of Pennsylvania’s consumer protection law and is different from some other states. It means that, if you are injured by a defective product, you do not necessarily have to prove that the manufacturer or seller was “negligent” in order to recover your damages from the manufacturer or seller. You just have to prove that the product was sold “in a defective condition unreasonably dangerous to the user or consumer.”


But how do you prove that? Since the important case of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), Pennsylvania law says that the defectiveness of a product may be proven in one of two ways. A plaintiff may prove that a product was placed on the market in a defective condition by showing 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.” Tincher, 104 A.3d at 335. The first test is known as the “consumer expectations test,” and the second one is known as the “risk-utility test.”


Under the consumer expectations test, a product is defective if its danger “is unknowable and unacceptable to the average or ordinary consumer.” Id. at 387. Many products have obvious dangers, but defective products have dangers that are unknowable and unacceptable to consumers. The Pennsylvania Supreme Court used the example of butter: “Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.” Id. The “bad butter” would fail the consumer expectations test, and its sellers or manufacturers would be liable for the harm caused to consumers.


The “risk-utility test” may be useful in cases involving less common products, or in cases where the product should have been designed differently even if its dangers were obvious to consumers. Under this test, sellers are required to take reasonable precautions in the design of their products, especially if the product is dangerous and likely to cause serious harm. If it would not have been much of a burden to build additional precautions into a dangerous product, the product will fail the risk-utility test. To prove these cases, the plaintiff will need experts to explain what additional precautions would have been reasonable.


Anyone injured by a dangerous or defective product should consult with an experienced products liability lawyer to learn about their rights. If you have been injured by a dangerous or defective product, please contact Cohen, Feeley, Altemose & Rambo for a free consultation.


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