Pennsylvania Supreme Court Decision Will Create Sea-Change in Product Liability Cases


The Pennsylvania Supreme Court’s unanimous decision in Tincher v. Omega Flex overhauled the current landscape of products liability law in Pennsylvania. In strong language the state’s high court, on November 19, expressly overruled the 1978 hallmark case, Azzarello v. Black Brothers Company, thereby easing the divide between strict products liability law and principles of negligence, and raising the threshold necessary for a plaintiff to prove a claim in strict products liability.

The Tincher opinion defines a new test for proving that a product is in a “defective design.” Under the new landscape, a product is in a “defective design” where (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or (2) a reasonable person would conclude that probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

This new test provides a considerably higher threshold as compared to Azzarello’s “lacking any element necessary to make it safe” standard. Further, the new standard, consistent with that of numerous other states, allows for the finder-of-fact to weigh principles of negligence in determining whether a product reaches the “defective” threshold.

Although the Court declined to wholly adopt the Restatement (Third) of Torts concerning products liability, the Court’s opinion and holding is highly informed by the principles underlying the newest restatement, and as such, deferential to manufacturers, distributors and the chain of sale. While recognizing that the new negligence-infused landscape opens the door to a number of related issues, such as the availability of negligence-derived defenses, bystander compensation and many others, the Court declined to weigh in on these issues, preferring to allow case-by-case determinations as the correct fact-patterns arise. In conclusion, a sea-change has begun in the law of strict products liability, whereby Pennsylvania courts will methodically implement the new negligence-infused products liability law on a case-by-case basis.

For more information, please contact Brian L. Calistri at or 215.972.7938

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