Strict Product Liability, Negligence, and Breach of Warranty Explained
Over the past thirty (30) years, I have observed Pennsylvania Products Liability Law change; but, its fundamentals remain the same – Pennsylvania Strict Products Liability is intended to deter the sale of defective products by preventing product designers from “using consumers as guinea pigs”.
People who are injured by defective products can hold product sellers strictly liable for their injuries and damages by proving that the product is defectively designed, that it was defective because it did not have adequate instructions or warnings, or if the product is sold with a manufacturing defect.
Tincher v. Omega-Flex, Inc., 104 A.3d 328, 404 (Pa. 2014). Pennsylvania is still the best state for a product liability claim. In Tincher, supra, the Pennsylvania Supreme Court held that Pennsylvania will continue to follow §402A of the Restatement (Second) of Torts, which applies Strict Liability to product sellers for selling a defective product that has harmed its user or consumer. In Pennsylvania, even where “the seller has exercised all possible care in the preparation and sale of his [or her] product, and . . . the user or consumer has not bought the product from or entered into any [sales contract] with the seller[,]” a seller that is “engaged in the business of selling such . . . product[s]. . . is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his [or her] property. . . .”
People who are injured by defective products can hold product sellers strictly liable for their
injuries and damages by proving that the product is defectively designed, that it was defective
because it did not have adequate instructions or warnings, or if the product is sold with a
manufacturing defect. Moreover, a design defect can be proven by showing that the product
failed to perform as well as an average consumer or user of the product would have expected the
product to perform. Another way to prove a design defect is through circumstantial evidence of
defect, such as through a product malfunction.
What are Examples of Product Liability Cases?
Here are a few cases that I have litigated for client recovery that provide some insight into successful strict product liability claims:
- The man whose vape pen ignited his pants while he was attending a music event;
- Workers whose personal protective equipment (PPE), such as clothing, does not protect
them from a work hazard because the PPE did not have a safe design or construction for
the work to be performed; - Examples of such PPE are (1) PPE coveralls that ignited when worn during work by a
shipfitter, who was “washing a weld” with a welding torch; (2) the welder who suffered
burns after his PPE “flame resistant” shirt ignited; (3) the furnace worker who suffered
full thickness burns to his foot and bone when his “molders’ boot” ignited when
contacted by a liquified aluminum compound. - A man who was injured when his bicycle’s metal pedal crank broke while he was using
his bike; - The worker who was crushed by a metal door when a chain hoist’s metal hook broke.
What are Examples of a Defective Product?
There are many other examples. Sometimes, the defect occurs because the materials are defective such as, for example, with metal failures, such as for the two examples above. This can be from both a design and a manufacturing defect caused, for example, where the metal is not forged properly and fails to sufficiently anneal to the proper hardness for its designed purpose. Other times, a product may be defective because a product’s components are not designed for the seller’s intended purpose for the product.
For example, in the “molders’ boot” example, the boot was referred to as a “kick off” because it had elasticized side panels that the seller intended for safety, to enable a worker to quickly kick off the boot if hot molten metal came into contact with it, during use. However, the manufacturer of the product used an elasticized side panel design that it took from the design of a “ladies dress boot”. It was made of cotton and quickly ignited and offered no protection to the molder, thereby defeating its advertised purpose.
What is Product Misrepresentation?
Such occurrences provide another separate liability claim, strict liability for the “misrepresentation by [a] seller” of the material uses and applications for a product pursuant to §402B of the Restatement (Second) of Torts, which is adopted in Pennsylvania. These matters also provide a claim for the injured person under the Pennsylvania Commercial Code, for a breach of an express warranty.
For that matter, whenever a product is not “fit for its particular purpose” or is defective — by design, manufacture, from malfunction, or because it is sold without proper warnings or instructions — the product seller may be held strictly liable because of the seller’s breach of an implied warranty for the subject product.
What are Examples of a Defective Design?
In short, whenever there is a design which could feasibly have made the product safer for use by eliminating or minimizing the product’s hazards, a manufacturer, seller, and all within the chain of the product’s distribution, may be held strictly liable for the products “unreasonably dangerous” condition without regard to whether the manufacturer or seller had exercised “all possible care” in their respective preparation and sale of the product. A simple way to evaluate such defects is through the “hindsight test”. If, after the product was sold, where it injures its user or consumer, the product manufacturer and seller should be held strictly liable where there is an alternative design that would have prevented the injury that, in hindsight, should have been used or implemented.
See, e.g., Bugay, “A New Era In Pennsylvania Products Liability Law- Tincher v. Omega-Flex, Inc.: The Death of Azzarello,” The Pennsylvania Bar Association Quarterly (Jan. 2015).
For example, another matter I litigated many years ago, a young girl who worked in a supermarket’s deli department was injured while cleaning the area underneath the deli slicer. The slicer’s design included a lifting lever that would prop the slicer up so the worker could clean underneath it, required after each shift to satisfy health code requirements. The slicer’s lever design was premised upon positional stability and did not include a locking system to hold the slicer’s lever in the upright position to prevent the lever’s accidental disengagement such as, from the worker’s bumping against the slicer’s lift lever during the cleaning process, while the slicer was in its upright position.
However, another slicer manufacturer had designed a lifting lever with a positive locking safety component which required the worker to affirmatively release the lever for the lever to be lowered and prevented its accidental disengagement during the cleaning process. The alternative design was called the “Sure lock lift” and was patented.
During litigation, the manufacturer argued that (1) it did not know about the design; (2) that its industry standard did not required the alternative design; (3) that the patented design did not exist when the product was sold; and (4) that the competitor’s lever design was patented and could not be implemented by the manufacturer anyway. Pennsylvania strict liability law prevents these defenses from being applicable or even relevant for consideration at trial. All claimed evidence of such defenses would have been excluded if that matter had not resolved before trial.
Simply stated, the safety design is well known, based on a ratchet and pawl application, such as, for example, used for a socket wrench, which restricts movement in a certain direction. Moreover, this safety technology was well known and available. Leonardo DaVinci had drawings of ratchet and pawl designs. It did not matter that the manufacturer did not know about the feasible design, this is not a defense. It did not matter that the manufacturer had followed industry standards or what it claimed to be the “state of the art” for its product, Pennsylvania products liability law does not care — the manufacturer and seller can be held to be strictly liable anyway. It did not
matter that the product was sold before the “Sure Lock Lift” was patented; nor did it matter that a competitor had patented the design and that its use was restricted.
As the United States Court of Appeals for the Third Circuit, applying Pennsylvania strict liability law, held regarding a different product, where a similar argument was made by the manufacturer, “Pennsylvania’s public policy is such that manufacturers of products are encouraged to make them as safe as possible, as soon as possible.” Habecker v. Clark Equipment Co., 36 F.3d 278, 286 (3d Cir.
1994).
When Can Product Liability Cases Include Negligence Lawsuits?
People injured by “unreasonably dangerous” or defective products may also bring negligence lawsuits against product sellers. These are negligence cases where a manufacturer or seller is held liable where they have not exercised reasonable care with regard to the design, manufacture, or sale of their products. Product negligence claims can be and are usually brought by injured people, through counsel, in the same lawsuit as their strict liability and breach of warranty claims.
Over the years, I have represented many people who have been injured by defective and dangerous products, in Pennsylvania, in New Jersey, and in other states, including in California. These have involved a great variety of products, from log splitters to potato chip conveyors. Among the product claims are pneumatic nailers, table saws, conveyor systems, bicycles, and industrial and consumer products.
If you are injured by a product, please contact me. I would like to help you obtain a recovery for your injuries.
About the Author
Arthur Bugay is a Partner in the law firm of Williams Cedar LLC. After obtaining his Bachelor’s and Master’s Degrees in Economics from Temple University, he attended Temple Law School, graduating with honors. Arthur also has two Master of Law degrees from Temple University, one in Taxation and the other in Trial Advocacy. Arthur’s practice areas include Products Liability, Construction Accident litigation, Personal Injury litigation, Negligent Security and Employment law.