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Tincher v. Omega Flex - 628 Pa. 296, 104 A.3d 328 (2014)


A duality in the strict liability cause of action is evident in the expectation that all sellers in the distributive chain are legally responsible for the product in strict liability. The wholesaler, the jobber, and the retailer normally are not negligent. They are under no duty to test or inspect the chattel, and they do not do so; and when it comes to them in a sealed container, examination becomes impossible without destroying marketability. Thus, in placing a product on the market, a manufacturer acts to design (and manufacture) the product and, along with other distributors, to sell the product, including making the product attractive for sale by making implicit representations of the product's safety. A manufacturer, in designing the product, engages in a risk-utility calculus; the policy-driven post hoc risk-utility calculus necessary to determine whether the design choice thus made may justly require compensation for injury explains the relevance of that standard of proof in strict liability. Meanwhile, a seller of the product — whether the manufacturer or the supplier in the chain of distribution — implicitly represents by placing a product on the market that the product is not in a defective condition unreasonably dangerous.


After the fire in their residence , plaintiffs Terence and Judith Tincher, made a claim with their insurer United Services Automobile Association (USAA). Plaintiffs filed a complaint against defendant Omega Flex in the Chester County Court of Common Pleas. Omega Flex had manufactured and installed the corrugated stainless steel tubing (CSST) transporting natural gas to a fireplace located on the first floor of the residence, which had been determined as the source of the fire. USAA prosecuted the claims in the name of their insureds, the Tinchers, 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 claims premised upon theories of strict liability, negligence, and breach of warranty. Tinchers' complaint relies upon the theory of strict liability articulated in Section 402A of the Second Restatement of Torts, but as followed and construed in Pennsylvania. The Tinchers alleged that Omega Flex is liable for damages to their home caused by the placement on the market and sale of the natural gas system. According to the Tinchers, the CSST incorporated into the TracPipe System is defective, and unreasonably dangerous


Was defendant entitled to relief, in the form of judgment notwithstanding the verdict or a new trial, premised upon its argument that the jury should have been instructed on the law represented by the Third Restatement?




Because attempting to insulate juries from negligence concepts in strict products liability cases failed to reflect practical realities and did not sufficiently allow for the common law to develop incrementally, the court overruled Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978). To avoid articulating common law principles in overly limited terms, the court declined to adopt the formulation of the strict products liability cause of action set forth in the Third Restatement of Torts.  A composite standard was adopted requiring proof, in the alternative, either of the ordinary consumer's expectations or of the risk-utility of a product to establish that the product was in a defective condition, which usually was a question of fact for the jury; [4] Accordingly, a remand was appropriate to determine whether a manufacturer was entitled to post-trial relief.

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