Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend.
In Sullivan v. Werner Co., No. 3086 EDA 2019, 2021 Pa. Super. LEXIS 210, an appellate panel of the Superior Court reviewed the lower court’s decision to exclude evidence of industry standards and of the plaintiff’s negligence in a trial that resulted in a $2.5 million verdict for the plaintiff. Upholding the decision of the lower court, the court found that the proffered evidence was within the discretion of the court to exclude.
In Sullivan, Michael Sullivan (Sullivan) was working as a union carpenter at a renovation project for a local school. He and his apprentice were installing exterior sheathing to the outdoor walls. In order to install the sheathing, Sullivan had to use a scaffold. He put together a new SRS-72 scaffold manufactured by Werner Company (Werner) that his foreman bought at Lowe’s Companies, Inc. (Lowe’s) and used the scaffold during the course of his work. While on the scaffold, Sullivan fell through and crashed to the ground. He suffered permanent injuries as a result of the incident.
Sullivan and his wife, Melissa Sullivan, brought a strict products liability action against Werner and Lowe’s (herein after referred to collectively as Manufacturer). Determining that a design defect caused the accident, the jury awarded Sullivan $2.5 million in damages. Manufacturer appealed, alleging, among other things, that the lower court improperly disallowed evidence that it met industry standards in its design and that Sullivan’s negligent actions could constitute the sole cause of the loss.
In support of its industry standard argument, Manufacturer claimed that it should be allowed to have its expert testify that the “inverted L-shaped design of the deck pins” was the most common design in the industry. The court did not find Manufacturer’s argument persuasive, holding that the much discussed Tincher decision (see Tincher vs. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014)), a case that loosened some restrictions in product liability cases, did not overturn the prohibition against industry and government standards being introduced as evidence in strict liability cases. Thus, the exclusion of such evidence by the trial judge was not improper.
The court also did not find persuasive Manufacturer’s argument that evidence of Sullivan’s potential negligence should have been allowed. Although the court conceded that there are “limited exceptions” addressing when a plaintiff’s conduct may be allowed as evidence of the plaintiff’s sole negligence, including voluntary assumption of the risk, product misuse and highly reckless conduct, Sullivan’s actions in this case did not fall into those exceptions. Here, Manufacturer claimed that Sullivan improperly assembled the product at issue. However, since such evidence is not allowed when the alleged negligence involves the product itself, the trial court properly excluded it.
Both rulings in this case are important because they help calm the choppy waters of strict liability for plaintiffs in Pennsylvania. As the court notes, “a product could be defective yet still widespread in an industry.” Thus, allowing a jury to consider evidence of industry standards as a defense to a design defect would be counterintuitive to the essence of strict products liability. Likewise, although a plaintiff’s sole negligence can still be used as a defense, because such evidence is not admissible when it involves the product itself, manufacturers cannot avoid the ramifications of a defective design simply because the plaintiff misused it. Considering these two defense prohibitions is important when evaluating the strength of a strict liability case in Pennsylvania and the potential defenses that can be raised in litigation.
Editor’s Note: On June 8, 2022, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal to decide whether it was an error law to prevent the jury from considering the product’s compliance with pertinent industry and governmental safety standards. See Sullivan v. Werner Co., 2022 Pa. LEXIS 802, 279 A.3d 1183.