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Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

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In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability.

In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.””

As stated in Sullivan (discussing Tincher), a defective condition can be shown either through the “consumer expectations test” (where “the product is in a defective condition if the danger is unknowable and unacceptable to the average or ordinary consumer”) or the “risk-utility test” (where “a product is in a defective condition if a ‘reasonable person’ would conclude the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions”). A plaintiff can establish the defective condition “under either theory, or both in the alternative.”

While the Tincher court overruled Azzarello v. Black Brothers Co., Inc., 480 Pa. 547 (1978), it declined to overrule Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334 (1987) regarding the admissibility of evidence of industry or government standards (known as “compliance evidence”). The Tincher court determined that “common law regarding these considerations should develop within the proper factual contexts against the background of targeted advocacy.”

Turning to the case at hand, in Sullivan, a worker, Michael Sullivan (Sullivan), was injured when the platform of a mobile scaffold collapsed, causing him to fall and become injured. The platform was secured to the frame of the scaffold by two spring-loaded deck pins that the user rotated to cover the platform after it was seated in the scaffold. Sullivan brought a strict liability action against Werner Company and Lowe’s Companies, Inc. (collectively, “Appellants”), “alleging that the mobile scaffold system was defectively designed because it was possible for a user to inadvertently rotate the deck pins off the platform during normal use” causing the platform to collapse.  Sullivan pursued a risk-utility theory to prove that the scaffold was defective.

Prior to trial, Sullivan filed a motion to preclude Appellants from admitting evidence of any industry or government standards at trial pursuant to Lewis. The trial court granted the motion, thereby precluding the introduction of any compliance evidence. At trial, the jury found Appellants liable to Sullivan for $2.5 million in damages.

Appellants filed a motion for post-trial relief, arguing the compliance evidence was improperly excluded. The trial court denied the motion and Appellants appealed to the Pennsylvania Superior Court of Pennsylvania (Superior Court). The Superior Court affirmed the trial court, finding, among other things, that the trial court did not abuse its discretion because a “manufacturer’s compliance with industry or government standards goes to whether it exercised due care but not to whether it defectively designed the product.”

The Supreme Court ultimately held that evidence of compliance with industry standards is inadmissible under the risk-utility test in strict product liability cases. The Supreme Court noted that in Lewis, the court found “the proper focus of a design defect case is on the characteristics of the product and not the conduct of the manufacturer.” In addition, Tincher emphasized that strict liability is a distinct theory from negligence. While there are overlapping elements of strict liability and negligence (and breach of warranty), strict liability imposes a duty “to produce and/or market a product without ‘a defective condition unreasonably dangerous’…different from the duty of due care in negligence.”

As stated by the Supreme Court, “compliance evidence is simply evidence of the ultimate conclusion that a product complies with government regulations or industry standards, i.e., that a government agency or industry would deem the product not defective.” However, this “does not prove any characteristic of the product; rather, it diverts attention from the product’s attributes to both the manufacturer’s conduct and whether a standards-issuing organization would consider the product to be free from defects.” The Supreme Court determined that neither is pertinent to a strict liability, the risk-utility analysis.

Appellants argued (and the dissent noted) that finding compliance evidence inadmissible would place Pennsylvania in a minority position nationwide (the dissent notes that 44 states found mandatory governmental safety standards admissible, and 46 states found voluntary industry safety standards admissible).

The Supreme Court was unpersuaded by this argument, finding that “strict liability remains distinct from negligence in that it imposes liability without fault [and] reflects the ‘social and economic policy of this Commonwealth,’ which is that ‘those who sell a product…are held responsible for damage caused to a consumer by the reasonable use of the product. The risk of injury is placed, therefore, upon the supplier of the products.”

Subrogation professionals must be mindful of the varying evidentiary standards in each jurisdiction—particularly when it comes to strict product liability. In an instance such as this, the loss jurisdiction may fundamentally alter the admissibility of foundational evidence to prove a strict liability case. A thorough understanding of each jurisdiction ensures maximum recovery.

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