Argument.

• Author: Ricci, William I.
• Position: Proof of negligence over injuries caused by unsafe products

Illogical, and inconsistently applied, Pennsylvania product liability law has strayed far from its original purpose: to allow recovery for injuries caused by unsafe products without requiring proof of negligence on the part of the products' suppliers. Fault for the departure lies not in the original purpose, but in the fundamental impossibility of segregating a manufacturer's conduct in designing a product from the design itself.

This and other Pennsylvania courts have made numerous attempts to remedy the fundamental disconnect. For the most part, those efforts have imposed negligence-type burdens on manufacturers while depriving them of negligence-type defenses. Compare Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997) (strict liability imposed for "foreseeable" alterations), with, Kimco Development Corp. v. MichaelD's Carpet Outlet, 536 Pa. 1, 671 A.2d 603 (1993) (rejecting comparative negligence as a defense). In so doing, the courts have not only imposed unfair burdens, but have also revealed Azzarello's1 fundamental departure from sound jurisprudence.

The lengths required to rationalize Azzarello have on occasion strained credulity. By definition, an accident is "(a)n unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated." Bryan A. Gamer, Black's Law Dictionary 15 (8th ed. 2004) (emphasis added). But a manufacturer of motor vehicles "must include accidents as intended uses of its product and design accordingly." Gaudio v. Ford Motor Company, 976 A.2d 524, 532 (Pa. Super. 2009), appeal denied, 989 A.2d 917 (Pa. 2010) (emphasis added). Simply stated, the fallacy of trying to divorce the design process from the design has led in the extreme to unacceptable gaps in elementary logic.

The absence of logic has been pervasive, infecting even the first judicial call for reform. A majority of this Court agreed that under existing law a product can be both safe and unsafe, safe when its design is evaluated by application of Restatement Second principles, unsafe when the identical design is evaluated by application of negligence principles. Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003).

And there can be no denying an inconsistency in approach. The Court has admitted to it. Phillips, 576 Pa. at 655-56, 841 A.2d at 1006-1007 ("we have muddied the waters at times with the careless use of negligence terms in the strict liability arena"). The law has suffered from it. "This Commonwealth's products liability jurisprudence is far too confusing for another opinion to be laid down that rhetorically eschews negligence concepts in the strict liability arena, while the Court nevertheless continues to abide and/or endorse their actual use in the liability assessment." Id., 576 Pa. at 670-71, 841 A.2d at 1016 (citation omitted) (Saylor, J., concurring).

Nearly ten years have passed since Justice Saylor offered that assessment, and all that can be said of Pennsylvania products law ten years later is that it is no less confusing now than it was then. Perhaps for want of opportunity, the reform called for in the Phillips concurrence remains a promise unfulfilled. This appeal presents the needed opportunity.

It also presents a limited set of options. In framing the issue the Court has left itself just two. The first is for the Court to adopt an entirely new approach, and the only new approach on the table is that of the Third Restatement. The second is for the Court to maintain the status quo, thereby announcing that in this Commonwealth a confusing state of affairs is an acceptable state of affairs. The choice should not be a difficult one. (2)

The source of the confusion: Azzarello v. Black Brothers

A lengthy discussion of Azzarello is hardly necessary. It has been repeatedly criticized, and the Court knows it has been repeatedly criticized. See, e.g., James A. Henderson, Jr. & Aaron D. Twerski, Achieving Consensus on Defective Product Design, 83 Cornell L.Rev. 867, 897 (1998) (Pennsylvania has "developed a unique and, at times, almost unfathomable approach"), quoted in Phillips, 576 Pa. at 671, 841 A.2d at 1016 (Saylor, J. concurring); Comment, Returning the "Balance " to Design Defect Litigation in Pennsylvania: A Critique of Azzarello v. Black Brothers Company, 89 DICK. L.Rev. 149, 172-73 (1984) (Azzarello created an "unacceptable and unnecessary level of confusion"); John W. Wade, On the Effect in Product Liability of Knowledge Unavailable Prior to Marketing, 58 N.Y.U. L.Rev. 734, 744 (1983) (describing the Azzarello test as one "likely to confuse trial court and jury").

Commentators are not alone in their less than flattering assessment. See, e.g,. Finn v. G.D. Searle & Co., 35 Cal.3d 691, 200 Cal. Rptr. 870, 677 P.2d 443, 456 (Cal. 1978) (characterizing the Azzarello formulation as "extremely vague and difficult to follow"). Members of this Court too have recognized that Azzarello does not represent the Court's finest work. In a statement joined by Chief Justice Castille, Justice Saylor needed just four words to express what every products liability practitioner had known for 30 very long years. Azzarello, Justice Saylor said, "was not well reasoned." Bugosh v. I.U. North America, Inc., 601 Pa. 277, 295, 971 A.2d 1228, 1239 (2009) (Saylor, J., dissenting).

That not well reasoned decision has had two major effects. Its holding, that terms characteristic of...