Pennsylvania Superior Court Orders New Trial in Tincher

Pennsylvania Superior Court Orders New Trial in Tincher

Pennsylvania Superior Court orders new trial in landmark products liability case: Tincher v. Omega Flex

The Tinchers lived in the central unit of a two-story triplex. In 2007, a fire erupted in their home. Investigators later determined that a nearby lightning strike caused a small puncture in corrugated stainless steel tubing (“CSST”) that transported natural gas to a fireplace located on the first floor of the residence. Heat associated with the melting of the CSST caused by the lightning strike ignited the natural gas and fueled a fire estimated to have burned for over an hour before it was discovered. No one was injured in the fire, but the fire caused significant damage to the Tinchers’ home and personal contents.

The CSST installed in the Tinchers’ home was manufactured and sold by Omega Flex as part of a gas transportation system marketed as the “TracPipe System.” The Tinchers sued Omega Flex, asserting claims premised on theories of strict liability, negligence, and breach of warranty. The strict liability claim was based on section 402A of the American Law Institute’s Restatement (Second) of Torts (1965), which provides:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if 

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

The Tinchers alleged that “the CSST incorporated into the TracPipe System was defective, and unreasonably dangerous to intended users, because its walls are too thin to withstand the effects of lightning.”

Omega Flex moved to have the trial court apply Sections 1 and 2 of the Third Restatement of Torts: Products Liability (1998) and to deliver jury instructions based on the Third Restatement, rather than the Restatement (Second) of Torts. The Tinchers responded that the Second Restatement remained the law of Pennsylvania and the court, therefore, should base its jury instructions on the Second Restatement and the Supreme Court’s decisions under that Restatement, including Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978).

In Azzarello, the Court had held that: it was improper to introduce negligence concepts into a strict liability case; it was for the court, not a jury, to determine whether a product was “unreasonably dangerous” under the Second Restatement; the dispositive question in a case alleging that there was a defective design was whether the product is safe for its intended use; and in such a case, “the seller is the ‘guarantor’ of the product, and a jury could find a defect ‘where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use.’” 

The trial court denied Omega’s motion and instructed the jury under the Second Restatement and Azzarello. The jury returned a verdict in favor of the Tinchers on the products liability claim and in favor of Omega Flex on the negligence claim. The jury awarded the Tinchers more than $950,000 in damages. After adding delay damages, the court entered judgment in excess of one million ($1,000,000.00) dollars. 

Omega’s appeal ultimately reached the Pennsylvania Supreme Court to determine whether the Court should replace the strict liability analysis of Section 402A of the Second Restatement with the analysis of the Third Restatement. The Supreme Court declined to adopt the Third Restatement, overruled Azzarello, and crafted a new test for proving whether a product is in a defective condition under Section 402A of the Second Restatement of Torts:

The plaintiff may prove defective condition by showing either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer, or that (2) a reasonable person would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.

The Supreme Court remanded this case to the trial court for “further action upon post-trial motions,” and permitted the trial court to order the filing of supplemental post-verdict motions or briefs on the issue. The Supreme Court did not specifically grant a new trial.

On remand to the trial court, Omega Flex filed a renewed motion for post-trial relief in which it abandoned its request for entry of judgment notwithstanding the verdict and sought only a new trial on the basis that the jury was instructed on the law under Section 402A of the Second Restatement of Torts and Azarello; and therefore, was improper in accordance with the Supreme Court’s decision . The parties submitted additional briefs, and the trial court held oral argument. Ultimately, the trial court denied Omega Flex’s motion, and it entered judgment against Omega Flex.

In denying Omega Flex’s motion, the trial court recognized that the predominant factual issue in the case was whether the corrugated stainless steel tubing was defective because of its inferior thickness (equal to the thickness of four sheets of paper), rendering it incapable of withstanding perforation by an electrical arc produced by lightning. The court further held that if the jury instruction it gave in this case required a new trial, the Supreme Court would have simply remanded this case for a new trial. Omega appealed and the issue for the Superior Court was whether the trial court erred by denying Omega’s motion for a new trial.

The Superior Court determined that there was a “fundamental” error in the trial court’s decision because the trial court instructed the jury in accordance with Azzarello and its progeny, Omega was entitled to a new trial. More specifically, the court noted that the jury was instructed only on whether TracPipe was defective under Azzarello’s now-overruled design defect test, and not on the new definition of “defect” under Tincher, and thus a new trial was required.