On June 4, 2013 the NAM filed an amicus curiae brief urging the Pennsylvania Supreme Court to adopt the modern product liability standards followed by a majority of state courts. The court should move from strict liability to negligence-based standards in cases involving design defects and failure-to-warn claims. Pennsylvania's current approach is highly unfair to defendants and results in a confusing and contradictory body of law, which the modern approach reconciles.
In particular, Pennsylvania’s product liability law has become confused and unworkable following attempts to separate strict liability and negligence concepts. Over time, the state courts have tried to carve out particular types of cases from strict liability principles, but the result is confusing to litigants. By following the mainstream and adopting the Restatement Third, Torts: Product Liability (1998), Pennsylvania would create a more fair and predictable system. We also argued that Pennsylvania should apply these principles to all pending cases.
The issue arose in a case brought by a homeowner who claimed that corrugated stainless steel tubing used for a gas supply line was too thin, resulting in a fire and destruction of the house when lightning struck.
On 11/19/2014, the court issued a lengthy opinion announcing that a plaintiff pursuing a cause of action based on strict liability must prove that the product is in a "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 burden of production and persuasion is by a preponderance of the evidence." The court declined to adopt the Restatement (Third) of Torts with a comment that "appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania . . . ."