risk-utility analysis in Pennsylvania

2008In this regard, the court engaged in a risk-utility analysis very similar to that required of courts as a threshold determination in the strict product liability setting, compare Berrier, 413 F.Supp.2d at 443-48 , with Fitzpatrick v. Madonna, 424 Pa.Super. 473 , 623 A.2d 322, 324-28 (1993); held that the plaintiffs had failed to adduce evidence of a feasible safer design alternative, see id. at 448; 1 and concluded that imposing a duty to incorporate the proposed alternative design “would transform [the defendant] into an insurer of its products in violation of Pennsylvania law.” Id. (citing A

2008In this regard, the court engaged in a risk-utility analysis very similar to that required of courts as a threshold determination in the strict product liability setting, compare Berrier, 413 F.Supp.2d at 443-48 , with Fitzpatrick v. Madonna, 424 Pa.Super. 473 , 623 A.2d 322, 324-28 (1993); held that the plaintiffs had failed to adduce evidence of a feasible safer design alternative, see id. at 448; 1 and concluded that imposing a duty to incorporate the proposed alternative design “would transform [the defendant] into an insurer of its products in violation of Pennsylvania law.” Id. (citing A

2026Did the trial court err and abuse its discretion in bifurcating trial as to the issues of liability and damages, where the evidence concerning the specific nature, severity, and extent of [Jerome]’s injuries and treatment resulting from his contact with the mower’s blade was fundamentally relevant to and intertwined with the jury’s determination of design defect under the risk-utility test and consumer expectations test as set forth in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), and as evidence to support the disputed issue that Plaintiff’s injuries were caused when his foot slid und

2025See Davis v. Volkswagen Group of America, Inc., 2019 WL 3252054 *1, *12 (Pa. Super. 2019) (non-precedential decision) 8 (explaining that, in a crashworthiness case, the plaintiff attempted to prove that the vehicle’s design was defective under the consumer expectation test and the defendant presented testimony that the vehicle’s design was not defective under the risk-utility test); see also Tincher, 104 A.3d at 427 (holding that a plaintiff may choose to pursue recovery at trial under either the consumer ____________________________________________ 8 See Pa.R.A.P. 126(b) (unpublished, non-pre

2008Co., 480 Pa. 547 , 391 A.2d 1020, 1024 (1978)). 2 Ultimately, if the district court is correct in its risk-utility assessment and in its conclusion that the plaintiffs failed to establish a feasible alternative safer design, the rationale should serve as a complete disposition of both the negligence and strict-liability claims, and there should be no need for the Third Circuit to address the intended-use doctrine.

2001“The initial issue, therefore, is a question of law whose resolution depends upon social policy.” Fitzpatrick, 623 A.2d at 324 , citing, Azzarello, 391 A.2d at 1026 ; see also, Surace v. Caterpillar, Inc., 111 F.3d 1039 , 1049 n. 10 (3rd Cir.Pa.1997) (trial court’s duty is to determine “whether the evidence is sufficient, for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous, not whether the evidence creates a material fact for the jury”) (emphasis added).

2023Barker v. Lull Engineering Co., 573 P.2d 443, 454 (Cal. 1978). 6 The suggested Pennsylvania jury instructions provides in relevant part: … To decide whether the product is defective under [the risk-utility test] you may consider the following factors: (1) the seriousness of the potential harm resulting from the use of the product; (2) the likelihood that the harm would occur; (3) the feasibility of an alternative safer design at the time of the manufacture or sale of the product; (4) the cost of an alternative design; and/or (5) the disadvantages of an alternative design.

2018See Barker v. Lull Eng'g Co. , 20 Cal.3d 413 , 143 Cal.Rptr. 225 , 573 P.2d 443 , 445 (1978).

2023Further, Sullivan asserts that Appellants incorrectly portray Tincher as stating that the risk-utility test “has all the earmarks of determining negligence,” where that was the Tincher Court’s parenthetical description of the Supreme Court of Illinois’ decision in Blue v. Environmental Engineering, Inc., 828 N.E.2d 1128, 1140-41 (Ill. 2005), and not a statement of Pennsylvania law.

2014See Blue v. Envt’l Eng’g, Inc., 215 Ill.2d 78 , 293 Ill.Dec. 630 , 828 N.E.2d 1128, 1140-41 (2005) (“[I]t has been observed that the kind of hindsight analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in the product’s design, has all the earmarks of determining negligence.”); see also U.S. v. Carroll Towing Co., 159 F.2d at 174 (Judge Learned Hand’s formula).

2004See Miller v. Brown & Williamson Tobacco Corp. 679 F.Supp. 485 (E.D.Pa.1988) (under Pennsylvania law the risk-utility theory of liability was inapplicable and, therefore, an action against a cigarette manufacturer for death caused by cigarette smoking on grounds that cigarettes gave no benefit to society but imposed great risk could not be maintained); Gunsalus v. Celotex Corp., 674 F.Supp. 1149 (E.D.Pa.1987) (tobacco was not per se a “defective” product merely because it caused or increased the risk of lung cancer and other life threatening diseases). ¶ 15 As we noted earlier, Dr. Feingold’s

1990In Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485 (E.D.Pa.1988), the court held that under Pennsylvania law the risk-utility theory of liability was inapplicable; and, therefore, an action against a cigarette manufacturer for death caused by cigarette smoking on grounds that cigarettes gave no benefit to society but imposed great risk could not be maintained.

2003Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1425 (E.D.Tenn.1991) (holding, under Tennessee law, that a disposable lighter is not unreasonably dangerous because the "ordinary adult consumer" understood and appreciated the danger posed by children's use of lighters). [17] See, e.g., Griggs, 981 F.2d at 1439 (applying, under Pennsylvania negligence law, a risk-utility analysis and holding that a viable design liability claim could result from a manufacturer's failure to make a lighter child resistant); Hittle, 166 F.Supp.2d at 159 (following Griggs in relation to an "Aim `N Flame" lighter)

2003See, e.g., Griggs, 981 F.2d at 1439 (applying, under Pennsylvania negligence law, a risk-utility analysis and holding that a viable design liability claim could result from a manufacturer's failure to make a lighter child resistant); Hittle, 166 F.Supp.2d at 159 (following Griggs in relation to an "Aim 'N Flame” lighter); Price, 702 A.2d at 333 (opining, in a disposable lighter case, that "barring a determination that the utility of the product completely outweighs the risk associated with its use or that the risk of harm is so remote as to be negligible, the legal representative of a minor ch

1990A risk-utility analysis was articulated and espoused by the Dissenting Opinion in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 71, 485 A.2d 408, 434 (1984).

1990A risk-utility analysis was articulated and espoused by the Dissenting Opinion in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 71, 485 A.2d 408, 434 (1984).

2025Sullivan, 306 A.3d at 861 (cleaned up).

2021Plaintiff's claim is without merit, as this Court’s instructions were properly guided by the parameters set forth in the Restatement (Second) of Torts § 402A and our Supreme Court’s decision in Tincher v, Omega Flex, Inc.®’ Scction 402A of the Second Restatement provides: (1) 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 8 Wilkerson v. Alli

2021Plaintiff's claim is without merit, as this Court’s instructions were properly guided by the parameters set forth in the Restatement (Second) of Torts § 402A and our Supreme Court’s decision in Tincher v, Omega Flex, Inc.®’ Scction 402A of the Second Restatement provides: (1) 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 8 Wilkerson v. Alli

2021Plaintiff's claim is without merit, as this Court’s instructions were properly guided by the parameters set forth in the Restatement (Second) of Torts § 402A and our Supreme Court’s decision in Tincher v, Omega Flex, Inc.®’ Scction 402A of the Second Restatement provides: (1) 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 8 Wilkerson v. Alli

2021Plaintiff's claim is without merit, as this Court’s instructions were properly guided by the parameters set forth in the Restatement (Second) of Torts § 402A and our Supreme Court’s decision in Tincher v, Omega Flex, Inc.®’ Scction 402A of the Second Restatement provides: (1) 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 8 Wilkerson v. Alli

2021Plaintiff's claim is without merit, as this Court’s instructions were properly guided by the parameters set forth in the Restatement (Second) of Torts § 402A and our Supreme Court’s decision in Tincher v, Omega Flex, Inc.®’ Scction 402A of the Second Restatement provides: (1) 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 8 Wilkerson v. Alli

2019See Hardy, supra. Given the relatively recent changes to products liability law in Pennsylvania, as well as the complexity of this area of the law, more than a generic, meager cite to Tincher is warranted. - 16 -

2017Specifically, the Court quoted then-Justice Saylor: “In application to design defect claims, the concurrence [... ] observed, courts in Pennsylvania recognized ‘an integral role for risk-utility (or cost-benefit) balancing, derived from negligence theory.’ ” Id. at 371 (quoting Phillips v. Cricket Lighters, 576 Pa. 644 , 841 A.2d 1000 (2003) (OAJC) (Saylor, J., concurring)); see also id. at 373-74 (quoting Bugosh v. I.U.

2017Specifically, the Court quoted then-Justice Saylor: “In application to design defect claims, the concurrence [... ] observed, courts in Pennsylvania recognized ‘an integral role for risk-utility (or cost-benefit) balancing, derived from negligence theory.’ ” Id. at 371 (quoting Phillips v. Cricket Lighters, 576 Pa. 644 , 841 A.2d 1000 (2003) (OAJC) (Saylor, J., concurring)); see also id. at 373-74 (quoting Bugosh v. I.U.

2014See Blue v. Envt’l Eng’g, Inc., 215 Ill.2d 78 , 293 Ill.Dec. 630 , 828 N.E.2d 1128, 1140-41 (2005) (“[I]t has been observed that the kind of hindsight analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in the product’s design, has all the earmarks of determining negligence.”); see also U.S. v. Carroll Towing Co., 159 F.2d at 174 (Judge Learned Hand’s formula).

2014See Blue v. Envt’l Eng’g, Inc., 215 Ill.2d 78 , 293 Ill.Dec. 630 , 828 N.E.2d 1128, 1140-41 (2005) (“[I]t has been observed that the kind of hindsight analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in the product’s design, has all the earmarks of determining negligence.”); see also U.S. v. Carroll Towing Co., 159 F.2d at 174 (Judge Learned Hand’s formula).

2014See Blue v. Envt’l Eng’g, Inc., 828 N.E.2d 1128, 1140-41 (Ill. 2005) (“[I]t has been observed that the kind of hindsight analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in the product's design, has all the earmarks of determining negligence.”); see also U.S. v. Carroll Towing Co., 159 F.2d at 174 (Judge Learned Hand’s formula).

2014See Blue v. Envt’l Eng’g, Inc., 828 N.E.2d 1128, 1140-41 (Ill. 2005) (“[I]t has been observed that the kind of hindsight analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in the product's design, has all the earmarks of determining negligence.”); see also U.S. v. Carroll Towing Co., 159 F.2d at 174 (Judge Learned Hand’s formula).

2010Ladner , at 314. [8] See Johansen, 607 A.2d at 645 (danger jury might improperly focus on plaintiff's behavior in deciding the issue of product defect was "especially acute" because throughout trial defendants emphasized plaintiff's lack of due care in using the product). [9] The trial court expressed the identical argument in defense of its jury instructions.

2003Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1425 (E.D.Tenn.1991) (holding, under Tennessee law, that a disposable lighter is not unreasonably dangerous because the "ordinary adult consumer" understood and appreciated the danger posed by children's use of lighters). [17] See, e.g., Griggs, 981 F.2d at 1439 (applying, under Pennsylvania negligence law, a risk-utility analysis and holding that a viable design liability claim could result from a manufacturer's failure to make a lighter child resistant); Hittle, 166 F.Supp.2d at 159 (following Griggs in relation to an "Aim `N Flame" lighter)

2003See, e.g., Griggs, 981 F.2d at 1439 (applying, under Pennsylvania negligence law, a risk-utility analysis and holding that a viable design liability claim could result from a manufacturer's failure to make a lighter child resistant); Hittle, 166 F.Supp.2d at 159 (following Griggs in relation to an "Aim 'N Flame” lighter); Price, 702 A.2d at 333 (opining, in a disposable lighter case, that "barring a determination that the utility of the product completely outweighs the risk associated with its use or that the risk of harm is so remote as to be negligible, the legal representative of a minor ch

2003Curtis v. Universal Match Corp., 778 F.Supp. 1421, 1425 (E.D.Tenn.1991) (holding, under Tennessee law, that a disposable lighter is not unreasonably dangerous because the "ordinary adult consumer" understood and appreciated the danger posed by children's use of lighters). [17] See, e.g., Griggs, 981 F.2d at 1439 (applying, under Pennsylvania negligence law, a risk-utility analysis and holding that a viable design liability claim could result from a manufacturer's failure to make a lighter child resistant); Hittle, 166 F.Supp.2d at 159 (following Griggs in relation to an "Aim `N Flame" lighter)

2003See, e.g., Griggs, 981 F.2d at 1439 (applying, under Pennsylvania negligence law, a risk-utility analysis and holding that a viable design liability claim could result from a manufacturer's failure to make a lighter child resistant); Hittle, 166 F.Supp.2d at 159 (following Griggs in relation to an "Aim 'N Flame” lighter); Price, 702 A.2d at 333 (opining, in a disposable lighter case, that "barring a determination that the utility of the product completely outweighs the risk associated with its use or that the risk of harm is so remote as to be negligible, the legal representative of a minor ch