The Force Awakens: Tincher, Section 402A and the Third Restatement in Pennsylvania

50 Pages Posted: 25 Oct 2017 Last revised: 1 Aug 2018

See all articles by Ellen Wertheimer

Ellen Wertheimer

Villanova University School of Law

Mark Rahdert

Temple University - James E. Beasley School of Law

Date Written: November 3, 2017


In Tincher v. Omega Flex (2014), the Pennsylvania Supreme Court reached two important decisions regarding Pennsylvania product liability law. First, it overruled an earlier decision, Azzarello v. Black Brothers, Inc., which had mandated a bifurcated process for assessing product defects that required trial judges first to assess whether a product was potentially unreasonably dangerous before submitting the question of whether it was defective to the jury. Second, it rejected efforts by some Justices, federal courts and the defense bar to have the Court adopt the negligence-oriented principles of the American Law Institute’s Third Restatement of Torts: Product Liability. Instead, the Court reaffirmed Pennsylvania’s commitment to the strict product liability principles set in Restatement (Second) Section 402A. This article assesses the implications of the Tincher decision for the future development of product liability law in Pennsylvania and elsewhere. It explains the foundational principles of strict product liability that the decision affirms, discusses the Court’s establishment of a composite consumer expectation and risk-utility test for determining defects in product design, defends the Court’s commitment to modest and incremental common-law adjudication, and discusses the development of jury charges that are faithful to Tincher’s approach. The article also takes issue with attempts by the product liability defense bar to push post-Tincher adjudication toward a negligence-based framework that is inconsistent with the Court’s reaffirmation in Tincher of a doctrine of strict product liability.

Note: This article will be published in Volume 27 of the Widener Law Journal. It is currently in draft form and should not be quoted without the permission of its authors.

Keywords: Torts, Product Liability, Insurance, Consumer Protection, Strict Liability, Negligence, Pennsylvania Law, Third Restatement of Product Liability, Restatement (Second) Section 402A, Product Defect, Jury Instructions,

Suggested Citation

Wertheimer, Ellen and Rahdert, Mark, The Force Awakens: Tincher, Section 402A and the Third Restatement in Pennsylvania (November 3, 2017). Temple University Legal Studies Research Paper No. 2017-29, Widener Commonwealth Law Review, Vol. 27, Issue 2, 2018, Available at SSRN:

Ellen Wertheimer (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States
610-519-7064 (Phone)

Mark Rahdert

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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