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Pennsylvania Products Liability Law and The Consumer Expectation Test of Defect

By: Anapol Weiss

Protecting Consumers From Defective Products

Every day, millions of Pennsylvanians purchase or use products designed, manufactured and distributed by companies yearning for a profit and distributing their goods across this country. Whether the product is as simple as a ladder or a helmet, or as complex as a motor vehicle filled with electronic gadgetry, we all depend upon these consumer goods to meet our expectations, providing the benefit for which they are marketed. And, when a product fails to meet expectations and contributes to injury, our civil justice system rightfully allows the injured victim to bring a lawsuit to recover damages. This Commonwealth’s law offers consumers and product users several legal theories with which they may pursue damages, including principles of negligence and strict liability. The primary difference between these two is that the former judges the manufacturer’s conduct while the latter judges the quality of the product.

Strict liability for product defects is a cause of action which implicates the social and economic policies of this Commonwealth. Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014). Those who sell a product are held responsible for damage caused to a consumer by the reasonable use of the product. The risk of injury is placed, therefore, upon the supplier of products. Tincher, supra. 628 Pa. at 381, 386-387. The duty extends from the product suppliers to the ultimate consumer because

a seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that public has a right to and does expect, in [the] case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that consumer of such products is entitled to the maximum of protection at the hands of someone, and proper persons to afford it are those who market the products. Restatement (2d) of Torts § 402A comment c.

In order for there to be strict liability, the product does not have to be unreasonably dangerous—just defective. Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133. A central issue in a strict liability case is the definition given to the term “defect”. While there are two acceptable definitions—e.g., the CET and the “risk utility test” (RUT)—the preferable standard to judge a consumer product is the CET. Dart v. Wiebe Mfg., Inc., 709 P.2d 876 (Az. 1985). Judging the product’s design in this fashion minimizes the transformation of a strict liability claim into a quasi-negligence claim—using the RUT—which focuses the jury on the reasonableness of the manufacturer’s conduct in putting the product on the market. Id. The RUT asks the jury to decide whether a reasonable manufacturer with knowledge of the danger that has been revealed, subsequent to distribution of the product, would nevertheless still have put the product on the market. Id.

What courts and litigants continue to debate—because of the innumerable variables that arise in each case—is the question “under what circumstances is the presumptive definition of defect (ie., the CET) not appropriate? We answer this question by detailing the value of the CET in allowing juries to resolve these disputes.

The consumer expectation test offers logical guidance to courts and juries in judging defect. The CET applies when the court decides that the product defect claim involves the analysis of a product or a product’s features which ordinary consumers may judge based upon everyday experiences. The question is whether the danger is unknowable and unacceptable to the average or ordinary consumer. While the quantum of proof necessary to establish a prima facie case of design defect under the CET has no clear formula, the Supreme Court of California has suggested that:

If the product is one within the common experience of ordinary consumers, it is generally sufficient if the plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety. Campbell v. General Motors Corp., 649 P.2d 224, 233 (1982).

Employing these criteria, the Court in High v. Pennsy Supply, Inc., 154 A. 2d 341 (Pa. Super. 2017), reversed summary judgment, finding that the lower court erred in deciding that there was insufficient evidence of defect based on the CET. The court disagreed with the trial court’s finding that the caustic properties of wet concrete (e.g., the high pH of concrete) were known generally; instead, the Superior Court ruled that the question whether an ordinary consumer would reasonably anticipate and appreciate the dangerous condition of wet concrete and the attendant risk of injury should have been submitted to the jury.

Product suppliers often argue that the CET is not a workable definition of defect when the product at issue or the allegedly defective feature of a product is too complex for the ordinary juror to have formed any expectations. But, that argument ignores the predicate for the CET. The CET is available to gauge defect when the plaintiff has produced evidence of the objective conditions of the product as to which the jury may employ its own sense of whether it meets ordinary expectations as to its safety under the circumstances presented by the evidence. If the minimum safety of a product is within the common knowledge of lay jurors, then the CET is useable. And, the inherent complexity of the product itself is not controlling on the issue of whether the consumer expectations test applies; a complex product may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers. Romine v. Johnson Controls, Inc., 224 Cal. App. 4th 990, 1001 (2014). And, in cases employing the CET, the “. . . manufacturer may not defend a claim that a product’s design failed to perform as safely as its ordinary consumers would expect by presenting expert evidence of the design’s relative risks and benefits.” Soule, supra, 882 P.2d 298; Bresnahan v. Chrysler Corp., supra, 32 Cal.App.4th at pp. 1569–1570. The consumer expectation test can apply to complex or technical products, even where the use of these products may not be within the common knowledge of jurors. Demara v. The Raymond Corp., 13 Cal. App. 5th 545, 550–51 (2017). When the facts of the case and the design risk of the product are comprehensible to the ordinary consumer, the CET is the appropriate standard. In Demara, supra., the relevant features of the Subject Lift—namely, an unguarded wheel and the placement of a warning light—were not overly technical or so complex as to preclude jurors from using their own judgment to determine (1) whether the ordinary consumers of the Subject Lift would have minimum safety assumptions or expectations where the product was being used in a warehouse with pedestrians, and if so (2) whether the Subject Lift’s design fell below those assumptions or expectations.

While the CET relies upon the ordinary consumers’ view of the product’s design and performance, expert testimony is still admissible to guide the analysis of defect. Addressing this very issue, in Romine v. Johnson Controls, Inc., supra., the Court observed:

. . . the inherent complexity of the product itself is not controlling on the issue of whether the consumer expectations test applies . . . . [and]

. . . [t]he fact that expert testimony was required to establish legal causation for plaintiffs’ injuries does not mean that an ordinary user of the product would be unable to form assumptions about the safety of the products. … In Soule, the court expressly rejected the contention that the consumer expectations test is improper whenever ‘[‘crashworthiness,’ a complex product, or] technical questions of causation are at issue,’ stating that ‘ordinary consumer expectations are not irrelevant simply because expert testimony is required to prove … that a condition of the product as marketed was a “substantial,” and therefore “legal,” cause of injury.’

It is the nature of the product, the identity of the user, the product’s intended use and intended user, and any express or implied representations by a manufacturer or other seller which determine the applicability of the CET. Even when the physical forces at play throughout a collision are not within the average consumer’s knowledge, the fact that causation for a plaintiff’s injuries must be shown through expert testimony does not mean that an ordinary consumer would be unable to form assumptions about the product’s crash-design safety. Romine, supra. 224 Cal. App. 4th at 1004. See also, Bell v. Bayerische Motoren Werke Aktiengesellschaft, 181 Cal. App. 4th 1108, 1128–29 (2010)(Even though the defense witnesses stated that the risk of head or neck injury in the rollover of a BMW convertible was unknown to them, the jury may still employ the CET to decide defect.)

Addressing the application of the CET in General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1221 (Alaska, 1998), the Alaska Supreme Court upheld the jury’s finding that the restraint system was defective, using the consumer expectations test, stating:

We agree with the California Supreme Court that consumers can form reasonable and educated expectations about how certain products should perform. See Soule v. General Motors Corp., 8 Cal.4th 548, 34 Cal.Rptr.2d 607, 882 P.2d 298, 310 (Cal.1994) (stating ‘we cannot accept GM’s insinuation that ordinary consumers lack any legitimate expectations about the minimum safety of the products they use. In particular circumstances, a product’s design may perform so unsafely that the defect is apparent to the common reason, experience, and understanding of its ordinary consumers.’). [Emphasis added.]

Similarly, in Bresnahan v. Chrysler Corp., 32 Cal.App.4th 1559 (1995), aff’d

65 Cal.App.4th 1149 (1998), the court determined that the consumer expectation test was the proper criteria, rather than the risk-utility test of an air bag design and performance because

An ordinary consumer would be capable of forming an expectation, one way or the other, about whether the design of the highly publicized and by now commonplace product of an air-bag equipped automobile satisfied minimal safety expectations…. Id. at 1567, 38 Cal.Rptr.2d at 451.

[And][t]he fact that relatively few consumers may have experienced the deployment of an air bag is not disabling…. What is germane is whether the ‘everyday experience’ of the consumer permits him or her to entertain minimum safety expectations of the product’s performance under foreseeable circumstances. Id. at 1568, 38 Cal.Rptr.2d at 452, citing Soule v. General Motors Corp., 8 Cal.4th 548, 882 P.2d 298 (1994).

The California Court of Appeals later affirmed its earlier holding stating: [Bresnahan, supra, 65 Cal.App.4th 1155, 76 Cal.Rptr.2d 804]:

Chrysler’s renewed contention that the consumer expectations test was unsuited to this case is therefore meritless . . . The elaboration at trial of the purposes and functioning of the air bag reflected the same points that Chrysler had adduced in the prior proceedings, and if anything it provided the jury a more informed basis for applying the consumer expectations test. As the Supreme Court stated in Soule, supra, 8 Cal.4th at p. 569, fn. 6, 34 Cal.Rptr.2d 607, 882 P.2d 298, ‘We simply hold that the consumer expectations test is appropriate only when the jury, fully apprised of the circumstances of the accident or injury, may conclude that the product’s design failed to perform as safely as the product’s ordinary consumers would expect.’ In sum, just as the posture of this appeal does not require further review of the consumer expectations issue, neither does the record reflect that the trial court had any reason to depart from our decision in Bresnahan, supra, 32 Cal.App.4th 1559, 38 Cal.Rptr.2d 446.

While courts have found that the consumer expectation test is inapplicable in situations when a consumer cannot form an expectation as to how safely the product could be made, that proposition does not mean that an ordinary consumer must have an expectation about the specifics of the design of the product before the consumer expectation test can be employed. Rather, the controlling expectation is how safely the product could be made to perform. Brethauer v. General Motors Corp., 211 P.3d 1176, 1183-1184 (Az. App. 2009). “If the consumer expectation test was applicable only when a consumer could form an expectation as to the product’s actual design, the test would almost never apply because the average consumer is typically not familiar with any product’s intricate design details. On the other hand, consumers do form expectations as to how safely products they purchase will perform.” Id. See also, Pannu v. Land Rover North Am., Inc., 191 Cal. App. 4th 1298 (2011) (CET in rollover to judge defect of roof structure and seat belt.) It is for these reasons that the Tincher Court commented [628 Pa. at 402-403] that it is questionable whether strict liability claims premised upon a simple/complex classification is the predicate for choosing the RUT over the CET. And, instead, our Court found that the determination of which definition applies to a given case must be left to the parties, the evidence and the trial court’s discretion.

What has also emerged through precedent in other jurisdictions and a few cases decided in Pennsylvania since Tincher, supra. is that the CET should be used unless the danger is known or the performance of ‘obscure components under complex circumstances’ is outside the ordinary experience of the consumer; then, the defect should be gauged by resort to the risk-utility analysis. DeJesus v. Knight Industries and Associates, Inc., 2016 WL 4702113 (E.D. Pa.) and Wright v. Ryobi Technologies, Inc., 175 F. Supp. 3d 439 (E.D. Pa. 2016) (Finding that the CET was not applicable, but that the RUT was applicable.) Unlike the CET, the RUT has the effect of shifting the burden of proof and requires that the plaintiff prove that the risks of harm posed by the defective product could or would have been reduced or avoided by a reasonably alternative design. As such, the latter test imposes an added burden upon the consumer—which explains why some courts have found the CET the preferable test. Dart, supra.

The Risk Utility Test Is Counter-Intuitive to Gauging The Safety of Consumer Products.

If the RUT is used, it opens the door to a host of evidence about the purported risks and benefits associated with the challenged features of the product and it forces the jury to become experts in deciding upon the safety of the existing design, weighing the competing evidence of the benefits of the product as released versus the benefits of an alternative design. The product is defective per the RUT if a reasonable person (post hoc) would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions. Tincher, supra. 628 Pa. at 397. A parade of evidence to support and defend against this defect test will undoubtedly extend the length of every trial and may result in unnecessary reliance on the conduct of the product supplier. Even when the jury employs the “hindsight test” to determine whether it would be unreasonable for the manufacturer—with knowledge of the products danger—to continue to market it in the same form, the simple fact is that following the RUT often results in the trial of a a negligence claim and loses all semblance of the goals that Tincher intended to preserve under the heading strict products liability.


Every person selected for jury duty is a consumer. Very few jurors are employed as or work as the manufacturer of a product. A primary purpose of this Commonwealth’s common law liability predicated upon strict liability in tort is to protect consumers from harm caused by unsafe/defective products. Thus, whenever possible it makes sense to test the safety or defectiveness of products based upon the consumer expectation test.

This article was written by Larry E. Coben, a shareholder at Anapol Weiss, handles products liability cases at the firm.