Tincher v. Omega Flex, Inc., J-80-2013

CourtUnited States State Supreme Court of Pennsylvania
Decision Date19 November 2014
Docket NumberJ-80-2013,No. 17 MAP 2013,17 MAP 2013

OMEGA FLEX, INC., Appellant

No. 17 MAP 2013


ARGUED: October 15, 2013
November 19, 2014


Appeal from the Order of the Superior Court, Dated September 25, 2012, at No. 1472 EDA 2011, Affirming the Judgment of the Chester County Court of Common Pleas, Civil Division, Dated June 1, 2011, at No. 2008-00974-CA



Omega Flex, Inc., appeals the decision of the Superior Court to affirm the judgment on the verdict entered in favor of Terrence D. Tincher and Judith R. Tincher (the "Tinchers") by the Chester County Court of Common Pleas, Civil Division. We reverse the Superior Court decision in part, upon reasoning different from that articulated by the courts below, and we remand to the trial court for further action upon Omega Flex's post-trial motions, consistent with the principles elucidated in this Opinion. We hold that:

1. This Court's decision in Azzarello v. Black Brothers Company, 391 A.2d 1020 (Pa. 1978) is hereby overruled.

2. Having considered the common law of Pennsylvania, the provenance of the strict product liability cause of action, the interests and the policy which the strict liability cause of

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action vindicates, and alternative standards of proof utilized in sister jurisdictions, we conclude that a plaintiff pursuing a cause upon a theory of strict liability in tort must prove that the product is in a "defective condition." 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 burden of production and persuasion is by a preponderance of the evidence.

3. Whether a product is in a defective condition is a question of fact ordinarily submitted for determination to the finder of fact; the question is removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue. Thus, the trial court is relegated to its traditional role of determining issues of law, e.g., on dispositive motions, and articulating the law for the jury, premised upon the governing legal theory, the facts adduced at trial and relevant advocacy by the parties.

4. To the extent relevant here, we decline to adopt the Restatement (Third) of Torts: Products Liability §§ 1 et seq., albeit appreciation of certain principles contained in that Restatement has certainly informed our consideration of the proper approach to strict liability in Pennsylvania in the post-Azzarello paradigm.

I. Background

Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at the home of the Tinchers in Downingtown, Pennsylvania. The residence was the central unit of a two-story triplex built in 1998-99, and purchased by the Tinchers in 2005. The fire was eventually extinguished and no persons were harmed. Subsequently, investigators concluded that a lightning strike near the Tinchers' home caused a small puncture in the corrugated stainless steel tubing ("CSST") transporting natural gas to a fireplace located on the first floor of the residence. The CSST installed

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in the Tinchers' home was manufactured and sold by Omega Flex as part of a gas transportations system marketed as the TracPipe System. The heat attending 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. The fire caused significant damage to the Tinchers' home and belongings.

After the fire, the Tinchers reported the incident to their insurer, United Services Automobile Association ("USAA"). USAA compensated the Tinchers for their loss up to the limit of their policy and received an assignment of liability claims. The Tinchers suffered an additional out-of-pocket loss because a portion of their claimed loss exceeded the limits of the USAA policy.

In January 2008, the Tinchers filed a complaint against Omega Flex in the Chester County Court of Common Pleas.1 USAA prosecuted the claims in the name of the Tinchers to obtain reimbursement of the insurance proceeds payout, but the Tinchers retained an interest in the litigation to recover the losses exceeding their insurance coverage. The Tinchers asserted claims premised upon theories of strict liability, negligence, and breach of warranty.

In relevant part, the Tinchers' complaint relies upon the theory of strict liability articulated in Section 402A of the Second Restatement of Torts, but as followed and construed in Pennsylvania. Complaint, 3/18/2008, at ¶¶ 19-25 (citing RESTATEMENT (2D) OF TORTS § 402A). The Tinchers alleged that Omega Flex is liable for damages to their home caused by the placement on the market and sale of the TracPipe System.

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According to the Tinchers, the CSST incorporated into the TracPipe System is defective, and unreasonably dangerous to intended users, because its walls are too thin to withstand the effects of lightning. The Tinchers requested compensatory damages, interest, fees, and costs of litigation. Omega Flex answered the complaint denying the Tinchers' allegations. The matter was assigned to the Honorable Ronald C. Nagle, Senior Judge of the Chester County Court of Common Pleas. The parties proceeded with discovery and the filing of dispositive motions, which the trial court denied.

In September 2010, in anticipation of trial, Omega Flex filed a motion in limine requesting the application of Sections 1 and 2 of the Third Restatement of Torts to the Tinchers' strict liability claim. Omega Flex also proposed jury instructions and findings of fact consistent with the provisions of the Third Restatement. The Tinchers opposed Omega Flex's motion in limine and offered proposed jury instructions and findings of fact consistent with the Second Restatement and Azzarello, supra. The trial court did not resolve Omega Flex's motion before trial. See Notes of Testimony, 8/12/2011, at 17-22.

In October 2010, the parties proceeded to trial before a jury. At trial, the Tinchers offered evidence regarding the events of June 20, 2007, the subsequent investigation into the cause of the fire, the losses sustained by the Tinchers, and USAA's process of adjusting the insurance claim. The parties generally agreed that lightning had caused the fire, although they disagreed as to the sequence of events or the cause of ignition in the area of the fireplace. The Tinchers offered evidence that lightning transferred an electrical charge to parts of the home, including the TracPipe System; the electrical current then sought ground and created different electrical charges in the various metal components of the structure. The Tinchers' expert witnesses testified that a flow of energy between a differently charged TracPipe and another metal component of the

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home caused an electrical arc, and the accompanying heat punctured the CSST and ignited the natural gas that the CSST transported. According to the Tinchers' expert, the perforation in the corrugated stainless steel tubing from the Tinchers' home was "characteristic of a lightning strike, not anything else." By comparison, Omega Flex's witnesses testified that lightning measured near the Tinchers' home on the night of the fire did not carry sufficient energy to puncture the CSST. According to these witnesses, once lightning entered the house, lightning-related high voltages -- although with low energy -- broke down the insulation on electrical wires and, if the circuit breakers did not interrupt the current, the electrical current caused the fire. Omega Flex also responded that the conditions of the Tinchers' home after the fire and after the investigation, during which part of the evidence had been removed from its original location, made it impossible to confirm the Tinchers' theory. Finally, Omega Flex offered evidence that an attempt had been made to bond the TracPipe System to the cold water pipe at the Tinchers' residence which, if successful, would have prevented the electrical arc -- and the resulting fire -- from occurring. Witnesses testified that, after the fire, a bonding clamp had been found connected to the CSST and near but disconnected from the cold water pipe. The parties offered competing testimony as to whether the clamp had been attached to the cold water pipe before the fire.

Relevant to their strict liability theory, the Tinchers offered testimony regarding a defect in the TracPipe from experts in electrical engineering and metallurgy, electrical arc physics, and material science -- Mr. Mark Goodson and Dr. Thomas Eager, respectively. These experts opined that CSST is inherently defective because its wall is 1/100 of an inch thick -- the width of four sheets of paper -- and, as a result, the probability is "very high," "close to a hundred percent," that a lightning-generated current will perforate it. By comparison, an alternative natural gas conduit made of black iron

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pipe is ten times thicker for a half-inch diameter pipe similar to the CSST present in the Tincher home. According to the witnesses, CSST withstands the transfer of ten times less energy than black iron pipe and, given the same energy, the amount of time to puncture CSST is 1/100 the amount of time required to puncture black iron pipe. Experts estimated that an electric arc is fifty thousand to a million times more likely to perforate CSST than black iron pipe.

The witnesses acknowledged that the energy transferred by any particular lightning strike is difficult to predict and cannot be replicated in a lab, but concluded that the probability was high that CSST would be punctured by occurrences within expected ranges of electrical current. Such results, according to...

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