June 17, 2009
Written By Attorneys John M. Clark and Erin E. Nulty
Note: This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.
In Berrier v. Simplicity Mfg., Inc., --- F.3d ----, No. 05-3621 (3rd Cir. (Pa.) April 21, 2009), the Third Circuit Court of Appeals addressed an issue that had previously remained undecided by the Pennsylvania Supreme Court; namely, whether an injured bystander can bring a products liability claim against a manufacturer for injuries that occur while an "intended user" is using the product for its "intended use." Under existing Pennsylvania law, it appeared that the "intended use" doctrine restricted strict liability actions only to those injured while using the product. Without the benefit of a previous ruling from the Pennsylvania Supreme Court on this specific issue, the Court of Appeals was placed in the position of applying Pennsylvania substantive law and predicting how the Supreme Court would decide this case. In so doing, the Court of Appeals determined that the Supreme Court would adopt the Restatement (Third) of Torts §§ 1 and 2-which incorporates negligence concepts-and allow injured bystanders to bring a cause of action in strict liability against manufacturers when injured while a product was being used for its intended use.
In reaching its prediction of how the Pennsylvania Supreme Court would rule, the Third Circuit reviewed the precedents of modern Pennsylvania product liability law. Under this line of cases, a product is deemed defective only if it leaves the control of the supplier lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for its intended use. This "intended use" doctrine is a strict liability standard that operates to preclude recovery when the person injured was not an "intended user" of the product causing the injury.
As a doctrine rooted in strict liability, the focus is on the product itself and does not include any reference to negligence or foreseeability. The Berrier opinion by the Court of Appeals addresses the distinction the Pennsylvania Supreme Court has drawn between negligence actions and strict liability actions, and the fact that the Court has often stated that "negligence concepts have no place in a case based on strict liability." Berrier, No. 05-3621, slip op. at 33 (citations omitted).
Nevertheless, the Third Circuit analyzed recent opinions by Supreme Court Justices, among other things, and determined that the Court would adopt the definition of a cause of action for strict products liability that combines negligence and strict liability theories. The Third Circuit held that the Pennsylvania Supreme Court would adopt Sections 1 and 2 of the Restatement (Third) of Torts, which states, in part, that a manufacturer who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. Id. at 37. The Restatement goes on to describe the categories of a product defect, which includes references to the foreseeable risks of harm of the product.
In support of its decision, the Court stated that the policy behind strict products liability is not served by artificially restricting strict products liability to intended users due to concerns about "contaminating a strict liability claim with considerations of foreseeability." Id. at 52. The Third Circuit noted that such an approach does not protect the bystander and that an injured person would be precluded from suing only because that person was a bystander and not the person using the product.
Interestingly, prior to the Third Circuit Court of Appeals issuing the above-referenced opinion, a panel of Third Circuit appellate judges had certified the injured bystander issue to the Pennsylvania Supreme Court. Reasoning that the case raised important and unresolved issues concerning the permissible scope of bystander recovery for products liability claims, the Third Circuit requested the Pennsylvania Supreme Court to accept the certification. Berrier, 2008 WL 538912 (3rd Cir. 2008). This action by the Court of Appeals is a rarely used procedural device that allows federal courts to seek guidance on state legal issues from the state supreme court.
The Pennsylvania Supreme Court denied the request for certification, noting that it had just accepted review of, "the foundational matter of whether the strict liability doctrine appropriately applies in design-defect cases." Berrier, 598 Pa. 594, 959 A.2d 900 (Oct. 17, 2008) citing Bugosh v. I.U. North Am., Inc., 596 Pa. 265, 942 A.2d 897 (2008) (per curiam). While the Supreme Court expressed its appreciation for the difficulties faced by the federal courts in predicting Pennsylvania law in this area, it indicated that its limited resources dictated a focus on global issues, such as the ones presented in Bugosh. Id. The Supreme Court, however, did note that the federal courts are not without guidance, as the Court's previous decisions, "sent a clear signal that the intended-use doctrine is to be construed narrowly pending a decision on the foundational matters." Id.
This decision is certainly going to have its fair share of critics, as it effectively incorporates concepts of negligence into a strict liability analysis, which is an issue the Pennsylvania Supreme Court is currently struggling with in the Bugosh case. Now that the Third Circuit has set forth its prediction of how the Pennsylvania Supreme Court would have decided with respect to the injured bystander in products liability cases, it will be interesting to see how the Supreme Court reacts when it issues its opinion in Bugosh. NLdH will continue to monitor this important issue.
