[J-1-2023] [OAJC: Mundy, J.] 

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

MICHAEL AND MELISSA SULLIVAN, H/W

 v. 

WERNER COMPANY AND LOWE'S 

COMPANIES, INC., AND MIDDLETOWN 

TOWNSHIP LOWE'S STORE #1572

APPEAL OF: WERNER COMPANY AND 

LOWE'S COMPANIES, INC.

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No. 18 EAP 2022

Appeal from the Judgment of 

Superior Court entered on April 15, 

2021 at No. 3086 EDA 2019 

(reargument denied June 23, 2021), 

affirming the Judgment entered on 

November 19, 2019 in the Court of 

Common Pleas, Philadelphia 

County, Civil Division at No. 

161003086.

ARGUED: March 8, 2023

DISSENTING OPINION

CHIEF JUSTICE TODD DECIDED: December 22, 2023

The Opinion Announcing the Judgment of the Court (“OAJC”) concludes that 

governmental and industry standards evidence is categorically inadmissible by the 

defense in a strict liability action to show a product is not defective. In doing so, the OAJC 

perpetuates a vestige of the highly criticized and recently overruled decision in Azzarello 

v. Black Brothers Co., Inc., 391 A.2d 1020 (Pa. 1978); eschews the recent teachings of

this Court in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014); rejects the sound 

approach taken by virtually all of our sister states; accepts the patent unfairness of 

nonetheless allowing such evidence to be admissible in a plaintiff’s case to show a 

product is defective; and deprives juries of potentially valuable and relevant information, 

all seemingly out of a misplaced fear that the jury will be misled or confused. For the 

reasons that follow, I respectfully dissent.
[J-1-2023] [OAJC: Mundy, J.] - 2

A brief history of the admissibility of governmental and industry standards gives 

important context to the issue before us. The development of a sophisticated industrial 

society with its proliferation of new and complex products inspired a shift in legal 

philosophy, from the principle of caveat emptor which prevailed in the early 19th century 

to the view that a manufacturer and supplier of a product should be deemed to be the 

guarantor of their products' safety and bear the risk of loss for injury resulting from a 

defective product. Ultimately, this view was codified in Section 402A of the Restatement 

(Second) of Torts, and adopted by our Court in Webb v. Zern, 220 A.2d 853 (Pa. 1966). 

While the focus of Section 402A and the view it codified was, and is, on manufacturers 

and suppliers, governmental and industry standards evidence was admissible at this 

juncture, and we rejected attempts to preclude the admissibility of such evidence. See, 

e.g., Forry v. Gulf Oil Corp., 237 A.2d 593, 598 n.10 (Pa. 1968) (finding a departure from 

a custom in the tire industry as to the length of tire “overlaps” allows for a reasonable 

inference that a variance from that custom created an unreasonable danger); Bialek v. 

Pittsburgh Brewing Co., 242 A.2d 231, 235 (Pa. 1968) (rejecting suggestion that 

governmental and industry standards should be excluded in product liability cases).

In the wake of Azzarello, however, which created a distinct divide between strict 

liability and negligence theories of recovery and declared that negligence concepts had

no place in Pennsylvania strict liability doctrine, governmental and industry standards 

evidence in strict liability actions was prohibited. See Lewis v. Coffing Hoist Division, 

Duff-Norton Co., 528 A.2d 590, 594 (Pa. 1987) (relying upon Azzarello’s negligence/strict 

liability dichotomy in determining that, because negligence concepts have no place in 

strict liability, the admission of industry standards, which go to the reasonableness of the 

defendant’s conduct in product design, would improperly inject concepts of negligence 

and mislead the jury).
[J-1-2023] [OAJC: Mundy, J.] - 3

Our recent decision in Tincher, however, revisited Azzarello, ushering in a seachange in the law.1 In doing so, the Tincher Court considered the sharp criticism of 

Azzarello’s strict separation between negligence and strict liability concepts in design 

defect cases. The Court underscored that Section 402A relieves plaintiffs of the burden 

of proving the absence of due care in the manufacturing process, but that this did not, 

however, necessarily apply in design defect cases where “the character of the product 

and the conduct of the manufacturer are largely inseparable.” Tincher, 104 A.3d at 424. 

Finding that the separation between negligence and strict products liability “fail[ed] to 

reflect the realities of strict liability practice and to serve the interests of justice”, the 

Tincher Court overruled Azzarello. Id. at 376. The Tincher Court recognized that strict 

liability overlaps in effect with theories of negligence and restored the inquiry into whether 

a product is “unreasonably dangerous” under Section 402A to the jury. Under Tincher, 

the calculus for finding liability has been altered. Now, to establish a design defect as 

unreasonably dangerous, a plaintiff may prove that a product is defective under a 

“composite” approach, by showing that either: (1) the danger is unknowable and 

unacceptable to the average or ordinary consumer (“consumer expectations standard”)

(not at issue in this matter); or (2) a reasonable person would conclude that the probability 

and seriousness of harm caused by the product outweighed the burden or costs of taking 

precautions (“risk-utility standard”).

1 While Tincher did not expressly overrule Lewis, the Court recognized that its decision to 

overrule Azzarello and articulate a standard of proof premised upon alternative tests in 

relation to design defect claims would have an impact upon other foundational issues

which were constructed from Azzarello, but determined that consideration of those effects 

was outside of the scope of the appeal. Tincher, 104 A.3d at 409-10. We observe, 

however, that Lewis was wholly dependent upon Azzarello’s negligence/strict liability 

dichotomy. The Lewis Court determined that, because under Azzarello a manufacturer 

was a guarantor of product safety, such entity’s due care had no bearing on strict liability. 

Given its underpinnings, it is clear that Lewis did not survive the demise of Azzarello and 

should be expressly overruled.
[J-1-2023] [OAJC: Mundy, J.] - 4

Under the risk-utility standard at issue herein, the seven “Wade factors,” or certain 

of these factors, may be utilized. See J. Wade, On the Nature of Strict Tort Liability for 

Products, 44 Miss. L.J. 825, 837-38 (1973). These factors, which the factfinder may

balance to determine whether a product is defective, are:

(1) [t]he usefulness and desirability of the product – its 

utility to the user and the public as a whole.

(2) [t]he safety aspects of the product – the likelihood 

that it will cause injury, and the probable seriousness of the 

injury.

(3) [t]he availability of a substitute product which would 

meet the same need and not be as unsafe.

(4) [t]he manufacturer's ability to eliminate the unsafe 

character of the product without impairing its usefulness or 

making it too expensive to maintain its utility.

(5) [t]he user's ability to avoid danger by the exercise 

of care in the use of the product.

(6) [t]he user's anticipated awareness of the dangers 

inherent in the product and their availability, because of 

general public knowledge of the obvious condition of the 

product, or the existence of suitable warnings or instructions.

(7) [t]he feasibility, on the part of the manufacturer, of 

spreading the loss by setting the price of the product or 

carrying liability insurance.

Tincher, 104 A.3d at 389-90.

In light of our adoption of the composite approach to products liability, including 

both consumer expectations and risk-utility theories of recovery, it is clear, in my view, 

that governmental and industry standards may be relevant in resolving the question of 

whether a product design is unreasonably dangerous. Specifically, as we stated in 

Tincher, the character of the product and the conduct of the manufacturer are largely 

inseparable, calling for the introduction of standards and regulatory compliance when 

conduct is at issue. A product’s failure to comply with governmental or industry standards 
[J-1-2023] [OAJC: Mundy, J.] - 5

alone may allow the jury to infer that a product design is unreasonably dangerous. If a 

product design departed from custom, it could be reasonably inferred that such variance 

rendered the product unreasonably dangerous and, thus, that the product was defective.

Conversely, compliance with governmental or industry standards may shed light on the 

appropriate balance of safety risks and benefits regarding a manufacturer’s design. 

Specifically, widespread industry adoption of safety features and compliance with OSHA 

safety mandates and voluntary safety standards could assist in determining a product’s 

technological feasibility and its cost, both of which are relevant in comparing the product 

at issue with an alternative design. Thus, admitting evidence of governmental and 

industry standards may be relevant to the question of whether a product is defective.

Moreover, governmental and industry standards evidence should be admissible

not only because of Tincher’s reform of strict liability law, but because it is entirely

consistent with, if not mandated by, our broad allowance for the admissibility of relevant 

evidence under our Pennsylvania Rules of Evidence. Specifically, in 1998, our Court 

approved the Rules of Evidence, and Rules 401 and 402, which codified a liberal 

approach to relevancy and admissibility. Critically, evidence is “relevant” if “it has any

tendency to make a fact more or less probable than it would be without the evidence.” 

Pa.R.E. 401(a) (emphasis added); Pa.R.E. 402; Commonwealth v. Yale, 249 A.3d 1001, 

1022 (Pa. 2021). Thus, under Pennsylvania’s broad relevancy rules, governmental and 

industry standards should be admissible in products liability design defect matters.

Additionally, the overwhelming majority of our sister states find governmental and 

industry standards evidence to be admissible. As set forth by amicus Product Liability 

Advisory Counsel, Amicus Brief at 3-12, the vast number of states regard compliance with 

mandatory governmental safety standards (44 states) and voluntary industry safety 

standards (46 states) to be relevant and admissible. By contrast, the OAJC’s view, 
[J-1-2023] [OAJC: Mundy, J.] - 6

forbidding the admission of such standards, has been adopted by only one state –

Montana. Indeed, Tincher’s composite design defect standard was largely based upon 

California’s similar test, and that state has held governmental and industry standards 

evidence to be admissible in strict liability litigation. See Kim v. Toyota Motor Corp., 424 

P.3d 290, 299 (Cal. 2018) (holding industry custom may be relevant in a strict liability 

design defect case as it illuminates the relative complexity of design decisions and the 

tradeoffs frequently required in the adoption of alternative designs, as well as highlighting 

that a defendant has not implemented a safety feature that is standard in the industry).2

2 The concurrence suggests that I (1) rely “heavily” upon the California Supreme Court’s 

decision in Kim; (2) that Kim is distinguishable because it involved “custom and usage” in 

the industry which is “due care” evidence; (3) that Kim “relied” on the Third Restatement;

and (4) that Kim is contrary to our approach in Tincher. Concurring Opinion (Donohue, 

J.) at 7-8 n.11. Respectfully, the concurrence misapprehends my position. 

First, I cite to Kim merely to provide one of the many examples of the virtual 

unanimity of courts in allowing the admission of governmental and industry standards. 

Second, contrary to the seeming distinction the concurrence draws between industry and 

government standards and due care evidence, the Superior Court below, Appellees, and 

the OAJC all at least suggest that the admission of industry and governmental standard 

evidence goes to the question of due care. See Sullivan v. Werner Co., 253 A.3d 730, 

747 (Pa. Super. 2021) (“Whether a manufacturer has complied with industry or 

government standards goes to whether it ‘exercised all possible care in preparation of 

product’ in making the design choice, not on whether there was a design defect in the 

product itself. . . . [I]t is irrelevant if a product is designed with all possible care, including 

whether it has complied with all industry and governmental standards.”); Appellees’ Brief 

at 24 (“The probative value of industry or government standards is to show that the 

manufacturer has used care in the preparation and sale of its product.”); OAJC at 24 n.13

(“our analysis remains apt as evidence that a manufacturer designed its product to 

conform to ANSI, OSHA, or any third-party standards goes to the manufacturer’s due 

care in designing a product”). Third, Kim did not rely on the Third Restatement, but merely 

noted that its conclusion was “consistent with the general approach taken in the [Third] 

Restatement.” Kim, 424 P.3d at 299 n.5. Fourth, and finally, Kim is particularly relevant 

given the Tincher Court’s explanation that, while not adopting the Third Restatement, 

“appreciation of certain principles contained in that Restatement has certainly informed 

our consideration of the proper approach to strict liability in Pennsylvania in the postAzzarello paradigm.” Tincher, 104 A.3d at 335. One of these areas of consideration was 

Tincher’s adoption of a composite design standard, id. at 401, which was largely based 

upon California’s composite design standard, id. at 402 (citing Barker v. Lull Engineering 

(continued...)
[J-1-2023] [OAJC: Mundy, J.] - 7

Even more compelling, governmental and industry standards are admissible in a

plaintiff’s case. Gaudio v. Ford Motor Co., 976 A.2d 524, 544 (Pa. Super. 2009). In my 

view, it is patently unfair to allow such standards into evidence in a plaintiff’s case, but not 

in the defense’s case. If evidence of governmental and industry compliance was

irrelevant to strict liability, then such evidence should be inadmissible for both plaintiff and 

defendant alike.

Finally, the OAJC’s exclusion of governmental and industrial standards to defend 

against a defective product claim, at its core, reflects a mistrust of our jury system and 

suggests juries cannot understand these complex matters. Indeed, the OAJC’s approach 

could actually cause jury confusion, as was evident in this case when the jury inquired

about OSHA inspections of the scaffolding alleged by Appellees to be defective. See

N.T., 5/9/19, at 142.

Our entire jury system relies upon the adversarial presentation of evidence and 

argumentation. It should be no different in the area of products liability. Of course, 

governmental and industry standards should be admitted only after a proper foundation

has been laid, will be subjected to cross-examination and rebuttal, and the jury will be 

guided by appropriate instructions. But the jury should be allowed to decide the value, 

weight, and reliability of such evidence. Moreover, traditional safeguards against unfair 

prejudice, issue confusion, and the misleading of the jury would be available, on a caseby-case basis, just as in any other area of litigation. See Pa.R.E. 403.

In short, the demise of Azzarello, the substantive realignment of strict liability

concepts articulated in Tincher, the liberal understanding of relevant evidence under our 

Rules of Evidence, the patent unfairness of permitting such evidence in the plaintiff’s case 

Co., 573 P.2d 443 (Cal. 1978)). It is under this same standard that, in California, 

governmental and industrial standards are admissible. Kim, 424 P.3d at 299.
[J-1-2023] [OAJC: Mundy, J.] - 8

but not the defense, and the lack of jury confusion with traditional safeguards of the 

admissibility of evidence, all support the admissibility of governmental and industry 

standards evidence in strict liability litigation to show a product is not defective.

3

Justice Brobson joins this dissenting opinion.

3 The concurrence, citing an “undeveloped evidentiary record and undirected advocacy,” 

contends that Appellants failed to establish the relevance of industry standards and place 

into the record information regarding ANSI standards. Concurring Opinion (Donohue, J.) 

at 1, 4. It appears the concurrence is sub silento affirming on these alternative grounds, 

as neither the parties nor the lower tribunals make similar assertions.