[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. : : : : : : : : : : : : : 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 O PINION

CHIEF JUSTICE TODD DECIDED: December 22, 2023 T he 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 perpetuat es a vestige of t he highly criticized and recently overruled decision in Azzarello v. Black Brothers Co., Inc. , 391 A.2d 1020 (Pa. 1978) ; eschews the recent teaching s of this Court in Tincher v. Omega Flex, Inc. , 104 A.3d 328 (Pa. 20 1 4) ; 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 r espectfully dissent.[ J

- 1

- 2023 ] [ OAJC : Mundy, J. ]

- 2 A brief history o f 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 v iew 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 an d 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 in dustry 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 indust ry standards should be excluded in product liability cases)

. I n the wake of Azzarello , however, which creat ed a distinct divide between strict liability and negligence theories of recovery and declar ed that negligence concepts ha d no place in Pennsylvania strict liability doctrine , governmental and industry standards evidence in strict liability actions w as prohibited. See Lewis v. Coffing Hoist Division, Duff

- Norton Co. , 528 A.2d 590 , 594 (Pa. 1987) (relying upon Azzarello ’s negl igence/strict liability dichotomy in determin ing 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

a nd mis lead the jury )

.[ J

- 1

- 2023 ] [ OAJC : Mundy, J. ]

- 3 Our recent decision in Tincher , however, revisited Azzarello , usher ing in a sea change in the law. 1 In doing so, t he Tincher Court considered t he sharp criticism of Azzarello ’s strict separa tion 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, necess arily 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 reco gnized 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. No w, 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 Wh ile Tincher did not expressly overrule Lewis , the Court recognize d 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 oth er foundational issues which were constructed from Azzarello, but determined that consideration of th o se 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 u nderpinnings, it is clear that Lewis did not survive the demise of Azzarello and should be expressly overruled.[ J

- 1

- 2023 ] [ OAJC : Mundy, J. ]

- 4 U nder 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 o f Strict Tort Liability for Products , 44 Miss. L.J. 825, 837

- 38 (1973). These factors , which the factfinde r m ay balance to determin e 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, a nd 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 carryi ng liability insurance.

Tincher , 104 A.3d at 3 89

- 90

. In light of our adoption of the composite approach to products liability, including both consumer expectation s and risk

- utility theories of recovery , i t 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 , t he 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 government al or industry standards[ J

- 1

- 2023 ] [ OAJC : Mundy, J. ]

- 5 alone may a llow the jury to infer that a product d esign is unreasonably danger ous

. If a
pro duct design departed from custom, it could be reasonably inferred that such variance rendered the product unreasonabl y danger ous and , thus, that the product was defective. Con versely, compliance with governmental or industry standards m ay sh ed 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 deter mining 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 governmen tal and industry standards may be relevant to the quest ion of whether a product is defective

. Moreover, g overnmental 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 allowanc e for the admissibility of relevant evidence under our Pennsylvania Rules of Evidence . Specifically, i n 1998, our Court approved the Rules of Evidence , and Rules 401 and 402 , which codified a liberal approach to relevancy and admissibility

. C ritically, e vidence 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 matter s

. Additionally, the o verwhelming majority of our sister states find governmental and industry standards ev idence to be admissible

. As set forth by a micus Product Liability Advisory Counsel, Amicus Brief at 3

- 12, the vast number of state s 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 in dustry). 2

2 The concurrence suggests that I (1) rely “heavily” upon the California Supreme Court’s decision in Kim ; (2) that Kim is distinguishable becaus e it involved “custom and usage” in the industry which is “due care” evidence; (3) that Kim “relied” on the Third Re statement ; and (4) that Kim is contrary to our approach in Tincher

. Concurring Opinion (Donohue, J.) at 7

- 8 n.11. Respectfully, t he concurrence misapprehends my position

. First, I cite to Kim merely to provide one of the many example s of the virtual unanimity of courts in allowing the admission of governmental and indus try 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 leas t suggest that the admission of industry and governmental standard evidence goes to the question of due care. See S u llivan v. Werner Co. , 253 A.3d 730, 747 (Pa. Super. 2021) (“Whether a manufac t urer has complied with industry or government standards goes to whether it ‘exer cised 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 wit h 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 (“ o ur analysis rema ins apt as evidence that a manufacturer designed its product to conform to ANSI, O SHA, or any thir d

- party standar ds 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 c onclusion 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 post

Azzarello paradigm

. ” Tincher , 104 A.3d at 335 . One of these are as of consideration was Tincher ’s adoption of a composite design standard , id

. at 40 1 , which was largely based upon California’s composite design standard , id. at 402 (citing B arker 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 g overnmental and industry compliance w as 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, re flects a mistrust of our jury system and suggests jur ies cannot und erstand these complex matters. Indeed, the OAJC ’s approach could actually cause jury confusion , as was evident in this case when the jury inquir ed about OSHA inspection s 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

ar gumentation . It should be no different in the area of products liability. Of course,
g overnmental 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 wou ld be available, on a case by

- 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 e vidence 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 o f governmental and industry standards evidence in strict liability litigation to show a product is not defect ive

. 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 relevanc e 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 tribu nals make similar assertions

.