A defense attorney representing an industrial supplier in a pending asbestos appeal before the Pennsylvania Supreme Court believes that the Supreme Court is likely to change the state’s law to import negligence concepts into products liability law.
The Supreme Court granted allocatur in an asbestos case on Feb. 27 to consider if concepts of negligence should be imported into Pennsylvania’s products liability law by the application of Section 2 of the American Law Institute’s Restatement (Third) of Torts in place of Section 402A Restatement (Second) of Torts.
In an interview a few weeks ago, Robert B. Lawler, of counsel with Wilbraham, Lawler & Buba and an attorney representing I.U. North America, which sought allocatur in Bugosh v. I.U. North America Inc., said he has this confidence of success because “three justices commented acidly and strongly” in the 2003 Phillips v. Cricket Lighters case that Pennsylvania’s law regarding strict liability and the Restatement (Second) of Torts needed to be updated. That opinion was written by Justice Thomas G. Saylor and joined by Justice J. Michael Eakin and now Chief Justice Ronald D. Castille. The opinion that won out that day in the Supreme Court was written by former Chief Justice Ralph J. Cappy and directed that negligence concepts can’t be imported into strict liability law. (Lawler wasn’t available for an interview when The Legal first wrote about the Supreme Court granting allocatur.)
In its allocatur brief, I.U. North America argued that as the descendant company of industrial supplier Pittsburgh Gage & Supply Co., which primarily sold non-asbestos products, that it shouldn’t be held liable for the plaintiff’s asbestos exposure when other major defendant-manufacturers are now bankrupt. I.U. North America also argued that the Restatement (Third) of Torts should be applied in its case to focus strict liability claims onto the lack of care by manufactures, not suppliers.
Lawler said at least three of the justices, because allocatur was granted, must have evaluated the justice of strict liability for many defendants only tangentially connected to plaintiffs injured in cases and driven into bankruptcy when facing hundreds, even thousands of claims.
Under Restatement (Second) of Torts and strict liability, “it’s quite a burden for the courts to impose on a certain supplier,” Lawler said. “That they’re now obliged to know the dangers of each and every product they’re shipping.”
If a supplier receives thousands of products, and just one of them is extremely dangerous: “How in the world are you going to know about that one product, yet according to strict liability case law you’re responsible,” Lawler said.
While plaintiffs’ attorneys and some legal thinkers are concerned about importing negligence into this area of Pennsylvania law, Lawler argues, “There has to be an element of fairness. Strict liability is favorable to the plaintiff and difficult for the defense … once your product is determined to be unusually dangerous you’re automatically responsible for it, even if you didn’t make it.”
Lawler said amicus counsel in the case include the Pennsylvania Defense Institute and the Product Liability Advisory Council, an association of 120 product manufacturers and product liability defense attorneys that bills itself as a tort reform group of product liability law.
Earlier this year, the 3rd U.S. Circuit Court of Appeals asked the Supreme Court in a certification on a question of law to address the permissible scope of bystander recovery under Pennsylvania’s products liability law for a little girl whose left foot was mangled by a lawn mower driven by her grandfather.
The Berrier v. Simplicity Manufacturing case involves the question of the importation of negligence into a strict liability claim: whether a bystander injured by a consumer product — and who is not the intended user of a product used in an intended manner — may pursue a strict liability claim against the manufacturer. That case is still pending.
–Amaris Elliott-Engel, Staff Reporter