As I’ve previously written, Pennsylvania products liability law remains thoughtfully true to the letter and intent of the Restatement of Torts 2d, Section 402 A (1965). Current standard civil jury instructions provide this astute directive to jurors deciding the question of a product’s defect: “Under the law, a [specify type of supplier: distributor/manufacturer/seller/etc.] of a defective product is strictly liable for the injuries caused by such defect, even if the [specify type of supplier: distributor/manufacturer/seller/etc.] has taken all possible care in the design, manufacture, distribution and sale of the product.” See 16.10 General Rule of Strict Liability, PA-JICIV (2020).
Pennsylvania has steadfastly held to the principle that in strict products liability cases, evidence of a manufacturer’s due care is both irrelevant and inadmissible. See Sullivan v. Werner, 2023 WL 8859656 (Pa.). A product is defective if it’s proven that either it “did not perform as safely as an ordinary consumer would expect it to perform” or “the possibility and seriousness of harm outweighed the burden or cost of making the product safe.” See Pa. SSJI (Civ) Section 16.20 (2020). Because our law excludes evidence and consideration of whether a product was designed with reasonable care, the issue we now consider is whether instructing a jury or having witnesses characterize the product as “unreasonably dangerous” or not “unreasonably dangerous” is appropriate. Judicial consideration of the import of this phrase—starting in the 1970s and continuing until today—dictates that this verbiage is not helpful, it is misleading, and its use is inconsistent with the legal tests applied to decide the question of defect. See Berkebile v. Brantly Helicopter, 462 Pa. 83 (1975).
