On September 25, 2017, the Pennsylvania Supreme court denied an application for allowance of appeal in High v. Pennsy Supply, Inc., 154 A.3d 341 (1/13/17). In High, the Superior Court reversed the decision of the Dauphin County Court of Common Pleas to grant summary judgement for the Defendant. The Superior Court found that a factual issue remained as to whether an ordinary consumer would reasonably have anticipated the dangerous condition of concrete and risk of injury pursuant to the products liability standards set forth in Tincher v. Omega Flex, 628 Pa. 296, 104 A.3d 328 (2014).
The plaintiffs in High ordered from defendant flowable fill concrete because of its self-leveling properties. Defendant mistakenly delivered regular concrete. Defendant’s error was not discovered until after the concrete was poured. At that point, plaintiffs felt that they had had no choice but to try to level it as best they could using rakes, boards, and their forearms. After about 90 minutes, their clothes were saturated with concrete. Plaintiffs then noticed that their skin was peeling off. They immediately washed the concrete from their bodies, but they suffered severe second and third degree burns due to contact with the concrete.
The delivery ticket for the concrete stated: “WARNING: IRRITATING TO SKIN AND EYES. Contains Portland Cement. Avoid contact with eyes and prolonged contact with skin. Wear rubber boots and gloves. In case of contact with skin or eyes, flush thoroughly with water. If irritation persists, get medical attention.” One of the plaintiffs signed below the warning, but did not see it. He also admitted that he was aware of similar warnings about possible skin irritation, and had previously experienced skin peeling due to contact with concrete.
Plaintiffs filed suit against defendant claiming that the concrete was unreasonably dangerous to consumers because its high alkali level would result in chemical burns upon contact with skin. In response, defendant argued that plaintiffs failed to adhere to their warnings, that plaintiffs were aware of the dangers of the concrete, and that they caused their own injuries through their misuse of the product. In addition, defendant joined one of the plaintiffs as an additional defendant, claiming that he was a sophisticated user of concrete, and was negligent for failing to take adequate precautions, and in encouraging careless use of the product by the other plaintiff.
Defendant then filed a motion for summary judgment against both plaintiffs on the basis that plaintiffs failed to provide any expert reports showing that there were any defects in the concrete, or that the warnings were inadequate. Rather, defendant argued that the alkaline level of the concrete is an inherent property of concrete. The Dauphin County Court of Common Pleas entered summary judgment for defendant, and plaintiffs appealed.
The Superior Court found that plaintiffs failed to expressly identify the specific theory of strict liability they wished to pursue, design defect, or failure to warn. The Superior Court recognized that the Pennsylvania Supreme Court altered Pennsylvania products liability law in Tincher, id. Under Tincher, plaintiffs must show that the seller placed on the market a product in a “defective condition,” meaning that it was unreasonably dangerous to the consumer or the consumer’s property. The Tincher Court set forth two alternative standards for determining if a product is defective; (1) that the danger of the product is “unknowable and would be unacceptable to the average or ordinary consumer, (the consumer expectation standard); or (2) that a reasonable person would conclude that the probability and seriousness of harm from the product outweigh the burden and cost of taking precautions, (the risk-utility standard). The Tincher Court also held that the burden of production and persuasion is by a preponderance of evidence. In addition the Tincher Court held that a plaintiff could offer proof in the alternative of either “consumer expectation standard,” or “risk-utility standard.” In addition, the Tincher Court held that the question of whether a product is defective is ordinarily a question of fact for the jury, and that a court should not make the determination unless it is clear that ordinary minds could not differ on the issue.
The Superior Court noted that plaintiffs focused solely on the consumer expectation standard. This standard is defined as a condition, upon normal use is dangerous beyond the reasonable consumer’s contemplations. The test reflects a “surprise element of danger.” The nature of the product, the identity of the user, the product’s intended use and intended user, and the express or implied representations by the manufacturer or seller are among the considerations that may be relevant to assessing the reasonable consumer’s expectations. The Tincher Court based the consumer expectation standard on comment (i) of Section 402A of the Second Restatement of Torts.
The trial court granted summary judgment for defendant based on its conclusion that the caustic properties of concrete are common knowledge and not subject to liability. The Superior Court disagreed, concluded that a genuine issue of material fact exists as to whether an ordinary consumer would reasonably anticipate and appreciate the dangerous condition of concrete and the attendant risk of injury. Accordingly, the Superior Court reversed the decision of the trial court.