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Thursday, March 21, 2013

James Beck: "Using Reott's Shiny New Strict Liability Defense"

          In Reott v. Asia Trend, Inc., 55 A.3d 1088 (Pa. 2012), the Pennsylvania Supreme Court once again dodged the existential question of Second versus Third Restatement, because the plaintiff’s manufacturing defect claim was subject to a “strict” liability standard even under the Third Restatement.  See Id. at 1101-02 (Saylor, J. concurring) (discussing how “strict products liability was originally fashioned with manufacturing defects in mind”).  Instead the court addressed, for the first time, the role that plaintiff conduct played in proof of causation in a strict liability case under Restatement (Second) of Torts §402A (1965).

          In Reott the product, a tree stand intended as a hunter’s aerial perch, was manufactured without its proper double stitching.  When the plaintiff attempted to “set” the tree stand (remove slack from the straps) by bouncing on it, the stand collapsed and the plaintiff fell to the ground.  55 A.3d at 1090-91.  At trial, the plaintiff received a directed verdict on the manufacturing defect, which was essentially uncontested.  Id. at 1091. The defendant contested causation, arguing that the plaintiff’s method of setting the tree stand, not the defect, had caused the accident.  Id.  The plaintiff claimed that under strict liability, all evidence of his conduct was inadmissible.  The trial court allowed the jury to consider the plaintiff’s conduct as evidence of causation:

The court . . . permitted that question [causation] to go to the jury.  [Defendant] presented evidence to the jury that [plaintiff’s] self-taught “setting the stand” maneuver constituted highly reckless conduct, which negated . . . the defect in the [product]. . . .  [T]he jury returned a verdict in favor of [defendant].

Id.  The Superior Court reversed, holding that “the evidence introduced at trial was insufficient as a matter of law to support [defendant’s affirmative defense of highly reckless conduct.  Id. at 1093.

          At the Supreme Court, plaintiff argued that in strict liability, it was error to introduce evidence of plaintiff conduct – since comparative negligence was not a defense – even on the question of causation.  The Supreme Court, disagreed and for the first time held that there are circumstances under which plaintiff conduct is admissible in strict liability.

          The defense that the Supreme Court recognized, which had been sporadically permitted in intermediate appellate decisions for decades, was more stringent than mere comparative fault.  First of all, it is an affirmative defense upon which the defendant bears the burden of proof:

[W]e hold that a defendant in a Section 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted.

Reott, 55 A.3d at 1101.  As an affirmative defense, highly reckless plaintiff conduct must also be pleaded.  Id. at 1100.

          Second, the defense is similar to assumption of the risk (although lacking the element of subjective understanding), in that the “highly reckless” conduct must – if believed by the jury – amount to the “sole cause” of the accident:

This accepted definition of highly reckless conduct exemplifies that a defendant can affirmatively plead and prove “sole cause,” i.e., that a curing of any defect would not have prevented the injury because only the plaintiff's conduct caused the injury; or “superseding cause,” i.e., that the plaintiff acted in such an outrageous and unforeseeable fashion that the conduct superseded any “but for” or legal causation the product contributed to the injuries.

Id. at 1100.  “[B]ecause highly reckless conduct, by its very nature, is that which is essentially unforeseeable and outrageous, if it truly exists in a case, it must be the cause of the injuries sustained.”  Id. at 1101 (emphasis added).

          The Court justified its relatively strict version of a causation defense in strict liability as a way to prevent defendants from turning it into the equivalent of the now-prohibited defense of comparative/contributory fault:

[U]nder Pennsylvania's scheme of products liability, evidence of highly reckless conduct has the potential to erroneously and unnecessarily blend concepts of comparative/contributory negligence with affirmative proof that a plaintiff's assumption of the risk, product misuse, or, as styled herein, highly reckless conduct was the cause of the injury. Indeed, without some further criteria, highly reckless conduct allegations by defendants could become vehicles through which to eviscerate [strict liability] by demonstrating a plaintiff’s comparative or contributory negligence.

Id. at 1098.  Practically as an afterthought, the Court affirmed, on grounds that the evidence did not establish the defense (there being no proof that a non-defective stand would have collapsed in a similar manner).  Id. at 1101.

          Thus, after Reott defendants now have an affirmative causation defense, based on the plaintiff’s “highly reckless” conduct, in strict liability cases.  To the extent it can make out a jury submissible case, the defense can introduce such conduct by the plaintiff.  The question thus arises, what kind of conduct can meet that test.  The most immediate answer lies in prior precedent, and not just cases asserting reckless conduct in the lower courts.  Given similarities that the Court noted between reckless conduct, superseding cause, and product misuse, conduct creating any of these defenses probably creates them all.

          We suspect that the most significant fact pattern would be that found in Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997).  In Davis the Pennsylvania Supreme Court held as a matter of law that it was unforeseeable for someone to fail to follow explicit product warnings – because it would defy “common sense” and make any warning “meaningless”:

As evidence of foreseeability, Appellant asserts [that] the instruction manual accompanying the [product] cautioned against [what actually occurred in the case]. . . .  We find untenable the proposition that a manufacturer must anticipate that a specific warning not to operate a product without a safety device indicates to a user that the product could, in fact, be operated without the safety feature.  Such conclusion defies common sense.  It also renders warnings of any nature meaningless since the manufacturer must anticipate that the user will engage in the precise conduct which the warning cautions against.

Id. at 190-91 (emphasis added).  A great many product liability suits these days arise from someone (sometimes the plaintiff, sometimes as in Davis, an intermediary such as an employer) disregarding a warning.  Prior to Reott, plaintiffs attempted to exclude such proof as “negligence evidence.”  But given this holding in Davis that failure to follow an express warning is ipso facto unforeseeable, at minimum after Reott a jury submissible, case of “reckless conduct” is created on such facts.

          Other cases have found a variety of other conduct by plaintiffs to be “highly reckless.”  Daddona v. Thind, 891 A.2d 786, 810-11 (Pa. Commw. 2006) (failure to use available safety device, among several other things); Coffey v. Minwax Co., 764 A.2d 616, 621 (Pa. Super. 2000) (use of electricity in presence of inflammable fumes); Frey v. Harley Davidson Motor Co., 734 A.2d 1, 6-8 (Pa. Super. 1999); Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508-09 (Pa. Super. 1998) (driving while intoxicated); Gallagher v. Ing, 532 A.2d 1179, 1182 (Pa. Super. 1987) (same); Foley v. Clark Equipment Co., 523 A.2d 379, 394 (failure to watch where plaintiff was driving); Keirs v. Weber National Stores, Inc., 507 A.2d 406, 409 (Pa. Super. 1986) (not changing out of gasoline-soaked clothing); Gottfried v. American Can Co., 489 A.2d 222, 227 (Pa. Super. 1985) (sticking hand without looking into jagged container); Bascelli v. Randy, Inc., 488 A.2d 1110, 1114 (Pa. Super. 1985) (speeding in excess of 100 m.p.h.); Moyer v. United Dominion Industries, Inc., 473 F.3d 532, 542-45 (3d Cir. 2007) (gross failure to maintain product) (applying Pennsylvania law); Wilson v. Vermont Castings, Inc., 170 F.3d 391, 395-96 (3d Cir. 1999) (failure to read owner’s manual; standing near open flame in loose clothing).  Defendants ought to be able to assert the Reott defense, and thus expose the jury to a plaintiff’s product-related misconduct, in any case presenting analogous facts – provided that the defendant can create a jury question as to the existence of the facts.

          This is not to say that, in any such case, a defendant is necessarily entitled to prevail.  The “highly reckless” conduct defense, as articulated in Reott, appears to be a rather demanding defense.  But at least until Pennsylvania formally abandons its extremely strict version of strict liability, evidentiary hurdles exist that plaintiffs exploit to exclude “negligence” evidence.  Until Reott, plaintiffs at least had an argument that a plaintiff’s conduct, even when bearing on causation, was such evidence – because in other circumstances it could also be used to prove comparative/contributory fault.  After Reott, the dispute in no longer whether such evidence is relevant, but only whether the facts establish sufficient recklessness.  That, at least, is a step forward.

--James Beck; Reed Smith, Philadelphia, PA; Drug & Device Law Blog

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Comments

The PA Supreme Court did not "dodge[ ] the existential question of Second versus Third Restatement." The Pennsylvania Supreme Court has consistently applied § 402A of the Second Restatement ever since Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978), and has never once adopted the Third Restatement. Reott again reaffirmed the Second Restatement, noting “this Court has adopted comment n [of Section 402A of the Second Restatement] as the law of Pennsylvania.” Justice Saylor's concurrence, joined by no one, vaguely implied some reconsideration of tort principles could be possible in future cases.

The Reott test is indeed quite demanding. The Court noted several times that the Superior Court had held (in Charlton v. Toyota Indus. Equip., 714 A.2d 1043, 1047 (Pa.Super.1998)) that “highly reckless” conduct occurs when “the plaintiff knew or had reason to know of facts which created a high degree of risk of physical harm to himself and that he deliberately act[s] or fail[s] to act, in conscious disregard of that risk” and did not question this definition. Charlton, it should be noted, specifically rejected the Foley case you cited above as inconsistent with strict liability in PA.

Thus, the defense is there, but it's only where the defendant can show, consistent with the Charlton definition, the plaintiff knew or had reason to know of facts which created a high degree of risk of physical harm to himself and that he deliberately acts or fails to act, in conscious disregard of that risk. That will typically only happen in cases of true recklessness — people racing forklifts, driving cars in excess of 100mph, etc — and not plain vanilla negligence.

Posted by: Max Kennerly | Mar 22, 2013 4:44:37 PM

"At the Supreme Court, plaintiff argued that in strict liability, it was error to introduce evidence of plaintiff conduct – since comparative negligence was not a defense – even on the question of causation." That is certainly not what I argued. I was well aware that highly reckless conduct is a defense in a products case, and that is what I focused on. I argued that the defendants had to prove it by showing through the testimony of an expert that plaintiff's method of setting the stand would have caused even a properly manufactured stand to fail. They pleaded it as an affirmative defense, and they had to prove it. That was the central theme of my brief and oral argument.

Posted by: David Neely | Feb 3, 2014 11:52:20 AM

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