Friday, April 5, 2013
Daniel Cummins: "A Maze of Uncertainty: PA Products Liability Law Remains in a Confusing State of Flux"
As of the writing of this article in January of 2013, confusion is reigning in the Commonwealth of Pennsylvania on the uncertain issue of whether the Restatement (Second) of Torts or the different analysis set forth in the Restatement (Third) of Torts should be utilized in Pennsylvania products liability cases. This uncertainty is the result of an ever-growing split of authority not only between the Pennsylvania state and federal courts, but also among, and even within, the different federal district courts across the Commonwealth.
The situation has now spiraled downward to the point that litigants with cases pending in the Pennsylvania federal court system have to research whether the particular federal district court judge presiding over the case has previously issued a decision on the issue in order to determine which Restatement standard will be applied in that case. While one Pennsylvania federal court judge has politely noted that this area of the law in Pennsylvania is in a “state of flux,” See Sikkelee v. Precision Automotive, Inc., 876 F. Supp. 2d 479, 489 (M.D. Pa. 2012 Jones, J.). another has more aptly described Pennsylvania products liability law as being “a maze of uncertainty.” See Samson v. Crown Equipment, 2:10-CV-0958, 2012 WL 3027989 (W.D. Pa. 2012 Hornak, J.).
Which standard is applied could make or break a case. Although the Restatement (Second) favors strict liability concepts over negligence principles in the products liability context, the Restatement (Third) decreases the impact of concepts such as "intended use" and "intended user" and places a greater emphasis on the negligence principle of "reasonable foreseeability." All of these changes in the Restatement (Third) arguably shift the balance in favor of manufacturer defendants in personal injury cases based upon allegations that a defective product was the cause of the injury.
As noted below, under the current status of Pennsylvania products liability law, whether the case will be governed by the Restatement (Second) of Torts or the Restatement (Third) of Torts depends upon whether the case is in state or federal court, and if the case is in federal court, the answer may further depend upon which particular federal district court judge is presiding over the case.
Thursday, April 4, 2013
Daniel E. Cummins, Esquire is a partner in Foley, Comerford & Cummins in Scranton, PA with over 15 years of insurance defense experience. Cummins has focused his practice on defending motor vehicle accident liability cases and UIM/UM arbitration matters along with premises liability and products liability cases. Heis also routinely summoned by his clients to handle matters involving insurance coverage questions and insurance subrogation claims.
Cummins is a cum laude graduate of Villanova University (’90, B.A., English) after which he attended the Dickinson School of Law (’93, J.D.) and completed his law school studies at the University of London Faculty of Laws in London, England (Spring, ’93).
Cummins is an award-winning columnist for, among other publications, Pennsylvania Law Weekly. He blogs regularly at Tort Talk and has been named a "Lawyer on the Fast Track" and a "Super Lawyer-Rising Star."
Wednesday, April 3, 2013
Ellen Bublick (Arizona) has compiled The Concise Restatement of Torts (3d ed.) for the ALI. The book draws on 5 projects from the Restatement (Third) of Torts and is organized like many first-year casebooks. The Concise Restatement of Torts is under 400 pages, was published on earlier this week, and is available through ALI here.
I have never used a supplement in my Torts course. I have recommended several secondary sources (and will continue to do so). However, I taught Contracts for the first time last year and found a supplement useful in that course. Based on that experience, I decided a supplement would help my Torts students as well. I have been looking around for the right Torts supplement, and this is it. Virtually every topic I cover in my two-semester course is in The Concise Restatement of Torts.
Tuesday, April 2, 2013
The National Law Journal reports that a Massachusetts trial court has granted summary judgment in a defamation suit brought by Boston rock band founder Donald Scholz against the Boston Herald and two journalists. According to the article, the Herald articles "insinuated that [lead singer Brad] Delp's rocky relationship with Scholz drove [Delp] to take his own life." The trial court found that Scholz could not prove defamation because the statements constituted "non-actionable opinion."
The full article is behind a free registration wall.