Despite recent rumblings to the contrary, unless and until the Pennsylvania Supreme Court adopts The Restatement (Third) of Torts, The Restatement (Second) of Torts, which was adopted by the Pennsylvania Supreme Court in Webb v. Zern, 220 A.2d 853 (Pa. 1966), still governs product liability cases in Pennsylvania.

Noteworthy, is the Third Circuit’s decision in Covell v. Bell Sports, Inc., 651 F.3d 357 (3d. Cir. 2011) which  affirmed the District Court’s application of The Restatement (Third) of Torts, despite the fact that the Pennsylvania Supreme Court has not yet adopted the Restatement (Third), predicting that the high court would do so when presented with the opportunity. To the contrary, in 2012 the Middle District in Sikkelee v. Precision Airmotive, Corp., 876 F.Supp.2d 479 (M.D. Pa. 2012) properly recognized that the Pennsylvania Supreme Court has declined to adopt the Restatement (Third) and that the Restatement (Second) still applies.

One distinction is that The Restatement (Third) arguably makes it more difficult for Plaintiffs in the products liability arena. For example, under The Restatement (Third), whether or not a particular design is defective depends upon whether foreseeable risks of harm from the product could have been reduced or avoided by the distributor’s adoption of a reasonable alternative design.

No doubt the Pennsylvania Supreme Court will eventually be forced to address this issue. Stay tuned.

— Drafted blog while a partner at Fox Rothschild LLP