Tincher, T. v. Omega Flex, Inc., Aplt. , 628 Pa. 296 ( 2014 )


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  •                                   [J-80-2013]
    IN THE SUPREME COURT OF PENNSYLVANIA
    MIDDLE DISTRICT
    CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
    TERRENCE D. TINCHER AND JUDITH             :   No. 17 MAP 2013
    R. TINCHER,                                :
    Appeal from the Order of the Superior Court,
    :
    Appellees                  Dated September 25, 2012, at No. 1472 EDA
    :   2011, Affirming the Judgment of the Chester
    :   County Court of Common Pleas, Civil Division,
    :   Dated June 1, 2011, at No. 2008-00974-CA
    v.
    :
    :
    OMEGA FLEX, INC.,                          :
    :
    Appellant              :   ARGUED: October 15, 2013
    OPINION
    MR. CHIEF JUSTICE CASTILLE                              DECIDED: November 19, 2014
    Omega Flex, Inc., appeals the decision of the Superior Court to affirm the
    judgment on the verdict entered in favor of Terrence D. Tincher and Judith R. Tincher
    (the “Tinchers”) by the Chester County Court of Common Pleas, Civil Division. We
    reverse the Superior Court decision in part, upon reasoning different from that
    articulated by the courts below, and we remand to the trial court for further action upon
    Omega Flex’s post-trial motions, consistent with the principles elucidated in this
    Opinion. We hold that:
    1.   This Court’s decision in Azzarello v. Black Brothers
    Company, 
    391 A.2d 1020
    (Pa. 1978) is hereby overruled.
    2.     Having considered the common law of Pennsylvania,
    the provenance of the strict product liability cause of action,
    the interests and the policy which the strict liability cause of
    action vindicates, and alternative standards of proof utilized
    in sister jurisdictions, we conclude that a plaintiff pursuing a
    cause upon a theory of strict liability in tort must prove that
    the product is in a “defective condition.” The plaintiff may
    prove defective condition by showing either that (1) the
    danger is unknowable and unacceptable to the average or
    ordinary consumer, or that (2) a reasonable person would
    conclude that the probability and seriousness of harm
    caused by the product outweigh the burden or costs of
    taking precautions.        The burden of production and
    persuasion is by a preponderance of the evidence.
    3.     Whether a product is in a defective condition is a
    question of fact ordinarily submitted for determination to the
    finder of fact; the question is removed from the jury’s
    consideration only where it is clear that reasonable minds
    could not differ on the issue. Thus, the trial court is
    relegated to its traditional role of determining issues of law,
    e.g., on dispositive motions, and articulating the law for the
    jury, premised upon the governing legal theory, the facts
    adduced at trial and relevant advocacy by the parties.
    4.     To the extent relevant here, we decline to adopt the
    Restatement (Third) of Torts: Products Liability §§ 1 et seq.,
    albeit appreciation of certain principles contained in that
    Restatement has certainly informed our consideration of the
    proper approach to strict liability in Pennsylvania in the post-
    Azzarello paradigm.
    I.       Background
    Around 2:30 a.m. on June 20, 2007, neighbors reported a fire that had erupted at
    the home of the Tinchers in Downingtown, Pennsylvania.            The residence was the
    central unit of a two-story triplex built in 1998-99, and purchased by the Tinchers in
    2005.     The fire was eventually extinguished and no persons were harmed.
    Subsequently, investigators concluded that a lightning strike near the Tinchers’ home
    caused a small puncture in the corrugated stainless steel tubing (“CSST”) transporting
    natural gas to a fireplace located on the first floor of the residence. The CSST installed
    [J-80-2013] - 2
    in the Tinchers’ home was manufactured and sold by Omega Flex as part of a gas
    transportations system marketed as the TracPipe System.           The heat attending the
    melting of the CSST caused by the lightning strike ignited the natural gas and fueled a
    fire estimated to have burned for over an hour. The fire caused significant damage to
    the Tinchers’ home and belongings.
    After the fire, the Tinchers reported the incident to their insurer, United Services
    Automobile Association (“USAA”). USAA compensated the Tinchers for their loss up to
    the limit of their policy and received an assignment of liability claims. The Tinchers
    suffered an additional out-of-pocket loss because a portion of their claimed loss
    exceeded the limits of the USAA policy.
    In January 2008, the Tinchers filed a complaint against Omega Flex in the
    Chester County Court of Common Pleas.1 USAA prosecuted the claims in the name of
    the Tinchers to obtain reimbursement of the insurance proceeds payout, but the
    Tinchers retained an interest in the litigation to recover the losses exceeding their
    insurance coverage. The Tinchers asserted claims premised upon theories of strict
    liability, negligence, and breach of warranty.
    In relevant part, the Tinchers’ complaint relies upon the theory of strict liability
    articulated in Section 402A of the Second Restatement of Torts, but as followed and
    construed in Pennsylvania. Complaint, 3/18/2008, at ¶¶ 19-25 (citing RESTATEMENT (2D)
    OF   TORTS § 402A). The Tinchers alleged that Omega Flex is liable for damages to their
    home caused by the placement on the market and sale of the TracPipe System.
    1
    The Tinchers also named as defendants R & L Plumbing Contractors, Inc.,
    Joseph Rosati Plumbing, Inc., and Joseph R. Rosati, Jr., individually and d/b/a Joseph
    Rosati Plumbing & Heating. Omega Flex asserted cross-claims against its co-
    defendants. In October 2010, the Tinchers and Omega Flex voluntarily dismissed with
    prejudice all claims against these additional parties.
    [J-80-2013] - 3
    According to the Tinchers, the CSST incorporated into the TracPipe System is
    defective, and unreasonably dangerous to intended users, because its walls are too thin
    to withstand the effects of lightning. The Tinchers requested compensatory damages,
    interest, fees, and costs of litigation. Omega Flex answered the complaint denying the
    Tinchers’ allegations. The matter was assigned to the Honorable Ronald C. Nagle,
    Senior Judge of the Chester County Court of Common Pleas. The parties proceeded
    with discovery and the filing of dispositive motions, which the trial court denied.
    In September 2010, in anticipation of trial, Omega Flex filed a motion in limine
    requesting the application of Sections 1 and 2 of the Third Restatement of Torts to the
    Tinchers’ strict liability claim. Omega Flex also proposed jury instructions and findings
    of fact consistent with the provisions of the Third Restatement. The Tinchers opposed
    Omega Flex’s motion in limine and offered proposed jury instructions and findings of
    fact consistent with the Second Restatement and 
    Azzarello, supra
    . The trial court did
    not resolve Omega Flex’s motion before trial. See Notes of Testimony, 8/12/2011, at
    17-22.
    In October 2010, the parties proceeded to trial before a jury. At trial, the Tinchers
    offered evidence regarding the events of June 20, 2007, the subsequent investigation
    into the cause of the fire, the losses sustained by the Tinchers, and USAA’s process of
    adjusting the insurance claim. The parties generally agreed that lightning had caused
    the fire, although they disagreed as to the sequence of events or the cause of ignition in
    the area of the fireplace. The Tinchers offered evidence that lightning transferred an
    electrical charge to parts of the home, including the TracPipe System; the electrical
    current then sought ground and created different electrical charges in the various metal
    components of the structure. The Tinchers’ expert witnesses testified that a flow of
    energy between a differently charged TracPipe and another metal component of the
    [J-80-2013] - 4
    home caused an electrical arc, and the accompanying heat punctured the CSST and
    ignited the natural gas that the CSST transported. According to the Tinchers’ expert,
    the perforation in the corrugated stainless steel tubing from the Tinchers’ home was
    “characteristic of a lightning strike, not anything else.” By comparison, Omega Flex’s
    witnesses testified that lightning measured near the Tinchers’ home on the night of the
    fire did not carry sufficient energy to puncture the CSST. According to these witnesses,
    once lightning entered the house, lightning-related high voltages -- although with low
    energy -- broke down the insulation on electrical wires and, if the circuit breakers did not
    interrupt the current, the electrical current caused the fire. Omega Flex also responded
    that the conditions of the Tinchers’ home after the fire and after the investigation, during
    which part of the evidence had been removed from its original location, made it
    impossible to confirm the Tinchers’ theory. Finally, Omega Flex offered evidence that
    an attempt had been made to bond the TracPipe System to the cold water pipe at the
    Tinchers’ residence which, if successful, would have prevented the electrical arc -- and
    the resulting fire -- from occurring. Witnesses testified that, after the fire, a bonding
    clamp had been found connected to the CSST and near but disconnected from the cold
    water pipe. The parties offered competing testimony as to whether the clamp had been
    attached to the cold water pipe before the fire.
    Relevant to their strict liability theory, the Tinchers offered testimony regarding a
    defect in the TracPipe from experts in electrical engineering and metallurgy, electrical
    arc physics, and material science -- Mr. Mark Goodson and Dr. Thomas Eager,
    respectively. These experts opined that CSST is inherently defective because its wall is
    1/100 of an inch thick -- the width of four sheets of paper -- and, as a result, the
    probability is “very high,” “close to a hundred percent,” that a lightning-generated current
    will perforate it. By comparison, an alternative natural gas conduit made of black iron
    [J-80-2013] - 5
    pipe is ten times thicker for a half-inch diameter pipe similar to the CSST present in the
    Tincher home. According to the witnesses, CSST withstands the transfer of ten times
    less energy than black iron pipe and, given the same energy, the amount of time to
    puncture CSST is 1/100 the amount of time required to puncture black iron pipe.
    Experts estimated that an electric arc is fifty thousand to a million times more likely to
    perforate CSST than black iron pipe.
    The witnesses acknowledged that the energy transferred by any particular
    lightning strike is difficult to predict and cannot be replicated in a lab, but concluded that
    the probability was high that CSST would be punctured by occurrences within expected
    ranges of electrical current.    Such results, according to the Tinchers’ experts, are
    observable and predictable with equations developed in the Nineteenth Century.
    Nevertheless, the experts noted that Omega Flex had not conducted testing on the
    TracPipe’s ability to withstand lightning strikes, although testing for resistance to
    lightning was necessary and available. Moreover, according to the Tinchers’ evidence,
    the Omega Flex installation guide failed to direct compliance with lightning-related fire
    protection codes.
    The Tinchers’ witnesses also testified that Omega Flex recommended grounding
    the TracPipe system by plugging any natural gas-fueled appliances into three-prong
    outlets. Additional grounding, although attempted at the Tinchers’ residence, was not
    required by the installation instructions provided by Omega Flex to professionals to
    whom TracPipe was marketed and sold for installation in consumers’ homes.
    Moreover, according to the Tinchers’ experts, the bonding of the TracPipe System at
    one location would be insufficient to protect the CSST from the effects of lightning. To
    be effective, the witnesses testified, bonding would be required every ten feet, which the
    [J-80-2013] - 6
    experts deemed to be an impractical and unfeasible solution. The alternative would be
    to encase the CSST in black iron pipe. See N.T., 10/13/2010, at 291-98, 357-420.
    After the Tinchers rested, Omega Flex moved for a nonsuit, citing the standard of
    the Second Restatement and Azzarello; Omega Flex expressly assumed that the trial
    court had denied its request to apply the Third Restatement. N.T., 10/18/2010, at 514-
    16. The trial court denied the motion for a nonsuit. 
    Id. at 525-26.
    Subsequently, Omega Flex introduced the testimony of its own experts relating to
    the defect in the TracPipe System alleged by the Tinchers. The witnesses were Dr.
    James Dydo, an expert in metallurgy and mechanical engineering with a focus on fuel
    gas piping, and Dr. Michael Stringfellow, an expert in physics with a focus on lightning
    and the protection of structures from lightning. The Omega Flex experts opined that the
    TracPipe System is not defective or unreasonably dangerous. According to the defense
    experts, CSST is a technology with significant advantages, including resistance to
    corrosion, structural shifts, and mechanical ruptures; ease of installation, relocation, and
    retrofitting; and fewer joints accompanied by decreased susceptibility to natural gas
    leaks at any required joints. The experts noted that these net benefits are marked
    advantages over black iron pipe arising from the flexibility of CSST. If CSST’s walls
    were thickened, according to the experts, there would be little practical difference
    between CSST and black iron pipe.
    The defense witnesses also testified that the TracPipe System meets and
    exceeds all standards for minimum performance governing CSST developed by the
    American National Standards Institute, a clearinghouse for trade groups. Additionally,
    the witnesses stated, installation of the TracPipe System conforms with the Fuel Gas
    Code and the National Electric Code in force in 1998-99. The experts emphasized that
    these applicable standards did not anticipate intrusion by lightning as a possible safety
    [J-80-2013] - 7
    concern, suggesting that it was unnecessary for Omega Flex to have foreseen any
    danger from lightning.
    Finally, Omega Flex’s experts agreed that the installation instructions for the
    TracPipe System did not require installation of a bonding clamp. The witnesses also
    noted, however, that a disconnected clamp was consistent with Omega Flex’s
    assessment of the circumstances surrounding the fire. The experts offered that the
    attempt to bond the TracPipe System to the cold water pipe was inadequate and that a
    successful attempt would have likely averted the resulting fire. 
    Id. at 657-712.
    After resting its defense, Omega Flex offered a motion for a directed verdict
    premised upon Second Restatement principles and Azzarello. Omega Flex argued that
    proof of the overall risks and benefits of the TracPipe System, and of any reasonable
    alternative designs, showed that TracPipe was not unreasonably dangerous. The trial
    court denied the motion for a directed verdict.             Both parties then offered closing
    arguments on their respective theories of the case.               Subsequently, the trial court
    instructed the jury with respect to the Tinchers’ strict liability claim as follows:
    The contention of the [Tinchers] in this case is that
    there is a defect in this product, this TracPipe. To state a
    products liability claim, essentially it’s strict liability, a plaintiff
    must prove, first, that the product was defective. Second,
    that if [sic] a defect existed when it left the hands of the
    defendant, that is, left the process by which it was produced
    at the defendant[‘s] plant. And three, that the defect caused
    the harm.
    A product is defective when it is not safe for its
    intended purpose. That is, it leaves the suppliers’ control
    lacking any element necessary to make it safe for its
    intended use. The inquiry is whether or not there is a defect,
    not whether the defendant[’s] conduct was negligent. In
    strict liability there is no consideration of negligence. It is
    simply, was the product defective or wasn’t it defective.
    [J-80-2013] - 8
    *      *      *       *
    Defective design. The manufactur[er] of a product is
    really a guarantor of its safety. When we talk about strict
    liability, the product must be provided with every element
    necessary to make it safe for its intended use. And without
    any conditions that make[] it unsafe for its intended use. If
    you find that the product in this case, the TracPipe, at the
    time it left the defendant[’s] control, lacked any elements
    necessary to make it safe for its intended use, or contained
    any condition that made it unsafe for its intended use, and
    there was an alternative more practical design, more safer
    [sic] design, then the product is considered defective and the
    defendant is liable for the harm, if you find that defect
    caused the harm[,] was the proximate cause of the harm to
    the plaintiffs.
    Now, ladies and gentlemen, a product is not defective
    merely because it is possible to be injured while using the
    product. The imposition of strict liability is not meant to
    transform manufacturers into insurers of all injuries that are
    potentially possible and [sic] at the hands of a product. A
    manufacturer of a product may be a guarantor of the
    product[’s] safety, but under no circumstances is the
    manufacturer an insurer of the safety of the product. The
    law does not force the manufacturer to become the insurer
    of the product under all conditions and uses.                A
    manufacturer is not required to make an already safe
    product safer, or to utilize the safest of all designs. The
    manufacturer is not required to produce or design a product
    incorporating only features representing the ultimate in
    safety design. To prevail on a design defect theory, plaintiffs
    must prove that the product is defective and that at the time
    it left the control of the manufacturer it lacked the feature
    necessary to make it safe for its intended use, or contained a
    feature that made it unsafe for its intended use.
    In other words, you may not find that the TracPipe
    product is defective merely because it could have been
    made safer. Instead, you may only render a verdict for the
    plaintiff if you conclude and are convinced that the TracPipe
    is in fact defective and was so when it left the hands of the
    [J-80-2013] - 9
    manufacturer and that defect was the proximate cause of the
    [Tinchers’] loss.
    As I said before, and I instruct you that in order to
    establish strict liability for putting a defective product in the
    stream of commerce, the plaintiffs are not required to prove
    that the defendant was negligent. Negligence and strict
    liability are two separate concepts. I’ll get to negligence in a
    second. And no consideration should be given to negligence
    when considering strict liability for a defective product. It’s
    two different concepts. I understand it’s not the easiest thing
    to keep in mind. I’m trying to point out there is a difference
    between strict liability for putting a defective product that was
    defective when it was designed and made in this stream of
    commerce that causes harm to someone else, an intended
    user, not just any user, but an intend[ed] user of that
    product.
    Obviously, ladies and gentlemen, if this product was
    manufactured and, obviously, the -- with all of the testimony
    in this case and the steps that were taken during the design
    and manufacturing process, Omega Flex knew it was going
    to be used for its intended purposes, to carry gas[,] natural
    gas, the manufacturer supplying the pipe guaranteed it
    would be safe for its intend[ed] use. That is what strict
    liability means. So if something that is intended to be safe
    for the use intended to be made of it is not, and it’s proven
    that it’s not, and that proof has to come from the plaintiff, and
    that defect is the proximate cause of what happens, there is
    a lot of testimony in this case about that, then that is what
    strict liability means. It does not have anything to do with
    negligence in that aspect of the case. That is why the risk of
    loss, or if there is, or if you find there is a defect in strict
    liability, the risk of loss is placed upon the supplier or
    manufacturer that put that product in this stream of
    commerce. The risk of loss for injuries resulting from the
    defective product is best warned [sic] by the person who
    manufactured it, principally because they are the ones that
    put it in the stream of commerce and said it would work for
    its intended purpose.
    [J-80-2013] - 10
    N.T., 10/19/2010, at 794-98. Additionally, the trial court defined “proximate cause,” and
    instructed the jury with respect to damages.          
    Id. at 802-07.
       After the trial court
    concluded its instructions on the law, counsel for Omega Flex noted for the record that
    Omega Flex had proposed instructions based upon the Third Restatement with respect
    to the strict liability claim and that any Second Restatement instructions it proposed
    were offered in the alternative. The trial court responded that it had declined to instruct
    the jury in accordance with Third Restatement principles because Pennsylvania
    appellate courts, and the Supreme Court especially, had not adopted the Third
    Restatement.
    Subsequently, the jury returned to the courtroom with several questions.
    Relevant here, the trial court answered the jury by repeating definitions for the terms
    “defect” and “defective design” as offered in the original instructions.
    On October 20, 2010, the jury returned a verdict in favor of the Tinchers on the
    products liability claim, and awarded compensatory damages totaling $958,895.85.
    Damages were divided as follows: $406,532.90 (building); $988.83 (additional property
    and structures); $503,945.58 (contents); and $47,428.64 (alternate living expenses).
    The trial court added $69,336.05 in delay damages, and entered judgment on the
    verdict.2   In November 2010, Omega Flex filed a motion for post-trial relief and
    supporting brief requesting, among other things, a new trial premised upon trial court
    errors in denying its motion in limine and in failing to instruct the jury on the law as
    articulated in the Third Restatement.        Additionally, Omega Flex sought judgment
    notwithstanding the verdict on the theory that the evidence introduced at trial was
    insufficient to prove a claim of strict liability under Third Restatement principles.
    2
    The jury also returned a verdict in favor of Omega Flex on the negligence claim.
    There are no claims before this Court related to this part of the verdict.
    [J-80-2013] - 11
    Relating to the motion for judgment notwithstanding the verdict, Omega Flex
    argued that the evidence introduced at trial was insufficient as a matter of law to prove a
    strict liability claim under the Third Restatement. In overlapping claims of error, Omega
    Flex also asserted that the Tinchers had not met their burden of proof under the so-
    called “fireworthiness” doctrine, which, as Omega Flex explained in its supporting brief,
    was a Third-Restatement-like approach similar to the more familiar “crashworthiness”
    exception to the Second Restatement. Appellant’s Brief in Support of Motion for Post-
    Trial Relief 3/3/2011, at 9-27 (citing Pa. Dep’t of Gen. Serves. v. U.S. Mineral Prods.
    Co., 
    898 A.2d 590
    (Pa. 2006) (“General Services”) and Gaudio v. Ford Motor Co., 
    976 A.2d 524
    (Pa. Super. 2009)). With respect to the motion for a new trial, Omega Flex
    alleged that the trial court erred in denying its motion in limine seeking to conduct the
    trial in accordance with Third Restatement principles, and in failing to issue a jury
    charge premised upon the Third Restatement or the fireworthiness / crashworthiness
    doctrine.
    In the brief supporting the post-trial motion, Omega Flex distilled what were
    several Third Restatement and fireworthiness doctrine claims into two main arguments.
    First, according to Omega Flex, judgment notwithstanding the verdict or a new trial were
    appropriate under the Second Restatement because lightning protection, the safe
    conduction of electricity, or even a foreseeable event such as the fire are not intended
    uses of the TracPipe System. In the alternative, Omega Flex argued that, once the
    Tinchers offered evidence that lightning was a “foreseeable” event, the dispute
    paradigm changed from a typical Second Restatement design defect case to a
    fireworthiness / crashworthiness case, which required the trial court to issue a jury
    instruction that the Tinchers had the burden to prove the existence of an alternative
    safer design similar to the burden articulated by the Third Restatement.
    [J-80-2013] - 12
    Second, Omega Flex argued that a new trial was appropriate because the trial
    court failed to charge the jury on the Third Restatement, which in its view stated the
    relevant principle of law applicable to the circumstances alleged by the Tinchers.
    Omega Flex argued that application of the Third Restatement was supported by
    responsive opinions authored and joined by several Justices of this Court and the
    decision of the U.S. Court of Appeals for the Third Circuit in Berrier v. Simplicity Mfg.,
    
    563 F.3d 38
    (3d Cir. 2009). Appellant’s Brief in Support of Motion for Post-Trial Relief
    3/3/2011, at 36 (citing also Phillips v. Cricket Lighters, 
    841 A.2d 1000
    , 1020 (Pa. 2003)
    (Saylor, J., concurring, joined by Castille and Eakin, JJ.)).             Returning to its
    fireworthiness doctrine theory, Omega Flex emphasized that the trial court’s Azzarello-
    based instructions on the Second Restatement confused the jury: first, by mentioning,
    without explaining, the relevance of evidence of a proposed alternative design, i.e., the
    black pipe system; second, by failing to guide the jury on the burden of proof relating to
    the alternative design; and, third, by failing to explain how the jury should consider the
    role of lightning in assessing liability. Additionally, Omega Flex argued that the failure to
    charge the jury, and relatedly the absence from the verdict sheet, of foreseeability-
    based principles and elements related to the existence of a safer alternative design,
    erroneously lessened the Tinchers’ burden of proof. 
    Id. at 31-40.
    In response, the Tinchers asserted that the “fireworthiness” instruction requested
    by Omega Flex had no applicability to the Tinchers’ circumstances.            The Tinchers
    explained that the decision in General Services was distinguishable on the facts: in
    General Services, the product released harmful chemicals when exposed to a fire
    caused by unrelated events; because the fire was not an intended use of the product,
    this Court held that strict liability principles were inapplicable.    By comparison, the
    Tinchers noted that the allegations in this matter were that the defect in CSST even
    [J-80-2013] - 13
    when employed for its intended use, i.e., carrying natural gas, caused the fire; these
    allegations implicated a manufacturer’s strict liability for the alleged defect.       The
    Tinchers then argued that the evidence offered at trial was sufficient to support the trial
    court’s gateway decision related to the risk-utility analysis as well as the jury’s ultimate
    verdict. The Tinchers also responded that the Third Restatement was not applicable in
    Pennsylvania and that, until this Court adopts the Third Restatement, the governing law
    remains the Second Restatement.        Moreover, the Tinchers asserted that the Third
    Circuit’s prediction that this Court would eventually adopt the Third Restatement is
    premature and unwarranted, citing the Superior Court decisions in 
    Gaudio, supra
    , and
    French v. Commonwealth Associates, 
    980 A.2d 623
    (Pa. Super. 2009). Appellees’ Brief
    in Opposition to Motion for Post-Trial Relief, 3/9/2011, at 2-15. At oral argument on the
    post-trial motion, the parties offered similar arguments focusing on the fireworthiness
    doctrine. Omega Flex noted that the case was appropriate for application of the Third
    Restatement and emphasized the claims of jury confusion, but agreed not to press
    arguments relating to the adoption of the Third Restatement at the trial court level. N.T.,
    3/11/2011, at 9-10; 39-43. The trial court denied the motion. On June 2, 2011, the trial
    court entered judgment on the verdict, in the amount of $1,028,231.90.
    Omega Flex appealed the judgment to the Superior Court.              The trial court
    ordered Omega Flex to file a concise statement of errors complained of on appeal.
    Order, 6/17/2011 (per curiam) (citing Pa.R.A.P. 1925(b)). In its Rule 1925(b) statement,
    Omega Flex raised related claims of error, in relevant part, that the evidence introduced
    at trial was insufficient to prove claims of strict liability under the Second and Third
    Restatements; and that the jury should have been charged and offered a verdict form
    premised upon the Third Restatement or the related theory of fireworthiness /
    crashworthiness.
    [J-80-2013] - 14
    In the post-trial relief and Rule 1925(a) opinions, the trial court rejected Omega
    Flex’s arguments. The trial court found no error in declining to apply and instruct the
    jury on the Third Restatement, reasoning that this Court had yet to adopt that iteration of
    tort law to replace the Second Restatement. The trial court noted that, while Omega
    Flex “may have the right to advance on appeal to our Supreme Court that it should
    adopt the [Third Restatement], under current law, [the Tinchers] bore no burden to
    prove a safer alternate design existed in accordance with the latter standard.” Trial
    Court Op., 8/5/2011, at 11.
    In addition, the trial court explained that a “fireworthiness” instruction -- as an
    extension of the “crashworthiness” doctrine, requiring “a more rigorous standard of proof
    than the usual [Second Restatement] claim,” was not appropriate either, because
    TracPipe had been employed for its intended use. According to the trial court, the
    Tinchers’ case did not relate to how the TracPipe performed during the fire, as in
    General Services; rather, the defect in the TracPipe they pursued was the proximate
    cause of the Tinchers’ injuries. The trial court held that the trial court rather than the
    jury properly decided the question of a feasible alternative design, and that the Tinchers
    had carried their burden of proof.
    The parties offered arguments in their briefing to the Superior Court on issues
    similar to those raised in the post-trial motion and Rule 1925(b) statement. Relating to
    the Third Restatement, Omega Flex acknowledged that decisions of this Court bound
    the lower court, but offered that this case would be a fitting vehicle for this Court to
    revisit strict liability standards.   According to Omega Flex, the Third Restatement
    expressly incorporates foreseeability standards into the strict liability analysis, and
    requires a plaintiff to establish the existence of a reasonable alternative design for the
    factfinder.   The trial court, Omega Flex argued, following existing decisional law,
    [J-80-2013] - 15
    instructed the jury inadequately, noting in particular that the Tinchers were not “required
    to prove the existence of a feasible alternative design to prevail on [their] strict-liability
    claim.” Omega Flex claimed that the trial court erred in denying its motion for judgment
    notwithstanding the verdict premised upon error in instructing the jury, and requested a
    new trial on this basis. Appellant’s Super. Ct. Brief at 33-36. The Tinchers responded
    that Omega Flex’s arguments relating to the Third Restatement have no legal support.
    According to the Tinchers, the Second Restatement and its derivative decisional law
    remains the law in Pennsylvania, and this Court rejected moving to the Third
    Restatement on several occasions, including after the U.S. Court of Appeals for the
    Third Circuit predicted its adoption.
    In September 2012, the Superior Court affirmed the judgment, among other
    things holding that the trial court did not err in declining to adopt the Third Restatement.
    The court also rejected Omega Flex’s claim of error premised upon the fireworthiness
    theory, concluding that although the occurrence of lightning was arguably random and
    infrequent, lightning is a naturally occurring phenomenon outside the control of the
    Tinchers, who were using the product for its intended use. As a result, the court held
    that the Tinchers’ claims implicated notions of strict liability, and the Tinchers had
    carried their burden of proof under the Second Restatement and Azzarello. Moreover,
    the court concluded that it was obligated to follow Supreme Court precedent, which
    remained premised upon the Second Restatement, following this Court’s then-recent
    decision in Beard v. Johnson & Johnson, Inc., 
    41 A.3d 823
    (Pa. 2012). The panel
    explained that the trial court did not err in denying Omega Flex’s request to proceed in
    accordance with the Third Restatement because lower courts have no authority to
    disapprove Supreme Court precedent.
    [J-80-2013] - 16
    Omega Flex filed a petition for allowance of appeal, which this Court granted,
    limited to the following issue:
    Whether this Court should replace the strict liability analysis
    of Section 402A of the Second Restatement with the
    analysis of the Third Restatement.
    In addition, the parties were directed to brief the question of whether, if the Court were
    to adopt the Third Restatement, that holding should be applied prospectively or
    retroactively. Tincher v. Omega Flex, Inc., 
    64 A.3d 626
    (Pa. 2013) (per curiam) (citing
    Bugosh v. I.U. North America, Inc., 
    971 A.2d 1228
    , 1242-43 (Pa. 2009) (Saylor, J.,
    dissenting, joined by Castille, C.J.)).
    II.       Arguments
    Omega Flex suggests an affirmative answer to the question accepted on appeal,
    and further argues that this Court should disapprove the decision in Azzarello, and
    abandon the Second Restatement articulation of the law of strict liability in Pennsylvania
    in favor of the approach in the Third Restatement. The Tinchers agree that Azzarello
    was wrongly decided but argue in favor of otherwise retaining the principles of liability of
    the Second Restatement.
    Omega Flex begins by noting that Pennsylvania recognized strict liability in 1966.
    Appellant’s Brief at 16 (citing Webb v. Zern, 
    220 A.2d 853
    (Pa. 1966); RESTATEMENT
    (2D)   OF   TORTS § 402A).    According to Omega Flex, the Second Restatement was
    “focused” on allegations of manufacturing defects rather than design defects and did not
    address the latter “meaningfully, if at all.”         Nevertheless, Omega Flex recounts,
    Pennsylvania and other jurisdictions have applied the Second Restatement articulation
    to design defects.        Omega Flex states that early applications of the Second
    Restatement in Pennsylvania called for a cost-benefit analysis to determine whether the
    [J-80-2013] - 17
    product, as designed, was defective or unreasonably dangerous; this approach “was
    squarely in the mainstream of American tort law.” But, in 1978, according to Omega
    Flex, the decision in Azzarello altered the legal landscape of products liability in
    Pennsylvania by divorcing products strict liability from principles of negligence, and by
    directing the trial court -- rather than the jury -- to make the only determination, upon a
    lower burden of proof, regarding the defectiveness / dangerousness of the product.
    Omega Flex argues that Azzarello is theoretically unsound and unworkable in
    practice, suggesting that we should disapprove the decision.           Initially, Omega Flex
    claims that a core principle familiar in negligence law -- reasonableness -- inherently
    infuses strict liability law: a product is defective only if “unreasonably” dangerous.
    Omega Flex explains that a manufacturer is not the insurer of the consumer for any
    injury caused by its product and may be held liable only if the product is “defective.” As
    a practical matter, according to Omega Flex, a design is not defective “in the abstract,”
    as a function of the injury caused a particular plaintiff, but as a function of its risks and
    utilities. Omega Flex emphasizes that any product may cause injury, yet not every
    product is “defective” as that concept is properly understood in the law of strict liability --
    of note are inherently dangerous products such as knives and lighters. On this premise,
    Omega Flex suggests that the risk-utility calculus is essentially a matter of whether the
    manufacturer departed from the proper and reasonable standards of care.                    “To
    condemn a design for being unreasonably dangerous is inescapably to condemn the
    designer for having been negligent.”          Appellant’s Brief at 29 (citing James A.
    Henderson, Jr. and Aaron D. Twerski, ACHIEVING A CONSENSUS           ON   DEFECTIVE PRODUCT
    DESIGN, 83 Cornell L. Rev. 867, 919 (1998)). From this perspective, Omega Flex
    [J-80-2013] - 18
    argues, the conceptual wall of separation between strict liability and negligence initially
    articulated by Azzarello has “no practical significance.”3
    Omega Flex notes that the Azzarello Court did not purport to depart from the
    Second Restatement principle that a defective design analysis is an inquiry into the care
    exercised by the manufacturer; the decision did not require proof of a defect separate
    from proof that the product was unreasonably dangerous. The difficulty, according to
    Omega Flex, is that the Court’s decision nevertheless prohibited the trial court from
    submitting to the jury the factual question of whether the product was unreasonably
    dangerous. Omega Flex notes that, per Azzarello, juries are instructed to determine
    whether a product is defective unmoored from any inquiry into the product’s risks and
    utilities and the reasonableness of the manufacturer’s conduct. Omega Flex suggests
    that the Azzarello approach creates an illusory separation between a product defect and
    a manufacturer’s conduct, which constitutes a departure from the Second Restatement
    the Court was purporting to follow.
    Additionally, Omega Flex criticizes the Azzarello decision for relegating the risk-
    utility inquiry to a threshold matter of whether the defect issue may be submitted to the
    jury, and placing that inquiry into the hands of the trial judge. Omega Flex suggests that
    the Azzarello decision thereby lowers the burden on the plaintiff to prove that a product
    3
    Omega Flex surmises that the conceptual separation and the related idea that
    the notion of “foreseeability” has no role in a strict liability case framed the parties’
    dispute as one over whether exposure to lightning was an intended condition of using
    the TracPipe System. The Superior Court, according to Omega Flex, focused instead
    on whether the Tinchers could have avoided the harm rather than on the product,
    necessarily injecting negligence concepts into the strict liability inquiry. Premised upon
    these descriptions, Omega Flex emphasizes that this case reflects an “overlap” of
    negligence principles with the proper application of strict liability law. Appellant’s Brief
    at 41.
    [J-80-2013] - 19
    is unreasonably dangerous (and, as a result, is defective). “The jury does not balance
    the risk-utility factors, even though the judge has only done so as a threshold matter.”
    
    Id. at 30-31
    (quoting Moyer v. United Dominion Indus., Inc., 
    473 F.3d 532
    , 538-39 (3d
    Cir. 2007)).    Omega Flex argues that Azzarello creates an anomalous process:
    Azzarello requires a risk-utility analysis dispositive of the claim, but prevents the jury-
    factfinder from reviewing the relevant evidence and, in essence, does not permit either
    the trial court or the jury to actually decide whether a product is unreasonably
    dangerous because its risks outweigh its benefits. “[T]rial courts are permitted to decide
    only whether the evidence is sufficient to submit th[e cost-benefit] issue to the jury, but
    they are prohibited from actually submitting it.” 
    Id. at 31
    (quoting John M. Thomas,
    DEFINING “DESIGN DEFECT”         IN   PENNSYLVANIA: RECONCILING AZZARELLO         AND   THE
    RESTATEMENT (THIRD)     OF   TORTS, 71 Temp. L. Rev. 217, 232 (1998)).4 Omega Flex
    notes that this process is unique to Pennsylvania and is not supported by any reasoned
    authority cited in Azzarello.
    Omega Flex also comments upon the practical implications of Azzarello.
    According to Omega Flex, the central concept that negligence principles are wholly
    separate from strict liability principles effectively generated minimalistic and circular
    instructions for juries “which lack essential guidance concerning the key conception of
    product defect.” 
    Id. at 34
    (quoting Schmidt v. Boardman, 
    11 A.3d 924
    , 940 (Pa. 2011)).
    In this case, Omega Flex notes, the trial court offered the standard Azzarello charge,
    which instructed the jury to decide whether the TracPipe System was defective without
    4
    Omega Flex notes that this approach has the collateral effect of rendering laws,
    regulations, and industry standards irrelevant to the risk-utility inquiry, with deleterious
    and unpredictable consequences for plaintiffs and defendants. Omega Flex does not
    develop this assertion and, as a result, we do not address it in any detail.
    [J-80-2013] - 20
    any reference to whether the product was unreasonably dangerous.             Omega Flex
    argues that, absent a determination of whether the risk was unreasonable, the jury may
    well have found that any risk -- including a justified risk -- rendered the TracPipe System
    defective. The Azzarello instruction, Omega Flex claims, does not offer the jury any
    guidance as to the critical concepts of defect and whether the product is “safe for its
    intended use.” Moreover, Omega Flex argues that the use of the term of art “guarantor”
    in relation to the product, without any explanation of its meaning, misleads the jury into
    holding manufacturers absolutely liable for any injuries caused by the product. Omega
    Flex further offers that the jury’s verdict in its favor on the negligence claim here
    suggests confusion of the jury with respect to the standards applicable to the strict
    liability claim. The Azzarello instructions, Omega Flex emphasizes, have “profoundly
    unfair consequences” to a manufacturer against whom design defect claims are made.
    
    Id. at 35-38.
    Premised upon its criticism, Omega Flex advocates that this Court should
    disapprove the Azzarello decision. Omega Flex acknowledges the principle of stare
    decisis but argues that the Court is not bound to perpetuate the application of unsound
    and unworkable precedent.       Appellant’s Brief at 41-42 (citing, inter alia, Stilp v.
    Commonwealth, 
    905 A.2d 918
    , 966-67 (Pa. 2006); Hack v. Hack, 
    433 A.2d 859
    , 867
    (Pa. 1981)). According to Omega Flex, the Azzarello limitation on the jury’s role, and
    the artificial distinction between negligence and strict liability, have been controversial
    from the beginning, have no real reasoned support or practical importance, and have
    remained unique to Pennsylvania. Omega Flex notes that individual Justices of this
    Court have already suggested that Azzarello should be disapproved. 
    Id. at 44
    (citing
    
    Bugosh, 971 A.2d at 1234
    (Saylor, J., dissenting, joined by Castille, C.J.), Berrier v.
    Simplicity Manuf., Inc., 
    959 A.2d 900
    , 901-02 (Pa. 2008) (Saylor, J., concurring, joined
    [J-80-2013] - 21
    by Castille, C.J.); 
    Phillips, 841 A.2d at 1012-21
    (Saylor, J., concurring, joined by Castille
    and Eakin, JJ.)).
    Next, Omega Flex suggests that, in addition to disapproving Azzarello, the Court
    should adopt the approach to strict liability reflected in the Third Restatement. Omega
    Flex recommends the Third Restatement on the grounds that its articulation of the law is
    specifically intended to address design defects and represents the current mainstream
    view on the topic. According to Omega Flex, the Third Restatement was drafted by “two
    prominent product-liability scholars,” Professors James Henderson and Aaron Twerski,
    and was reviewed in a comprehensive process. Appellant’s Brief at 45. Omega Flex
    describes the Third Restatement as requiring, in design defect cases, a balancing of
    risks and benefits by the finder of fact, upon consideration of a broad range of factors.
    The critical distinction in approaches, as described by Omega Flex, is that “the plaintiff
    could not simply criticize the existing design; instead, the plaintiff would be required to
    prove that the manufacturer could and should have adopted a reasonable alternative
    design.” 
    Id. at 47
    (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2(b) cmt. d).
    Omega Flex argues that the Third Restatement approach is already the accepted
    practice in “crashworthiness” cases (as an exception to Azzarello) and is “neither
    insurmountable nor unduly onerous,” permitting plaintiffs to prevail “regularly” in such
    cases. 
    Id. (citing Harsh
    v. Petroll, 
    887 A.2d 209
    , 211 (Pa. 2005)). Citing cases from
    five states, Omega Flex claims that the Third Restatement has been “widely embraced”
    in other jurisdictions. 
    Id. at 48
    (citing Branham v. Ford Motor Co., 
    701 S.E.2d 5
    , 16
    (S.C. 2010); Wright v. Brooke Grp. Ltd., 
    652 N.W.2d 159
    , 169 (Iowa 2002); Williams v.
    Bennett, 
    921 So. 2d 1269
    , 1275 (Miss. 2006); Jones v. NordicTrack, Inc., 
    550 S.E.2d 101
    , 103 (Ga. 2001); Ruiz-Guzman v. Amvac Chem. Corp., 
    7 P.3d 795
    , 800 (Wash.
    2000)). According to Omega Flex, the Court has the opportunity in this case “to return
    [J-80-2013] - 22
    Pennsylvania to the mainstream of American tort law in strict-liability design-defect
    cases” by embracing the Third Restatement’s “closely reasoned and balanced
    approach.” 
    Id. at 48
    -49 (quoting Phillips and 
    Bugosh, supra
    ). Premised upon these
    arguments, Omega Flex requests a new trial on the strict liability claim conducted under
    the Third Restatement approach.
    The Tinchers respond that the decision of the Superior Court should be affirmed,
    and strict liability actions in Pennsylvania should continue to be governed by the Second
    Restatement.5 According to the Tinchers, establishing the liability of a manufacturer on
    5
    Initially, the Tinchers suggest that the “Court should decline consideration of the
    issue [on which we granted allowance of appeal], as it is not outcome determinative,
    and affirm the lower court ruling.” According to the Tinchers, the circumstances of this
    particular case required the Tinchers to offer evidence at trial that was sufficient to meet
    the requirements of the Second Restatement and Azzarello, as well as the Third
    Restatement. The Tinchers argue that, as a result, “[l]iability for the defective design of
    the TracPipe product” -- and the jury’s verdict -- “is appropriate under either
    Restatement standard.” The Tinchers claim that a judicial determination of the issue
    upon which we granted appeal would be an advisory opinion with no legal effect.
    Appellees’ Brief at 11-17.
    The suggested approach is unpersuasive. The case was tried as it was tried,
    which was according to the Second Restatement and Azzarello. This Court granted
    allowance of appeal to address an issue of law, properly preserved and presented by
    Omega Flex, regarding the very manner in which the legal theories and options were
    apportioned between court and jury, and then the issues as posed to the jury. The
    question of whether the evidence was sufficient to support the jury’s verdict is outside
    the scope of the appeal.
    Moreover, even if sufficiency of the evidence were implicated and was disputed
    on appeal, this Court does not test the sufficiency of the evidence in the abstract: the
    Court would have to engage the manner in which the Tinchers articulated their claims,
    the theory of strict liability they pursued and, most importantly, the manner in which the
    trial court responded and actually instructed the jury on the strict liability claim. A trial
    court’s charge defines the legal universe in which a jury operates for the purposes of the
    verdict. See Commonwealth v. Graham, 
    9 A.3d 196
    , 201-02 & n.9 (Pa. 2010). Yet, in
    this argument, the Tinchers invite the Court to address whether the principles of the
    Third Restatement (a theory outside the legal universe of the jury’s task here) was an
    (continuedQ)
    [J-80-2013] - 23
    a strict liability theory is a two-step process in Pennsylvania: (1) the trial court
    determines as a threshold matter whether a product is unreasonably dangerous and, as
    a result, whether strict liability should be submitted to the jury; and (2) the jury-factfinder
    decides whether the product at issue lacks any element necessary to make it safe for its
    intended use -- or, is defective. The determination of whether a product is unreasonably
    dangerous implicates a balancing of risks and utilities. Appellees’ Brief at 19-20 (citing
    
    Azzarello, 391 A.2d at 1026
    ).
    The Tinchers posit that concepts of negligence have no place in strict liability
    actions, explaining that strict liability is premised upon a social policy of holding
    manufacturers responsible for casting a defective product into the stream of commerce.
    Strict liability, the Tinchers argue, reflects a change in social policy from the principle of
    caveat emptor -- buyer beware -- to the view that a supplier of products is a guarantor of
    its products’ safety.    The Tinchers suggest that, in the modern marketplace, the
    emphasis is on protecting consumers and shifting the risk of loss for injury onto
    suppliers of products because suppliers are in a better position to absorb or distribute
    the loss as a cost of doing business. 
    Id. at 21
    (quoting 
    Azzarello, supra
    ). According to
    the Tinchers, twenty-five years after Azzarello, the fundamental reasons for retaining a
    separation between negligence and strict liability remain, and the Second Restatement
    strikes the appropriate balance. The Second Restatement, the Tinchers argue, “makes
    it clear that the imposition of strict liability for a product defect is not affected by the fact
    (Qcontinued)
    appropriate basis for that jury’s verdict. It would not be. See 
    Schmidt, 11 A.3d at 944
    (“The bare litmus of sufficiency review cannot correct a fundamental error in the
    instructions to lay jurors concerning just what it is that they are deciding.”). Accord
    Appellant’s Reply Brief at 5. Accordingly, we reject the Tinchers’ invitation to summarily
    affirm the decision of the Superior Court on this ground.
    [J-80-2013] - 24
    that the manufacturer or other supplier has exercised ‘all possible care’”; in the
    Tinchers’ view, the compartmentalizing of negligence and strict liability is necessary to
    ensure that manufacturers are held responsible for their products regardless of fault. 
    Id. at 22
    (quoting 
    Phillips, supra
    ).
    According to the Tinchers, the decision in Azzarello “represents strict liability in
    its purest form” because it places the emphasis on scrutinizing the product rather than
    the manufacturer’s conduct. The Tinchers note that a manufacturer’s liability is limited
    to defective products. The Tinchers claim that “defect” is difficult to define: the critical
    consideration is whether the product is unreasonably dangerous.           According to the
    Tinchers, because the question of unreasonable dangerousness “could easily be
    confused by a jury as importing concepts of negligence into a strict liability analysis,” the
    Azzarello Court directed that decision to the trial court rather than to the jury. The
    decision, the Tinchers explain, implicates the balancing of social policies “best
    performed by the [trial] court in making a determination [of] law” and acting as a gate-
    keeper to prevent claims regarding certain products from reaching the jury.
    The Tinchers argue that the Third Restatement abandons a pure strict liability
    analysis in favor of negligence principles.       According to the Tinchers, the Third
    Restatement explicitly provides for consideration of “foreseeable risks of harm proposed
    by the product,” which is a negligence standard. The Tinchers suggest that the Third
    Restatement is not a “natural” and “modest” evolution of strict liability but a “calamitous”
    displacement of the social policy established by forty-seven years of Second
    Restatement precedent. The Tinchers argue that “[s]uch a radical departure . . . is not
    prudent or necessary.”
    The Tinchers also note that a “clear minority” of states have adopted the Third
    Restatement: one state -- Iowa – expressly, and several others have adopted single
    [J-80-2013] - 25
    sections of the Restatement or have used the doctrine as guidance for the formulation
    of the common law. Appellees’ Brief at 28 (citing Wright v. Brooke Group Ltd., 
    652 N.W.2d 159
    (Iowa 2002)). Other states, according to the Tinchers, have considered
    and explicitly declined to adopt the Third Restatement. As example, the Tinchers note
    that the Supreme Court of Illinois rejected the invitation to adopt the Third Restatement
    on the ground that any change that broadly affects public policy was best left to the
    legislature. 
    Id. at 29
    (citing Mikolajczyk v. Ford Motor Co., 
    901 N.E.2d 329
    , 346 (Ill.
    2008)). In Connecticut, the Tinchers state, the Supreme Court explained that the Third
    Restatement places an undue burden of proof upon plaintiffs that might preclude valid
    claims: a product may be defective and unreasonably dangerous to the user, although
    no feasible alternative design may be available, and a jury may infer a defect from the
    evidence without the necessity of expert testimony. 
    Id. 29-30 (citing
    Potter v. Chicago
    Pneumatic Tool Co., 
    694 A.2d 1319
    , 1332 (Conn. 1997); TRW Vehicle Safety Sys., Inc.
    v. Moore, 
    936 N.E.2d 201
    (Ind. 2010); Halliday v. Sturm, Ruger & Co., 
    792 A.2d 1145
    (Md. 2002); Vautour v. Body Masters Sports Indus., Inc., 
    784 A.2d 1178
    (N.H. 2001);
    Green v. Smith & Nephew AHP, Inc., 
    629 N.W.2d 727
    (Wis. 2001); Delaney v. Deere &
    Co., 
    999 P.2d 930
    (Kan. 2000); Rodriguez v. Suzuki Motor Corp., 
    996 S.W.2d 47
    (Mo.
    1999); Sternhagen v. Dow Co., 
    935 P.2d 1139
    (Mont. 1997)).
    The Tinchers claim that Omega Flex erroneously relies upon cases implicating
    the “crashworthiness” exception to general products liability theory under the Second
    Restatement.    This exception, according to the Tinchers, is accepted as such in
    “virtually every [U.S.] jurisdiction” and is typically applied to cases in which an alleged
    defect did not cause the automobile accident or initial impact, but served to increase the
    severity of the injury. The Tinchers argue that “crashworthiness” doctrine cases offer no
    indication that a jurisdiction has embraced the alternative design requirements of the
    [J-80-2013] - 26
    Third Restatement. Appellees’ Brief at 31 (citing Patrick Lavelle, CRASHING INTO PROOF
    OF A   REASONABLE ALTERNATIVE DESIGN; THE FALLACY        OF THE   RESTATEMENT (THIRD)   OF
    TORTS: PRODUCTS LIABILITY, 38 Duq. L. Rev. 1059, 1098-99 (2000)).            The Tinchers
    maintain that any suggestion -- including in the reporters’ commentary to Section 2(b) --
    that the Third Restatement standards are widely accepted is inaccurate and misleading
    because it is simply premised upon cases addressing the crashworthiness doctrine
    exception. 
    Id. at 32
    (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2(b) cmt.
    d & nn. II-A, II-C (1997)).
    Finally, the Tinchers argue that the Third Restatement would accomplish a
    “radical departure” from existing public policy because it would impose “an undue
    hardship on plaintiffs in the pursuit of meritorious claims.” According to the Tinchers,
    the Third Restatement shifts the emphasis from the existing product to speculation of
    what similar product could have been designed.           In the Tinchers’ view, the Third
    Restatement represents “an instrument of tort reform” rather than an articulation of
    existing law, which will impose a prohibitive cost on plaintiffs and counsel to produce
    alternative designs in the pursuit of otherwise meritorious claims. 
    Id. at 33-34
    (citing
    Gary Wilson et al, THE FUTURE   OF   PRODUCTS LIABILITY   IN   AMERICA, 27 Wm. Mitchell L.
    Rev. 85, 99-100 (2000); Frank J. Vandall and Joshua F. Vandall, A CALL             FOR AN
    ACCURATE RESTATEMENT (THIRD)     OF   TORTS: DESIGN DEFECT, 33 U. Mem. L. Rev. 909,
    923 (2003)).     The Third Restatement, according to the Tinchers, is a boon to
    manufacturers by placing at a “tremendous disadvantage” injured consumers who
    would necessarily have to become experts and seek to redesign the product that
    caused the injury; the cost of this exercise may exceed the benefit of a recovery.
    Additionally, the Tinchers argue that the attendant costs of representing an injured
    plaintiff in a Third Restatement jurisdiction would discourage counsel from representing
    [J-80-2013] - 27
    injured consumers. The Tinchers suggest that application of the Third Restatement
    would vitiate the public policy upon which products liability law is premised, i.e., of
    holding manufacturers liable for defects in products placed in the stream of commerce;
    manufacturers are in a better position to absorb the costs of injuries than are individual
    consumers.
    In an alternative argument, the Tinchers suggest that the Court could disapprove
    Azzarello but continue to apply the Second Restatement rather than the Third
    Restatement articulation of the law. The Tinchers note that this resolution of the matter
    would protect the social policies underlying products liability yet remove any difficulties
    caused by the decision in Azzarello.      See Appellees’ Brief at 41 n.16.       Ultimately,
    however, the Tinchers ask the Court to affirm the decision of the Superior Court.
    In reply, Omega Flex reiterates its position that the differences between the
    Second Restatement and the Third Restatement are modest; the difficulty with
    Pennsylvania’s approach to products liability instead results from the application of
    Azzarello. Omega Flex suggests that the Tinchers do not oppose a disposition of this
    appeal in which the Court would disapprove Azzarello, although the parties disagree
    whether the Court should go further and adopt the Third Restatement. With regard to
    the Third Restatement, Omega Flex argues that the “reasonable alternative design”
    element of proof does not erect the types of insurmountable barriers to meritorious
    claims that the Tinchers portray: plaintiffs may adduce proof of existing products (i.e.,
    predecessor products or competitor products) or no expert proof at all if the feasibility of
    an alternative design is obvious and understandable to lay persons. Appellant’s Reply
    Brief at 20 (citing RESTATEMENT (3D) OF TORTS: PRODUCTS LIABILITY § 2 cmt. f). Omega
    Flex presents the Third Restatement as a refinement of its predecessor with specific
    provisions for design defects, whose approach has already been accepted in the form of
    [J-80-2013] - 28
    numerous exceptions to the general Second Restatement rules. Moreover, Omega
    Flex claims that, contrary to the Tinchers’ representations, adherence to the Second
    Restatement view has become the minority position. Omega Flex concludes that the
    case should be retried before a jury properly instructed, and the instruction should be
    premised upon the Third Restatement.
    III.   Analysis
    A.     The Scope and Standard of Review
    As a preliminary matter, we observe that the parties pose and argue a seemingly
    pristine question of law, little dependent on the facts of record, primarily regarding
    whether this Court should replace the strict liability analysis of the Second Restatement
    with the analysis of the Third Restatement. In part, this is a function of how the issues
    were presented to the lower courts and of the lower courts’ recognition that the question
    of whether to “move” to the Third Restatement has been a matter of debate and
    speculation in interested legal circles and in federal court cases (as well as in separate
    opinions in this Court); all recognize that, as a common law matter, the decision of
    whether to adopt principles from the Third Restatement would ultimately be made by
    this Court. As a result of this background circumstance, the lower courts offered no
    principled assessment or practical perspective regarding the core, and strictly legal,
    positions now presented by the parties to this Court. While the importance of lower
    courts’ analysis of a proposed change in the law as applied to the facts of a particular
    case and the centrality of such analysis to the development of the common law cannot
    be understated, we note, nevertheless, that there is no suggestion by either party that
    the issue so presented was waived. See Scampone v. Highland Park Care Center,
    LLC, 
    57 A.3d 582
    , 604-05 (Pa. 2012) (judicial determinations to be read against facts);
    [J-80-2013] - 29
    
    Schmidt, 11 A.3d at 941-42
    (listing considerations relevant on appeal to presentation
    and preservation of challenges to prevailing precedent). Accordingly, we proceed to a
    review of the merits of the parties’ dispute.
    Properly framed, then, the question before the Court is whether Omega Flex was
    entitled to relief, in the form of judgment notwithstanding the verdict or a new trial,
    premised upon its argument that the jury should have been instructed on the law
    represented by the Third Restatement. The relevant facts are not in dispute and the
    issue posed is one of law. Accordingly, our review of the Superior Court’s decision is
    plenary and de novo. Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc., 
    20 A.3d 468
    , 474-75 (Pa. 2011).
    This Court has explained that, “[w]hen a court instructs the jury, the objective is
    to explain to the jury how it should approach its task and the factors it should consider in
    reaching its verdict.” On appeal, this Court examines jury instructions to determine
    whether the trial court abused its discretion or offered an inaccurate statement of law
    controlling the outcome of the case. A jury charge is adequate “unless the issues are
    not made clear, the jury was misled by the instructions, or there was an omission from
    the charge amounting to a fundamental error.” Commonwealth v. Chambers, 
    980 A.2d 35
    , 49-50 (Pa. 2009); see also Price v. Guy, 
    735 A.2d 668
    , 670 (Pa. 1999). This Court
    will afford a new trial if an erroneous jury instruction amounted to a fundamental error or
    the record is insufficient to determine whether the error affected the verdict. See, e.g.,
    
    Price, 735 A.2d at 672
    .
    Meanwhile, greater relief in the form of a judgment notwithstanding the verdict is
    appropriate only if the movant is entitled to judgment as a matter of law, i.e., if the
    evidence presented at trial was such that no two reasonable minds could disagree that
    the verdict should be in favor of the movant. Degenhardt v. Dillon Co., 
    669 A.2d 946
    ,
    [J-80-2013] - 30
    950 (Pa. 1996) (citing Boettger v. Miklich, 
    633 A.2d 1146
    , 1148 n.2 (Pa. 1993)). An
    award of judgment notwithstanding the verdict “is appropriate only if, reading the record
    in the light most favorable to [the verdict winner], and affording [the verdict winner] the
    benefit of all reasonable inferences, we would conclude that there is insufficient
    competent evidence to sustain the verdict.” General 
    Services, 898 A.2d at 604
    .
    The parties’ present dispute implicates foundational notions in the law of strict
    liability. To decide the dispute, we necessarily address: (1) what evidence is sufficient
    under Pennsylvania law to prove a claim of strict liability in tort; (2) the proper role of the
    trial judge; and (3) the appropriate manner of instructing the jury. As we will explain,
    these questions can be further complicated by the particulars of the tort, or the product,
    at issue.
    Furthermore, central to the parties’ dispute are questions of whether this Court
    should disapprove the 1978 decision in Azzarello, and whether the Court should
    abandon the Second Restatement articulation of the strict liability cause of action and,
    in its place, “adopt” as the law of Pennsylvania the Third Restatement formulation of
    strict liability in tort. These questions implicate separate foundational principles of stare
    decisis and judicial restraint.
    The doctrine of stare decisis “commands judicial respect for prior decisions of
    this Court and the legal rules contained in those decisions.” 
    Stilp, 905 A.2d at 954
    n.31;
    see also Kendrick v. District Attorney of Philadelphia County, 
    916 A.2d 529
    , 539 (Pa.
    2007). The Court honors the stare decisis doctrine to ensure “evenhanded, predictable,
    and consistent development of legal principles, foster[] reliance on judicial decisions,
    and contribute[] to the actual and perceived integrity of the judicial process.” 
    Stilp, 905 A.2d at 954
    n.31. But, the Court’s general faithfulness to precedent is not sufficient
    justification to buttress judicial decisions proven wrong in principle or “which are
    [J-80-2013] - 31
    unsuited to modern experience and which no longer adequately serve the interests of
    justice.” In re Carney, 
    79 A.3d 490
    , 505 (Pa. 2013); Ayala v. Philadelphia Bd. of Public
    Ed., 
    305 A.2d 877
    , 888 (Pa. 1973) (quoting Griffith v. United Air Lines, Inc., 
    203 A.2d 796
    , 806 (Pa. 1964)). In this sense, we have long recognized that the doctrine of stare
    decisis is not a vehicle for perpetuating error, but “a legal concept which responds to the
    demands of justice and, thus, permits the orderly growth processes of the law to
    flourish.” Pa. State Ass’n of County Comm’rs v. Commonwealth, 
    52 A.3d 1213
    , 1230
    (Pa. 2012) (quoting Buckwalter v. Bor. of Phoenixville, 
    985 A.2d 728
    , 730-31 (Pa.
    2009)). Common law permits adjustment and development in the law, recognizing that
    precedent is not infallible and judicial honesty demands corrective action in appropriate
    cases.    See 
    Ayala, 305 A.2d at 888
    (quoting Olin Mathieson C. Corp. v. White C.
    Stores, 
    199 A.2d 266
    , 268 (Pa. 1964)).
    We have recently stressed in multiple cases that the common law “develops
    incrementally, within the confines of the circumstances of cases as they come before
    the Court.” 
    Scampone, 57 A.3d at 604
    (quoting Maloney v. Valley Med. Facilities, Inc.,
    
    984 A.2d 478
    , 489–90 (Pa. 2009)). Causes of action at common law evolve through
    either directly applicable decisional law or by analogy and distinction. Id.; accord City of
    Philadelphia v. Cumberland County Bd. of Assessment Appeals, 
    81 A.3d 24
    , 54 (Pa.
    2013). Among the duties of courts is “to give efficacy to the law . . . and though they
    cannot make laws, they may mould the forms of the ancient laws to the exigency of the
    new case.” Reed v. Garvin’s Executors, 
    1821 WL 1898
    at *7 (Pa. 1821). Notably, its
    equitable powers afford the Court the authority to modify the common law forms of
    action to the right involved, rather than limiting the authority to testing the right by the
    forms of action. See Kase v. Kase, 
    34 Pa. 128
    , 
    1859 WL 8779
    at *4 (Pa. 1859). See
    also PA. CONST. art. V, § 10(c) (Supreme Court has power “to prescribe general rules
    [J-80-2013] - 32
    governing practice, procedure and the conduct of all courts . . . if such rules are
    consistent with this Constitution and neither abridge, enlarge nor modify the substantive
    rights of any litigant. . . .”); e.g., Pa.R.C.P. No. 1001(b) (“There shall be a civil action in
    which “shall be brought all claims for relief heretofore asserted in (1) the action for
    assumpsit, (2) the action of trespass, and (3) the action in equity”).
    Reliance upon the inherent and necessary flexibility of common law rules does
    not provide, however, the dispositive answer to the question of whether “adoption” of
    the American Law Institute’s new formulation for tort law is appropriate or advisable.
    This Court has grown more careful over the years when presented with invitations to
    issue broad-based pronouncements in areas where it is apparent that such
    pronouncements are better suited to the information-gathering and give-and-take
    balancing of competing concerns available in the legislative arena. Thus, for example, it
    is difficult to imagine a modern court simply adopting something so broad-based and
    legislative in character as an outside organization’s Restatement of the Law, even if it is
    the product of an esteemed organization.         That being said, the fact is that, in this
    particular area of the law, the Court has played a major developmental role; and when
    an issue is properly joined in a case, we are of course duty-bound to resolution and
    explication of the matter. And, in this process, while the line of demarcation between
    advancing or correcting the common law -- or, perhaps, accounting for nuance not
    advanced, perceived, or predicted in the crucible of prior cases -- and a foray into
    legislative policy-making is a gray area, some principles governing decision are readily
    apparent.
    The first principle applies generally and involves the policy-making authority of
    the General Assembly. In considering whether a long-established common law rule is
    out of step with modern experience, we assume that the General Assembly is aware of
    [J-80-2013] - 33
    the rule, which, if unchanged by legislation, presumably reflects continued legislative
    policy. See Everhart v. PMA Ins. Group, 
    938 A.2d 301
    , 307 (Pa. 2007). Of course,
    “[t]here is not a rule of the common law in force today that has not evolved from some
    earlier rule of common law, gradually in some instances, more suddenly in others,
    leaving the common law of today when compared with the common law of centuries ago
    as different as day is from night.” 
    Hack, 433 A.2d at 868-69
    . Change is more often
    gradual because a court seldom is in possession of sufficient information concerning all
    relevant factors to justify support of a rule of general application inconsistent with the
    existing common law formulation of the tort.        See Official Comm. of Unsecured
    Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers,
    LLP, 
    989 A.2d 313
    , 332-33 (Pa. 2010). “[C]ommon-law decision-making is subject to
    inherent limitations, as it is grounded in records of individual cases and the advocacy by
    the parties shaped by those records. Unlike the legislative process, the adjudicatory
    process is structured to cast a narrow focus on matters framed by litigants before the
    Court in a highly directed fashion.” 
    Id. Consistency with
    the general rule permits the
    Court to benefit from the honed sensibilities and accumulated wisdom of the rule’s
    application in a myriad of individual cases.
    Two other considerations are specific to the nature and recognized role of a
    “Restatement” of law in the development of Pennsylvania common law. Restatements
    of law published by the American Law Institute purport to offer a synthesis of American
    common law, which articulates the reasoned, mainstream, modern consensus on
    principles of broad application intended to govern large numbers of cases. 
    Scampone, 57 A.3d at 606
    ; see also Coyle v. Richardson-Merrell, Inc., 
    584 A.2d 1383
    , 1385 (Pa.
    [J-80-2013] - 34
    1991).6 Consistent with its adjudicative rather than policy-making role, the Court has
    “adopted” or deemed sections of a restatement a proper statement of Pennsylvania law
    if the cause of action and its contours are consistent with the nature of the tort and
    Pennsylvania’s traditional common law formulation. See, e.g., 
    Scampone, 57 A.3d at 606
    ; Walnut Street 
    Assocs., 20 A.3d at 478-79
    ; Bilt-Rite Contractors, Inc. v. The
    Architectural Studio, 
    866 A.2d 270
    , 285 (Pa. 2005). In this sense, the adoption of a
    restatement formulation intended to advance the law cannot be so unmoored from
    existing common law and produce such a policy shift that it amounts in actuality or
    public perception to a derogation of legislative authority, and the concomitant
    suggestion that such authority is reposed in the Judiciary or in the American Law
    Institute.   Consistent with this principle, the Court must generally show restraint in
    6
    The Institute is a non-profit organization of 4000 lawyers, judges, and law
    professors, established to produce scholarly work to clarify, modernize, and otherwise
    improve the law. Among other tasks, the Institute drafts, discusses, revises, and
    publishes Restatements of the Law.
    The parties here, and several commentators, have engaged in a debate over
    whether the Third Restatement of Torts, Products Liability, does indeed articulate the
    modern consensus in the area of strict liability. Some commentators have questioned
    whether the reporters of the Third Restatement favored an industry viewpoint in their
    task. Compare Henderson, 83 Cornell L. Rev. 867 (reporters defend process of drafting
    Third Restatement) with John F. Vargo, THE EMPEROR’S NEW CLOTHES: THE AMERICAN
    LAW INSTITUTE ADORNS A “NEW CLOTH” FOR SECTION 402A PRODUCTS LIABILITY DESIGN
    DEFECTS -- A SURVEY OF THE STATES REVEALS A DIFFERENT W EAVE, 26 U. Mem. L. Rev.
    493 (1996) (criticizing drafting process of Third Restatement, surveying law in fifty
    states, and cataloguing several approaches to strict liability). As an institution, this
    Court is not particularly equipped to resolve such disputes, and in light of our
    disposition, we find it unnecessary to engage the debate. But see, e.g., Halliday v.
    Sturm, Ruger & Co., Inc., 
    792 A.2d 1145
    , 1159 (Md. 2002) (in light of ongoing
    controversy, declining to “cast aside” existing jurisprudence in favor of broad application
    of Third Restatement’s risk-utility standard). The fact of the debate, however, is a
    reminder of the imperative of judicial modesty in passing upon a request to “adopt” a
    Restatement wholesale.
    [J-80-2013] - 35
    altering existing allocations of risk created by long-tenured common law rules and resist
    the temptation of experimentation with untested social policies, especially where the
    individual record and the advocacy of the parties in the context of that record offer little
    more than abstract justifications. Thus, the Court is not in a position to upend risks and
    expectations premised upon broad-based arguments calling for a judgment about
    socially acceptable economic incentives; the legislative setting is a preferable forum for
    such an endeavor. See City of 
    Philadelphia, 81 A.3d at 55
    ; accord Pegram v. Herdrich,
    
    530 U.S. 211
    , 221-22 (2000) (“[C]omplicated factfinding and . . . debatable social
    judgment are not wisely required of courts unless for some reason resort cannot be had
    to the legislative process, with its preferable forum for comprehensive investigations and
    judgments of social value. . . .”); Kristen David Adams, THE FOLLY         OF   UNIFORMITY?
    LESSONS FROM THE RESTATEMENT MOVEMENT, 33 Hofstra L. Rev. 423 (2004) (assessing
    effect of employing restatement as default common law in Virgin Islands).
    Moreover, because the language of a provision of the restatement, even to the
    extent it was adopted by the Court verbatim, has not been vetted through the crucible of
    the legislative process, a court applying the restatement formulation should betray
    awareness that the language of an “adopted” restatement provision is not “considered
    controlling in the manner of a statute.”     A given restatement section simply states
    principles of the common law, general rules whose validity depends on the reasoning
    that supports them. 
    Coyle, 584 A.2d at 1385
    . As with any other common law rules, the
    normative principles of an “adopted” section of a restatement are properly tested
    against the facts of each case. “For one thing, it is very difficult for courts to determine
    the range of factual circumstances to which a particular rule should apply in light of the
    often myriad possibilities”; of particular concern is “the possibility that words or phrases
    or sentences may be taken out of context and treated as doctrines.” Maloney, 984 A.2d
    [J-80-2013] - 36
    at 489–90. In this regard, we underscore the importance of avoiding formulaic reading
    of common law principles and “wooden application of abstract principles to
    circumstances in which different considerations may pertain.” 
    Scampone, 57 A.3d at 605
    (citing 
    Maloney, 984 A.2d at 485-86
    ). Thus, as to any particular claim in a disputed
    matter, a court should consider whether the application is logical and serves the
    interests of justice, and whether the general principle has been accepted elsewhere.7
    “[T]he court always retains the right and the duty to test the reason behind a common
    law rule in determining the applicability of such rule to the facts before it. In the face of
    contrary arguments as to why the rule should not apply in a given case, it is not enough
    to say merely that the rule as stated contains no exceptions.” 
    Coyle, 584 A.2d at 1385
    .
    Stated otherwise, “[w]here the facts of a case demonstrate that the rule outruns the
    reason, the court has the power, indeed the obligation, to refuse to apply the rule, a
    power for the most part unavailable where the rule is legislatively ordained.” 
    Id. B. Strict
    Liability in Pennsylvania: the Common Law
    In the arena of strict liability, this Court does not write on a blank slate; the
    common law is the starting point of our explication of the conceptual framework for strict
    7
    Consideration for whether the general principle has been accepted elsewhere
    reflects the understanding that the restatement purports to represent the majority view
    on the subject in the United States. See Adams, 33 Hofstra L. Rev. at 443-44. But,
    questions remain subject to dispute regarding the “essential nature of the modern
    Restatements” and whether uniformity among jurisdictions is necessary and wise. See
    generally Vargo, 26 U. Mem. L. Rev. at 515-36 (describing internal criticism of some
    that membership of American Law Institute drafting Third Restatement “[wa]s largely
    comprised of those who represent[ed] corporate interests” and who “fail[ed] to leave the
    client at the door”); and see Adams, 33 Hofstra L. Rev. at 443-44 (offering argument
    that “fit” for jurisdiction that shapes common law “is more important than uniformity”
    among American jurisdictions).
    [J-80-2013] - 37
    liability in tort in Pennsylvania. The evolution of strict liability jurisprudence has four
    distinct, relevant periods: early cases addressing the evolution of strict liability and the
    adoption of the Second Restatement’s articulation of the cause of action; the advent of
    Azzarello; post-Azzarello jurisprudence; and recent judicial expressions addressing the
    Third Restatement.
    At the outset, we note that disputes over liability for personal and economic harm
    caused by products, although perhaps not articulated in those same terms, likely
    accompanied the earliest division of labor. Efficiency, specialization, and the evolution
    of expertise, separately and as precursors to invention and innovation, were significant
    benefits of this division of labor.8    But, the same division of labor, especially in its
    increasingly complex permutations, caused a physical and moral separation between
    sellers and buyers that inevitably generated disputes. The resolution of these disputes
    in English and American jurisdictions over the several centuries created a rich body of
    experience-based common sensibilities and wisdom from which the modern principles
    8
    David Hume said of the “partition of employments”:
    When every individual person labours a-part, and only
    for himself, his force is too small to execute any considerable
    work; his labour being employ’d in supplying all his different
    necessities, he never attains a perfection in any particular
    art; and as his force and success are not at all times equal,
    the least failure in either of these particulars must be
    attended with inevitable ruin and misery. Society provides a
    remedy for these three inconveniences. By the conjunction
    of forces, our power is augmented: By the partition of
    employments, our ability [in]creases: And by mutual succor
    we are less expos’d to fortune and accidents. ’Tis by this
    additional force, ability, and security, that society becomes
    advantageous.
    David Hume, A Treatise of Human Nature (1739).
    [J-80-2013] - 38
    of the common law of products liability evolved. Review of decisional law illustrates a
    general trend of gradual expansion of civil liability for harm to persons or property; as it
    happens, whether a particular development occurred in the context of injury caused by
    a product or not, the principles of liability were generally articulated in broad terms
    applicable to products. Compare, e.g., Breckbill v. Lancaster Turnpike Co., 
    3 U.S. 496
    ,
    499 (1799) (action for implied assumpsit (i.e., breach of implied contract) cannot be
    maintained because corporation can only contract by deed under corporate seal) with
    Bank of Columbia v. Patterson’s Administrators, 7 Cranch 299, 306 (U.S. February 05,
    1813) (corporation may, without seal and upon parol, enter into contract, express or
    implied, for enforcement of which, action may lie); Chestnut Hill & Springhouse Turnpike
    Co. v. Rutter, 
    1818 WL 2109
    at *7 (Pa. 1818) (corporation, whose employees cause
    injury while acting under its authority, is liable in tort for employees’ negligent or
    intentional acts; rejecting argument that, because corporation cannot be authorized by
    law to commit tort, corporation can invest no one with power for that purpose and, as
    result, is not liable for torts of employees); Appeal of Williams, 
    47 Pa. 307
    , 
    1864 WL 4682
    at *2 (Pa. 1864) (Agnew, J.) (common law rule of corporate immunity, premised
    upon “the quaint aphorism that a corporation has no soul,” was legal fiction that gave
    “place to sound reason and a better morality” of holding corporations liable in tort);
    Centofanti v. Pennsylvania R. Co., 
    90 A. 558
    , 560 (Pa. 1914) (applying remedial statute
    that addressed absence of common law right of action for injury resulting in death);
    MacPherson v. Buick Motor Co., 
    217 N.Y. 382
    (N.Y. 1916) (if manufacturer, who sells
    product for use without inspection by customers, is negligent, where danger is to be
    foreseen, liability will follow; discarded burden to prove that product was inherently
    dangerous); Flagiello v. Pennsylvania Hosp., 
    208 A.2d 193
    , 208 (Pa. 1965) (discarded
    judicially-created charitable immunity in tort, i.e., for hospitals); Kassab v. Central Soya,
    [J-80-2013] - 39
    
    246 A.2d 848
    , 853-56 (Pa. 1968) (remote supplier of defective product may be sued for
    breach of warranty; discarded burden to prove vertical privity); Salvador v. Atlantic Steel
    Boiler Co., 
    319 A.2d 903
    , 907 (Pa. 1974) (injured user may sue for breach of warranty,
    even if user is not purchaser, member of purchaser’s family or household, or guest in
    purchaser’s    house;    discarded     burden    to   prove   horizontal   privity).     Accord
    Commonwealth v. Koczwara, 
    155 A.2d 825
    , 828 n.1 (Pa. 1959) (application of absolute
    vicarious liability for acts of another in criminal case resulting in imprisonment deprives
    criminal defendant of due process of law; “[D]istinction between respondeat superior in
    tort law and its application to the criminal law is obvious[: i]n tort law, the doctrine is
    employed for the purpose of settling the incidence of loss upon the party who can best
    bear such loss[; but, w]e impose penal treatment upon those who injure or menace
    social interests, partly in order to reform, partly to prevent the continuation of the anti-
    social activity and partly to deter others.”).
    By the 1960s, Pennsylvania was among those jurisdictions whose courts had
    accepted an application of civil liability without proof of negligence in cases of injury
    caused by food products. See William L. Prosser, THE ASSAULT UPON                  THE   CITADEL
    (STRICT LIABILITY TO    THE   CONSUMER), 69 Yale L. J. 1099, 1103-10 (1960) (citing, inter
    alia, Caskie v. Coca-Cola Bottling Co., 
    96 A.2d 901
    (Pa. 1953) (plaintiff who drank from
    bottle contaminated with hydrochloric acid established breach of implied warranty of
    fitness and did not have burden to prove that contamination was due to defendant’s
    negligence or dereliction).9 See also Catani v. Swift & Co., 
    95 A. 931
    (Pa. 1915) (where
    sale of food article is for immediate consumption, there is implied warranty that food is
    9
    William L. Prosser was the Dean of the School of Law at the University of
    California, Berkeley, from 1948 to 1961 and a senior authority in the publication of the
    case law book “Prosser, Wade and Schwartz’s Torts, Cases and Materials.”
    [J-80-2013] - 40
    wholesome and fit for purpose intended, irrespective of seller’s knowledge of disease or
    defects therein; “prima facie case is made out by proof that the meat sold by defendant
    was diseased and caused the death of plaintiff’s husband”)). Redress for injury caused
    by   other   products   was    available      in    tort    (by   asserting,   e.g.,   negligence,
    misrepresentation, or fraud claims) or by asserting breach of warranty claims. These
    causes of action, and their attendant respective forms of pleading, remain available to
    plaintiffs today, forming the greater body of products liability law. Accord 
    Lance, 85 A.3d at 440
    n.8.
    By the 1960s, plaintiffs had sought to establish liability of sellers of products
    primarily via actions in negligence and breach of warranty, on the assumption that these
    recognized causes of action provided the best approximation of justice in individual
    cases then available. Negligence, in tort, spoke to the notion of redress for a legal
    wrong or direct and forcible injury to the person, land, or chattels of another. See R.F.V.
    Heuston, SALMOND    ON THE    LAW   OF   TORTS 4 (17th ed. 1977). Negligence theory also
    offered the convenience that it did not require proof of knowledge of a particular defect
    in the product, but simply the failure to exercise due care had the defect been
    foreseeable. Meanwhile, a breach of warranty action, sounding in assumpsit, was at its
    origin an action in tort, which “transformed into an action of contract, becoming
    afterwards a remedy where there was neither tort nor contract.” James Barr Ames, The
    History of Assumpsit in 3 SELECT ESSAYS            IN   ANGLO-AMERICAN LEGAL HISTORY 1, 298
    (1909). The word assumpsit suggested the making of a promise and, originally, the
    actionable conduct was the breach of an express promise.                   The cause of action
    evolved, however, to encompass the breach of an implied promise, and even of a
    fictitious promise. See 
    id. (commenting upon
    “assumpsit” as illustration of “the flexibility
    and power of self-development of the Common Law”). “[W]arranty (unlike negligence
    [J-80-2013] - 41
    which is a tort concept based on fault) is not a concept based on fault or on the failure to
    exercise reasonable care.       But this does not mean that warranty is necessarily
    contractual or non-tortious in nature.     Liability in warranty arises where damage is
    caused by the failure of a product to measure up to express or implied representations
    on the part of the manufacturer or other supplier. Accordingly, an injured person is not
    required to prove negligence in a warranty-products liability case.” Putman v. Erie City
    Mfg. Co., 
    338 F.2d 911
    , 913 n.8 (5th Cir. 1964) (quoting Frumer and Friedman § 16A p.
    358). Elements of both the negligence and breach of warranty causes of action, as they
    had thus developed, foreshadowed the evolution of jurisprudence in the area of strict
    liability, and increasingly resonated with courts.
    1.     The Second Restatement and the Early Cases
    Early decisional law in Pennsylvania explained the genesis and nature of the
    strict liability cause of action, with reference to Section 402A of the Second
    Restatement. Section 402A of the Second Restatement states:
    § 402A Special Liability of Seller of Product for
    Physical Harm to User or Consumer
    (1) One who sells any product in a defective condition
    unreasonably dangerous to the user or consumer or to his
    property is subject to liability for physical harm thereby
    caused to the ultimate user or consumer, or to his property, if
    (a) the seller is engaged in the business of selling
    such a product, and
    (b) it is expected to and does reach the user or
    consumer without substantial change in the condition in
    which it is sold.
    (2) The rule stated in Subsection (1) applies although
    (a) the seller has exercised all possible care in the
    preparation and sale of his product, and
    [J-80-2013] - 42
    (b) the user or consumer has not bought the product
    from or entered into any contractual relation with the seller.
    RESTATEMENT (2D) OF TORTS § 402A (1965).
    The commentary to the Second Restatement traces the roots of the higher
    degree of responsibility placed upon sellers of goods to English criminal statutes of the
    Thirteenth Century that imposed penalties upon persons who supplied “corrupt food and
    drink.” RESTATEMENT (2D)     OF   TORTS § 402A cmt. b. As these criminal statutes were
    repealed, judicial decisions referred in dicta to the civil liability of sellers to those to
    whom they sold “corrupt victuals.” See Prosser, 69 Yale L.J. at 1104. Early American
    jurisprudence denominated the special civil responsibility as “warranty,” imposed upon
    the seller of food in favor of the direct purchaser. At the beginning of the Twentieth
    Century, judicial decisions extended sellers’ “strict liability” beyond the direct purchaser
    to injured consumers. 
    Id. The decisions
    articulated an exception to the general rule of
    more direct liability premised upon proof of negligence or privity of contract. “In the
    beginning, these decisions displayed considerable ingenuity in evolving more or less
    fictitious theories of liability to fit the case. The various devices included an agency of
    the intermediate dealer or another to purchase for the consumer, or to sell for the seller;
    a theoretical assignment of the seller’s warranty to the intermediate dealer; a third party
    beneficiary contract; and an implied representation that the food was fit for consumption
    because it was placed on the market, as well as numerous others.” RESTATEMENT (2D)
    OF   TORTS § 402A cmt. b. Later jurisprudence settled upon a theory of warranty “running
    with the goods” or made directly to the consumer; the alternative was strict liability in
    tort. After 1950, jurisdictions extended the rule of strict liability beyond the sale of food
    for human consumption, to other products intended for intimate bodily use. Finally, in
    the late 1950s, courts began applying these developed rules of strict liability to the sale
    of any product. Id.; see also Prosser, 69 Yale L.J. at 1103-14 (stating, inter alia, that
    [J-80-2013] - 43
    Pennsylvania had extended application of a heightened responsibility to sellers of
    products other than food in Jarnot v. Ford Motor Co., 
    156 A.2d 569
    (Pa. Super. 1959),
    premised upon misconstruction of language in earlier cases).
    In 1966, this Court took a major step by “adopting” the formulation of Section
    402A of the Second Restatement of Torts as the common law of Pennsylvania. In
    Webb, 
    220 A.2d 853
    , the Court vacated the trial court’s order to dismiss the case and
    remanded with instructions for the trial court to permit the plaintiff to amend his
    complaint to add a cause of action premised upon the theory of strict liability in tort as
    articulated by the Second Restatement. The plaintiff in Webb had been severely injured
    when a beer keg exploded and, as a result, filed a complaint “in trespass,” asserting an
    “exclusive control” theory of negligence -- essentially res ipsa loquitur, see, e.g., Loch v.
    Confair, 
    93 A.2d 451
    (Pa. 1953) -- against the beer distributor, the brewer who had filled
    the keg, and the manufacturer of the keg.           The trial court sustained preliminary
    objections, reasoning that the plaintiff had not joined in the suit before the expiration of
    the statute of limitations all parties against whom an inference of negligence could be
    drawn, i.e., the plaintiff’s father, who had purchased the keg, and the plaintiff’s brother,
    who had tapped the keg. On appeal, the Court, in an opinion by Mr. Justice Cohen,
    offered little explanation of its reasoning for formally adopting the Second Restatement
    except by reference to the responsive opinions of Messrs. Justice Jones and Roberts in
    Miller v. Preitz, 
    221 A.2d 320
    (Pa. 1966), filed in a companion decision entered the
    same day as Webb. The relevant reasoning of the Webb Court in its entirety reads as
    follows:
    We need not, however, determine whether or not the
    lower court erred with regard to the law of exclusive control,
    for there is another and clearer issue which is determinative
    of this appeal. That issue is the nature and scope of the
    liability in trespass of one who produces or markets a
    [J-80-2013] - 44
    defective product for use or consumption. The development
    of the law in that area is chronicled in the Concurring and
    Dissenting Opinions of Justices Jones and Roberts to the
    decision of this Court in Miller v. Preitz, 
    221 A.2d 320
    (Pa.
    1966). One will also find there citations to modern case law
    and commentaries which extend and recommend the
    extension of the law of strict liability in tort for defective
    products. The new Restatement of Torts reflects this
    modern attitude. Section 402A thereof states: [Quoting in
    full Section 402A of the Second Restatement.]
    We hereby adopt the foregoing language as the law
    of Pennsylvania.
    The plaintiff in this litigation, therefore, must be given
    an opportunity to plead and prove his case. . . 
    . 220 A.2d at 854
    .     Mr. Justice Eagen filed a joining concurring opinion, noting his
    preference for a limited application of the Second Restatement. Mr. Chief Justice Bell
    filed a dissenting opinion. See n.10 infra.
    The several opinions filed in Miller offer substantially more insight than Webb into
    the genesis of the strict liability tort in Pennsylvania and the Court’s decision to adopt
    the Second Restatement to define its parameters. The Miller plaintiff was the estate
    administrator of a deceased infant, who was fatally injured when a vaporizer-humidifier
    used to relieve congestion in his nose shot boiling water on his body. The plaintiff filed
    a complaint asserting a breach of the implied warranty of merchantability against the
    manufacturer, the distributor, and the retail pharmacy that had sold the vaporizer-
    humidifier to the deceased infant’s aunt. The infant had used the product in the aunt’s
    home, next door to his family’s home.         In relevant part, the trial court sustained
    preliminary objections to the complaint, on the ground that the implied warranty did not
    extend to the deceased infant because he had not been in privity of contract with any of
    the defendants.
    [J-80-2013] - 45
    The Miller Court reversed the judgment as a matter of law entered in favor of a
    retailer because the deceased infant, who was harmed by the vaporizer-humidifier sold
    by the retailer, was “in the buyer’s family” and, notwithstanding the infant’s lack of privity
    with the retailer, his representative had met the prerequisites for pursuing a breach of
    warranty action under the plain language of the Uniform Commercial Code.                  (By
    comparison, the Webb plaintiff had pursued an action in tort on a theory of negligence.)
    Additionally, the Miller Court affirmed the judgment in favor of the manufacturer and of
    the distributor, reasoning that the Code’s provisions did not extend warranty liability to
    remote sellers in the chain of distribution. 
    Id. at 32
    4 (citing 12A P.S. § 2-318). In both
    respects, according to the Court, the language of the Uniform Commercial Code was
    dispositive. The Miller Court viewed abandoning the requirement of privity in warranty
    actions as unnecessary, noting the expectation that strict liability in tort would vindicate
    public policy relating to products liability and accomplished a similar result to
    abandoning privity.
    Justice Jones concurred in the decision to reverse the judgment against the
    retailer, but dissented from the Court’s disposition with respect to the manufacturer and
    distributor of the product. The dissent was premised in part upon the view that, if the
    Court retained the requirement of privity, the Court should adopt the Second
    Restatement and thereby relegate all actions in the products liability field to tort. The
    dissent described the state of the law then existing:
    In the field of product liability, resort for redress for
    injury arising from a defective product may be had either in
    tort or assumpsit. In [Loch v. Confair, 
    63 A.2d 24
    (Pa.
    1949)], we said “that a person who has effected the
    purchase of particular goods and sustains injury because of
    unfitness for an intended purpose may institute an action in
    assumpsit based upon a breach of implied warranty Or an
    action in trespass based upon specific averments of
    [J-80-2013] - 46
    negligence. In both instances the elements of damage may
    be identical, viz, the damage naturally and proximately
    resulting from a breach of implied warranty or a breach of
    duty. . . . An election of remedies in this regard has,
    however, never been held by this Court to authorize
    institution of a contract action based upon averments of
    negligence. Nor, conversely, has it authorized institution of a
    negligence action based upon averments of contract.
    Essential distinctions which exist have been recognized.”
    [63 A.2d at 26]. Thus, while a person injured by a defective
    product has an election of remedies, however, each remedy
    has acquired distinct 
    characteristics. 221 A.2d at 329
    (Jones, J., concurring and dissenting) (footnote omitted).
    Justice Jones then expressed support for the approach of the Second
    Restatement whose purpose, he stated, was to ensure “that the costs of injuries
    resulting from defective products are borne by the manufacturers that put such products
    on the market rather than by the injured persons who are powerless to protect
    themselves.” 
    Id. at 334.
    According to Justice Jones, the judgments that would result from application of
    the Second Restatement were “not a far cry” from the doctrines of res ipsa loquitur and
    of exclusive control.   The dissent viewed manufacturers and sellers, proximate or
    remote, of products for consumption by the public as subject “to a special responsibility
    to any member of the using and consuming public who may be injured by the use and
    consumption of the product.”     The dissent reasoned that the public expects such
    manufacturers and sellers to stand behind their products; therefore, the financial burden
    of injuries caused by defective products “should fall upon those who make and market
    the products and the consuming public is entitled to the maximum protection.” 
    Id. at 334-35.
    In his dissent, Justice Roberts, joined by Mr. Justice Musmanno, would also have
    reversed the summary judgment entered by the trial court as to all defendants. These
    [J-80-2013] - 47
    dissenters reasoned that the majority’s decision elevated form over substance, and they
    would have allowed the cause of action in the matter to proceed either in assumpsit, on
    the basis of a breach of warranty, or in trespass, on the basis of strict liability. In this
    regard, the dissent suggested that the same results would obtain whether a plaintiff
    chose to pursue his products liability claim on a breach of warranty theory or under the
    Second Restatement.
    The dissenters remarked that the duty of sellers of products for human
    consumption “extended beyond the mere avoidance of negligence,” and had been
    characterized as a “special responsibility . . . in the nature of an implied warranty that
    such products would be fit for human consumption. . . .” The duty had been limited to
    the immediate buyer; but, the dissent noted, courts “recognized the injustice inherent in
    such a limitation” and had developed theories of strict liability in defective food cases.
    At the same time, according to the dissent, the privity requirement was not eliminated as
    to non-food products, which presented equal dangers. The dissenters questioned the
    merit of that distinction. From a practical perspective, the dissent also noted that the
    doctrine of privity did not insulate defendants from liability because an action by a
    consumer against a seller simply started a chain reaction of indemnity; “[a]ll that is really
    accomplished by the restriction [of privity] is to expose [the] plaintiff to the risk that the
    retail seller may not be financially able to make redress and to deprive [the plaintiff] of
    the opportunity of proceeding directly against the more financially able parties in the
    distributive 
    chain.” 221 A.2d at 336-38
    .
    The dissent then expressed its disapproval of the “conceptual abstractions and
    niceties of pleading” that had obscured what it believed was essentially a strict liability
    cause of action and the considerations that supported it, and encouraged the Court to
    adopt the Second Restatement. In the dissent’s view:
    [J-80-2013] - 48
    The public interest in affording the maximum
    protection possible under the law to human life, health and
    safety; the inability of the consumer to protect himself; the
    seller’s implied assurance of the safety of a product on the
    open market; the superior ability of the manufacturer or
    seller to distribute the risk of loss; the needless circuity of
    recovery and the expensive, time consuming, wasteful and
    often unjust process which insistence upon privity frequently
    occasions -- all support the extension of the protection of
    strict liability beyond the food cases to those involving other
    consumer goods as 
    well. 221 A.2d at 338-39
    .
    Thus, the 6 to 1 Webb decision itself contained no developed majority
    expression, despite the important transitional point it marked in Pennsylvania law.10
    The commentary to the Second Restatement and the Court’s decisional law over
    the subsequent decade reflect early foundational debates among members of the Court
    concerning the tort.11 In a series of cases, the Court addressed narrow applications of
    broader questions relating to burdens of proof, evidence, and jury instructions in strict
    10
    In Webb, Chief Justice Bell dissented, premised primarily upon the argument that
    the majority was overruling numerous decisions sub silentio in favor of a “new rule . . .
    [that] so completely changes, not by legislative action but by judicial ukase, the law with
    respect to trespass actions for injuries resulting from non-inherently dangerous products
    that are either manufactured or bottled or sold by any vendor . . . that in [the Chief
    Justice’s] opinion it is not only very unfair but absolutely Unjustifiable in Justice or in
    
    Law.” 220 A.2d at 855
    (Bell, C.J., dissenting).
    11
    In the interim, the Court addressed several corollary matters, without offering any
    insight into foundational matters of concern here. See, e.g., Ferraro v. Ford Motor Co.,
    
    223 A.2d 746
    (Pa. 1966) (reversing judgment notwithstanding verdict and remanding for
    new trial; in strict liability case, “if the buyer knows of the defect and Voluntarily and
    Unreasonably proceeds to use the product or encounter a known danger, this should
    preclude recovery and constitute a complete defense to the action”); Burbage v. Boiler
    Eng’g & Supply Co., 
    249 A.2d 563
    (Pa. 1969) (affirming judgment in favor of consumer;
    manufacturer of replacement part is subject in strict liability to consumer).
    [J-80-2013] - 49
    liability litigation. To the extent these decisions necessitated explication of conceptual
    foundations, much like the Second Restatement and the commentary, the Court’s
    efforts centered on describing in affirmative terms the theoretical basis for strict liability
    but lapsed, generally, into comparisons with the more familiar negligence and warranty
    causes of action in which strict liability was rooted. See, e.g., RESTATEMENT (2D)         OF
    TORTS § 402A(2) & cmt. a, c & m.
    For example, in Bialek v. Pittsburgh Brewing Co., 
    242 A.2d 231
    (Pa. 1968), the
    Court noted and rejected a challenge to that part of a jury charge which, the plaintiff
    argued, imposed an unwarranted burden upon the plaintiff to prove which particular
    seller in the distribution chain had caused the defect in the product.            The Court
    reasoned that for liability to attach per Section 402A, “the seller need only sell a
    defective product [and need not] have caused the defect.” The Court added that the
    trial court should instruct the jury that a plaintiff “is not required to prove that the
    defendants were negligent, that the defendants can be held liable even if they exercised
    all possible care and that no consideration should be given to negligence.” But, the
    Court explained, sellers in a distributive chain who precede a seller that caused the
    defect do not sell a defective product and are not liable. In this sense, according to the
    Court, the plaintiff’s theory of the case is relevant and the trial court has discretion to
    tailor the charge to reflect the evidence and theories of the parties. 
    Id. at 235-36.
    In Kuisis v. Baldwin-Lima-Hamilton Corp., 
    319 A.2d 914
    (Pa. 1974) (Opinion and
    Opinion Announcing Judgment of Court), the expression authored by Mr. Justice
    Pomeroy, in which Mr. Justice O’Brien joined, did not summon a majority of the
    members of the Court for disposition of the strict liability-related claims, which several
    Justices would not have reached on appeal. The OAJC offered an explication of the
    burden of proof in a strict liability case premised upon circumstantial rather than direct
    [J-80-2013] - 50
    evidence of a defect, i.e., the so-called malfunction theory; the theory is of major
    importance as it was later adopted by a majority of the Court in Rogers v. Johnson &
    Johnson Products, Inc., 
    565 A.2d 751
    (Pa. 1989). See also Barnish v. KWI Building
    Co., 
    980 A.2d 535
    (Pa. 2009).
    In Kuisis, the plaintiff alleged that he was injured when a crane’s brake locking
    mechanism became disengaged, causing a load of steel pipe suspended on the crane
    to fall on him. The plaintiff proceeded on theories of negligence and strict liability in the
    design and manufacture of the brake locking mechanism. At the close of evidence, the
    trial court granted summary relief to the manufacturer on the negligence claim and
    submitted the strict liability claims to the jury; the jury was dismissed when it could not
    agree on a verdict. Subsequently, the trial court granted the manufacturer’s motion for
    judgment on the record.     On appeal, this Court reversed the trial court’s judgment and
    awarded the plaintiff a new trial.     Justice Pomeroy’s OAJC reasoned that evidence
    relating to the accident, in addition to the occurrence of five similar malfunctions of the
    locking mechanism, was sufficient to show that the product was defective, even absent
    direct evidence of a specific defect. According to the OAJC, in the absence of other
    identifiable causes, the malfunction itself was evidence of a defective condition; “[t]his
    rule reflects the fact that liability under [Section] 402A turns on a lack of fitness in the
    defendant’s product, as in the case of an action for breach of warranty, rather than on
    the breach of a particular duty of care by the defendant, as in the case of an action for
    negligence.” The OAJC continued: “[w]hile a plaintiff’s hand in a strict liability case will
    obviously be strengthened by evidence of a specific defect in the defendant’s product
    such evidence is not necessary to take . . . the plaintiff’s case to a jury.” 
    Id. at 920.
    Finally, the OAJC commented upon the relevance of proof that the crane
    operator had left the controls while the pipe was suspended. According to the OAJC,
    [J-80-2013] - 51
    the operator’s alleged negligence was legally significant as a potential superseding
    cause of the plaintiff’s injuries. 
    Kuisis, 319 A.2d at 920
    ; see also 
    Rogers, 565 A.2d at 755
    . But, the opinion continued, operator negligence was not a superseding cause of
    the plaintiff’s injuries unless the negligent conduct was outside the manufacturer’s
    “reasonable range of foreseeability.”       Justice Pomeroy opined that the principle of
    foreseeability “carries over from traditional negligence law to strict liability cases. . . . It
    makes no difference in this regard whether the operator’s conduct is characterized as
    an intervening act of negligence or as an ‘abnormal use’ of the crane; where under
    [Section] 402A a particular use of a product is abnormal depends on whether the use
    was reasonably foreseeable by the seller.” 
    Kuisis, 319 A.2d at 920
    -21 & n.13. Other
    proof relevant to the question of foreseeability, the OAJC added, was the passage of
    twenty years since the crane had been manufactured and any interim alterations. 
    Id. at 922
    & n.15.12
    Following the decision in Kuisis, the Court revisited questions relating both to a
    plaintiff’s burden of proving a strict liability claim, and relevant jury instructions, in
    12
    In parallel developments, the Court dispensed with privity prerequisites for stating
    a breach of an implied warranty claim, by reference to the Second Restatement. The
    Kassab Court reasoned that clarity in the law and consistency of results, whether one
    labeled a complaint in assumpsit / warranty or trespass / strict liability, counseled
    abandoning vertical privity requirements. See 
    Kassab, 246 A.2d at 853-56
    overruled in
    part on other grounds by AM/PM Franchise Ass’n v. Atl. Richfield Co., 
    584 A.2d 915
    (Pa. 1990) (remote supplier of defective product may be sued for breach of warranty).
    In Salvador, the Court discarded horizontal privity stating that: “Today . . . a
    manufacturer by virtue of [S]ection 402A is effectively the guarantor of his products’
    safety. . . . [A manufacturer] may not preclude an injured plaintiff’s recovery by forcing
    him to prove negligence in the manufacturing process. Neither may the manufacturer
    defeat the claim by arguing that the purchaser has no contractual relation to him.”
    
    Salvador, 319 A.2d at 907
    (injured user may sue for breach of warranty, even if user is
    not purchaser, member of purchaser’s family or household, or guest in purchaser’s
    house).
    [J-80-2013] - 52
    Berkebile v. Brantly Helicopter Corp., 
    337 A.2d 893
    (Pa. 1975) (Opinion Announcing
    Judgment of Court). The Court affirmed by unanimous mandate the decision of the
    Superior Court to reverse the judgment on the verdict granted to the defendant and to
    award the plaintiff a new (third) trial. The decision generated several opinions, among
    them the OAJC of Chief Justice Jones, joined by Justice Nix, parts of which later
    became law in Azzarello. 
    See 391 A.2d at 1027
    and discussion infra. Justices Roberts
    and Pomeroy filed separate concurring opinions, while Justices Eagen, O’Brien, and
    Manderino concurred in the result without opinion.
    The Berkebile OAJC commenced its analysis by noting the necessity “to clarify
    the concepts of strict liability in Pennsylvania,” so as to avoid further confusion in the
    case upon remand for a third trial. In concurring, Justices Roberts and Pomeroy would
    have decided the matter on the separate issue of strict liability for a failure to 
    warn. 337 A.2d at 903-04
    .
    In Berkebile, following the death of her husband in a helicopter crash, the
    administratrix of the estate sued the manufacturer, premised upon theories of strict
    liability for defective design of the helicopter’s rotor system, for defective manufacturing
    and design of the rotor blade, for inadequate warnings regarding the inherent risks and
    limitations of the rotor system, and for misrepresentation of the helicopter’s safety in the
    manufacturer’s advertising brochures. The defendant denied the existence of a defect
    and argued that the decedent’s abnormal use had caused the crash.
    The Berkebile OAJC reiterated that strict liability, as a cause of action,
    implemented a policy of consumer protection. According to the OAJC, “[t]he increasing
    complexity of the manufacturing and distributional process placed upon the injured
    plaintiff a nearly impossible burden of proving negligence where, for policy reasons, it
    was felt that a seller should be responsible for injuries caused by defects in his
    [J-80-2013] - 53
    products.” 
    Id. at 898
    (citing RESTATEMENT (2D)      OF     TORTS § 402A cmt. c). The OAJC
    explained that, in a strict liability matter, proof of a seller’s due care and breach of due
    care are unnecessary because liability attaches “without fault.” Id. (citing 
    Salvador, 319 A.2d at 907
    ). Instead, to recover, a plaintiff must prove that the product was defective,
    and that the defect was a proximate cause of the plaintiff’s injuries.          In addition,
    according to the OAJC, the plaintiff has the burden to prove that the defect causing the
    injury existed at the time that the product left the seller’s hands. The OAJC then warned
    of attempts by a defendant-seller at “indirectly . . . injecting negligence concepts into
    strict liability theory.” 
    Id. at 899.
    The Berkebile OAJC also parsed the language of the Second Restatement,
    opining that the Restatement imposes a seemingly contradictory burden of proving that
    a “defect” is “unreasonably dangerous.” According to the OAJC, the standards are
    reconcilable if the purpose of the “unreasonably dangerous” qualification is “to
    differentiate those products which are by their very nature unsafe but not defective from
    those which can truly be called defective.” The OAJC rejected the notion that defect
    should be defined based upon the negligence-oriented reasonable man concept, which
    tended to dilute the strict liability concept, and offered that the “unreasonably dangerous
    clause” should be included in articulating the issue of proximate cause to the jury. Chief
    Justice Jones explained that the result of limiting the liability of a seller premised upon a
    “reasonable man” standard, which the clause “unreasonably dangerous” could suggest,
    protects the seller from becoming “an insurer of his products with respect to all harm
    generated by their use.” But, such standard would also require an injured consumer-
    plaintiff to prove an element of negligence, which means in practice that, regardless of
    the injured consumer’s expectations regarding the product, the injured consumer would
    be unable to recover if an “ordinary consumer” would have expected the product’s
    [J-80-2013] - 54
    defective condition. Chief Justice Jones opined that it is unnecessary to place the
    additional burden upon the injured consumer to limit a seller’s liability because the seller
    is adequately protected “by the necessity of proving that there was a defect in the
    manufacture or design of the product, and that such defect was a proximate cause of
    the injuries.” 
    Id. at 899-900
    (quoting Cronin v. J.B.E. Olson Corp., 
    501 P.2d 1153
    , 1161
    (Cal. 1972), whose holding we address infra). As a result, the OAJC concluded that the
    jury should not be instructed as to the reasonable man standard or reasonableness “in
    any form.” 
    Id. at 900.
    Chief Justice Jones added that proof of strict liability is not premised upon
    whether the seller could have foreseen a particular injury, for to articulate the burden of
    proof in terms of foreseeability is to require the plaintiff to prove that the seller exercised
    due care. But, because the seller is liable in strict liability regardless of any negligence,
    whether the seller could have foreseen a particular injury is irrelevant. Once a product
    is proved defective, the seller is responsible for all the unforeseen harm it caused, no
    matter how remote. Moreover, Chief Justice Jones reasoned, a plaintiff’s negligence
    does not bar recovery in strict liability, although evidence that would tend to prove such
    negligence may be relevant for the purpose of rebutting the plaintiff’s contentions of
    defect and proximate cause. 
    Id. at 901.
    Finally, the Berkebile OAJC addressed the viability of the plaintiff’s failure to warn
    claims, reasoning that the trial court had erred in failing to charge the jury on the point.
    Chief Justice Jones stated: “A ‘defective condition’ is not limited to defects in design or
    manufacture. The seller must provide with the product every element necessary
    to make it safe for use.       One such element may be warnings and/or instructions
    concerning use of the product. A seller must give such warning and instructions as are
    required to inform the user or consumer of the possible risks and inherent limitations of
    [J-80-2013] - 55
    his product.” 
    Id. at 902
    (emphasis added) (citing RESTATEMENT (2D)      OF   TORTS § 402A
    cmt. c).    The portion of the Berkebile lead opinion emphasized above was quoted
    subsequently out of context by the majority in Azzarello as the standard of proof in a
    strict liability action.
    Looking back, it is now apparent that the first decade of applying the doctrine of
    strict liability in Pennsylvania offered a series of missed opportunities to develop a
    vibrant and coherent body of common law on the issue. The difficulties arose from the
    happenstance of the idiosyncratic procedural postures of cases in which the Court
    nevertheless apparently sought to make conceptual advances in the arena. To start,
    the Webb Court “adopted” the Second Restatement and remanded the case to the trial
    court for application, without offering much explanation of either how Section 402A
    derived from or complemented existing common law, or direction concerning its
    application by the lower courts, including the realm of jury charges. The procedural
    posture of Webb -- an appeal from a trial court decision sustaining preliminary
    objections -- and some consensus regarding the direction of the law, perhaps explain
    the approach. The concurring and dissenting expressions in Miller, upon which the
    Webb Court relied, offered a more reasoned explanation for the availability of strict
    liability in tort as a separate cause of action and attenuated, to a degree, the stark
    approach of the summary Webb majority decision. But, the responsive expressions --
    offered in the context of a breach of warranty case no less -- suggested little in terms of
    an explication of essential foundational concepts or practical application, which are
    generally the sine qua non of common law decisions.
    And so, much like the Second Restatement articulation of strict liability,
    Pennsylvania decisional law did not speak affirmatively to the plaintiff’s burden of proof
    in strict liability cases but addressed it by negation, i.e., as compared to then-more
    [J-80-2013] - 56
    familiar theories of breach of warranty initially and, later, negligence. In the subsequent
    decade, foundational issues regarding the strict liability in tort cause of action did not
    reach the Supreme Court or, when questions were presented, expressions failed to
    command clear majority support.        To the extent that the Court spoke to broader
    considerations, several trends became evident: the original prominence of warranty-
    related attempts to limit application of strict liability theory decreased, and the relevance
    of negligence-related encroachments commenced its ascent; rhetoric emerged not only
    to distinguish strict liability from its negligence roots, but also to excise negligence
    principles and terms (such as foreseeability) from strict liability theory; the reliance upon
    formulaic reiteration of consumer protection-related policies, offered as a bulwark
    against attempts to dilute the application of strict liability theory in individual cases; and
    then a focus in strict liability theory that ultimately turned upon a statutory construction-
    type of analysis of the Second Restatement. Experience suggests that these trends,
    and fits and starts, have proven antithetical to the orderly evolution of our decisional
    law, one that must be responsive to new problems, perspectives, and consequences.
    2.     Azzarello
    In 1978, the Court was confronted with the question of whether the trial court had
    adequately charged a jury on the law of products liability in Pennsylvania.              The
    Azzarello plaintiff had been injured when he pinched his hand between two hard rubber
    rolls in a coating machine manufactured by Black Brothers Company.               The plaintiff
    proceeded on a theory of strict liability against the manufacturer, but the manufacturer
    also joined the plaintiff’s employer as a co-defendant, asserting that the employer’s
    negligence was the sole or contributing cause of the plaintiff’s injuries. See 
    Azzarello, 391 A.2d at 1022
    . In a unanimous opinion, the Court held that the jury charge issued by
    [J-80-2013] - 57
    the trial court was misleading and affirmed the decision of the Superior Court, which had
    granted the plaintiff a new trial. The Azzarello Court approved an alternative charge.
    
    Id. at 1027
    n.12.
    The Court addressed two related and important questions: whether a
    determination as to the risk of loss in a strict liability case is a decision for the judge or
    the jury, and whether the words “unreasonably dangerous” have any place in the strict
    liability jury instruction. The Court concluded that the words “unreasonably dangerous”
    explain the term “defective” but have “no independent significance and merely represent
    a label to be used where it is determined that the risk of loss should be placed upon the
    supplier.” The words “unreasonably dangerous” limit liability and signal that a seller is
    not an insurer but a guarantor of the product. However, the difficulty with the use of the
    term in jury instructions, the Court reasoned, was that it signaled to the jury that the
    consumer has the burden to prove an element of negligence. According to the Court, in
    strict liability cases, burdening a plaintiff with proof of negligence is unwarranted; the
    seller’s liability is limited “by the necessity of proving that there was a defect in the
    manufacture or design of the product, and that such defect was a (legal) cause of the
    injuries.” 
    Id. at 1025
    (quoting 
    Cronin, 501 P.2d at 1161-62
    ); see also 
    Berkebile, 337 A.2d at 899-900
    .
    The Azzarello Court further reasoned that a change in terminology to avoid
    references to negligence principles would be insufficient to articulate instructions
    appropriate for a lay jury. Indeed, according to the Court, the formulation of the Second
    Restatement was not intended to articulate jury instructions but employed principles
    designed instead to predict responsibility and to guide the professional bench and bar.
    The Court then concluded that the best means to implement the principles of the
    Second Restatement was to direct: (1) that the phrases “defective condition” and
    [J-80-2013] - 58
    “unreasonably dangerous,” which predict whether recovery would be justified, are
    issues of law and policy entrusted solely for decision to the trial court; and (2) that the
    inquiry into whether a plaintiff has proven the factual allegations in the complaint is a
    question for the jury. According to the Court, in cases of an alleged defective design,
    the dispositive question is whether the product is safe for its intended use. The Court
    emphasized that the seller is the “guarantor” of the product, and a jury could find a
    defect “where the product left the supplier’s control lacking any element necessary to
    make it safe for its intended use or possessing any feature that renders it unsafe for the
    intended use.” 
    Id. at 1027
    (citing 
    Berkebile, 337 A.2d at 902
    ). Having concluded that
    the jury should not be instructed on the “unreasonably dangerous” standard, the Court
    then affirmed the Superior Court’s decision to remand the case to the trial court for a
    new trial.
    3.      Post-Azzarello Design Defect Jurisprudence
    Following Azzarello, decisional focus in strict liability cases shifted to reflect an
    increasing concern with segregating strict liability and negligence concepts. The Court
    addressed several evidentiary questions, in the process touching upon foundational
    notions of strict liability relevant to a design defect claim.13
    13
    The jurisprudence of strict liability for failure to warn also developed in parallel.
    See, e.g., Sherk v. Daisy-Heddon, 
    450 A.2d 615
    (Pa. 1982) (where lethal propensity of
    toy gun was known or should have been known to user, manufacturer not strictly liable
    for failure to warn); Mackowick v. Westinghouse Elec. Corp., 
    575 A.2d 100
    (Pa. 1990)
    (capacitor not defective for failure to warn electrician/intended user of obvious danger of
    live, exposed electrical wires); 
    Coyle, 584 A.2d at 1383
    (strict liability for failure to warn
    of prescription drug’s dangerous propensities is not recognized as cause of action
    against pharmacist); Hahn v. Richter, 
    673 A.2d 888
    (Pa. 1996) (where adequacy of
    warnings associated with prescription drugs is at issue, strict liability is not recognized
    as basis for liability); Davis v. Berwind Corp., 
    690 A.2d 186
    (Pa. 1997) (notwithstanding
    (continuedQ)
    [J-80-2013] - 59
    In Lewis v. Coffing Hoist Division, Duff-Norton Co., 
    528 A.2d 590
    (Pa. 1987), the
    Court affirmed the Superior Court’s decision to uphold a jury verdict in favor of a plaintiff
    who alleged that the design of a control box for an overhead electric hoist was defective
    because it lacked a safety mechanism to prevent accidental depression of the control
    buttons. The plaintiff had injured his legs when he accidentally depressed the control
    buttons, which caused the hoist to swing its load into his body. The Court rejected the
    defendant’s claim that the trial court erred in excluding expert testimony relating to
    industry standards and practices, e.g., that ninety percent of similar hoists lacked a
    guard around the control panel and that a nationwide trade group had certified the
    product design as safe.
    Before addressing whether particular expert testimony was relevant to a strict
    liability cause of action, the Lewis Court set out its view of the applicable substantive
    law. The Court noted that strict liability in tort was a cause of action available when an
    injury is caused by a defect in design. The Second Restatement, according to the
    Court, does not provide a definition of the term “defect,” and jurisdictions have
    articulated diverse formulas on the subject of design defect.          The Court noted a
    “consumer expectations” approach, which is an inquiry into whether the product “failed
    to perform as safely as an ordinary consumer would expect when used in an intended
    or reasonably foreseeable manner.” 
    Id. at 593
    (citing Barker v. Lull Engineering Co.,
    
    573 P.2d 443
    (Cal. 1978)).      A second accepted approach, according to the Court,
    involves “risk-utility” balancing.   
    Id. (citing Barker,
    supra, and A. Weinstein et al,
    PRODUCTS LIABILITY AND THE REASONABLY SAFE PRODUCT, at 43-59 (1978)). However, in
    (Qcontinued)
    ease of removing safety device, warning on blender sufficient to caution operator
    against conduct that caused injury).
    [J-80-2013] - 60
    Pennsylvania, the Court explained, Azzarello articulated a distinct approach: “the jury
    may find a defect where the product left the supplier’s control lacking any element
    necessary to make it safe for its intended use or possessing any feature that renders it
    unsafe for the intended use.” 
    Id. (citing Azzarello,
    391 A.2d 1027
    ).
    The Lewis Court observed that jurisdictions with various approaches agreed that
    relevant at trial is the condition of the product rather than the reasonableness of the
    manufacturer’s conduct. As a result, the Court concluded, a strict liability claim does not
    sound in negligence -- a proposition in harmony with the Azzarello decision. The Court
    held that, because “due care” has no bearing upon liability in a strict liability case, proof
    of industry standards -- which go to a negligence concept of reasonable care -- are
    irrelevant and “created a strong likelihood of diverting the jury’s attention from [the
    product] to the reasonableness of the [manufacturer-defendant’s] conduct in choosing
    its design.” 
    Id. at 593
    -94.
    Mr. Justice Larsen concurred, adding that because of their “inherently self-
    serving nature,” admission of industry standards evidence would be highly prejudicial to
    the consumer. In a dissent, Mr. Justice Flaherty criticized the majority’s approach to
    strict liability claims, noting that evidence of injury alone is insufficient to prove a strict
    liability claim; rather, industry standards are relevant to the question of defect. This is
    so, the dissent said, because suppliers are liable only if an unsafe product is placed on
    the market: strict liability “does not impose liability for failing to make an already safe
    product somewhat safer, or for failing to utilize the safest of all possible designs. We
    are simply not dealing with conceptual Platonic ideals of perfection when a jury
    considers whether any given product is safe.” 
    Id. at 595.
    In a separate dissent, Mr.
    Justice Hutchinson, also joined by Justice Flaherty, opined that industry standards are
    written by specialized individuals with knowledge of product design superior to that of
    [J-80-2013] - 61
    courts and, as a result, evidence of such standards is relevant to the question of defect.
    Justices Flaherty and Hutchinson concluded that evidence of industry standards was
    admissible although not necessarily highly probative.
    Later, in Kimco Development Corporation v. Michael D’s Carpet Outlets, 
    637 A.2d 603
    (Pa. 1993), the Court affirmed the decision of the Superior Court, and held
    that the comparative negligence of a co-defendant is not a basis upon which to
    decrease the amount of damages available premised upon a strict liability claim. In
    Kimco, a shopping center owner and several tenants sued the manufacturer of
    polyurethane foam carpet padding, which caught fire and damaged the shopping center,
    as well as the tenant in whose store the fire broke out; the tenant-defendant
    countersued the manufacturer and shopping center owner. The parties asserted claims
    of negligence, breach of warranty, and strict liability in tort. The jury returned a verdict
    in favor of the plaintiffs on theories of strict liability and negligence, apportioning
    negligence responsibility 80/20 to the tenant-defendant and manufacturer, respectively.
    In addition, the jury found in favor of the tenant-defendant and against the manufacturer
    on a strict liability theory.   The trial court denied a motion to reduce the tenant-
    defendant’s strict liability verdict against the manufacturer premised upon the
    apportionment of responsibility in negligence. The Superior Court affirmed.
    On appeal, this Court rejected the manufacturer’s argument that comparative
    negligence is a defense to a claim in strict liability. Initially, the Court noted that “[t]he
    law amongst the various states is in considerable disarray on the point in question.”
    The Court then reasoned that applying contributory negligence principles to strict liability
    claims would cause “conceptual confusion” and would undermine the purpose of strict
    liability: “[t]hroughout the development of [Section] 402A liability, we have been
    adamant that negligence concepts have no place in a strict liability action.” 
    Id. at 605-
    [J-80-2013] - 62
    06 (citing Azzarello, McCown, and Berkebile). According to the Court, in strict liability,
    “the focus is on the nature of the product and the consumer’s reasonable expectations
    with regard to the product, rather than upon the conduct of either the manufacturer or
    the person injured.” The Court concluded that permitting recoveries to be reduced
    premised on negligence concepts would weaken the deterrent effect of the policy to
    protect the consumer and to shift the risk of loss to the supplier of the defective product
    “without regard to fault or privity of contract.”       
    Id. at 605-
    07.14   Justice Flaherty
    dissented, premised upon the argument that strict liability without regard to
    proportionate faults burdened business enterprises with liabilities that worked serious
    detriment to the economy.
    4.     Recent Cases and the Third Restatement
    In 1998, the ALI proposed a new restatement of the law relating specifically to
    products liability. See RESTATEMENT (3D)   OF   TORTS: PRODUCTS LIABILITY §§ 1-8 (1998)
    (Liability Rules Applicable to Products Generally). As is evident from the premise of this
    litigation, this Court has not yet determined whether to adopt the formulation of the Third
    Restatement as the law of Pennsylvania. However, the suggestion for a “move” to the
    Third Restatement, or adoption of certain of its principles, has been made in several
    non-precedential opinions.
    14
    By comparison, doctrinal separation played a noticeably less prominent role in an
    earlier decision relating to whether contributory negligence was an available defense to
    a strict liability claim. In McCown v. International Harvester Co., 
    342 A.2d 381
    (Pa.
    1975), the Court held that contributory negligence was not an available defense in a
    strict liability case because such recognition would contradict the normal expectation of
    product safety upon which the strict liability cause of action is premised. “One does not
    inspect a product for defects or guard against the possibility of product defects when
    one assumes the item to be safe.” 
    Id. at 382.
    [J-80-2013] - 63
    In 2003, the question before a six-Justice Court was whether a supplier was
    responsible in strict liability to a consumer-plaintiff other than the intended user of the
    product.   See Phillips v. Cricket Lighters, 
    841 A.2d 1000
    (Pa. 2003) (OAJC).             The
    plaintiff had alleged that the butane lighter designed and manufactured by the defendant
    was defective because it lacked a safety device that would have prevented a two year-
    old from setting the tragic fire that killed the child, his sibling and his mother. In relevant
    part, the Court reversed the decision of the Superior Court and reinstated the trial
    court’s summary judgment order. The Court was deeply divided in its reasoning.
    The single Justice OAJC authored by Mr. Chief Justice Cappy concluded that a
    product is not defective if it is safe for its intended user. 
    Id. at 1005.
    The OAJC rejected
    the plaintiff’s argument that a manufacturer should be responsible for harm to a
    foreseeable albeit unintended user, opining that foreseeability concepts have no
    application in strict liability theory and foreseeable users may recover by proving
    negligence.    Among other things, the OAJC recognized that some strict liability
    decisions had relied upon foreseeability principles but the opinion denounced the
    practice and would have reaffirmed the firm conceptual distinction between strict liability
    and negligence causes of action. 
    Id. at 1007
    (citing Davis v. Berwind Corp., 
    690 A.2d 186
    (Pa. 1997)). “Recognition that strict liability is not a type of mongrel derivative of
    negligence is also consistent with the historical development of this cause of action.
    Strict liability was intended to be a cause of action separate and distinct from
    negligence, designed to fill a perceived gap in our tort law.” 
    Id. (citing Azzarello,
    391
    A.2d at 1023-24). In a footnote, the OAJC noted the supplier’s alternative argument
    relating to the Third Restatement, but deemed it waived. Mr. Justice Nigro concurred in
    the result, without an opinion.       Madame Justice Newman filed a concurring and
    dissenting opinion, in which she agreed with the OAJC that the strict liability claims
    [J-80-2013] - 64
    failed because the lighter was safe for its intended use by adults; Justice Newman
    dissented from that part of the opinion addressing the disposition of the plaintiff’s
    negligence claim. 
    Id. at 1024
    (Newman, J., concurring and dissenting).
    Mr. Justice Saylor authored a concurring opinion, which this author and Mr.
    Justice Eakin joined.    Justice Saylor advocated taking the opportunity to address
    foundational matters, to reassess Pennsylvania’s Second Restatement approach, and
    to examine the range of readily accessible, corrective measures, including adoption of
    the Third Restatement. In relevant part, the concurrence addressed three points: first,
    that strict liability doctrine is embedded with concepts central to negligence theory;
    second, that ambiguities and inconsistencies in prevailing strict liability jurisprudence
    affected the proper disposition of the appeal; and third, that the Third Restatement’s
    approach would provide the most viable route to clarification and remediation of strict
    liability jurisprudence in Pennsylvania.
    On the first point, Justice Saylor noted that the Second Restatement articulation
    for the strict liability cause of action posed difficulties in application to design defect
    claims. At origin, Justice Saylor explained, the standard derived from manufacturing
    defect cases, in which “something went wrong in the manufacturing process” and the
    resulting product was not as safe as intended. The core objectives of the Second
    Restatement had been to relieve consumer-plaintiffs of the burden of proving that the
    supplier had exercised due care in the manufacturing process (necessary to prove
    negligence), and to spread the risk of loss among consumers. But, Justice Saylor
    observed, courts had since recognized the “limitations of the just implementation of loss
    spreading via judicially crafted doctrine.” 
    Id. at 1013
    n.3 (citing Duchess v. Langston
    Corp., 
    769 A.2d 1131
    , 1145 (Pa. 2001)). Consistent with its purposes, the Second
    Restatement declared a supplier liable even if it exercised all possible care in the
    [J-80-2013] - 65
    preparation and sale of the product. But, application of the doctrine was limited to
    defective products unreasonably dangerous to the consumer or his property.                  The
    concurrence noted that the Second Restatement formulation, as a result, contained an
    internal tension: the strict liability rule “was tempered by a negligence-based concept of
    defect.” In application to design defect claims, the concurrence further observed, courts
    in Pennsylvania recognized “an integral role for risk-utility (or cost-benefit) balancing,
    derived from negligence theory.” 
    Id. at 1013
    -14 (citing 
    Azzarello, 391 A.2d at 1026
    ;
    Burch v. Sears, Roebuck & Co., 
    467 A.2d 615
    , 618 (Pa. Super. 1983); Dambacher v.
    Mallis, 
    485 A.2d 408
    , 422 (Pa. Super. 1984)). As a result, while the rhetoric of retaining
    a firm separation between strict liability and negligence remained pervasive in
    decisional law, in application, the distinction was unnecessary: “[i]n design cases the
    character of the product and the conduct of the manufacturer are largely inseparable.”
    The concurrence advocated recognition of the essential role played by negligence-
    derived risk-utility balancing in design defect litigation. 
    Id. at 1015-16.
    Relating to the second point, the concurrence offered a critique of Azzarello,
    which is particularly relevant since Omega Flex echoes the analysis in this appeal.
    According to the concurrence, courts have implemented the Azzarello decision by: (1)
    assigning the risk-utility balancing to trial courts on the facts most favorable to the
    plaintiff; and (2) providing juries with minimalistic instructions that, in an effort to insulate
    the jury from negligence terminology, “lack essential guidance concerning the nature of
    the central conception of product defect.” Because the jury is not permitted to consider
    the cost-benefit factors, neither judge nor jury “actually decide whether the true benefits
    of the proposed alternative design outweigh the true cost” and whether the product is in
    fact unreasonably dangerous or defective. Furthermore, the concurrence added that,
    by omitting the critical “unreasonably dangerous” limitation on liability or cost-benefit
    [J-80-2013] - 66
    instructions, the Azzarello-approved charge fails to define the term “defect” clearly, and
    consequently fails to guide the jury in distinguishing products safe and unsafe for their
    intended use.    The concurrence also noted that the use of the term “guarantor” in
    relation to the manufacturer is not a sufficient limitation on liability, especially because
    the term “to a lay jury will surely seem indistinguishable from 
    ‘insurer.’” 841 A.2d at 1016-18
    (citing Thomas, 71 Temp. L. Rev. at 225 & 232). The concurrence advocated
    correction of this jurisprudence in the interest of justice.
    On the final point, the concurrence suggested the Third Restatement as a viable
    alternative articulation of the standard of proof, with the potential to resolve the
    persisting difficulties and to enhance fairness and efficacy in the liability schema. 
    Id. at 1021.
       According to the concurrence, the Third Restatement’s negligence-derived
    standard represents “the distilled expression of thirty years of design-defect litigation.”
    The concurrence summarized the general rule of the Third Restatement as follows: “a
    product is deemed defective in design when the foreseeable risks could have been
    reduced or avoided by the use of a reasonable alternative design, and when the failure
    to utilize such a design has caused the product to be ‘not reasonably safe.’” The
    concurrence explained that design defect liability under the Third Restatement is
    predicated upon a concept of responsibility in which the determination is made by
    reference to an independent assessment of advantages and disadvantages, rather than
    by reference to the manufacturer’s own design or marketing standards, which are in fact
    alleged to be unreasonable by the plaintiff.         Moreover, the concurrence stressed,
    products are not defective simply because they are dangerous. Relevant to the issue in
    Phillips, the concurrence added that the Third Restatement expressly incorporates
    notions of reasonable foreseeability that would temper the exclusive reliance on the
    risk-utility test. In the view of the concurrence, the Third Restatement provided the best-
    [J-80-2013] - 67
    balanced and reasoned approach to strict liability in Pennsylvania. On a final note, the
    concurrence opined that application of the strict liability doctrine should be closely
    limited until the existing substantial deficiencies in the strict liability schema are
    addressed and remedied by the Court.
    In 2006, the Court decided General Services, the case upon which Omega Flex
    relies extensively. The Court there awarded the supplier a new trial, holding that the
    trial court erred in failing to instruct the jury that a supplier is liable only for harm that
    occurs in connection with the intended use of a product by an intended 
    user. 898 A.2d at 600
    (citing 
    Phillips, 841 A.2d at 1007
    (OAJC); 
    id. at 1018
    (Saylor, J., concurring,
    joined by Castille & Eakin, JJ.); 
    id. at 1023
    (Newman, J., concurring and dissenting). In
    General Services, a Commonwealth agency asserted claims in strict liability against,
    inter alia, the manufacturer of a synthetic chemical detected on surfaces and in the
    ambient air of the Transportation and Safety Building, an office tower in Harrisburg,
    following a fire that consumed building materials containing the chemical. The supplier
    offered proposed jury instructions, which the trial court rejected, that would have
    distinguished between the supplier’s liability exposure for fire-related and other
    contamination with the synthetic chemical.
    In an opinion by Justice Saylor, the General Services Court noted the consensus
    in 
    Phillips, supra
    , against “expanding the scope of manufacturer liability without fault in a
    generalized fashion” pending an overhaul of strict liability doctrine by the Court. In this
    respect, the Court acknowledged that accidental combustion of the building materials
    was foreseeable and that an argument could be made for the notion that safety for an
    intended use of the materials should be deemed to encompass safety under such
    circumstances. The Court nevertheless rejected the argument that expansion of liability
    premised upon negligence-based foreseeability considerations was warranted,
    [J-80-2013] - 68
    emphasizing an incongruity with simultaneously constraining a supplier’s resort to
    negligence-based use-related defenses. 
    See 898 A.2d at 600-04
    . Absent expansion of
    liability, the Court explained, the Commonwealth agency could not recover damages
    caused by the incineration of building materials, which was not a use intended by the
    manufacturer. A cause of action in strict liability remained viable for harm caused by
    contamination of the Commonwealth agency’s office building through off-gassing of the
    chemical. 
    Id. at 604.15
    Poised to address foundational questions relating to the application of the strict
    liability doctrine in Pennsylvania, in 2008, the Court granted allowance of appeal in
    Bugosh v. I.U. North Am., Inc., 
    942 A.2d 897
    (Pa. 2008) (per curiam).                 In 2009,
    however, the Court dismissed the ensuing appeal as improvidently granted; Justice
    Saylor, joined by this author, dissented from the summary disposition. See 
    Bugosh, 971 A.2d at 1228
    ; 
    id. at 1229-44
    (Saylor J., dissenting, joined by Castille, C.J.).
    In a dissenting statement, Justice Saylor reiterated that foundational concerns
    persisted in the area of strict liability and, by way of background, recapitulated the main
    15
    Also of note, in General Services, Justice Newman dissented in part, and Mr.
    Justice Baer joined Justice Newman’s expression. The dissent argued that the matter
    implicated not a misuse of the product by a user, as Phillips had, but a situation in which
    during an intended use by an intended user, the product was exposed to easily
    anticipated conditions. Justice Newman would have found the doctrine of strict liability
    applicable, on a theory akin to the “crashworthiness exception,” and would have denied
    the manufacturer’s request for a new trial. 
    Id. at 619.
    Omega Flex argues that the
    Tinchers relied upon the theory described by the dissent and rejected by the General
    Services majority. But, the General Services majority noted that its “discussion [did] not
    address a situation in which a defect in the building materials is the cause of
    combustion occurring during their ordinary 
    use.” 898 A.2d at 601
    n.11. The Tinchers’
    allegations are precisely that a defect in the CSST was a cause of the fire occurring
    during the CSST’s ordinary use. The decision in General Services is, as a result,
    distinguishable on its face, notwithstanding Omega Flex’s arguments to the contrary.
    [J-80-2013] - 69
    points of the Phillips concurrence. The dissent also noted that the categorical divide
    between strict liability and negligence principles, articulated in the cases, is most readily
    justified in manufacturing defect cases; claims implicating design or warning defect,
    however, are far more problematic.        Relevant to design defect claims, the dissent
    explained that doctrinal limiting principles evolved to contain the liability of product
    suppliers because traditional notions of strict liability were ill-suited to a tort regime with
    a largely open-ended damages scheme and the reality that all product designs are
    capable of contributing to human injury. According to the dissent, the alternative of a
    judicially imposed mandatory insurance scheme upon the business community is
    unpalatable and incongruent with the general rejection of a pure loss-spreading tort
    system. 
    Id. at 1234-35
    & n.10 (citing Cafazzo v. Central Med. Health Servs., Inc., 
    668 A.2d 521
    , 526 (Pa. 1995); 
    Coyle, 584 A.2d at 1387
    ).               The dissent suggested a
    negligence-derived risk-utility approach to limiting supplier liability, aimed at establishing
    liability boundaries and reconciling strict liability doctrine with the historical grounding of
    tort law in notions of corrective justice. In this regard, the dissent noted with approval
    decisional law regarding policy justifications for limiting supplier liability: “incentivizing
    safer design by rewarding careful manufacturers; the recognition that a verdict for a
    plaintiff in a product liability case is tantamount to a determination that an entire product
    line is defective, and therefore, the higher threshold of fault is justified; a fault system
    incorporates greater intrinsic fairness by not burdening manufacturers and their
    customers with the cost of insuring against all possible losses; and liberalized modern
    discovery rules should enable plaintiffs to learn the facts surrounding manufacturers’
    deliberate design decisions.” 
    Id. at 1235
    & n.9 (citing Prentis v. Yale Mfg. Co., 
    365 N.W.2d 176
    , 185 (Mich. 1984)); see also 
    id. at 1239-40;
    1235 n.11 (quoting Wm. A.
    [J-80-2013] - 70
    Worthington, THE “CITADEL” REVISITED: STRICT TORT LIABILITY AND THE POLICY OF LAW , 36
    S. Tex. L. Rev. 227, 250-52 (1995)).
    Going forward, the dissent advocated moving beyond the doctrinal divide
    between strict liability and negligence principles that was articulated by Azzarello.
    Azzarello, according to the dissent, was not reasoned well in its time and has not
    withstood the test of time.       
    Id. at 1236-37
    (criticizing, inter alia, Azzarello Court’s
    reliance on Cronin, 
    501 P.2d 1153
    , and Glass v. Ford Motor Co., 
    304 A.2d 562
    (N.J.
    Super. Ct. Law Div. 1973)).          The dissent suggested that existing jurisprudence
    attempting to justify the doctrinal divide upon loss-spreading and deterrence-based
    rationales was stated in “too conclusory terms” and “too powerful” language to be well-
    reasoned. “Courts are not experts in manufacturer behavior, and there are equally
    reasonable arguments to be made that a negligence-based standard does more to
    encourage safer products than an absolute liability scheme.          Moreover, courts and
    commentators have noted that these types of unsupported social policy judgments can
    have tremendous social consequences.” 
    Id. at 1239
    (citing 
    Prentis, supra
    ; David G.
    Owen, SYMPOSIUM: A TRIBUTE TO PROFESSOR DAVID FISCHER: DESIGN DEFECTS, 
    73 Mo. L
    .
    Rev. 291, 296 (2008)). Among the consequences, the dissent noted that when a verdict
    for the plaintiff in a design defect case effectively suggests that an entire product line is
    defective, the consequence may involve a significant portion of a supplier’s assets and
    deprive the public of the product. On a broader scale, such a liability scheme has the
    potential to unduly disrupt product investment and innovation. Id.; see also 
    Beard, 41 A.3d at 837
    (same). According to the dissent, these potential effects are relevant in any
    viable strict liability scheme.
    The dissent recognized some force in the argument that the General Assembly is
    best positioned to alter the existing product liability schema. But, the dissent noted,
    [J-80-2013] - 71
    because the Legislature had not occupied the arena, which remained in a state of
    substantial disrepair that had “taken our jurisprudence too far from the legitimate home
    of tort law in the concept of corrective justice,” action by the Court was permissible and
    necessary.   “To the degree a distinct category of ‘strict’ product liability doctrine is
    necessary, at most, it always has been, and rationally should be, one of quasi-strict
    liability, tempered, in design and warning cases, with the legitimate involvement of
    notions of foreseeability and reasonableness within the purview of the fact finder.” 
    Id. at 1240.
    The dissent then suggested filling the “substantial void” that would be left by
    disapproval of Azzarello with a prospective movement to the Third Restatement
    position.
    Importantly, as an alternative, the dissent suggested that, while continuing the
    search for the perfect vehicle by which to devise a replacement strict liability scheme,
    the Court could “at least depart from Azzarello prospectively, thus clearing a path for our
    common pleas and intermediate appellate courts to consider the reasoned
    recommendations of the Third Restatement, as well as other reasoned alternatives
    and/or refinements.”    
    Bugosh, 942 A.2d at 1241
    .        This latter approach would be
    adequate because the difficulties described by the dissent are with Azzarello rather than
    the Second Restatement itself.       In the dissent’s view, the Court should start by
    reaffirming the understanding that “modern products liability law rests fundamentally on
    the premise that manufacturers are fairly held to answer in the courts for the basic
    safety of their products’ designs.” 
    Id. at 1242
    (citing Owen, 
    73 Mo. L
    . Rev. at 291). The
    dissent suggested that, in that scenario, the Legislature could appropriately undertake
    timely, comprehensive reform in light of the broader tools that it has available for
    weighing competing interests.
    [J-80-2013] - 72
    In 2008, in parallel to the proceedings in Bugosh, the Court denied the request of
    the U.S. Court of Appeals for the Third Circuit for certification of a question of law
    relating to the application under Pennsylvania law of the intended use doctrine to
    prevent recovery in strict liability by innocent bystanders. See 
    Berrier, 959 A.2d at 901
    (per curiam).        In a concurring statement, Justice Saylor noted his preference for
    addressing the global issues pervading strict liability doctrine, before engaging in the
    collateral effects implicated by the certified question. Relating to the application of the
    intended user doctrine to limit liability, the concurrence observed that fair compensation
    to bystanders was not precluded but, rather, it was channeled into negligence theory,
    where claims would rise or fall on their merits. 
    Id. (Saylor, J.
    , concurring, joined by
    Castille, C.J.).16
    In other relevant developments, the U.S. Court of Appeals for the Third Circuit
    has predicted that, if this Court were to directly confront the issue, we would adopt the
    Third Restatement’s formulation of the strict liability doctrine. See 
    Berrier, 563 F.3d at 40
    .   The Third Circuit reasoned that Justice Saylor’s concurring opinion in Phillips
    foreshadowed this Court’s adoption of Sections 1 and 2 of the Third Restatement’s
    definition of the strict liability cause of action. 
    Id. at 53.
    The Berrier Court went on to
    apply Third Restatement principles to permit a bystander, as distinguished from a user
    16
    In several recent cases, the Court resolved other claims tangential to
    fundamental concepts of strict liability. See 
    Schmidt, 11 A.3d at 939-41
    (implicating
    issues relating to product-line exception to general rule of successor non-liability, and to
    whether plaintiff must show physical injury as threshold for recovery in strict liability);
    Beard, 
    41 A.3d 823
    (trial courts not restricted to considering single use of multi-use
    product in design defect, threshold, risk-utility balancing); Reott v. Asia Trend, Inc., 
    55 A.3d 1088
    (Pa. 2012) (supplier asserting that injured plaintiff’s “highly reckless conduct”
    is sole and superseding cause of injury must plead and prove claim as affirmative
    defense); Lance v. Wyeth, 
    85 A.3d 434
    (Pa. 2014) (drug manufacturer subject to liability
    in negligence for design defect).
    [J-80-2013] - 73
    or consumer, to state a cause of action in strict liability. 
    Id. at 61
    (intended user doctrine
    does not bar strict liability claim; vacating trial court’s decision to grant summary
    judgment). See also Covell v. Bell Sports, Inc., 
    651 F.3d 357
    (3d Cir. 2011) (Third
    Circuit applies Third Restatement, in accordance with which evidence of industry
    standards is admissible because such evidence is relevant to question of whether
    product is defective).17
    C.     The Continuing Viability of Azzarello and Its Progeny
    In this case, the question is posed of whether the rationale of Azzarello, and its
    progeny, should retain viability.    Precedent, of course, is not infallible; if we are to
    ensure both the perception and the reality of justice, we must be willing to reexamine
    precedent if it is demonstrated that a prior rule does not serve, or no longer adequately
    serves, the interests of justice. See 
    Ayala, 305 A.2d at 888
    ; 
    Carney, 79 A.3d at 505
    .
    Here, the parties agree that the decision in Azzarello articulates governing legal
    concepts which fail to reflect the realities of strict liability practice and to serve the
    interests of justice. Several members of this Court have suggested in the past this very
    assessment of Azzarello.        See, e.g., 
    Phillips, 841 A.2d at 1016-18
    (Saylor, J.,
    concurring, joined by Castille and Eakin, JJ.); 
    Berrier, 959 A.2d at 901
    (Saylor, J.,
    17
    Until Berrier, in diversity jurisdiction matters, the Third Circuit applied
    Pennsylvania law as articulated in Azzarello. The Third Circuit predicted that this Court
    would utilize a risk-utility analysis in making the Azzarello threshold determination of
    whether the risk of loss should be placed on the supplier. The Circuit recognized that
    this Court had not expressly approved of risk-utility approach in design defect matters;
    the Third Circuit relied instead upon Superior Court precedent and inquired into
    consistency with this Court’s pronouncements in existing decisional law. Surace v.
    Caterpillar, Inc., 
    111 F.3d 1039
    , 1043-47 (3d Cir. 1997) (citing 
    Lewis, supra
    , and
    Dambacher v. Mallis, 
    485 A.2d 408
    , 423 n.5 (Pa. Super. 1984)).
    [J-80-2013] - 74
    concurring, joined by Castille, C.J.); 
    Bugosh, 971 A.2d at 1236-37
    (Saylor, J.,
    dissenting, joined by Castille, C.J.).   We agree that reconsideration of Azzarello is
    necessary and appropriate and, to the extent that the pronouncements in Azzarello are
    in tension with the principles articulated in this Opinion, the decision in Azzarello is
    overruled. We add the following observations.
    As we have noted, Azzarello held that the phrase “unreasonably dangerous” is
    per se misleading to lay jurors and, as a result, the Court dictated that any questions
    relating to the risks and utilities of a product are to be decided by the trial court as a
    matter of law and policy.      Moreover, Azzarello approved, and thereby essentially
    required, instructions which informed the jury that, for the purposes of a supplier’s strict
    liability in tort, “the product must, therefore, be provided with every element necessary
    to make it safe for its intended) 
    use.” 391 A.2d at 1025
    & 1027 n.12. Subsequent
    decisional law has applied Azzarello broadly, to the point of directing that negligence
    concepts have no place in Pennsylvania strict liability doctrine; and, as we explain,
    those decisions essentially led to puzzling trial directives that the bench and bar
    understandably have had difficulty following in practice, including in the present matter.
    Cf. 
    Phillips, supra
    .
    The Azzarello Court premised its broad holding on the assumption that the term
    “unreasonably dangerous” is misleading to jurors because it “tends to suggest
    considerations which are usually identified with the law of 
    negligence.” 391 A.2d at 1025
    .    Although that general notion had some support in prior observations in
    Pennsylvania cases, see 
    Berkebile, 337 A.2d at 899-900
    (Jones, C.J.), the Azzarello
    Court cemented the notion by focusing on the expression “unreasonably dangerous” out
    of the context of the jury charge in which it appeared and pressing upon it a deceptively
    simple, and indeed dogmatic, significance. See Commonwealth v. Murphy, 739 A.2d
    [J-80-2013] - 75
    141, 146 (Pa. 1999) (Court evaluates jury charge to determine whether it is accurate
    and clear statement of law; charge is read and considered in its entirety, and its general
    effect controls); accord Commonwealth v. Sepulveda, 
    55 A.3d 1108
    , 1142 (Pa. 2012);
    Commonwealth v. Lesher, 
    373 A.2d 1088
    , 1091 (Pa. 1977).
    That the Azzarello Court keyed into a negligence-strict liability dichotomy may be
    explained by the Second Restatement’s explicit reference to negligence in the negative,
    i.e., that compensation under Section 402A does not require proof of due care. The
    Court parsed the language of the Second Restatement, particularly the terms “defective
    condition” and “unreasonably dangerous,” for a precise meaning and the reporter’s
    intent in the utilization of those terms. 
    See 391 A.2d at 1024-25
    (“We must focus upon
    two requirements set forth in Section 402A for liability (physical injury) that the product
    be ‘in defective condition’ and that it be ‘unreasonably dangerous.’”) (emphasis added).
    But, Section 402A does not articulate legal “requirements” as a statute may; and,
    moreover, the “intent” of the reporter is, of course, not due the same weight as a
    pronouncement of legislative intent in statutory construction. Any given restatement
    section simply states, or restates, principles of the common law, general rules reflecting
    a purported consensus, whose validity ultimately depends on the reasoning that
    supports them. 
    Coyle, 584 A.2d at 1385
    . Yet, the Azzarello Court seemed to engage in
    a statutory-type construction of Section 402A, including by proceeding to presume every
    part of Section 402A effective. The rule derived by Azzarello premised upon this type of
    analysis is that negligence concepts and rhetoric -- although addressed in the negative
    by the Restatement -- somehow affected a plaintiff’s burden of proof in all strict liability
    cases, regardless of the pertinent facts.
    Speaking in generalities, the Azzarello Court concluded that negligence-related
    rhetoric saddles a plaintiff in a strict liability case with an additional and unwarranted
    [J-80-2013] - 76
    burden of proof in every 
    case. 391 A.2d at 1025
    (quoting Cronin v. J.B.E. Olson Corp.,
    
    501 P.2d 1153
    , 1161-62 (Cal. 1972)). The facts of Azzarello, when viewed with the
    appropriate judicial modesty, did not require such a broad pronouncement. The issue of
    “jury confusion” there arose in a distinct, fact-bound context of a jury trial in which claims
    of strict liability and counter-claims of negligence were asserted against distinct parties.
    The Azzarello Court offered no explanation of either the nature of the perceived
    unwarranted additional burden nor how that burden altered the liability calculus for the
    Azzarello jury.   Nor did the Azzarello Court explain the leap in logic necessary to
    extrapolate that every lay jury would relate reasonableness and other negligence
    terminology, when offered in a strict liability charge, to a “heavier,” negligence-based
    burden of proof. Jury charges are generally delivered orally to ordinary citizens, and not
    by written transmission to be pored over by scholars or lawyers aware of other forms of
    liability not always at issue. See 
    Sepulveda, 55 A.3d at 1142
    . The concern with across-
    the-board jury confusion, especially where counsel is there to suggest adaptation of
    standard charges and to hear the charge as a whole, is simply overstated. See 
    id. Distinctions in
    theories of products liability are no more or less confusing than in other
    difficult areas of law -- note, as but one example, the shifting burdens, levels of proof,
    and consensus requirements in the penalty phase of a capital case. It is generally
    “incumbent upon the parties, through their attorneys, to aid courts in narrowing issues
    and formulating appropriate instructions to guide juries in their factual determinations . .
    . .”   
    Scampone, 57 A.3d at 598
    .        Yet, the Azzarello Court issued a decision that
    conflated a determination of the facts and its related yet distinct conceptual
    underpinnings, which essentially perpetuated jury confusion in future strict liability
    cases, rather than dissipating it.
    [J-80-2013] - 77
    The Azzarello Court found support for its holding not in the Restatement itself, or
    in any source of Pennsylvania law, but in the decisions of the Supreme Court of
    California in Cronin, 
    501 P.2d 1153
    , and of the New Jersey Superior Court in Glass, 
    304 A.2d 562
    . While a broad application of Cronin could support the Azzarello Court’s
    formulation, it is notable that the rationale of the decision was explained as significantly
    narrower by latter California Supreme Court decisional law. See 
    Barker, 573 P.2d at 446
    . Meanwhile, Glass was actually disapproved by the New Jersey Supreme Court in
    Cepeda v. Cumberland Engineering Co., 
    386 A.2d 816
    , 829 (N.J. 1978), overruled on
    other grounds by Suter v. San Angelo Foundry & Mach. Co., 
    406 A.2d 140
    (N.J. 1979)
    (superseded in part by statute).        Pennsylvania, unfortunately, did not adjust its
    jurisprudence in light of these developments that eroded Azzarello’s underpinnings.
    It is also worth noting that Azzarello was distinguishable from Cronin on the facts.
    In Cronin, the defendant challenged on appeal the trial court’s decision to deny an
    instruction to the jury, which provided in pertinent part that, in addition to adducing proof
    of a defect, the plaintiff had the burden of proving “[t]hat the defective condition made it
    unreasonably dangerous to the user or 
    consumer.” 501 P.2d at 1158
    n.6.       The
    defendant suggested a distinction between the two elements of proof, reminiscent of
    liability for an abnormally dangerous activity, such as blasting. See RESTATEMENT (2D)
    OF   TORTS § 519(1) (“One who carries on an abnormally dangerous activity is subject
    to liability for harm to the person, land or chattels of another resulting from the activity,
    although he has exercised the utmost care to prevent the harm.”) (emphasis added);
    see also 
    id. §§ 520-524A.
    The Cronin Court rejected the defendant’s challenge to the
    jury instructions, on the ground that it placed an unwarranted burden of proof on the
    plaintiff.
    [J-80-2013] - 78
    Importantly, decisional law eschews the Cronin defendant’s application of
    Section 402A, and the causes of action in strict liability for products and for an
    abnormally dangerous activity are recognized as carrying distinct burdens for the
    plaintiff. By comparison, in Azzarello, the error of which the plaintiff complained on
    appeal was that speaking of reasonableness in a jury instruction issued in a case in
    which only negligence allegations were made against a cross-defendant/employer
    tended to mislead the jury as to the plaintiff’s burden of proof in its own distinct strict
    liability case against the defendant/manufacturer.       While similar considerations may
    have been pertinent, certainly a nuanced analysis of the Cronin decision in the context
    of the Azzarello arguments would have served for better generalized guidance to the
    bench and bar.
    This case speaks volumes to the necessity of reading legal rules -- especially
    broad rules -- against their facts and the corollary that judicial pronouncements should
    employ due modesty. See 
    Maloney, 984 A.2d at 489
    –90 (“For one thing, it is very
    difficult for courts to determine the range of factual circumstances to which a particular
    rule should apply in light of the often myriad possibilities”; of particular concern is “the
    possibility that words or phrases or sentences may be taken out of context and treated
    as doctrines.”). As courts have struggled with the application of the deceptively simple
    Azzarello rule that a jury must be insulated from negligence concepts and rhetoric in
    strict liability cases, decisional law has lapsed into an arguably unprincipled formulaic
    application of rhetoric, threatening to render the strict liability cause of action hopelessly
    unmoored in modern circumstances.
    Compounding the problem of extrapolating broad lessons from very particular
    circumstances, the Azzarello Court accomplished its goal of insulating juries from
    negligence concepts and rhetoric by: (1) holding that the determination “as to the risk of
    [J-80-2013] - 79
    loss” is a decision to be made by the trial court rather than the jury; and (2) “approving”
    jury instructions in strict liability cases generally. The Court explained this decision by
    saying that: “While a lay finder of fact is obviously competent in resolving a dispute as to
    the condition of a product, an entirely different question is presented where a decision
    as to whether that condition justifies placing liability upon the supplier must be made.”
    The Court then suggested that it is within the trial court’s bailiwick to answer questions
    of law whose resolution “depends upon social policy” such as: “Should an ill-conceived
    design which exposes the user to the risk of harm entitle one injured by the product to
    recover? Should adequate warnings of the dangerous propensities of an article insulate
    one who suffers injuries from those propensities? When does the utility of a product
    outweigh the unavoidable danger it may pose?” According to the Court, “[i]t is a judicial
    function to decide whether, under plaintiff’s averment of the facts, recovery would be
    justified; and only after this judicial determination is made is the cause submitted to the
    jury to determine whether the facts of the case support the averments of the complaint.
    They do not fall within the orbit of a factual dispute which is properly assigned to the jury
    for resolution.” Without further explanation of these broad assumptions, bottomed on
    notions of social policy, the Court concluded that “[a] standard suggesting the existence
    of a ‘defect’ if the article is unreasonably dangerous or not duly safe is inadequate to
    guide a lay jury” and adopted in its stead a formulation by which the seller would be held
    liable unless the seller “provide[d] with the product every element necessary to make it
    safe for 
    use.” 391 A.2d at 1025
    -27 (quoting 
    Berkebile, 337 A.2d at 902
    (Jones, C.J.)).
    The 1987 decision in Lewis acknowledged Azzarello’s innovation, noting that it offered a
    distinct standard from either a risk-utility test or a consumer expectation 
    test. 528 A.2d at 593
    .
    [J-80-2013] - 80
    The Azzarello Court attributed the new standard of proof to the one-justice lead
    opinion of Chief Justice Jones in Berkebile, which the Court quoted out of context.
    Additionally, the endorsed jury charge significantly altered the import of the Berkebile
    passage. Compare 
    Berkebile, 337 A.2d at 902
    (Jones, C.J.) (emphasis added) (“seller
    must provide with the product every element necessary to make it safe for use”;
    notion of defect includes claim for failure to warn, in addition to claims for manufacturing
    and design defects) (emphasis added) with 
    Azzarello, 391 A.2d at 1027
    n.12 (“product
    must, therefore, be provided with every element necessary to make it safe for (its
    intended) use, and without any condition that makes it unsafe for (its intended) use”)
    (emphasis added).        Predictably, the “approval” of such jury instructions operated to
    discourage the exercise of judicial discretion in charging the jury, including in the
    Tinchers’ case, and likely stunted the development of the common law in this area from
    proceeding in a more logical, experience-based and reason-bound fashion. See, e.g.,
    N.T., 10/20/2010, at 825 (emphasis added).
    The greater difficulty is that the Azzarello standard is impracticable.        As an
    illustration of its new standard’s application, the Azzarello Court offered that a supplier is
    not an insurer of a product, although it is a guarantor; these terms of art, with no further
    explanation of their practical import, also mirrored the standard jury charge approved by
    Azzarello.     The Court did not purport to articulate a departure from the Second
    Restatement formulation, nor did it discuss the reasoning for or implications of doing so.
    Yet, the Azzarello Court chose this iteration of the law to fill the legal void caused by its
    bright-line rule that any negligence rhetoric carries an undue risk of misleading lay jurors
    in strict liability cases.
    Omega Flex, subscribing to existing criticism of this scheme, faults Azzarello for
    (1) removing from the jury the risk-utility calculus implicated in what Azzarello called “the
    [J-80-2013] - 81
    risk of loss” determination; and (2) requiring the trial court to make the determination
    before the facts even are in evidence, premised merely upon the plaintiff’s allegations
    and with all inferences benefitting the plaintiff. Although the argument is not explicitly
    made to this Court, the obvious suggestion is that the scheme burdens the defendant’s
    right to a fair jury trial. Setting aside any potential, but here unpreserved, due process
    or right to a jury claims, the unsupported assumptions and conclusory statements upon
    which Azzarello’s directives are built are problematic on their face.
    First, the notion that a legal inquiry into “whether that condition justifies placing
    liability upon the supplier” (product is unreasonably dangerous) is, albeit distinguishable,
    entirely separable from a factual inquiry into the predicate “condition of a product”
    (defective condition of product) when determining whether to affix liability upon a
    supplier is incompatible with basic principles of strict liability. Thus, in a jurisdiction
    following the Second Restatement formulation of strict liability in tort, the critical inquiry
    in affixing liability is whether a product is “defective”; in the context of a strict liability
    claim, whether a product is defective depends upon whether that product is
    “unreasonably dangerous.” Yet, Azzarello divorced one inquiry from the other: under
    the Azzarello scheme, the trial court serves as the gate-keeper of one question with the
    apparent task of deciding as a matter of law and policy whether a product is one even
    susceptible to a strict liability claim. As a practical matter, the Azzarello decision did not
    indicate at which point of the trial the court should consider the question, nor what
    pleadings or evidence would be relevant to the inquiry; the Court did suggest, however,
    that the matter “d[id] not fall within the orbit of a factual 
    dispute.” 391 A.2d at 1026
    .
    Second, the practical reality, as exemplified by the matter before us, is that trial
    courts simply do not necessarily have the expertise to conduct the social policy inquiry
    into the risks and utilities of a plethora of products and to decide, as a matter of law,
    [J-80-2013] - 82
    whether a product is unreasonably dangerous except perhaps in the most obvious of
    cases (e.g., where injury is caused by a knife), where a gate-keeper’s function is hardly
    necessary.    In this case, Omega Flex moved for summary judgment before trial, a
    nonsuit after the close of the Tinchers’ case, and then renewed the motion for a nonsuit
    after both parties rested, asking the court to determine whether the TracPipe System
    was unreasonably dangerous. Although the trial court denied all motions, the court
    addressed the merits of the risk-utility calculus on the record only in the context of the
    motions for nonsuit. See N.T., 10/18/2010, at 514-15 (“The [trial c]ourt had denied the
    [summary judgment] motion, presumably, although I don’t know for sure, because it
    thought this might be an issue of fact that needed to be heard at trial.”). Given the
    opportunity to rule on Omega Flex’s motions for nonsuit, the trial court reviewed the
    evidence introduced at trial before denying the motions, in addition to evidence deemed
    inadmissible at trial -- i.e., proof of a redesigned TracPipe System, marketed as
    “Counterstrike,” that was resistant to lightning strikes. See 
    id. at 514-26
    & 721-41; Tr.
    Ct. Op., 8/5/2011, at 11-20. This matter illustrates that the assumptions upon which the
    Azzarello Court assigned the task of determining whether a product is unreasonably
    dangerous are impractical. In the alternative, a strict reading of Azzarello is undesirable
    because it would encourage trial courts to make either uninformed or unfounded
    decisions of social policy that then substantially determine the course and outcome of
    the trial.
    Subsequent application of Azzarello elevated the notion that negligence concepts
    create confusion in strict liability cases to a doctrinal imperative, whose merits were not
    examined to determine whether such a bright-line rule was consistent with reason in
    light of the considerations pertaining to the case. Beyond the merits of the narrow
    holdings in the several cases, the effect of the per se rule that negligence rhetoric and
    [J-80-2013] - 83
    concepts were to be eliminated from strict liability law was to validate the suggestion
    that the cause of action, so shaped, was not viable, and to invite calls for reform. In
    2009, the Third Circuit predicted that this Court would simply adopt the Third
    Restatement approach to the strict liability doctrine; this Court has not taken that
    decisional leap.
    D.     The Strict Product Liability Cause of Action in Pennsylvania
    Overruling Azzarello leaves a gap, going forward, in our strict liability
    jurisprudence. The preferable solution may be to have the General Assembly address
    this arena of substantive law.       But, so long as the possibility of comprehensive
    legislative reform remains unlikely or uncertain, this Court retains the authority and duty
    at common law to take necessary action to avoid injustice, uncertainty, delay, and the
    possibility of different standards and procedures being employed in different courtrooms
    throughout the Commonwealth. Accord Commonwealth v. Sanchez, 
    36 A.3d 24
    , 52
    (Pa. 2011); see also 
    Bugosh, 971 A.2d at 1240
    & n.19 (Saylor, J., dissenting, joined by
    Castille, C.J.) (addressing legislative and judicial roles in strict liability arena). This is
    particularly so when the underlying problem derives from our own decisional law. The
    Court is positioned to take the necessary corrective action in this matter and offer
    guidance. See, e.g., 
    Ayala, 305 A.2d at 883
    (doctrine of immunity judicially imposed
    may be judicially terminated) (quoting Molitor v. Kaneland Community Unit Dist. No.
    302, 
    163 N.E.2d 89
    , 96 (Ill. 1959) (“‘Having found that doctrine to be unsound and
    unjust under present conditions, we consider that we have not only the power, but the
    duty, to abolish that immunity. We closed our courtroom doors without legislative help,
    and we can likewise open them.’”)); see also Mayle v. Pa. Dep’t of Highways, 388 A.2d
    [J-80-2013] - 84
    709, 720 (Pa. 1978) (Court may abolish judicial doctrine of sovereign immunity, which is
    manifestly unfair and non-constitutional in origin).
    Strict liability in tort for product defects is a cause of action which implicates the
    social and economic policy of this Commonwealth. See Ash v. Continental Ins. Co.,
    
    932 A.2d 877
    , 884 (Pa. 2007) (“Tort actions lie for breaches of duties imposed by law as
    a matter of social policy, while contract actions lie only for breaches of duties imposed
    by mutual consensus agreements between particular individuals.”).18 The policy was
    articulated by the concurring and dissenting opinion of Justice Jones in Miller, upon
    which the Webb Court relied in “adopting” the strict liability theory as a distinct cause of
    action in tort: those who sell a product (i.e., profit from making and putting a product in
    the stream of commerce) are held responsible for damage caused to a consumer by the
    reasonable use of the product. See 
    Miller, 221 A.2d at 334-35
    (Jones, J., concurring
    and dissenting). The risk of injury is placed, therefore, upon the supplier of products.
    
    Azzarello, 391 A.2d at 1023-24
    ; accord Ellen Wertheimer, UNKNOWABLE DANGERS               AND
    THE   DEATH OF STRICT PRODUCTS LIABILITY: THE EMPIRE STRIKES BACK, 60 U. Cin. L. Rev.
    1183, 1184-85 (1992).        No product is expressly exempt and, as a result, the
    presumption is that strict liability may be available with respect to any product, provided
    18
    Because the strict liability cause of action developed at common law, relevant
    policy justifications are derived from decisional law and scholarly commentary. As
    noted, the General Assembly has not spoken affirmatively in relation to the strict liability
    cause of action, although the Commonwealth has expressed its interest in protecting
    consumers in several arenas by statute. See, e.g., Act 387 of 1968, P.L. 1224
    (reenacted as Act 260 of 1976, P.L. 1166) (the “Unfair Trade Practices and Consumer
    Protection Law”). The fair presumption arising from the General Assembly refraining for
    50 years from acting otherwise is that the General Assembly has at least acquiesced in
    the existence of the common law strict liability cause of action. See 
    Everhart, 938 A.2d at 307
    ; compare Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 
    81 A.3d 830
    , 834-35 (Pa. 2013) (General Assembly amended statute to address gap which, in
    interim nine years, had been governed by common law).
    [J-80-2013] - 85
    that the evidence is sufficient to prove a defect. See RESTATEMENT (2D)         OF   TORTS §
    402A cmt. b (cause of action in strict liability “cover[s] the sale of any product which, if
    it should prove to be defective, may be expected to cause physical harm to the
    consumer or his property”) (emphasis added); accord Prosser, 69 Yale L. J. 1103-04;
    but see Hahn v. Richter, 
    673 A.2d 888
    (Pa. 1996) (manufacturer immune from strict
    liability defective design claim premised upon sale of prescription drugs without
    adequate warning).
    A broad reading of this policy statement suggests that liability would attach
    absolutely, once the consumer or user suffers harm; indeed, early proponents
    supported such an application. See, e.g., Escola v. Coca Cola Bottling Co. of Fresno,
    
    150 P.2d 436
    , 440 (Cal. 1944) (Traynor, J., concurring) (“In my opinion it should now be
    recognized that a manufacturer incurs an absolute liability when an article that he has
    placed on the market, knowing that it is to be used without inspection, proves to have a
    defect that causes injury to human beings.”). But, experience has taught otherwise and,
    in modern application, strict liability doctrine is a substantially narrower theory. Prosser,
    69 Yale L. J. at 1143-46 (“Few products can ever be made entirely safe, and the
    producer cannot be made an insurer of every one who may possibly be hurt.”).
    To explain its proper boundaries post-Azzarello, we address the fundamental
    underpinnings of the cause of action: the duty imposed by law and what constitutes a
    breach of the duty; and we also advert to additional matters such as causation,
    damages, defenses, and effects on other doctrines where necessary.
    1.     The Duty
    “Tort actions lie for breaches of duties imposed by law as a matter of social policy
    . . . .” 
    Ash, 932 A.2d at 884
    . Since the tide turned with New York’s 1916 MacPherson
    [J-80-2013] - 86
    decision,19 all American jurisdictions have accepted the existence of a duty in tort
    arising from the supplier-consumer relationship.         Disagreement among jurisdictions
    remains in defining the nature of that duty. Thus, the policy of some jurisdictions is that
    those who engage in the business of selling a product are subject to a duty of due care
    in manufacturing and selling the product.        See, e.g., 
    Prentis, 365 N.W.2d at 186
    (Michigan).20 By comparison, the policy of those jurisdictions that have incorporated the
    Second Restatement into their common law is that those who engage in the business of
    selling a product are subject to both a duty of care in manufacturing and selling the
    product and a duty to sell a product free from a “defective condition.” The duty spoken
    of in strict liability is intended to be distinct from the duty of due care in negligence.
    RESTATEMENT (2D) OF TORTS § 402A(2).
    The duty in strict liability pertains to the duty of a manufacturer and of suppliers in
    the chain of distribution to the ultimate consumer. The Restatement offers a functional
    shorthand for the balancing of interests implicit in assessing the existence of the strict
    liability duty in tort between those in a consumer/user-supplier relationship.           See
    
    Scampone, 57 A.3d at 606
    ; cf. Althaus v. Cohen, 
    756 A.2d 1166
    , 1169 (Pa. 2000)
    (recognizing balancing calculus implicit in determining whether therapist owed parents
    19
    
    MacPherson, supra
    , 217 N.Y. at 389 (“[i]f the nature of a thing is such that it is
    reasonably certain to place life and limb in peril when negligently made, it is then a thing
    of danger”; discarding requirement to prove that product was inherently dangerous (e.g.,
    “poisons, explosives, and things of like nature”) to obtain compensation for harm caused
    by negligent conduct).
    20
    But, even the development of the proper bounds of the duty of care was not
    without decades-long growing pains. See generally Martin v. Herzog, 
    126 N.E. 814
    (N.Y. 1920); Palsgraf v. Long Island R. Co., 
    162 N.E. 99
    (N.Y. 1928); The No. 1 of New
    York, 
    61 F.2d 783
    (2d Cir. 1932); Sinram v. Pennsylvania R. Co., 
    61 F.2d 767
    (2d Cir.
    1932); U.S. v. Carroll Towing Co., 
    159 F.2d 169
    (2d Cir. 1947).
    [J-80-2013] - 87
    of patient alleged duty of care (negligence)). In incorporating the strict liability cause of
    action into Pennsylvania common law, the Webb Court expressly relied upon the
    Second Restatement and relevant scholarly commentary to supply its justification
    . 220 A.2d at 854
    .       Indeed, comments b, c, g, and m to Section 402A of the Second
    Restatement offer reasoned consideration of factors relevant in Pennsylvania to explain
    the existence and nature of a seller’s duty in tort to a consumer. In part, comment c
    explains that:
    [A] seller, by marketing his product for use and
    consumption, has undertaken and assumed a special
    responsibility toward any member of the consuming public
    who may be injured by it; that public has a right to and does
    expect, in [the] case of products which it needs and for which
    it is forced to rely upon the seller, that reputable sellers will
    stand behind their goods; that public policy demands that the
    burden of accidental injuries caused by products intended for
    consumption be placed upon those who market them, and
    be treated as a cost of production against which liability
    insurance can be obtained; and that consumer of such
    products is entitled to the maximum of protection at the
    hands of someone, and proper persons to afford it are those
    who market the products.
    RESTATEMENT (2D) OF TORTS § 402A cmt. c.
    This reasoning explains the nature of the non-delegable duty articulated by the
    Second Restatement and recognized in Webb. Stated affirmatively, a person or entity
    engaged in the business of selling a product has a duty to make and/or market the
    product -- which “is expected to and does reach the user or consumer without
    substantial change in the condition in which it is sold” -- free from “a defective condition
    unreasonably dangerous to the consumer or [the consumer’s] property.”                Accord
    RESTATEMENT (2D) OF TORTS § 402A(1).
    [J-80-2013] - 88
    2.      Breach of Duty
    Where a duty exists and, in the absence of a recognized immunity, the duty is
    breached, and the breach of the duty is causally connected to a compensable injury
    results, a tortious act results, regardless of whether the tortious act is construed
    colloquially as fault. Compare Welch v. Outboard Marine Corp., 
    481 F.2d 252
    , 256 (5th
    Cir. 1973) (“Fault as the violation of a duty -- even in the absence of negligence --
    agrees with civilian principles generally . . . .”) with 
    Putman, 338 F.2d at 913
    n.8
    (“[W]arranty (unlike negligence which is a tort concept based on fault) is not a concept
    based on fault or on the failure to exercise reasonable care. But this does not mean
    that warranty is necessarily contractual or non-tortious in nature.”). To demonstrate a
    breach of duty in a strict liability matter, a plaintiff must prove that a seller (manufacturer
    or distributor) placed on the market a product in a “defective condition.”
    In this context, the concept of defective condition is a legal term of art, which
    denotes neither its colloquial import nor a scientifically immutable fact.           “The term
    ‘defect’ in design cases is ‘an epithet -- an expression for the legal conclusion rather
    than a test for reaching that conclusion.’” 
    Prentis, 365 N.W.2d at 182
    (quoting John W.
    Wade, ON PRODUCT “DESIGN DEFECTS”           AND   THEIR ACTIONABILITY, 33 Van. L. Rev. 551,
    552 (1980)); accord John W. Wade, ON              THE   NATURE   OF   STRICT TORT LIABILITY   FOR
    PRODUCTS, 
    44 Miss. L
    .J. 825, 831-32 (1973) (see infra n.21).                  Stated otherwise,
    evidentiary considerations (e.g., what evidence tends to prove the existence of a legal
    defect) should not be mistaken for the question of whether a substantive duty in strict
    liability exists or should exist, or what constitutes a breach of that duty.            Accord
    
    Scampone, 57 A.3d at 606
    (evidence of whether nursing home was similar to hospital
    not dispositive of whether nursing home owed patient substantive duty in tort); Gilbert v.
    Korvette, Inc., 
    327 A.2d 94
    , 96-97 (Pa. 1974) (correcting confusion regarding res ipsa
    [J-80-2013] - 89
    loquitur doctrine, which was “conceived as a shorthand statement of the evidentiary rule
    allowing negligence to be established by circumstantial proof” but erroneously
    developed into heightened burden of proving duty of care).            In Pennsylvania, the
    question of whether those who make or market products have duties in strict liability (in
    addition to negligence) has been answered in the affirmative by the 1966 decision in
    Webb. The question which has proven substantially more difficult has been one of
    proof: what evidence is relevant to prove a “defective condition” and how should that
    evidence be weighed.
    3.     The Standard of Proving “Defective Condition”
    In the Context of a Design-Related Claim21
    Not least because of its colloquial use and attendant implications of a scientific
    level of certainty, courts across jurisdictions have struggled to articulate the legal notion
    of “defect” in a way that would account for such an alleged condition, encompassing the
    myriad products on the market, in a way that can effectively resonate with a jury. The
    difficulty persists particularly with respect to defects in design. See 
    Bugosh, 971 A.2d at 1234
    (Saylor, J., dissenting); see also Owen, 
    73 Mo. L
    . Rev. at 291-92 & n.2 (citing
    cases from other jurisdictions).     Dean John W. Wade22 explained the difficulty as
    follows:
    21
    Our decision is limited to the context of a “design defect” claim by the facts of this
    matter, albeit the foundational principles upon which we touch may ultimately have
    broader implications by analogy.
    22
    John W. Wade was dean of Vanderbilt University’s law school from 1952 to
    1971, and a senior authority in the publication of the case law book “Prosser, Wade and
    Schwartz’s Torts, Cases and Materials.”
    [J-80-2013] - 90
    [T]he term “defective” raises many difficulties. Its
    natural application would be limited to the situation in which
    something went wrong in the manufacturing process, so that
    the article was defective in the sense that the manufacturer
    had not intended it to be in that condition. To apply it also to
    the case in which a warning is not attached to the chattel or
    the design turns out to be a bad one or the product is likely
    to be injurious in its normal condition, is to use the term in a
    Pickwickian sense, with a special, esoteric meaning of its
    own. It is not without reason that some people, in writing
    about it, speak of the requirement of being “legally
    defective,” including the quotation marks. To have to define
    the term to the jury, with a meaning completely different from
    the one they would normally give to it, is to create the
    chance that they will be misled. To use it without defining it
    to the jury is almost to ensure that they will be misled. . . .
    Finally, the term “defective” gives an illusion of certainty by
    suggesting a word with a purported specific meaning rather
    than a term connoting a standard involving the weighing of
    factors.
    Phillips, 
    841 A.2d 1017-18
    (Saylor, J., concurring) (quoting Wade, 
    44 Miss. L
    . J. at 831-
    32) (footnote omitted).
    In addressing the disputed notion of “defective condition,” we start with the
    assumption that, as with any other tort relationship, the supplier and the consumer are
    protecting legitimate but conflicting interests; the purpose of the court at common law is
    to evaluate the interests and articulate the principles based upon where the line is
    drawn in individual cases. See Glenn v. Point Park Coll., 
    272 A.2d 895
    , 899 (Pa. 1971).
    In any particular case, argumentation by a party -- with whatever creative flair is offered
    -- seeks to give ascendancy to that party’s interests; the most persuasive arguments
    advance the interests of all parties, preferably in actuality but often simply in
    appearance. The role of the court in deciding questions of law, and dispositive motions,
    is to assess the validity of the argumentation and test it against the facts, the governing
    law, policy, and reason. The court’s process “results in according or denying a privilege
    [J-80-2013] - 91
    which, in turn, determines liability.” 
    Id. In articulating
    rules at common law in this area,
    then, we also outline the socially acceptable bounds of a product’s danger that form the
    predicate for conduct which the law regards as privileged. See 
    id. This function
    helps
    to ensure regularity and predictability in the processes of law.
    In the products liability arena, the individual consumer or user of the product
    retains primary interests in the safe continued use of a product and, relatedly, in the
    cost of any injury caused by the product.        See 
    Coyle, 584 A.2d at 1387
    (quoting
    RESTATEMENT (2D)    OF   TORTS § 402A cmt. c). The consumer has additional economic,
    moral, and visceral interests in the sales price of the product, the availability of new or
    innovative products, and in any spillover effects (e.g., increased social welfare and
    reduced strain on public resources related to fewer injuries and improved health;
    increased employment, investment opportunities, value of shareholder equity). Accord,
    e.g., Tooey v. AK Steel Corp., 
    81 A.3d 851
    , 857 (Pa. 2013) (cost of workers’
    compensation scheme is paid by employer but, ultimately, passed on to consuming
    public). These interests are also shared by members of the public generally, albeit
    more diffusely. For the individual supplier, the assumed primary interest is to generate
    a sustained profit, above the cost of doing business. Accord Wertheimer, 60 U. Cin. L.
    Rev. at 1185. A supplier also retains complementary economic interests in maintaining
    a reputable name and in providing new or innovative products, which requires, among
    other things, financial flexibility beyond mere profitability. See 
    Beard, 41 A.3d at 837
    &
    n.16; 
    Miller, 221 A.2d at 334-35
    (Second Restatement reflects expectation that
    manufacturers and sellers will stand behind their products). Another motivating factor
    may be a moral interest in providing a safe product with minimal negative externalities
    or spillover effects (e.g., environmental impact). Concomitantly, suppliers across the
    [J-80-2013] - 92
    same and/or related industries may share similar, albeit diluted, interests regarding
    profitability and reputability on industry-wide bases.23
    As they have been passed down to the present, the common law principles that
    delineate the strict liability cause of action, and the limits upon strict liability, reflect a
    balance of interests respecting what is socially or economically desirable.            Accord
    Whitner v. Von Hintz, 
    263 A.2d 889
    , 893 (Pa. 1970) (common law notion of “proximate
    cause” allows periodic adjustment between recovery for wrong and limits upon liability
    to advance desirable policy outcomes).          The calculus is sensitive to the varying
    magnitude of the interests and, sometimes perversely, to the force with which each
    interest is asserted from time to time. Compare 
    Escola, 150 P.2d at 441
    (Traynor, J.,
    concurring) (“The cost of an injury and the loss of time or health may be an
    overwhelming misfortune to the person injured, and a needless one, for the risk of injury
    can be insured by the manufacturer and distributed among the public as a cost of doing
    business.”); Prosser, 69 Yale L. J. at 1119-22 (rejecting idea that “liability should never
    rest upon anything but fault,” as “a position certainly out of date in this day and
    generation”) with 
    Bugosh, 971 A.2d at 1235
    & n.9 (Saylor, J., dissenting) (citing 
    Prentis, 365 N.W.2d at 185
    ) (justifications for limiting liability include: “incentivizing safer design
    by rewarding careful manufacturers; the recognition that a verdict for a plaintiff in a
    23
    The more diffuse industry-wide and public interests are represented by the
    several amici curiae filing briefs in this matter. The following entities have filed briefs:
    (1) in support of Omega Flex: Crane Company, the Atlantic Legal Foundation, the
    Pacific Legal Foundation, the Pennsylvania Business Council et al., the Product Liability
    Advisory Council, Inc., and Sherwin-Williams et al.; and (2) in support of the Tinchers:
    the Pennsylvania Association for Justice. The amici offer essentially the same legal and
    policy arguments as those parties in support of whom their briefs were filed. We note
    that, although amicus arguments and interests will not be dispositive as a general
    proposition, their representation often affects the scope of the principle articulated (for
    example, amicus’s interests often offer the court a broader perspective on the relevant
    issues to appropriately narrow the holding).
    [J-80-2013] - 93
    product liability case is tantamount to a determination that an entire product line is
    defective. . . ; a fault system incorporates greater intrinsic fairness by not burdening
    manufacturers and their customers with the cost of insuring against all possible losses”);
    Worthington, 36 S. Tex. L. Rev. at 250-52 (addressing increase in cost of product
    liability insurance premiums)); accord Prosser, 69 Yale L. J. at 1104-06 (relating ascent
    of strict liability to “pitch of hysteria” following Department of Agriculture investigations
    into unsanitary and dangerously unsafe supply of food, and publication of “sensational
    novel” by Upton Sinclair); John F. Vargo, THE EMPEROR'S NEW CLOTHES: THE AMERICAN
    LAW INSTITUTE ADORNS A “NEW CLOTH” FOR SECTION 402A PRODUCTS LIABILITY DESIGN
    DEFECTS--A SURVEY OF THE STATES REVEALS A DIFFERENT W EAVE, 26 U. Mem. L. Rev.
    493, 515-36 (1996) (describing internal criticism that membership of American Law
    Institute drafting Third Restatement “[wa]s largely comprised of those who represent[ed]
    corporate interests” and who “fail[ed] to leave the client at the door”).
    Against this background, two standards have emerged, that purport to reflect the
    competing interests of consumers and sellers, upon which all American jurisdictions
    judge the adequacy of a product’s design: one measures “consumer expectations,” and
    articulates the standard more from the perspective of the reasonable consumer; the
    second balances “risk” and “utility,” and articulates the standard more from the
    perspective of the reasonable seller. Other jurisdictions and the Third Restatement
    have combined the two standards. See generally Owen, 
    73 Mo. L
    . Rev. at 299-300.
    We describe the alternatives.
    Consumer Expectations Standard
    The consumer expectations test defines a “defective condition” as a condition,
    upon normal use, dangerous beyond the reasonable consumer’s contemplations. See,
    [J-80-2013] - 94
    e.g., 
    Welch, 481 F.2d at 254
    ; see also David G. Owen, PRODUCTS LIABILITY LAW , at § 5.6
    (Hornbook Series) (2d ed. 2008) (hereinafter referred to as “Owen, HORNBOOK”)
    (describing provenance and alternative formulations). The test offers a standard of
    consumer expectations which, in typical common law terms, states that: the product is
    in a defective condition if the danger is unknowable and unacceptable to the average or
    ordinary consumer.         See 
    Welch, 481 F.2d at 254
    (“A product is defective and
    unreasonably dangerous[, inter alia,] if the risks are greater than a reasonable buyer
    would expect.”). The test has been described as reflecting the “surprise element of
    danger.” Owen, HORNBOOK, at 303 n.12 (quoting Hon. Roger Traynor, THE W AYS          AND
    MEANINGS    OF   DEFECTIVE PRODUCTS     AND   STRICT LIABILITY, 
    32 Tenn. L
    . Rev. 363, 370
    (1965)).   The product is not defective if the ordinary consumer would reasonably
    anticipate and appreciate the dangerous condition of the product and the attendant risk
    of injury of which the plaintiff complains (e.g., a knife). See Vincer v. Esther Williams
    All-Aluminum Swimming Pool Co., 
    230 N.W.2d 794
    , 798 (Wis. 1975); see also
    RESTATEMENT (2D)      OF   TORTS § 402A cmt. i (“The article sold must be dangerous to an
    extent beyond that which would be contemplated by the ordinary consumer who
    purchases it, with the ordinary knowledge common to the community as to its
    characteristics.”).   The nature of the product, the identity of the user, the product’s
    intended use and intended user, and any express or implied representations by a
    manufacturer or other seller are among considerations relevant to assessing the
    reasonable consumer’s expectations. See, e.g., 
    Mikolajczyk, 901 N.E.2d at 336
    ; Jarke
    v. Jackson Prods., 
    631 N.E.2d 233
    , 238-40 (Ill. App. 1st Dist. 1994); Owen, HORNBOOK,
    at 303, 307-09; see also RESTATEMENT (2D) OF TORTS § 402A cmt. i (“Good butter is not
    unreasonably dangerous merely because, if such be the case, it deposits cholesterol in
    [J-80-2013] - 95
    the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish
    oil, is unreasonably dangerous.”).
    The language of the consumer expectations test derives from the Second
    Restatement’s commentary on the principles designated to limit liability, i.e., “defective
    condition” and “unreasonably dangerous.” RESTATEMENT (2D) OF TORTS § 402A cmts. g
    & i. Several commentators have suggested that this test reflects the warranty law roots
    of strict liability in tort, and serves to vindicate significant interests central to the public
    policy justifying the strict liability cause of action in the first place:
    Powerful reasons support protections of a consumer’s
    expectations of product safety that arise from the safety
    representations of a manufacturer or other seller, whether
    those representations be express or implied. When making
    safety “promises” in an effort to sell its products, a
    manufacturer seeks to convince potential buyers that its
    affirmations are both valuable and true. Safety information is
    valuable to users because it provides a “frame of reference”
    that permits a user to shift his or her limited cognitive and
    other resources away from self-protection toward the pursuit
    of other goals -- which in turn shifts responsibility for
    protecting the user to the manufacturer. In this manner, true
    safety information adds value to the product by enhancing
    the user’s autonomy, for which value the consumer fairly
    pays a price. So, if the information is not true but false, the
    purchaser loses significant autonomy, as well as the benefit
    of the bargain. Since an important purpose of the law is to
    promote autonomy, and the equality of the buyer to the seller
    as reflected in their deal, the law fairly may demand that the
    seller rectify the underlying falsity and resulting inequality in
    the exchange transaction if harm results.
    Owen, HORNBOOK, at 303 (footnote omitted); compare 
    Putman, 338 F.2d at 913
    n.8
    (“Liability in warranty arises where damage is caused by the failure of a product to
    measure up to express or implied representations on the part of the manufacturer or
    other supplier.”).
    [J-80-2013] - 96
    Application of the consumer expectations test in its purest form, however, has
    theoretical and practical limitations. First, products whose danger is obvious or within
    the ordinary consumer’s contemplation would be exempt from strict liability; some
    therefore have said that related consumer safety expectations regarding the presence
    of the danger are too low. See, e.g., Ahrens v. Ford Motor Co., 
    340 F.3d 1142
    (10th
    Cir. 2003) (affirming district court decision that manufacturer not liable for defective
    design of tractor without seatbelt or for failing to warn of danger because plaintiff failed
    to adduce sufficient evidence that risk of danger was beyond contemplation of ordinary
    consumer).    Second, a product whose danger is vague or outside the ordinary
    consumer’s contemplation runs the risk of being subjected to arbitrary application of the
    strict liability doctrine; jury determinations of consumer expectations regarding the
    presence of danger are unpredictable. This difficulty is characteristic of products of
    relatively complex design. See, e.g., Heaton v. Ford Motor Co., 
    435 P.2d 806
    (Or.
    1967). The Heaton Court explained:
    [A product] should be strong enough to perform as the
    ordinary consumer expects. . . . The jury is supposed to
    determine the basically factual question of what reasonable
    consumers do expect from the product. Where the jury has
    no experiential basis for knowing this, the record must
    supply such a basis. In the absence of either common
    experience or evidence, any verdict would, in effect, be the
    jury’s opinion of how strong the product [s]hould be. Such
    an opinion by the jury would be formed without the benefit of
    data concerning the cost or feasibility of designing and
    building stronger products. Without reference to relevant
    factual data, the jury has no special qualifications for
    deciding what is reasonable.
    
    Id. at 809;
    see also Soule v. Gen. Motors Corp., 
    882 P.2d 298
    , 308 (Cal. 1994) (“[A]
    complex product, even when it is being used as intended, may often cause injury in a
    way that does not engage its ordinary consumers’ reasonable minimum assumptions
    [J-80-2013] - 97
    about safe performance. For example, the ordinary consumer of an automobile simply
    has ‘no idea’ how it should perform in all foreseeable situations, or how safe it should be
    made against all foreseeable hazards.”).
    The consumer expectations test, because of the “obvious defect” exception and
    vagueness concerns, has practical limitations in vindicating the basic public policy
    undergirding strict liability, i.e., that those who sell a product are held responsible for
    damage caused to a consumer despite the reasonable use of the product and that any
    product is, presumptively, subject to liability on a theory of strict liability premised upon
    this policy. See 
    Miller, 221 A.2d at 334-35
    (Jones, J., concurring and dissenting).
    Risk-Utility Standard
    The difficulty related to vindicating the salient public policy in cases in which the
    alleged defective condition is premised upon either an obvious danger or a danger
    outside the ordinary consumer’s contemplation suggests that a different approach is
    necessary and appropriate for judging the reasonableness of danger, at least respecting
    some products. American jurisdictions, including Pennsylvania, apply a test balancing
    risks and utilities or, stated in economic terms, a cost-benefit analysis. See Owen,
    HORNBOOK, at § 5.7; 
    Azzarello, 391 A.2d at 1026
    . The test offers a standard which, in
    typical common law terms, states that: a product is in a defective condition if a
    “reasonable person” would conclude that the probability and seriousness of harm
    caused by the product outweigh the burden or costs of taking precautions. See, e.g.,
    Denny v. Ford Motor Co., 
    662 N.E.2d 730
    , 735 (N.Y. 1995); 
    Barker, 573 P.2d at 456
    ;
    accord 
    Welch, 481 F.2d at 256
    (product is defective if reasonable seller would not sell
    product knowing of risks involved). Stated otherwise, a seller’s precautions to advert
    the danger should anticipate and reflect the type and magnitude of the risk posed by the
    [J-80-2013] - 98
    sale and use of the product.        See Owen, HORNBOOK, at 315 (risk-utility standard
    “demands that manufacturers adopt precautions proportionate to the magnitude of the
    expected risk”).
    The risk-utility test offers courts an opportunity to analyze post hoc whether a
    manufacturer’s conduct in manufacturing or designing a product was reasonable, which
    obviously reflects the negligence roots of strict liability. See Blue v. Envt’l Eng’g, Inc.,
    
    828 N.E.2d 1128
    , 1140-41 (Ill. 2005) (“[I]t has been observed that the kind of hindsight
    analysis inherent in the risk-utility test, which requires juries to weigh the risk inherent in
    the product's design, has all the earmarks of determining negligence.”); see also U.S. v.
    Carroll Towing 
    Co., 159 F.2d at 174
    (Judge Learned Hand’s formula).                     Other
    jurisdictions have generally cited favorably the works of Dean Wade, which articulated
    factors relevant to the manufacturer’s risk-utility calculus implicated in manufacturing or
    designing a product. See, e.g., Calles v. Scripto-Tokai Corp., 
    864 N.E.2d 249
    , 260-61
    (Ill. 2007) (citing cases from multiple jurisdictions). The factors are:
    (1) The usefulness and desirability of the product—its utility
    to the user and to the public as a whole.
    (2) The safety aspects of the product—the likelihood that it
    will cause injury, and the probable seriousness of the injury.
    (3) The availability of a substitute product which would meet
    the same need and not be as unsafe.
    (4) The manufacturer’s ability to eliminate the unsafe
    character of the product without impairing its usefulness or
    making it too expensive to maintain its utility.
    (5) The user’s ability to avoid danger by the exercise of care
    in the use of the product.
    (6) The user’s anticipated awareness of the dangers inherent
    in the product and their availability, because of general
    public knowledge of the obvious condition of the product, or
    of the existence of suitable warnings or instructions.
    (7) The feasibility, on the part of the manufacturer, of
    spreading the loss by setting the price of the product or
    carrying liability insurance.
    [J-80-2013] - 99
    
    Id. (quoting Wade,
    44 Miss. L
    . J. at 837–38). But, while these considerations may
    provide a holistic perspective on a manufacturer’s choice to bring a product to market,
    they may not be immediately responsive in the (typical) case implicating allegations
    relating to a particular design feature. See Owen, HORNBOOK, at 315 (“[T]he issue
    properly litigated almost always concerns the narrow “micro-balance” of pros and cons
    of a manufacturer’s failure to adopt some particular design feature that would have
    prevented the plaintiff’s harm. . . .”); but see 
    Beard, 41 A.3d at 838
    (trial courts not
    restricted to considering single use of multi-use product in design defect, threshold, risk-
    utility balancing). The difficulty in presenting the issue to the jury, Professor Owen
    suggests, is resolved by reference to Judge Learned Hand’s formula, which “succinctly
    captures the common sense idea that products are unacceptably dangerous if they
    contain dangers that might cost-effectively (and practicably) be removed.”             Owen,
    HORNBOOK, at 315 (applying Hand formula in strict liability means that jury will decide
    whether seller “fails to adopt a burden of precaution of less magnitude than the harm it
    is likely to prevent”).
    Application of a risk-utility balancing test in its purest form likewise has theoretical
    and practical shortcomings. The goal and strength of a pure risk-utility test is to achieve
    efficiency or “to maximize the common good”; yet, this is also its perceived weakness.
    See Owen, HORNBOOK, at 316. For, while efficiency is certainly a salutary goal of the
    law, it is not its only purpose and, in some respects, it conflicts with bedrock moral
    intuitions regarding justice in determining proper compensation for injury to persons or
    property in individual cases. Compare 
    id. at 318
    (“manufacturer applying cost-benefit
    analysis to safety decision-making in good faith thereby necessarily respects the
    equality and safety rights of consumers as a group”) with William E. Nelson, THE MORAL
    PERVERSITY    OF THE   HAND CALCULUS, 45 St. Louis U. L. J. 759, 761 (2001) (describing
    [J-80-2013] - 100
    limitations of risk-utility analysis in negligence context; “[U]ltimately the Hand calculus is
    not about social efficiency, love, friendship or moral arrogance.           It is only about
    compensation. The Hand calculus does not tell an entrepreneur whether or not to
    engage in conduct that will hurt one person and help another. . . . The Hand calculus
    serves a much narrower function. It tells an entrepreneur only that, if she engages in
    conduct that causes others to lose more than she gains, she will have to compensate
    them for their losses, but that, if she gains more than they lose, no duty of
    compensation will arise. . . . It is this very narrowness of the Hand calculus that makes
    it so morally perverse. . . . ”).      We should be mindful that public policy adjusts
    expectations of efficiency and intuitions of justice considerations, informing a seller’s
    conduct toward consumers as a group, and ensuring proper compensation in individual
    cases by judicial application of the strict liability cause of action.
    Of course, several other causes of action in tort incorporate a risk-utility hindsight
    analysis: for example, negligence and strict liability for abnormally dangerous activities
    (i.e., the use of product in manner and context where danger is substantial,
    unavoidable, and dissonant among neighboring uses, see Owen, HORNBOOK, at 328).
    Neither of those actions involves a pure application of the risk-utility calculus. Accord
    Nelson, 45 St. Louis U. L. J. at 767 (“In sum, it might be right to understand the Hand
    calculus as a device for articulating our moral intuitions rather than a device for
    superceding them.”); accord 
    Blue, 828 N.E.2d at 1140-41
    (hindsight analysis inherent in
    risk-utility test has earmarks of determining negligence). Nor are these causes of action
    the same, albeit when they define the scope of compensation, they use similar rhetoric
    implicating danger / risk and reasonableness. See 
    generally, supra
    , n.18 (explaining
    Cronin). The distinction draws upon the public policy that each cause of action
    vindicates, which incorporates moral intuitions drawn from communal social experience
    [J-80-2013] - 101
    for the purposes of modifying (most often attenuating) the effect of a risk-utility
    application to ascertain appropriate compensation. Ultimately, distinct duties (whether
    statutory or common law) and related causes of action develop to reflect determinations
    regarding a desirable allocation of risk. Cf. Kernan v. Am. Dredging Co., 
    355 U.S. 426
    ,
    438 (1958) (Federal Employers’ Liability Act aimed at “adjusting equitably between the
    worker and his corporate employer the risks inherent in the railroad industry . . . plainly
    rejected many of the refined distinctions necessary in common-law tort doctrine for the
    purpose of allocating risks between persons who are more nearly on an equal footing as
    to financial capacity and ability to avoid the hazards involved.”).
    Combined Tests
    A number of jurisdictions have expressly or implicitly combined the consumer
    expectations and risk-utility standards. One approach is to state the two standards in
    the alternative; a plaintiff’s injury is compensable whether either test is met. See, e.g.,
    
    Barker, 573 P.2d at 457-58
    (discussed infra); 
    Calles, 864 N.E.2d at 257
    ; 
    Welch, 481 F.2d at 254
    (“A product is defective and unreasonably dangerous when a reasonable
    seller would not sell the product if he knew of the risks involved or if the risks are greater
    than a reasonable buyer would expect.”).          The combined standard, which states
    consumer expectations and risk-utility tests in the alternative, retains the features of
    each test, in practice, offering the parties a composite of the most workable features of
    both tests. See Caterpillar Tractor Co. v. Beck, 
    593 P.2d 871
    , 884-85 (Alaska 1979)
    superseded in part by Alaska Stat. § 09.17.060 (1986); accord 
    Soule, supra
    .
    A second approach is to incorporate the risk calculus into a test of consumer
    expectations or, vice versa, to incorporate consumer expectations into the risk-utility
    determination.    See, e.g., 
    Vautour, 784 A.2d at 1182
    (internal citations omitted)
    [J-80-2013] - 102
    (“[P]roduct ‘must be dangerous to an extent beyond that which would be contemplated
    by the ordinary consumer who purchases it, with the ordinary knowledge common to the
    community as to its characteristics.’ . . .      [W]hether a product is unreasonably
    dangerous to an extent beyond that which would be contemplated by the ordinary
    consumer is determined by the jury using a risk-utility balancing test.”); RESTATEMENT
    (3D)   OF   TORTS: PRODUCTS LIABILITY § 2 cmt. f (“A broad range of factors may be
    considered in determining whether an alternative design is reasonable and whether its
    omission renders a product not reasonably safe. The factors include . . . the nature and
    strength of consumer expectations regarding the product, including expectations arising
    from product portrayal and marketing.”); 
    id. § 2
    cmt. g (“consumer expectations do not
    constitute an independent standard for judging the defectiveness of product designs”).
    Courts, moreover, have offered some variations on each of these approaches. In
    California, for example, the Barker court allocated to the supplier the burden to prove
    the adequacy of a product’s design under the “risk-benefit” standard (i.e., to disprove a
    plaintiff’s prima facie case that a product is defective). The Court reasoned that most of
    the evidentiary matters which may be relevant in a typical case involve technical issues
    peculiarly within the knowledge of the 
    manufacturer. 573 P.2d at 455
    . Commentators
    have suggested that another California case, see 
    Soule, supra
    , offered yet another
    variation by which the applicability of either prong of the combined Barker test depends
    upon the complexity of the product. See Owen, HORNBOOK, at 325; Henderson, 83
    Cornell L. Rev. at 899 (Soule “found the test unsuitable for cases involving product
    designs of any complexity. The court in Soule held that it would thereafter countenance
    use of a limited consumer expectations test in cases ‘in which the everyday experience
    of the product’s users permits a conclusion that the product’s design violated minimum
    safety assumptions.’”) (footnotes omitted).
    [J-80-2013] - 103
    It is questionable, however, that the Soule court sought to foreclose strict liability
    claims premised upon a simple / complex classification, as the commentators have
    suggested. Such a standard begs -- or shifts -- the question of which designs are
    complex enough for application of the preferred test. Moreover, the implication that a
    distinct class of “simple” products is subject to a consumer expectations standard of
    liability which is relatively unsuccessful at producing fair results is contradicted by
    Soule’s continued adherence to that standard. See Henderson, 83 Cornell L. Rev. at
    879-82 (disappointment of consumer expectations is inappropriate standard for
    defectiveness in classic design cases).       Ourselves having had the experience of
    attempting to bring various principles to bear upon a single complex case, we believe
    that, placed into its proper context, Soule may be read as simply commenting upon the
    court’s experience with analogous matters and offering guidance to aid trial courts in
    properly guiding the parties and the jury through the litigation process:
    As we have seen, the consumer expectations test is
    reserved for cases in which the everyday experience of the
    product’s users permits a conclusion that the product’s
    design violated minimum safety assumptions, and is thus
    defective regardless of expert opinion about the merits of the
    design. It follows that where the minimum safety of a product
    is within the common knowledge of lay jurors, expert
    witnesses may not be used to demonstrate what an ordinary
    consumer would or should expect. Use of expert testimony
    for that purpose would invade the jury’s function (see Evid.
    Code, § 801, subd. (a)), and would invite circumvention of
    the rule that the risks and benefits of a challenged design
    must be carefully balanced whenever the issue of design
    defect goes beyond the common experience of the product's
    users.
    By the same token, the jury may not be left free to find
    a violation of ordinary consumer expectations whenever it
    chooses. Unless the facts actually permit an inference that
    the product’s performance did not meet the minimum safety
    [J-80-2013] - 104
    expectations of its ordinary users, the jury must engage in
    the balancing of risks and benefits required by the second
    prong of 
    Barker. 882 P.2d at 308-09
    (emphasis and footnote omitted). The Soule court concluded that,
    in light of precedent, the evidence offered by the plaintiff was not probative of the issue
    placed in dispute (there, ordinary consumer expectations regarding excessive
    weakness or porosity in a bracket weld); but, the evidence offered raised an inference of
    defect under the risk-benefit analysis and, therefore, the trial court should have properly
    limited its instructions to the jury to that test. The all-too-common difficulty with the
    commentators’ interpretation of Soule is that the court’s fact-bound evidentiary holding
    is taken out of its context, mistaken for establishment of a distinct burden of proof, and
    treated as doctrine. Compare 
    Scampone, 57 A.3d at 606
    ; 
    Gilbert, 327 A.2d at 96-97
    .
    The Third Restatement also offers a variation upon those tests primarily based
    upon a risk-utility determination by requiring proof of a reasonable alternative design.
    See Henderson, 83 Cornell L. Rev. at 884-87 (explaining standard of proof premised
    upon risk-utility balancing and proof of alternative design).       The Third Restatement
    states, in illustrative part:
    § 1 Liability of Commercial Seller or Distributor for
    Harm Caused by Defective Products
    One engaged in the business of selling or otherwise
    distributing products who sells or distributes a defective
    product is subject to liability for harm to persons or property
    caused by the defect.
    § 2 Categories of Product Defect
    A product is defective when, at the time of sale or
    distribution, it contains a manufacturing defect, is defective in
    design, or is defective because of inadequate instructions or
    warnings. A product:
    (a) contains a manufacturing defect when the product
    departs from its intended design even though all possible
    [J-80-2013] - 105
    care was exercised in the preparation and marketing of the
    product;
    (b) is defective in design when the foreseeable risks
    of harm posed by the product could have been reduced or
    avoided by the adoption of a reasonable alternative design
    by the seller or other distributor, or a predecessor in the
    commercial chain of distribution, and the omission of the
    alternative design renders the product not reasonably safe;
    (c) is defective because of inadequate instructions or
    warnings when the foreseeable risks of harm posed by the
    product could have been reduced or avoided by the
    provision of reasonable instructions or warnings by the seller
    or other distributor, or a predecessor in the commercial chain
    of distribution, and the omission of the instructions or
    warnings renders the product not reasonably safe.
    § 3 Circumstantial Evidence Supporting Inference of
    Product Defect
    It may be inferred that the harm sustained by the
    plaintiff was caused by a product defect existing at the time
    of sale or distribution, without proof of a specific defect,
    when the incident that harmed the plaintiff:
    (a) was of a kind that ordinarily occurs as a result of
    product defect; and
    (b) was not, in the particular case, solely the result of
    causes other than product defect existing at the time of sale
    or distribution.
    *      *       *      *
    RESTATEMENT (3D)     OF   TORTS: PRODUCTS LIABILITY §§ 1-3 (1998) (Liability Rules
    Applicable to Products Generally).
    Section 1 of the Third Restatement articulates the general policy of strict liability.
    Sections 2 through 4, as well as Sections 6 and 7, address evidentiary questions.
    Notably, Section 2 identifies three types of defects and, at least with respect to “design”
    defect (subsection (b)), states a general rule, which defines a defect by reference to the
    relative risk-utility calculi for the allegedly defective product and an alternatively
    [J-80-2013] - 106
    designed product.     See also Henderson, 83 Cornell L. Rev. at 888-89 (alternative
    design is proof of technological feasibility, “an empirical factor for courts to consider in
    the normative process of risk-utility balancing”). Application of this general rule is, as a
    result, limited -- and compensation is available -- only for those products for which an
    alternative design can be shown to exist. The Restatement illustrates its view that other
    evidence may be probative in a design defect case by articulating special rules. Thus,
    Sections 3, 4, and comment e to Section 2 of the Third Restatement establish
    alternative means for proving a design defect “in circumstances in which common
    experience teaches that an inference of defect may be warranted under the specific
    facts,” where the seller or distributor violates statutory and regulatory norms, and “when
    the product design is manifestly unreasonable.” Meanwhile, Sections 6 and 7 address
    special rules of liability for specific products: prescription drugs and medical devices,
    and food products. See 
    id. at §§
    6-7; see also § 6 cmt. f (Section 6 principle articulates
    judgment that liability attaches only when certain type and quantum of evidence is
    adduced by plaintiff; noting expectation that, under “this very demanding objective
    standard, liability is likely to be imposed only under unusual circumstances”). In relation
    to prescription drugs, for example, the special rule reflects in part an understanding that,
    for some products, there is no alternative design.
    4.      The Appropriate Post-Azzarello Strict Liability Construct
    a.     The “Move” to the Third Restatement
    Guided by this decisional and doctrinal universe, we address the parties’
    competing arguments, which rely, to a great extent, upon jurisprudential and policy
    assertions. Initially, from a jurisprudential perspective, Omega Flex argues that the
    Third Restatement offers a clearer and more precise articulation of strict liability doctrine
    [J-80-2013] - 107
    than does the Second Restatement, and adoption of the new formulation would return
    Pennsylvania into the mainstream in this arena. Omega Flex adds that a move to the
    Third Restatement is also the next logical step in the evolution of the law given that
    several Justices of this Court and members of the U.S. Court of Appeals for the Third
    Circuit, in Berrier, have articulated its merits and supported its application.        The
    Tinchers respond that the Court has yet to “adopt” the Third Restatement and non-
    precedential opinions are not a basis upon which to do so. Of course, non-precedential
    expressions from this Court do not bind us to a course of action, nor do precedential
    expressions of non-binding courts -- what matters is the persuasiveness of the
    reasoning and the current decisional context. In particular, the separate expressions of
    Justice Saylor have proven invaluable in crystallizing awareness of the difficulties in this
    area of law.
    Omega Flex also argues that the Third Restatement is the better articulation of
    the law, one specifically intended to address design defects and representing the
    mainstream view on the topic.       According to Omega Flex, the present iteration of
    Pennsylvania law improperly lowers the burden of proof upon plaintiffs generally.
    Omega Flex posits that the Third Restatement, in contrast, is a “closely reasoned and
    balanced approach” that enhances the fairness and efficacy of the liability scheme.
    Appellant’s Brief at 48 (citing 
    Phillips, 841 A.2d at 1021
    (Saylor, J., concurring); 
    Bugosh, 971 A.2d at 1231
    (Saylor, J., dissenting); General 
    Services, 898 A.2d at 616
    (Newman,
    J., concurring and dissenting)). According to Omega Flex, the Third Restatement is
    already widely accepted and, as illustrated by this case, does not place an overly
    onerous burden of proof upon plaintiffs.      Finally, Omega Flex claims that the Third
    Restatement is not a departure from but a refinement of the Second Restatement,
    which “simply elevates the availability of a safer alternative design from a factor to be
    [J-80-2013] - 108
    considered in the risk-utility analysis to a requisite element of a cause of action for
    defective design.” Appellant’s Reply Brief at 17, 21. According to Omega Flex, the
    Second Restatement did not specifically articulate the alternative design requirement
    because that Restatement “was focused on manufacturing, not design, defects.” 
    Id. at 20.
    The Tinchers respond that the Third Restatement replaces the Second
    Restatement liability scheme with a negligence standard, which heightens the plaintiff’s
    burden of proof and, as a result, “compromises the deeply-rooted social policy of
    protecting citizens through the imposition of strict liability under [the Second]
    Restatement.”     Appellees’ Brief at 23.     The Tinchers do not share Omega Flex’s
    “refinement” view of the Third Restatement, but instead describe the iteration as a
    “radical departure from established precedent [that] is not prudent or necessary.” 
    Id. at 26.
    The Tinchers also assert that the Third Restatement has limited support in other
    jurisdictions. Moreover, the Tinchers claim that the Third Restatement standard will
    result in a denial of compensation for meritorious claims by raising the cost of pursuing
    the claims: “[t]he plaintiff will have to become an expert in the technology that caused
    the plaintiff’s injury, and will need to re-design the product himself.” 
    Id. at 34
    .
    In essential part, both parties ask this Court to engage questions of whether their
    preferred iteration of the Restatement embodies a good, better, or more desirable public
    policy. As we have explained, as an adjudicative body, this Court is not particularly
    well-suited to such a broad task.         The appropriate question is which, if either,
    Restatement articulates the standard of proof in terms that effectuate the public policy of
    this Commonwealth.
    For the reasons that follow, we conclude that “adoption” of the Third Restatement
    approach is problematic. For one thing, articulating the burden of proof in terms of
    [J-80-2013] - 109
    evidence (alternative design) deemed probative of the general principle of strict liability
    proscriptively limits the applicability of the cause of action to certain products as to
    which that sort of evidence is available. The approach suggests a priori categorical
    exemptions for some products -- such as novel products with no alternative design --
    but not others. The Connecticut Supreme Court suggested a similar insight: “in some
    instances, a product may be in a defective condition unreasonably dangerous to the
    user even though no feasible alternative design is available.” 
    Potter, 694 A.2d at 1332
    .
    Of course, the courts, legislatures, and the American Law Institute cannot
    foresee all the myriad products and circumstances that may arise.          The alternative
    means of proving liability in special cases recognized in the Third Restatement are
    designed to alleviate some of the harsh results of the general rule which are currently
    foreseeable, suggesting some limited liability in circumstances in which the special rules
    of Sections 2 -- comment e, 3, 4, 6, or 7 apply. Nevertheless, a question remains
    whether the general and special rules taken together state a general principle of liability
    consistent with the public policy that compensation is available for an injury caused by
    any type of defective product.     Compare 
    Scampone, 57 A.3d at 606
    (rejecting as
    inconsistent with negligence public policy nursing home’s argument that nursing home
    lacked duty of care to patients because prior decisional law had addressed only
    negligence liability of hospitals and plaintiff had not adduced proof that nursing home
    offered same healthcare services as hospital).          In either case, this jurisdiction’s
    experience with the repercussions of attempting to articulate specific principles of
    liability of broad application in implementing the strict liability cause of action make us
    reticent to go far beyond the necessities of an individual case and embrace a broad new
    approach premised upon what may prove to be procrustean categorical restrictions.
    [J-80-2013] - 110
    Our reticence respecting the Third Restatement scheme is not a judgment on our
    part that, as a matter of policy, articulating categorical exemptions from strict liability is
    not a viable or desirable alternative. Courts, which address evidence and arguments in
    individual cases, are neither positioned, nor resourced, to make the kind of policy
    judgments required to arrive at an a priori decision as to which individual products, or
    categories and types of products, should be exempt. Neither courts, nor the American
    Law Institute for that matter, are in the business of articulating general principles tailored
    to anoint special “winners” and “losers” among those who engage in the same type of
    conduct. In our view, the question of “special tort-insulated status” for certain suppliers -
    - for example, manufacturers of innovative products with no comparable alternative
    design -- optimally “requires an assessment and balancing of policies best left to the
    General Assembly.” 
    Scampone, 57 A.3d at 599
    ; 
    Ayala, supra
    ; but see, e.g., Hahn, 
    673 A.2d 888
    (where adequacy of warnings associated with prescription drugs is at issue,
    strict liability is not recognized as basis for liability). As we explained in Scampone:
    Immunity or exemption from liability is the exception
    to the general rule that an entity must meet the obligations it
    incurs in functioning. . . . [A]ny other cause of action at
    common law. . . evolves through either directly applicable
    decisional law or by analogy, meaning that a defendant is
    not categorically exempt from liability simply because
    appellate decisional law has not specifically addressed a
    theory of liability in a particular context.         Categorical
    exemptions from liability exist (following the dismantling by
    this Court of judicial immunities in the 1960s and 1970s) only
    where the General Assembly has acted to create explicit
    policy-based immunities, e.g., to protect the public purse.
    Where either no immunity exists, or the legislative branch
    created exceptions to an immunity legislatively conferred,
    the default general rule of possible liability operates.
    [J-80-2013] - 111
    
    Scampone, 57 A.3d at 599
    (also explaining, inter alia, that from judicial perspective,
    duty at law is independent of financial status of individual defendants or of particular
    industries).
    The methodology employed by the reporters suggests additional potential
    weaknesses in the strict liability schemata of the Third Restatement that should caution
    courts against categorical pronouncements. Citing representative cases from several
    jurisdictions, the reporters offer that an alternative-design driven risk-utility general rule -
    - with a special consumer expectations rule for cases in which the design defect is
    demonstrable -- reflects the consensus among American jurisdictions as to the
    applicable liability construct in “classic design cases.” See Henderson, 83 Cornell L.
    Rev. at 887-901.      Notably, while recognizing that “tort cases are particularly fact-
    sensitive,” the reporters purported to undertake an “empirical study of case law” to
    determine whether the alternative-design driven risk-utility general rule has support in
    the decisional law in a majority of jurisdictions. The reporters commented that: “[t]ort
    cases are particularly fact-sensitive and courts are consequently prone to pepper their
    decisions with dicta and footnotes to allow ‘wiggle room’ for cases that may arise in the
    future. In contrast to legal treatise writers and restaters who, in synthesizing the law,
    tend to speak precisely and categorically, courts in their published opinions are more
    likely to be open-textured and indecisive.” 
    Id. at 888.
    This approach no doubt fulfills the
    role of the American Law Institute in its own salutary task of restating and clarifying a
    view of strict liability that can be reduced to decisive terms. We also respect the effort
    of the Third Restatement reporters in approaching that non-judicial task practically and
    with humility.    But, what drives the Institute and treatise writers does not make
    comparative modesty, nuance, and reticence in the judiciary mistaken (much less
    [J-80-2013] - 112
    indecisive) in a jurisdiction, like Pennsylvania, where the area, to date, has been the
    exclusive province of the common law.
    That evidence of the existence and specifications of an alternative design is
    relevant and even highly probative to prove disputed issues in a products liability case,
    such as technological feasibility, cost, etc., is certainly true. That the more typical case
    implicates the type of products and circumstances in which evidence of an alternative
    product design is the most persuasive and efficient means of convincing the trier of fact
    may also be true. That offering evidence of an alternative product design may be the
    preferred legal strategy of the plaintiff’s bar in certain cases -- or may be a strategy the
    defense bar would like to impose on the plaintiff’s bar in certain cases -- again may also
    be true. But, while the reporters’ intuition that meritorious cases are premised upon
    certain types of evidence may have some general validity and support in practice (and
    may prove helpful to litigants in articulating claims and preparing defenses), the
    reporters’ commentary candidly betrays a problem -- for the judiciary at least -- of
    perspective. Principally, at least in a climate where suggestions are made along the
    lines of simply “adopting” or “moving to” a Restatement construct, it is our view that the
    reporters’ “precise and categorical” perspective insufficiently accounts for the
    imperatives of the courts’ more modest decisional role, by, for example, describing the
    reasoned and purposeful articulation of general principles as “dicta.”
    As a jurisprudential matter, articulating common law principles in terms of
    extrapolations from evidence relevant in the typical case is problematic for good
    reasons. It is worth reiterating that:
    [T]his Court’s decisions are read against the facts
    because “our decisional law generally develops
    incrementally, within the confines of the circumstances of
    cases as they come before the Court. For one thing, it is
    very difficult for courts to determine the range of factual
    [J-80-2013] - 113
    circumstances to which a particular rule should apply in light
    of the often myriad possibilities.” [
    Maloney, 984 A.2d at 489
    -
    90.] Depending on the perspective of the Court, prospective
    or retrospective, this insight has separate but related
    implications.     Prospectively, we endeavor to render
    determinations that “spring [ ] from the facts before us in
    th[e] appeal, while recognizing that our task is not simply to
    decide this case, but also to provide guidance upon the
    broader legal issue,” especially where the issue is one of first
    impression. “By necessity, this undertaking requires breadth
    of vision and consideration of both sides of the coin: the
    facts of a given case on one side, and the law, which will
    almost always be more conceptual, on the other.”
    [Thierfelder v. Wolfert, 
    52 A.3d 1251
    , 1264 n.9 (Pa. 2012)].
    On the other hand, recognizing the necessary narrowness of
    the individual decisional task and the limitations of imperfect
    foresight, we aspire to embrace precision and avoid “the
    possibility that words or phrases or sentences may be taken
    out of context and treated as doctrines.” 
    Maloney, 984 A.2d at 490
    (quoting Northwestern Nat’l Ins. Co. v. Maggio, 
    976 F.2d 320
    , 323 (7th Cir. 1992)).
    
    Scampone, 57 A.3d at 604
    -05. Particularly relevant here, we added: “In considering
    decisions retrospectively, when called upon to apply them, the law does not lose its
    precedential mantle based simply on formulaic reading; the intent of the principle that
    decisions are to be read against their facts is simply to prevent ‘wooden application of
    abstract principles to circumstances in which different considerations may pertain.’” 
    Id. at 605
    (quoting 
    Maloney, 984 A.2d at 485-86
    ). As a practical matter, courts articulate
    general principles -- what the Restatement reporters may in some instances call “dicta” -
    - before applying them to the facts in order to place a set a facts in perspective, to
    explain and ground the disposition.      This is because, at its best, decisional law is
    principle-driven and not result-driven (although just results are certainly the overarching
    goal).   And, a reasoned decision will always permit easy or intuitive drafting and
    explication of the relevant principles. Candid decision-making articulates governing,
    [J-80-2013] - 114
    and occasionally competing principles, and has the flexibility to reassess a prior
    principle upon confrontation with nuance, better or different advocacy, or articulation of
    a previously unperceived principle of salutary value.
    Insight into the reporters’ perspective on how the nature of decisions at common
    law informs their consensus effort to speak otherwise, i.e., to “speak precisely and
    categorically” by classifying defect claims (i.e., classic design cases, prescription drugs
    cases, etc.) and inserting evidentiary prerequisites into general and special rules
    applicable to the distinct categories to which they pertain, should serve as a reminder of
    comparative judicial modesty. The Third Restatement approach presumes too much
    certainty about the range of circumstances, factual or otherwise, to which the “general
    rule” articulated should apply.
    Indeed, relying upon a confined universe of reported appellate cases to draw
    evidence-based (versus principle-based) rules is problematic as a general matter in our
    mature legal system. This is so because the small class of cases posing issues of
    sufficient consequence to result in reported, precedential decisions naturally tends to
    raise narrow unsettled issues and / or fact-sensitive applications, rather than to provide
    vehicles to illustrate those parts of the law that are so “well accepted” as to reflect
    emergent general rules.      Of course, these cases may, by analogy and distinction,
    illuminate general principles at issue; but, purporting to limit the general rule to the facts
    of those cases is anathema to the common law. Stated otherwise, simply because in
    cases of factually-marginal applications courts have found evidence relating to
    alternative designs to be particularly probative and persuasive, in our minds, does not
    necessarily support a thesis that adducing such evidence is dispositive of whether a
    plaintiff has carried his / her burden of proof. See, e.g., 
    Soule, 882 P.2d at 308
    . The
    principal point is that a jurisdiction is free to adopt a policy that reduces a supplier’s
    [J-80-2013] - 115
    exposure to strict liability for a product. But, it would either be naïve or inaccurate to
    declare that existing decisional law in Pennsylvania expressly articulates, or
    contemplates, only the general principle in the terms of the Third Restatement. And, if
    adopted as a broadly applicable legal regime, the Third Restatement would engender a
    self-fulfilling prophecy by providing for a future restatement, going forward, of only those
    cases that meet the evidentiary threshold the regime permits.
    Additionally, the Third Restatement construct, because unmoored from guidance
    upon the broader legal issue, would likely impede the principled development of the law
    in this arena.   Although “[b]right lines and broad rules always offer a superficially
    enticing option,” they also risk elevating the lull of simplicity to doctrine. See, e.g.,
    
    Scampone, 57 A.3d at 598
    ; Azzarello.          And, finally, our reticence respecting broad
    approval of the Third Restatement is separately explainable by looking no further than
    to the aftermath of Azzarello, whose negligence rhetoric-related doctrinal proscription
    arising from a peculiar set of circumstances had long-term deleterious effects on the
    development of strict liability law in Pennsylvania. Azzarello and Scampone illustrate, in
    different ways, how dogmatic pronouncements are difficult to apply in individual cases
    without guidance upon the broader legal issue and the result is often that litigation will
    derail into irrelevant, unreasoned, or unprincipled factual disputes (an issue to which we
    also adverted in our discussion of 
    Soule, supra
    ). As a Court, in this dynamic area, we
    must settle for the incremental approach.24
    24
    Commentary by Dean Wade and Dean W. Page Keeton of the University of
    Texas offered related approaches to the standard of proof in design defect cases
    premised upon imputation of knowledge of risks when such knowledge was unavailable
    prior to marketing. Although offering invaluable insight, an imputation of knowledge
    approach has not gained substantial traction because of difficulties identified by the
    authors themselves. See generally John W. Wade, THE PASSAGE OF TIME: THE
    IMPLICATIONS FOR PRODUCT LIABILITY: ON THE EFFECT IN PRODUCT LIABILITY OF KNOWLEDGE
    UNAVAILABLE PRIOR TO MARKETING, 58 N.Y.U. L. Rev. 734 (1983).
    [J-80-2013] - 116
    Our previous analysis illustrates that the Third Restatement does not offer an
    articulation of the law sufficient to persuade us to simply abandon the Second
    Restatement formulation of the strict products liability cause of action and “move” to the
    Third Restatement.       Unlike the Third Restatement, we believe that the Second
    Restatement already adopted, and properly calibrated, permits the plaintiffs to tailor
    their factual allegations and legal argumentation to the circumstances as they present
    themselves in the real-world crucible of litigation, rather than relying upon an evidence-
    bound standard of proof.
    b.     Prevailing Standard of Proof
    Having overruled Azzarello and declined the invitation to fill the void by simply
    “adopting” the Third Restatement formulation, we proceed to address the appropriate
    standard of proof of a strict liability claim in Pennsylvania.
    Initially, we note that, although Pennsylvania remains a Second Restatement
    jurisdiction, “adoption” of its principles into our common law is distinct in concept and
    application from the adoption of a statute by the General Assembly.             Although the
    reporter’s words have intrinsic significance because their purpose is to explain the legal
    principle clearly, they are not entitled to the fidelity due a legislative body’s expression of
    policy, whose judgment and intent, wise or unwise, a court generally is obligated to
    effectuate, absent constitutional infirmity. The language of a restatement, as a result, is
    not necessarily susceptible to “statutory”-type construction or parsing. An effective and
    valuable restatement of the law offers instead a pithy articulation of a principle of law
    which, in many cases, including novel or difficult ones, represents a starting template for
    members of the judiciary, whose duty is then to employ an educated, candid, and
    common-sense approach to ensure dispensation of justice to the citizenry.                 The
    [J-80-2013] - 117
    common law relies in individual cases upon clear iterations of the facts and skillful
    advocacy, and evolves in principle by analogy, distinction, and reasoned explication.
    Accord 
    Scampone, 57 A.3d at 605
    . This is the essence of justice at common law.
    With this qualification in mind, we explain: (1) that the strict liability cause of
    action sounds in tort; (2) that the notion of “defective condition unreasonably dangerous”
    is the normative principle of the strict liability cause of action, which reflects the standard
    of review or application of the tort, and its history; and (3) the appropriate interplay of
    principle and evidence.25
    It is important to remember that the action sounds in tort, i.e. the cause involves
    breach of duties “imposed by law as a matter of social policy,” rather than contract, i.e.,
    the cause involves breach of duties “imposed by mutual consensus agreements
    between particular individuals.” 
    Ash, 932 A.2d at 884
    ; see RESTATEMENT (2D) OF TORTS
    § 402A(2). Nevertheless, the tortious conduct at issue is not the same as that found in
    traditional claims of negligence and commonly associated with the more colloquial
    notion of “fault.”   In this sense, introducing a colloquial notion of “fault” into the
    conversation relating to strict product liability in tort detracts from the precision required
    to keep this legal proposition within rational bounds.26
    25
    While the Second Restatement formulation of the principles governing the strict
    liability cause of action in tort may have proven substantially less than clear, the policy
    that formulation embodies has not been challenged here and has largely remained
    uncontroverted. Accord Henderson, 83 Cornell L. Rev. at 868 (premised upon survey of
    decisional law, noting rejection of “extreme positions that question the need to develop
    a general standard for defective design,” such as absolute liability and no strict liability
    (“defer[ing] responsibility for design choices exclusively to the market”), as unnecessary
    “tilting at windmills”).
    26
    But see 
    Sherk, 450 A.2d at 621
    (equating liability without proof of negligence,
    i.e., breach of duty of care, to liability without fault). Consider a counterexample of tort
    liability without fault and its reasoned justification. We have explained that:
    (continuedQ)
    [J-80-2013] - 118
    As we explain, after reviewing the provenance of the cause of action, the Second
    Restatement reporter’s choice of words, and the evolution of the cause of action in
    application, we hold that, in Pennsylvania, the cause of action in strict products liability
    requires proof, in the alternative, either of the ordinary consumer’s expectations or of
    the risk-utility of a product. To maintain the integrity and fairness of the strict products
    liability cause of action, each part of this standard of proof remains subject to its
    theoretical limitations, as explained above.       We believe that the demands of strict
    liability policy are met because the composite standard retains the best functioning
    features of each test, when applied in the appropriate factual context. See 
    Caterpillar, supra
    .
    Decisional law and commentary from the 1960s that expressly endorsed a
    separate tort in strict liability illustrate that the cause of action streamlined access to
    (Qcontinued)
    [V]icarious liability is a policy-based allocation of risk.
    Crowell v. City of Philadelphia, 
    613 A.2d 1178
    , 1181 (Pa.
    1992). “Vicarious liability, sometimes referred to as imputed
    negligence, means in its simplest form that, by reason of
    some relation existing between A and B, the negligence of A
    is to be charged against B although B has played no part in
    it, has done nothing whatever to aid or encourage it, or
    indeed has done all that he possibly can to prevent it.” 
    Id. (quoting Prosser
    and Keeton on Torts § 69, at 499 (5th ed.
    1984)). Once the requisite relationship (i.e., employment,
    agency) is demonstrated, “the innocent victim has recourse
    against the principal,” even if “the ultimately responsible
    agent is unavailable or lacks the ability to pay.” Mamalis v.
    Atlas Van Lines, Inc., 
    560 A.2d 1380
    , 1383 (Pa. 1989);
    accord 
    Crowell, 613 A.2d at 1182
    (vicarious liability is policy
    response to ‘specific need’ of how to fully compensate
    victim).
    
    Scampone, 57 A.3d at 597
    .
    [J-80-2013] - 119
    compensation already available, at least in some cases, under either negligence or
    breach of warranty theories. In other cases, however, the substantive or procedural
    conventions appurtenant to theories of negligence (e.g., requirement to join all potential
    tortfeasors) and breach of warranty (e.g., requirement of privity), deemed at the time
    necessary to vindicate interests that underpinned the respective theories, failed to
    generate fair, coherent results and doctrine, in the face of evolving or newly-revealed
    circumstances (i.e., an increasingly vibrant market for products) and an evolving interest
    in protecting consumers.     See, e.g., 
    Webb, 220 A.2d at 854
    (trial court dismissed
    negligence claim, reasoning that plaintiff had not joined all parties against whom
    inference of negligence could be drawn); 
    Miller, 221 A.2d at 324
    (trial court dismissed
    breach of warranty claim, reasoning that infant-plaintiff was not in privity with
    manufacturer, distributor, or retailer). Although courts subsequently abandoned some
    narrow pleading and proof conventions (in the case of privity, for example) or justified
    results on equitable bases in other cases, the doctrinal strain opened the possibility of a
    separate tort that tailored itself to the articulated policy goals. See, e.g., 
    Salvador, 319 A.2d at 907
    (discarded burden to prove horizontal privity); Henningsen v. Bloomfield
    Motors, Inc., 
    161 A.2d 69
    (N.J. 1960) (disclaimer of implied warranty of merchantability
    by dealer and attempted elimination of all obligations other than replacement of
    defective parts violate public policy and are void).27
    27
    In 1960, Dean Prosser also explained the systemic efficiency benefits deriving
    from a single cause of action in strict liability. According to Dean Prosser:
    It [wa]s already possible to enforce strict liability by
    resort to a series of actions, in which the retailer is first held
    liable on a warranty to his purchaser, and indemnity on a
    warranty is then sought successively from other suppliers,
    until the manufacturer finally pays the damages, with the
    added costs of repeated litigation. This is an expensive,
    (continuedQ)
    [J-80-2013] - 120
    The emergent single cause of action in tort -- strict liability -- retained,
    nevertheless, those aspects of negligence and breach of warranty liability theories from
    which it evolved. Stated otherwise, the theory of strict liability as it evolved overlaps in
    effect with the theories of negligence and breach of warranty. (Parenthetically, this
    places into context Section 402A(2), which states that the rule of strict liability “applies
    although (a) the seller has exercised all possible care in the preparation and sale of his
    product, and (b) the user or consumer has not bought the product from or entered into
    any contractual relation with the seller.”). As we explained above, this is not an unusual
    development in the common law: for example, negligence and strict liability for
    abnormally dangerous activities also overlap in the sense that they both are premised
    upon a risk-utility hindsight analysis with different public policy overlays to modify their
    application to distinct conduct. Relevant here, public policy also adjusts expectations of
    efficiency and intuitions of justice considerations in the context of products liability,
    informing a seller’s conduct toward consumers as a group and ensuring compensation
    in individual cases by judicial application of the strict liability cause of action.
    Essentially, strict liability is a theory that effectuates a further shift of the risk of harm
    onto the supplier than either negligence or breach of warranty theory by combining the
    balancing of interests inherent in those two causes of action.
    (Qcontinued)
    time-consuming, and wasteful process, and it may be
    interrupted by insolvency, lack of jurisdiction, disclaimers, or
    the statute of limitations, anywhere along the line. What is
    needed is a blanket rule which makes any supplier in the
    chain liable directly to the ultimate user, and so short-circuits
    the whole unwieldy process. This is in the interest, not only
    of the consumer, but of the courts, and even on occasion of
    the suppliers themselves.
    69 Yale L. J. at 1123-24 (footnote omitted).
    [J-80-2013] - 121
    The core insight, which the Supreme Court of California pioneered in the 1978
    Barker decision, is that the standard of proof in a strict liability cause of action properly
    reflects this duality of purpose. The Barker Court thus articulated a standard of proof
    which stated the consumer expectations test and the risk-utility test in the alternative.
    The alternative test standard of proof is a “composite” that retains “the most workable
    features of each of the other tests.” 
    Caterpillar, 593 P.2d at 884-85
    .
    One other insight completes the picture: a duality in the strict liability cause of
    action is evident in the expectation that all sellers in the distributive chain are legally
    responsible for the product in strict liability.    Dean Prosser explained the expected
    results of applying strict liability:
    Where the action is against the manufacturer of the
    product, an honest estimate might very well be that there is
    not one case in a hundred in which strict liability would result
    in recovery where negligence does not. . . . All this,
    however, is but half of the picture. There are other sellers
    than the manufacturer of the product. It will pass through the
    hands of a whole line of other dealers, and the plaintiff may
    have good reason to sue any or all of them. . . . It is here
    that negligence liability breaks down. The wholesaler, the
    jobber, and the retailer normally are simply not negligent.
    They are under no duty to test or inspect the chattel, and
    they do not do so; and when, as is usually the case today, it
    comes to them in a sealed container, examination becomes
    impossible without destroying marketability. No inference of
    negligence can arise against these sellers, and res ipsa
    loquitur is of no use at all.
    Prosser, 69 Yale L. J. at 1116-17 (footnote omitted).
    Thus, in placing a product on the market, a manufacturer acts to design (and
    manufacture) the product and, along with other distributors, to sell the product, including
    making the product attractive for sale by making implicit representations of the product’s
    safety. See Knitz v. Minster Mach. Co., 
    432 N.E.2d 814
    , 818 (Ohio 1982) (quoting
    [J-80-2013] - 122
    Greenman v. Yuba Power Prods., 
    377 P.2d 897
    (Cal. 1963)) (Second Restatement
    standard “followed as a logical development from commercial warranty origins of strict
    liability in tort” and reflected “the commercial reality that ‘(i)mplicit in . . . (a product’s)
    presence on the market . . . (is) a representation that it (will) safely do the jobs for which
    it was built.’”); accord Owen, HORNBOOK, at 303. A manufacturer, in designing the
    product, engages in a risk-utility calculus; the policy-driven post hoc risk-utility calculus
    necessary to determine whether the design choice thus made may justly require
    compensation for injury explains the relevance of that standard of proof in strict liability.
    Meanwhile, a seller of the product -- whether the manufacturer or the supplier in the
    chain of distribution -- implicitly represents by placing a product on the market that the
    product is not in a defective condition unreasonably dangerous.             Accord Markle v.
    Mulholland’s Inc., 
    509 P.2d 529
    , 532 (Or. 1973) (implied representation of merchantable
    quality accounts for Restatement formulation, whose “language is consistent only with
    something conceptually similar to an expectation by the consumer of merchantable
    quality. It is an expectation which is the result of the manufacturer’s or seller’s placing
    the article in the stream of commerce with the intention that it be purchased. This
    expectation is given legal sanction by the law through an assumption that the seller, by
    so placing the article in the stream of commerce, has represented that the article is not
    unreasonably dangerous if put to its intended use.”).                  Express and implied
    representations by the manufacturer and other suppliers in the distributive chain,
    contextualized by common human experience to evolve the notion of fault in strict
    liability, explain the relevance of evidence regarding consumer expectations, both as an
    independent source of liability (e.g., expectations created by advertising or warnings)
    and as part of the calculus of risk (e.g., expectations that drive product design choices).
    [J-80-2013] - 123
    The dual analytical structure also explains the historical ebb and flow of
    consumer expectations / risk-utility and warranty / negligence rhetoric that pervades
    decisional law. Essentially, given that a term like “defective condition unreasonably
    dangerous” is not self-defining, courts have offered multiple definitions applicable in the
    several contexts in which a definitional issue has arisen, all effectuating the single policy
    that those who sell a product are held responsible for damages caused to a consumer
    by the reasonable use of the product. See, e.g., 
    Miller, 221 A.2d at 334-35
    (Jones, J.,
    concurring and dissenting); accord 
    Barker, 573 P.2d at 453
    (“term defect as utilized in
    the strict liability context is neither self-defining nor susceptible to a single definition
    applicable in all contexts”). The exposition of strict liability in Pennsylvania and in other
    jurisdictions illustrates that the original disputes implicated tensions over how warranty
    principles limited liability on a strict liability in tort theory. Decisional law that derived
    from the tension reflected a period of expanding liability (because plaintiffs were not
    required to prove privity as in a breach of warranty action, see, e.g., Miller). These
    types of disputes waned as the law settled in, both by way of decisional law discarding
    privity in breach of warranty cases and by clarification of this part of the law in the late
    1960s and early 1970s, which may have aided suppliers to internalize the effects of
    warranty-type strict liability into their conduct and to pass the attendant costs on to
    consumers. In a sense, then, the consumer expectations gauge for strict liability has
    had some apparent success in vindicating the policy of strict liability.
    Modern decisional law reflects that the focus of disputes -- or at least those
    disputes making their way into the appellate courts -- has increasingly been upon the
    negligence-derived risk-utility alternative formulation of the standard. The prominence
    of the legal issue in decisional law coincides with the advent of design defect claims, in
    which issues of proof tend to more complexity than where a manufacturing defect is in
    [J-80-2013] - 124
    dispute. This development reflected the complex litigation calculus implicated in a strict
    liability claim premised upon this type of defect resulting from either lack of proof (for
    example in the case of known or foreseeable risks for which an available cure may or
    may not have been available at the time of design) or the relative deterrent inefficacy of
    a theory of liability for unknowable risks, short of exiting the market. Accord Prosser, 69
    Yale L. J. at 1116 (“So long as there is the possibility that negligence may not be found,
    the defendant is encouraged by vain hopes, and the plaintiff gnawed by lingering
    doubts; and a case which can be decided for the defendant is worth less, in terms of
    settlement, than one which can not.       And so long as the defendant can introduce
    evidence of his own due care, the possibility remains that it may influence the size of
    the verdict, as jurymen impressed with it stubbornly hold out for no liability, or a smaller
    sum.”) (emphasis omitted). Yet, some types of disputes are absent from the decisional
    law and may, indeed, provide rather strong evidence of strict liability as a deterrent by
    preventing bringing a product to market or encouraging settlement of claims -- it must
    be remembered that an appellate expression is not necessary to illustrate the point that
    designers are properly deterred by strict liability from using consumers as guinea pigs.
    See Henderson, 83 Cornell L. Rev. at 901 (“Some courts, in dicta, hold out the
    possibility that the risk-utility imbalance might be so egregious that the product should
    not be marketed at all.     Actual holdings to this effect, however, are non-existent.”)
    (footnote omitted).28
    28
    Parenthetically, the number of manufacturing claims is significantly lower than
    that of design defect claims. Dean Prosser explained: “It is true also that [the plaintiff]
    seldom, if ever, has any direct evidence of what went on in the defendant’s plant. But in
    every jurisdiction, he is aided by the doctrine of res ipsa loquitur, or by its practical
    equivalent.” Prosser, 69 Yale L. J. at 1114 (footnote omitted). In a design defect case,
    the doctrine of res ipsa loquitur is generally of little help in light of the complexities of
    conduct involved.
    [J-80-2013] - 125
    In either case, that the theory of strict liability -- like all other tort causes of action
    -- is not fully capable of providing a sufficient deterrent incentive to achieve perfect
    safety goals is not a justification for jettisoning or restricting the duty in strict liability,
    whose compensatory objective remains part of the public policy of this Commonwealth.
    See 
    Ash, 932 A.2d at 882
    (purpose of torts law is to “put an injured person in a position
    as near as possible to his position prior to the tort”); accord 
    Scampone, 57 A.3d at 596
    ;
    Excavation Tech., Inc. v. Columbia Gas Co. of Pa., 
    985 A.2d 840
    , 844 (Pa. 2009)
    (“object of tort law is to modify behavior through allocation of financial risk on party best
    positioned to prevent harm”) (citation omitted); Trosky v. Civil Serv. Comm’n, 
    652 A.2d 813
    , 817 (Pa. 1995) (quoting RESTATEMENT (2D)             OF   TORTS § 901, cmt. a (1979));
    Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 
    492 U.S. 257
    , 275 n.20
    (1989) (“Damages are designed not only as a satisfaction to the injured person, but
    likewise as punishment to the guilty, to deter from any such proceeding for the future
    and as a proof of the detestation of the jury to the action itself.”); Gary T. Schwartz,
    MIXED THEORIES    OF   TORT LAW : AFFIRMING BOTH DETERRENCE          AND   CORRECTIVE JUSTICE,
    
    75 Tex. L. Rev. 1801
    (1997).
    Finally, we remark upon evidentiary issues necessarily implicated by the
    standard of proof we have articulated. Derived from its negligence-warranty dichotomy,
    the strict liability cause of action theoretically permits compensation where harm results
    from risks that are known or foreseeable (although proof of either may be unavailable) --
    a circumstance similar to cases in which traditional negligence theory is implicated --
    and also where harm results from risks unknowable at the time of manufacture or sale --
    a circumstance similar to cases in which traditional implied warranty theory is
    implicated. The difficulty is in cabining liability premised upon a risk unknowable at the
    time of manufacture / sale, which was logically unavoidable, in circumstances in which
    [J-80-2013] - 126
    liability and attendant compensation was potentially limitless (in other words, 100
    percent of risk would be shifted to suppliers). Imputing knowledge, and assessing the
    avoidability of risk -- was theoretically counterintuitive and offered practical difficulties,
    as illustrated by the Wade-Keeton debate. See generally John W. Wade, THE PASSAGE
    OF TIME: THE IMPLICATIONS FOR PRODUCT LIABILITY: ON THE EFFECT IN PRODUCT LIABILITY OF
    KNOWLEDGE UNAVAILABLE PRIOR        TO   MARKETING, 58 N.Y.U. L. Rev. 734 (1983). Both
    rationing and policy -- as expressed in the qualification “unreasonably dangerous” --
    supported limitations.    The risk-utility calculus has been suggested as a normative
    solution to cabin liability exposure regardless of the type of claim asserted (i.e., of either
    a known / foreseeable or an unknown risk). Accord 
    Beard, 41 A.3d at 838
    (meaningful
    risk-utility evaluation is effort to implement rational limits on strict liability in tort).
    Because the circumstance is not before us, and in light of the complexities and dearth of
    persuasive authority, we will await the appropriate case to speak definitively to this
    issue.
    By comparison, the Tinchers’ claim was essentially premised upon the allegation
    that the risk of harm related to TracPipe’s thickness was both foreseeable and
    avoidable, as illustrated by the resistance to lightning of black iron pipe.           These
    allegations, at least, bear the indicia of negligence. Indeed, in some respects this is the
    “typical” case, which explains both the insight that in design cases, the character of the
    product and the conduct of the manufacturer are largely inseparable, and the Third
    Restatement’s approach of requiring an alternative design as part of the standard of
    proof. See, e.g., 
    Phillips, 841 A.2d at 1013-14
    (Saylor, J., concurring); Henderson, 83
    Cornell L. Rev. at 876-87 (“Developing a General Defectiveness Standard for Classic
    Design Cases”). Indeed, the Tinchers themselves sought summary relief and dismissal
    [J-80-2013] - 127
    of this case premised upon the argument that the same result would have obtained
    under either the Second or the Third Restatement iteration of the law.
    But, the point that we have stressed repeatedly in this Opinion, is that courts do
    not try the “typical” products case exclusively and a principle of the common law must
    permit just application to myriad factual circumstances that are beyond our power to
    conceive. Circumstances like product diversity, general uncertainties inherent in the
    creative process, difficulties in recreating the design process, difficulties in the discovery
    process, to name just a few, may contribute to whether cases other than the typical
    case will generate a dispute and resulting decisional precedent. Nevertheless, in many
    circumstances, courts may be called upon to examine whether the rule has outrun the
    reason. Self-selection of cases (consumers and manufacturers internalizing the policy
    vindicated by the strict liability theory and modifying conduct as a result), variations in
    the quality and nuance in competing argumentation from counsel, including in the
    fashioning of suggested jury charges applicable to a particular case, courts’ articulation
    of relevant normative principles as they pertain to specific factual scenarios, and
    scholarly commentary will likely contribute to the continually developing decisional law.
    The delivery of justice in this area requires a recognition and appreciation of the
    appropriate and significant roles played by advocates, trial judges, and the appellate
    judiciary. Particularly relevant here, we note that the area of strict liability law remains
    complex and our decision here does not purport to foresee and account for the myriad
    implications or potential pitfalls as yet unarticulated or unappreciated. Thus, at the trial
    level, and as with other legal concepts, “it is incumbent upon the parties, through their
    attorneys, to aid courts in narrowing issues and formulating appropriate instructions to
    guide juries in their factual determinations. . . .” It is worth reiterating that “[b]right lines
    and broad rules always offer a superficially enticing option.            However, we cannot
    [J-80-2013] - 128
    elevate the lull of simplicity over the balancing of interests embodied by the principles
    underpinning [the jurisprudence of the relevant area of law].” 
    Scampone, 57 A.3d at 598
    . The principal point is that judicial modesty counsels that we be content to permit
    the common law to develop incrementally, as we provide reasoned explications of
    principles pertinent to factual circumstances of the cases that come before the Court.
    See 
    Scampone, 57 A.3d at 605
    ; 
    Barker, 573 P.2d at 453
    (difficulties inherent in giving
    content to defectiveness standard “could best be resolved by resort to the ‘cluster of
    useful precedents’ which have been developed in the product liability field. . . .”).
    5.     Litigation Considerations Deriving from the
    New Strict Liability Construct
    a.     Judge and Jury; Jury Instructions
    Having outlined these principles of strict liability law, we next offer the following
    guidance relating to the appropriate provinces of the judge and jury, and to adequate,
    targeted jury instructions in a strict liability case. As noted, the Azzarello Court held
    that, as a gauge for whether a product is unreasonably dangerous, the balancing of
    risks and utilities, when implicated, was an issue of law dependent upon social policy to
    be decided by the trial court. The jury would then simply resolve any “dispute as to the
    condition of a product,” as a separate 
    question. 391 A.2d at 1025-27
    .      We have
    explained why we believe that severing findings relating to the risk-utility calculus from
    findings related to the condition of the product is impracticable and inconsistent with the
    theory of strict liability. We offer additional guidance to confirm our departure from that
    aspect of Azzarello that assigned these roles to the judge and jury in a strict liability
    case.
    [J-80-2013] - 129
    As is generally the case, the plaintiff is the master of the claim in the first
    instance. The immediate implication is that counsel must articulate the plaintiff’s strict
    liability claim by alleging sufficient facts to make a prima facie case premised upon
    either a “consumer expectations” or “risk-utility” theory, or both. The calculus for a
    plaintiff and a plaintiff’s advocate in choosing to pursue either theory or both will likely
    account, among other things, for the nature of the product, for the theoretical limitations
    of either alternative standard of proof, for whether pursuing both theories simultaneously
    is likely to confuse the finder of fact and, most importantly, for the evidence available or
    likely to become available for trial. As discovery and case preparation proceed, and the
    evidentiary record evolves, the plaintiff may choose to pursue or abandon either theory,
    or pursue both, if the evidence so warrants.        A defendant may also seek to have
    dismissed any overreaching by the plaintiff via appropriate motion and objection. The
    trial court is to act in its ordinary gate-keeper role, e.g., monitoring litigation, mediating
    or adjudicating any subsidiary differences, and pending objections and motions,
    including those seeking to narrow, or expand, the theories of litigation to be pursued at
    trial. See, e.g., 
    Soule, 882 P.2d at 303
    , 309.29
    29
    For example, in Soule, the trial court gave the standard two-prong Barker
    instruction for design defect without modification, over the defendant-manufacturer’s
    objection. The defendant argued that, given the nature of the product, instructing the
    jury on the consumer expectations standard was error. On appeal, the Supreme Court
    of California agreed:
    [T]he jury may not be left free to find a violation of
    ordinary consumer expectations whenever it chooses.
    Unless the facts actually permit an inference that the
    product’s performance did not meet the minimum safety
    expectations of its ordinary users, the jury must engage in
    the balancing of risks and benefits required by the second
    prong of Barker.        Accordingly, as Barker indicated,
    instructions are misleading and incorrect if they allow a jury
    (continuedQ)
    [J-80-2013] - 130
    One crucial aspect of the trial court’s role is, of course, the task of defining the
    strict liability legal universe within which a particular jury operates for purposes of
    discharging its function. See Commonwealth v. Graham, 
    9 A.3d 196
    , 201-02 & n.9 (Pa.
    2010); see, e.g., 
    Soule, supra
    . To reiterate, a jury charge is adequate “unless the
    issues are not made clear, the jury was misled by the instructions, or there was an
    omission from the charge amounting to a fundamental error.” 
    Chambers, 980 A.2d at 49-50
    ; see also Price v. Guy, 
    735 A.2d 668
    , 670 (Pa. 1999).
    In this case, in critical part, the trial court instructed the jury in accordance with
    the law as articulated in Azzarello and its progeny. See N.T., 10/19/2010, at 794-98.
    We have now overruled Azzarello and we have additionally explained foundational
    issues related to the strict liability cause of action in Pennsylvania -- the public policy
    which the cause of action vindicates, the duty recognized by the public policy, and the
    standard and burden of proof necessary to prove breach that duty. Going forward,
    consistent with this decision, when a plaintiff proceeds on a theory that implicates a risk-
    utility calculus, proof of risks and utilities are part of the burden to prove that the harm
    suffered was due to the defective condition of the product. The credibility of witnesses
    and testimony offered, the weight of evidence relevant to the risk-utility calculus, and
    whether a party has met the burden to prove the elements of the strict liability cause of
    (Qcontinued)
    to avoid this risk-benefit analysis in a case where it is
    required. Instructions based on the ordinary consumer
    expectations prong of Barker are not appropriate where, as a
    matter of law, the evidence would not support a jury verdict
    on that theory. Whenever that is so, the jury must be
    instructed solely on the alternative risk-benefit theory of
    design defect announced in 
    Barker. 882 P.2d at 303
    , 309.
    [J-80-2013] - 131
    action are issues for the finder of fact, whether that finder of fact is judge or jury. A
    question of whether the party has met its burden of proof is properly “removed” -- for
    example, via adjudication of a dispositive motion -- “from the jury’s consideration only
    where it is clear that reasonable minds [cannot] differ on the issue.” Hamil v. Bashline,
    
    392 A.2d 1280
    , 1284-85 (Pa. 1978). Thus, the strict liability construct we articulate
    today comfortably accommodates the gate-keeping role ordinarily relegated to the trial
    court in tort actions.
    Our decision today allows for application of standards of proof in the alternative.
    Obviously, other examples of such decisional paradigms exist. See, e.g., 18 Pa.C.S. §
    2503 (describing offense of voluntary manslaughter as action under heat of passion or
    premised upon imperfect belief of self-defense). In charging the jury, the trial court’s
    objective is “to explain to the jury how it should approach its task and the factors it
    should consider in reaching its verdict.”         
    Chambers, 980 A.2d at 49
    (quoting
    Commonwealth v. Hartman, 
    638 A.2d 968
    , 971 (Pa. 1994)). Where evidence supports
    a party-requested instruction on a theory or defense, a charge on the theory or defense
    is warranted. 
    Id. At that
    point, “[t]he trial court has broad discretion in phrasing its
    instructions, and may choose its own wording so long as the law is clearly, adequately,
    and accurately presented to the jury for its consideration.” 
    Sepulveda, 55 A.3d at 1141
    .
    It is essential for the bench and bar to recognize that the test we articulate today
    is not intended as a rigid formula to be offered to the jury in all situations. The alternate
    theories of proof contour the notion of “defective condition” in principled terms intended
    as comprehensive guidelines that are sufficiently malleable to account for product
    diversity and a variety of legal claims, products, and applications of theory. The crucial
    role of the trial court is to prepare a jury charge that explicates the meaning of “defective
    [J-80-2013] - 132
    condition” within the boundaries of the law, i.e., the alternative test standard, and the
    facts that pertain. Cf. 
    Soule, 882 P.2d at 308
    -11.
    b.     The Burden of Proof
    Another consideration derived from existing precedent implicates the burden of
    proof in a strict liability case. As we have noted, California pioneered the alternate
    consumer expectations / risk-utility balancing test as a prevailing standard of proof in
    strict liability cases. See 
    Barker, 573 P.2d at 457-58
    . The Barker court also concluded
    that it was appropriate, when proceeding upon a risk-utility theory, to shift to the
    defendant the burden of production and persuasion to demonstrate that an injury-
    producing product is not defective in design.        
    Id. at 455.
       Other jurisdictions have
    subscribed to the Barker standard of proof, although only some of those courts have
    also shifted the burden of proof to the defendant. Compare, e.g., Lamkin v. Towner,
    
    563 N.E.2d 449
    , 457 (Ill. 1990) with 
    Knitz, 432 N.E.2d at 818
    . The similarity of the
    approach we have approved to the Barker standard of proof may raise a question of
    whether Pennsylvania should also require a shifting of the burden of proof to the
    defendant when the plaintiff proceeds upon a risk-utility theory.
    Recently, in a case involving criminal law, this Court explained that: “[t]he
    function of a standard of proof, as that concept is embodied in the Due Process Clause
    and in the realm of factfinding, is to instruct the factfinder concerning the degree of
    confidence our society thinks he should have in the correctness of factual conclusions
    for a particular type of adjudication. While the risk of error in a particular adjudication
    does not vary depending on the standard of proof adopted, the burden allocates that
    risk between the parties.” 
    Sanchez, 36 A.3d at 65
    (citations omitted). In strict liability
    cases, as ordinarily in other civil actions, the burden of proof is sustained by a
    [J-80-2013] - 133
    preponderance of the evidence. See, e.g., Summers v. Certainteed Corp., 
    997 A.2d 1152
    , 1163-64 (Pa. 2010) (quoting 
    Hamil, 392 A.2d at 1284-85
    ). A more stringent
    burden of production and persuasion imposes a higher risk of an erroneous decision on
    the party upon which the burden rests.        Thus, shifting the burden of proof onto a
    defendant places the risk of an erroneous decision upon the defendant.                  The
    determination of whether such a shift is suitable rests, as the Barker court also noted,
    primarily on considerations of whether the shift vindicates the public policy at issue. In
    addition, we consider difficulties of adducing evidence to prove a negative, the parties’
    relative access to evidence, and whether placing the burden of proof on one party is
    necessary to help enforce a further right, constitutional or otherwise. See 
    Sanchez, 36 A.3d at 67
    .
    Applying similar criteria, the Barker court reasoned that placing the burden on the
    defendant was appropriate “[b]ecause most of the evidentiary matters which may be
    relevant to the determination of the adequacy of a product’s design under the ‘risk-
    benefit’ standard e.g., the feasibility and cost of alternative designs are similar to issues
    typically presented in a negligent design case and involve technical matters peculiarly
    within the knowledge of the manufacturer.” According to Barker, the shift in the burden
    of proof reflected the policy judgment that “one of the principal purposes behind the
    strict product liability doctrine is to relieve an injured plaintiff of many of the onerous
    evidentiary burdens inherent in a negligence cause of 
    action.” 573 P.2d at 455
    .
    The parties obviously have not briefed the question of burden-shifting in risk-
    utility cases -- they had no reason to -- and we need not decide it to resolve this appeal,
    nor is it apparent that it will matter upon remand.      We note, however, that whatever
    may be the merit of the Barker court’s concerns, countervailing considerations may also
    be relevant. For example, it is consistent with the treatment of tort causes of action
    [J-80-2013] - 134
    generally, and the notion that Pennsylvania does not presume a product to be defective
    until proven otherwise, to assign the burden of proof in a strict liability case to the
    plaintiff. Moreover, proving a negative is generally not desirable as a jurisprudential
    matter because of fairness concerns related to anticipating and rebutting allegations,
    and because of the encumbrances placed upon the judicial system by an open-ended
    approach to pleading and trying a case. Finally, evidence relevant to a risk-utility test,
    including the feasibility and cost of alternative designs, while involving technical matters,
    would seem to be within the knowledge of expert witnesses available to either plaintiff or
    defendant in many cases; and liberal discovery may also aid the plaintiff.
    These interests, and others that we may not perceive, are implicated in
    answering the question of whether the burden should be on the plaintiff or on the
    defendant, generally or in particular cases involving a risk-utility theory. The ultimate
    answer to the question best awaits balancing in an appropriate case, specifically raising
    the question, with attendant briefing from parties.
    c.     Related Legal Issues
    We recognize – and the bench and bar should recognize -- that the decision to
    overrule Azzarello and articulate a standard of proof premised upon alternative tests in
    relation to claims of a product defective in design may have an impact upon other
    foundational issues regarding manufacturing or warning claims, and upon subsidiary
    issues constructed from Azzarello, such as the availability of negligence-derived
    defenses, bystander compensation, or the proper application of the intended use
    doctrine. Accord 
    Bugosh, 971 A.2d at 1244-45
    & 1248-49. These considerations and
    effects are outside the scope of the facts of this dispute and, understandably, have not
    been briefed by the Tinchers or Omega Flex.
    [J-80-2013] - 135
    This Opinion does not purport to either approve or disapprove prior decisional
    law, or available alternatives suggested by commentators or the Restatements, relating
    to foundational or subsidiary considerations and consequences of our explicit holdings.
    In light of our prior discussion, the difficulties that justify our restraint should be readily
    apparent.   The common law regarding these related considerations should develop
    within the proper factual contexts against the background of targeted advocacy.
    IV.    Conclusion / Mandate
    At the Court’s request, the parties briefed a question concerning whether
    adoption of the Third Restatement, if such a decision were to be made, would have
    retroactive or prospective effect. Having declined to “adopt” the Third Restatement, we
    need not reach the question of retroactive or prospective application of the ruling.
    Nevertheless, in light of the decision to overrule Azzarello, questions remain regarding
    whether Omega Flex should benefit from the application of our Opinion upon remand
    and, moreover, whether Omega Flex is entitled to a new trial.            Here, Omega Flex
    preserved and presented its claim that Azzarello should be overruled to the trial court
    and on appeal; as a result, we hold that Omega Flex is entitled to the benefit of our
    decision in this regard. Whether Omega Flex is entitled to additional relief, including a
    new trial or judgment notwithstanding the verdict is not apparent upon the record before
    us.   See 
    Price, 735 A.2d at 672
    (new trial appropriate if erroneous jury instruction
    amounts to fundamental error or the record is insufficient to determine whether error
    affected verdict); 
    Degenhardt, 669 A.2d at 950
    (judgment notwithstanding verdict is
    appropriate only if no two reasonable minds could disagree that verdict should be in
    favor of movant).
    [J-80-2013] - 136
    For these reasons, we reverse in part the decision of the Superior Court in this
    matter, and remand to the trial court for further action upon post-trial motions. Upon
    remand, the trial court may direct the parties to file supplemental post-verdict motions or
    briefs articulating their positions regarding the proper disposition of the matter in light of
    our decision to overrule Azzarello and the further guidance articulated in this Opinion.
    Jurisdiction relinquished.
    Former Justice McCaffery did not participate in the decision of this case.
    Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
    Mr. Justice Saylor files a concurring and dissenting opinion in which Mr. Justice
    Eakin joins.
    [J-80-2013] - 137
    

Document Info

Docket Number: 17 MAP 2013

Citation Numbers: 104 A.3d 328, 628 Pa. 296, 2014 Pa. LEXIS 3031

Judges: Castille, Saylor, Eakin, Baer, Todd, McCaffery, Stevens, Former

Filed Date: 11/19/2014

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (77)

Everhart v. PMA Insurance Group , 595 Pa. 172 ( 2007 )

Berkebile v. Brantly Helicopter Corp. , 462 Pa. 83 ( 1975 )

McCown v. International Harvester Co. , 463 Pa. 13 ( 1975 )

Hamil v. Bashline , 481 Pa. 256 ( 1978 )

Hack v. Hack , 495 Pa. 300 ( 1981 )

Mamalis v. Atlas Van Lines, Inc. , 522 Pa. 214 ( 1989 )

AM/PM Franchise Ass'n v. Atlantic Richfield Co. , 526 Pa. 110 ( 1990 )

Davis v. Berwind Corp. , 547 Pa. 260 ( 1997 )

Kendrick v. DA OF PHILADELPHIA COUNTY , 591 Pa. 157 ( 2007 )

Ash v. Continental Insurance , 593 Pa. 523 ( 2007 )

Walnut Street Associates, Inc. v. Brokerage Concepts, Inc. , 610 Pa. 371 ( 2011 )

Beard v. Johnson and Johnson, Inc. , 615 Pa. 99 ( 2012 )

Browning-Ferris Industries of Vermont, Inc. v. Kelco ... , 109 S. Ct. 2909 ( 1989 )

Pegram v. Herdrich , 120 S. Ct. 2143 ( 2000 )

Halliday v. Sturm, Ruger & Co., Inc. , 368 Md. 186 ( 2002 )

Sinram v. Pennsylvania R. Co. , 61 F.2d 767 ( 1932 )

Commonwealth v. Lesher , 473 Pa. 141 ( 1977 )

Glass v. Ford Motor Co. , 123 N.J. Super. 599 ( 1973 )

Ruiz-Guzman v. Amvac Chemical Corp. , 7 P.3d 795 ( 2000 )

donald-e-moyer-jayne-l-moyer-karen-l-weidner-michael-t-williams-rebecca , 473 F.3d 532 ( 2007 )

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