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Case Bulletin – Pennsylvania Superior Court Applies Tincher in Recent Products Liability Case

In an opinion announced on January 13, 2017 in High v. Pennsy Supply, Inc. (No. 411 MDA 2016), a strict products liability case, the Pennsylvania Superior Court reversed the order of the Court of Common Pleas of Dauphin County granting summary judgment in favor of the defendant concrete supplier.  The Superior Court held that the trial court erred in refusing to allow a jury to decide as factfinder whether the wet concrete at issue was in a defective condition unreasonably dangerous to the consumer.


Brothers Jeffrey and Charles High purchased “flowable” concrete from Pennsy Supply.  Flowable concrete is a type of self-leveling concrete.  Upon delivery of the concrete, the Pennsy Supply delivery driver presented Jeffrey with a delivery ticket that warned of the potential for irritation if the concrete came into contact with the eyes or skin.  Charles did not see the warning but admitted to being aware of the possibility of skin irritation from contact with concrete.  As the concrete was being poured from the delivery truck, the High brothers noticed that the concrete was not self-leveling.  The delivery driver informed the brothers that the Pennsy truck was carrying regular concrete and not flowable concrete.  At that point, the brothers began attempting to level the concrete with rakes, boards, and their forearms.  After about 90 minutes of working in the concrete, the brothers noticed that their skin had become severely burned where it had come into contact with the concrete.


The brothers filed strict products liability actions claiming that the concrete sold by Pennsy Supply was a product in a defective condition unreasonably dangerous to consumers.  The plaintiffs’ specific allegation was that the concrete had a pH of 12.4, and that alkalis with a pH of greater than 11.5 produce chemical burns to skin.  Pennsy Supply filed a motion for summary judgment asserting that the plaintiffs failed to present any evidence that the concrete was defective or that the warnings were inadequate.  The plaintiffs responded that the concrete was in a defective condition because the danger of the concrete’s high pH was unknowable and unacceptable to the average consumer.  Also, the warning was inadequate as it merely warned of skin irritation and not the possibility of sustaining third-degree chemical burns.  The trial court entered summary judgment after finding that the plaintiffs could not prove that the concrete was in a defective condition under the “consumer expectations” test because the caustic properties of concrete were common knowledge.  In support of its holding, the trial court relied on several cases from other jurisdictions finding that the dangers of concrete were common knowledge and not subject to liability.


The Superior Court reversed the trial court’s ruling holding that the trial court’s ruling was contrary to the Supreme Court’s holding in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014).  The court held that there was a genuine issue of material fact as to whether an ordinary consumer would reasonably anticipate and appreciate the dangerous condition of concrete and the risk of injury.  Under Tincher, the question of whether a product is in a defective condition unreasonably dangerous to the consumer is a question of fact that should generally be reserved for the factfinder.  Tincher, 104 A.3d at 335.  The Supreme Court announced two standards for determining whether a product is defective in a design defect claim: the “consumer expectations” test and the “risk-utility” test.  In applying the consumer expectations test, the factfinder should consider 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.  See id. at 387.  The Superior Court held that the Court of Common Pleas of Dauphin County failed to address any of the factors set forth under the Tincher consumer expectations standard.