If a product lacks any cognizable defect and conspicuously warns against the exact harm which befell plaintiffs, do defect and failure to warn claims against a manufacturer require a jury determination?  Your response would likely fall somewhere on the spectrum between “Probably not” and “No way!”  And you would probably reason that a judge could, and should, dismiss those claims at the motion stage.  But, in a January 13, 2017 decision, the Pennsylvania Superior Court ruled to the contrary.    

In High v. Pennsy Supply, Inc., 411 MDA 2016, the Court overturned a trial court’s granting of summary judgment in favor of a concrete manufacturer, dismissing the defect and warning claims.  Plaintiffs, brothers Jeffrey and Charles High, ordered flowable fill concrete for the basement of a home.  Defendant manufacturer, Pennsy Supply, delivered the product with a warning that it was “irritating to skin and eyes,” and that users should avoid contact with either area.  After the brothers knelt in the concrete to level it off, it came into contact with their skin.  As a result, one brother’s skin peeled off and the other’s skin turned black, and they were both hospitalized with chemical burns requiring surgery.  Plaintiffs filed strict product liability actions against Defendant, alleging that the concrete was sold to them in a defective condition.  Pennsy Supply, through a motion for summary judgement, contended that the product was not defective, specifically noting that no expert reports were produced by Plaintiffs with that conclusion.  The high pH level of the concrete, Defendant argued, was necessary for the product to perform as expected.  Furthermore, the warning on the delivery ticket was signed by one of the Plaintiffs, who were both sophisticated consumers.

The trial court granted Defendant’s motion for summary judgment, holding that Plaintiffs were unable to prove that the concrete was delivered in a “defective condition” or that the danger of concrete was unknowable and unacceptable to the ordinary consumer.  In doing so, the trial court held that the issue of the subject product’s defect was a question of law rather than a question of fact.  On appeal, Plaintiffs, citing the recent Pennsylvania Supreme Court decision of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), argued that the question of whether a product is “unreasonably dangerous” was one of fact rather than law, and thus requires a jury determination.  The Superior Court agreed with the brothers, specifically holding that the issue of whether an ordinary consumer would appreciate the dangerous condition of concrete is a question of fact for determination by the jury.  Consequently, the Superior Court ruled that the trial court erred in granting Defendant’s motion for summary judgement.  Similarly, with respect to the “failure to warn” issue, the Superior Court concluded that Pennsy Supply’s warning to Plaintiffs was inadequate to properly alert them to the severity of potential skin burns when using its concrete.  The Court remanded the “failure to warn” claims to the trial court for reconsideration.

The High Court’s ruling undercuts a defendants’ ability to engage in motion practice in Pennsylvania strict product liability cases.  When defending against strict liability claims, parties in the chain of distribution should be mindful that, even if their products are not proven defective during the discovery period (including via a lack of expert reports), motions for summary judgment may still not be viable exit strategies.  In other words, Plaintiffs will be in a position to use the High decision to bypass motion practice and leverage the costs and risks of trial to push carriers and clients to the settlement table.  Knowing this upfront, at the inception of your case, will aide in understanding your long-term exit strategies and help you shape your litigation practices and decisions.  Instead, even seemingly straightforward issues of defects and warnings – as matters of fact rather than law – may now be sent to a jury for determination.