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Homeowner's Policy Fails to Cover Crowded Concert Assault (PA)

April 23, 2021

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<p style="text-align: justify;">The Superior Court of Pennsylvania recently ruled that “industry standards” evidence may be barred in matters dealing with strict liability.  In <em><a href="">Sullivan v Werner Company</a>,</em> the appellate court finally provided guidance related to the Pennsylvania Supreme Court’s previous decision in <em>Tincher v. Omega Flex</em> as it relate to industry and governmental standards evidence.</p>
The underlying incident occurred when Michael Sullivan (“Sullivan”) fell through scaffolding made by Werner Company and later sold by Lowe’s Companies, Inc.  A jury determined that Sullivan’s accident occurred due to a design defect and awarded Sullivan $2.5 million in damages.  Thereafter, an appeal was filed in which the defendants alleged that the trial court erred in precluding industry standards evidence.
<p style="text-align: justify;">Specifically, the defendants asserted that they should have been permitted to introduce evidence of other scaffolds with deck pins similar in design to those used in the scaffold at issue.  The parties differed over the effect of the Pennsylvania Supreme Court’s decision in <em>Tincher </em>on evidentiary prohibition against government and industry standards evidence in strict liability cases.  The defendants argued that <em>Tincher </em>allowed for government and industry standards to be admissible in strict liability cases whereas Sullivan countered that <em>Tincher</em> did not impact the evidentiary prohibition.</p>
<p style="text-align: justify;">In reaching its conclusion, the Superior Court underwent a review of relevant Pennsylvania case law.  Ultimately, the Superior Court held that <em>Tincher </em>neither explicitly nor implicitly overruled the exclusion of industry standards evidence in a products liability case.  The Superior Court noted that, in the future, the Supreme Court may allow industry and governmental standards as suggested by the Restatement (THIRD) of Torts but that, until it does, it would not be improper for a trial court to decide to exclude such evidence.  Furthermore, the Superior Court noted that the language within the Restatement (SECOND) of Torts § 402A(2)(a) currently provides sufficient reason to exclude industry and governmental standards evidence.  Specifically, the Restatement (SECOND) of Torts § 402A(2)(a) provides that strict liability is established notwithstanding that the “seller has exercised all possible care in the preparation and sale of his product.” The Superior Court opined that whether a manufacturer has complied with industry or government standards goes to whether it “exercised all possible care in preparation of product” in making the design choice, not on whether there was a design defect in the product itself.  As a result, the Superior Court ruled that it was not unreasonable for the trial court to exclude industry and governmental standards evidence in Sullivan’s case.</p>
Thanks to Zhanna Dubinsky for her contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.


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