A Look at Product Liability in Pennsylvania


Product liability is that area of law which concerns harm to persons or property caused by manufactured products. Suits seeking compensation for such harms commonly articulate claims under several different legal formulations or causes of action, i.e.  negligence, breach of warranty, and strict liability. Furthermore, in some cases, a claim of fraud may be appropriate.


The elements of a negligence-based cause of action are a duty, a breach of that duty, a causal relationship between the breach and the resulting injury, and actual loss. Minnich v. Yost, 2003 PA Super. 52, 817 A.2d 538, 541 (Pa. Super. 2003). Since courts have held that product designers and manufacturers have a duty to exercise reasonable care in manufacturing and designing products, a product liability claim may be couched in negligence terms.

Breach of Warranty

Although a product liability claim may be couched in terms of the breach of an express warranty, i.e. a spoken or written warranty, such claims are more typically pled as breaches of implied warranties, i.e. warranties which are not actually communicated to the buyer but are implied by law. There are 2 implied warranties in Pennsylvania which fit this description: The implied warranty of merchantability and the implied warranty of fitness for a particular purpose. These 2 warranties are imposed on the sale of goods in Pennsylvania by statute:

13 Pa.C.S. § 2314  Implied Warranty: merchantability

 13 Pa.C.S. § 2315 Implied Warranty: fitness for particular purpose

Strict Liability

Although an attorney litigating a product liability claim on behalf of a plaintiff will likely plead claims in negligence and breach of warranty, just to make sure that all bases are covered, as a practical matter those causes of action have been largely subsumed by a strict liability cause of action as described in the Restatement (2D) of Torts § 402A:

§ 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 (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

The Supreme Court of Pennsylvania has held that a 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. Tincher v. Omega Flex, Inc. 104 A.3d 328 (Pa 2014).


Also, if a consumer reasonably relies on a material misrepresentation by a manufacturer or distributor of a product and suffers injury to his or her person or property as a result, the person could plead his or her claim as a fraud claim, possibly entitling them to treble damages, costs, and attorneys’ fees pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law.


Insurance companies, when they pay claims to their insureds, are frequently entitled to seek reimbursement of their payments from any parties legally responsible for the harm caused to their insureds. For example, if a residential fire is caused by a defective product, e.g. a lamp which sustained an electrical short because it was not insulated properly, the homeowner’s insurance carrier could sue the lamp manufacturer and distributor. In such a case, the homeowner could join in the suit to recover damages which were not covered by his or her insurance.

I have handled the litigation of product liability cases, including subrogation cases. If you would like to discuss such a case with me, please telephone me at 814-283-5788. There will be no fee for your initial consultation.