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State Tort Law Profile

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Pennsylvania

Last updated 5/1/06

Analysis prepared for the American Justice Partnership by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic

Limited

Joint and several liability is limited to where a defendant has: (1) been found liable for intentional misrepresentation; (2) been found liable for intentional tort (3) been held more than 60% liable; (4) been held liable for environmental hazards, or; (5) been held civilly liable as a result of drunk driving.  For purposes of apportioning liability, persons who have settled can be assigned shares. 42 Pa. Cons. Stat. § 7102.

Non-Economic

Limited

See above.

Market Share

No

Skipworth v. Lead Indus. Ass’n, 690 A.2d 169 (Pa. 1997) (rejecting market share liability).

Defenses

Statute of Repose

In medical liability and real property improvement cases only

Seven-year statute of repose does not apply to foreign objects unintentionally left in the body, nor does it require a minor to commence an action prior to age twenty.  Pa. Stat. Ann. tit. 40, § 1303.513.

Twelve-year statute of repose applicable to claims involving improvements to real property.  42 Pa. Cons. Stat. Ann. § 5536.

Generally, manufacturers are not covered by the statute of repose in actions for personal injuries.  Noll v. Harrisburg Area YMCA, 643 A.2d 81 (Pa. 1994).

Product Misuse

 

A manufacturer is not responsible for injuries due to abnormal use that could not be reasonably foreseen or expected.  Brill v. Systems Resources, Inc., 592 A.2d 1377 (Pa. 1991); Peggs v. General Motors Corp., 391 A.2d 1074 (Pa. 1978).

Government Contract

Yes, by court decision

Pennsylvania recognizes a government contractor defense in product liability cases.  See Mackey v. Maremont Corp., 504 A.2d 908 (Pa. 1986); see also Beaver Valley Power Co. v. National Eng’g & Contracting, Co., 883 F.2d 1210 (3d Cir. 1989); In re Air Crash Disaster at Mannheim, 769 F.2d 115 (3d. Cir. 1985); Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d. Cir. 1982); Price v. Tempo, Inc., 603 F. Supp. 1359 (E.D. Pa. 1985).

Compliance With Government Standards

No

Evidence that the product complied with customary standards or industry standards is usually inadmissible with respect to the issue of defect.  Leaphart v. Whiting Corp., 564 A.2d 165 (Pa. 1989); Lewis v. Coffing Hoist Div., 528 A.2d 590 (Pa. 1987).

Comparative Negligence

Yes, modified

A plaintiff may not recover if his or her negligence is greater than the causal negligence of the defendant or defendants against whom recovery is sought.  42 Pa. Stat. Ann. § 7102.  Comparative negligence is not a defense in strict product liability cases.  Parks v. Allied Signal, Inc., 113 F.3d 1327 (3d Cir. 1997).

Assumption of Risk

No, in negligence actions, but sometimes applied as “lack of duty”

Yes, in strict product liability actions

Abolished unless preserved by statute or in cases of express assumption of risk.  Rutter v. Northeastern Beaver Cty., 427 A.2d 1198 (Pa. 1981); see also Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978) (holding plaintiff hit by baseball at ballpark could recover if invitor diverted plaintiffs attention with eye catching displays).

No duty/assumption of risk: Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983) (no duty to plaintiff who slipped on ice in parking lot because danger was known and obvious); Dilauro v. One Bala Avenue Ass’n, 615 A.2d 90 (Pa. Super. 1992) (plaintiff assumed risk when going down stairs without use of handrail).

Assumption of risk is a defense in product defect cases if the plaintiff knew and understood the specific danger and the potential for serious injury and yet voluntarily choose to encounter it.  Davis v. Berwind Corp., 690 A.2d 186 (Pa. 1997); Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100 (Pa. 1990).

Compensatory Damages

Economic

No limit

The Pennsylvania Constitution prohibits caps on noneconomic damages.  Pa. Const. art. III § 18 (in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive, and the General Assembly shall prescribe for whose benefit such actions shall be prosecuted”).

Non-Economic

No limit

See above.

Punitive Damages

 

 

Allowed

Limited against health care providers only

Punitive damages against a health care provider are limited to two times compensatory damages, except in cases of intentional misconduct.  Pa. Cons. Stat. Ann. tit. 40, § 1303.505. 

Multiple awards for same conduct

No limit

 

Award paid to state

No

25% of punitive damages in medical malpractice cases must be paid into the Care Availability and Reduction of Error (MCARE) Fund rather than to the prevailing party.  Pa. Stat. Ann. tit. 40, § 1303.505(e).

 Standard used

Preponderance of the evidence

 

Procedures

 

 

Venue

 

 

Conducive to Abuse

Not reported

A personal action against a corporation or similar entity may be brought in and only in:  (1) the county where its registered office or principal place of business is located; (2) a county where it regularly conducts business; (3) the county where the cause of action arose; (4) a county where a transaction or occurrence took place out of which the cause of action arose; or (5) a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. An action regarding an insurance policy may be brought, in addition to the above, in the county where the insured property is located or where the plaintiff resides in actions upon life, accident, health, or disability, policies or fraternal benefit certificates.  Pa. R. Civ. P. 2179(a).

Class Actions

 

 

Immediate right of appeal from class certification?

Discretionary

Under Pennsylvania law, an order certifying a class is appealable by permission under Pa. R. App. P. 312.  An order denying class certification is a collateral order which may be appealed of right under Pa. R. App. P. 313.  See Dunn v. Allegheny County Property Assessment Appeals And Review Board, 794 A.2d 416 (Pa. Commw. Ct. 2002); Foust v. Southeastern Pennsylvania Transportation Authority, 756 A.2d 112 (Pa. Cmwlth. 2000); Niemiec v. Allstate Insurance Co., 721 A.2d 807 (Pa. Super. 1998).

Evidence

 

 

Adopted Daubert?

No

 “Pennsylvania courts continue to apply the Frye standard to determine whether scientific evidence is admissible.”  Commonwealth v. Arroyo, 723 A.2d 162 (Pa. 1999).  Subsequently, the Pennsylvania Supreme Court reviewed a case in which the trial court applied Daubert and, in its review of the case, the Pennsylvania Court of Appeals applied Frye.  The Supreme Court held that the expert’s testimony was inadmissible under both Daubert and Frye, stating that it would be jurisprudentially unsound” to use the case to resolve the conflict.  Blum v. Merrell Dow Pharmaceutical, 764 A.2d 1, 5 (Pa. 2000).

Problem Jurisdictions

Philadelphia (Court of Common Pleas)

 

 

 

 

This analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.comOriginal material © 2006 American Justice Partnership.