PRINTER'S NO. 901
No. 816 Session of 1989
INTRODUCED BY MADIGAN, LEWIS, PUNT, PECORA, SALVATORE, MUSTO,
HESS, SHUMAKER, LEMMOND, BAKER, GREENWOOD, WENGER, ROCKS,
CORMAN, BRIGHTBILL, STAPLETON, HOPPER, WILT, PETERSON,
ARMSTRONG, STEWART, ROSS, FISHER, REIBMAN, PORTERFIELD,
SHAFFER AND LYNCH, APRIL 11, 1989
REFERRED TO JUDICIARY, APRIL 11, 1989
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, adding provisions
3 relating to product liability actions.
4 The General Assembly finds that there is a need for remedial
5 legislation to establish in statutory form certain clear
6 limitations with respect to the imposition of liability in
7 actions for damages for harm alleged to have been caused by
8 products. The General Assembly also finds that the establishment
9 of such limitations is consistent with public policy on product
10 safety and with the basic legal rights and principles governing
11 product liability actions. This act does not and is not intended
12 to set forth all of the proof required or all of the defenses
13 available in product liability actions, but only to codify,
14 clarify and establish the limiting principles set forth herein.
15 The General Assembly of the Commonwealth of Pennsylvania
16 hereby enacts as follows:
17 Section 1. Title 42 of the Pennsylvania Consolidated
1 Statutes is amended by adding a section to read:
2 § 5539. Statute of repose for product liability actions.
3 (a) General rule.--Except as provided in subsection (b), a
4 product liability action must be commenced against a supplier
5 within the time otherwise limited by this subchapter and within
6 that supplier's period of repose.
7 (b) Exception.--If a product liability action accrues
8 against a supplier less than two years before the end of that
9 supplier's period of repose, that product liability action may
10 be commenced against that supplier within two years from the
11 date on which that action accrued.
12 (c) No extension of limitations.--This section shall not
13 extend the period within which any civil action or proceeding
14 may be commenced under any provision of law.
15 (d) Definitions.--As used in this section, the following
16 words and phrases shall have the meanings given to them in this
17 subsection:
18 "Product liability action." Any action or claim against a
19 supplier for recovery of damages for death or injury to person
20 or property alleged to have been caused by a product (including
21 any action or claim for contribution or indemnity), irrespective
22 of whether such action or claim is based on strict liability in
23 tort, negligence, breach of warranty, misrepresentation, any
24 other legal theory or statute or any combination of the
25 foregoing.
26 "Supplier." A person who manufactures, sells or otherwise
27 supplies a product and is engaged in the business of supplying
28 such a product.
29 "Supplier's period of repose." The period ending 15 years
30 after that supplier supplied for use or consumption the product
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1 alleged to have caused the death or injury to person or property
2 for which recovery of damages is sought or, if that supplier did
3 not supply the product for use or consumption, the period ending
4 15 years after the product was first supplied for use or
5 consumption by a subsequent supplier.
6 Section 2. Section 7102 of Title 42 is amended to read:
7 § 7102. Comparative [negligence] responsibility.
8 (a) General rule.--In all actions brought to recover damages
9 for [negligence resulting in] death or injury to person or
10 property, the fact that contributory responsibility is
11 attributed to the plaintiff [may have been guilty of
12 contributory negligence] shall not bar a recovery by the
13 plaintiff or his legal representative where such [negligence]
14 responsibility was not greater than the [causal negligence]
15 responsibility of the defendant or defendants against whom
16 recovery is sought, but any damages sustained by the plaintiff
17 shall be diminished in proportion to the amount of [negligence]
18 responsibility attributed to the plaintiff.
19 (b) Recovery against joint defendant; contribution.--Where
20 recovery is allowed against more than one defendant, each
21 defendant shall be liable for that proportion of the total
22 dollar amount awarded as damages in the ratio of the amount of
23 his [causal negligence] responsibility to the amount of [causal
24 negligence] responsibility attributed to all defendants against
25 whom recovery is allowed. The plaintiff may recover the full
26 amount of the allowed recovery from any defendant against whom
27 the plaintiff is not barred from recovery. Any defendant who is
28 so compelled to pay more than his percentage share may seek
29 contribution.
30 (c) Downhill skiing.--
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1 [(1)] The General Assembly finds that the sport of
2 downhill skiing is practiced by a large number of citizens of
3 this Commonwealth and also attracts to this Commonwealth
4 large numbers of nonresidents significantly contributing to
5 the economy of this Commonwealth. It is recognized that as in
6 some other sports, there are inherent risks in the sport of
7 downhill skiing.
8 [(2)] (d) Voluntary assumption of risk.--The doctrine of
9 voluntary assumption of risk as it applies to [downhill
10 skiing] injuries and damages associated with downhill skiing
11 or any other activity or conduct involving known or inherent
12 risks is not modified by [subsections (a) and (b)] this
13 section.
14 [(d)] (e) Definitions.--As used in this section, the
15 following words and phrases shall have the meanings given to
16 them in this subsection:
17 "Defendant or defendants against whom recovery is sought."
18 Includes impleaded defendants.
19 "Plaintiff." Includes counterclaimants and cross-claimants.
20 "Responsibility." Causing or contributing to cause the death
21 or injury to person or property for which recovery of damages is
22 sought, whether by negligent act or omission, by supplying any
23 defective product, by breach of warranty, by misrepresentation,
24 by any other conduct or activity violative of the applicable
25 legal standard or by any combination of the foregoing.
26 Section 3. Chapter 83 of Title 42 is amended by adding a
27 subchapter to read:
28 CHAPTER 83
29 PARTICULAR RIGHTS AND IMMUNITIES
30 * * *
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1 SUBCHAPTER G
2 PRODUCT LIABILITY ACTIONS
3 Sec.
4 8371. Short title of subchapter.
5 8372. Definitions.
6 8373. Basic limitations on the liability of suppliers.
7 8374. Product design.
8 8375. Warnings or instructions about products.
9 8376. Alteration or modification of products.
10 8377. Product misuse.
11 8378. Limitation on liability for certain common consumer
12 products.
13 8379. Admissibility of evidence of adherence to government or
14 industry standards.
15 8380. Inadmissibility of evidence of subsequent improvements or
16 measures.
17 8381. Limitation on liability for punitive damages for harm
18 caused by products regulated by the Federal Food and Drug
19 Administration.
20 § 8371. Short title of subchapter.
21 This subchapter shall be known and may be cited as the
22 Pennsylvania Product Liability Act.
23 § 8372. Definitions.
24 The following words and phrases when used in this subchapter
25 shall have the meanings given to them in this section unless the
26 context clearly indicates otherwise:
27 "Harm." Death or injury to person or property.
28 "Product liability action." Any action or claim against a
29 supplier for recovery of damages for harm alleged to have been
30 caused by a product (including any action or claim for
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1 contribution or indemnity), irrespective of whether such action
2 or claim is based on strict liability in tort, negligence,
3 breach of warranty, misrepresentation, any other legal theory or
4 statute or any combination of the foregoing.
5 "Supplier." A person who manufactures, sells or otherwise
6 supplies a product and is engaged in the business of supplying
7 such a product.
8 § 8373. Basic limitations on the liability of suppliers.
9 (a) General rule.--A supplier of a product is not an insurer
10 or guarantor of the safety of the product. In a product
11 liability action, a supplier of a product shall not be liable if
12 the plaintiff does not prove that the product was supplied by
13 that supplier in a defective condition unreasonably dangerous
14 for its intended use as a result of:
15 (1) a material deviation of the product from the design
16 specifications, formulae or performance standards of its
17 manufacturer or from otherwise identical units manufactured
18 to the same specifications, formulae or standards;
19 (2) the design of the product;
20 (3) the failure of that supplier to provide adequate
21 warning or instruction about the product; or
22 (4) the failure of the product to conform to an express
23 factual representation which was made by that supplier about
24 that product and on which there was specific and justifiable
25 reliance.
26 (b) Additional basic limitation applicable to
27 nonmanufacturing suppliers.--
28 (1) Except as provided in paragraph (2), a supplier of a
29 product who did not manufacture the product in whole or in
30 part shall not be liable in a product liability action if the
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1 plaintiff does not prove one or more of the following:
2 (i) The supplier exercised substantial control over
3 the design, testing, packaging or labeling of or the
4 providing of warning or instruction about that aspect of
5 the product which caused the harm for which recovery of
6 damages is sought.
7 (ii) The supplier altered or modified the product,
8 and that alteration or modification was a substantial
9 factor in causing the harm for which recovery of damages
10 is sought. The term "alteration" or "modification" shall
11 mean any material change in a product, including changes
12 in the design, packaging or labeling of the product,
13 changes to or removal of any safety feature or any
14 warning or instruction, deterioration or damage caused by
15 failure to observe proper maintenance, installation,
16 preparation or storage procedures and changes resulting
17 from repair, renovation, reconditioning, recycling or
18 reclamation of the product.
19 (iii) The supplier had, at the time that supplier
20 supplied the product, actual knowledge of the product
21 defect which caused the harm for which recovery of
22 damages is sought.
23 (iv) The supplier made an express factual
24 representation about that aspect of the product which
25 caused the harm for which recovery of damages is sought.
26 (2) Paragraph (1) shall not apply if:
27 (i) valid in personam jurisdiction cannot be
28 obtained in this Commonwealth over either a manufacturer
29 of the product or any other supplier described in
30 paragraph (1); or
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1 (ii) the court determines that neither a
2 manufacturer of the product nor any other supplier
3 described in paragraph (1) would be able to satisfy a
4 judgment if found liable in a product liability action.
5 § 8374. Product design.
6 In a product liability action, the product shall not be found
7 to be in a defective condition unreasonably dangerous for its
8 intended use as a result of the design of the product if:
9 (1) at the time the product left the control of the
10 manufacturer, there was not a practical and technically
11 feasible alternative design which would have prevented the
12 harm for which recovery of damages is sought without
13 impairing the intended use or desirability of the product. An
14 alternative design of a product is practical and technically
15 feasible only if, at the time the product left the control of
16 the manufacturer, the technical, medical and scientific
17 knowledge relating to that alternative design was developed,
18 available and capable of use in the manufacturing of the
19 product and economically feasible for such use by a
20 manufacturer; or
21 (2) the harm was caused by an inherent or unavoidably
22 unsafe aspect of the product. An inherent or unavoidably
23 unsafe aspect of a product is an aspect incapable, in light
24 of the state of the technical, medical and scientific
25 knowledge available at the time the product left the control
26 of the manufacturer, of being eliminated or made safe without
27 impairing the intended use, availability or desirability of
28 the product.
29 § 8375. Warnings or instructions about products.
30 (a) General rule.--In a product liability action, the
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1 product shall not be found to be in a defective condition
2 unreasonably dangerous for its intended use as a result of the
3 failure of the supplier to provide adequate warning or
4 instruction about the product if the supplier provided
5 information which a reasonably prudent person in the same or
6 similar circumstances would have provided with respect to the
7 dangers or safe use of the product. A warning or instruction is
8 provided when it is communicated in a manner reasonably
9 calculated to convey the information:
10 (1) to intended users or consumers of the product;
11 (2) to the extent that it is not practical and feasible
12 for a supplier to convey information directly to intended
13 users or consumers, to those persons who can reasonably be
14 expected to act in accordance with the information for the
15 protection of users or consumers or who can reasonably be
16 expected to convey the information to users or consumers; or
17 (3) in the case of prescription drugs or other products
18 required by law to be used or consumed only at the direction
19 of certain persons, to those persons qualified to direct the
20 use or consumption of such products.
21 (b) Unnecessary warnings or instruction.--A supplier shall
22 not be liable in a product liability action for failing to
23 provide information about the product which was:
24 (1) known by the person to whom the warning or
25 instruction would have been provided; or
26 (2) generally known to the class of persons to whom the
27 warning or instruction would have been provided.
28 (c) State of knowledge.--A supplier shall not be liable in a
29 product liability action for failing to provide information
30 about the product which that supplier did not know and, in light
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1 of the technical, medical and scientific knowledge available at
2 the time the supplier supplied the product, could not reasonably
3 have known.
4 (d) Governmentally required warning or instruction.--If a
5 warning or instruction conforms to the requirements of a Federal
6 or State statute or agency regulation or the terms of a product
7 approval by a Federal or State agency, a supplier of the product
8 shall be considered to have provided an adequate warning or
9 instruction.
10 § 8376. Alteration or modification of products.
11 A supplier shall not be liable in a product liability action
12 for harm caused by an alteration or modification of the product
13 by a person other than that supplier which was not reasonably
14 forseeable by the supplier or which could not practically and
15 feasibly have been prevented, deterred or controlled by the
16 supplier. The term "alteration" or "modification" shall mean any
17 material change in a product after the supplier supplied the
18 product, including changes in the design, packaging or labeling
19 of the product, changes to or removal of any safety feature or
20 any warning or instruction, deterioration or damage caused by
21 failure to observe proper maintenance, installation, preparation
22 or storage procedures and changes resulting from repair,
23 renovation, reconditioning, recycling or reclamation of the
24 product.
25 § 8377. Product misuse.
26 A supplier shall not be liable in a product liability action
27 for harm caused by misuse of a product which was not reasonably
28 foreseeable by the supplier or which could not practically and
29 feasibly have been prevented or deterred by the supplier. The
30 term "misuse" shall mean use of a product materially different
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1 from its intended use, including uses inconsistent with the
2 specifications and standards applicable to the product, uses
3 contrary to warning or instruction provided by the supplier or
4 any other person, and uses other than those for which the
5 product would be considered suitable by a reasonably prudent
6 person in the same or similar circumstances.
7 § 8378. Limitation on liability for certain common consumer
8 products.
9 Suppliers of certain common consumer products the consumption
10 of which is recognized by the ordinary consumer as presenting a
11 risk to health shall not be liable in a product liability action
12 unless the harm for which recovery of damages is sought was
13 caused by a manufacturing defect in the product. This section
14 shall apply to common consumer products of the kind described in
15 comment i to section 402A of the Restatement (Second) of Torts.
16 The term "manufacturing defect" shall mean a material deviation
17 of the product from the design specifications, formulae or
18 performance standards of its manufacturer or from otherwise
19 identical units manufactured to the same specifications,
20 formulae or standards.
21 § 8379. Admissibility of evidence of adherence to government or
22 industry standards.
23 Evidence that the product which allegedly caused the harm
24 complied in material respects, at the time the product left the
25 control of the manufacturer, with standards, conditions or
26 specifications established, adopted or approved by a Federal or
27 State statute or by any agency of the Federal or State
28 government with authority over the design, packaging, labeling,
29 performance or approval of the product, or with industry-wide
30 standards, practices or customs relating to the product shall be
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1 admissible in a product liability action.
2 § 8380. Inadmissibility of evidence of subsequent improvements
3 or measures.
4 When, after a supplier has supplied a product alleged to have
5 caused harm, improvements are made or measures are taken with
6 respect to that product or any similar product which, if made or
7 taken previously, would have made the harm less likely to occur,
8 evidence of those subsequent improvements or measures is not
9 admissible against the supplier in a product liability action to
10 prove that the product was defective. This rule does not require
11 the exclusion of evidence of subsequent improvements or measures
12 when offered for the purpose of impeachment. The terms
13 "improvements" and "measures" mean all changes in design,
14 manufacture, testing, packaging, labeling, marketing, promotion,
15 distribution or sale, including any recall, notice, warning,
16 instruction or other suggestion or recommendation with respect
17 to a product.
18 § 8381. Limitation on liability for punitive damages for harm
19 caused by products regulated by the Federal Food and
20 Drug Administration.
21 Punitive damages shall not be awarded in a product liability
22 action if a drug or device or food or food additive which caused
23 the harm for which recovery of damages is sought was subject to
24 premarket approval or licensure by the Federal Food and Drug
25 Administration (FDA) under the Federal Food, Drug, and Cosmetic
26 Act (21 U.S.C. § 301 et seq.) or the Public Health Service Act
27 (42 U.S.C. § 201 et seq.) and was approved or licensed, or is
28 generally recognized as safe and effective pursuant to
29 conditions established by the FDA and applicable regulations,
30 including packaging and labeling regulations. This limitation on
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1 liability for punitive damages shall not apply if the plaintiff
2 proves by clear and convincing evidence that the product
3 manufacturer fraudulently withheld or misrepresented information
4 required to be submitted under the regulations of the FDA, which
5 information was material and relevant to the harm for which
6 recovery of damages is sought. For the purposes of this section,
7 the terms "drug," "device," "food" and "food additive" shall
8 have the meanings given in the Federal Food, Drug, and Cosmetic
9 Act.
10 Section 4. This act shall apply to any product liability
11 action within the jurisdiction of any court on or after the
12 effective date of this act, except that section 1 of this act
13 shall not apply to any product liability action which accrued
14 before the effective date of this act.
15 Section 5. The provisions of this act are severable. If any
16 provision of this act or its application to any person or
17 circumstance is held invalid, the invalidity shall not affect
18 other provisions or applications of this act which can be given
19 effect without the invalid provision or application.
20 Section 6. This act shall take effect immediately.
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