New Affirmative Defense in Product Defect Cases?
At first reading, it appears as if the Pennsylvania Supreme Court has added to the affirmative defenses, which must be pled specifically under the Pennsylvania Rules of Civil Procedure or deemed waived. In Reott v. Asia Trend, Inc., et al., 55 A.3d 1088 (Pa. 2012), the Pennsylvania Supreme Court addressed the issue of whether, in a case proceeding under a products liability theory, a manufacturing defendant must specifically plead “highly reckless conduct” in order to raise and argue the defense at trial. The Court’s analysis centered on whether “highly reckless conduct” was a complete defense to a claim in which it is alleged that a manufacturing defect caused the injury, even if the jury determines that the product was defective and a factual cause of the injuries.
In Reott, the defendant was the manufacturer of a tree stand with a locking strip that allowed the stand to be attached to the tree. The injured plaintiff utilized a “self-taught” method of “setting the stand,” a maneuver that involved the plaintiff jumping up and down on the stand until it set firmly to the tree. During this maneuver, the tree stand strap broke, and plaintiff suffered serious injury.
At trial, the plaintiff proved that the tree stand was defectively manufactured because the locking strap was held together only with glue, rather than with glue and stitching. On this evidence, the plaintiff moved for a directed verdict at the close of his evidence, arguing that the uncontroverted evidence required a finding as a matter of law that the tree stand was defective and the factual cause of his injuries. The trial court agreed, and granted the directed verdict, but only as to the product defect, and not as to causation.
As the trial continued, the manufacturing defendant presented evidence that the maneuver employed by the plaintiff in “setting the stand,” was highly reckless conduct, to negate the contention that the defect in the locking strap caused the fall and resultant injuries. At the close of evidence, the jury returned a verdict in favor of the manufacturing defendant.
The plaintiff then took an appeal, alleging the trial court committed error when it determined that a defendant may present evidence of highly reckless conduct merely to rebut the plaintiff’s evidence of causation. The Superior Court’s analysis began by focusing on what constituted “highly reckless conduct.” The Superior Court panel noted that, historically, highly reckless conduct occurs when “the plaintiff knew or had reason to know of facts which created a high degree of risk of physical harm to himself and that he deliberately acts, or fails to act, in conscious disregard of that risk.” Citing, Gaudio v. Ford Motor Company, 976 A.2d 524 (Pa. 2009). The Superior Court then went on to analyze Pennsylvania law as it relates to burdens of proof in product defect cases, and determined that assumption of the risk, product misuse, and highly reckless conduct are all affirmative defenses for which defendant bears the burden of proof. In accord with these cases, the Superior Court held that the defendant has the burden of proof that a plaintiff’s highly reckless conduct was the sole or superseding cause of his injuries. In turning to analyze the evidence presented at trial, the Superior Court then determined that the evidence was insufficient for a finding that the plaintiff’s conduct was the sole or superseding cause of his injuries. The Superior Court, thus, reversed the trial court’s decision to deny the plaintiff’s motion regarding causation.
The Pennsylvania Supreme Court began its analysis as to what constitutes an affirmative defense under the Pennsylvania Rules of Procedure, noting that, affirmative defenses pertain to “a defendant’s assertion of facts and argument to that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true.” 552 A.3d at 1094. The Court went on to note that affirmative defenses in Pennsylvania must be pleaded by a defendant by way of new matter in a responsive pleading.
In this particular case, the Supreme Court noted that the manufacturing defendant pleaded various affirmative defenses, including assumption of the risk and product misuse. The court noted that there are differences between the defenses of assumption of the risk, product misuse, and highly reckless conduct. Specifically, assumption of the risk requires some degree of knowledge by the plaintiff of the product’s defect.
After reviewing all of the evidence presented and pleadings filed by the manufacturing defendant, the Pennsylvania Supreme Court held that a defendant in a § 402A action must plead and prove, as an affirmative defense, that the plaintiff acted in a highly reckless manner, if such conduct is asserted. Consistent with this finding, the manufacturing defendant would then be required to put forth evidence not only of the reckless conduct by the plaintiff, but sufficient evidence to establish that the reckless conduct was a sole or superseding cause. Essentially, now that highly reckless conduct is an affirmative defense, the party asserting the defense must prove that the injuries would not have occurred in the absence of the plaintiff’s conduct. The court stated that the burden is now on the defendant to demonstrate that the injured party knew or had reason to know of facts which created a high degree of risk or physical harm to himself , or that he deliberately proceeded to act, or failed to act, in conscious disregard of that risk, specifically, the defective nature of the product.
While it might appear, at first reading, that the Reott case is another effort by the courts to interject principles of negligence into a product defect case, the Supreme Court went to great lengths to distinguish “highly reckless conduct” from any type or nature of comparative negligence. Indeed, the Supreme Court has stated that in order for the conduct to be considered highly reckless conduct, by its very nature it must be so outrageous that it is truly unforeseeable. Moreover, unlike with comparative negligence, the manufacturing defendant asserting highly reckless conduct has the burden of proving that the plaintiff’s injuries would not have occurred in the absence of the conduct.