Summary
holding Section 402A of the Restatement (Second) of Torts is the applicable standard for strict liability claims
Summary of this case from Jackson v. Louisville Ladder, Inc.Opinion
No. 12-8081
10-17-2012
JILL SIKKELEE, individually and as personal representative of the Estate of David Sikkelee, Deceased v. PRECISION AIRMOTIVE CORPORATION; PRECISION AIRMOTIVE LLC, individually and as Successor-in-Interest to Precision Airmotive Corporation; BURNS INTERNATIONAL SERVICES CORPORATION, individually and as Successor-in-Interest to Borg-Warner Corporation, and Marvel-Schebler, a Division of Borg-Warner Corporation; TEXTRON LYCOMING RECIPROCATING ENGINE DIVISION, a division of Avco Corporation; AVCO CORPORATION; KELLY AEROSPACE, INC., individually and Joint Venturer and as Successor-in-Interest; KELLY AEROSPACE POWER SYSTEMS, INC., individually and as Joint Venturer and Successor-in-Interest, a/k/a Electrosystems, Inc., a/k/a Confuel, Inc.; ELECTROSYSTEMS, INC., individually and as Joint Venturer and as Successor-in-Interest, a/k/a Consolidated Fuel Systems, Inc., a/k/a Confuel, Inc.; CONSOLIDATED FUEL SYSTEMS, INC., a/k/a Confuel, Inc. Avco Corporation, Petitioner
(M.D. Pa. No. 4-07-cv-00886) BEFORE: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE and WEIS,* CIRCUIT JUDGES SUR PETITION FOR PANEL REHEARING WITH SUGGESTION FOR REHEARING EN BANC
ORDER
We have declined a request to accept an interlocutory appeal on a question of law "specifically limited to the issue of whether the Pennsylvania Supreme Court would adopt the Restatements (Third) of Torts or continue its application of the Restatement (Second) of Torts." We have previously addressed this issue in Covell v. Bell Sports, Inc., 651 F.3d 357, 360 (3d Cir. 2011), and there stated, "[a]fter examining the contentions of the parties and the recent decisions of Pennsylvania's highest court, we conclude that the state of the law is no different now than it was when we decided Berrier v. Simplicity Mfg., Inc., 563 F.3d 38 (3d Cir. 2009). Rather than examine the arguments and considerations we laid to rest there, we will apply stare decises."
As stated in Covell, a federal court applying Pennsylvania substantive law must predict how the Commonwealth's highest court would decide the case. We concluded in Berrier that "[if] the Pennsylvania Supreme Court were confronted with [the] issue, it would adopt the Restatement (Third) of Torts." Id. at 40. Thus, we held that federal courts sitting in diversity and applying Pennsylvania law to products liability cases should look to sections 1 and 2 of the Restatement (Third) of Torts. The precedential holding in Berrier, as set forth above, represents the Court's view of Pennsylvania's product liability law.
The Pennsylvania Supreme Court has not issued a definitive opinion on whether the Restatement (Third) of Torts or the Restatements (Second) of Torts and applies to strict liability and product defect cases. Accordingly, we will follow the precedent set out in Covell and Berrier.
The petition for rehearing en banc and panel rehearing is hereby denied.
By the Court,
/s/ Joseph F. Weis, Jr.
Circuit Judge Dated: October 17, 2012
SLC/cc: Counsel of Record