The District Court had dismissed the strict liability claim on the ground that, because bystanders were “foreseeable” nonusers rather than “users,” under Pennsylvania’s peculiar version of strict liability (which rejects such “negligence concepts” such as “foreseeability” or “reasonableness”), there could be no strict liability as a matter of law. That’s the issue that the court certified, and Pennsylvania law on the whole “negligence concepts” issue is about as clear as mud.

Given peculiarities of Pennsylvania law, adoption of the Third Restatement, and its negligence standard would be a giant step forward in favor of the defense. Practically every state in the country has bystander liability, but it is always imposed on the basis of foreseeability. Here, (as the district court held, and the Third Circuit retained) the defendant probably still wins, even if the court adopts the Restatement’s negligence-based standard.

Moreover, under the Restatement standard (unlike Pennsylvania’s current version of strict liability) the contributory fault of other parties (such as grandpa, who is a third-party defendant) is then an issue for the jury to decide. Under current Pennsylvania strict liaiblity, grandpa’s failure to look where he was going when putting the mower in reverse is not even considered by the jury.

That, and a half-dozen other ways that the current strict liability regime in Pennsylvania disadvantates defendants, is why I’ve been pushing to get the Pennsylvania Supreme Court to move to the Third Restatement ever since the ALI adopted it.

This may be the case that does it, because of the peculiar posture that going to the Third Restatement would help the plaintiff in this particular case.

There are plenty of things I don’t like about this and that that the ALI has done, but the negligence-based form of strict liability in section two of the Third Restatement isn’t one of them.

No I take that back, it’s the company “(read perceived deep pocket), that is to be fleeced!

Oh and that makes it about the money! Again!

Grandpa is almost always the culprit in all of these run-over by the rider cases. They seem to think that the laws of physics do not apply to them because they want to show jr a good time.

Although the post focuses on the warnings, the 3d Circuit certified strictly on the issue of bystander liability. Neither the district court nor the 3d Circuit so much as reached the issue of alternative design, failure to warn, etc.

(I myself tend to think that the warnings were adequate, that any fool should look back when backing up a mower, and that an alternative design where the blades wouldn’t run while backing up would be a nuisance to a rider who *wanted* to mow while backing up. But those issues have not been reached in this litigation.)