IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50862
_____________________
GLORIA MARIE HERNANDEZ, as next friend of Ruben
Richard Emeterio, a minor,
Plaintiff-Appellant,
v.
TOKAI CORPORATION; SCRIPTO-TOKAI CORPORATION,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
September 4, 1998
Before WISDOM, KING, and DAVIS, Circuit Judges.
PER CURIAM:
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT TO THE TEXAS
CONSTITUTION, ART. 5, § 3-C AND RULE 58 OF THE TEXAS RULES OF
APPELLATE PROCEDURE
TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:
I. STYLE OF THE CASE
The style of the case in which this certificate is made is
Gloria Marie Hernandez, as next friend of Ruben Richard Emeterio,
a minor, Plaintiff-Appellant v. Tokai Corporation and Scripto-
Tokai Corporation, Defendants-Appellees, Case No. 97-50862, in
the United States Court of Appeals for the Fifth Circuit, on
appeal from the United States District Court for the Western
District of Texas. This case involves a determinative question
of state law, and jurisdiction of the case in the federal courts
is based solely on diversity of citizenship.
II. STATEMENT OF THE CASE
The salient underlying facts in this case are undisputed.
On April 4, 1995, two-year-old Ruben Richard Emeterio was
severely burned in a house fire that was started by his sister,
five-year-old Daphne Hernandez, with a “Tokai” brand disposable
butane lighter that was designed without a child-resistant safety
mechanism. The fire occurred on the top bunk of a bunk bed in a
bedroom of the children’s grandparents’ home. The lighter had
apparently been obtained by Daphne, or by her twin sister,
Stephanie Hernandez, from their mother’s purse on the top shelf
of a closet in the room in which the fire occurred.1
On May 6, 1996, plaintiff-appellant Gloria Marie Hernandez
(Hernandez), as next friend of Ruben, filed suit against
defendants-appellees Tokai Corporation and Scripto-Tokai
Corporation (collectively, Defendants), asserting claims of
strict liability and negligence with regard to their design of
the lighter. In particular, Hernandez alleged that the lighter
1
In deposition testimony, both Gloria Marie Hernandez
and Ruben’s grandmother, Rita Emeterio, admitted that they were
smokers at the time of the fire, and both acknowledged that they
were aware that it was dangerous for children to play with
lighters.
2
was defectively designed and unreasonably dangerous due to the
absence of a child-resistant mechanism that would have prevented
or substantially reduced the likelihood of a child using it to
start a fire.
On August 13, 1997, Defendants moved for summary judgment on
all claims, alleging that a manufacturer of a cigarette lighter
is not required to incorporate child-resistant features into its
design in order to protect unintended users from dangers that are
obvious and inherent in the tool’s utility. Defendants further
argued that the subject lighter was a simple household tool
intended for use only by adults, that an adequate warning had
been provided to keep the lighter out of the reach of children,
and that the dangers of allowing children to play with lighters
are so commonly known that even if the warning was ignored by
consumers it was not reasonably foreseeable that a child would be
given unsupervised access to the lighter.
Hernandez timely filed a response on August 26, 1997,
arguing that, at the time the lighter at issue was manufactured
and distributed, a safer alternative design incorporating a
child-resistant mechanism existed. She claimed that the
existence of the safer alternative design created a fact issue
for the jury regarding whether the product was defective under
Texas’s risk-utility test. In support of her response, Hernandez
presented uncontroverted evidence that alternative lighter
designs with child-resistant mechanisms existed as early as 1974
and that defendant Tokai Corporation held patents on several such
3
designs, one of which it applied for in 1987 and received in
1988.2
On September 8, 1997, the United States District Court for
the Western District of Texas granted Defendants’ motion for
summary judgment and entered final judgment in favor of
Defendants. Hernandez timely appealed the district court’s
judgment.
III. QUESTION CERTIFIED
Under the Texas Products Liability Act of 1993, can the
legal representative of a minor child injured as a result of the
misuse of a product by another minor child maintain a defective-
design products liability claim against the product’s
manufacturer where the product was intended to be used only by
adults, the risk that children might misuse the product was
obvious to the product’s manufacturer and to its intended users,
and a safer alternative design was available?
2
Included in the evidence submitted by Hernandez in
opposition to Defendants’ motion for summary judgment was a
report produced by the Consumer Product Safety Commission (CPSC)
in September 1987 and a subsequent rulemaking promulgated by the
CPSC in 1993 banning the manufacture and import of non-child-
resistant lighters effective July 12, 1994. In one 1992 report
included in the record, the CPSC predicted that its proposed rule
would “prevent about 85-120 deaths per year and . . . result in a
total annual savings, including savings in deaths, injuries, and
property damage, of $210-$290 million. The annual costs to
consumers of the proposed rule are estimated to be about $95
million.” 57 Fed. Reg. 36,932, 36,936 (1992). The CPSC
therefore noted that “the expected benefits substantially
outweigh the estimated costs to the public.” Id.
4
IV. CONCLUSION
5
We disclaim any intention or desire that the Supreme Court
of Texas confine its reply to the precise form or scope of the
question certified. The answer provided by the Supreme Court of
Texas will determine the issue on appeal in this case.
6