Todd v. Societe BIC

FRANK A. KAUFMAN, Senior District Judge.

This case arises out of a tragedy in which twenty-three month old Tiffany Todd was killed in a fire started by another child, four year old Cori Smith. The fire occurred on March 27, 1988, at the home shared by the Todd and Smith families in Earleville, Illinois.. Cori started the fire with a green BIC lighter manufactured by defendants which she found on a table in the living room.

At the time of the fire, the Todd family consisted of parents Rodney Todd, Sr. and Darlene Todd, and children Rodney Todd, Jr., Tiffany Todd, and Anya Rossi. The Smith family consisted of parents Herbert Smith and Kathy Smith, and children Nathan Smith, Erica Smith, and Cori Smith. All adults in the household smoked cigarettes. Herbert Smith used a Zippo lighter to light his cigarettes, Kathy Smith and Darlene Todd used BIC lighters or matches, and Rodney Todd, Sr. did not recall what he used to light his cigarettes. The within case was instituted by Rodney Todd, Sr., as Special Administrator of Tiffany’s estate.

Sometime before 8:00 a.m. on March 27, 1988, Cori awoke and went into the living room of the house, where she found the green lighter on a table. She took the lighter and went upstairs to the bedroom where Tiffany Todd was sleeping and ignited some papers on the floor. Cori then went back downstairs, replaced the lighter, and got a glass of water in order to extinguish the fire. BIC contends that Nathan Smith, who was in the living room at the time watching cartoons, instructed Cori not to go upstairs with the water and that Cori left the glass of water downstairs. Plaintiff suggests that Cori may have gone upstairs with the water. At any rate, Cori went upstairs again and then came running back downstairs with Rodney Todd, Jr. screaming that there was smoke. The adults were alerted, and Rodney Todd, Sr. and Herbert Smith tried unsuccessfully to retrieve Tiffany from her room. Everyone in the house escaped to safety except Tiffany, who perished.

About a week prior to the fire, Cori had obtained a lighter and had started a small fire in her parents’ bedroom. Also prior to the fire in which Tiffany was killed, Cori and the other children had been instructed *1337by their parents concerning the dangers of fire and had been warned not to play with matches or lighters. Cori has admitted that she was aware of the danger of playing with matches and lighters prior to the fatal fire.

I

In this diversity case plaintiff has proceeded in the United States District Court for the Northern District of Illinois under Illinois law pursuant to theories of strict liability in tort, negligence, and abnormally dangerous activities. The district court granted summary judgment in favor of BIC. Herein, plaintiff does not appeal with respect to his theory of abnormally dangerous activities but does appeal from the grant of summary judgment against him with respect to the theories of strict liability and negligence. In so doing, plaintiff asserts that the BIC lighter was unreasonably dangerous because it did not include enhanced child-resistant features and also because it did not provide adequate warnings. Although the lighter Cori used bore a warning label stating: “KEEP OUT OF REACH OF CHILDREN,” plaintiff claims that that warning was inadequate, since it did not warn of the special danger to children in the three to five year age range, children who, even when warned about the dangers of fire and instructed not to play with matches or lighters, cannot be expected to have the self-control to heed such warnings and instructions.

For the purposes of its summary judgment motion, BIC, in the court below, conceded that it was foreseeable as of the date of the fire that a child of Cori’s age might obtain and operate a lighter and that, as of that date, it was feasible to design and manufacture a lighter with enhanced child-resistant features. In fact, since the spring of 1992, BIC has marketed a lighter with child-resistant features. The lighter has an “over-and-up” design in which, in addition to the roll-and-press operation of the standard lighter, in which the user slides his or her thumb down the spark wheel and then presses down on the lever underneath to release butane and ignite the gas, the user also has to move a safety latch beneath the lever over and then up. That safety latch automatically returns to the locked position after each use. The BIC lighter, which is so designed, resulted from a BIC project to make its lighters more child-resistant which began in 1985.

II

In granting summary judgment in favor of defendants on the strict liability in tort claim, the court below applied, pursuant to applicable Illinois law, the consumer-contemplation test, under which, in order for a product to be unreasonably dangerous and for the manufacturer to be subject to strict liability, the product must be “ ‘dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ ” First National Bank of Dwight v. Regent Sports Corp., 803 F.2d 1431, 1436 (7th Cir.1986) (quoting Restatement (Second) of Torts § 402A, comment i (1964)). In that context, the district court posed the question of whether BIC owed plaintiff a duty to manufacture its lighters with child-proof devices, a question which the district court characterized as one of law for the court to decide. Answering the question, the court concluded that, as a matter of law, the BIC lighter was not unreasonably dangerous because of lack of child-resistant features or because of inadequacy of warning and granted summary judgment to BIC with respect to the strict liability claim. The district court also determined that the lighter performed in the manner expected of a lighter and that adults, the ordinary purchasers, are capable of contemplating the danger of the lighter’s characteristics. The district court further concluded that the potential dangers posed by BIC’s lighters were obvious and that that very obviousness of danger puts the user on notice. Cf. Killeen v. Harmon Grain Products, Inc., 11 Mass. App.Ct. 20, 413 N.E.2d 767 (1980) (manufacturer of cinnamon-flavored toothpicks not liable for injuries sustained by ten-year old girl who fell face down while sucking *1338on one of defendant’s toothpicks, since toothpicks are not unreasonably dangerous, in part because the very obviousness of their danger puts the user on notice). Accordingly, the court below took the position that not only was the warning on the lighter adequate, but also that BIC had no duty to warn because its lighters were not unreasonably dangerous and any danger which they posed was obvious. Further, the district court noted that had the warning on the lighter been heeded, the lighter could have been used safely. Thus, in effect, any failure to warn would have lacked proximate cause and any additional warnings could not have been expected to have prevented the accident, since, by their own testimony, the adults in the Smith/Todd household knew of and warned their children about the dangers of playing with lighters and Cori understood those dangers. The court inferred that the adult Todds and the adult Smiths understood the potential dangers of children playing with lighters.

The district court expressed the above summarized views in the course of granting summary judgment upon plaintiffs strict liability theory and then utilized the same lack of duty approach in awarding BIC summary judgment upon plaintiffs negligence claim.

Ill

We review de novo a district court’s grant of summary judgment. La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 905 (7th Cir.1990). “Summary judgment is appropriate only if, drawing all reasonable inferences in favor of the nonmoving party, we conclude that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir.1992).

Under Illinois law, in order to prevail upon his strict liability in tort claim, plaintiff must show that his “injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it [the product] left the manufacturer’s control.” Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, 188 (1965). Plaintiff easily meets his burden as to the first and third of those three elements. It is the second element which caused plaintiff to fail in the court below. A product may be defective in the way which makes it unreasonably dangerous for any of the following reasons: 1) a manufacturing flaw, 2) a failure of the manufacturer to adequately warn of a risk related to the way the product was designed, or 3) a defective design. W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 99, at 695 (5th ed. 1984). In the within ease, the plaintiff alleges that the BIC lighter is unreasonably dangerous by reason of inadequacy of the warning and by reason of a defective design, namely the lack of child-resistant features. In Lamkin v. Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 570, 563 N.E.2d 449, 457 (1990), Illinois’ highest court enunciated the ways in which a plaintiff may show the unreasonably dangerous condition of a product by reason of defective design. In Lamkin, that court has written:

A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.

Id. (emphasis added) (citations omitted). In the proceedings below, the district court, in determining that the BIC lighter was not unreasonably dangerous because of defective design, utilized only the first way, the consumer-contemplation test. In so doing, the district court failed to apply alternatively the risk-utility test.

*1339BIC argues that where a mechanism is simple and the danger is obvious, only the consumer-contemplation test is applicable under Illinois law. However, the risk-utility test — and the extent of its applicability — is now well established in Illinois law. Faucett v. Ingersoll-Rand Min. & Machinery Co., 960 F.2d 653, 655 (7th Cir. 1992). “[T]he consumer-contemplation test is inadequate as a basis for impugning the design of products with obvious dangers,” although it is well-suited to “impugn the design of products with latent and unknowable risks where the benefits already outweigh the danger-in-fact.” Keeton et al., supra, § 99, at 702. Thus, in effect, in a case like this one, the consumer-contemplation test is inadequate because, for one thing, under it, “a victim could never recover for harm suffered as a result of a design hazard that was open or obvious,” even if the product “could easily have been designed safer without great expense or effect on the benefits or functions to be served by the product.” Id. at 698.

BIC relies upon Scoby v. Vulcan-Hart Corp., 211 Ill.App.3d 106, 155 Ill.Dec. 536, 569 N.E.2d 1147 (4 Dist.1991) in support of BIC’s contention that when a mechanism is simple and the danger is obvious, only the consumer-contemplation test is to be applied. Id. 155 Ill.Dec. at 540, 569 N.E.2d at 1151. In Scoby, a restaurant employee was injured when he slipped in the kitchen and his arm became submerged in a deep-fat fryer. Illinois’ intermediate appellate court, in affirming the trial court’s grant of summary judgment in favor of the manufacturer, applied only the consumer-contemplation test, and in so doing, BIC asserts, recognized that the parties had stipulated that safer alternative designs available at the time of the accident could have prevented the accident. BIC is mistaken. The parties in Scoby only stipulated that fryer covers were available and sold by the manufacturer and that if a cover had been on the fryer at the time of the accident, the employee’s hand would not have come into contact with the oil in the fryer. Id. at 536-37, 569 N.E.2d at 1148-49. In fact, the covers were “not designed, manufactured, marketed, or sold by [the manufacturer] as ... safety device[s].” Id. at 537, 569 N.E.2d at 1149. Thus, there was no stipulation that safer alternative designs were available. Indeed, Illinois’ intermediate appellate court seemingly suggested that safer alternative designs were not possible, stating: “Clearly, at times, efficient kitchen operation would require keeping a top off of the fryer.” Id.. at 540, 569 N.E.2d at 1151.

The lack of a safer alternative design is an important factor in determining whether the risk-utility test is applicable because “[t]he risk/benefit analysis classifies a product as unreasonably dangerous when the evidence establishes that the product “could have been designed to prevent a foreseeable harm without hindering its function or increasing its price.’ ” Fau-cett, 960 F.2d at 655 (quoting Palmer v. Avco Distributing Corp., 82 Ill.2d 211, 45 Ill.Dec. 377, 382, 412 N.E.2d 959, 964 (1980)). In Lamkin, in which plaintiffs contended that a window screen was unreasonably dangerous for not being childproof, the Supreme Court of Illinois reversed the lower court’s denial of summary judgment because plaintiffs-appellees had failed to provide evidence that the window screen’s design could have been altered to create a safer screen. Lamkin, 150 Ill.Dec. at 571, 563 N.E.2d at 458.

In Scoby, the appellate court wrote that “[sjomewhere, a line must be drawn beyond which the danger-utility test cannot be applied,” and then proceeded itself to draw that line in that case, citing to the obviousness of the danger and the simplicity of the mechanism of the deep-fat fryer. Perhaps, then, the line may be drawn where the mechanism is so simple and the danger is so obvious that no other safer alternative design is possible, or at least where there is no evidence of such, as apparently was the case in Scoby and in Lamkin. Such is not the case here, however. In the within case, BIC conceded in the court below in the context of its summary judgment motion that a safer alternative design was feasible; and in fact, BIC has marketed such a child-resistant design since the spring of 1992. In this case, *1340then, in determining whether the BIC lighter was unreasonably dangerous, the risk-utility test should be applied, particularly since the consumer-contemplation test is inadequate as a basis for impugning the design of products with obvious dangers. Furthermore, “[u]nder Illinois law, ‘[w]hether a product is unreasonably dangerous for failure to incorporate safety devices is ordinarily a question of fact which the jury should resolve.’ ” Faucett, 960 F.2d at 655 (quoting Doser v. Savage Manufacturing and Sales, Inc., 142 Ill.2d 176, 154 Ill.Dec. 593, 589-99, 568 N.E.2d 814, 819-20 (1990)). Given the concession of BIC that there was a feasible safer alternative design, there exists in this case a disputed issue of material fact regarding the weighing of the risks and benefits of the BIC lighter’s design, which makes the grant of summary judgment inappropriate.

Plaintiff asserts that the district court’s grant of summary judgment in favor of BIC was inappropriate not only because the district court failed to apply the risk-utility test, but also because the district court misapplied the consumer-contemplation test. In that connection, plaintiff argues that the latter test should have been applied from the point of view of all foreseeable users, including children, rather than only from the point of view of ordinary purchasers, namely adults.

Under the consumer-contemplation test, in order to find a product unreasonably dangerous and the manufacturer thereby strictly liable, the product must be “ ‘dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ ” First National Bank of Dwight v. Regent Sports Corp., 803 F.2d 1431, 1436 (7th Cir.1986) (quoting Restatement (Second) of Torts § 402A, comment i (1964)). In order to expand the scope of protection to non-purchasers, “many courts have substituted ‘ordinary user’ or ‘foreseeable user’ for ‘ordinary purchaser’ thereby making it possible for victims to recover if the hazard was of a kind that would not have been contemplated by reasonably foreseeable users even though it was one that would have been contemplated by the ordinary purchaser-consumer.” Keeton et al., supra, § 99, at 698. Illinois law applies the consumer-contemplation test from the point of view of foreseeable users, defining an unreasonably dangerous condition as “one which is unsafe with respect to a foreseeable use, or one which is ‘objectively reasonable’ to expect, a determination generally left to the jury.” Pierce v. Hobart Corp., 159 Ill.App.3d 31, 111 Ill.Dec. 110, 112, 512 N.E.2d 14, 16 (1 Dist.1987) (quoting Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1, 5 (1974)). In Winnett, the Supreme Court of Illinois ruled that “the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used.” 310 N.E.2d at 4. In this case, BIC has conceded, for the purpose of the summary judgment motion, that it was foreseeable that a child of the approximate age of Cori Smith would obtain and operate a BIC lighter. Therefore, children in Cori Smith’s age range would appear to be foreseeable users and should at least be considered in applying the consumer-contemplation test. The district court made its analysis under that test only with regard to adults, the ordinary purchasers, and found that adults are capable of contemplating the danger of the lighter’s characteristics. The district court should have permitted a jury to consider children, as possible foreseeable users, under the consumer-contemplation test.

The district court also concluded as a matter of law that adults are capable of contemplating all of the dangers that the lighter presents. Given plaintiff’s claim and support in the record for the proposition that children in the three to five year old age range do not have the self-control, even when warned about the dangers of fire and instructed not to play with matches or lighters, to heed such warnings, *1341and the claim that adults are not aware of this lack of self-control, there is at least a disputed issue of material fact as to whether adults are aware of the full extent of the danger which the lighter presents. Thus, the district court should not have ruled with regard to that factual question as a matter of law. Rather, the district court should have permitted a jury to consider that question.

In disposing of plaintiffs claim that the BIC lighter was defective by reason of the inadequacy of the warning, the district court concluded that BIC in fact had no duty to warn at all, as its lighters were not unreasonably dangerous and as any danger which they did pose was obvious. See Taylor v. Gerry’s Ridgewood, Inc., 141 Ill. App.3d 780, 95 Ill.Dec. 895, 899, 490 N.E.2d 987, 991 (3 Dist.1986) (“... there is no duty to warn where the product is not defectively designed or manufactured and where the possibility of injury results from a common propensity of the product which is open and obvious.”) As there is a disputed issue of material fact as to whether the BIC lighter was unreasonably dangerous and as to whether all the dangers posed by the lighter were obvious, the district court should not have decided as a matter of law that BIC had no duty to warn.

BIC, however, did provide the warning, “KEEP OUT OF REACH OF CHILDREN.” The question arises as to whether that warning was adequate. The district court determined that it was, reasoning that had the warning on the lighter been heeded, the lighter could have been used safely. In any event, by the determination of the court below, any possible inadequacy of the warning was not a proximate cause of plaintiffs injury. That was so, reasoned the district court, because any additional warnings may not have prevented the accident in this case, since the adults in the Smith/Todd household understood the potential dangers of children playing with lighters and still left the BIC lighter in a place where Cori could easily obtain it. “Where a warning has been communicated, a manufacturer is entitled to assume that the user will read and follow the furnished instructions.” Taylor, 95 Ill.Dec. at 900, 490 N.E.2d at 992. However, the warning must still be adequate. “Warnings may be inadequate if they: (1) do not specify the risk presented by the product; (2) are inconsistent with how a product would be used; (3) do not provide the reason for the warnings; or (4) do not reach foreseeable users.” Collins v. Sunnyside Corp., 146 Ill.App.3d 78, 100 Ill.Dec. 90, 92, 496 N.E.2d 1155, 1157 (1 Dist.1986). “The adequacy of the warning is usually a jury question.” Id. Plaintiff argues that the statement, “KEEP OUT OF REACH OF CHILDREN,” does not specify the risks presented by the lighter, namely, that young children may be able to operate the lighter and the special danger that children in the three to five year old range, even when warned about the dangers of fire and instructed not to play with matches or lighters, do not have the self-control to heed such warnings. Plaintiff also contends that the statement does not provide the reasons for the warning. However, “the defendant must have actual or constructive knowledge of the danger before a duty to warn arises.” Hamischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill.App.3d 444, 165 Ill.Dec. 770, 777, 585 N.E.2d 166, 173 (5 Dist.1991). “A manufacturer is held to the degree of knowledge and skill of experts in the design of its products.” Collins v. Interroyal Corp., 126 Ill.App.3d 244, 81 Ill.Dec. 389, 398, 466 N.E.2d 1191, 1200 (1 Dist.1984). Plaintiff claims that BIC, as the manufacturer of the lighter, knew or should have known of the special danger that children in the three to five year old range, although warned not to, nevertheless often will play with lighters. Plaintiff also asserts that as the ordinary adult is not fully aware of such danger, BIC had a duty to warn of it. See, e.g., Sunnyside, 100 Ill.Dec. at 92, 496 N.E.2d at 1157 (“The purpose of a warning is to apprise a person of a danger of which he is not aware, and thus enable the person to protect himself against it.”) Furthermore, if a jury were to find that the warning was inadequate, the inadequacy may be a proximate cause of the injury in this case, as, had BIC warned of the special danger *1342regarding children in the three to five year old range, the adults in the Smith/Todd household may have been more careful concerning where they left the lighter. Thus, as there are disputed issues of material fact as to the obviousness of the danger that children in the three to five year old age range will play with lighters though warned not to so play and as to the adequacy of the warning which BIC provided, the district court should not have granted summary judgment in favor of BIC with respect to those issues.

IV

In a products liability context, a manufacturer is under a nondelegable duty to produce a product which is reasonably safe. Coney v. J.L.G. Industries, Inc., 97 Ill.2d 104, 73 Ill.Dec. 337, 343, 454 N.E.2d 197, 203 (1983). “Thus, the breach of duty is the same in both a negligence and strict products liability claim, but the key distinction between a negligence claim and a strict liability claim lies in the fault concept. In a negligence claim, the focus is on the fault of the defendant. In a strict products claim, the focus is on the condition of the product, regardless of fault.” Phillips v. U.S. Waco Corp., 163 Ill.App.3d 410, 114 Ill.Dec. 515, 519, 516 N.E.2d 670, 674 (1 Dist.1987). Since the district court determined under its strict liability analysis that BIC did not have a duty to manufacture its lighters with child-resistant features or to give additional warnings, it also granted summary judgment to BIC as to the negligence claims. As we now conclude that there are disputed issues of material fact as to BIC’s duty to manufacture its lighters with child-resistant features and as to the adequacy of the warning, we hold that grant of summary judgment on the negligence claims was error.

V

Given BIC’s concession that a safe alternative to its lighter, with child-resistant features, was feasible, the failure of the district court to apply the risk-utility test was error. Under that test, there are disputed issues of material fact as to the weighing of the risks and benefits of the BIC lighter. Further, the district court did not fully correctly apply the consumer-contemplation test, since it did not include children as foreseeable users in its analysis. Under the consumer-contemplation test, there is a disputed issue of material fact as to whether adults fully contemplate all the dangers presented by the BIC lighter. In addition, there are other disputed issues of material fact as to the adequacy of the warning which BIC provided. For the foregoing reasons, the district court should not have granted summary judgment in favor of BIC in connection with plaintiff’s strict liability or negligence claims. The decision of the lower court is therefore Reversed and this case is Remanded for further proceedings consistent with this opinion.