Hernandez v. Tokai Corp.

• Decision Date: 26 August 1999
• Docket Number: SCRIPTO-TOKAI
• Citation: 2 S.W.3d 251
• Parties: (Tex. 1999) GLORIA MARIE HERNANDEZ, AS NEXT FRIEND OF RUBEN RICHARD EMETERIO, A MINOR, APPELLANT v. TOKAI CORPORATION ANDCORPORATION, APPELLEES NO. 98-0857
• Court: Texas Supreme Court

Page 251

2 S.W.3d 251 (Tex. 1999)

GLORIA MARIE HERNANDEZ, AS NEXT FRIEND OF RUBEN RICHARD EMETERIO, A MINOR, APPELLANT v. TOKAI CORPORATION AND SCRIPTO-TOKAI CORPORATION, APPELLEES

NO. 98-0857

IN THE SUPREME COURT OF TEXAS

Argued on December 9, 1998

Decided Aug.26, 1999

ON CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

JUSTICE HECHT delivered the opinion of the Court.

The United States Court of Appeals for the Fifth Circuit has certified to us the following question:

Under the Texas Products Liability Act of 1993,¹ 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

In the context of this case, the question, more specifically, is whether a disposable butane lighter, intended only for adult use, can be found to be defectively designed if it does not have a child-resistant mechanism that would have prevented or substantially reduced the risk of injury from a child's foreseeable misuse of the lighter. As usual, the Circuit has disclaimed "any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of the question certified."³ Thus advised, we answer, in the factual setting presented, that:

* none of the conditions stated in the question precludes imposition of liability, but neither are they together enough to establish liability;

* proof of an available "safer alternative design", as defined by statute, is necessary but not sufficient for liability; the claimant must also show that the product was unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use; and

* in determining whether a product is unreasonably dangerous, the product's utility to its intended market must be balanced against foreseeable risks associated with use by its intended users.

Our answer requires the following explanation and elaboration.

I

The factual circumstances in which the certified question comes to us are these.

Rita Emeterio bought disposable butane lighters for use at her bar. Her daughter, Gloria Hernandez, took lighters from the bar from time to time for her personal use. Emeterio and Hernandez both knew that it was dangerous for children to play with lighters. They also knew that some lighters were made with child-resistant mechanisms, but Emeterio chose not to buy them. On April 4, 1995, Hernandez's five-year-old daughter, Daphne, took a lighter from her mother's purse on the top shelf of a closet in a bedroom in her grandparents' home and started a fire in the room that severely burned her two-year-old brother, Ruben.

Hernandez, on Ruben's behalf, sued the manufacturers and distributors of the lighter, Tokai Corporation and Scripto-Tokai Corporation (collectively, "Tokai"), in the United States District Court for the Western District of Texas, San Antonio Division. Asserting strict liability and negligence claims, Hernandez alleged that the lighter was defectively designed and unreasonably dangerous because it did not have a child-resistant safety mechanism that would have prevented or substantially reduced the likelihood that a child could have used it to start a fire. Tokai does not dispute that mechanisms for making disposable lighters child-resistant were available when the lighter Daphne used was designed and marketed, or that such mechanisms can be incorporated into lighters at nominal cost.

Tokai moved for summary judgment on the grounds that a disposable lighter is a simple household tool intended for adult use only, and a manufacturer has no duty to incorporate child-resistant features into a lighter's design to protect unintended users - children - from obvious and inherent dangers. Tokai also noted that adequate warnings against access by children were provided with its lighters, even though that danger was obvious and commonly known. In response to Tokai's motion, Hernandez argued that, because an alternative design existed at the time the lighter at issue was manufactured and distributed that would have made the lighter safer in the hands of children, it remained for the jury to decide whether the lighter was defective under Texas' common-law risk-utility test.

The federal district court granted summary judgment for Tokai, and Hernandez appealed.

II

A

Although the certified question references a 1993 Act adopting several statutes pertaining to products liability,⁴ the parties confine their arguments to the effect of a portion of one such statute, section 82.005(a) and (b) of the Texas Civil Practice and Remedies Code, applicable to cases like this one that accrued on or after September 1, 1993. We therefore limit our discussion to those provisions, which are as follows:

(a) In a products liability action in which a claimant alleges a design defect, the burden is on the claimant to prove by a preponderance of the evidence that:

(1) there was a safer alternative design; and

(2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery.

(b) In this section, "safer alternative design" means a product design other than the one actually used that in reasonable probability:

(1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and

(2) was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

Section 82.005 does not attempt to state all the elements of a product liability action for design defect. It does not, for example, define design defect or negate the common law requirement that such a defect render the product unreasonably dangerous. Additionally, the statute was not intended to,⁵ and does not, supplant the risk-utility analysis Texas has for years employed in determining whether a defectively designed product is unreasonably dangerous.⁶ That analysis involves consideration of several factors, which we listed in American Tobacco Co. v. Grinnell as including:

(1) the utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use; (2) the availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive; (3) the manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs; (4) the user's anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions, and (5) the expectations of the ordinary consumer.⁷

Rather, section 82.005 prescribes two elements - a safer alternative design and producing cause - that must be proved, but are not alone sufficient, to establish liability for a defectively designed product. Section 82.005 reflects the trend in our common-law jurisprudence of elevating the availability of a safer alternative design from a factor to be considered in the risk-utility analysis to a requisite element of a cause of action for defective design.⁸ The Restatement (Third) of Torts: Products Liability also makes a reasonable alternative design a prerequisite to design-defect liability,⁹ as does the law in most jurisdictions.¹⁰

Whether a defective-design action can be maintained under the circumstances posed in the certified question does not, therefore, depend entirely on section 82.005. A claimant must not only meet the proof requirements of the statute but must show, under the common law, that the product was defectively designed so as to be unreasonably dangerous, taking into consideration the utility of the product and the risk involved in its use.¹¹ To respond to the certified question, we must consider not only the requirements of section 82.005 but those of the common law as well.

B

The certified question inquires whether a defective-design action can be maintained under several conditions.

1. A child was injured not by his own use of the product but by another child's use. In Darryl v. Ford Motor Co., we held that a bystander injured by another's use of a defective product could recover against the product manufacturer.¹² In that case plaintiffs were injured when their car was struck from behind by a truck with defective brakes. In some situations the relationship between the product defect and the plaintiff's injury might be too attenuated to allow recovery,¹³ but that does not appear to be the case here. Thus, Ruben is not precluded from recovering against Tokai because he was burned as a result of his sister's use of the lighter and not by his own use.

2. The injury was caused by a child's misuse of the product, the risk of which was obvious to the product manufacturer. Implicit in the question is that it was also obvious to the manufacturer that an intended adult user would allow a child access to the product. Foreseeability of risk of harm is a requirement for liability for a defectively designed product; a product need not be designed to reduce or avoid unforeseeable risks of harm.¹⁴ Risk must be assessed in light of both the gravity and the likelihood of injury from a product's use.¹⁵ But the fact that the foreseeable risk of harm is due to a misuse of the product, rather than an intended use, is not an absolute bar to...