Flock v. Scripto-Tokai Corp.

• Decision Date: 03 February 2003
• Docket Number: No. 02-20098.,02-20098.
• Parties: Bryan FLOCK, Individually and as next friend, Natural Father, and as Heir of Son, Brandon Flock (Deceased); Omy Ray Munsinger, Individually, and as Natural Father, and as an Heir of Shonda Munsinger (Deceased); Patricia Munsinger Harris, Individually, and as Natural Mother, and as an heir of Shonda Munsinger (Deceased); Mickey Britt, Plaintiffs-Appellants, v. SCRIPTO-TOKAI CORPORATION; Tokai Corporation; JMP Mexico SA de CV, also known as JMP Mexico SAdeCV; Tokai de Mexico SA de CV, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

319 F.3d 231

Bryan FLOCK, Individually and as next friend, Natural Father, and as Heir of Son, Brandon Flock (Deceased); Omy Ray Munsinger, Individually, and as Natural Father, and as an Heir of Shonda Munsinger (Deceased); Patricia Munsinger Harris, Individually, and as Natural Mother, and as an heir of Shonda Munsinger (Deceased); Mickey Britt, Plaintiffs-Appellants, v. SCRIPTO-TOKAI CORPORATION; Tokai Corporation; JMP Mexico SA de CV, also known as JMP Mexico SAdeCV; Tokai de Mexico SA de CV, Defendants-Appellees.

No. 02-20098.

United States Court of Appeals, Fifth Circuit.

February 3, 2003.

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Barbara Arthur Radnofsky (argued), Sandra Garza Rodriguez, Jennifer H. Davidow, Vinson & Elkins, Houston, TX, for Plaintiffs-Appellants.

Brendan K. McBride (argued), David McDonald Prichard, Prichard, Hawkins & Young, San Antonio, TX, Linda C. Broocks, Ogden, Gibson, White & Broocks, Houston, TX, Mark K. Suzumoto, VanEtten Suzumoto, Santa Monica, CA, for Defendants-Appellees.

Carlos Alberto Villarreal, Hermansen, McKibben, Woolsey & Villarreal, Corpus Christi, TX, for Bic Pen Corp.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs, Bryan Flock, Omy Ray Munsinger, Patricia Harris Munsinger, and Mickey Britt, appeal the district court's judgment granting summary judgment to defendants, Scripto-Tokai Corporation ("Scripto") and Tokai Corporation ("Tokai") (collectively "Scripto-Tokai"). The district court concluded that the plaintiffs could not establish that a defect in an Aim 'n Flame utility lighter designed, manufactured, and distributed by Scripto-Tokai caused the fire that destroyed a trailer and resulted in the deaths of Shonda Munsinger ("Shonda") and Brandon Flock ("Brandon"). We disagree and conclude that plaintiffs presented sufficient summary judgment evidence to create a genuine issue of material fact on whether the Aim 'n Flame caused the fire that resulted in Shonda's and Brandon's deaths. We therefore vacate the district court's judgment in part and remand for further proceedings.

I.

In October 1999, Shonda and her four year-old son, Brandon, died of asphyxia after the trailer they shared with Kenneth Keith Mann, Shonda's boyfriend, in Conroe, Texas, caught fire. That morning, Mann left for work at 7:30 a.m. Shonda was still sleeping in the master bedroom on the north end of the trailer, but as he left, Mann heard Brandon awake and playing in his room located on the south end of the trailer. At approximately 9:00 a.m., neighbors noticed fire blazing out of the windows at the south end of the trailer and called for help. Firefighters arrived shortly thereafter. After bringing the blaze under control, the firefighters found Shonda and Brandon dead in the master bedroom, which remained untouched by the fire.

Montgomery County fire investigators determined that the fire started in Brandon's bedroom. The investigators found the metal tip of an Aim 'n Flame utility lighter in the room. The plastic arm of the Aim 'n Flame was melted in the fire making it impossible to determine when it was manufactured. The Aim 'n Flame was the only incendiary device in this room, though matches and cigarette lighters were found elsewhere in the trailer. Considering the point of origin of the fire and the proximity of the Aim 'n Flame thereto, the investigators concluded that Brandon started the fire by playing with the lighter in his bedroom.

Brandon's father, Bryan Flock, Shonda's parents, Omy Munsinger and Patricia Harris, and Mickey Britt, the owner of the trailer, filed suit against Scripto-Tokai in federal court on the basis of diversity jurisdiction. They sought compensatory and exemplary damages on the basis of products liability, negligence, breach of express and implied warranties, misrepresentation, and violations of the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.46 et seq. In response to their complaint, the defendants filed a third-party complaint against Mann alleging he had a duty to install and maintain smoke detectors in the trailer.

Scripto-Tokai moved for summary judgment seeking dismissal of all of the plaintiffs' claims. The magistrate judge, to whom the case was referred for pre-trial management, recommended that summary judgment be granted for some of the plaintiffs' claims but denied as to others. The district court adopted this recommendation to the extent that the magistrate recommended dismissing the plaintiffs' claims but issued its own opinion granting summary judgment for the remaining claims. The district court concluded that "assuming there was a defect in the lighter they [plaintiffs] cannot establish that the particular defect was connected to the fire." The plaintiffs have lodged a timely appeal.

II.

We review the district court's ruling on the defendants' Motion for Summary Judgment de novo, applying the same legal standard as the district court. Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir.2002). A summary judgment is only appropriate when, viewing the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Canova v. Shell Pipeline Co., 290 F.3d 753, 755 (5th Cir.2002). In determining whether there is a dispute as to any material fact, we consider all of the evidence in the record, but we do not make credibility determinations or weigh evidence. Ramirez v. City of San Antonio, 312 F.3d at 181. Instead, we draw all reasonable inferences in favor of the nonmoving party. Id.

Plaintiffs' primary claim is that Scripto-Tokai are liable under the theory of products liability based on the defective design of the defendants' Aim 'n Flame utility lighter. In Texas, Texas Civil Practice & Remedy Code § 82.005 and Section 402A of the Restatement (Second) of Torts govern products liability claims for design defects.¹ Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998); American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997). Under this schema, the plaintiff must show that: (1) because of its defective design the product is unreasonably dangerous, (2) a safer alternative design exists, and (3) the defective design was the producing cause of the plaintiffs' injuries.

III.

Because the focus of the district court's ruling was the lack of a causal link between the defendants' lighter and the fire, we begin with a consideration of this issue.

Under Texas law, causation generally is a question of fact for the jury. Gutierrez v. Excel Corp., 106 F.3d 683, 687 (5th Cir.1997). "Proof of causation requires more than conjecture or guess." Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir.1997). However, it need not be supported by direct evidence. Tompkins v. Cyr, 202 F.3d 770, 782 (5th Cir.2000). Circumstantial evidence and reasonable inferences therefrom may form a sufficient basis for a finding of causation. Id. Establishing causation requires facts sufficient for a jury to reasonably infer that the defendants' acts were a substantial factor in bringing about the injury. Id. Nevertheless, when circumstances are consistent with either of two factual scenarios and one is no more probable than the other, neither can be inferred. Summers v. Fort Crockett Hotel, 902 S.W.2d 20, 25 (Tex.App. Houston 1st Dist.1995) (citing Litton Industrial Products Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984); Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex.App. Houston 1st Dist.1993)).

In their Motion for Summary Judgment, Scripto-Tokai argued that, because cigarette lighters and matches were found in other areas of the trailer, it was just as likely that the fire could have been started with these incendiary devices rather than the Aim 'n Flame. However, Scripto-Tokai overlook the inference that can be drawn from the fact that the Aim 'n Flame was the only incendiary device that was found in Brandon's room, where the fire started. The Official Fire Report of the Montgomery County Fire Marshall's Office and its supplements (the "Fire Report") strongly support plaintiffs' contention that the fire was started by Brandon using an Aim 'n Flame.

The Fire Report contains the findings of Investigator Darren Hess. Investigator Hess found no evidence that a wire, gas line, or weather was the source of the fire. Hess determined that the fire began in the south bedroom, Brandon's bedroom, near the bunk bed. Investigator Hess noted in the report that remains of a "BBQ/fireplace propane lighter" were recovered from the area of origin. Investigator Williams, who investigated the scene of the fire with Hess, likewise noted that the remains of a "disposable lighter, of the type normally used to light fireplaces and BBQ pits (red plastic handle and squared off metal tip)" were found in the room.² Without being informed that the metal tip of an Aim 'n Flame was found in Brandon's bedroom, Mann informed Investigator Williams that he and Shonda had an Aim 'n Flame in the trailer which they kept in the master bedroom on top of the TV. Mann led Investigator Williams to the location where he believed the lighter was left the morning of the fire, but it was no longer there.

Scripto-Tokai surmise other possible scenarios which could have caused the fire, e.g. Brandon took a lighter from a drawer in the master bedroom, started the fire, and then returned the lighter to the drawer, or Brandon started the fire with matches which were destroyed in the fire. They contend that these hypothetical scenarios were "as likely" as that contained in the fire report. We do not agree. The only evidence of an ignition source found in Brandon's bedroom, where the fire originated, was the remains of the Aim `n Flame lighter. This fact, together with other surrounding...