Bartholic v. Scripto-Tokai Corp.
| Decision Date | 10 January 2000 |
| Docket Number | No. Civ.A. 98 N 681.,Civ.A. 98 N 681. |
| Citation | 140 F.Supp.2d 1098 |
| Parties | Stacy BARTHOLIC, Individually, and as natural mother and next friend of her minor children, Jerred Meskimen and Anthony Meskimen, Plaintiffs, v. SCRIPTO-TOKAI CORPORATION, a Delaware corporation and Richard D. Grimm and Lana Gallas, also known as Lana Gallas-Grimm, Individually, Defendants. |
| Court | U.S. District Court — District of Colorado |
William J. Hansen, McDermott and Hansen, Denver, CO, for plaintiffs.
Robert B. Hunter, James Ernest Hooper, Wheeler, Trigg & Kennedy, PC, Denver, CO, for Scripto-Tokai Corp., defendant.
This is a personal-injury case. Plaintiff Jerred Meskimen was severely injured when his three-year old brother, Plaintiff Anthony Meskimen ("Tony"), lit his crib on fire with an "Aim N Flame" utility lighter which Defendant Scripto-Tokai Corporation ("Scripto") manufactures and distributes. Plaintiff Stacy Bartholic, in her individual capacity and on behalf of her minor children, Jerred and Tony, brings claims against Scripto for: (1) strict products liability; (2) negligence; and (3) violations of the Consumer Product Safety Act, 15 U.S.C.A. §§ 2051-2084 (West 1998). This matter is before the court on Scripto's "Motion for Summary Judgment of Scripto-Tokai Corporation" filed April 21, 1999. Jurisdiction is based on 28 U.S.C.A. § 1332 (West 1993 & Supp.1999).
Scripto manufactures and distributes a multi-purpose butane-fueled utility lighter known as the Aim N Flame.1 (See Scheduling Order, Undisputed Facts ¶¶ 2, 4, 7 [filed July 15, 1998] [hereinafter "Scheduling Order"].) A utility lighter is "a handheld self-igniting, flame producing product that operates on fuel and is used by consumers to ignite items such as candles, fuel for appliances, charcoal, or gas-fired grills, campfires, camp stoves, lanterns fuel-fired appliances or devices or pilot lights." See 63 Fed.Reg. 52394 (1998) (). In 1985, Scripto began marketing the Aim N Flame in the United States. (Scheduling Order, Undisputed Facts ¶ 10.) The Aim N Flame design at issue in this case contains an "on/off" switch, also known as a "safety" switch, and, according to the Aim N Flame's packaging instructions, in order to light the Aim N Flame, the user must slide the safety switch to "on" and then press the ignition trigger. (Mem. Br. in Supp. of Mot. for Summ. J. of Scripto-Tokai Corporation, Ex. 15 [] [filed Apr. 21, 1999] [hereinafter "Def. Scripto's Br."].) The Aim N Flame also contained warnings on its packaging and on the lighter itself which instruct the user to keep and store the Aim N Flame out of reach of children. (Id., Ex. 15 [].)
In April 1996, Stacy Bartholic and her two children, then three-year-old Tony and nineteen-month-old Jerred, were living with Shirley, Gerald, and Janna Apodaca (Bartholic's mother, stepfather, and stepsister, respectively) in a townhouse rented from Defendants Richard and Lana Grimm in Aurora, Colorado.2 Mem. Br. in Opp'n to Mot. for Summ. J. of Scripto-Tokai Corporation, Resp. to Statement of Undisputed Facts ¶¶ 1-3 [filed July 2, 1999] ].) At the time Bartholic moved into the Grimm's townhouse, there was a Scripto Aim N Flame utility lighter stored on top of a water heater located in a utility closet inside the townhouse.
On the morning of April 4, 1996, as she was getting ready for work, Shirley Apodaca heard Jerred stirring in his crib and informed Bartholic that his diaper needed to be changed. Bartholic got up, changed Jerred's diaper, and then returned to the bedroom where she and Tony slept. At the time Bartholic returned to the bedroom, Tony was asleep; however, after Bartholic fell back asleep, Tony woke up and left the bedroom without waking Bartholic. After leaving the bedroom, Tony somehow retrieved the Aim N Flame from atop the water heater in the utility closet and began playing with it in Jerred's bedroom near his crib. As a result of his child-play with the Aim N Flame, Tony started a fire that severely injured Jerred, leaving him with second- and third-degree burns over eighty percent of his body.
On March 31, 1998, plaintiffs filed their amended complaint in this court, asserting claims against Scripto for: (1) strict products liability based on the design of the Aim N Flame and Scripto's inadequate warning regarding its danger; (2) negligence in the design and labeling of the Aim N Flame; and (3) failure to comply with Consumer Product Safety Commission safety standards and reporting requirements, in violation of the Consumer Product Safety Act. (Am. Comp. ¶¶ 42-66 [filed Mar. 31, 1998] [hereinafter "Am. Compl."].) As part of their requested relief, plaintiffs seek to recover punitive damages from Scripto, pursuant to Colo. Rev.Stat. § 13-21-102 (1999). (Id.) Plaintiffs also assert a negligence claim against Richard and Lana Grimm for failure to install smoke detectors in the townhouse. (Id. ¶¶ 67-74.) On April 21, 1999, Scripto moved for summary judgment on all of plaintiffs' claims against it. (Mot. for Summ. J. of Scripto-Tokai Corporation [filed Apr. 21, 1999].) Scripto argues that it is entitled to summary judgment because: (1) there is no evidence that the Aim N Flame was defective or that any alleged defect caused plaintiffs' injuries; (2) there is no evidence that Scripto's warnings regarding the dangers of the Aim N Flame were inadequate or that any additional warnings would have prevented the fire; (3) the Aim N Flame is not subject to the regulations promulgated by the Consumer Products Safety Commission; and (4) there is no evidence to support plaintiffs' claim that Scripto's conduct rose to requisite level of culpability to sustain an award of punitive damages under Colo.Rev.Stat. § 13-21-102. (Def. Scripto's Br. at 5-20.)
Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the ... moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2554. "Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter." Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S.Ct. at 2554). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553; see Fed.R.Civ.P. 56(e). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985). The factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 [10th Cir.1990]).
Because this is a diversity case and the injury happened in Colorado, Colorado law governs plaintiffs' state-law tort claims, Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In determining the extent of a manufacturer's liability for a defective product, Colorado adheres to the doctrine of strict products liability as set forth in section 402A of the Restatement (Second) of Torts. Camacho v. Honda Motor Co., 741 P.2d 1240, 1244 (Colo.1987) (citations omitted); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983, 987 (1975) (). Section 402A provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such...
To continue reading
Request your trial
-
Colon ex rel. Molina v. Bic Usa, Inc.
...on the part of the manufacturer to make lighters child-resistant. See, e.g., Campbell, 586 N.Y.S.2d at 873; Bartholic v. Scripto-Tokai Corp., 140 F.Supp.2d 1098, 1116 (D.Colo.2000). However, plaintiffs offer no evidence that BIC should have been able to foresee that a child could remove the......
-
Calles v. Scripto-Tokai Corp.
...utility lighters. It was not until 1999 that CPSC required safety devices on utility lighters. See, e.g., Bartholic v. Scripto-Tokai Corp., 140 F.Supp.2d 1098, 1117 (D.Colo.2000). CPSC exempted utility lighters because it was concerned about "flashbacks" (the build up of gas and resultant s......
-
Hittle v. Scripto-Tokai Corp.
...is a cigarette lighter or a utility lighter. In accordance with this view was the District of Colorado in Bartholic v. Scripto-Tokai Corp., 140 F.Supp.2d 1098, 1116 (D.Colo.2000). The Bartholic court, in assigning a duty to one of the instant defendants to make the Aim `N Flame child-resist......
-
Langkamp v. Mayes Emergency Servs. Trust Auth., Case No. 16-CV-0676-CVE-FHM
...parties as persuasive authorities to determine how the Oklahoma Supreme Court would decide the issue. See Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, 1108 (D. Colo. 2000) (citing Heller Int'l Corp. v. Sharp, 974 F.2d 850, 858 (7th Cir. 1992)). MESTA argues that Langkamp II precl......
-
Design defects.
...base"). Colorado courts appear now to have interpreted Ortho as joining the Barker camp. See, e.g., Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098 (D. Colo. (264.) See, e.g., Halliday v. Sturm, Ruger & Co., 792 A.2d 1145, 1153 (Md. 2002) (consumer expectations test applies to de......
-
What's in the Package: Food, Beverage, and Dietary Supplement Law and Litigation—part I
...and Consumer Protection Act of 2004, codified in relevant part at 21 USC §§ 321(qq) and 343(w). [86] Bartholic v. Scripto-Tokai Corp., 140 F.Supp.2d 1098, 1115 (D.Colo. 2000); CJI 14:17. [87] Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo. 1992), superseded by statute on other grou......
-
Chapter 4 - § 4.1 • BACKGROUND ON NEGLIGENCE CLAIMS
...1027, 1032 (Colo. App. 1985). [2] Perlmutter v. U.S. Gypsum Co., 54 F.3d 659, 663 (10th Cir. 1995); Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, 1117 (D. Colo. 2000); Mile Hi Concrete, Inc. v. Matz, 842 P.2d 198, 205 (Colo. 1992), superseded by statute on other grounds as stated ......
-
Chapter 3 - § 3.2 • ELEMENTS OF STRICT LIABILITY
...defining what entity is a manufacturer and thus amenable to suit are addressed in § 2.3. 15 See Bartholic v. Scripto-Tokai Corp., 140 F. Supp. 2d 1098, 1106 (D. Colo. 2000); Barton v. Adams Rental, Inc., 938 P.2d 532, 536-37 (Colo. 1997); Union Supply Co. v. Pust, 583 P.2d 276, 282-83 (Colo......