Bondie v. Bic Corp.

• Decision Date: 01 June 1990
• Docket Number: No. 88-CV-73064-DT.,88-CV-73064-DT.
• Parties: Dawn BONDIE, Individually and as Next Friend of Nicholas Bondie, Amanda Bondie, Nathan Bondie and Elizabeth Bondie, Plaintiffs, v. BIC CORPORATION, a foreign corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

739 F. Supp. 346

Dawn BONDIE, Individually and as Next Friend of Nicholas Bondie, Amanda Bondie, Nathan Bondie and Elizabeth Bondie, Plaintiffs, v. BIC CORPORATION, a foreign corporation, Defendant.

No. 88-CV-73064-DT.

United States District Court, E.D. Michigan, S.D.

June 1, 1990.

Philip Vestevich, Vestevich, Dritsas, Bloomfield Hills, Mich., for plaintiffs.

Thomas M. Peters, Vandeveer, Garzia, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

FEIKENS, District Judge.

I. Background

This product liability action results from injuries sustained by members of the Bondie family when the family home burned. The fire was started when three-year-old Amanda Bondie played, unsupervised, with a Bic disposable cigarette lighter that she had taken from her father's coat pocket, as the coat lay in or near her father's bedroom. Her father had purchased the Bic lighter.

The Bondies sued Bic Corporation ("Bic"), alleging negligence, breach of implied warranty, reckless and wanton misconduct, and a claim under the Consumer Product Safety Act, 15 U.S.C. § 2072(a). In motions entitled "Motion for Partial Summary Judgment" and "Defendant's Renewed Motion for Summary Judgment," Bic moves for summary judgment, citing Fed.R.Civ.P. 56, and to dismiss, citing Fed. R.Civ.P. 12(b)(6). A hearing was held on February 27, 1990. The case is here by reason of diversity of citizenship. The motion is granted in part and denied in part.

II. Analysis

The parties' briefs do not separate the Rule 12(b)(6) analysis from the Rule 56 analysis. As such, it is difficult to parse the precise arguments with respect to each. Although I gathered in the hearing that Bic was moving both for dismissal and summary judgment with respect to each standing count, and since I am reluctant to invent arguments for the parties, I will assume that arguments not addressed in the papers or hearing were not made.

Under the Erie doctrine, Michigan law governs the tort and contract claims; federal law governs the Consumer Product Safety Act claim.

A. Negligence

1. Dismissal

Negligence requires duty. Bic contends that since no such duty exists, this claim should be dismissed, citing Fed.R. Civ.P. 12(b)(6). Bic's premise is mistaken.

In a design defect case, a manufacturer's duty is to design its product "to eliminate any unreasonable risk of foreseeable injury." Prentis v. Yale Mfg. Co., 421 Mich. 670, 692-93, 365 N.W.2d 176 (1984). Whether a defendant owes a plaintiff an actionable duty is a question of law premised on legislatively or judicially declared public policy. Moning v. Alfono, 400 Mich. 425, 436-38, 254 N.W.2d 759 (1979).

Plaintiff claims additionally that Congress has created a duty through the Consumer Product Safety Act. I reject this claim. See infra, Section II.D.

In general, under Michigan's negligence law, the determination whether judicial policy will impose a duty "is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant to meet the duty, the likelihood of occurrence, and the relationship between the parties." Swartz v. Huffmaster Alarms Sys., Inc., 145 Mich.App. 431, 434, 377 N.W.2d 393 (1985). This formulation of the test, while obiter dictum, is particularly well-suited to the product-liability context, in that it illuminates the factors relevant to assessing the reasonableness of risk under the Prentis test.

Michigan's appellate courts have not addressed the duty question as to cigarette lighters. No cases exist even concerning matches. Bic submits that three judicial doctrines nevertheless guide the policy outcome in its favor.

First, Bic says that no duty exists to make a product child-proof or even child-resistant, where the product is intended for use exclusively by adults. Bic cites a number of extra-jurisdictional cases for this contention. Bic argues that the danger's unreasonableness is measured from the adult consumer's perspective, but acknowledges that Michigan's state trial courts have split on the issue in other lighter cases.

Michigan law clearly vitiates this argument. Under Michigan law, duty rests upon foreseeable misuse, not intentional use. Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 N.W.2d 413 (1975) (manufacturers have duty to design cars so as to eliminate unreasonable risks of foreseeable injury); Chaney v. Whiting Corp., 100 Mich.App. 108, 110, 298 N.W.2d 681 (1980) (manufacturer required to foresee probable uses, not only intended uses). A child's inevitable access and attraction to a product must be taken into account when assessing duty. Crowther v. Ross Chem. Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972) (negligence and implied warranty theories survived summary judgment with regard to whether glue manufacturer knew that glue sniffing was attractive to children); see also, Drayton v. Jiffee Chemical Corp., 395 F.Supp. 1081 (N.D.Ohio 1975), judgment modified 591 F.2d 352 (6th Cir.1978) (manufacturer of caustic drain cleaner has duty to design container so as to minimize risk of toddler tipping and spilling).

Certainly, no manufacturer has a duty to make a product accident proof, for manufacturers are not insurers. Prentis, 421 Mich. at 682-83, 365 N.W.2d 176. A child may, unfortunately, harm itself with many things. See Kelley v. Rival Mfg. Co., 704 F.Supp. 1039 (W.D.Okl.1989) (hot pot); Bellotte v. Zayre Corp., 531 F.2d 1100 (1st Cir.1976) (pajamas); Brawner v. Liberty Indus., Inc., 573 S.W.2d 376 (Mo. App.1978) (gasoline container); Simpson v. Standard Container Co., 72 Md.App. 199, 527 A.2d 1337 (1987), cert. denied, 311 Md. 286, 533 A.2d 1308 (1987) (gasoline container). Yet, the fact that a child may harm itself with many things is no reason why society cannot require a manufacturer to be aware of the risk involved in the use of its particular product. The cases cited do not involve colorful little lighters. Thus, they are not helpful in assessing the duty in this case.

Second, Bic says product malfunction is not alleged, and so no product liability claim lies as a matter of law, citing a Michigan Appellate court opinion, King v. R.G. Indus., 182 Mich.App. 343, 451 N.W.2d 874 (1990). But King did not involve a design defect. Prentis, 421 Mich. at 693, 365 N.W.2d 176, clearly holds that in design defect cases, a manufacturer is liable for the foreseeable misuses of its product. Moning holds that where children are concerned, an action may lie even if the product itself is functioning properly. Moning involved a slingshot. Chaney and Crowther hold that the fact that children may not be the intended users is irrelevant. Product misuse is only evidence of comparative fault. See M.C.L. § 600.2949(1).¹

The cases that Bic cites and that involve lighters do not bind this court. To the extent that those cases are not distinguishable from this case, I respectfully disagree with their reasoning. See Adams v. Perry Furniture Co., No. 86-320049-NP, slip op. (Mich.Cir.Ct. June 2, 1989) (Order Granting Motion for Summary Judgment); Sedlock v. Bic Corp., 741 F.Supp. 175 (W.D.Mo. 1990) (Order); Eads v. Bic Corp., 740 F.Supp. 1433 (W.D.Mo.1989) (Order); Lasseigne v. Bic Corp., No. GC-G-88-391, slip op. (Fla.Cir.Ct. May 31, 1989) (Order Granting Partial Summary Judgment).

Applying the risk-utility balancing test adopted in Prentis, and using the factors relevant to assessing risk from Swartz, I hold that Bic has a duty to make its lighter child-resistant. The severity of the risk is assessed by combining the likelihood of injury with the severity of injury. The Bondies claim that the likelihood is high.² The severity of injury is great: facial disfigurement, property loss, and possible death. The burden on defendant to make an alternate design has yet to be proven. Yet, Bic admitted at the hearing that it had a child-resistant design in place at the time Amanda Bondie played with the lighter. The societal interest in having Bic's lighters—used primarily to light cigarettes —cannot be said to outweigh the likelihood of injury to a child.

The relationship between the parties is important: Bic has distributed to the marketplace millions of brightly-colored little plastic lighters. Each projects a fairly large-sized flame when its throttle is fully open. I must assume the Bondies' contention as true, that children are attracted to the lighters. I must also assume as true that a warning is not always attached to the lighter at the time of sale, since the lighters are also displayed loosely in bins. There are no age restrictions on purchase or use of these lighters. These attributes of the lighters maximize sales and profit. As a matter of fact, Bic knows that children can and will operate the lighter, despite a parent's reasonable efforts to keep it from the child.³

The Maine Superior Court reached a similar conclusion, under the same risk-utility balancing test:

It cannot be controlling as a matter of law that the intended user is an adult person to whom, as an ordinary person, the risk of danger by fire of a Bic lighter may be obvious. It is reasonably foreseeable that a Bic lighter is the type of product that the ordinary user will use and keep in the household, so that young children are likely to have access to it and to play with and to seek to operate it. Indeed, it is precisely because of such reasonably foreseeable likelihood that Bic has seen fit to say on its packaging "Keep Away from Children" and "Keep Out of the Reach of Children."

Redman v. Bic Corp., No. CV-86-1196, slip op. at 3 (Maine Super.Ct. Jan. 8, 1990). I find its reasoning persuasive.

The Michigan Court of Appeals reached a similar result in Crowther, id. (glue sniffing).

Third, Bic argues that it has no duty to warn of "open and obvious" dangers, citing Bishop v. Interlake, Inc., 121 Mich. App. 397, 328 N.W.2d 643 (1982); Antcliff v. State Employee Credit Union, 95 Mich. App. 224, 290 N.W.2d 420 (1980), aff'd, 414 Mich. 624, 327 N.W.2d 814 (1982).

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