Byler v. Scripto-Tokai Corp.

• Decision Date: 17 September 1991
• Docket Number: 90-6113,Nos. 90-6112,SCRIPTO-TOKAI,s. 90-6112
• Citation: 1991 WL 181749,944 F.2d 904
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. James BYLER, Individually and as Administrator of the Estate of Samuel Lee Byler, a minor, Valerie Byler, Individually, Harold Aleshire, Executor of the Estate of Lula Tomblin and Administrator of the Estate of Janet Sue Byler, Linda Lou Jupin, Co-Administrator of the Estate of Roy Jupin, Jeff Jupin, Co-Administrator of the Estate of Roy Jupin, Hurst Home Insurance Company, Humana Health Plans, Inc., Hurst Home Insurance Company, and Humana Health Plans, Inc., Plaintiffs-Appellants, v.CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 904

944 F.2d 904

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

James BYLER, Individually and as Administrator of the Estate of Samuel Lee Byler, a minor, Valerie Byler, Individually Harold Aleshire, Executor of the Estate of Lula Tomblin and Administrator of the Estate of Janet Sue Byler, Linda Lou Jupin, Co-Administrator of the Estate of Roy Jupin, Jeff Jupin, Co-Administrator of the Estate of Roy Jupin, Hurst Home Insurance Company, Humana Health Plans, Inc., Hurst Home Insurance Company, and Humana Health Plans, Inc. Plaintiffs-Appellants, v. SCRIPTO-TOKAI CORPORATION, Defendant-Appellee.

Nos. 90-6112, 90-6113.

United States Court of Appeals, Sixth Circuit.

Sept. 17, 1991.

On Appeal from the United States District Court for the Western District of Kentucky, No. 89-00016; Johnstone, J.

W.D.Ky.

AFFIRMED.

Before BOGGS, Circuit Judge, KRUPANSKY, Senior Circuit Judge, ^* and DUGGAN, District Judge. ^**

PER CURIAM.

Plaintiffs appeal from the grant of summary judgment for defendant in their product liability suit. This suit has three claims: strict liability, negligence, and breach of implied warranty. Appellants claim that the district court erred in ruling that Scripto-Tokai did not have a duty under Kentucky law to insure that its disposable butane lighters were childproof or child resistant. For the reasons that follow, we affirm the district court.

I

This suit arose out of a fatal fire at Lula Tomblin's home in Brandenburg, Kentucky on January 9, 1988. Four persons died in that blaze: Mrs. Tomblin; one of her adult daughters, Janet Sue Byler ("Janet Sue"); an adult friend, Roy Jupin; and Janet Sue's three-year old grandson, Sammy Lee Byler ("Sammy Lee"). Sammy Lee's parents lived in northern Ohio, but Sammy Lee had been staying with his grandmother since Thanksgiving. Patricia Hatfield, Mrs. Tomblin's other adult daughter, survived the blaze.

Hatfield and the deceased had been at home all afternoon. The adults, except for Mrs. Tomblin, had been drinking and smoking all afternoon. Those adults who had been drinking had all had at least three or four mixed drinks. The bodies of Jupin and Janet Sue Byler were discovered to possess blood alcohol levels of .19 and .20, respectively. Sammy Lee Byler's body was also tested and found to possess a blood alcohol level of .05. Hatfield refused to be tested for blood alcohol content.

The blaze began around 4:30 p.m. Janet Sue left the card table around which the adults had congregated for hours and went to a bathroom, taking Sammy Lee with her. A few minutes later, Hatfield joined Janet Sue. Sammy Lee then left the bathroom. Hatfield smelled smoke a little later and left the bathroom, entering an adjoining bedroom. She saw Sammy Lee standing at the foot of the bed with a disposable butane lighter in his hand. The lighter was not lit. The bed clothes at the foot of the bed were aflame, but the fire had not yet reached the middle of the bed coverings or the bed itself. Jupin was standing in the bedroom between the door and the bed.

Hatfield tried to take the lighter away from Sammy Lee, but he threw it through the doorway connecting the bedroom and the hall and scampered off. Hatfield left the house to fetch a garden hose and put out the fire. She told Jupin and Janet Sue to try to extinguish the fire while she went to hook up the garden hose. Hatfield states in her deposition that she took about two minutes to fetch and attempt to hook up the garden hose, but by that time the entire house was ablaze. She tried to re-enter the house, but was unable to. Tomblin, Janet Sue, and Sammy Lee died in the fire. Jupin was extracted by another individual, but died eleven days later at a hospital of a heart attack.

The adults regularly used disposable butane lighters of all brands. A bag of ten to twelve Scripto-Tokai lighters had been given to Hatfield for Christmas, and they were hanging within Sammy Lee's reach outside the bedroom where the fire started. No other brands have been positively identified as being present at the time of the fire, but Hatfield stated in her deposition that there were several brands of lighters present at Tomblin's house that day.

Hatfield testified that the adults regularly left lighters on tables and around their cigarettes. No effort was made to keep the lighters out of Sammy Lee's reach. Hatfield stated in her deposition that she could recall at least two prior instances of Sammy Lee's playing with the lighters, including once when he was caught under the couch with an ignited lighter searching for a toy. On this and the other occasions, Hatfield or Janet Sue took the lighter away from Sammy Lee. Hatfield stated in her deposition that she was aware that disposable butane lighters should be kept out of the reach of children, and that children could start fires with the lighters.

The fire department did not conclusively establish a cause for the fire. Sheriff Joseph Greer stated in his deposition that he was curious about Hatfield's statement that Sammy Lee had thrown a lighter out of the bedroom where the fire had started. He went to the bedroom's remains after the fire department had cleaned out most of the debris, kneeled on the ground in the approximate location of the bed, looked to where the door used to be, and searched the area where he thought a three-year old could have thrown a disposable butane lighter. He found such a lighter deeply burned into the ground. This lighter was manufactured by Scripto-Tokai.

All disposable butane lighters marketed in the United States, including Scripto-Tokai's, contain a warning on the package, "Keep Out of Reach of Children." There were at the time of the blaze no warnings on the lighters themselves.

This suit was filed in federal court on the basis of diversity jurisdiction. All parties correctly agree the law of Kentucky controls. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). After Scripto-Tokai moved for summary judgment and plaintiffs filed their response, the district court granted Scripto-Tokai's motion. The court held that Kentucky courts would hold that a manufacturer of disposable butane lighters was under no duty to make its lighters child proof, and that the lighters were not unreasonably dangerous. The court held that its ruling that lighter manufacturers are under no duty to make their lighters child proof also disposed of the negligence and breach of warranty claims. Plaintiffs' timely appeals followed.

II

A

We turn first to the plaintiffs' strict liability claim. Kentucky has adopted § 402A of the Restatement (Second) of Torts as the foundation for its product liability law. Dealer's Transport Company v. Battery Distributing Company, 402 S.W.2d 441 (Ky.1965). Section 402A imposes liability for personal injuries caused by a manufacturer's product sold in a "defective condition unreasonably dangerous." Kentucky has declared that a design flaw can place a product in a "defective condition." Jones v. Hutchison Manufacturing, Inc., 502 S.W.2d 66 (Ky.1973). Plaintiffs contend in their first claim that Scripto-Tokai's lighters were flawed because the lighters' design permitted young children, such as Sammy Lee, to operate them. Thus, plaintiffs may recover only if that flaw makes those lighters "unreasonably dangerous."

Kentucky's law on what makes a product "unreasonably dangerous" is not a model of clarity. The law generally requires a court to permit a jury to determine if a product is "unreasonably dangerous," with the jury weighing a number of factors. Montgomery Elevator Company v. McCullough, 676 S.W.2d 776 (Ky.1984). The factors to be weighed by the jury include the following considerations:

[The] feasibility of making a safer product, patency of the danger, warnings and instructions, subsequent maintenance and repair, misuse, and the product's inherently unsafe characteristics, while they have a bearing on the question as to whether the product was manufactured "in a defective condition unreasonably dangerous," are all factors bearing on the principal question rather than separate legal questions. In a particular case, as with any question of substantial factor or intervening cause, they may be decisive.

Montgomery Elevator, 676 S.W.2d at 780-81.

Kentucky has defined the "principal question" underlying the jury's determination in the negative: A product is not unreasonably dangerous if the manufacturer acted prudently in placing the design into commerce. Nichols v. Union Underwear Company, 602 S.W.2d 429 (Ky.1980).

However, a court need not require a jury to consider those factors in cases where a single named element was important enough to absolve a manufacturer from liability as a matter of law. Montgomery Elevator, 676 S.W.2d at 780-81. While Kentucky does not have a rule permitting a future court to identify such a case, it listed in Montgomery Elevator four prior decisions as examples of cases in which one consideration dominated. In Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197 (Ky.1976), the failure of the purchaser to maintain the product properly caused the defect and the injury, not the original design itself. Each of the other three cases listed involved a product with a very obvious danger to users, one so obvious that the manufacturer should not be held liable when the danger was realized. See Sturm, Ruger & Co., Inc. v. Bloyd, 586 S.W.2d 19 (Ky.1979) (manufacturer not liable for accidental discharge of gun when it clearly warned purchasers that safety mechanism was not reliable, and therefore a charged cartridge should never be in line with barrel); Hercules Powder Co. v. Hicks, 453 S.W.2d 583 (Ky.1970) (danger in carelessly handling dynamite obvious); and, Jones v. Hutchison Manufacturing, Inc., 502 S.W.2d 66 (Ky.1973) (danger in...