Calles v. Scripto-Tokai Corp.

• Decision Date: 30 June 2005
• Docket Number: No. 1-04-0219.,No. 1-04-0218.,1-04-0218.,1-04-0219.
• Citation: 832 N.E.2d 409
• Parties: Susan CALLES, Independent Administrator of the Estate of Jillian Calles, Deceased, and Susan Calles, Individually, Plaintiffs-Appellants, v. SCRIPTO-TOKAI CORPORATION, a Corporation, Tokai Corporation, a Corporation, Defendants and Counter-defendants-Appellees (Richard Fox, and Loyola University Medical Center, a Corporation, Defendants and Counterplaintiffs-Appellants).
• Court: Illinois Supreme Court

832 N.E.2d 409

Susan CALLES, Independent Administrator of the Estate of Jillian Calles, Deceased, and Susan Calles, Individually, Plaintiffs-Appellants, v. SCRIPTO-TOKAI CORPORATION, a Corporation, Tokai Corporation, a Corporation, Defendants and Counter-defendants-Appellees (Richard Fox, and Loyola University Medical Center, a Corporation, Defendants and Counterplaintiffs-Appellants).

No. 1-04-0218.

No. 1-04-0219.

Appellate Court of Illinois, First District, Sixth Division.

June 30, 2005.

Corboy & Demetrio, Chicago (Thomas A. Demetrio and Margaret M. Power); Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., Chicago (Michael T. Reagan), for Appellant.

Freeborn & Peters, LLP, Chicago (Michael D. Freeborn, Michael P. Kornak and Patrick J. Woytek); Van Etten Suzumoto & Becket LLP, Santa Monica, CA, for Appellee Scripto Tokai.

Dykema Gossett Rooks Pitts PLLC, Joliet (Terrence M. Burns, Pamela Davis Gorcowski and John M. Steed), for Richard Fox and Loyola U. Medical Center.

Justice McNULTY delivered the opinion of the court:

This case presents a straightforward question concerning the reach of tort law. When the defendant designed a product intended to create a flame, it did not incorporate available inexpensive technology to make the product child-resistant. A child got hold of the product and started a fire that led to her sister's death. Should the court consider the design defective because it lacked child-resistant features? We find the evidence in the record sufficient to pose a factual question of whether the design is defective.

BACKGROUND

Susan Calles purchased an Aim `n Flame lighting rod in March 1998. The lighting rod, shaped like a gun, produced a flame at the end of its barrel when one pulled the trigger. Susan used the rod to light a grill she used for cooking almost every day. On March 31, 1998, Susan put her three-year-old daughters Jillian and Jenna to bed. She left them in the care of their oldest sister Amanda, while Susan took her five-year-old daughter to a store. When they returned about half an hour later, Susan saw fire trucks around her house. She found Amanda and Jenna outside, and then she saw Jillian sitting up in an ambulance. She accompanied her daughters to the hospital. Jillian died in the hospital a few weeks later.

An investigator found the remains of an Aim `n Flame lighting rod in Jillian and Jenna's bedroom, where the fire started. The investigator concluded from the available evidence, including interviews with the children, that Jenna used the Aim `n Flame to start the fire.

Jillian's estate sued Tokai Corporation, which designed and sold the Aim `n Flame lighting rod, and Tokai's subsidiary Scripto-Tokai Corporation, which distributed the lighting rod. The estate also sued Jillian's doctor, Richard Fox, and Loyola University Medical Center, where Fox treated Jillian. Fox and Loyola filed a cross-claim against Tokai and Scripto-Tokai. The estate, Fox and Loyola sought to recover on theories of strict liability and negligence, with both theories premised on defective design and failure to warn.

Tokai and Scripto-Tokai moved for summary judgment, claiming that Illinois law imposes no duty to make products child-resistant. The rod worked exactly as Susan, the consumer, expected it to work, and therefore she could not show a design defect. Also, Tokai and Scripto-Tokai argued that they had no duty to warn Susan of the dangers because Susan already knew of the open and obvious dangers of the Aim `n Flame.

In her deposition Susan testified that she knew lighters could be dangerous in the hands of children. She instructed all of her children about the dangers of fire and lighters like the lighting rod. She stored the lighter on the top shelf of her kitchen cabinet so that her children could not reach it. She acknowledged that the children could get on to the counter, and from there they might be able to reach the lighting rods on the top shelf. Susan did not remember whether she had read the warnings that came with the rod, which instructed purchasers to keep the rod away from children. She admitted that the rod worked just as she expected it to work.

Jillian's estate presented affidavits from experts who said that, with technology available long before Susan bought the Aim `n Flame, Tokai could have designed a child-resistant lighting rod, and producing the child-resistant rod would cost only a few cents more than producing the rod without child-resistant features. In the experts' opinions, the proposed features would almost certainly have prevented Jenna from using the lighting rod to start the fire. One of the experts opined that Tokai did not include sufficient warnings with the rod. The label should have warned that small children may be able to operate the lighter, and it should have borne a more conspicuous danger symbol.

An expert found reports of "at least 200 incidents" involving accidental fires started with Tokai's Aim `n Flame. Children had used the Aim `n Flame or a similar lighting rod to start about 250 fires before September 1998. More than three-fourths of the incidents involved fires started by children less than five years old. Cigarette lighters, which mostly use mechanisms similar to the lighting rod, have a long history of peril.

"From 1980 through 1985, an estimated 750 persons were injured and 120 people died each year in residential fires started by children playing with lighters. [Citation.] Estimated costs of these fires was between 300 and 375 million dollars. [Citation.] In 1988 through 1990, the number of injuries caused annually by children playing with lighters increased to 1,100, and the number of deaths rose to 150. [Citation.] Children three to four years old caused most of the fires. [Citation.] Prior to 1989, a child under the age of five was burned to death every day by a fire started with a disposable lighter. [Citation.]

An estimated 80 to 105 deaths per year would be avoided by the implementation of childproof lighters. [Citation.] Approximately 205-270 million dollars in potential damages would be saved by manufacturing childproof lighters. [Citation.] Estimates of manufacturing costs for initially producing childproof lighters approached 50 million dollars. [Citation.] In 1993, manufacturers were expected to see a one to five percent increase in production costs and a one to five cent increase in per-unit cost." Robins v. Kroger Co., 80 S.W.3d 641, 645-46 (Tex.App.2002).

Another study found:

"5,800 residential structural fires, 170 deaths, and 1,190 injuries occur each year because of children under 5 playing with lighters. The annual cost of children playing with lighters has been estimated at $300 million to $375 million." Annotation, Products Liability: Lighters and Lighter Fluids, 14 A.L.R.5th 47, 56, § 2(a) (1993).

The trial court held that Tokai and Scripto-Tokai "neither owed nor breached any duty imposed upon them by law," and therefore the court entered summary judgment for Tokai and Scripto-Tokai on all counts against them in the estate's complaint and in the cross-complaint Fox and Loyola filed. Later the court added a finding of no just reason to delay appeal from the summary judgment order.

ANALYSIS

We review de novo the decision to grant Tokai and Scripto-Tokai summary judgment. North American Insurance Co. v. Kemper National Insurance Co., 325 Ill.App.3d 477, 481-82, 259 Ill.Dec. 448, 758 N.E.2d 856 (2001).

A plaintiff can establish a cause of action for strict products liability based on a defective design in either of two ways. Lamkin v. Towner, 138 Ill.2d 510, 529, 150 Ill.Dec. 562, 563 N.E.2d 449 (1990). A plaintiff may succeed either:

"(1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs." Lamkin, 138 Ill.2d at 529, 150 Ill.Dec. 562, 563 N.E.2d 449.

The two tests are not mutually exclusive. Besse v. Deere & Co., 237 Ill.App.3d 497, 501, 178 Ill.Dec. 475, 604 N.E.2d 998 (1992). In many states courts consider the benefits and risks of a product's design as evidence of what a reasonable consumer should expect. See Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1196-97 (4th Cir.1982); Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 220, 694 A.2d 1319, 1333 (1997), (and cases cited therein). Other states that use risk-benefit analysis allow evidence of consumer expectations — especially consumer anticipation of danger — for its relevance to the risks and benefits of the product's design. See Camacho v. Honda Motor Co., 741 P.2d 1240, 1247 (Colo.1987). In general, courts should apply the tests together. Besse, 237 Ill.App.3d at 501, 178 Ill.Dec. 475, 604 N.E.2d 998.

One court in Illinois formed an exception to the general rule. In Scoby v. Vulcan-Hart Corp., 211 Ill.App.3d 106, 155 Ill.Dec. 536, 569 N.E.2d 1147 (1991), the plaintiff, a cook, burned his arm in a vat of hot oil when he slipped in the kitchen of a restaurant. He sued the manufacturer of the vat, arguing that the manufacturer designed the vat defectively by making it without a protective lid. The trial court granted the manufacturer summary judgment, and the Appellate Court for the Fourth District affirmed. The court said:

"Very hot liquid is, of course, quite dangerous, but the danger was very obvious to both the defendant and the plaintiff. Clearly, at times, efficient kitchen operation would require keeping a top off of the fryer. Defendant draws analogy to a sharp kitchen knife that might be on a table. It asks whether a manufacturer of the knife could be strictly liable if somebody were cut by the knife if the manufacturer did not furnish with the knife, as a usual part and...