Carlson v. Bic Corp.

Decision Date17 December 1993
Docket NumberNo. 90-CV-10006-BC.,90-CV-10006-BC.
Citation840 F. Supp. 457
PartiesDaniel Edwin CARLSON and Lori Carlson, individually, and Garfield Geyer, as Personal Representative of the Estates of Daniel Thomas Carlson, deceased, Alan Robert Carlson, deceased, and Adam John Carlson, deceased, Plaintiffs, v. BIC CORPORATION, Defendant.
CourtU.S. District Court — Western District of Michigan


Philip Vestevich, Bloomfield Hills, MI, for plaintiffs.

Thomas M. Peters, Detroit, MI, for defendant.


CLELAND, District Judge.


In April of 1993, this Court issued an order granting defendant's motion for summary judgment on all counts and an order dismissing this case. Plaintiffs timely filed a motion to reconsider and a response thereto was filed by defendant on March 19, 1993. For the reasons stated herein,

IT IS ORDERED that the motion to reconsider is GRANTED as to plaintiff's design defect claim, and DENIED as to all other claims.

IT IS FURTHER ORDERED that the Court's earlier entry of judgment in favor of defendant is hereby VACATED.


This is a products liability action brought against Bic, the manufacturer of a disposable, butane lighter which was involved in a house fire that occurred on January 16, 1987, in Cheboygan, Michigan. The facts surrounding the incident are not in dispute. During the early morning of January 16, 1987, one of Daniel and Lori Carlson's three children obtained a Bic lighter from the top of the refrigerator located in their mobile home. A fire started and the parents, who were themselves able to escape, were not able to save the children. All three children, ages three through six, perished in the fire. The fire marshall concluded that a Bic lighter, found under the body of one of the children, was the ignition source of the fire.

Mr. and Mrs. Carlson, as well as the representatives of the three children, brought an action against Bic alleging: negligence (breach of duty to warn and design defect); breach of implied warranty; breach of express warranty; reckless and wanton misconduct; and violation of the Consumer Product Safety Act. Bic subsequently moved for summary judgment on all counts. This Court issued an order granting the motion in its entirety and dismissing this case. Plaintiffs subsequently filed a timely motion for reconsideration of this Court's order.


The applicable standard for motions of summary judgment is clear. Under Federal Rule of Civil Procedure 56, to grant a motion for summary judgment, the court must find that the pleadings, together with the depositions, interrogatories and affidavits on file, establish that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56 (emphasis added). A party seeking summary judgment bears the initial burden of specifying the basis upon which it contends judgment should be granted and of identifying that portion of the record which, in its opinion, demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The non-moving party must thereafter produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202 (1986).

Although a plaintiff is entitled to a review of the evidence in the light most favorable to him or her, the non-moving party is required to do more than simply show that there is some "metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Rule requires the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e) (emphasis added).

Motions to alter or amend a judgment or for reconsideration of that judgment, must be served not later than 10 days after entry of the judgment. The grounds under which such a motion will be granted are narrow:

Generally, and without restricting the discretion of the Court, motions for rehearing or reconsideration which merely present the same issues ruled upon by the Court, either expressly or by reasonable implication, shall not be granted. The movant shall not only demonstrate a palpable defect by which the Court and the parties have been misled but also show that a different disposition of the case must result from a correction thereof

Local Rule 7.1(h)(3) (emphasis added).


Plaintiffs allege that defendant Bic was negligent in failing to warn of the damages attendant upon a child's foreseeable misuse of its lighter. Because this case is based on diversity jurisdiction Michigan law applies to the state law claims. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In products liability cases, the duty to warn in Michigan has been characterized as an exception to the general rule of non-rescue, imposing on sellers an obligation to transmit safety-related information if they "know or should know that the buyer or user is unaware of that information." Glittenberg v. Doughboy Recreational Industries, 441 Mich. 379, 386, 491 N.W.2d 208 (1992). The question of "duty" is a matter of law, to be decided by the court. Id. (citing Antcliff v. State Employees Credit Union, 414 Mich. 624, 640, 327 N.W.2d 814 (1982)); Smith v. Allendale Mut. Ins. Co., 410 Mich. 685, 713-15, 303 N.W.2d 702 (1981).

The Michigan Supreme Court recently held in Glittenberg that:

The manufacturer of a simple product has no duty to warn of the product's potentially dangerous conditions or characteristics that are readily apparent or visible upon casual inspection and reasonably expected to be recognized by the average user of ordinary intelligence

Glittenberg, 441 Mich. at 385, 491 N.W.2d 208.

It is well settled that manufacturers are not insurers of the products that they produce. Prentis v. Yale Mfg. Co., 421 Mich. 670, 682-83, 365 N.W.2d 176 (1984). Thus the rationale behind the holding in Glittenberg is straightforward: where the condition that is alleged to cause the harm is entirely revealed by casual observation of a simple product in normal use, a duty to warn would serve no fault-based purpose. Glittenberg, 441 Mich. at 397, 491 N.W.2d 208 (citing Prentis v. Yale Manufacturing, 421 Mich. 670, 365 N.W.2d 176 (1984)).

The leading case regarding "simple tools" is Jamieson v. Woodward & Lothrop, 247 F.2d 23 (D.C.Cir.1957), cert. denied, 355 U.S. 855, 78 S.Ct. 84, 2 L.Ed.2d 63 (1957), where the Court explained:

A manufacturer cannot manufacture a knife that will not cut or a hammer that will not mash a thumb or a stove that will not burn a finger. The law does not require manufacturers to warn of such common dangers

Id. at 26.

Michigan courts have adopted this standard as well:

There are ... on the market vast numbers of potentially dangerous products as to which the manufacturer owes no duty of warning or other protection. The law does not require that an article be accident-proof or incapable of doing harm. It would be totally unreasonable to require that a manufacturer warn or protect against every injury which may ensue from mishap and the use of his product....

Fisher v. Johnson Milk Co., 383 Mich. 158, 160, 174 N.W.2d 752 (1970) (citations omitted).

In short, the "open and obvious" rule obviates defendant's duty to warn plaintiff if: (1) the defendant's product (i.e. the disposable lighter) is a "simple tool" and (2) the dangers of using the lighter were "open and obvious" to a reasonable and expected user. Raines v. Colt Industries, Inc., 757 F.Supp. 819, 825 (E.D.Mich.1991).

The question of obviousness in terms of the product's character is to be determined objectively. Glittenberg, 441 Mich. at 392, 491 N.W.2d 208. The Glittenberg Court noted that the focus is on "the typical user's perception and knowledge." Id. A court must determine whether the condition that creates the danger associated with the product's use (i.e. the flame which is produced by a "roll and press" operation) is "fully apparent, widely known, commonly recognized and anticipated by the ordinary user." Id. (citation omitted) (emphasis added).

Plaintiffs in the instant case do not contend that young children are the typical or ordinary users of defendant's lighters, but merely that they are "foreseeable misusers." Therefore, the children's subjective knowledge (or lack thereof) of the harm that the lighter could cause is irrelevant to the question of whether the danger was "open and obvious." Glittenberg, 441 Mich. at 393, 491 N.W.2d 208. This Court holds that when the inquiry is properly focused on the typical users of disposable lighters (i.e. adults) there can be no dispute that the danger presented by a disposable lighter (i.e. that fire will be produced when the roller is depressed) is "open and obvious."

In addition, this Court finds that the hand held lighter in question is a "simple tool." In determining that above ground pools were "simple tools" for the purpose of analyzing a defendant's duty to warn, the court in Glittenberg noted that "no one can mistake them for other than what they are, i.e. large containers of water that sit on the ground, all characteristics and features of which are readily apparent or easily discernible upon casual inspection." Glittenberg, 441 Mich. at 400, 491 N.W.2d 208.

The disposable lighter in the instant case falls within the criteria relied upon in Glittenberg. There is no claim that defendant's disposable lighter possesses characteristics and features which are not readily apparent or easily discernable upon casual inspection. Indeed, it would be difficult to conceive of a device with more universally known or...

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