Curtis v. Universal Match Corp.

• Decision Date: 27 September 1991
• Docket Number: No. CIV-1-89-280.,CIV-1-89-280.
• Citation: 778 F. Supp. 1421
• Parties: Joel I. CURTIS, a minor through his guardian, natural mother and next friend, Deborah R. CURTIS, Plaintiffs, v. UNIVERSAL MATCH CORPORATION, INC. a corporation d/b/a Feudor and Feudor S.A., Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

778 F. Supp. 1421

Joel I. CURTIS, a minor through his guardian, natural mother and next friend, Deborah R. CURTIS, Plaintiffs, v. UNIVERSAL MATCH CORPORATION, INC. a corporation d/b/a Feudor and Feudor S.A., Defendants.

No. CIV-1-89-280.

United States District Court, E.D. Tennessee, at Chattanooga.

September 27, 1991.

COPYRIGHT MATERIAL OMITTED

Paul H. Dietrich, Dietrich & Dietrich, Cleveland, Tenn., Ralph F. Sbrogna, Richard J. Pentland, Anderson, Pentland & Sbrogna, Worcester, Mass., Randy Wilson, Roger W. Dickson, Miller & Martin, Chattanooga, Tenn., for Universal Match.

Bill Luther, Luther, Anderson, Cleary & Ruth, P.C., Chattanooga, for Pope & Talbot, Inc. & Pope & Talbot Wisconsin, Inc., for defendants.

Phillip Durrence, Jr., Hall, Haynes, Lusk & Foster, Chattanooga, Tenn., for Universal Creative Concepts.

Robert M. Sussman, Peter L. Winik, Latham & Watkins, Washington, D.C., for Universal Match Corp., Inc.

MEMORANDUM

EDGAR, District Judge.

This is a products liability action in which the Court's diversity jurisdiction has been invoked under 28 U.S.C. § 1332. The matter presently before the Court is a motion by defendants Universal Match Corporation, Inc. ("Universal Match") and Feudor S.A. ("Feudor") for summary judgment. (Court File No. 66). After carefully reviewing the record and the applicable law, the Court concludes that the motion will be GRANTED.

I. Standard of Review

Fed.R.Civ.P. 56(c) provides that summary judgment shall be rendered if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists, and the Court must view the facts and all inferences to be drawn therefrom in the light most favorable to the nonmoving party. White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943 (6th Cir.1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). The judge's function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper jury question, and not to weigh the evidence, judge the credibility of witnesses, and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); 60 Ivy Street, 822 F.2d at 1435-36.

Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); White, 909 F.2d at 943-44; 60 Ivy Street, 822 F.2d at 1435. The moving party is entitled to summary judgment if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

The Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12. Only factual disputes which are both genuine and material will preclude the entry of summary judgment. The standard for summary judgment mirrors the standard for directed verdict. Id.

If the defendant in a ... civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakeably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Id. at 252, 106 S.Ct. at 2512.

II. Facts

Plaintiffs allege that on May 17, 1986, Joel Curtis suffered personal injuries when the diaper he was wearing was set on fire by his brother, Joshua, with a disposable butane cigarette lighter manufactured by Feudor and distributed by Universal Match. At the time of this incident, Joel Curtis was two years and four months in age, and Joshua was three years and nine months old. The accident occurred when the boys' father, Aqua Curtis, left both children alone, unattended, and asleep in the rear seat of his automobile while he was visiting at the home of a friend. The father left his cigarette lighter on the dashboard of his car in plain view of the children. Joshua awoke, began playing with the lighter, and set fire to Joel's diaper.

The package in which the lighter was sold had a printed warning which stated "KEEP OUT OF REACH OF CHILDREN." The lighter itself did not have any such warning printed directly on it. The lighter was in good working order, but plaintiffs allege that it was defective in that the lighter was not designed to be childproof or child resistant and did not have an adequate warning.

The parents of the minor plaintiff, Aqua and Deborah Curtis, testified in their depositions that they had prior knowledge about the danger of leaving a cigarette lighter near their son, Joshua. Deborah Curtis testified she knew it was unsafe to leave lighters around children and she had previously admonished Aqua Curtis not to leave his lighters within the reach of their children. Moreover, Mr. Curtis knew that Joshua had a prior history of playing with lighters. Mr. Curtis had disciplined Joshua before the accident on at least three occasions for playing with lighters. Mr. and Mrs. Curtis testified that although they had observed Joshua playing with and attempting to operate lighters, they had never seen Joshua actually succeed in operating a lighter to produce a flame.

III. Theories of Liability

Plaintiffs have asserted claims against Universal Match and Feudor under the Tennessee Products Liability Act, Tenn. Code Ann. §§ 29-28-101 — XX-XX-XXX, on the theories of strict liability, negligence, and breach of implied warranty. Plaintiffs allege that the lighter was defective and unreasonably dangerous to foreseeable users such as Joel Curtis in that: (1) the product was inadequately tested and inspected to ensure that it would be safe; (2) the product was designed, manufactured, marketed and sold without being made "child-proof" for the protection of children such as Joel Curtis; and (3) the product lacked adequate, proper instructions and warnings to purchasers and users as to the known dangers associated with the use of lighters.

In addition, plaintiffs assert a claim under the Consumer Product Safety Act, 15 U.S.C. §§ 2051-2084 ("CPSA"). Although plaintiffs also sought to state a claim in the amended complaint under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-1277 (Court File No. 44, p. 14), plaintiffs have conceded that this claim should be dismissed. In their brief in opposition to the defendants' motion for summary judgment, plaintiffs state: "The Plaintiff is withdrawing his claim under the Federal Hazardous Substances Act. While the Plaintiff still believes that the Defendant's sic are in violation of the acts sic, there is no cognizable private cause of action under the act." (Court File No. 80, p. 20 n. 5). Accordingly, the plaintiffs' claim brought pursuant to the Federal Hazardous Substances Act will be dismissed. Sparks v. Metalcraft, Inc., 408 N.W.2d 347 (Iowa 1987).

IV. Analysis

This is a diversity case in which the Erie doctrine applies. Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The substantive law of Tennessee governs the plaintiffs' tort and contract claims, and federal law governs the plaintiffs' claims brought under the CPSA.

A. Tennessee Products Liability Act

The Tennessee Products Liability Act ("the Act") requires that in order for the plaintiffs to prevail on their theories of negligence, strict liability, and breach of implied warranty, plaintiffs must first prove that the lighter in question was either defective or unreasonably dangerous at the time it left the control of the manufacturer or seller. Tenn.Code Ann. §§ 29-28-102(6) and 29-28-105(a). Section 29-28-102(2) provides that the term "defective condition" means "a condition of a product that renders it unsafe for normal or anticipatable handling and consumption."

Section 29-28-102(8) provides:

"Unreasonably dangerous" means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller assuming that he knew of its dangerous condition.

Furthermore, § 29-28-105(d) provides that "a product is not unreasonably dangerous because of failure to adequately warn of a danger or hazard that is apparent to the ordinary user."

Tennessee has thus codified what is commonly referred to as the "consumer expectations" test. Under the Act, plaintiffs must prove "that the condition complained of is beyond contemplation of the ordinary consumer, with the ordinary knowledge common to the community as to its characteristics." Higgs v. General Motors Corp., 655 F.Supp. 22, 26 (E.D.Tenn. 1985), aff'd, 815 F.2d 80 (6th Cir.1987). In a products liability action involving a minor plaintiff who is injured by a product designed for use by adults, the question of whether a product is unreasonably dangerous is premised upon the contemplation of an ordinary adult consumer rather than the viewpoint of the minor child. Reece v. Lowe's of Boone, Inc., 754 S.W.2d 67, 71 (Tenn.App.1988); Pemberton v. American...