Phillips ex rel. Williams v. Cricket Lighters

• Decision Date: 10 April 2001
• Parties: Gwendolyn PHILLIPS, Administratrix of the ESTATE OF Robyn Jorjean WILLIAMS, Deceased, Gwendolyn Phillips, Administratrix of the Estate of Jerome I. Campbell, Deceased, Gwendolyn Phillips, Administratrix of the Estate of Alphonso Crawford, Deceased, Neil Curtis Williams, A Minor By His Guardian and Next Friend, Gwendolyn Phillips, Appellants, v. CRICKET LIGHTERS, Swedish Match, S.A., Pinkerton Tobacco Company, Pinkerton Group, Inc., Pinkerton Group, Inc., t/a d/b/a Cricket USA, Cricket S.A., Poppell, B.V., Wilkinson Sword/ Cricket Inc., Wilkinson Sword, Inc., NDC Corporation And National Development Corporation t/a Shenango Park Associates, DNC Asset Management Inc., Regional Sales Inc., Universal Match Company a/k/a Universal Match Corporation, Swedish Match A.B., Cricket B.V. Inter-Match S.A. Feudor, S.A. Schick Netherland, B.V. Warnerlambert Holland, B.V., Appellees, Pennsylvania Trial Lawyers Association, Amicus, Product Liability Advisory Council Inc., Amicus Bic, Inc., A Pennsylvania Corporation, Amicus.
• Court: Pennsylvania Superior Court

773 A.2d 802

2001 PA Super 109

Gwendolyn PHILLIPS, Administratrix of the ESTATE OF Robyn Jorjean WILLIAMS, Deceased, Gwendolyn Phillips, Administratrix of the Estate of Jerome I. Campbell, Deceased, Gwendolyn Phillips, Administratrix of the Estate of Alphonso Crawford, Deceased, Neil Curtis Williams, A Minor By His Guardian and Next Friend, Gwendolyn Phillips, Appellants, v. CRICKET LIGHTERS, Swedish Match, S.A., Pinkerton Tobacco Company, Pinkerton Group, Inc., Pinkerton Group, Inc., t/a d/b/a Cricket USA, Cricket S.A., Poppell, B.V., Wilkinson Sword/ Cricket Inc., Wilkinson Sword, Inc., NDC Corporation And National Development Corporation t/a Shenango Park Associates, DNC Asset Management Inc., Regional Sales Inc., Universal Match Company a/k/a Universal Match Corporation, Swedish Match A.B., Cricket B.V. Inter-Match S.A. Feudor, S.A. Schick Netherland, B.V. Warnerlambert Holland, B.V., Appellees,

Pennsylvania Trial Lawyers Association, Amicus,

Product Liability Advisory Council Inc., Amicus

Bic, Inc., A Pennsylvania Corporation, Amicus.

Superior Court of Pennsylvania.

Argued October 3, 2000.

Filed April 10, 2001.

Reargument Denied June 22, 2001.

Henry Sewinsky, Sharon, for appellant.

Carl A. Eck and Louis Long, Pittsburgh, for Cricket Lighters, appellee.

Before HUDOCK, MUSMANNO and HESTER, JJ.

HESTER, J.

¶ 1 This personal injury action was instituted after a tragic fire killed single mother Robyn Williams and two of her three children, Jerome and Alphonso. The fire was started by a minor child playing with a disposable butane lighter that did not have child-resistant features. Appellant is Gwendolyn Phillips, who instituted this action in her capacity as administratrix of the estates of the decedents and also in her capacity as guardian of Neil, Robyn's sole surviving child. We find that the trial court improperly granted summary judgment to Appellees on the ground that Appellant cannot recover in this action due to the fact the product at issue was not used by an "intended user." We also reject Appellees' contention that federal consumer protection law preempts this action. We conclude that summary judgment should not have been granted to the manufacturers and distributors of the disposable butane lighter used to start the fire under the risk-utility test applied in Pennsylvania to determine whether a product is defective. We reverse in part, affirm in part, and remand.

¶ 2 We first examine the deposition of Neil Williams, who witnessed the events at issue. During the night of November 30, 1993, Neil, who was five years old at the time, awoke in his apartment bedroom after hearing noises in the kitchen. He saw Jerome, then age two years and four months, with a lighter in his hand. Jerome had pulled a chair next to the refrigerator and had pulled down his mother's purse, which was located on top of the refrigerator. Neil tried unsuccessfully to awaken his sleeping mother. Neil then returned to his bedroom, where Jerome, still with the lighter, also was located. Jerome tried to light the lighter twice. His second effort was successful. The flame ignited the bed linens, and the room began to fill with smoke and fire. Neil unsuccessfully attempted to awaken his mother a second time. Neil then went to a window and started to scream. After suffering from smoke inhalation, he was rescued by a neighbor. The other three occupants of the apartment died. The record also establishes that the lighter was a Cricket disposable butane lighter, which was retrieved from the apartment following the fire.

¶ 3 This action was instituted against manufacturers and distributors of Cricket butane lighters, collectively referred to as Appellees, as well as against the owners and managers of the apartment complex where Robyn and her children lived ("NDC defendants"). Appellant set forth various causes of action against Appellees, and the gravamen of her claims rests on the fact that the lighter at issue did not have child-proof or child-resistant features. She alleged that the NDC defendants were negligent for failing to maintain smoke detectors located in the halls next to Robyn's apartment in an operable condition, failing to install smoke detectors in each room of the apartment, and failing to install wire smoke detectors rather than the battery-operated detectors present at the time of the fire. After summary judgment was granted to Appellees, Appellant negotiated a release with the NDC defendants, who are not involved in this appeal.

¶ 4 The following procedural facts also are pertinent. As noted, the complaint contained various causes of action against Appellees. After preliminary objections were granted, the remaining counts against Appellees were design-defect products liability, failure-to-warn products liability, breach of warranty, battery, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages. Appellees then were granted summary judgment on most of the claims based on the ground that the lighter was not defective because children are not intended users of Cricket butane lighters. The court also noted that a failure-to-warn products liability action was not viable since Appellees' documentation established that either the lighter itself or material in its packaging contained a warning, inter alia, to keep the lighter away from children. After finding the product was not defective on those grounds, the trial court then concluded that under Pennsylvania law, the fact that the product at issue was not defective was fatal to Appellant's breach of warranty claim, negligence claim, and negligent infliction of emotional distress claim. The court dismissed the punitive damages cause of action based on the conclusion that it was derivative to a viable cause of action, which Appellant no longer had. The court granted summary judgment to Appellees and dismissed all the remaining counts in the complaint. This timely appeal followed entry of the final order in this action, which related to dismissal of the NDC defendants.¹

¶ 5 Initially, we must address the argument that this action is preempted under federal law.² Appellees contend that this state law tort action is preempted by regulations promulgated pursuant to the Federal Consumer Products Safety Act, 15 U.S.C. §§ 2053, et seq. ("CPSA"). The CPSA authorized the Consumer Product Safety Commission (the "Commission") to promulgate safety standards for consumer products. Pursuant to that authority, the Commission issued regulations pertaining to disposable butane lighters. Those regulations required manufacturers to implement child-resistant features for all disposable butane lighters manufactured or imported after July 12, 1994, and outlined procedures for stockpiling lighters manufactured after 1990 and before that date. 16 C.F.R. §§ 1210.1 et seq.

¶ 6 Appellees suggest that this action is preempted for the following reason:

If this suit is permitted to go forward, there would be an actual conflict with the federal objectives embodied in 16 C.F.R. § 1210, et seq. The requirement of child-resistant features on all lighters, regardless of their date of manufacture or importation, would present an obstacle to the variety and mix of devices that the commission would allow. It would require implementation of child-resistant features even though the commission allowed for stockpiling within certain parameters. As such, any state law suit that would be premised upon mandatory child-resistance features would pose an actual conflict and be pre-empted.

Supplemental Brief for Appellees at 12.³

¶ 7 Appellees contend that Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000), is controlling. In that case, Alexis Geier was injured when her 1987 Honda Accord struck a tree. The car was equipped with one passive restraint system, which was a shoulder and lap seat belts. It was not equipped with safety air bags, which are another type of passive restraint system, and Ms. Geier and her parents instituted an action raising the claim, among others, that the car was defective because it did not have an air bag.

¶ 8 The Supreme Court in Geier concluded that the Federal Motor Vehicle Safety Standard Act ("MVSS") preempted such a claim because the claim actually conflicted with a federal scheme promulgated pursuant to the MVSS. The federal regulatory scheme allowed manufacturers to choose among various passive restraint alternatives for cars manufactured in 1987. Significantly, the car at issue was in compliance with the federal standard since it had one of the passive restraint systems in the car, lap and seat belts. The Supreme Court concluded that the state tort action at issue conflicted directly with the federal standard, which allowed manufacturers to choose among the passive restraint alternatives. The Supreme Court noted that by forcing the manufacturers to comply with a safety standard they expressly did not have to comply with due to compliance with another standard, the state tort action conflicted directly with the federal scheme of allowing for choice among the safety features.

¶ 9 Initially, we note in Geier, the Court reaffirmed the principle that state laws and federal regulations on the same subject may apply where the state law is not in conflict with, and may be construed consistently with, federal regulations. Thus, under that case and other applicable Supreme Court cases, state law is impliedly preempted only when it directly conflicts with federal law by being an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

¶ 10 We also observe that the facts in Geier are vastly different from those herein. The elementary problems with Appellees' preemption argument include first, that the lighter standard at issue, 16 C.F.R. § 1210.1 et seq., does not apply to the lighter that caused the fire that killed or injured Appellant's...