Todd v. Societe BIC

• Decision Date: 02 July 1993
• Docket Number: No. 92-1201,92-1201
• Citation: 991 F.2d 1334
• Parties: Prod.Liab.Rep. (CCH) P 13,467 Rodney TODD, as Special Administrator of the Estate of Tiffany Todd, a deceased minor, Plaintiff-Appellant, v. SOCIETE BIC, a foreign corporation, and BIC Corporation, a foreign corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1334

991 F.2d 1334

Prod.Liab.Rep. (CCH) P 13,467

Rodney TODD, as Special Administrator of the Estate of Tiffany Todd, a deceased minor, Plaintiff-Appellant, v. SOCIETE BIC, a foreign corporation, and BIC Corporation, a foreign corporation, Defendants-Appellees.

No. 92-1201.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 19, 1992.

Decided April 27, 1993.

Order Granting Rehearing En Banc and

Vacating Opinion July 2, 1993.

Donald J. Nolan, Joseph T. McGuire (argued), Chicago, IL, for plaintiff-appellant.

Richard J. Rosenblum, Edward M. Rubin, Johnson & Bell, Jeffrey M. Rubin, David A. Bonoma, Pope & John, Thomas H. Fegan, Chicago, IL, Michael S. Ryan, William L. Moran (argued), Murnane, Conlin, White, Brandt & Hoffman, St. Paul, MN, for defendants-appellees.

Before CUMMINGS, and MANION, Circuit Judges, and KAUFMAN, Senior District Judge. ^*

FRANK A. KAUFMAN, Senior District Judge.

This case arises out of a tragedy in which twenty-three month old Tiffany Todd was killed in a fire started by another child, four year old Cori Smith. The fire occurred on March 27, 1988, at the home shared by the Todd and Smith families in Earleville, Illinois. Cori started the fire with a green BIC lighter manufactured by defendants which she found on a table in the living room.

At the time of the fire, the Todd family consisted of parents Rodney Todd, Sr. and Darlene Todd, and children Rodney Todd, Jr., Tiffany Todd, and Anya Rossi. The Smith family consisted of parents Herbert Smith and Kathy Smith, and children Nathan Smith, Erica Smith, and Cori Smith. All adults in the household smoked cigarettes. Herbert Smith used a Zippo lighter to light his cigarettes, Kathy Smith and Darlene Todd used BIC lighters or matches, and Rodney Todd, Sr. did not recall what he used to light his cigarettes. The within case was instituted by Rodney Todd, Sr., as Special Administrator of Tiffany's estate.

Sometime before 8:00 a.m. on March 27, 1988, Cori awoke and went into the living room of the house, where she found the green lighter on a table. She took the lighter and went upstairs to the bedroom where Tiffany Todd was sleeping and ignited some papers on the floor. Cori then went back downstairs, replaced the lighter, and got a glass of water in order to extinguish the fire. BIC contends that Nathan Smith, who was in the living room at the time watching cartoons, instructed Cori not to go upstairs with the water and that Cori left the glass of water downstairs. Plaintiff suggests that Cori may have gone upstairs with the water. At any rate, Cori went upstairs again and then came running back downstairs with Rodney Todd, Jr. screaming that there was smoke. The adults were alerted, and Rodney Todd, Sr. and Herbert Smith tried unsuccessfully to retrieve Tiffany from her room. Everyone in the house escaped to safety except Tiffany, who perished.

About a week prior to the fire, Cori had obtained a lighter and had started a small fire in her parents' bedroom. Also prior to the fire in which Tiffany was killed, Cori and the other children had been instructed by their parents concerning the dangers of fire and had been warned not to play with matches or lighters. Cori has admitted that she was aware of the danger of playing with matches and lighters prior to the fatal fire.

I

In this diversity case plaintiff has proceeded in the United States District Court for the Northern District of Illinois under Illinois law pursuant to theories of strict liability in tort, negligence, and abnormally dangerous activities. The district court granted summary judgment in favor of BIC. Herein, plaintiff does not appeal with respect to his theory of abnormally dangerous activities but does appeal from the grant of summary judgment against him with respect to the theories of strict liability and negligence. In so doing, plaintiff asserts that the BIC lighter was unreasonably dangerous because it did not include enhanced child-resistant features and also because it did not provide adequate warnings. Although the lighter Cori used bore a warning label stating: "KEEP OUT OF REACH OF CHILDREN," plaintiff claims that that warning was inadequate, since it did not warn of the special danger to children in the three to five year age range, children who, even when warned about the dangers of fire and instructed not to play with matches or lighters, cannot be expected to have the self-control to heed such warnings and instructions.

For the purposes of its summary judgment motion, BIC, in the court below, conceded that it was foreseeable as of the date of the fire that a child of Cori's age might obtain and operate a lighter and that, as of that date, it was feasible to design and manufacture a lighter with enhanced child-resistant features. In fact, since the spring of 1992, BIC has marketed a lighter with child-resistant features. The lighter has an "over-and-up" design in which, in addition to the roll-and-press operation of the standard lighter, in which the user slides his or her thumb down the spark wheel and then presses down on the lever underneath to release butane and ignite the gas, the user also has to move a safety latch beneath the lever over and then up. That safety latch automatically returns to the locked position after each use. The BIC lighter, which is so designed, resulted from a BIC project to make its lighters more child-resistant which began in 1985.

II

In granting summary judgment in favor of defendants on the strict liability in tort claim, the court below applied, pursuant to applicable Illinois law, the consumer-contemplation test, under which, in order for a product to be unreasonably dangerous and for the manufacturer to be subject to strict liability, the product must be " '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.' " First National Bank of Dwight v. Regent Sports Corp., 803 F.2d 1431, 1436 (7th Cir.1986) (quoting Restatement (Second) of Torts § 402A, comment i (1964)). In that context, the district court posed the question of whether BIC owed plaintiff a duty to manufacture its lighters with child-proof devices, a question which the district court characterized as one of law for the court to decide. Answering the question, the court concluded that, as a matter of law, the BIC lighter was not unreasonably dangerous because of lack of child-resistant features or because of inadequacy of warning and granted summary judgment to BIC with respect to the strict liability claim. The district court also determined that the lighter performed in the manner expected of a lighter and that adults, the ordinary purchasers, are capable of contemplating the danger of the lighter's characteristics. The district court further concluded that the potential dangers posed by BIC's lighters were obvious and that that very obviousness of danger puts the user on notice. Cf. Killeen v. Harmon Grain Products, Inc., 11 Mass.App.Ct. 20, 413 N.E.2d 767 (1980) (manufacturer of cinnamon-flavored toothpicks not liable for injuries sustained by ten-year old girl who fell face down while sucking on one of defendant's toothpicks, since toothpicks are not unreasonably dangerous, in part because the very obviousness of their danger puts the user on notice). Accordingly, the court below took the position that not only was the warning on the lighter adequate, but also that BIC had no duty to warn because its lighters were not unreasonably dangerous and any danger which they posed was obvious. Further, the district court noted that had the warning on the lighter been heeded, the lighter could have been used safely. Thus, in effect, any failure to warn would have lacked proximate cause and any additional warnings could not have been expected to have prevented the accident, since, by their own testimony, the adults in the Smith/Todd household knew of and warned their children about the dangers of playing with lighters and Cori understood those dangers. The court inferred that the adult Todds and the adult Smiths understood the potential dangers of children playing with lighters.

The district court expressed the above summarized views in the course of granting summary judgment upon plaintiff's strict liability theory and then utilized the same lack of duty approach in awarding BIC summary judgment upon plaintiff's negligence claim.

III

We review de novo a district court's grant of summary judgment. La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 905 (7th Cir.1990). "Summary judgment is appropriate only if, drawing all reasonable inferences in favor of the nonmoving party, we conclude that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320 (7th Cir.1992).

Under Illinois law, in order to prevail upon his strict liability in tort claim, plaintiff must show that his "injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it [the product] left the manufacturer's control." Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, 188 (1965). Plaintiff easily meets his burden as to the first and third of those three elements. It is the second element which caused plaintiff to fail in the court below. A product may be defective in the way which makes it unreasonably dangerous for any of the following reasons: 1) a manufacturing flaw, 2) a failure of the manufacturer to adequately warn of a risk related to the way the product was designed, or 3) a defective design. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 99, at 695 (5th ed. 1984). In the within case, the plaintiff alleges that the BIC lighter is unreasonably dangerous by reason of inadequacy of the...