Todd v. Societe BIC, S.A.

• Decision Date: 12 November 1993
• Docket Number: No. 92-1201,92-1201
• Citation: 9 F.3d 1216
• Parties: Prod.Liab.Rep.(CCH)P. 13,688 Rodney TODD, as Special Administrator of the Estate of Tiffany Todd, Plaintiff-Appellant, v. SOCIETE BIC, S.A., and BIC Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1216

9 F.3d 1216

Prod.Liab.Rep.(CCH)P. 13,688

Rodney TODD, as Special Administrator of the Estate of Tiffany Todd, Plaintiff-Appellant, v. SOCIETE BIC, S.A., and BIC Corporation, Defendants-Appellees.

No. 92-1201.

United States Court of Appeals Seventh Circuit.

Argued Sept. 8, 1993.

Decided Nov. 12, 1993.

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

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

Before POSNER, Chief Judge, and CUMMINGS, BAUER, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

In March 1988 Cori Smith, then four years old, picked up a cigarette lighter and set a small fire in her parents' bedroom. She was admonished not to play with lighters or matches--of which the household had many, because all four adults smoked cigarettes. About a week later Cori found a BIC lighter on a table in the living room. Cori used the lighter to set ablaze some papers in the bedroom where Tiffany Todd, then 23 months old, was sleeping. Tiffany died in the conflagration; the adults and the five other children in the household survived. Tiffany's father Rodney, as special administrator of her estate, filed this diversity action seeking damages from the lighter's manufacturer. The parties agree that Illinois, where the fire occurred, supplies the governing law.

Plaintiff has two principal theories: that BIC should have warned customers about the risks lighters pose to households with children, and that BIC should have designed its lighters to resist children's efforts to use them. Failure to choose the right design or give proper warnings made the lighter defective or unreasonably dangerous, in either case leading to liability in tort. BIC moved for summary judgment. It conceded that misuse of lighters by children is foreseeable and that it is possible to make child-resistant lighters at some cost in both money and inconvenience to adult users. In 1992 BIC began selling a child-resistant lighter, and the Consumer Product Safety Commission has directed all other manufacturers to follow suit. 16 C.F.R. Part 1210 (effective July 1, 1994), 58 Fed.Reg. 37557, 37584-91 (July 12, 1993). BIC contended, however, that it gave sufficient warnings and that Illinois does not require manufacturers to make their products child-resistant when parents may take effective precautions. The district court granted BIC's motion and dismissed the suit. 1992 WL 4971 1992 U.S.Dist. LEXIS 88 (N.D.Ill.). A divided panel of this court reversed, concluding that a trial is necessary on each of plaintiff's theories. 991 F.2d at 1334 (1993). Concern about the implications of the panel's reasoning led the full court to vacate the panel's decision and set the case for hearing in banc. 991 F.2d 1344 (1993).

I

That fire attracts youngsters--and that cigarette lighters in the hands of children can lead to calamity--no one doubts. According to the CPSC, "for the period 1988-90, these fires [set by children under 5 playing with lighters] caused an annual average of 150 deaths, approximately 1,100 injuries, and nearly $70 million in property damages." 58 Fed.Reg. at 37564. BIC recognized this danger, and its lighters were emblazoned: "KEEP OUT OF REACH OF CHILDREN". Plaintiff deems this warning insufficient because BIC did not tell parents that children between three and five are attracted to flame, able and eager to open closets, cabinets, and purses in order to inspect their contents, and unable to follow instructions not to fiddle with what they find there.

Parents who followed BIC's advice to keep their lighters out of the reach of children did not need separate admonition about youngsters' inability to follow directions. Households are full of potentially dangerous items, including knives, matches, and drugs, that are bound to cause injury in inexperienced hands. BIC told owners to make access physically impossible, not to issue instructions to the children. Had the adults in this household followed the warning, there would not have been a fire.

Manufacturers could of course provide secondary warnings about the consequences of not following primary warnings. BIC could have written something like: "Keep this lighter out of the reach of children, and be aware that children not only are resourceful in finding things but also are apt to disobey your instructions not to play with lighters they can get their hands on." It could have amplified this longer warning with data about the number of fires children set with lighters, in order to impress on parents the importance of following the primary warning to make the lighters inaccessible (or, perhaps, to induce the parents to quit smoking). Extended warnings present several difficulties, first among them that, the more text must be squeezed onto the product, the smaller the type, and the less likely is the consumer to read or remember any of it. Only pithy and bold warnings can be effective. Long passages in capital letters are next to illegible, and long passages in lower case letters are treated as boilerplate. Plaintiff wants a warning in such detail that a magnifying glass would be necessary to read it. Many consumers cannot follow simple instructions (including pictures) describing how to program their video cassette recorders. To be more than a scare tactic, the warning could not stop with the number of fires and deaths. It would have to include the number of lighters sold to households with small children (so that the buyer could determine the risk per lighter) and the number of fires that children set with matches (so that the buyer could evaluate whether it is safer to switch). These numbers are abstract. For a parent determined to smoke, the right question is what to do. BIC provided that information.

There is a further practical inquiry: will consumers who disdain a bold and (if followed) effective warning be influenced by smaller and more subtle points? If parents leave lighters on living room tables despite "KEEP OUT OF REACH OF CHILDREN", and despite knowing that lighters cause fire (which is why the adults bought them), is a recitation of the CPSC's data likely to alter their conduct? These adults did not heed the Surgeon General's dire warnings, prominent on every package of cigarettes, about the hazards of smoking. They exposed their children to tobacco smoke, which causes more harm than does playing with lighters. Environmental Protection Agency, Respiratory Health Effects of Passive Smoking (1992). Would a screed on their lighters based on the CPSC's data about fires succeed where concise advice failed? Extended advice, reducing the likelihood that parents will notice and follow the principal warning, is particularly ill-advised when the additional information is already well known. What parent is unaware that children between the ages of three and five explore and test their surroundings even when told not to? Can it be that only a warning by BIC Corporation will alert parents that kids are at least as successful as cats in getting into cabinets and other hiding places, and that children have minds of their own? Illinois does not require manufacturers to warn consumers about facts they already know, and it does not require manufacturers to dilute the principal warnings with distracting information. Genaust v. Illinois Power Co., 62 Ill.2d 456, 466, 343 N.E.2d 465, 471 (1976); Riordan v. International Armament Corp., 132 Ill.App.3d 642, 648, 87 Ill.Dec. 765, 769, 477 N.E.2d 1293, 1297 (1st Dist.1985).

Plaintiff's warning theory encounters an additional problem: causation. Rodney Todd and the three other adults in the household had received the most vivid warning imaginable: Cori had started a fire with a cigarette lighter only a week earlier. What words could be more potent than this incident? The household knew about both the risk of fire and about Cori's proclivity and ability. All four adults conceded this during their depositions, adding that they appreciated the hazard even before Cori set her first fire. It is inconceivable that adults who left a cigarette lighter within the grasp of a child who had already started a fire would have been influenced by any written warning. Cf. Murphy v. Corey Pump & Supply Co., 47 Ill.App.2d 382, 197 N.E.2d 849 (1st Dist.1964). BIC accordingly is entitled to summary judgment on the warning branch of the case.

II

Since 1965 Illinois has held manufacturers strictly liable for injuries caused by defective products, following the approach of Restatement (2d) of Torts Sec. 402A (1965). See Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). "Strict liability" does not imply that manufacturers insure consumers against injuries associated with the use (or misuse) of their products. Some products are dangerous even when properly designed, and it is both easier and cheaper for consumers to obtain their own insurance against these risks than to supply compensation case-by-case through the judicial system. "Virtually any product is capable of producing injury when put to certain uses or misuses.... Injuries are not compensable in products liability if they derive merely from those inherent properties of a product which are obvious to all who come in contact with the product. The injuries must derive from a distinct defect in the product, a defect which subjects those exposed to the product to an unreasonable risk of harm." Hunt v. Blasius, 74 Ill.2d 203, 211-12, 23 Ill.Dec. 574, 578, 384 N.E.2d 368, 372 (1978).

What, then, does Illinois define as a "defect"? Until recently a state court would have dispatched a case such as ours with the observation that a "dangerous product which bears a warning, and which is safe if the warning is followed, is neither...