Todd v. Societe Bic, S.A., 92-1201

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation21 F.3d 1402
Docket NumberNo. 92-1201,92-1201
Parties, Prod.Liab.Rep. (CCH) P 13,818 Rodney TODD, as Special Administrator of the Estate of Tiffany Todd, Plaintiff-Appellant, v. SOCIETE BIC, S.A., and Bic Corporation, Defendants-Appellees.
Decision Date26 May 1994

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

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


MANION, Circuit Judge.

Two-year-old Tiffany Todd died tragically when four-year-old Cori Smith used a Bic lighter to start a fire in Tiffany's bedroom. Tiffany's estate sued the lighter manufacturer and the district court granted summary judgment in favor of the defendants. After rehearing the appeal en banc, 1 a majority of this court concluded that the warning printed on the lighter--"KEEP OUT OF REACH OF CHILDREN"--was adequate, and that summary judgment on the issue of duty to warn was proper. However, to ensure that the law we applied on the other issues in the case was genuine state law, we certified to the Illinois Supreme Court questions which examined the proper application of the consumer contemplation test and the risk-utility test under Illinois products liability law. The Illinois Supreme Court promptly declined to answer the certified questions. These issues thus return to this court sitting en banc.

Generally, this case concerns Illinois strict products liability law. In Illinois and elsewhere, strict products liability law evolved as a "special rule applicable to sellers of products", 2 which went beyond the traditional boundaries of warranty and negligence law, to provide a broader method of recovery for persons injured by defective products. See William L. Prosser, Law of Torts, 641-682 (4th ed. 1971). Although the scope of strict products liability law is broader than negligence or warranty law, it is not unlimited. Only those who sell "unreasonably dangerous" products fall within its reach. Restatement (Second) of Torts Sec. 402A.

In this case we consider whether a manufacturer should be subject to liability for producing a disposable lighter which a child used to start a deadly fire. This inquiry pivots on one basic question: whether a disposable lighter is unreasonably dangerous under Illinois strict products liability law. The district court determined that a lighter is not unreasonably dangerous, and granted summary judgment for the manufacturer. The plaintiff appeals. We now affirm the district court's grant of summary judgment.

I. Background

Two young families, the Smiths and the Todds, shared a house in rural Earlville, Illinois. All four adults in the house smoked, and all used disposable cigarette lighters. About a week before the fire which caused the death in this case, four-year-old Cori Smith got hold of one of these lighters and set a small fire in her parents' bedroom. The fire was quickly extinguished, and Cori's parents admonished her never to play with lighters or matches. The adults also warned the other five children who lived in the house about the dangers of fire.

The next Sunday, March 27, 1988, Cori awoke before her parents and went downstairs, where her brother was watching cartoons. She spied a green lighter on an end-table in the living room. She took the lighter upstairs into a bedroom where twenty-two month old Tiffany Todd was sleeping. Cori used the lighter to ignite some papers which were on the floor. She then took the lighter back downstairs and replaced it on the end-table. The adults did not wake in time to prevent the ensuing conflagration. Tiffany Todd was killed in the fire. Everyone else escaped unharmed.

On behalf of her estate, Tiffany's father, Rodney Todd, sued the lighter's manufacturer, Bic Corporation, claiming that the company was negligent and strictly liable for selling a defective product. Todd rested both his negligence and strict liability claims primarily on allegations that the lighter was unreasonably dangerous because it did not include a child-resistant feature, and did not provide an adequate warning. After some discovery, Bic moved for summary judgment. Bic never denied that it was possible to manufacture a lighter with child-resistant features. In fact, undisputed evidence adduced in discovery showed that at the time of the fire Bic had developed a prototype lighter which was child-resistant--because it required greater dexterity to operate--although not child proof. Bic contended, however, that the lighter Cori used was not unreasonably dangerous to consumers. Bic also vigorously defended the adequacy of the warning it placed on the lighter. The warning on the lighter which Cori found on the end-table while her parents slept, read simply, "KEEP OUT OF REACH OF CHILDREN."

In a comprehensive order, the district court granted summary judgment for Bic. The court determined that an ordinary lighter, which did nothing more than provide the small flame it was intended to provide, was not defective; therefore, Bic was neither strictly liable nor negligent. The court also considered the lighter's warning and concluded that it was adequate. Finally, the court addressed the various public policy arguments Todd raised in favor of imposing liability on Bic. The court dismissed these arguments out-of-hand, noting that "public policy only requires holding manufacturers and sellers liable if their product is found to be defective or unreasonably dangerous...." Todd v. Societe Bic, No. 90 C 5487 at page 11, 1992 WL 4971 (N.D.Ill. January 7, 1992).

Todd appealed, claiming that the district court ignored questions of fact about the inherent defects in disposable lighters. He maintained that Illinois authorized two tests to determine whether a product is unreasonably dangerous: the consumer contemplation test and the risk-utility test. He argued that a disposable lighter might be considered unreasonably dangerous under either test. He also insisted that the district court's failure to even consider aspects of the risk-utility test required reversal of the summary judgment. Finally, he continued to challenge the adequacy of the warning, claiming that deficiencies in the warning, standing alone, rendered the lighter unreasonably dangerous.

A divided panel of this court agreed with Todd and reversed the district court's grant of summary judgment. 991 F.2d 1334 (1993). The full court vacated that holding, and decided to rehear the case en banc. 991 F.2d 1344 (1993). "Concern about the implications of the panel's reasoning lead the full court to vacate the panel's decision and set the case for rehearing en banc." Todd, 9 F.3d at 1218. After the rehearing, the full court was divided on what the proper disposition of this case should be. The court unanimously agreed that the district court was correct in its conclusion that the warning on the lighter was adequate as a matter of law. However, a majority of the court decided to certify certain questions about strict products liability law to the Illinois Supreme Court. Todd, 9 F.3d at 1216.

The Illinois Supreme Court declined certification. Todd, No. 7643 (November 22, 1993). That decision placed this case back before the en banc court. We will resolve the issues of state law which this case presents in accordance with the decisions of the Illinois Supreme Court. See Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure Sec. 4507 at 89 (1982) ("federal court must determine issues of state law as it believes the highest court of the state would determine them"). Where areas of state law are not developed, we will resort to other persuasive authority in an attempt to determine what the Illinois Supreme Court would decide. See Heller Intern. Corp. v. Sharp, 974 F.2d 850, 858 (7th Cir.1992).

II. Analysis
A. Section 402A

Strict products liability grew out of a jurisprudential movement to adjust traditional tort and warranty theories in order to facilitate recovery for consumers injured by defective products. See William L. Prosser, Law of Torts, 641-682 (4th ed. 1971). This movement spawned the notion that a manufacturer should be liable to an injured consumer regardless of the degree of care employed in producing the product. Id. at 656-657. The concept of strict products liability gained widespread acceptance in the early 1960's after the American Law Institute reduced the broad hypothesis to more definite standards when drafting the Second Restatement of Torts, Section 402A. Illinois soon joined other jurisdiction in adopting Section 402A. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965).

Negligence and warranty theories are still available for plaintiffs injured by defective products. See Section 402A, cmts. a and m. In fact, Todd has made a negligence claim in this case, which we will address later. But injured plaintiffs seem to favor strict products liability, primarily because it does not include traditional warranty law's damage and privity limitations, or traditional negligence law's fault element. See Section 402A, cmts. a and m; see also Suvada, 210 N.E.2d 182 (providing history of strict products liability in relation to traditional contract and tort law). While broader than historic negligence and warranty law, strict products liability is not all-encompassing; it does not cover every injury involving a product. Some aggressive litigants, nevertheless, consider Section 402A as a mandate to compensate every consumer injured by a...

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