Welch v. Scripto-Tokai Corp.
| Decision Date | 27 June 1995 |
| Docket Number | No. 29A02-9409-CV-552,SCRIPTO-TOKAI,29A02-9409-CV-552 |
| Citation | 651 N.E.2d 810 |
| Parties | Prod.Liab.Rep. (CCH) P 14,274 Randy T. WELCH, and Teresa and Steve Griffith, Appellants-Plaintiffs, v.CORPORATION and Clark Oil and Refining Corporation, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Appellants-plaintiffs Randy Welch, Teresa Griffith, and Steve Griffith (collectively Welch) contend that the trial court erred in granting summary judgment in favor of appellees-defendants Scripto-Tokai Corporation and Clark Oil and Refining Corporation on their complaint for damages based on strict liability and negligence.
On May 18, 1988, three-year-old Randy, the son of Steve and Teresa Griffith, climbed up to a shelf, which neither Teresa nor Steve could reach without a foot stool, and obtained a disposable butane cigarette lighter. After obtaining the lighter, Randy used it to ignite a flame which then caught his pajama top on fire.
The lighter in question was designed and manufactured by Scripto-Tokai Corporation (Scripto). Scripto provided the following warning on the package in which the lighter was sold:
IMPORTANT: READ CAREFULLY! Failure to follow instructions may result in burn injury. Danger-lighter contains butane gas under pressure. Extremely flammable. Do not use near fire or flame. Do not puncture, incinerate or expose to temperature from sun or otherwise above 120 [degrees] Fahrenheit. Do not attempt to refill. Keep out of reach of children. As with all lighters, hold away from face while lighting. CAUTION: Be sure flame is extinguished after use.
* * * * * *
Scripto then sold the packaged lighter to Phillip Morris, Inc. In May 1988, Teresa purchased two packages of Marlboro cigarettes from a gas station owned by Clark. The lighter, as packaged by Scripto, was provided with the cigarettes at no additional charge as part of a Marlboro promotion.
On May 16, 1989, Welch filed a complaint against Scripto and Clark seeking damages for Randy's injuries. His complaint was based on theories of strict product liability and negligence. Regarding the strict liability theory, Welch alleged that the lighter was in a defective and unreasonably dangerous condition. As to the negligence theory, Welch alleged that Scripto negligently designed the lighter and failed to warn him of the dangers inherent in the product. Welch asserted that Clark was negligent in selling the lighter, which it either knew or should have known was unsafe for consumer use, and failed to warn Welch of its dangers.
On April 2, 1993, Scripto and Clark filed a joint motion for summary judgment alleging that the undisputed facts show that the lighter was not in a defective and unreasonably dangerous condition and that they did not breach any duty owed to Welch. After a hearing on November 24, 1993, the trial court granted their motion for summary judgment on both the strict liability and negligence claims on June 1, 1994. The trial court found that there was insufficient evidence that the lighter was in a defective condition which rendered it unreasonably dangerous and that Scripto and Clark did not breach a duty owed to Welch. Specifically, the trial court found that the lighter had no hidden defects and that Scripto and Clark had no duty to warn Welch of the dangers inherent in the product which were open and obvious.
Summary judgment shall be granted by the trial court if the designated evidentiary matter shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). On appeal from a trial court's grant of summary judgment, the appellant has the burden of proving that the trial court erred in determining that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Rosi v. Business Furniture Corp. (1993), Ind., 615 N.E.2d 431, 434.
Summary judgment shall not be reversed on the ground that there is a genuine issue of material fact unless the material fact and the relevant evidence had been specifically designated to the trial court. T.R. 56(H). However, the rule does not require that the evidentiary materials be designated in any particular manner. Nat. Bd. of Exam. v. Am. Osteopathic Ass'n (1994), Ind.App., 645 N.E.2d 608, 615. Rather, the rule requires that the trial court be "apprised of the specific material upon which the parties rely in support of or in opposition to a motion for summary judgment...." (emphasis in original). Id. Further, the designation of evidentiary materials shall occur at the time of the filing of the motion or the response. T.R. 56(C).
Initially, Welch contends that the trial court erred in entering summary judgment on the strict liability claim because a genuine issue of material fact exists as to whether the lighter was in a defective and unreasonably dangerous condition. In addition, Welch contends that summary judgment was inappropriate on the negligence claim because a genuine issue of material fact exists as to whether the lighter had any hidden defects. Specifically, Welch relies on the Consumer Product Safety Commission's (CPSC) report regarding child-play lighter fires to establish that material issues of fact exist. However, at oral argument, 1 Welch conceded that he did not specifically and timely designate the CPSC report to the trial court as required by T.R. 56(C). Welch filed his response to the defendant's motion for summary judgment on May 4, 1993. The hearing on the motion was held on November 24, 1993. However, Welch did not provide the trial court with a copy of the CPSC report until December 9, 1993. Further, Welch merely provided the court with a copy of the report. The report was never filed with the trial court, nor was it served on opposing counsel as required by T.R. 56(C). Thus, in reviewing the trial court's grant of summary judgment on the strict liability and negligence claims, we will not consider the CPSC report which is contained in the record but was not specifically designated to the trial court. See Rosi, at 615 N.E.2d at 434.
Welch contends that the trial court erred in granting summary judgment on the products liability claim, alleging that there was a genuine issue of material fact as to whether the lighter was in a defective condition which rendered it unreasonably dangerous. Specifically, Welch maintains that a cigarette lighter, which ignites with minimal pressure, is by definition unreasonably dangerous because it is not child-resistant.
An action for strict liability in tort against sellers and manufacturers of defective products is governed by Indiana's Product Liability Act, IND.CODE §§ 33-1-1.5-1 through 33-1-1.5-5. I.C. § 33-1-1.5-3 provides in part:
One who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm caused by that product to the consumer or to his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition....
Thus, in a product liability action the plaintiff must prove that the product is in a defective condition which renders it unreasonably dangerous. Hamilton v. Roger Sherman Architects (1991), Ind.App., 565 N.E.2d 1136, 1137. The requirement that the product be in a defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer. Cox v. American Aggregates Corp. (1991), Ind.App., 580 N.E.2d 679, 685.
A product is "defective" if it is in a condition:
(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
I.C. § 33-1-1.5-2.5. A product is also defective if the seller fails to give reasonable warnings or instructions to the consumer. I.C. § 33-1-1.5-2.5.
A product is "unreasonably dangerous" if it:
exposes the user or consumer to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer who purchases it with the ordinary knowledge about the product's characteristics common to the community of consumers.
I.C. § 33-1-1.5-2. In the present case, the parties dispute whether a genuine issue of material fact exists regarding whether the risks imposed by a lighter which is not child-resistant are beyond the risks contemplated by the "ordinary consumer." 2
Initially, we note that a product may be "dangerous" in the colloquial sense but not "unreasonably dangerous" for strict liability purposes under the Act. See Smith v. AMLI Realty Co. (1993), Ind.App., 614 N.E.2d 618, 622. In Smith, we observed that a weight machine, although potentially dangerous when used by children, was not "unreasonably dangerous" under the Act because it functioned properly as exercise equipment. Id. at 623. As we further noted in Smith, although a loaded gun is certainly dangerous in the literal sense when it is in the hands of children "who cannot comprehend the full magnitude of its destructive capabilities," it may not be "unreasonably dangerous" for product liability...
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