Opinion
No. 95-CV-4548
October 3, 1996
Defendants Bic Corporation ("Bic") and Dillon Companies, Inc. ("Dillon") (collectively, "defendants") have moved for entry of summary judgment in their favor on the strict liability and negligence claims of the plaintiff, who seeks to impose liability on defendants for the death of two small children caused by a fire allegedly started by one of them lighting a Bic lighter. Defendants' motions are based upon two discrete theories which they argue apply under the facts of this case First, defendants contend that since Jared Klemka, age 3, was not an intended user of the Bic lighter in question, strict liability will not lie. Second, because the Third Circuit held in Griggs v. Bic Corp., 981 F.2d 1429 (3d Cir. 1992), that a Bic non-childproof lighter is not defective or unreasonably dangerous as a matter of law, and because the same court stated in Fitzpatrick v. Madonna, 623 A.2d 322, 326 (Pa.Super. 1993), that a product liability negligence claim can only be asserted when the product is defective, the negligence claims of plaintiff must fail as well.
Bic and Dillon each filed a motion, with Dillon adopting the substance of Bic's motion. Bic was the purported lighter manufacturer, and Dillon, the purported retailer of the product.
I find defendant's reasoning on the strict liability aspect of the case persuasive, but disagree with their view that the negligence claims must be dismissed as well.
Needless to say, plaintiff does not agree with either of Bic's challenges to these causes of action, basing her argument to a great extent on the increased notoriety and awareness by Bic of the use by young children of Bic lighters to start fires.
1. Strict liability does not apply because the lighter was not intended for use by small children.
Bic's position with respect to the dismissal of the strict liability claim is that the pronouncements of the Third Circuit in Griggs and Metzgar v. Playskool, Inc., 30 F.3d 459 (3d Cir. 1994), are still good law, and require dismissal of the plaintiff's strict liability claims. Griggs specifically held that children are not "intended users" of lighters and, therefore, the manufacturer will not be held strictly liable for harm caused by a child using a non-childproof lighter. In Metzgar, the court concluded that the Pennsylvania Supreme Court would limit strict liability causes of action to situations in which the manufacturer had intended the product to be used by the type of person who actually used the defective product. These cases specifically state that strict liability is different from negligence, and that foreseeability is not an element of determining "intended use." My conclusion from these cases, which is not contradicted by any Pennsylvania case on point, comports with Bic's position, namely, that intended use, or intended user, means what it says: intended, not expected, anticipated or foreseeable.
To counter these decisions, plaintiff argues that Griggs applied an incorrect standard when requiring that the product be safe for the "intended user." In so doing, she relies on Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3d Cir. 1992), cert. denied, 507 U.S. 1005 (1993), quoting language to the effect that manufacturers are to "make safe products even for the careless and unreasonable consumer." Id. at 119. Plaintiff argues that this means that foreseeability is a factor. I find, however, that this language means only that liability will exist if a careless intended user is harmed; the court in Fleck did not reach the issue of intended user, as such.
Plaintiff also relies upon the case of Sheldon v. West Bend Equipment Corp., 718 F.2d 603 (3d Cir. 1983). There, the court indicated that a proper instruction to the jury regarding the "intended use" of a strap should state that "intended use" would include all those uses "reasonably foreseeable to the seller." Id. at 608. The court found the instruction given by the lower court too restrictive, such that the jury might have viewed the plaintiff's use of the strap to lift a carton onto a shelf as not an intended use. Id. The court directed that "once evidence is admitted as to whether a given use is 'intended or abnormal,' the jury should be instructed that the intended use of a product includes all those which are reasonably foreseeable to the seller." Id. Not only do the facts of the case limit the applicability of Sheldon to this situation, but its mixing of concepts such as "abnormal" and "foreseeable" lessen the impact of its reasoning on the instant case. Further, since Sheldon was decided, the concept of "foreseeability" has been analyzed, and the bounds of strict liability have become better defined, such that the discussion of this issue in Griggs, decided in 1992, is the better guide.
In addition, plaintiff relies upon certain language in Metzgar and Stratos v. Super Sagless Corp., 1994 WL 709375 (E.D.Pa., Dec. 21, 1994). I find both of these cases to further Bic's, not plaintiff's, view of the concept of "intended use." In each of these cases, the courts engaged in an inquiry as to whether an injured child was a reasonably obvious unintended user. If so, a strict liability claim would not lie. In each case, the court held that questions of fact rendered the case inappropriate for summary judgment, but set forth the test for determining "intended use" by a person was clear: Would an ordinary consumer have objectively understood that the manufacturer of the product intended it to be used by certain persons, not others? Put another way, if a person was a "reasonably obvious unintended user," the product used by that person would not have been employed for an "intended use." Stratos, 1994 WL 709375 at *2; Metzgar, 30 F.3d at 465. There can be no question that in this case a child — especially a 3-year-old — was a reasonably obvious unintended user of a Bic lighter. While plaintiff offers evidence of frequency of fires started by children playing with lighters and argues that the court's inquiry should focus on "foreseeable misuse," I find no authority for that reading of the case law. I am not inclined to disregard the Third Circuit's view of how the Pennsylvania Supreme Court has decided, or would decide, this issue, notwithstanding the plaintiff's statistical evidence that young children are misusing lighters of this type. Notwithstanding plaintiff's argument, the frequency of misuse does not, as a matter of law, cause children to be excluded as intended users, as plaintiff suggests. I conclude that small children are reasonably obvious unintended users of lighters.
Nor do I think that the fact that Bic does foresee misuse of its product and currently manufactures a childproof lighter should cause me to alter the conclusion that children are not "intended users" of Bic lighters.
The statistics offered by plaintiff could be relevant if a court were to revisit the concept of "intended use," and conclude that the concept of "intent" is more closely aligned with the concept of "knowledge." There may be a difference between foreseeable user, which the courts have criticized as imparting negligence concepts, and "known" user, that plaintiffs' statistics might well demonstrate. This is an area for the legislature or the appellate court to explore, however, as I view the legal principles required to be applied by me at this juncture to be well settled.
Plaintiff also contends that the lighter was not being "used" by Jared Klemka at the time, again based on the Stratos case. In Stratos, a 17-month old child became caught in the mechanism of a mechanical hospital-type bed, while the child was on the floor. Stratos, 1994 WL 709375 at *1. Clearly, the child was not sleeping in or "using" the bed. In the instant situation, however, presumably, plaintiff's entire claim is based on the fact that Jared Klemka used the lighter, that is, he made the lighter produce a flame, which is its normal use. Whether, as plaintiff offers, Jared was "playing" with the lighter as a toy, or "holding it," he was nonetheless employing it as a lighter, by making it produce a flame. I find the Stratos fact pattern sufficiently distinguishable so as to render this argument without merit.
2. Whether the finding with regard to strict liability results in the bar of plaintiff's negligence claims.
Bic argues that because Griggs held that a non-childproof lighter was not defective, and because under its reading of Fitzpatrick, the finding that a product is defective is a condition to a negligence claim for product liability, it is entitled to summary judgment in its favor on the plaintiff's negligence claim. I do not agree with either the premise or the ultimate conclusion that Bic offers.
The finding in Griggs that the non-childproof lighter was not defective was based upon its interpretation of "intended use." The court noted that the first inquiry the court is to make in determining whether the product is defective in a strict liability case is whether the risk of loss should be borne by the manufacturer. Griggs, 981 F.2d at 1432 (citing Azzarello v. Black Bros. Co. Inc., 391 A.2d 1020 (1978)). Rather than address this issue, however, the court examined the potentially dispositive issue of "intended user" instead. The court reasoned that "the existence of a defect is intimately related to the product's intended use because the product is defective only if it 'left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.'" Griggs, 981 F.2d at 1433 (quoting Azzarello, 391 A.2d at 1027). The court focused its analysis on the "intended user" aspect of the concept of "defect" for purposes of strict liability, never reaching the issue of societal policy, or risk-utility, as it is sometimes called, that courts are required to make under Azzarello. However, Griggs pointed out emphatically that the absence of liability to an unintended user in strict liability is not determinative of the absence of duty in negligence. Griggs, 981 F.2d at 1435. In fact, since the concept of foreseeability is specifically removed from a strict liability analysis under Griggs, but is part of the negligence analysis (in determining nature and extent of duty), Griggs is clear authority for the proposition that a negligence claim may well lie if the user was foreseeable. The fact that there was a finding that strict liability would not apply, and therefore the product was not defective for purposes of a strict liability analysis, is not necessarily determinative of plaintiff's negligence claim.
The second part of Bic's reasoning, namely, its conclusion that Fitzpatrick held that if the product is not defective then a negligence claim cannot lie, is taken out of context. The language of Fitzpatrick relied on by plaintiff must be used in relation to its facts. The concept of "defective" condition which the Fitzpatrick court held to be a necessary element of a negligence claim was a finding of defect as a result of the Azzarello analysis, a risk-utility analysis that is similar to the finding of duty in negligence law. See Fitzpatrick, 623 A.2d at 324. This analysis focuses on the risk of harm of the product, the utility of the product, and the possibility of avoiding risk, and doing so without impairing utility. In Fitzpatrick, by concluding as a result of a risk-utility analysis that the product was not defective, the court determined that the manufacturer had no duty to design a guard around the boat's propeller. Id. at 326. The analysis employed by the court in Fitzpatrick is similar to the process of determining the extent of duty owed by a person whose conduct is alleged to have been below the standard of care in a given situation. See, e.g., Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993). However, where the lack of "defect" has resulted from a finding that the plaintiff is not the intended user for purposes of strict liability, this does not translate into a finding of lack of duty for purposes of a negligence claim.
The Griggs court noted the need for this analysis in order to conclude that a product is defective, but, as indicated above, never reached this issue since the absence of an "intended user" was dispositive.
In addition, in Fitzpatrick the negligent act alleged to have caused the injury was the design of the boat without a guard around the propeller. Fitzpatrick, 623 A.2d at 323. In the instant case, however, where Bic manufactures childproof lighters, and distributes them in certain locations, but does not offer them in the area in which plaintiff lived, the negligent conduct charged is not limited to the allegedly defective design of the non-childproof product, but also the purported faulty distribution of childproof product. It is entirely possible that a claim could be stated for negligent distribution without a finding that a Bic product without a childproof feature was necessarily defective. The negligence asserted here, as well as the scope of the inquiry in a negligence action, is broader than Bic's argument suggests. I will approach plaintiff's negligence claims by analyzing the existence of duty, breach of duty, and causation, rather than by resorting to principles of strict liability.
Just as Bic seeks to foreclose negligence as if a risk-utility analysis focusing on the existence or lack of duty had been conducted, plaintiff opposes Bic's motion by offering evidence that may be relevant in such a risk-utility analysis. However, I find the issues presented by the motions before me to be more restricted. I need not explore the nature and extent of Bic's duty in order to resolve the matters before me and deny defendants' motion for summary judgment on plaintiff's negligence claims.
An appropriate order follows.
ORDER
AND NOW, this 3d day of October, 1996, upon consideration of the Motion of defendants Bic and Dillon for Summary Judgment, and plaintiffs' response thereto, it is hereby ORDERED that to the extent that Count I states a claim against defendants for strict liability, summary judgment is GRANTED in favor of defendants on Count I; defendants' motion with respect to Count II is DENIED.
The claim in Count I regarding distribution shall survive as not technically encompassed in a strict liability claim as such.