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Pre-emption, intended user, risk-utility analysis. Any one of these phrases appearing in the text of a Superior Court opinion is enough to catch the attention of a personal injury lawyer. But put all three together and you’ve hit the products liability jackpot. That’s the case of Phillips v. Cricket Lighters, a Pennsylvania lawsuit that arose out of a fatal fire caused by a disposable lighter ignited by a child. The trial court dismissed the case on summary judgment, finding the child, at 2 1/2 years old, was not the “intended user” of the lighter. But the Superior Court reversed, filing a decision on an issue that appears to be unclear in Pennsylvania. “The issue of whether a manufacturer could circumscribe its liability simply by defining the class of intended users had not been addressed, at least to my knowledge, by the Supreme Court,” said Paul R. Lauricella of Beasley Casey & Erbstein, who filed an amicus curiae brief on behalf of the Pennsylvania Trial Lawyers Association. Carl Eck of Meyer Darragh Buckler Bebeneck & Eck in Pittsburgh, who represented Cricket Lighters, denied to comment immediately on the case. The plaintiff was represented by D. Bruce Kehoe of Indianapolis, Ind. Additional amicus curiae briefs were filed by the Product Liability Advisory Council Inc. and BIC Inc. In addition to the intended user issue, the Superior Court rejected two other claims set forth by Cricket. “We also reject appellee’s contention that federal consumer protection law pre-empts this action,” the court said. “[And] we conclude that summary judgment should not have been granted to the manufacturers and distributors of the disposable butane lighter used to start the fire under the risk-utility test applied in Pennsylvania to determine whether a product is defective.” During the night of Nov. 30, 1993, Neil Williams, then 5 years old, woke up to find his 2 1/2-year-old brother, Jerome, in the kitchen of their apartment with a lighter in his hand. According to the court, Jerome had pulled his mother’s purse down from on top of the refrigerator by climbing onto a chair he had dragged next to the refrigerator. The lighter was in his mother’s purse. After trying unsuccessfully to wake up his mother, Robyn, Neil returned to his bedroom, where his brother was, still holding the lighter. Jerome tried to light the lighter twice, the court said. His second attempt was successful, and the flame ignited the sheets, and the room began to fill with smoke and fire. Neil again unsuccessfully tried to wake up his mother. He then went to a window and started to scream. After suffering from smoke inhalation, Neil was rescued by a neighbor. But Neil’s mother and his two brothers died in the apartment. According to the court, the Cricket disposable butane lighter was retrieved from the apartment following the fire. Gwendolyn Phillips, as administratix of the estates of the decedents and as Neil’s guardian, filed suit against the manufacturers and distributors of Cricket butane lighters, as well as others who were not involved in this appeal. “The gravaman of her claims rests on the fact that the lighter at issue did not have child-proof or child-resistant features,” Senior Judge John P. Hester wrote for the panel that also included Judges Joseph A. Hudock and John L. Musmanno. PRE-EMPTION As an initial matter, the court addressed Cricket’s claim that the state products liability claim was pre-empted by federal law. Specifically, the defendant claimed that regulations issued pursuant to the Federal Consumer Products Safety Act required manufacturers to implement child-resistant features for all disposable butane lighters manufactured or imported after July 12, 1994. The court rejected the pre-emption claim, however, noting that the regulation did not apply to the lighter at issue, which was manufactured in 1990. “Therefore, the standard does not even apply to the lighter involved in this case, which means that there is no federal standard attempting to regulate the same subject matter as that of appellant’s claims.” In any event, the court said, the pre-emption claim would fail since the challenged lighter did not comply with the federal standard, since it was not “equipped with a mechanism that resets itself automatically after each operation.” INTENDED USER The plaintiff claimed that the lighter was designed defectively because it was unreasonably dangerous for the manufacturer not to place childproof or child-resistant features on it. But the trial court said the plaintiff could not bring that claim, since the lighter was not being used by an “intended user” at the time of the fire. “We disagree with this analysis and believe that it harkens back to privity principles that were expressly abrogated by the adoption of products liability law,” Hesster said. The court said there is nothing in the elements of a products liability cause of action that requires a plaintiff to be an “intended user” of a product. “Instead, the language of Restatement (Second) of Torts Section 402A allows recovery to any ultimate user or consumer of the defective product,” the court said. The court said the trial court relied in part on the 1997 case Riley v. Warren Manufacturing, in which the Superior Court found a child was not a “user” of farm equipment under the Restatement. The Riley court concluded the child was a “reasonably obvious unintended user.” Specifically, the Riley court said, “the trailer was not intended to be used by or around children.” The Superior Court said Phillips’ case could be distinguished from Riley. “A butane lighter is not sophisticated, it is not an industrial machine, and it is not to be used only by educated, trained industrial users,” Hester wrote. “Thus, lighters are intended to be used around children and have reason to come into contact with them. It is not reasonably obvious that a child would not use the product as a member of a purchaser’s family.” RISK-UTILITY The Superior Court said the trial court also erred in granting summary judgment without applying the risk-utility test, as required under Pennsylvania law. Under Azzarello v. Black Brothers Co., the court must make a threshold determination of whether a product’s condition justifies placing the risk of loss on the supplier. This “risk-utility” test requires the court to consider many factors, including: The gravity of the danger posed by the challenged design. The likelihood that such danger would occur. The mechanical feasibility of a safer design. The adverse consequences to the product and to the consumer that would result from a safer design. The usefulness and desirability of the product to the user and to the public as a whole. The user’s ability to avoid danger by the exercise of care in the use of the product. The feasibility on the part of the manufacturer of spreading the loss of setting the price of the product or carrying liability insurance. In Phillips, the plaintiffs filed an expert witness report prepared by John O. Geremia, Ph.D., who is a professor in the mechanical engineering department of the U.S. Naval Academy. After reviewing Geremia’s report, the Superior Court applied the risk-utility analysis. “The danger posed by the design was of the gravest kind and, the likelihood that the danger would occur, due to the nature of children and the product involved, was substantial and known to the appellees years prior to manufacture of this product,” the court said. “The adverse consequences to the product and to the consumer that would result from a safer design were minimal – a nominal increase in cost.” The court concluded, on the basis of these findings, that summary judgment should not have been granted to the manufacturer. The court said there are courts in other jurisdictions that have come to a different conclusion in similar circumstances. “Our research on whether manufacturers of disposable butane lighters have been held liable under products liability law for fires started by children using lighters that do not have child-resistant or child-proof features unquestionably reveals a division of opinion on the subject,” the court said. Under Michigan, Georgia and Florida laws, courts have held that manufacturers of disposable butane lighters cannot be held liable in strict liability or negligence for fires started by children. Also, under Illinois and Michigan law, courts have held the risk-utility test should not be applied to an obviously dangerous product like a disposable lighter. “However, we find more persuasive the line of cases holding to the contrary, especially since those cases usually have employed a risk-utility test more closely aligned with Pennsylvania law,” the court said. Courts denying summary judgment in such cases include a federal court in Colorado, and state courts in Ohio, New Hampshire, Alabama, New York and Texas. In addition, the court said in a footnote that the trial court relied on a case from the 3rd U.S. Circuit Court of Appeals, Griggs v. BIC Corp., which did adopt the intended user position. However, the court said, “ Griggs was decided before Riley and does not employ the proper standards in light of post-1992 developments in products liability law in Pennsylvania.” Also, while not discussed by the Phillips court, a 1999 case issued by the U.S. District Court for the Middle District, Shouey v. Duck Head Apparel Co. Inc., concluded that a minor was not an intended user of a lighter and therefore recovery was precluded. In so ruling, the Shouey court stated that Griggs was not irreconcilable with modern products liability law.

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