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Implied warranties of merchantability apply to any member of the buyer’s household who may be affected by the product and injured by a breach of the warranty, regardless of whether the user was an intended user, the Pennsylvania Superior Court has held. In so holding, the unanimous three-judge panel in Phillips v. Cricket Lighters concluded that, under Pennsylvania law, the warranty of merchantability extended to a 2-year-old child, “a member of the household affected by the product,” which was a disposable butane cigarette lighter. The Superior Court’s decision broadens the group of people protected by breach of warranty law in Pennsylvania, said Henry Sewinsky, who represented the plaintiffs in the Phillips case. “It not only takes the adult user in, but takes in the members of her family, too — no matter what their age was,” said Sewinsky of Rodgers Perfilio Heiman & Sewinsky in Sharon, Pa. The Superior Court’s opinion is the sequel to the Pennsylvania Supreme Court’s December 2003 decision in which a split high court ruled that the Phillips plaintiffs could not proceed on their strict products liability claim because the plaintiffs couldn’t show that the lighter was unsafe for its intended user. The Supreme Court remanded the case to the Superior Court to decide the breach of warranty issue. In 1993, Jerome Campbell, 2, ignited a lighter that he found in his mother’s purse. The fire burned down a western Pennsylvania apartment and three people died. A representative of the victims’ estate filed suit in Mercer County, claiming — under several theories of liability — that the lighter was defective because it could have been designed to be more child resistant, according to the court’s opinion. The Superior Court rejected the argument put forth by the lighter’s European manufacturer: that the product wasn’t defective because it was safe for its intended user. Because the Phillips plaintiffs’ claim of defectiveness fails under a strict liability analysis — as the Pennsylvania Supreme Court ruled in December — then a warranty claim of defectiveness should fail also, Cricket argued. But, said the Superior Court, different standards apply to warranty claims than to claims of strict liability. The Pennsylvania Commercial Code, which governs implied warranty law, expressly requires that goods be “free from significant defects,” the court explained. The code extends the coverage of implied warranties to “any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such a person may use, consume or be affected by the goods.” A jury could conclude, “based on the factual issue of whether the lighter could have been designed to be more child-resistant, that the lighter was ‘defective’ and therefore not merchantable,” wrote Judge John L. Musmanno, who was joined by Judges Susan Peikes Gantman and Joseph A. Hudock. The lesson to be learned from this opinion, said Paul A. Lauricella of The Beasley Firm, “is that a practitioner should always be careful to plead in any complaint the different theories of liability, because you never know which theory is going to prove to be the most efficacious based on your set of facts.” Often, he said, warranty claims are added to a complaint only as an afterthought because strict products liability is traditionally viewed as the best theory for a plaintiff to argue at trial. Now, “the [theory] you may want to proceed on at trial is implied warranty of merchantability,” said Lauricella. Lauricella wrote the amicus curiae brief that the Pennsylvania Trial Lawyers Association filed with the Supreme Court when the justices considered the Phillips liability claims last year. Cricket’s counsel, Paul R. Robinson, said his clients have not yet made a decision on whether to appeal the court’s decision. Robinson and his colleagues Carl Eck and Louis Long, all of Meyer Darragh Buckler Bebenek & Eck in Pittsburgh, had argued that the lighter hadn’t malfunctioned and that a 2-year-old cannot “use” a lighter anyway. “It worked as it was expected to work,” said Robinson. “Unfortunately, it was allegedly in the hands of a child when it worked as it was expected to work.” But in his opinion, Musmanno pointed to a 2001 decision from the U.S. District Court for the Western District of Pennsylvania, Hittle v. Scripto-Tokai Corp. The Hittle court denied a defendant manufacturer’s motion for summary judgment, saying a jury could have concluded that a lighter was defective and not merchantable on the basis of the malfunction of its on/off switch “and the related factual issue of whether the lighter could have been designed to be more child-resistant.” The Phillips court adopted this reasoning; however, it acknowledged in a footnote that a federal court decision from the Middle District, Shouey v. Duck Head Apparel Co., came to a contrary conclusion, holding that “the implied warranty of merchantability is not breached where there is no indication that the lighter did anything other than produce a flame and there is no indication that the flame produced was not suitable for lighting a cigarette.” The court also let the plaintiffs’ claims for punitive damages go forward, saying they had presented sufficient evidence to let a jury decide whether the manufacturer’s actions exhibited wanton and reckless misconduct. Musmanno referred to evidence presented by the plaintiffs suggesting that the cigarette lighter industry had been “well aware” of the potential danger of injury to children when they played with lighters. “Contrary to the trial court’s determination, [the plaintiffs'] evidence was sufficient to create a jury question regarding whether Cricket’s actions exhibited reckless indifference to the interests of others,” Musmanno wrote. STRICT LIABILITY In its decision last year, the justices concluded that the plaintiffs’ strict liability claim failed because they hadn’t proved the lighter was unsafe for its intended user (an adult). Chief Justice Ralph J. Cappy, in a portion of the lead opinion that no other justice joined, reasoned that the failure of a particular strict liability design-defect claim does not mean that a negligent-design claim must fail also. However, that didn’t make the matter completely clear. Three justices, led by Justice Thomas G. Saylor, concurred in the result of Cappy’s opinion but noted that many courts around the country have held that a separation of negligence and strict liability concepts cannot be “justly sustained” in theory as they relate to strict liability cases claiming defective design. Saylor explained that he preferred the court to revise state law to adopt the Third Restatement of Torts products liability provision, calling for a negligence-based standard in design-defect cases. Since that decision, at least two panels of the Superior Court have issued conflicting opinions on the basis of Cappy’s decision in Phillips.

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