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Reasoning that butane lighters are not made for the use of 2-year-old children, the Pennsylvania Supreme Court Thursday rejected a breach of warranty claim made on behalf of the estates of three people who died in a house fire touched off by a child playing with a disposable lighter. The warranty of merchantability was not breached, the court ruled, because the lighter was fit for its intended use. In the second time the high court has heard Phillips v. Cricket Lighters, the court has ruled that the fact that the child was a member of the household where the lighter was kept does not change the purpose of the product, according to the opinion. Appellant Gwendolyn Phillips, administrator of the deceased’s estates, argued that because the young child was a family member of the lighter’s purchaser, the appellant should have known it was reasonable that he would use the lighter, the court said. “The fact that the product was tragically misused in such a way does not alter the ordinary purpose of the product,” Chief Justice Ralph J. Cappy wrote in his opinion. “As the lighter was fit for its ordinary purpose, it was merchantable.” The court further discussed why a breach of warranty did not occur. Phillips’ argument was inapt, the court said, because the claim that she could recover damages for a family member of a product owner under the breach of warranty section of the commercial code was irrelevant because of a lack of breach to begin with. “In essence, Section 2318 does not define when a breach of warranty has occurred,” Cappy said. “Rather, by its plain language, it spells out who may recover when a breach of warranty … has indeed occurred.” In deciding whether a breach had occurred in this case, the court looked to the requirements for a product to be merchantable under the commercial code, the court said. Of the six requirements for a product to be merchantable, the court found that the one applicable to this case was whether a product was fit for its “ordinary purposes,” according to the opinion. The court understood “ordinary” to mean common or average, and ruled that use by a 2-year-old child is not common or average. “It’s ordinary purpose certainly was not to be a 2-year-old child’s plaything,” Cappy said. In the second issue, the court was asked whether the Superior Court was correct in finding that Phillips had proved negligence on behalf of the appellee to the point that punitive damages could have been awarded, according to the opinion. “Punitive damages may be appropriately awarded only when the plaintiff has established that the defendant has acted in an outrageous fashion due to either ‘the defendant’s evil motive or his reckless indifference to the rights of others,’” the court said. “Thus, a showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed.” The court agreed that Phillips proved negligence on the part of Cricket Lighters for not installing a child safety feature on its product, according to the opinion. The manufacturer had tested the product with child safety features in France and found that customers did not want to buy a product that was more difficult to use, the court said. Through the deposition of one Cricket Lighters employee, Phillips showed that the company was aware of the dangers posed by young children playing with their product, according to the opinion. Although the court agreed there was proof of negligence, it did not see it as enough to warrant punitive damages, according to the opinion. “It is readily apparent that the evidence does not show that appellants had some evil motive such as intentionally manufacturing a lighter with the express wish that children misuse it and start fires,” Cappy said. Justice Sandra Schultz Newman wrote a concurring opinion that took the majority’s findings a step further. She said not only are punitive damages not warranted, but there was no proof of negligence either. “We do not require knife manufacturers to make knives safe for our children. We do not require the makers of matches to place them in special safety-boxes; we do not require drill makers or electric saw makers to have child safety locks; and we should not require lighters to be made safe for children,” Newman said. When the case was first brought to a trial court, all claims were dismissed against Cricket Lighters, Cappy said. Phillips then appealed to Superior Court, which looked at five issues that the trial court had dismissed through summary judgment: Phillips’ claims of breach of warranty, punitive damages, negligent infliction of emotional distress and design defect (sounding in both strict liability and negligence), according to the opinion. Reversing the trial court, the Superior Court reinstated all five claims, Cappy said. The defendants then appealed for the first time to the state Supreme Court. “We affirmed that portion of the Superior Court’s order reinstating [Phillip's] negligence and negligent infliction of emotional distress claims,” Cappy wrote. “We reversed that portion of the Superior Court’s order reinstating the strict liability design defect claim… . We also vacated that portion of the Superior Court’s order regarding the breach of warranty claim and reversed the Superior Court with regard to its decision on the punitive damages issue; we remanded this matter to the Superior Court for it to reconsider the punitive damages and breach of warranty claims.” Upon remand, the Superior Court “once again reversed the trial court’s entry of summary judgment in favor of [defendants] with regard to the breach of warranty and punitive damages claims,” Cappy wrote, and the instant appeal followed. Phillips’ attorney Henry E. Sewinsky of Rodgers Perfilio Heiman & Sewinsky in Sharon, Pa., said the negligence issues are the only things left for them to argue — that is, the claims of negligent infliction of emotional distress and negligence reinstated by the Superior Court and affirmed by the Supreme Court. Sewinsky said they are going back to the trial court on those two issues. Cappy was joined by Justices J. Michael Eakin, Russell Nigro and Max Baer. Justice Thomas G. Saylor concurred in the result. Justice Ronald D. Castille did not participate in the consideration or decision of this case. Court reported lawyer for Cricket Lighters, Louis C. Long of Meyer Darragh Buckler Bebenek & Eck in Pittsburgh, was not immediately available for comment.

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