Section 1


[1] Annotation: Products liability: drain cleaners, 85 ALR3d 727.

[2] Annotation: Products liability: drain cleaners, 85 ALR3d 727.

See also, <ntc ref.id="I03GTOE">Sargeant, ATLA ALERT: Lewis Red Devil Lye-Red Devil Drain Cleaner can Burn, Blind and Disfigure, 25 Trial Magazine 24 (No. 11, November 1989.)

Settlement for plaintiff in the amount of $825,000 in product liability action against manufacturer, distributor and retailer of drain cleaner. Instructions on chemical drain cleaner indicated to mix with water and stir in a pail prior to use. Plaintiff purchased drain cleaner, mixed with water in an empty wine bottle and shook. Plaintiff sustained severe burns and sued the manufacturer, distributor and retailer of the drain cleaner on the ground that the product was too dangerous to sell and that the product's warnings and instructions were inadequate. Decelles v. Creative Chemical (1994) Worcester Sup Ct, no. 91-3160.

[3] Annotation: Liability of manufacturer or seller of power lawnmower for injuries to user, 41 ALR3d 986.

[4] Annotation: Products liability: ladders, 11 ALR4th 1118.

[5] CPSC brought an action against toddler bed manufacturer claiming that manufacturer failed to report entrapment injuries associated with the toddler beds. The complaint alleges that beginning in February 1991, the manufacturer received 25 parental complaints of children becoming trapped in the headboards or footboards of its beds, and failed to report these complaints until December 1991, when a 15-month-old child was strangled while trying to get out of the bed feet-first through the foot frame. United States v. Cosco, Inc., US dist Ct, SD Ind. no. IP95-1648C, Dec 11, 1995.

Consumer Product Safety Commission (CPSC) issued an advance notice of proposed rulemaking to begin rulemaking procedures under the <sst ref.id="I03HYKI">Federal Hazardous Substances Act to correct crib hazards. Specifically, CPSC noted there exists an unreasonable risk of injury and death from the slats of certain cribs. From 1985 to September 1996, CPSC reported that crib slats disengaged, causing 12 fatalities and 5 injuries.

Child's racing car shaped bed was found to be unreasonably dangerous when a 19-month-old child died of asphyxiation in the bed. While the gap between the bed's sideboard and the mattress was visible, the risk of injury was not open and obvious. Ungaro v. Rosalco, Inc., Prod. Liab. Rep. (CCH) &p;15359, 1998 WL 566883 (N.D. Ill. 1998).

[6] Annotation: Products liability: household equipment relating to storage, preparation, cooking, and disposal of food, 35 ALR4th 663.

[7] Annotation: Products liability: drain cleaners, 85 ALR3d 727.

[8] Annotation: Products liability: household appliances relating to cleaning, washing, personal care, and water supply, quality, and disposal, 34 ALR4th 95.

[9] In Laaperi v. Sears, Roebuck & Co. (1986, CA1 Mass) 787 F2d 726, 4 FR Serv 3d 678, recovery was obtained for the deaths of members of the plaintiff's family when a smoke detector failed to work during a fire. The fire itself caused a short circuit which cut off power to the smoke detector. The manufacturer and retailer failed to advise customers that the smoke detector would not work if the fire caused electrical damage, even though such electrical damage was not uncommon in a fire.

See also, <ntc ref.id="I03I7GJ">Swartz, F.A., Swartz, E.M., and Cantor, A., Smoke-Detector Litigation: A Way to Save Lives, 22 Trial Magazine 30 (No. 11, November 1986.)

[10] Annotation: Products liability: drain cleaners, 85 ALR3d 727.

[11] Annotation: Products liability: household equipment relating to storage, preparation, cooking, and disposal of food, 35 ALR4th 663.

[12] Annotation: Products liability: stoves, 93 ALR3d 99.

[13] Annotation: Products liability: household appliances relating to cleaning, washing, personal care, and water supply, quality, and disposal, 34 ALR4th 95.

[14] Annotation: Products liability: household appliances relating to cleaning, washing, personal care, and water supply, quality, and disposal, 34 ALR4th 95.

[15] Annotation: Products liability: stoves, 93 ALR3d 99.

[16] Annotation: Products liability: household appliances relating to cleaning, washing, personal care, and water supply, quality, and disposal, 34 ALR4th 95.

[17] Annotation: Products liability: stoves, 93 ALR3d 99.

[18] Annotation: Products liability: household equipment relating to storage, preparation, cooking, and disposal of food, 35 ALR4th 663.

[19] Campbell v. BIC Corp. (1992, Sup) 154 Misc 2d 976, 586 NYS2d 871.

The courts' treatment of the need for child-resistant features on disposable cigarette lighters has not been uniform.

Sampling of decisions claiming manufacturer has duty to incorporate child-resistant features on disposable cigarette lighters:

17-month old child sustained burns when child's three-year-old brother found and used a disposable cigarette lighter. Price v. BIC Corp., 142 N.H. 386, 702 A.2d 330, Prod. Liab. Rep. (CCH) &p;15104 (1997). Parent and child brought a design defect action against the cigarette lighter manufacturer for failure to incorporate child-resistant features into the lighter's design. The Supreme Court of New Hampshire, in response to a certified question of law, stated the parent of the injured 17-month-old child could maintain a design defect action against the lighter manufacturer even if,<qb><qp pstart="n">the product was intended to be used only by adults and the risk that children might misuse the product was open and obvious to the product's manufacturer and its intended users ... . Manufacturer liability may still attach even if the danger is obvious to a reasonable consumer or if the user employs the product in an unintended but foreseeable manner ... . The obviousness of the danger should be evaluated against the reasonableness of the steps which the manufacturer must take to reduce the danger ... . Further, a manufacturer's duty to warn is not limited to intended uses of its product, but also extends to all reasonably foreseeable uses to which the product may be put.</qp></qb>

When three children died in a fire started with a Bic, disposable lighter, children's estates sued Bic for negligent design. The court upheld the negligent design claim on the ground that the manufacturer had a duty to design its product to eliminate foreseeable injury to intended users and foreseeable misusers. Carlson v. Bic Corp. (1993, ED Mich) 840 F Supp 457, affd without op (CA6 Mich) 89 F3d 832.

6-year-old set clothes on fire with Bic disposable cigarette lighter, causing severe burns. Campbell v. BIC Corp. (1992, Sup) 154 Misc 2d 976, 586 NYS2d 871. Plaintiff sued manufacturer of lighter for negligence and strict liability for failure to make lighters child-resistant. Court held manufacturer has the duty to design its product so that it avoids an unreasonable risk of harm when it is being used for an unintended but foreseeable use. "Because the lighters ... are commonly used and kept about the home, it is reasonably foreseeable that children will have access to them and will try to use them."

Bondie v. Bic Corp. (1990, ED Mich) 739 F Supp 346, affd (CA6 Mich) 947 F2d 1531, 34 Fed Rules Evid Serv 451, cigarette lighter manufacturer has duty to make product child-resistant.

A 17 month old child was burned when his 3 year old brother started a fire with a cigarette lighter. The child's representative brought a products liability action against the cigarette manufacturer based on its failure to equip the lighter with child resistant features. In response to a certified question, the New Hampshire Supreme Court held that the plaintiff could bring the products liability action against the cigarette lighter manufacturer to recover for injuries incurred as a result of his brother's misuse of an adult product when that risk of misuse was open and obvious to the manufacturer. Price v. BIC Corp., 142 N.H. 386, 702 A.2d 330, Prod. Liab. Rep. (CCH) &p;15104 (1997).

Wrongful death, product liability actions brought against cigarette lighter manufacturer for the death of three children. Perkins v. Wilkinson Sword, Inc., 83 Ohio St. 3d 507, 700 N.E.2d 1247, Prod. Liab. Rep. (CCH) &p;15388 (1998). Fire was started by 4 year old who was playing with a disposable lighter. The plaintiffs claim the lighter was defectively designed in that it did not contain feasible child resistant features. In answer to a certified question, the Ohio Supreme Court found that the risk-benefit test may be used in attempting to prove a design defect claim in a properly functioning disposable lighter. "A product may be found defective in design under the risk benefit test where the manufacturer fails to incorporate feasible safety features to prevent harm caused by foreseeable human error ... . A manufacturer may be liable for failing to use a feasible alternative design that would have prevented harm caused by an unintended but reasonably foreseeable use of its product ... . Lighters are commonly used and kept around the home, and it is reasonably foreseeable that children would have access to them and attempt to use them. It has been estimated ... that 5,800 residential structural fires, 170 deaths, and 1,190 injuries occur each year because of children under 5 playing with lighters."

Jury found cigarette lighter manufacturer liable for negligent failure to incorporate child-resistant safety features on the cigarette lighter when it was reasonably foreseeable that danger could come to a child who came in contact with the lighter absent safety protections. Talkington v. Atria Reclamelucifers Fabrieken BV, 152 F.3d 254, Prod. Liab. Rep. (CCH) &p;15288 (4th Cir. 1998), cert. dismissed, 119 S. Ct. 634, 142 L. Ed. 2d 653 (U.S. 1998).

Two-year-old child was burned by 5-year-old sister's misuse of disposable cigarette lighter. In response to a certified question of law, the Court found that design defect action against cigarette lighter manufacturer for failure to make lighter child resistant could be maintained where the product was intended for adult use only, the risk of child misuse was obvious to the manufacturer and intended user and a safer alternative design was available. Hernandez v. Tokai Corp., 189 F.3d 489, Prod. Liab. Rep. (CCH) &p;15622 (5th Cir. 1999); see also Kroger Co. v. Robins, 5 S.W.3d 221, Prod. Liab. Rep. (CCH) &p;15623 (Tex. 1999).

2-year-old boy inadvertently lit a disposable, butane lighter causing a fire in his family's apartment. The boy, his mother and a sibling all died. The estate brought suit against the lighter manufacturer claiming the lighter was defective as it was neither child-proof nor child-resistant. The court held that when a child uses a lighter, it would not impose the intended user requirement to bar a product liability claim. Phillips ex rel. Estate of Williams v. Cricket Lighters, 2001 PA Super 109, 773 A.2d 802, Prod. Liab. Rep. (CCH) &p;16063 (Pa. Super. Ct. 2001), appeal granted, 567 Pa. 763, 790 A.2d 1018 (2001).

Court held that plaintiff could maintain a negligent design claim against a butane lighter manufacturer even though there lacked sufficient evidence to support a strict liability design defect claim against the butane lighter manufacturer. Hittle v. Scripto-Tokai Corp., 166 F. Supp. 2d 142, Prod. Liab. Rep. (CCH) &p;16175 (M.D. Pa. 2001).

Three-year-old boy sustained severe injury after setting fire to a pile of clothing with a disposable cigarette lighter. The boy's parents brought suit against the lighter manufacturer claiming the lighter was defectively designed for its lack of a child-proof design. The court, in remanding the case, found that under the risk-utility analysis, an open and obvious danger was not per se evidence that a product defect did not exist. Moreover, the court noted that the risk of a lighter falling into a child's hands where it can cause harm must be balanced against the lighter's utility to its intended user. The court went on to say that childproofing a lighter would neither destroy its utility nor render it unusable to adults. Additionally, a safer alternative was available. Robins v. Kroger Co., 80 S.W.3d 641 (Tex. App. Houston 1st Dist. 2002), petition for review filed, (July 24, 2002).

Four-year-old boy and his mother were killed in a fire allegedly started with a utility lighter manufactured by the defendant. The father brought a design defect claim, along with other claims, against the defendant lighter manufacturer. The lower court granted summary judgment and the appeals court reversed. The appeals court found that genuine issues of material fact existed as to whether the lighter was the source of the fire, whether the lighter was defectively designed due to a lack of child-resistant features, whether the child-resistant features could have been incorporated in an economically alternative design that was available at the time of manufacture and whether the manufacturer's failure to incorporate the child-resistant features and the lighter's toy-like gun appearance made the lighter unreasonably dangerous. Flock v. Scripto-Tokai Corp., 319 F.3d 231 (5th Cir. 2003).

Summary judgment denied in action brought against lighter manufacturer claiming its lack of child-resistant features rendered it defective. Court found that state's modified consumer expectations test incorporates risk-utility factors such as child safety features. The court went on to state that the plaintiff had submitted sufficient evidence under the risk utility analysis to defeat a motion for summary judgment. The court also found that the manufacturer's failure to recall the lighter was a viable basis for the plaintiffs' post-sale duty to warn claim. Savage v. Scripto-Tokai Corp., 266 F.Supp.2d 344, Prod.Liab.Rep. (CCH) P 16,660 (D.Conn. 2003).

Sampling of decisions claiming manufacturer has no duty to incorporate child-resistant features on disposable cigarette lighters:

4-year-old set fire to house with a Bic disposable cigarette lighter, killing 23-month old baby. Todd v. Societe BIC, S.A. (1994, CA7 Ill) 21 F3d 1402, reh'g and suggestion for reh'g en banc denied, (May 26, 1994) and cert den 513 US 947, 130 L Ed 2d 312, 115 S Ct 359. Plaintiff sued claiming the cigarette manufacturer was negligent and strictly liable. Court granted summary judgment in favor of defendants. See §2:12, p. 159, n. 16.50 for case discussion.

Three-year-old girl was severely burned when five-year-old brother set fire to her shirt with a candle he lit with a disposable, cigarette lighter. Kirk v. Hanes Corp. (1994, CA6 Mich) 16 F3d 705, 1994 FED App 56P, reh'g denied, (Mar. 28, 1994). Plaintiff, on behalf of the girl, sued the lighter manufacturer for negligent failure to make the lighter child-resistant. Court found for the cigarette manufacturer. " ... [W]here a manufacturer markets its simple tool only to adults, to whom the danger is obvious, and relies upon them to keep the product away from children, that reliance, is, as a matter of law, not negligent." Id at 710. Court then footnotes that this public policy may be superseded by CPSC regulation of cigarette lighters. See 58 F.R. 37,557-01 codified at 16 C.F.R. 1210.1-1210.20.

Manufacturer of cigarette lighter does not have a duty to make lighters child-resistant. Adams v. Perry Furniture Co. (1993) 198 Mich App 1, 497 NW2d 514, app den 445 Mich 901, 519 NW2d 860, reconsideration den sub nom Adams v. BIC Corp. (Mich) 522 NW2d 631. In so holding, court held that the dangers associated with the lighter were obvious to the typical user, i.e., an adult.

Sampling of mixed decision:

Court upheld district court's determination that the manufacturer of cigarette lighter was not strictly liable for injury to child that resulted from use of cigarette lighter as said manufacturer has no duty "to guard against foreseeable use by unintended users." Griggs v. BIC Corp. (1992, CA3 Pa) 981 F2d 1429. However, the court overturned the district court's determination that the lighter manufacturer had no duty to make their products child-resistant because the duty of care rests with child's adult caregiver. In so doing the court remarked:<qb><qp pstart="n">... if a manufacturer of cigarette lighters may reasonably foresee that they will fall into the hands of children, who, albeit unintended users, can ignite them with a probability of serious injury to themselves and others, and if childproofing the lighters is economically feasible, the manufacturer would have a duty to guard against the unreasonable risk of harm by designing the lighter to be childproof.</qp></qb><cp>Griggs v. BIC Corp., 981 F2d 1429, 1439.

The divergence of opinions addressing a manufacturer's duty to incorporate child-resistant features in cigarette lighters will likely be affected by the Consumer Product Safety Commission's (CPSC) decision to set mandatory safety standards for cigarette lighters. On <ntc ref.id="I03M6O2">June 9, 1993, the CPSC issued Release No. 93-080, reporting that a unanimous vote had been reached to set mandatory safety standards requiring all butane fuel disposable lighters, inexpensive, refillable, and novelty lighters, to be child-resistant. The safety standards become effective in the summer of 1994. The report revealed that "children under 5 years old playing with lighters cause more than 5,000 residential fires, resulting in approximately 150 deaths and more than 1000 injuries [annually.]" Additionally, "[m]ost young children who start fires by playing with lighters are ages 3 and 4. But, a child as young as 2 years old is capable of operating a lighter."

See Ray by Holman v. BIC Corp. (1996, Tenn) 925 SW2d 527 infra at §2:12, p. 161, n. 1 (in response to a certified question of law, the court found that the prudent manufacturer analysis applied to determine if cigarette lighter manufactured without child-resistant features was defective.) Id. at 50.578-79

Relying on Geier, infra, the court in Colon v. BIC USA, Inc., held the <sst ref.id="I03MF5R">Consumer Product Safety Act (CPSA) does not expressly preempt plaintiff's tort claims. Colon v. BIC USA, Inc., -- F. Supp. 2d --, 2001 WL 1631402 (S.D.N.Y. 2001) cert. denied 2001 WL 88230. After Geier, the presence of the savings clause in the <sst ref.id="I03MFE9">CPSA precludes a broad reading of preemption when applied to common law claims. Id. (six-year old boy was burned while playing with a cigarette lighter; parent brought tort action against cigarette lighter manufacturer.)

Court held the risk-utility analysis applied to a strict liability action claiming a lighter was defectively designed and unreasonably dangerous because it was not child-resistant. A 19-month-old baby sustained second and third degree burns over 80% of his body after his 3-year-old brother lit his crib on fire while playing with the lighter. The manufacturer's attempts to claim the risk-utility analysis applied only to complex products failed. The court noted the manufacturer was aware that children could start fires with their product, and there existed technologically and economically feasible design alternatives with child-resistant features. The court concluded that the manufacturer's duty under a negligence theory extended to designing a child-resistant lighter and a reasonable jury could have concluded that there was sufficient causation between the lighter's design and the fire. The court also found without merit the manufacturer's reliance on the defense of adult supervision to prevent child-related accidents as the claim's focus should have been on the manufacturer's conduct, not on the parents. Bartholic v. Scripto-Tokai Corp, 140 F. Supp.2d 1098 (Colo 2001).

Based on a recent CPSC report, CPSC safety standard mandating disposable cigarette lighters and novelty lighters to be child-resistant has resulted in a substantial decrease in deaths, injuries, and fires. <ntc ref.id="I03MFY9">5 Consumer Product Safety Review 5 (Winter 2001). CPSC implemented a further safety measure, effective December 2000, requiring child-resistant mechanisms on household multi-purpose lighters.

<ntc ref.id="I03MFZM">5 Consumer Product Safety Review 5 (Winter 2001).

[20] Nowak by & Through Nowak v. Faberge USA (1994, CA3 Pa) 32 F3d 755.

In a products liability action, the court found that chemist's expert testimony that a fire victim's use of hair spray manufactured by the defendant contributed to the victim's death was admissible. The court reasoned the opinion was not based on speculation, but rather on personal experience and the expert's knowledge of flammability of protein-based material. Patterson v. Conopco, Inc., 999 F. Supp. 1417 (D. Kan. 1997).

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