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MALONE v. BIC CORP.

April 14, 1992

CHRISTINE MALONE, as mother and next friend of JOHN KURI, a minor, Plaintiff,
v.
BIC CORPORATION, a foreign corporation, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

ORDER

 Before the court is the motion of BIC Corporation ("defendant"), pursuant to Federal Rule of Civil Procedure 56, for summary judgment. For reasons stated below, the court denies the motion.

 FACTS

 John Kuri ("John"), on March 4, 1988, was a six year old boy and an Illinois resident. It is not entirely clear how, but it is certain that on that day John discovered and began to play with a brightly-colored Mini-BIC lighter ("the lighter") that someone in his family had brought home. As he was doing so, he manipulated it, igniting his clothing and causing second degree burns on his chest, arms, and legs.

 Early in the litigation, defendant moved for a stay of discovery which the court granted over plaintiff's objections. Defendant then moved for summary judgment. In the motion, defendant stipulated that on the date John was injured (1) it was feasible to design and manufacture a child-resistant Mini-BIC lighter and (2) it was reasonably foreseeable that a child of John's age could obtain and operate a Mini-BIC lighter. *fn1" This stipulation attempts to strip this case of all factually-related issues and leave the court with a question of law: whether a manufacturer of a disposable selectively actuatable lighter has a duty to incorporate design changes that would make the lighter child-resistant to a child of John's age or change its warnings in any respect.

 DISCUSSION

 Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Capital Options Inv., Inc. v. Goldberg Bros. Commodities, Inc., 958 F.2d 186, 1992 U.S. App. LEXIS 4709, at *6 (7th Cir. 1992). Notwithstanding a mandate to draw all reasonable inferences are drawn in favor of the party opposing the motion, Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1992 U.S. App. LEXIS 4522, at *11 (7th Cir. 1992), a scintilla of evidence will not suffice to oppose a motion for summary judgment. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Nor will some metaphysical doubt suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Moreover, the disputed facts must be those that might affect the outcome of the suit to properly preclude summary judgment, First Ind. Bank v. Baker, 957 F.2d 506, 1992 U.S. App. LEXIS 4711, at *5 (7th Cir. 1992) (citation omitted), and a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 A seller who places his product in the stream of commerce has a non-delegable duty to make sure his product is reasonably safe. Doser v. Savage Mfg. & Sales, Inc., 142 Ill. 2d 176, 188, 568 N.E.2d 814, 819, 154 Ill. Dec. 593 (1990). That duty is imposed in Illinois under the standard enunciated in the Restatement (Second) of Torts § 402A as adopted in Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182 (1965). The rule imposes strict liability, that is, liability without fault ( Lundy v. Whiting Corp., 93 Ill. App. 3d 244, 254, 417 N.E.2d 154, 163, 48 Ill. Dec. 752 (1st Dist. 1981)), on one who sells a product in a defective condition which condition renders the product unreasonably dangerous to the user or consumer who is injured by that defective product. Suich v. H & B Printing Mach., Inc., 185 Ill. App. 3d 863, 873, 541 N.E.2d 1206, 1213, 133 Ill. Dec. 768 (1st Dist. 1989). The liability is strict but not absolute; the plaintiff must still prove that the product was defective and that the defect rendered the product unreasonably dangerous. Baltus v. Weaver Div. of Kidde & Co., 199 Ill. App. 3d 821, 830, 557 N.E.2d 580, 586, 145 Ill. Dec. 810 (1st Dist. 1990).

 Strict liability is just one basis for a product liability suit. A plaintiff may also sue based on the negligence of the defendant. See, e.g., Heyen v. Sanborn Mfg. Co., 223 Ill. App. 3d 307, 584 N.E.2d 841, 165 Ill. Dec. 407 (4th Dist. 1991) (discussing pleading requirements of products liability case sounding in negligence). Negligence differs from strict liability in that the fault issue surfaces for the first time-liability cannot be imposed unless plaintiff can demonstrate that the defendant was at fault for plaintiff's injuries. Baltus, 199 Ill. App. 3d at 829, 557 N.E.2d at 585; cf. Coney v. J.L.G. Indus., Inc., 97 Ill. 2d 104, 117-18, 454 N.E.2d 197, 203, 73 Ill. Dec. 337 (1983) (discussing application of contributory negligence doctrine in strict liability cases). The elements of an action sounding in negligence are existence of a duty owed to plaintiff by defendant, a breach of that duty, proof that the breach of that duty proximately caused plaintiff's injuries, and damage to plaintiff as a result of that breach. Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226, 143 Ill. Dec. 288 (1990).

 In either type of case, a product may be unreasonably dangerous in one of two ways, either the product itself is defective, or the warnings given about the product are inadequate. McColgan v. Environmental Control Sys., Inc., 212 Ill. App. 3d 696, 699, 571 N.E.2d 815, 817, 156 Ill. Dec. 835 (1st Dist. 1991) (citing Lamkin v. Towner, 138 Ill. 2d 510, 528, 563 N.E.2d 449, 457, 150 Ill. Dec. 562 (1990)). Product liability suits thus may be grouped into three general categories: 1) manufacturing defect cases 2) design defect cases and 3) failure to warn cases. This case primarily implicates the second although the third could potentially become an issue. Yet as the issue is framed-whether a manufacturer of a disposable selectively actuatable lighter has a duty to incorporate design changes that would make the lighter child-resistant to a child of John's age or change its warnings in any respect-it is clear that the initial question that must be answered is whether the defendant owed a duty to John at all. If there is no duty in the first place, then defendant is entitled to judgment as a matter of law. Under both strict liability and negligence, determination of whether a defendant owed a duty to a plaintiff is ostensibly a question of law. Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 265, 560 N.E.2d 324, 343, 148 Ill. Dec. 22 (1990).

 The parties differ on what test Illinois courts apply to determine whether a manufacturer had a duty to incorporate design changes in a products liability action. In Illinois, there are two methods. First, plaintiff may introduce evidence that the product failed to perform as a reasonable consumer would expect. Lamkin, 138 Ill. 2d at 529, 563 N.E.2d at 457. This test is commonly known as the consumer-contemplation test and has been the long-standing rule in Illinois. Smith v. American Motors Sales Corp., 215 Ill. App. 3d 951, 576 N.E.2d 146, 159 Ill. Dec. 477 (1st Dist. 1991); W. Page Keeton, Prosser & Keeton on Torts § 99, at 698 (5th ed. 1984). The second method, and one that has developed much more recently, supports a finding of liability if the plaintiff introduces evidence that the product's design proximately caused his injury and defendant then fails to prove that, on the balance of the risk the benefits of the challenged design outweigh the risk of danger inherent in such designs. Lamkin, 138 Ill. 2d at 529, 563 N.E.2d at 457. This test is commonly known as the risk-benefit, risk-utility, or danger-utility test. Prosser & Keeton on Torts, § 99, at 698.

 Contrary to defendant's assertion, these tests form the dual bases by which a plaintiff may prove that a manufacturer had a duty to incorporate a design change in a product liability case. Cf. Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 456-57, 585 N.E.2d 166, 173-74, 165 Ill. Dec. 770 (5th Dist. 1991) (exhaustive discussion of duty and stating that risk-benefit test applies in product liability cases). Additional support for this conclusion is gained from the Seventh Circuit's recent opinion in Faucett v. Ingersoll-Rand Mining & Machinery Co., 960 F.2d 653, 1992 U.S. App. LEXIS 5797 (7th Cir. 1992), which reached the same conclusion on its way toward reversing a grant of summary judgment for defendant under the consumer-contemplation test. Undoubtedly, however, the test has its limit. When the danger is so obvious that all users should be aware of the danger, the manufacturer has no duty to incorporate the changes. See, e.g., Lamkin, 138 Ill. 2d 510, 563 N.E.2d 449, 150 Ill. Dec. 562 (1990) (no duty to protect against child falling through window screen); Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106, *112, 569 N.E.2d 1147, 1151, 155 Ill. Dec. 536 (4th Dist. 1991) (no duty to protect restaurant employee from obvious danger of hot oil in frying vat). *fn2"

 Plaintiff does not argue that defendant had a duty under a consumer-contemplation test analysis. He does however, believe that he can demonstrate a duty ...


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