Children Should Not Play With Matches Or Cigarette Lighters - DD 3/06

Defense Digest

Children Should Not Play With Matches...Or Cigarette Lighters

On November 30, 1993, two-year-old Jerome Campbell was playing with his mother's disposable Cricket butane lighter. The lighter did not have any "child resistant" features. While playing with the lighter, Jerome was able to ignite a flame, which then caused an extensive fire, resulting in his own death, the death of two other children, and severe injuries to another child. The estates of the deceased and the injured children sued the manufacturer of the lighter under various theories, including both strict liability and negligence, negligent infliction of emotional distress, breach of implied warranty, and punitive damages. It was the theory of the plaintiffs that the manufacturer and distributor were responsible for what occurred because the lighter should have been "child-proofed." Accordingly, the plaintiffs claimed Cricket was negligent and had produced a defective product. Before the trial could commence, pre-trial motions resulted in the dismissal of the entire case by the Mercer County trial judge. After a number of appeals and a remand, the case reached the Pennsylvania Supreme Court for the second time, resulting in the decision and opinion in Phillips, et al. v. Cricket Lighters, et al., 883 A.2d 439 (Pa. 2005).

In Phillips, the Supreme Court was ultimately confronted with determining whether the manufacturer of a cigarette lighter could be held responsible for compensatory damages under a theory of breach of implied warranty and negligence, as well as punitive damages. The Court concluded a jury could consider the liability of the manufacturer on a theory of negligence but a claim for breach of implied warranty did not exist under the facts of this case, nor did the evidence support awarding punitive damages.

In analyzing the question of whether a breach of warranty of merchantability claim would lie against the manufacturer of a cigarette lighter, the Court examined basic principles of warranty law. The plaintiffs argued the lighter was not "merchantable," and therefore, in breach of warranty. The Court determined that the concept of merchantability does not mean a product must be incapable of causing harm when misused. It was clear that the use of a lighter by a two-year-old is not an intended use of the product. The Court pointed out that merchantability more properly means a product or good must be fit for the "ordinary purpose" for which it is used. In applying this definition to a cigarette lighter, the Court stated, "It is apparent that the ordinary purpose of the Cricket lighter was to allow an adult user to produce a flame." In speaking to what was not an ordinary purpose, the Court stated, "[I]t's ordinary purpose certainly was not to be a two-year-old child's play thing." Further, there was no argument the fire was caused by some mechanical malfunction of the lighter. Therefore, the Court held the claim of lack of merchantability could not support a recovery for breach of warranty.

With regard to the punitive damages claim, the Court again started with some basic principles. Punitive damages are not designed to compensate an individual for loss but rather "to heap an additional punishment on a defendant who is found to have acted in a fashion which is particularly egregious." In awarding punitive damages, there needs to be evidence that a defendant has acted "in a particularly outrageous fashion."

In support of the claim for punitive damages, the plaintiffs had pointed to statistics showing that children playing with lighters result in the deaths of 120 people per year, with an additional 750 being injured due to fires. Additional evidence established the estimated cost of children-caused-butane lighter fires to between $300 to $375 million, or 60 to 75 cents per lighter sold. Additionally, it was alleged the manufacturer of the lighter knew of the danger posed by children playing because lighters manufactured subsequent to the lighter in question did have child-resistant features.

The defendants did, in fact, admit and acknowledge an understanding of the dangers posed by children playing with lighters. However, a decision was made that not all lighters would be equipped with child-proof features, in part, based upon market surveys that had demonstrated adult customers disliked the lighters with the child-resistant features. Apparently, these features made the lighter more difficult to use and, therefore, were less attractive to an adult buyer. The Court did not agree with the plaintiffs' assertion that the consideration of marketability resulted in a determination of outrageous conduct on the part of Cricket. As the Court put it, the evidence did not show that Cricket "had some evil motive, such as intentionally manufacturing a lighter with the express wish that children misuse it and start fires."

In further supporting its decision, the Court pointed out that the fire in question did not start when the product was being used as intended but, rather, when it "was improperly utilized as a toy by a young child." At the time it was manufactured, the lighter complied with all safety standards, and the failure to necessarily include child-proof features due to economic concerns did not establish wanton conduct on the part of the manufacturer.

*Thom is a shareholder in the firm's Erie, PA office. He can be reached at (814) 461-7809 or tmlent@mdwcg.com.