Appeal from the United States District Court for the Middle District of Pennsylvania. D.C. Civil No. 90-02125.
Before: Mansmann, Roth, and Rosenn, Circuit Judges
This diversity litigation arises out of serious injuries sustained by an infant as a result of a childplay fire ignited with a disposable butane cigarette lighter by his older half-brother. Two principal issues are raised on appeal, one of which the parties agree is an issue of first impression, namely, whether the lighter was defective under strict products liability law because it was not designed by the manufacturer to be "childproof."*fn1 The second issue is whether the manufacturer had a duty under negligence law to manufacture a childproof lighter when childplay lighter fires were foreseeable and a childproof safety design was feasible at the time. The district court granted the manufacturer's motion for summary judgment. Griggs v. BIC Corp., 786 F. Supp. 1203 (M.D. Pa. 1992). The court concluded that the manufacturer had no duty under strict liability law to manufacture a lighter resistant to child play and that BIC was entitled to summary judgment on the negligence claim as well. The plaintiffs timely appealed. We affirm on the issue of strict liability, but reverse on the issue of negligence.
The material facts are not in dispute and can be stated briefly. On October 10, 1985, Zachary Griggs, then aged 11 months, sustained serious injuries in a fire at his Pennsylvania home that his three year old stepbrother, Kenneth Hempstead, ignited with a disposable butane cigarette lighter manufactured by the defendant BIC Corporation (BIC). Kenneth removed the lighter from his stepfather's pants pocket in the early hours of the morning and set fire with it to Zachary's bedding while the rest of the household slept. Two incidents within six months preceded this fire, in which Kenneth attempted to light either matches or a lighter, of which his parents were aware and for which they disciplined Kenneth. Prior to Zachary's injuries, his mother had seen warnings that BIC placed on the packaging of its lighters to keep them away from children. She was also independently aware that these lighters should be kept out of the reach of children.
Plaintiffs, Timothy W. Griggs and Catherine H. Griggs, individually and as parents and guardians of Zachary, sued BIC in the United States District Court for the Middle District of Pennsylvania alleging that BIC's failure to manufacture a childproof lighter constituted both defective and negligent design.
Our review of the district court's grant of summary judgment is plenary. Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir. 1990). "The appellate court is required to apply the same test the district court should have utilized initially." Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413 (3d Cir.), cert. denied, 116 L. Ed. 2d 330, 112 S. Ct. 379 (1991) (quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977)). The district court shall render summary judgment forthwith "if the pleadings, depositions, answers to interrogatories, and admissions on file . . . 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).
Federal courts sitting in diversity "must apply the substantive law of the state whose laws govern the action." Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938)).*fn2 We therefore turn to the substantive law of Pennsylvania to evaluate the propriety of the district court's grant of summary judgment in this case. "In cases where the state's highest court has not considered the precise question to be answered, the federal court is called upon to predict how the state court would resolve the issue should it be called upon to do so." Id. (citations omitted).
In Webb v. Zern, 422 Pa. 424, 220 A.2d 853, 854 (1966), the Pennsylvania Supreme Court adopted section 402A of the Restatement (Second) of Torts (hereinafter Restatement) as the law of strict products liability in Pennsylvania.*fn3 That court subsequently established that section 402A "imposes strict liability in tort not only for injuries caused by the defective manufacture of products, but also for injuries caused by defects in their design." Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 592 (1987) (citations omitted).
A central goal of strict liability doctrine is to relieve the plaintiff of proof problems associated with negligence and warranty theories of liability. The Pennsylvania Supreme Court has stated that "strict liability requires, in substance, only two elements of requisite proof: the need to prove that the product was defective, and the need to prove that the defect was a proximate cause of the plaintiff's injuries." Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 898 (Pa. 1975) (footnote omitted).*fn4 The Supreme Court of Pennsylvania adopted this goal on the principle that the realities of our economic society today compel "the Conclusion that the risk of loss for injury resulting from defective products should be borne by the suppliers, principally because they are in a position to absorb the loss by distributing it as a cost of doing business." Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1023 (1978).
Courts, keeping pace with the advances in our complex industrial and commercial world, have concluded that the doctrine of caveat emptor, which prevailed in the early nineteenth century marketplace to protect an emerging manufacturing industry, should give way to a concept more concerned with a helpless consumer who is vulnerable to the perils of such products because of the aggressive marketing and advertising tactics of today's commercial world.*fn5 Most courts have therefore adopted the concept that the suppliers of defective products should bear the risk of loss without regard to fault or privity of contact. Id. at 1024.
The plaintiffs maintain, therefore, that under the strict products liability rule adopted by Pennsylvania, misuse or abuse of a product is not a defense to products liability claims. They argue that the Pennsylvania rule is that products "used in an unintended manner can be Judged defective if the change, misuse, or abuse is foreseeable to the manufacturer." Thus, they do not claim the BIC lighter was defective because it failed to perform in the manner for which it was intended, but that it was defective because it was not childproof. They also make the expansive claim, citing Azzarello and Berkebile, that "it has been determined that industry can and should pay for all injuries and deaths that are caused by defective or unsafe products." In other words, they assert that under current law the manufacturer is an insurer of injuries caused by defective or unsafe products.
Our focus at this point of review is, therefore, on the elements of product defect. The determination of whether a product is defective has two parts. Foley v. Clark Equip. Co., 361 Pa. Super. 599, 523 A.2d 379, 382 (citing Azzarello, 391 A.2d at 1020 (Pa. 1978)), appeal denied , 516 Pa. 614, 531 A.2d 780 (1987), disapproved en banc on other grounds, 370 Pa. Super. 611, 537 A.2d 334 (1988). The first requires the court to determine as a matter of law where the risk of loss shall fall in a given strict liability case. If the court, taking the plaintiffs' averments regarding the condition of the product as true, determines that the risk of loss should fall on the manufacturer as a matter of law, then the second part of the determination must be made. Only then is it up to the fact finder to determine if the product was indeed sold in a defective condition as alleged. Azzarello, 391 A.2d at 1025-26.
While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is present where a decision as to whether that condition justifies placing liability upon the supplier must be made. . . . Should an ill-conceived design which exposes the user to the risk of harm entitle one injured by the product to recover? . . . [This is a question] of law and [its] resolution depends upon social policy. . . . It is a judicial function to decide whether, under plaintiff's averment of the facts, recovery would be justified; and only after the judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of the complaint.
Id. (footnote omitted). A judicial determination that Pennsylvania's social policy does not support placing the risk of loss on the manufacturer in a strict products liability case is the equivalent of a judicial Conclusion that the product is not defective under strict product liability law, and courts often mix ...