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May 17, 1999


The opinion of the court was delivered by: McCLURE, District Judge.



On December 23, 1996, plaintiff Travis L. Shouey commenced this action with the filing of a complaint against defendants Stanwood Corporation and Standard Knitting Mills, Inc. After some confusion about the proper party defendant, a second amended complaint was filed on July 24, 1997, naming defendant Duck Head Apparel Co., Inc. Shouey, a minor bringing this action through Sharline Litz, his parent and natural guardian, alleges that he was injured while wearing a shirt manufactured by Duck Head's predecessor in interest. On August 25, 1984, Shouey apparently was playing with a lighter when the shirt caught fire. He asserts claims for negligence/gross negligence (Count I), breach of an implied warranty (Count II), and strict products liability (Count III).

On October 6, 1997, Duck Head filed a third-party complaint alleging that Litz was negligent in leaving the lighter where Shouey could have access to it and for failing to supervise Shouey. On June 18, 1998, with leave of court, Duck Head filed a third-party complaint alleging that third-party defendant Zippo Mfg. Co. was liable to Duck Head because the lighter manufactured by Zippo caused the injury to Shouey.

Before the court are motions for summary judgment filed by Duck Head and Zippo.



  Summary judgment is appropriate 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
judgment as a matter of law." Fed. R.Civ.P. 56(c) (emphasis

   . . [T]he plain language of Rule 56(c) mandates
  the entry of summary judgment, after adequate time
  for discovery and upon motion, against a party who
  fails to make a showing sufficient to establish the
  existence of an element essential to that party's
  case, and on which that party will bear the burden of
  proof at trial. In such a situation, there can be `no
  genuine issue as to any material fact,' since a
  complete failure of proof concerning an essential
  element of the nonmoving party's case necessarily
  renders all other facts immaterial. The moving party
  is `entitled to judgment as a matter of law' because
  the nonmoving party has failed to make a sufficient
  showing on an essential element of her case with
  respect to which she has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex at 323, 106 S.Ct. 2548. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex at 325, 106 S.Ct. 2548.

Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248, 106 S.Ct. 2505. The court may not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. Boyle at 393; White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).

If the moving party satisfies its burden of establishing a prima facie case for summary judgment, the opposing party must do more than raise some metaphysical doubt as to material facts, but must show sufficient evidence to support a jury verdict in its favor. Boyle at 393 (quoting, inter alia, Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).


The facts underlying what occurred are, for the most part, not the subject of dispute. On August 25, 1984, Travis Shouey was four years old. Prior to that time, Shouey had only minor medical problems, but later was diagnosed as having SEDLD, partial retardation, and attention deficit disorder. Shouey lived in an apartment with his mother, Litz, sister, Muriel Yaw Dunkle, and stepfather, Luther Shouey.

On that date, Litz lit a cigarette with a Zippo lighter and placed the lighter and cigarette pack on an end table. She then went to the front door in response to a knock. The children, who had been playing with water in the bathroom, joined their mother at the door. While his mother was at the door talking to a neighbor, Shouey asked if he could change out of his wet shirt and went to his room to do so. He put on a shirt manufactured by Duck Head's predecessor in interest. The shirt was a T-shirt, children's size large (14-16), light blue with dark trim and a "Fuller Brush" advertisement on the front. It had been found in a laundromat by a friend of Litz, who allowed Shouey to wear it, although it was loose, baggy, and hung from Shouey's body.

When Shouey did not return to the front door, Litz sent Dunkle to find him. Dunkle informed Litz that Shouey was sitting alone in the living room watching television. The end table with the lighter and cigarettes was next to the chair occupied by Shouey.

Two weeks earlier, Shouey's natural father had allowed him to play with an empty lighter. Believing that it was permissible to play with the Zippo lighter, Shouey picked it up and began flipping the wheel while holding the lighter close to his body. Apparently, the lighter ignited and the shirt caught fire. Shortly thereafter, Litz discovered Shouey on fire and extinguished the flames with a blanket.

Any additional facts will be discussed in the context in which they are, or may be according to at least one party, material for purposes of summary judgment.


(A) Count I — Negligence

Duck Head moves for summary judgment with respect to the negligence claim because the T-shirt was not used as sleepwear, it met federal standards of flammability for children's sleepwear, and there is no evidence that a warning would have changed the course of events.

The Supreme Court of Pennsylvania recently summarized the state law*fn1 of negligence as follows:

    To establish a cause of action in negligence, the
  plaintiff must demonstrate that the defendant owed a
  duty of care to the plaintiff, the defendant breached
  that duty, the breach resulted in injury to the
  plaintiff, and the plaintiff suffered an actual loss
  or damage. Reilly v. Tiergarten Inc., 430 Pa. Super. 10,
  14, 633 A.2d 208, 210 (1993), alloc. denied,
  538 Pa. 673, 649 A.2d 675 (1994). Negligence is the
  absence of ordinary care that a reasonably prudent
  person would exercise in the same or similar
  circumstances. Lanni v. Pennsylvania R. Co.,
  371 Pa. 106, 88 A.2d 887 (1952). See also Pa. SSJI
  (Civ) 3.01. The mere occurrence of an accident does
  not establish negligent conduct. Butler v. City of
  Pittsburgh, 113 Pa.Cmwlth. 406, 410, 537 A.2d 112,
  114, alloc. denied, 519 Pa. 655, 546 A.2d 60
  (1988). Rather, the plaintiff has the burden of
  establishing, by a preponderance of the evidence,
  that the defendant engaged in conduct that deviated
  from the general standard of care expected under the
  circumstances, and that this deviation proximately
  caused actual harm. Hamil v. Bashline, 481 Pa. 256,
  392 A.2d 1280 (1978).

Martin v. Evans, 551 Pa. 496, 501, 711 A.2d 458, 461 (1998), reargument denied.

As to the claim for gross negligence, such is not a separate claim because there are no degrees of negligence under Pennsylvania law. Ferrick Excavating and Grading Co. v. Senger Trucking Co., 506 Pa. 181, 191, 484 A.2d 744, 749 (1984). Rather, there are different standards of care which are not generally applicable in negligence cases. Id. at 191-192, 484 A.2d at 749 (degree of care relevant in bailment cases depends on which party, bailor or bailee, benefits from the bailment). Moreover, gross negligence is not relevant to damages because the standard for punitive damages is a higher degree of culpability. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991), reargument denied. We therefore will address Count I as asserting simply a claim of negligence.

Duck Head's argument in this context is primarily that it had no reason to know that the T-shirt would be used as children's sleepwear. We fail to see how the argument is pertinent, since the T-shirt plainly was not being used as sleepwear at the time that Shouey was burned. The question is not whether its use as sleepwear was foreseeable, but whether its use by a child and potential exposure to flames was foreseeable.

Duck Head recites, "If the makers of such common clothing are required to plan for the potential of the occurrence of accidents such as the one at issue in this case, `we might all be reduced to wearing asbestos clothing' due to clothing manufacturers' fear of liability." Brief in Support of Motion for Summary Judgment at 8. In support of this proposition, Duck Head cites Keirs v. Weber Nat'l Stores, Inc., 352 Pa. Super. 111, 117, 507 A.2d 406, 409 (1986). In that case, an adult was wearing a baseball jacket which was doused with gasoline and set ablaze. He sued under a theory of strict products liability. The Superior Court upheld the trial court's conclusion that the jacket could not be found defective "for not minimizing the effects of a fire set after the garment was doused with an accelerant." Id. at 117, 507 A.2d at 408. The case represents an application of the risk-utility or Azzarello test, discussed below in the context of strict products liability. Succinctly stated, the Superior Court held that a manufacturer need not foresee the possibility of inadvertent spills of highly flammable liquids or misuse of a product by dousing with such liquids, followed by exposure to a source of fire.

The situation described in Keirs varies significantly from the facts of this case. The wearer in Keirs was an adult and the clothing was soaked with an accelerant. The wearer in this case was a child and the clothing itself caught fire. In fact, the language of Keirs is contrary to the proposition for which it is cited by Duck Head:

    We do not suggest for a moment that clothing should
  not be designed with an eye toward the possibility
  that it might catch fire during the course of
  routine, day to day activities. Indeed, such
  obligation was generally found in those cases
  allowing recovery for injuries from clothes that did
  not adequately retard fire, and the public has been
  made acutely aware of the increased duty placed upon
  the makers of babies' pajamas, to cite just one

Id. at 117, 507 A.2d at 408-409.

Duck Head also points out that the T-shirt was rated Class 1 Normal Flammability. The fact that the garment needed to be tested for the rate at which it would burn suggests rather strongly that the manufacturer owes a duty to the user to provide a product that does not burn unreasonably quickly or in some other especially harmful manner, as by generating extraordinary heat or by melting. However, the fact that a fabric meets the federal standards for flammability does not affect the existence of (i.e. does not pre-empt) a common law cause of action. O'Donnell v. Big Yank, Inc., 696 A.2d 846 (Pa.Super. 1997), reargument denied, allocatur denied, 725 A.2d 182 (Pa. 1998) (table).

As a corollary, Duck Head argues that it did not owe a duty to warn because the product was not "unreasonably dangerous," language usually associated with strict products liability analysis (again, discussed below). In Overbeck v. Cates, 700 A.2d 970 (Pa.Super. 1997), reargument denied, allocatur denied, 553 Pa. 682, 717 A.2d 534 (1998) (table), the Superior Court held that a person who supplies a chattel to another may be liable under a negligence theory for physical harm caused by the use of the chattel if the supplier (1) knows or has reason to know that the chattel is in a dangerous condition, (2) has no reason to believe that those for whose use the chattel is supplied will realize the dangerous condition, and (3) fails to warn those for whose use the chattel is supplied of the dangerous condition. Id. at 972 (quoting RESTATEMENT (SECOND) OF TORTS, § 388).

Shouey's theory of liability in this case is that the T-shirt was highly flammable and that Duck Head (or its predecessor in interest) had reason to know of such, and failed to provide a reasonable warning. The T-shirt did not have to be "unreasonably dangerous," but only of such a nature as to cause the potential user to be "endangered by its probable use." Id.

Duck Head's final argument relating to the negligence claim is that there is no evidence that Litz would have heeded the warning. Duck Head first points out that Litz testified during her deposition that she knew that clothing such as the T-shirt would ignite if it came into contact with fire. Again, the question is the rate at which the T-shirt burned, not just that it burned (i.e. whether it was fire retardant, not fireproof).

Duck Head also cites Mattocks v. Daylin, Inc., 78 F.R.D. 663 (W.D.Pa. 1978),*fn2 a case also involving a minor injured by flammable clothing, for the proposition that a plaintiff must produce evidence that the parent would have read and heeded a warning. Actually, addressing the plaintiff's contention that she was entitled to a presumption that she would have read and adhered to a warning, the district court noted that the plaintiff had testified that it was not her practice to read such labels, apart from washing instructions. Mattocks at 665-666. Moreover, recent authority suggests that a plaintiff is entitled to a presumption such as that argued by the plaintiff in Mattocks.

In Pavlik v. Lane Limited/Tobacco Exporters International, 135 F.3d 876, 883 (3d Cir. 1998), a strict products liability action based on a failure to warn, the Third Circuit noted that comment j to RESTATEMENT (SECOND) OF TORTS, ยง 402A, is applicable under Pennsylvania law. Comment j provides that a seller is entitled to assume that a warning will be read and heeded. The problem with an instance of no warning or insufficient warning is that causation is difficult to prove: the plaintiff must demonstrate what would have happened or what might have happened, as opposed to what actually did happen. Id. at 882-883. The Third Circuit pointed out that it logically follows from comment j that a user is entitled to an evidentiary presumption ...

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