Hernandez v. Tokai Corporation, 2 S.W.3d 251

Supreme Court of Texas

1999

Chapter

16

Title

Products Liability

Page

663

Topic

The Definition Of Defective

Quick Notes

A five year old started a fire with a lighter that burned her bother.  The lighter was not child proof. 

Book Name

Torts Cases, Problems, And Exercises.  Weaver, Third Edition.  ISBN:  978-1-4224-7220-0.

Issue

o         Whether a disposable butane lighter, intended only for adult use can be found to be defectively designed if it does not have a child-resistant mechanism that would have prevented or substantially reduced the risk of injury from a child's foreseeable misuse of the lighter?  The defective design claim may proceed.

Procedure

Trial

o         District Court Granted Summary Judgment for Tokai

Supreme

o         The court held that a defective-design claim may proceed for an injury caused by a product that did not have a child-resistant mechanism that would have prevented or substantially reduced the risk of injury from a child's foreseeable misuse only if, with reference to the product's intended users, the design defect (1) made the product unreasonably dangerous, a (2) safer alternative design was available, and the (3) defect was the cause of the injury.

Facts

Reason

Rules

o         Pl - Hernandez

o         Df - Tokai Corporation

What happened?

o         Rita was the mother of Gloria and Gloria had two children Daphne and Ruben.

o         Rita had disposable lighters at her bar that Gloria would occasionally take home.

o         Daphne took a lighter from her mothers purse, started a fire, which severely burned her two-year-old brother.

Claim

o         The lighter was defectively designed and unreasonably dangerous because it did not have a child-resistant safety mechanism that would have prevented or substantially reduced the likelihood that a child could have used it to start a fire.

Trial Court Summary Judgment

o         Tokai

Appeal

o         Hernandez

Tex. Civ. Prac. & Rem. Code 82.005

(a) In a products liability action in which a claimant alleges a design defect, the burden is on the claimant to prove by a preponderance of the evidence that:

(1) there was a safer alternative design; and  (Majority Rule)

This has to be satisfied first, before we go to the risk utility test.

(2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery.

(b) In this section, "safer alternative design" means a product design other than the one actually used that in reasonable probability:

(1) would have prevented or significantly reduced the risk of the claimant's personal injury, property damage, or death without substantially impairing the product's utility; and

(2) Was economically and technologically feasible at the time the product left the control of the manufacturer or seller by the application of existing or reasonably achievable scientific knowledge.

American Tobacco Co. v. Grinnell (Risk-Utility Analysis)

1.   The utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use;

2.   The availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive;

3.   The manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;

4.   The user's anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions, and

o         The obviousness of danger is not an absolute bar.

5.   The expectations of the ordinary consumer.

The Statute (Only has Two Elements)

1. A safer alternative design, AND
2. Producing cause

RS Third Torts

o         A reasonable alternative design is a prerequisite to a design-defect liability, as does the law in most jurisdictions.

Common Law Considerations

1.         The product was defectively designed so as to be unreasonably dangerous, taking into consideration the utility of the product and the risk involved in its use.

2.         The injury was caused by a child's misuse of the product, the risk of which was obvious to the product manufacturer

o         Foreseeability of risk of harm is a requirement for liability for a defectively designed product.   (if it is foreseeable misuse, then there is strict liability).

o         A product need NOT be design to avoid unforeseeable risks.

o         Product misuse is NOT a bar to liability for the portion of the injury cause by the defective design.

o         Court:  Daphnes misuse does not preclude Ruben from recovering damages cause by the lighters defective design.

3.         The risk of injury from a child's misuse of the product was also obvious to the product's intended adult users.

o         Hernandez and Emeterios acknowledge the awareness of the dangers involved in allow children to play with lighters; however, it is not an absolute bar to recovery.

o         Ct:  The obviousness of danger is not an absolute bar.  (This question was asked).  This is one more factor to consider.

4.         A safer alternative was available (prerequisite to liability.

o         This is both a prerequisite under the statute and under the common law.

o         The statute requires a claimant to prove that an alternative design (i) would in reasonable probability have prevented or significantly reduced the risk of the claimant's injury or damage (ii) without substantially impairing the product's utility, and (iii) was economically and technologically feasible when the product was manufactured or sold.

o         Hernandez must prove, by a preponderance of the evidence that the child-resistant design available when the lighter was manufactured (the parties all agree that such a design was feasible then) would in reasonable probability have prevented or significantly reduced the risk of Ruben's being burned as a result of his sister's misuse of the lighter without substantially impairing the lighter's utility to the product's intended adult users.

o         A safer design alternative is necessary, but NOT sufficient to maintain a defective-design claim.

o         The claimant must also prove a design defect.

o         Design Defect which is a condition of the product that renders it "unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use."

5. The product was intended to be used only by adults.

o         A products utility and risk under the common-law test must both be measured with reference to the products intended users.

o         A product intended for adults need NOT be childproof.  (Does a saw have to be designed for everybodys use? foreseeable)

o         The risk that adults will allow children access to them, must be balance against the products utility to their intended users.

o         Hold hostage to the least common denominator.

Caterpillar Co. v. Shears

o         A front-end loaders canopy was designed to be removed.

o         Another front-end loader hit the front-end loader that had its canopy removed in order to do some work.  A worker was injured and sued for defective design that the canopy should not have been designed to be removable.

o         RULE:  That a product that is safe for its intended use is NOT defectively designed merely because it is unsafe in other circumstances.

Restatement Examples

o         Smaller car that is not a crashworthy as a larger car.

o         A bullet proof vest that does not wrap around and only covers the front and back.

o         An unintended user would hold other users HOSTAGE to the lowest common denominator.

The utility of disposable lighters must be measured with reference to the intended adult users.

o         Tokai sells both lighters.  Some users simply prefer lighters with child-resistance features.

*** RULE ***

In sum, a manufacturer's intention that its product be used only by adults does not insulate it from liability for harm caused by a child who gains access to the product, but liability standards must be applied in the context of the intended users.

Class Notes

A five year old started a fire with a lighter that burned her bother.  The lighter was not child proof. 

Holding

The court held that a defective-design claim may proceed for an injury caused by a product that did not have a child-resistant mechanism that would have prevented or substantially reduced the risk of injury from a child's foreseeable misuse only if, with reference to the product's intended users, the design defect (1) made the product unreasonably dangerous, a (2) safer alternative design was available, and the (3) defect was the cause of the injury.

When a federal court does not know what to do, they will certify the question to the supreme court of the state.

Here the court is answer the certified state question.

Tex. Civ. Prac. & Rem. Code 82.005

(a) In a products liability action in which a claimant alleges a design defect, the burden is on the claimant to prove by a preponderance of the evidence that:

(1) there was a safer alternative design; and  (Majority Rule)

This has to be satisfied first, before we go to the risk utility test.

(2) the defect was a producing cause of the personal injury, property damage, or death for which the claimant seeks recovery.

American Tobacco Co. v. Grinnell (Risk-Utility Analysis)

1.       The utility of the product to the user and to the public as a whole weighed against the gravity and likelihood of injury from its use;

2.       The availability of a substitute product which would meet the same need and not be unsafe or unreasonably expensive;

3.       The manufacturer's ability to eliminate the unsafe character of the product without seriously impairing its usefulness or significantly increasing its costs;

4.       The user's anticipated awareness of the dangers inherent in the product and their avoidability because of the general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions, and

o        The benefit tends to outweight the rest.

o        The obviousness of danger is not an absolute bar.

5.       The expectations of the ordinary consumer.  (Consumer Contemplation Test)