Rodney Todd, as Special Administrator of the Estate of Tiffany Todd v. Societe Bic, S.A., and Bic Corporation

21 F.3d 1402
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 26, 1994
Docket92-1201
StatusPublished
Cited by140 cases

This text of 21 F.3d 1402 (Rodney Todd, as Special Administrator of the Estate of Tiffany Todd v. Societe Bic, S.A., and Bic Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodney Todd, as Special Administrator of the Estate of Tiffany Todd v. Societe Bic, S.A., and Bic Corporation, 21 F.3d 1402 (7th Cir. 1994).

Opinions

MANION, Circuit Judge.

Two-year-old Tiffany Todd died tragically when four-year-old Cori Smith used a Bic lighter to start a fire in Tiffany’s bedroom. Tiffany’s estate sued the lighter manufacturer and the district court granted summary judgment in favor of the defendants. After rehearing the appeal en banc,1 a majority of [1404]*1404this court concluded that the warning printed on the lighter — “KEEP OUT OF REACH OF CHILDREN” — was adequate, and that summary judgment on the issue of duty to warn was proper. However, to ensure that the law we applied on the other issues in the case was genuine state law, we certified to the Illinois Supreme Court questions which examined the proper application of the consumer contemplation test and the risk-utility test under Illinois products liability law. The Illinois Supreme Court promptly declined to answer the certified questions. These issues thus return to this court sitting en banc.

Generally, this case concerns Illinois strict products liability law. In Illinois and elsewhere, strict products liability law evolved as a “special rule applicable to sellers of products”,2 which went beyond the traditional boundaries of warranty and negligence law, to provide a broader method of recovery for persons injured by defective products. See William L. Prosser, Law of Torts, 641-682 (4th ed. 1971). Although the scope of strict products liability law is broader than negligence or warranty law, it is not unlimited. Only those who sell “unreasonably dangerous” products fall within its reach. Restatement (Second) of Torts § 402A.

In this case we consider whether a manufacturer should be subject to liability for producing a disposable lighter which a child used to start a deadly fire. This inquiry pivots on one basic question: whether a disposable fighter is unreasonably dangerous under Illinois strict products liability law. The district court determined that a lighter is not unreasonably dangerous, and granted summary judgment for the manufacturer. The plaintiff appeals. We now affirm the district court’s grant of summary judgment.

I. Background

Two young families, the Smiths and the Todds, shared a house in rural Earlville, Illinois. All four adults in the house smoked, and all used disposable cigarette lighters. About a week before the fire which caused the death in this case, four-year-old Cori Smith got hold of one of these fighters and set a small fire in her parents’ bedroom. The fire was quickly extinguished, and Cori’s parents admonished her never to play with lighters or matches. The adults also warned the other five children who lived in the house about the dangers of fire.

The next Sunday, March 27, 1988, Cori awoke before her parents and went downstairs, where her brother was watching cartoons. She spied a green lighter on an end-table in the living room. She took the lighter upstairs into a bedroom where twenty-two month old Tiffany Todd was sleeping. Cori used the lighter to ignite some papers which were on the floor. She then took the fighter back downstairs and replaced it on the end-table. The adults did not wake in time to prevent the ensuing conflagration. Tiffany Todd was killed in the fire. Everyone else escaped unharmed.

On behalf of her estate, Tiffany’s father, Rodney Todd, sued the fighter’s manufacturer, Bic Corporation, claiming that the company was negligent and strictly liable for selling a defective product. Todd rested both his negligence and strict liability claims primarily on allegations that the fighter was unreasonably dangerous because it did not include a child-resistant feature, and did not provide an adequate warning. After some discovery, Bic moved for summary judgment. Bic never denied that it was possible to manufacture a fighter with child-resistant features. In fact, undisputed evidence adduced in discovery showed that at the time of the fire Bic had developed a prototype fighter which was child-resistant — because it required greater dexterity to operate — although not child proof. Bic contended, however, that the fighter Cori used was not unreasonably dangerous to consumers. Bic also vigorously defended the adequacy of the warning it placed on the fighter. The warning on the lighter which Cori found on the end-table while her parents slept, read simply, “KEEP OUT OF REACH OF CHILDREN.”

[1405]*1405In a comprehensive order, the district court granted summary judgment for Bic. The court determined that an ordinary lighter, which did nothing more than provide the small flame it was intended to provide, was not defective; therefore, Bic was neither strictly liable nor negligent. The court also considered the lighter’s warning and concluded that it was adequate. Finally, the court addressed the various public policy arguments Todd raised in favor of imposing liability on Bic. The court dismissed these arguments out-of-hand, noting that “public policy only requires holding manufacturers and sellers liable if their product is found to be defective or unreasonably dangerous....” Todd v. Societe Bic, No. 90 C 5487 at page 11, 1992 WL 4971 (N.D.Ill. January 7, 1992).

Todd appealed, claiming that the district court ignored questions of fact about the inherent defects in disposable lighters. He maintained that Illinois authorized two tests to determine whether a product is unreasonably dangerous: the consumer contemplation test and the risk-utility test. He argued that a disposable lighter might be considered unreasonably dangerous under either test. He also insisted that the district court’s failure to even consider aspects of the risk-utility test required reversal of the summary judgment. Finally, he continued to challenge the adequacy of the warning, claiming that deficiencies in the warning, standing alone, rendered the fighter unreasonably dangerous.

A divided panel of this court agreed with Todd and reversed the district court’s grant of summary judgment. 991 F.2d 1334 (1993). The full court vacated that holding, and decided to rehear the case era banc. 991 F.2d 1344 (1993). “Concern about the implications of the panel’s reasoning lead the full court to vacate the panel’s decision and set the case for rehearing era banc.” Todd, 9 F.3d at 1218. After the rehearing, the full court was divided on what the proper disposition of this case should be. The court unanimously agreed that the district court was correct in its conclusion that the warning on the fighter was adequate as a matter of law. However, a majority of the court decided to certify certain questions about strict products liability law to the Illinois Supreme Court. Todd, 9 F.3d at 1216.

The Illinois Supreme Court declined certification. Todd, No. 7643 (November 22, 1993). That decision placed this case back before the era banc court. We will resolve the issues of state law which this case presents in accordance with the decisions of the Illinois Supreme Court. See Charles A Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4507 at 89 (1982) (“federal court must determine issues of state law as it believes the highest court of the state would determine them”). Where areas of state law are not developed, we will resort to other persuasive authority in an attempt to determine what the Illinois Supreme Court would decide. See Heller Intern. Corp. v.

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Bluebook (online)
21 F.3d 1402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodney-todd-as-special-administrator-of-the-estate-of-tiffany-todd-v-ca7-1994.