Jennings v. BIC Corporation

BARKETT, Circuit and the defen- Before COX was removed and the suit SMITH*, for the and Senior Circuit District Court Judges, to the U.S. dants Florida. The district Judge. Middle District summary judgment granted partial court SMITH, Senior Circuit EDWARD S. 29, 1994, holding that August to BIC Judge: duty no on a manufac- imposes Florida law cigarette lighters. child-proof its turer to and Maximo Edwards Jennings Selma 1994, district court November makers On “Jennings”) sued (collectively, leave to motion denied pair pajamas of a and distributors a cause of complaint to state amend her after Maximo was disposable of a Products Safe- under the Consumer fire. action caught injured pajamas when his The Act, seq. § 2051 et case ty 15 U.S.C. for the District Court Middle The District trial, During the court jury. tried to a summary judg- was granted partial of Florida (“BIC”), Jennings on several matters against ruled Corporation ment the BIC * Smith, designation. Cir- U.S. Edward S. Senior Honorable Circuit, sitting by Judge for the Federal cuit (11th Cir.1997).

relating expert testimony. witness If the instructions law, accurately reflect jury judge held for the defendants on all counts. the trial given style wide as discretion to the Jennings appeals grant the trial court’s BIC, wording employed the instruction. Id. summary judgment its denial of will reverse the trial amend, “We court because of evidentiary rulings. leave to and its an if only erroneous instruction we are ‘left Jennings appeals also verdict on with a substantial and ineradicable doubt gave court ground trial erro- properly guid as to whether the neous instructions. ed its deliberations.’ [Carter Deci Standard Review Corp., sionOne F.3d Cir.1997) (citation omitted). And we ] will grant review a district court’s We find reversible error in the give refusal to summary judgment completely and inde (1) requested instruction the re with all facts and reasonable pendently, quested instruction correctly stated the light inferences therefrom viewed (2) law, the instruction dealt an issue favorable to nonmoving party. most (3) properly jury, before the the fail Tallapoosa County, Hale v. give ure to the instruction in prej resulted (11th Cir.1995). apply We the same udicial harm to the requesting party.” Rodgers standard as the district court. Co., Hardaway Roberts & Co. v. Schaefer (11th 1252, Singletary, 142 F.3d 1253 Cir. (11th Cir.1998). 1283, 1295 152 F.3d 1998). grant summary We affirm the of judgment only if genuine “there is no issue Duty Child-proof Cigarette Lighters any as to material ... moving fact and Jennings’ complaint stated a cause of party judgment is entitled to a aas matter action against liability, BIC in strict on the of law.” Fed.R.CivP. “If the rec 56(c). basis that cigarette lighters its are defec- issues, presents ord factual the court must tively designed by reason of their lack of them; deny not decide it must the motion child-proof safety complaint features. The proceed Dough to trial.” Clemons v. also stated a cause in negligence of action Ga., 1365, erty County, 684 F.2d 1369 alleged based on an failure to exercise due (11th Cir.1982). care in designing the lighters. The dis- “A district grant court’s decision to that, trict court concluded under Florida deny or leave to amend is reviewed for law, had no duty to make its abuse of discretion.” Forbus v. Sears Roe child-proof and granted therefore sum- Co., (11th 1402, buck & 30 F.3d 1404 Cir. mary judgment to BIC. 1994). jurisdiction Federal in this case “A district court’s decision to admit or diversity rests on the of citizenship expert testimony exclude under Rule 702 Therefore, parties. we apply the law is reviewed for abuse of discretion.” Unit state, of appropriate in this case Flori Gilliard, 809, ed States v. 133 F.3d 812 da. Erie R.R. Tompkins, See Co. v. (11th Cir.1998) (citing General Elec. Co. v. 64, 817, (1938). U.S. 58 S.Ct. 82 L.Ed. 1188

Joiner, 141, 136, 512, 522 U.S. 118 S.Ct. Florida law provides explicit no answer to (1997)).1 139 L.Ed.2d 508 case, however, the central issue in this Our review of a trial court’s because the Supreme Florida has Court instructions is limited. Eskra v. Provident duty not considered the of manufacturers Co., 1406, & Accident Ins. to child-proof cigarette lighters.2 Life scientific, technical, cation, 1. “If specialized or may testify other thereto the form of an knowledge will opinion assist trier of fact to un- or otherwise.” Fed.R.Evid. 702. derstand the evidence or to determine a fact issue, qualified expert witness as an Jennings 2. asserts that certification of this skill, knowledge, experience, training, Supreme appro- or edu- issue to the Florida Court is features, i.e., childproof its lack of renders precedent binding Florida Although no unreasonably dangerous. the Flori- it decisions of directly point, significant provide sufficient da courts design The defectiveness of a how the Florida as to guidance objective on an stan is determined based if the issue rule on the issue would Court dard, any viewpoint specif not from the consideration considered. Our were Siegle, Corp. ic user. See Hobart deci- us that BIC’s Florida law convinces (Fla.Dist.Ct.App.1992). So.2d cigarette lighters child-proof not to sion that the Florida The Hobart court noted subject liability under either does Jury Instructions allow the Standard liability negligence. or strict expecta on the consumer to be instructed 402A, test, § tion test of the risk-benefit Liability A. Strict However, n. “[b]oth both. Id. at 504 3. prod adopted the strict objective require application tests of the Restatement ucts standard nature standard to determine the defective 402(a) (Second) § in West v. Cat of Torts product. expectation The consumer (Fla. Tractor 336 So.2d erpillar ordinary requires consideration of the test standard, 1976). the manufac Under expectations. risk-benefit consumer’s can be held product a defective turer of of the ‘nor analysis requires consideration prod made the if the. manufacturer liable ” danger.’ Id. public expectation mal if has a defect question, uct Co., Inc. v. (quoting Auburn Mach. Works unreasonably dangerous, renders it (Fla.1979)). Jones, 366 So.2d unreasonably dangerous condi Snapper Power See also Norton plain cause of the the proximate tion is F.2d Cir. Equip., 806 manufacturer’s liabil injury. Id. The tiffs 1987), that the Florida Su which notes who are bystanders ity also extends balancing a test preme adopted Court has product. Id. at injured by the defective a is “un determining product for whether in case is whether 89. The issue this to be reasonably dangerous.” The factors child-resistant fea child-proof lack or knowledge and “public considered include lighter a renders cigarette tures on danger.”. Id. expectation of unreasonably danger lighter defective ous. Thus, judged defectiveness is not but from perspective, from a child’s theory prod of strict

“Under “ordinary consumer” or of an Caterpillar perspective v. liability adopted ucts West (Fla.1976), The ordi Co., public expectation.” a the “normal 80 Tractor 336 So.2d appreci general public by nary virtue of a consumer may be defective product defect, dangerous fires defect, can start manufacturing a ate design in han required care and therefore that is warning.” Ferayorni inadequate an 1167, child-proof A without dling lighter 1170 them. 711 So.2d Hyundai Motor objec based on features is not “defective” Jennings has not (Fla.Dist.Ct.App.1998). standard; found “de only it could be a manufactur tive that the had alleged subjective, child’s-per a made fective” based on warning that a lack of ing defect or test of Since neither spective issue in standard. unreasonably dangerous. The Florida under the defectiveness allowed limited to whether this case is therefore such a Jury permits Instructions lighter, design defect of the Standard alleged ” (quoting Id. of state law.’ question is sufficient sources priate. of a state law Certification Corp., v. Exxon ex rel. Shevin v. Noltina State Florida of discretion. Escareno a matter 1976)). 266, (5th In this Cir. Refractory Corp., 526 F.2d case, Crucible & 1998). existing provides substantial certify Florida law Cir. The decision factors, Supreme Court in how the Florida confidence question a number of a is based on " question. We do not con on the important would rule [of which] are '[t]he most appropriate in this case. certification question existence of sider and the closeness facture, determination, subjective lighter lacking ‘child-proof lighter.” and market a granted partial as a matter of law The court motion for child-proof features is BIC’s summary not defective. judgment on the basis of this duty. lack of addition, by In Re as defined 402(a) (Second) § of Torts statement supports Florida case the po- Some law Court, by adopted Supreme as the Florida that, an regard hability sition for liability” something is of a the term “strict allegedly defectively designed product, strictly A manufacturer is misnomer. not liability negligence and strict are essential- injuries product, liable for all caused ly ways duty. stating different the same contrary, however it used. is On Indus., Black, Husky Inc. v. See 434 So.2d prod manufacturer is liable when the (“A (Fla.Dist.Ct.App.1983) defec- High uct is used as intended. See West tively product designed is one that has inghouse Corp., Elec. 610 So.2d However, negligently designed.”). been (Fla.1992). High, In Florida position we do not think represents applies Court held that “section 402A current law. they which products intended uses produced. injury were an When occurs More recent cases make clear circumstances, under those the manufac impose Florida courts different stan strictly turer is liable.” Id. Since “disman assessing liability dards in negli under use,” tling product is not an intended gence products liability. and strict Westinghouse court held that was unnecessary liability in a strict [I]t strictly injuries liable for suffered when its action to show that the manufacturer were transformers dismantled. Id. The negligent been In any way. has fact majority adopt court’s did not the dissent he can be found liable though even he ing view that “‘intended use’ includes utterly non-negligent. It is thus they uses of a were unintended obvious that strict has been reasonably foreseeable the defendant.” placed into a user’s arsenal of remedies (Barkett, J., at dissenting). Id. as an addition to the traditional tort Cigarette lighters are intended to be remedy of not in negligence, displace- used to set fire to things that are intended Hence, note, ment of it. ... we candles, cigarettes, cigars, be burned: Thursby Reynolds v. Metals 466 They etc. are not to intended be used as (Fla. 1984), So.2d 245 1st DCA rev. de- Indeed, children’s playthings. packag- nied, (Fla.1985), 476 So.2d 676 the court ing lighters warning: BIC bears the disapproved products the notion that our “Keep out of reach of children.” Since use liability law made liability strict lighter of a as a plaything children’s was negligence separate two verbalizations use, not its intended the manufacturer is single legal concept. of a strictly injuries not hable for incurred used, when it is so even if such use was Safety Moorman v. American Equip., 594 reasonably by foreseeable High, BIC. See (Fla.Dist.Ct.App.1992). So.2d 800-801 610 So.2d at 1263. also 711 Ferayorni, See So.2d at 1170 (“West’sprogeny emphasized have that the

B. Negligence strict generally theories are dis- The district court not separately negligence.”); High, did tinct from 610 So.2d (transformer treat the issues of negligence and strict at 1262 manufacturer not Rather, liability. strictly injuries court considered liable for in- allegedly Florida trial court decisions and decisions in dismantling curred transformers but jurisdictions on point from other and con- possibly negligence liable in for failing to cluded that “Defendant BIC does not have warn people dismantling of risks to trans- formers). duty a design, under Florida law to manu-

1257 (1987). ers, foreseeability Their is also 3 Thus, strictly not liable although BIC is in this product reported caused the number of cases injury supported negli- case, liable it was injuries it could still be arising lighter-related from to chil- fea- design child-proof to failing Bic, S.A., gent See, e.g., dren. Todd Societe The first element lighters. into its tures (7th Cir.1994); v. Hanes 21 F.3d 1402 Kirk negligence to establish that must be shown (6th Cir.1994); Griggs Corp., F.3d duty a of care owed is that defendant (3rd Cir.1992). Corp., 981 F.2d 1429 BIC Robertson v. Deak plaintiff. See to the Indeed, lighter are labéled packages BIC (Miami), Inc., 749, 750 396 So.2d Perera children,” directly “Keep out of reach of (“In the absence (Fla.Dist.Ct.App.1981) demonstrating that BIC appreciated negli- actionable duty plaintiff, a to lighters j>osed hazards that their unsu- exist.”). does not gence pervised little hands. imposes law a broad that a child But it is not foreseeable context. care in the duty of buy a or otherwise obtain would Florida, jurisdictions, recog like other one without the involvement of an adult. duty will arise whenev legal nizes that a to adults Cigarette lighters are marketed general a a human endeavor creates er Clearly, the and intended for adult use. harming risk of and foreseeable ized “Keep warning out of reach of children” on stated, a we have “Where others. As lighter packaging put is there order conduct creates defendant’s foresee user, the intended purchaser, the adult risk, will generally the law able zone of lighters pose danger that the notice duty placed upon defendant recognize It is reasonable for BIC to as- children. risk or see that either to lessen the warning sume that the on its pro are taken to precautions sufficient purT for the adult adequate sufficient and the harm that the risk tect others from read, under- products chasers of its ], Kolb 543 So.2d poses.” [v. Kaisner stand, and heed. [732,] Jefferson, (citing Stevens v. (Fla.1983)) (emphasis 436 So.2d require It is not reasonable to added). Thus, grows ... as the risk to en possible to take all measures duty, greater, so does the be misused products that its could not sure duty defines the perceived risk to be foreseeably, even by anyone might, who be undertaken. J.G. Christo that must Russell, of them. Decisions possession come into Fla. 58 So. pher Co. v. (1912). that a demonstrate of the Florida courts go of a need maker seller Corp., v. Florida Power 593 So.2d McCain protect foreseeable lengths extreme (footnote omitted). (Fla.1992) See Vic Potamkin products. users of its Here, chil it was foreseeable Chevrolet, Horne, Inc. v. 505 So.2d lighter, that get hold of a BIC dren would (car not (Fla.Dist.Ct.App.1987) dealer 562 lighter be be able to use they would selling ap for car to liable in they child-proof, and that cause it was not driver; seller parently incompetent “[a] by using others would hurt themselves or aby harm caused held liable for cannot be foresee inappropriately. The customer.”); Gilley’s Babine v. ‘defective’ happening sup are ability of these events (Fla. Inc., Shop, Bronco 488 So.2d record, which contains ported by (“[T]here require is no Dist.Ct.App.1986) includ concluding people, that 140 report all provide ment for a manufacturer children, year in are killed each ing safety devices designed and recommended by playing light with fifes caused children Warning of the need of product. with its America, of ers. Federation Consumer of operation for safe equipment additional Deadly Consequences The Up in Flames: sufficient.”). Cigarette Light- Playing Children of law, therefore, and grant Florida BIC was discretion of leave to Under denial for required child-proof lighters amend is reviewed abuse of discretion. Inc., Phelps, Smith v. 5 F.3d duty care. satisfy its of reasonable Duff (11th Cir.1993). The district court in satisfy duty using measures could features; this case denied motion because child-proof safety e.g., of short good “Plaintiffs have failed to show cause warning to the intended supplying to, why they- permitted should be amend purchasers products, putting adult of-its notice, complaint approximately their two months potential danger on of them of before trial is scheduled to commence and Since, products such to children. under over four months after the deadline of law, the exercise of reasonable 15, 1994, April amending plead- for clearly require child-proofing care does not ings passed.” has cigarette lighters, the district court cor- rectly granted summary judgment to BIC The U.S. Court has held that liability arising on the issue of out of the delay adequate deny- undue is an basis for child-proof light- lack of features on BIC ing to amend. leave ers. any apparent In the absence of or de- delay, clared reason —such undue as bad Safety

Consumer Products Act dilatory part faith or motive on the 29, 1994, September Jennings On movant, repeated failure to de- cure complaint. moved for leave to amend the previously ficiencies al- amendments Jennings sought to state a claim based lowed, prejudice opposing undue to the of, alleged withholding BIC’s of information party by virtue of allowance dangers amendment, about the of their from amendment, futility of Safety should, Consumer Products Commis sought leave as the etc.—the sion, in violation of the Consumer Products require, “freely rules given.” be Of (“CPSA”), Safety course, § Act 15 U.S.C. 2051 et grant oppor- or denial of an seq., and the regulations promulgated tunity amend is within the discretion .to thereunder. district court The denied the District Court. on the

motion basis that it would be futile Davis, 178, 182, Foman 371 U.S. because, although the Eleventh Circuit had (1962). 227, 9 S.Ct. L.Ed.2d This issue, not ruled on the the great weight of delay court has found to be undue where precedent that the holds CPSA does not the motion for leave to amend was filed give private rise to a cause action thirty original complaint months after the violation its reporting provisions. trial, and three weeks before where court also denied the motion on the basis only apparent delay reason for the was the untimely, that it being filed over five plaintiffs retention attorney. new months after the court’s deadline for Dist., Hosp. Rhodes v. Amarillo amending the pleadings. We find un Cir.1981).3 Smith, See also necessary to decide the issue whether a (delay years 5 F.3d at 493-494 of three private cause of action exists under the amend). justified' denial of leave to reporting provisions CPSA’s because the Here, the plaintiffs waited to move for district court acted within its discretion in leave to amend until thirty-four months denying Jennings’ untimely. motion as original complaint after their was filed.

Although leave to amend should be lib- Their motion two came months before the erally granted necessary when in the begin, inter- trial was scheduled to and five justice, 15(a), est of the Fed.R.Civ.P. deci- months after the district court’s deadline sion committed to the district court’s for amending pleadings. the The motion Prichard, adopted City 3. binding The Eleventh Circuit has as 661 F.2d precedent 1981) (en banc). of the decisions Fifth Circuit ren- Cir. prior dered to October 1981. Bonner v. it jury “ignore[d] than fused the because fore- delay for the other no basis

provides only to recently [Plaintiffs’] concentrate[d] has come seeable users that “it failures and derelic- Finally, Jennings attention that certain intended users.” asserts Corporation give Defendant BIC refusing give tions of that the court erred in to action,” with- cause of to an additional guardianship rise instruction on a requested are un- explanation. We any out further any damages account for awarded. its dis- say that the court abused

able to apply a We deferential stan denying in leave to cretion amend reviewing jury dard in instructions. delay. of undue Eskra, at 125 F.3d 1415. “This Court jury instructions as a whole to examines Testimony Expert they fairly determine whether and ade asserts that the district Jennings quately correctly the issue and addressed’ testimony by admitting erred court Christopher stated the law.” v. Cutter Herring David expert witness W. Wards’ (11th Cir.1995). Labs., allow Plaintiffs’ by refusing to either pourt The district committed no revers Kessinger testify to expert witness David jury in its ible error instructions. a continuance to grant or to rebuttal W. Sisson expert Leighton allow Plaintiffs’ gave jury The court the fol out, points in rebuttal. As BIC testify to added): lowing (emphasis instruction however, counsel at trial con Plaintiffs’ may legal be a cause of dam- Negligence Herrings’ of Mr. that the substance ceded operates even it in combina- age though in a dis pre-trial was disclosed testimony another, tion with an act of natural some Although ap Plaintiffs closure statement. cause, or some other cause such other if signifi parently appreciate failed to . occurs a the same time as the cause testimony Mr. Herrings’ cance of negligence negligence and if the contrib1 adequately, prepare failed to rebut to. substantially producing' such utes court acted within discretion district nn damage. testimony and in its rul admitting testimony prof ings expert on Plaintiffs’ here, relevant this instruction dif- As fered in rebuttal. Jennings’ requested fered “interven- from only in that ing negligence” instruction addition, Jennings In asserts requested replaced instruction would have refusing grant court erred in the district phrase with the the above-underlined testimony allow of Plain a continuance to after the oc- phrase “occurring Bellinger. The dis expert Dwight tiffs’ was itself reason- curs such other cause because, continuance trict court denied the Thus, differ- ably foreseeable.” alia, testimony would Bellinger’s inter Mr. is in the ence betweén the instructions other duplicative be of that of Plaintiffs’ contributing act to the timing any other availability In experts. view of the injury. expert witnesses and al Plaintiffs’ other pro (e.g., deposition) ternative means requested According Jennings, testimony, we can viding Bellinger’s Mr. permitted instruction “would have say that the court' abused its discretion anticipated that BIC should have find motion for a continuance. denying the that a child would obtain possibility question of the and be possession Jury Instructions addition, Jennings In asserts injured.” instruction con- give that “failure to Jennings cites as reversible error allowing them to fused the be give [sic] refusal to an “interven- district court’s negli- Jenning’s jury. [sic] instruction to the assume Selma ing negligence” injuries legal was the cause gence that the court’s defi- Jennings also asserts Edwards.” “unreasonably dangerous” con- Maximo nition of complaint in motion for leave to amend the no merit either of these asser- We see First, evidentiary rulings. concern in The district tions. the instructions in in- persons acts other than no reversible error contributing the of court committed BIC; reasons, not relevant to whether the they structing jury. are the For these the of affirmed. possibility BIC should have foreseen decision of the district court is of coming possession children into BIC AFFIRMED. Second, given to lighters. the instruction accurately negli- jury the reflected Florida BARKETT, Judge, dissenting: Circuit have gence law and therefore could not binding that no Although conceding to jury. The Notes on Use confused precedent directly point, is on Jury the Florida Standard Instruction majority claims that its resolution of this giv- that it is intervening negligence state represents Supreme case “how the Florida in “only en in cases which the court con- would rule on the issue the issue Court jury that there is a issue as to the cludes Jennings Corp., were considered.” v. BIC intervening and effect of an presence (11th Cir.1999). I 181 F.3d The court determined that there cause.” existing both respectfully dissent in intervening negligence was no of issue points opposite Florida law to a conclusion Jennings case and cites no error this majority to that reached on the this determination. The court’s refusal to any merits and because if debate exists on not er- give requested instruction was how the Florida Court would roneous. rule, simply that court for a we should ask through procedure definitive resolution addition, In the district court cor purpose. established for that There no rectly stated Florida law when defined certify question reason to decline to this “unreasonably dangerous” ig the term pure Florida law to the Florida Supreme nore foreseeable users and concentrate on judges Court so that Florida can deter- High Westing intended users. See parameters mine the of Florida law. Corp., house Elec. So.2d (Fla.1992) (“section applies 402A to intend Liability A. Strict products they ed uses of for which were majority grounds sup- offers two uses). produced,” not to unintended port its conclusion that no claim lies Finally, will find “we revers against liability, strict neither of give requested ible error the refusal to First, up scrutiny. which stand as the only if ... give instruction the failure majority explains, question of whether prejudicial instruction resulted in harm to design appropriately is defective is an- requesting party.” Roberts & Schae “objective swered reference to an Hardaway Co. v. fer standard” that involves “consideration (11th Cir.1998). Here, de or, ordinary expectations,” consumer’s termined that none of the defendants were put way, another consideration of the “nor- injury, liable for Maximo Edwards’ public expectation danger.” mal See therefore the never considered the Siegle, Hobart Corp. So.2d Thus, damages. issue of the court’s refus n. 4 (Fla.Dist.Ct.App.1992) (including al to give Jennings’ requested instruction normal knowledge public “common ex- regarding guardianship any account for pectation danger” among the criteria for damage award is not reversible error. determining whether a is defec- tively designed). answering ques- In Conclusion tion, majority asserts that the “normal properly granted The district court par- public expectation danger” relating summary judgment tial to BIC and acted would not include the likelihood of within children. Howev- denying its discretion fires started careless

1261 dismantling and the defendant’s that, majority’s unsealing ad- er, by the own given mission, including 125 chil- transformer —in or- people, product “140 electrical —an dren, year in fires caused junk are killed each an salvage components der to was not lighters,” Jen- with by playing children product use of the thus that intended (citing Consumer nings, 181 F.3d at liability apply injuries strict did not for America, Flames: Up in Federation of by hazardous that were caused the fluids Deadly Consequences The Children when the transformers were dis- of released (1987)), Lighters 3 Playing Cigarette with facts, (finding, mantled. Id. “under these that the the conclusion it is hard credit liability that does not apply”).1 strict danger” of public expectation “normal no High provides support thus for the of fires so would not include the risk that, majority’s assertion under Florida caused, a and that of such risk expectation law, strictly manufacturers are liable only adopted subjec- arise if one “a would injuries by.reasonably caused foresee tive, Id. To child’s-perspective standard.” of products. able uses their To the con high casualty in the contrary, light the trary, High majority a the danger, ap the of the cites with rate and obviousness ,to-be could well that that jury proval acknowledge find two cases a objective, defectively under an designed determination to the “intended use” of as standard. ordinary consumer product inquiry a involves an into “reason ably foreseeable uses.” See id. at 1261 — 62 that Similarly, majority’s argument the (citing Corp., Kalik v. Allis-Chalmers High Westinghouse Corp., v. Elec. (W.D.Pa.1987); Wingett F.Supp. 631 (Fla.1992), a precludes So.2d (Ind. Indus., Inc., Teledyne 479 N.E.2d 51 strict determining from whether 1985), grounds by overruled on other premised misreading on a applies is (Ind. Irvin, Douglass general. The 549 N.E.2d 368 High and of Florida law 1990)). that “a manufacturer is majority posits the is [strictly] product liable when foreseeability Applying the reasonable intended,” asserts, on as the

used yield case would a standard a High, ciga- that a use of basis of child’s by different result than that reached the that are lighter things to set fire to rette by majority. very The statistics cited an be is unintended not intended to burned annual majority regarding the number Jennings, 181 under Florida law. use playing children with deaths caused hold, High court did F.3d at 1256. that the conclusion lighters support can that a manufacturer rightly, product reasonably child’s use of results strictly injury be held liable when therefore and that BIC could foreseeable at product an use[ ]” from “intended damages resulting be held hable for However, High, issue. 610 So.2d at 1262. But to the extent therefrom. the term court neither defined High liability to such a rea- application of strict reason- “intended use” nor did exclude sonably foreseeable use of the defendant’s foreseeability an element thereof. able as open can an Rather, product be considered specific to the facts limiting ques- itself law, certify I at least it, only that tion of Florida would the court before concluded Rather, dissent, products liability. opin- arguing majority standard for strict 1. The disagreed majority be- failing with the ... to define the dissent ion was "deficient uses,’ usually "foreseeability jury ques- "explained prevail- cause that "[t]he 'intended tion,” majority opinion nor ing recognizes "[n]eilher that an 'intended use’ view explain why they that deter- the cases cited therein includes unintended uses of be removed from reasonably were foreseeable the defen- mination should law, (Barkett, J., why, instance or as matter High, So.2d at 1263 dant.” reasonably have Although disagreed manufacturer would not dissenting). the dissent product would be disman- disposition, foreseen that its majority’s it did so not appropriate tled.” Id. any quarrel with the A failure to due care to Supreme it to Court for resolu- breach use prudent person a reasonable and tion. do what ordinarily have done under the cir would Negligence B. Quamstrom, cumstances. De v. See Wald (Fla.1952). 919, respect 60 So.2d With negligence analysis, Turning to manufacturer, negligence to a arises when majority concedes the first element of the to reasonable care results the failure use test, duty that BIC owed a product. Determining in an unsafe wheth Jennings, care to Selma child. er the manufacturer used reasonable care a duty at 1257. The element is wherein the likeli balancing involves a test by deter- question of law which is resolved gravity potential and the harm hood “whether the defendant created a mining against are the burden of the weighed risk of harm- generalized and foreseeable necessary avoid that harm. precaution ing v. Tennant others.” Stazenski Jones, Auburn Machine Works v. See (Fla.Dist.Ct.App.1993). 617 So.2d (Fla.1979). So.2d majority acknowledges that children The risk, fall within the foreseeable zone of majority’s The conclusion this case'— earlier, many that, law, that recognizing, as noted warning as a matter a was by playing accidents caused children with anything sufficient and that more would lighters in the deaths of result children an no represent “extreme” measure—-has and adults alike. majority basis Florida law. As the rec ognizes, there are no Florida Having duty determined that a of care directly point. Court cases It cites exists, concludes, majority then as a two cases from the Florida. District Court law, duty, matter that met its Appeals, analogous neither of which are noting that Florida courts have held that to the facts here. Vic Potamkin Chevro go manufacturers need not to “extreme let, (Fla. Horne, Inc. v. 505 So.2d lengths” possible or “take all measures” to a Dist.Ct.App.1987) negligent was entrust protect products, foreseeable users of its requiring totally case a ment different ana duty and that its of care BIC fulfilled lytical approach than that of a claim for placing warning lighters. labels on the Potamkin, negligent design. In the plain However, Jennings, 181 F.3d at 1256. tiff a car an letting sued dealer for incom Jennings makes no assertion that BIC petent buy away. driver a car and drive it gone lengths” should have “extreme buyer The lost control of the vehicle and taken “all possible measures” to make its tree, injuring passenger. hit a her The products safe from children. The claim is sued, passenger and the court found that BIC, knowing that children would ac- duty car dealer had fulfilled its of care quire injury and cause verifying buyer had a valid them, negligent failing incorpo- driver’s inapposite license. This case is child-safety design. rate a feature into the presented the issue here. In Jennings’ negligence, To sustain a cause of action for case, the issue is not whether a seller (1) Jennings must establish that: the de- failed to a purchas evaluate the fitness of a duty protect plaintiff; fendant had er, rather a but whether manufacturer is (2) duty; the defendant breached that to do more than warn required against (3) the defendant’s proxi- breach was the (in possible product by people misuse of its plaintiffs injuries mate cause of the children) case, duty to whom it a owes resulting damages. See Lake Parker of care. Mall, Carson, Inc. 327 So.2d Inc., (Fla.Dist.Ct.App.1976). question Gilley’s Shop, be- In Bobine Bronco duty fore us is whether BIC breached the 176 (Fla.Dist.Ct.App.1986), 488 So.2d majority plaintiff injuries of care the concedes BIC owed when sued sustained plaintiff. he was thrown from a mechanical bull in a (i.e., parent leaving later event or action mattresses placed The bar had bar. child) fall riders to cushion the within reach of a small also the bull around adequately were not injury. the mattresses a role in the played but appellant when the together, and pushed The district court’s instruction that off, head on the he hit his was thrown legal dam “[njegligence may be cause of was that the mechanical floor. The claim age though operates even combination the manufactur- was defective because bull another, cause, an act natural some landing gear supply adequate not er did some other cause such other cause or if that, inherently the bull was negligence occurs at the same time as the apply. dangerous, strict should in possibility. ...” excluded this This necessary that it not The court held was permitted struction assume provide landing manufacturer for the any negligence on Selma' It analo- with the mechanical bull. pads part any negligence obliterated on BIC’s requiring a claim to that of gized such Because this instruction caused part. welding saws or power manufacturers of party,” harm to the requesting “prejudicial other provide safety glasses torches Hardaway & Co. Roberts Schaefer and found that this additional guards Cir.1998), it war A required. need not be warn- equipment rants reversal. equipment additional is nec- ing such safety device can essary suffices unless “integral part” product.

be made an no claim here that the

Id. at 178. There is addi- provided

manufacturer should have but equipment along

tional with the that the manufacturer failed to use

rather safety developing care not

reasonable “integral part” an

lock—which would be make it more difficult for America, UNITED STATES —to it, as, example, pharma- a child to use Plaintiff-Appellee, putting did in drug companies

ceutical caps on their containers. It is child-proof decide, upon appropri- for a based CAMPBELL, Khadijah S. evidence, disposable ate whether Defendant-Appellant. safety at a incorporate could child devices No. 97-4076. and without undue burden.

reasonable cost any debate exists as to again, And where Appeals, States Court of United law, that should debate be resolved Eleventh Circuit. the Florida Court. July 1999. majority’s I with the Finally, disagree that the district court did conclusion on- refusing give jury

err in instruction re-

intervening appellants’ cause. The that, provided “[njegli- instruction

quested may legal injury also be a cause of

gence though operates

even combination occurring

with ... cause some other after other cause occurs such ” reasonably foreseeable.... itself 5.1(c) Jury Instruction

Florida Standard added).

(emphasis recog- instruction This hable if a

nizes that BIC could still be even

Case Details

Case Name: Jennings v. BIC Corporation

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 22, 1999

Citation: 181 F.3d 1250

Docket Number: 95-2963

Court Abbreviation: 11th Cir.