Gwendolyn PHILLIPS, Administratrix of the Estate of Robyn Jorjean Williams, Deceased; Gwendolyn Phillips, Administratrix of the Estate of Jerome I. Campbell, Deceased; Gwendolyn Phillips, Administratrix of the Estate of Alphonso Crawford, Deceased; Neil Curtis Williams, A Minor by his Guardian and Next Friend, Gwendolyn Phillips, v. CRICKET LIGHTERS, Swedish Match, S.A.; Pinkerton Tobacco Company; Pinkerton Group, Inc.; Pinkerton Group, Inc., t/a and d/b/a Cricket USA; Cricket S.A.; Poppell, B.V.; Wilkinson Sword/Cricket, Inc.; Wilkinson Sword, Inc.; NDC Corporation and National Development Corporation t/a Shenango Park Associates; NDC Asset Management, Inc.; Regional Sales, Inc.; Universal Match Company a/k/a Universal Match Corporation; Swedish Match, A.B.; Cricket B.V; Inter-Match, S.A., Feudor, S.A.; Schick Netherland, B.V.; Warner-Lambert Holland, B.V.
Supreme Court of Pennsylvania.
Sept. 28, 2005.
883 A.2d 439 | 584 Pa. 179
Argued March 7, 2005.
Appeal of Swedish Match, S.A.; Pinkerton Tobacco Company; Pinkerton Group, Inc., Pinkerton Group, Inc. t/a and d/b/a Cricket USA; Cricket, S.A.; Poppell, B.V.; Wilkinson Sword/Cricket, Inc.; Wilkinson Sword, Inc; Universal Match Company a/k/a Universal Match Corporation; Swedish Match, A.B.; Cricket, B.V.; Inter-Match, S.A.; and Feudor, S.A.
Brian Thornton Must, for Zippo Manufacturing Company.
Richard A. Kraemer, Philadelphia, for Bic.
Edward Michael Koch, Philadelphia, for Pennsylvania Defense Institute.
James Michael Beck, Philadelphia, for Product Liability Advisory Council, Inc.
Paul A. Lauricella, for Pennsylvania Trial Lawyers Association.
Before: CAPPY, C.J., NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ,
OPINION
Chief Justice CAPPY.
This is an appeal by allowance. We are asked to resolve whether the Superior Court properly reversed the trial court‘s entry of summary judgment, thus allowing the breach of warranty and punitive damages claims to proceed in this matter. For the reasons that follow, we now reverse.
On the night of November 30, 1993, two year old Jerome Campbell (“Jerome“) retrieved a Cricket disposable butane cigarette lighter which belonged to his mother, Robyn Williams (“Robyn“). It is uncontested that this butane lighter lacked any child-resistant feature. Jerome was able to use the lighter to ignite some linens. The fire that resulted killed Jerome, Robyn, and another minor child of Robyn‘s; one minor child, Neil Williams (“Neil“), survived.
Gwendolyn Phillips (“Appellee“), as administratrix of the estates of the three decedents and as guardian of Neil, instituted this action against the manufacturers and distributors of the Cricket lighter (collectively, “Appellants“). In her complaint, Appellee raised, inter alia, claims of design defect sounding in both strict liability and negligence, negligent infliction of emotional distress, breach of the implied warranty1 of merchantability, and punitive damages.
Appellants filed for summary judgment. The trial court found in favor of Appellants, and dismissed all claims against them.
On appeal, Appellee presented five issues to the Superior Court, claiming that summary judgment should not have been entered on her breach of warranty, punitive damages, negligent infliction of emotional distress, or design defect claims sounding in strict liability or negligence. The Superior Court reversed the trial court‘s entry of summary judgment on all five of these claims.
Appellants then appealed to this court, and we granted allocatur. Following argument, we affirmed in part, reversed in part, and vacated in part the order of the Superior Court. See Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003) (“Phillips I“). As fully detailed in our Phillips I decision, we affirmed that portion of the Superior Court‘s order reinstating Appellee‘s negligence and negligent infliction of emotional distress claims. We reversed that portion of the Superior Court‘s order reinstating the strict liability design defect claim, finding that Appellee could not make out a strict liability claim in this matter as Jerome, a two-year-old child, was not the “intended user” of the lighter.2 We also vacated that portion of the Superior Court‘s order regarding the breach of warranty claim and reversed the Superior Court with regard to its decision on the punitive damages issue; we
On remand, the Superior Court once again reversed the trial court‘s entry of summary judgment in favor of Appellants with regard to the breach of warranty and punitive damages claims. Phillips v. Cricket Lighters, 852 A.2d 365 (2004). As to the breach of warranty claim, the Superior Court concluded that a reasonable jury could find that the Cricket lighter was not merchantable and thus the trial court erred in entering summary judgment in favor of Appellants on the breach of warranty claim. The Superior Court emphasized that the fact that a two-year old child was an unintended user of the lighter was not fatal to the warranty claim. The Superior Court stated that per
With regard to the punitive damages claim, the Superior Court found that Appellee had presented evidence sufficient to create a jury question as to whether Appellants’ actions exhibited reckless indifference to the interests of others. It therefore found that the trial court erred when it entered summary judgment on this claim.
Appellants filed a petition for allowance of appeal. We granted allocatur. For the reasons that follow, we now reverse.
In reviewing this matter, we must determine whether the Superior Court correctly reversed the trial court‘s entry of summary judgment. “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law.” Phillips I, 841 A.2d at 1005 (citing Pappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (2001)). In conducting this analysis, we are directed to resolve “all doubts as to the existence of a genuine issue of material fact against the moving party.” Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, 1041 (1996). As the questions raised in this matter are solely ones of law, our review is de novo.
The first issue which we will address is the Superior Court‘s determination that the trial court erred in granting summary judgment on Appellee‘s breach of warranty claim. The statute defining implied warranty of merchantability states that in order for goods to be considered “merchantable“, they
must be at least such as:
(1) pass without objection in the trade under the contract description;
(2) in the case of fungible goods, are of fair average quality within the description;
(3) are fit for the ordinary purposes for which such goods are used;
(4) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved;
(5) are adequately contained, packaged, and labeled as the agreement may require; and
(6) conform to the promises or affirmations of fact made on the container or label if any.
Appellee argues that she can establish that the Cricket lighter was unmerchantable. Echoing the analysis of the Superior Court below, she states that
Appellee‘s analysis is inapt. Section 2318 does not define when a breach of warranty has occurred. Rather, by its plain language,3 it spells out who may recover when a breach of warranty under
To answer this question, we turn again to
The next issue we address is whether the Superior Court correctly determined that Appellee had adduced enough evidence regarding her punitive damages claim such that a jury issue was created.
Our case law makes it clear that punitive damages are an “extreme remedy” available in only the most exceptional matters. See Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1098 n. 14. (Pa.1985), rev‘d on other grounds sub nom., Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989). Punitive damages may be appropriately
What is clear from these cases is that there is a distinction between negligence and punitive damages claims, with a plaintiff being required to meet a far lesser burden to establish a negligence claim than that which is imposed in connection with a punitive damages claim. This distinction is an important one. Damages awarded in a negligence action compensate a plaintiff for his or her losses. Punitive dam-
We now turn to applying these principles to the matter sub judice. In support of her punitive damages claim, Appellee points to evidence she adduced showing that fires caused by children playing with butane lighters resulted in the deaths of 120 people per year, with an additional 750 people being injured in these fires. Expert Report and Affidavit of John O. Geremia, Ph.D. (“Geremia Affidavit“) at 7 (citing the Consumer Product Safety Commission‘s report on child-resistant cigarette lighters, 53 Fed.Reg. 6833-01 (March 3, 1988)). Furthermore, evidence introduced by Appellee established that the estimated annual cost of child-play butane lighter fires to be between $300-375 million, or 60 to 75 cents per lighter sold. Id.
Appellee also relies on the deposition testimony of Rene Frigiere, Ph.D. (“Frigiere“), an employee of Appellants. Frigiere stated that Appellants knew of the dangers posed by young children playing with butane lighters. Deposition testimony of Rene Frigiere, 1/16/1998, at 68-70. Frigiere also admitted that Appellants could have placed child resistant features on their butane lighters; Appellee emphasizes that Frigiere indicated that Appellants chose not to place such features on their lighters unilaterally as they feared that their adult customers would opt not to buy such a product. Id. at 47. As noted by Appellee, Appellants came to this conclusion, in part, after test-marketing such a product in France where they discovered that their adult customers disliked the lighter with the child resistant features as such a lighter was more difficult to use. Id. at 118-20. Appellee focuses on this testimony as she apparently believes that Appellants’ weighing
As we found in Phillips I, Appellee had adduced enough evidence to create a jury question on whether Appellants acted negligently in selling a butane lighter which lacked child safety devices. Phillips I, 841 A.2d at 1008–10. Yet, the question with which we are now presented is not whether this evidence could support a finding of negligence. Rather, we must determine whether Appellee has adduced evidence sufficient to show that Appellants had an evil motive or were recklessly indifferent to the rights of others by creating a risk of harm which is substantially greater than that which is necessary to make his conduct negligent. Martin, 494 A.2d at 1097 n. 11.
It is readily apparent that the evidence does not show that Appellants had some evil motive such as intentionally manufacturing a lighter with the express wish that children misuse it and start fires. Thus, the narrow question here is whether Appellants acted with reckless indifference of a risk of harm which is substantially greater than that which is necessary to make their conduct negligent. After careful review, we conclude that Appellee has not shown that Appellants’ conduct was so outrageous that that the risk of harm here can be said to be “substantially greater” than that which would be posed by negligent conduct.
We base our conclusion on many factors. First, the allegedly dangerous aspect of this product did not arise out of intended use of Appellants’ product. Rather, it arose when the product was improperly utilized as a toy by a young child. While failure to mitigate and prevent a danger posed by misuses can give rise to liability in negligence, such a failure looks far less wanton than if the alleged danger arose in connection with the normal use of the product. Second, as acknowledged by both Appellee and Appellants, at the time this butane lighter was sold, it complied with all safety standards. Of course, compliance with safety standards does not, standing alone, automatically insulate a defendant from punitive damages; it is a factor to be considered in determining
For the foregoing reasons, we reverse the order of the Superior Court.
Justice CASTILLE did not participate in the consideration or decision of this case.
Justice NEWMAN files a concurring opinion.
Justice SAYLOR concurs in the result.
Justice NEWMAN, Concurring.
I join the Majority Opinion because I believe that Appellee failed to establish that Appellants committed a breach of warranty, as set forth in
As we found in [Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003)] Phillipsl, Appellee had adduced enough evidence to create a jury question on whether Appellants acted negligently in selling a butane lighter which lacked child safety devices. Phillips I, 841 A.2d at 1008-10. Yet, the question with which we are now presented is not whether this evidence could support a finding of negligence. Rather, we must determine whether Appellee has adduced evidence sufficient to show that Appellants had an evil motive or were recklessly indifferent to the rights of others by creating a risk of harm which is substantially
greater that that which is necessary to make his conduct negligent. Martin [v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088,] 1097 n. 11 [(Pa.1985)].
Phillips v. Cricket Lighters, 35 WAP 2004, slip op. at 10. I write separately to note that I disagree with the conclusion of my colleagues that Appellee presented sufficient evidence to allow the jury to consider her claim for negligence. As I wrote in my Concurring and Dissenting Opinion in Phillips I:
I respectfully disagree with the majority because I do not believe that we should allow the negligence causes of action to remain. Instead, this Court should have reinstated the Order of the trial court granting summary judgment to Appellants on Appellee‘s causes of action sounding in negligence. Fundamentally, I base this conclusion on my belief that the law of negligence simply does not require Appellants to pay damages for placing into the stream of commerce an object that was reasonably safe for its intended use and, in fact, operated as intended.
Though I agree with the majority that Appellants had a duty to the mother, they fulfilled that duty by creating a lighter that was reasonably safe for its intended use. Appellants had a duty to manufacture a lighter that did not explode, leak fluid, or get unreasonably hot. They could not escape liability if their negligence caused the lighter to spontaneously spark or ignite when left unattended. However, the law of negligence does not establish a duty to make the lighter safe for the use of a two-year-old child. Similarly absent are any applicable statutory requirements that the lighter at issue bear a child-safety device. Although the United States Consumer Product Safety Commission promulgated regulations requiring that lighters subject to the provision “be resistant to successful operation by at least 85 percent” of the children tested,
16 C.F.R. § 1210.3 , the lighter involved in the instant fire was manufactured before the July 12, 1994 effective date of the regulations,16 C.F.R. § 1210.1 . Consequently, there are noregulations that create a duty to make the lighter safe for the use of the child in this case. We do not require knife manufacturers to make knives safe for our children. We do not require the makers of matches to place them in special safety-boxes; we do not require drill makers or electric saw makers to have child safety locks; and we should not require lighters to be made safe for children.
Were we to hold otherwise, the principle that we would have to adopt would permit virtually every manufacturer of a household tool or appliance to be found negligent. Knives, guns, blenders, saws, drills: the list of helpful tools perfectly safe in adult hands but dangerous in the hands of unsupervised children is endless.
Kirk v. Hanes Corp. of N.C., 16 F.3d 705, 710 (6th Cir.1994) (quoting Byler v. Scripto-Tokai Corp., 1991 WL 181749 at *6, 1991, U.S.App. Lexis 22277 at (6th Cir.1991) (unpublished)).
As parents, we recognize that we cannot safeguard our children from all the dangers of the world. We take reasonable action to protect them, but when those actions fail, we cannot blame others for our own lack of attention or for the dangers of the world in general. Lighters are potentially dangerous products. They are not to be used by children.
Manufacturers, distributors, and sellers have a duty to provide products that are not unreasonably dangerous when operated as intended by their intended users. They also have the duty to warn us of the dangers inherent in the proper operation of the product and to tell us, what we all know, that certain products should be kept away from children. They do not have a duty to make sure that a reasonably safe product, when used as intended, be safe when used by a two-year-old child. That is an unreasonable burden, which I would decline to impose on industry.
I am sympathetic to efforts to encourage lighter manufacturers to place child safety devices on lighters. However,
neither the law of negligence, nor any applicable regulatory or statutory provision required Appellants to do so.
Id. at 1023-1025 (footnote omitted). Because I do not believe that Appellee established a cause of action for compensatory damages, Appellee is precluded from seeking punitive damages in the instant matter.
While I disagree with the Majority regarding the presence of sufficient evidence with respect to Appellee‘s negligence claim, I am able to join the Opinion because I agree with its analysis regarding the breach of warranty issue, its discussion of the requirements for a claim for punitive damages, and its ultimate conclusion that Appellee is not entitled to punitive damages.