Lead Opinion
In March 1988 Cori Smith, then four years old, picked up a cigarette lighter and set a small fire in her parents’ bedroom. She was admonished not to play with lighters or matches — of which the household had many, because all four adults smoked cigarettes. About a week later Cori found a BIC lighter on a table in the living room. Cori used the lighter to set ablaze some papers in the bedroom where Tiffany Todd, then 23 months old, was sleeping. Tiffany died in the conflagration; the adults and the five other children in the household survived. Tiffany’s father Rodney, as special administrator of her estate, filed this diversity action seeking damages from the fighter’s manufacturer. The parties agree that Illinois, where the fire occurred, supplies the governing law.
Plaintiff has two principal theories: that BIC should have warned customers about the risks fighters pose to households with children, and that BIC should have designed its lighters to resist children’s efforts to use them. Failure to choose the right design or give proper warnings made the fighter defective or unreasonably dangerous, in either case leading to liability in tort. BIC moved for summary judgment. It conceded that misuse of lighters by children is foreseeable and that it is possible to make child-resistant fighters at some cost in both money and inconvenience to adult users. In 1992 BIC began selling a child-resistant lighter, and the Consumer Product Safety Commission has directed all other manufacturers to follow suit. 16 C.F.R. Part 1210 (effective July 1, 1994), 58 Fed.Reg. 37557, 37584-91 (July 12, 1993). BIC contended, however, that it gave sufficient warnings and that Illinois does not require manufacturers to make their products child-resistant when parents may take effective precautions. The district court granted BIC’s motion and dismissed the suit.
I
That fire attracts youngsters — and that cigarette fighters in the hands of children can lead to calamity — no one doubts. According to the CPSC, “for the period 1988-90, these fires [set by children under 5 playing with fighters] caused an annual average of 150 deaths, approximately 1,100 injuries, and nearly $70 million in property damages.” 58 Fed.Reg. at 37564. BIC recognized this danger, and its fighters were emblazoned: “KEEP OUT OF REACH OF CHILDREN”. Plaintiff deems this warning insufficient because BIC did not tell parents that children between three and five are attracted to flame, able and eager to open closets, cabinets, and purses in order to inspect their contents, and unable to follow instructions not to fiddle with what they find there.
Parents who followed BIC’s advice to keep their fighters out of the reach of children did not need separate admonition about youngsters’ inability to follow directions. Households are full of potentially dangerous items, including knives, matches, and drugs, that are bound to cause injury in inexperienced hands. BIC told owners to make access physically impossible, not to issue instructions to the children. Had the adults in this household followed the warning, there would not have been a fire.
Manufacturers could of course provide secondary warnings about the consequences of not following primary warnings. BIC could have written something like: “Keep this fighter out of the reach of children, and be aware that children not only are resourceful in finding things but also are apt to disobey your instructions not to play with lighters they can get their hands on.” It could have amplified this longer warning with data about the number of fires children set with fighters, in order to impress on parents the importance of following the primary warning to make the lighters inaccessible (or, perhaps, to induce the parents to quit smoking). Extended warnings present several difficulties, first among them that, the more text must be squeezed onto the product, the smaller the type, and the less likely is the consumer to
There is a further practical inquiry: will consumers who disdain a bold and (if followed) effective warning be influenced by smaller and more subtle points? If parents leave fighters on living room tables despite “KEEP OUT OF REACH OF CHILDREN”, and despite knowing that lighters cause fire (which is why the adults bought them), is a recitation of the CPSC’s data likely to alter their conduct? These adults did not heed the Surgeon General’s dire warnings, prominent on every package of cigarettes, about the hazards of smoking. They exposed their children to tobacco smoke, which causes more harm than does playing with fighters. Environmental Protection Agency, Respiratory Health Effects of Passive Smoking (1992). Would a screed on their fighters based on the CPSC’s data about fires succeed where concise advice failed? Extended advice, reducing the likelihood that parents will notice and follow the principal warning, is particularly ill-advised when the additional information is already well known. What parent is unaware that children between the ages of three and five explore and test their surroundings even when told not to? Can it be that only a warning by BIC Corporation will alert parents that kids are at least as successful as cats in getting into cabinets and other hiding places, and that children have minds of their own? Illinois does not require manufacturers to warn consumers about facts they already know, and it does not require manufacturers to dilute the principal warnings with distracting information. Genaust v. Illinois Power Co.,
Plaintiffs warning theory encounters an additional problem: causation. Rodney Todd and the three other adults in the household had received the most vivid warning imaginable: Cori had started a fire with a cigarette lighter only a week earlier. What words could be more potent than this incident? The household knew about both the risk of fire and about Cori’s proclivity and ability. All four adults conceded this during their depositions, adding that they appreciated the hazard even before Cori set her first fire. It is inconceivable that adults who left a cigarette lighter within the grasp of a child who had already started a fire would have been influenced by any written warning. Cf. Murphy v. Corey Pump & Supply Co.,
II
Since 1965 Illinois has held manufacturers strictly liable for injuries caused by defective products, following the approach of Restatement (2d) of Torts § 402A (1965). See Suvada v. White Motor Co.,
What, then, does Illinois define as a “defect”? Until recently a state court would have dispatched a case such as ours with the observation that a “dangerous product which bears a warning, and which is safe if the warning is followed, is neither defective nor unreasonably dangerous.” Dugan v. Sears, Roebuck & Co.,
A case decided in 1990 draws this straightforward approach into question. Lamkin v. Towner,
A plaintiff may demonstrate that a product is defective in design, so as to subject a ... manufacturer to strict liability for resulting injury, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.
See also Doser v. Savage Manufacturing & Sales, Inc.,
Each side has support for its position. Start with consumer contemplation. None of the cases expressly addresses the question whether the “consumer” for this purpose is the purchaser or includes any user (or misuser) the manufacturer can foresee. Plaintiff invokes what he characterizes as the plain language of Lamkin. BIC replies that, although the persons injured in that case were children who fell through a screen window, the court asked whether their parents could appreciate the risk rather than whether manufacturers could foresee that children could fall through if not restrained by their parents. Lamkin spoke of the ordinary consumer, not the foreseeable user. Doser says that the “liability of a manufacturer extends to those individuals to whom injury from an unreasonably dangerous product may be reasonably foreseen” (142 I11.2d at 197-98, 154
On the risk-utility front things are no clearer. Once again plaintiff emphasizes the language of the passage in Lamkin we have quoted, but judicial opinions should not be confused with statutes. Qualifications often are implied or developed as the judges grapple with additional circumstances. Scoby v. Vulcan-Hart Corp.,
When acting under the diversity jurisdiction, a federal court must attempt to decide the case as the highest court of the state supplying the law would do. The disagreement among the appellate courts of IUi-
Most debatable issues of state law that arise in diversity litigation must be resolved in federal court if only because certification of all disputes would overwhelm the capacity of the state’s highest court. The federal court may essay an answer, resolving the case without subjecting either the parties or the state to the need for an additional hearing, yet without hampering the state’s ability to craft its own law. Sometimes, however, the federal court’s answer may have effects independent of its persuasive power. In a case such as ours, for example, any substantial divergence between the federal court’s estimate of state law and the state’s view of its own law will funnel all similar litigation to federal court. None of the manufacturers or principal importers of cigarette lighters is a citizen of Illinois (indeed, only BIC manufactures any disposable cigarette lighters in the United States, 58 Fed.Reg. at 37565), and the damages in these cases exceed $50,000, so the diversity jurisdiction is always available. If the federal court treats the plaintiff more favorably than the state tribunal would, then the plaintiff always files in federal court; similarly any departure in the manufacturer’s favor leads the defendant to remove any suit filed in state court. In either case, the state loses the ability to develop or restate the principles that it believes should govern the category of cases. Certification then ensures that the law we apply is genuinely state law. Covalt v. Carey Canada Inc.,
Now that the warning question has been resolved, the consumer contemplation and risk-utility tests have become potentially dispositive, making certification appropriate under both state and federal rules. We respectfully request the Supreme Court of Illinois to answer the following questions:
1. Whether the “consumer” for purposes of the consumer contemplation test includes non-purchasers who the manufacturer should foresee will use or misuse the product.
2. Whether the risk-utility test applies to consumer products whose risks can be appreciated by their intended users.
It may be that when revisiting the state’s law of products liability the Justices of the Supreme Court of Illinois will conclude that these are not the right questions. In that event, the Justices should feel free to reformulate the questions, just as they would when dealing with the issues posed in a petition for leave to appeal. It is not our purpose to constrain the state court. The Clerk will transmit the record and briefs in this case to the Supreme Court of Illinois.
Notes
Both costs and benefits are elusive. The CPSC estimates that child-resistant lighters would cost approximately 15$ to 20$ more per unit in the marketplace. 58 Fed.Reg. at 37566. About 678 million lighters are sold in the United States each year. Id. at 37563. The CPSC could not estimate total costs because it did not know what would happen to sales at the higher prices (particularly for "specialty” lighters, which sell in smaller quantities and therefore would incur much higher per-unit costs of compliance). Users of the lighters will suffer some inconvenience, which also counts as a cost — especially to older users whose fingers may not be strong or nimble enough. The benefits look clear enough: by the CPSC's estimate, the total cost of fires set by children under five playing with lighters is $385 million per year. Id. at 37564. At first glance, the benefits easily exceed the costs. But child-resistant lighters will not eliminate the fires. Child-resistant is not child -proof; the CPSC estimates that 15% of children will be able to use the lighters notwithstanding the safeguards and will set 30% of the former number of fires. Id. at 37564. The cost and inconvenience will lead some adults to switch from lighters to matches, posing fire hazards of their own (which CPSC estimates at one-third of the risk of lighters), or to refillable lighters, which are not covered by the rule. And all child-resistant designs present a subtle risk. Parents who (mistakenly) believe that the products are child-proof are more likely to leave them within youngsters' reach. Instead of having zero ability to play with lighters, formerly out of their grasp, these children now have a 15% chance of being able to set a fire. A false sense of security could be fatal. The introduction of child-resistant medicine bottles actually led to an increase in certain kinds of poisonings as parents relaxed their vigilance. W. Kip Viscusi, Consumer Behavior and the Safety Effects of Product Safety Regulation, 28 J.L. & Econ. 527, 537-48 (1985); see also Cass R. Sun-stein, Paradoxes of the Regulatory State, 57 U.Chi. L.Rev. 407, 417-19 (1990). It is hard to know whether child-resistant lighters will produce the same effect.
Concurrence Opinion
with whom CUDAHY, Circuit Judge, joins, concurring.
After some pause, I accept this court’s judgment and opinion — both affirming the district court’s order granting BIC summary judgment on Plaintiffs warning theory, and certifying the “consumer-contemplation” and “risk-utility” questions for resolution by the Illinois Supreme Court. See Opinion ante parts I & II respectively. While I remain partial to the view that Illinois’ supreme court case law required the federal district court to apply the risk-utility doctrine in product liability eases, the varying strong convictions of my colleagues have convinced me that perhaps Illinois law may not be as conclusive as I once thought. Nevertheless, I write separately to counsel restraint when diversity requires our interpretation of Illinois Supreme Court case law.
While I appreciate the sound and persuasive policy reasons for limiting access to a risk-utility jury test when a plaintiff has freely undertaken to use a product with obvious risks, the Illinois Supreme Court, in cases such as Lamkin,
Neither Lamkin nor Doser appear to hint at any limitation of the risk-utility doctrine in Illinois. While Scoby, a decision from the Illinois Fourth District Appellate Court, may have rejected the risk-utility test as a means of analyzing whether lid-covers are required on cooking pots,
Nevertheless, notwithstanding my initial read on Illinois Supreme Court case law, I assent to the majority’s view — that some room for interpretation may exist in Illinois’ law, and that certifying these questions to the Illinois Supreme Court is not wholly inappropriate. Thus, I join this court in its decision to affirm the district court’s grant of BIC’s motion for summary judgment on Plaintiffs warning theory, and to certify the consumer-contemplation and risk-utility questions for resolution by the Illinois Supreme Court.
. A close reading of Scoby suggests that the Illinois appellate court actually conducted its own risk-utility test and concluded that a reasonable jury could never have found any economically feasible improvements to a cooking pot given the measured amount of risk. See Scoby,
Concurrence Opinion
with whom CUDAHY, Circuit Judge, joins, concurring.
I, like Judge Flaum, accept this court’s judgment only after some pause. My concern focuses on the consumer contemplation test.
The consumer contemplation test has been set forth recently by the Supreme Court of Illinois in Lamkin v. Towner,
Most recently, in Doser v. Savage Manufacturing & Sales, Inc.,
The issue for the jury’s determination was whether the press was unreasonably dangerous. In deciding this issue, the jury also had to determine whether the accident or injury was reasonably foreseeable. The liability of a manufacturer extends to those individuals to whom injury from an unreasonably dangerous product may be reasonably foreseen.
Id., at 824 (emphasis added). In the majority’s view, this last sentence only describes the extent of duty, it does little to resolve the crucial question: “[Wjhether foreseeable risks to non-purchasers are themselves enough to make the product ‘unreasonably dangerous.’ ” See Opinion ante at 7. Therefore, it concludes, certification is warranted.
If the text of Doser were our sole concern, the need for certification would be weak. In the sentences preceding the statement quoted by the majority, the Supreme Court of Illinois clearly stated that the issue for the jury’s determination was whether the product was unreasonably dangerous. The Court then continued, “In deciding this issue, the jury also had to determine whether the accident or injury was reasonably foreseeable.” Doser,
If Doser were the only authority addressing the consumer contemplation test, I would favor simply applying Doser, the most recent statement from the Supreme Court of Illinois, and holding BIC liable under the consumer contemplation test because of its concession that Cori Smith is a foreseeable user of the lighter. However, I do not believe that we can consider only Doser. Over the years, the Illinois Supreme Court has had numerous occasions to consider liability under the consumer contemplation test. Some of these eases have focused on the ordinary consumer as an important factor in determining whether a product is unreasonably dangerous:
The injuries must derive from a distinct defect in the product, a defect which sub-*1225 jeets those exposed to the product to an unreasonable risk of harm. The Restatement (Second) of Torts concludes that strict liability applies only when the product is “dangerous to an extent beyond that which would be contemplated by the ordinary [person] ..., with the ordinary knowledge common to the community as to its characteristics.”
Hunt v. Blasius,
Doser, while stating its own formulation, leaves undisturbed the prior statement in Blasius. The existence of seemingly irreconcilable statements is one of the situations that justifies certification. Certification ensures that the law we apply is the law of the state, not a federal view superimposed on state caselaw. Covalt v. Carey Canada Inc.,
. The dissent maintains that the Illinois Supreme Court never has mingled the concepts of foreseeable user and ordinary consumer — the first defines the extent of the manufacturer’s duty and the second defines when a product is unreasonably dangerous. Doser is just such an example.
Dissenting Opinion
with whom MANION and KANNE, Circuit Judges, join, dissenting in part.
I agree that the plaintiffs claim of inadequate warnings should be dismissed, but I would go on and resolve the rest of the case along the lines proposed by Judge Manion. To certify abstract questions about the “consumer-contemplation test” and the “risk-utility test” to the state supreme court is to misunderstand the nature of common law adjudication.
Judges lack many things that legislators have, but one thing we have is first-hand experience with the facts crystallized in adversary litigation. In areas where the making of substantive rules — “legislating,” in a sense — is left to judges, it is because the experience generated by the hearing of cases is thought an adequate or even a superior substitute for the sources of information and persuasion to which legislators turn (or are turned). Common law rules and principles well up out of the judges’ experience with the facts of actual cases and are honed by the experience of encountering different facts in later cases.
This court is requesting the Supreme Court of Illinois to make rules applicable to all “non-purchasers” of dangerous or defective products and to “all consumer products whose risk can be appreciated by their intended users.” But this is not a case about all non-purchasers or about all consumer products the risks of which are comprehensible by their intended users. It is a case about a small child who used á cigarette lighter to set a fire that killed another small child. The only issue we ought to be concerned with is whether the state supreme court would permit such a case to go to a jury. I say — with diffidence, in view of the disagreement within our court — that the answer is fairly clearly “no.” As is plain from the long footnote in the majority opinion, the respective costs and benefits of child-resistant cigarette fighters raise difficult questions that a jury could not responsibly answer, and underneath them is the broader question how far, and through what institutional means, society should go to make ordinary household products child-proof (or child-resistant). If fighters are to be made child-proof, can kitchen knives, microwave ovens, and electrical sockets be far behind?
These issues are obscured by this pair of certified questions neither of which mentions children, lighters, or household products, thus inviting abstract answers that may not attend sufficiently to the particularity of this case or even of the class of cases to which it belongs. Of course the Supreme Court of Illinois is not required to answer our questions, Citizens for John W. Moore Party v. Board of Election Commissioners,
I do not think we need worry that since there are no lighter manufacturers in Illinois we shall be draining all the lighter litigation from the Illinois state courts unless we certify these questions. Plaintiffs in product liability cases frequently join local dealers or distributors as additional defendants along with the manufacturer, thus destroying diversity; and decisions in Illinois eases in which children injure children with other household products might provide definitive guidance to federal courts in lighter litigation. There are plenty of reported Illinois cases involving manufacturers’ liability for product injuries to children. See, e.g., Cozzi v. North Palos Elementary School District No. 117,
There is little danger, therefore, that by deciding this case rather than bouncing it to the state supreme court (which may bounce it right back to us) we would be depriving the Illinois courts of their rightful control over the evolution of the common law of the state. The sparsity of lighter litigation in this state shows that a conventional ground for eertifi-
Dissenting Opinion
with whom POSNER, Chief Judge, and BAUER, COFFEY, and KANNE, Circuit Judges, join dissenting in part.
I respectfully dissent. Although I agree with the court’s resolution of the warning issue, I disagree that there is any need to certify the questions about the consumer contemplation test or the risk-utility test.
Even though we are incapable of creating binding state law, we can apply existing state law. Erie Railroad Company v. Tompkins,
Illinois strict products liability law is not hopelessly unclear or conflicting. Rather, Illinois has adopted the standardized approach of Section 402A, Restatement (Second) of Torts, to assess a manufacturer’s liability for injuries caused by its products. Section 402A imposes liability only on manufacturers who sell a “product in a defective condition unreasonably dangerous to the user or consumer.” When a manufacturer sells an unreasonably dangerous product, its liability extends to the foreseeable user. Doser v. Savage Manufacturing & Sales, Inc.,
Bic concedes for the purposes of this appeal that a child is a foreseeable user of a lighter. Bic contends, however, that a lighter with the warning “KEEP OUT OF REACH OF CHILDREN” is not unreasonably dangerous. We need not deflect Bic’s contention to the Illinois Supreme Court for resolution. That court has already adopted the consumer contemplation test as a means to determine whether a product is unreasonably dangerous. See Lamkin v. Towner,
Comment (i) to Section 402A sets out the consumer contemplation test. The entire comment bears reading, but for our purposes, only a part of it bears repeating:
Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.
(Emphasis added.) The Illinois Supreme Court frames the test as follows: “A product
Cigarette lighters are not unreasonably dangerous under the consumer contemplation test. Ordinary consumers — if not children — know lighters cause fires. Just because a child may be a foreseeable user of a cigarette lighter does not make the child an ordinary consumer “with the ordinary knowledge common to the community as to [the product’s] characteristics.” Reason dictates that a child is not an ordinary consumer. Children lack knowledge common to the community regarding consumer products.
In Lamkin, the Illinois Supreme Court countenanced another test — the risk-utility test — to determine if a product is unreasonably dangerous. Lamkin,
We do not deem that Lamkin or other cases applying aspects of the danger-utility test intend that all manufacturers of products described above should be subject to liability depending on the trier of fact’s balancing under that test, when suit is brought by one injured by such a product. Somewhere, a line must be drawn beyond which the danger-utility test cannot be applied. Considering not only the obvious nature of any danger here but, also, the simple nature of the mechanism involved, we conclude that the circuit court properly applied only the consumer-user contemplation test. Under that test, summary judgment for the defendant was clearly proper.
Id. Scoby is our best source to predict whether Illinois would apply the risk-utility test to a simple but obviously dangerous product, such as a lighter. See Wright, Miller and Cooper, § 4507, at 94 (“If a state’s highest court has not ruled on an issue, intermediate appellate court decisions constitute the next best indicia of what state law is.”). We do not overstep our bounds as a federal court by predicting that the Illinois Supreme Court would adopt the position advanced in Scoby.
Our system allows parties to present issues of state law to federal courts. 28 U.S.C.
. Consider the absurd results if courts were required to look to the expectations of children when gauging a product’s dangerousness. Children cannot perceive the risk of harm which accompanies the misuse of just about any product. For instance, it is not within a child’s contemplation that a bar of soap left on a staircase may cause tragedy. That fact does not make a bar of soap unreasonably dangerous. Unlike a child, the ordinary consumer knows that a misplaced bar of soap can cause someone to slip and fall. Because of this, a bar of soap is not "dangerous to an extent beyond that which would be contemplated by the ordinary consumer.”