[J-6-2005] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT
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. : : APPEAL OF: SWEDISH MATCH, S.A.; : PINKERTON TOBACCO COMPANY; :
No. 35 WAP 2004 Appeal from the Order, of the Superior Court entered June 10, 2004 at No. 1924WDA1999, reversing in part the Order of the Court of Common Pleas of Mercer County, entered November 30, 1998, at No. 1995-4217. 852 A.2d 365 (Pa.Super.Ct. 2004)
ARGUED: March 7, 2005
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. : :
CONCURRING OPINION
MADAME JUSTICE NEWMAN
DECIDED: SEPTEMBER 28, 2005
I join the Majority Opinion because I believe that Appellee failed to establish that Appellants committed a breach of warranty, as set forth in 13 Pa.C.S. § 2314. I further agree that punitive damages are not appropriate in this matter. The Majority correctly states: As we found in [Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003)] Phillips l, 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 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., 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 [J-6-2005] - 2
to allow the jury to consider her claim for negligence. As I wrote in my Concurring and Dissenting Opinion in Phillips l: 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 childsafety 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 no regulations 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 [J-6-2005] - 3
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
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claim for punitive damages, and its ultimate conclusion that Appellee is not entitled to punitive damages.
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