Breach-of-warranty claim illuminates lighter risks.

In 1993, two-year-old Jerome Campbell started a fire with a disposable butane cigarette lighter he took from his mother's purse. The fire killed him, his mother, and his brother; it also resulted in a lawsuit against Cricket Lighters, the manufacturer.

Last year the Pennsylvania Supreme Court threw out a strict products liability claim brought by a representative of the victims' estates, but the Pennsylvania Superior Court recently ruled that the plaintiff can pursue claims for breach of warranty and punitive damages. (Phillips v. Cricket Lighters, 852 A.2d 365 (Pa. Super. Ct. June 10, 2004).)

"They threw the products liability claim out because in regard to the adult user of the lighter, there was no defect," said the plaintiff's lawyer, Henry Sewinsky of Sharon, Pennsylvania. He noted that the lighter worked as expected, "but in breach of warranty, there would be a defect [with regard] to anyone who would come into contact with that lighter, whether it was an adult or a two-year-old."

Sewinsky said the decision means that warranty coverage "would extend not only to the intended user or buyer, but to anyone in her household. So we have much broader coverage of potential victims."

The trial court that first heard the case dismissed all the plaintiff's claims against Cricket, ruling that the lighter performed as intended and was safe for its intended user.

On appeal, the superior court reinstated some of the plaintiff's claims, including negligence, emotional distress, products liability, breach of warranty, and punitive damages, finding that because the lighter did not have any child-safety features, it could be operated by an unintended user, such as a child, and thus posed a danger.

But in a complicated ruling last year, the Pennsylvania Supreme Court threw out the plaintiff's strict liability claim. Addressing the plaintiff's argument that Campbell's handling of the lighter was reasonably foreseeable and that the company failed to make it child-resistant, Chief Justice Ralph Cappy wrote that "in this jurisdiction, negligence concepts have no place in strict liability law.... Strict liability focuses solely on the product and is divorced from the conduct of the manufacturer."

Cappy added that because "there was a jury question as to whether [Cricket was] negligent in designing a butane lighter that lacked a child-safety device," the plaintiff's negligence claim could go forward.

The court also remanded to the superior court the punitive damages claim and the question of breach of warranty, noting that the superior court "provided absolutely no analysis as to how it reached [its] conclusion" about breach of warranty.

On remand, Superior Court Judge John Musmanno wrote, "[W]e note that Pennsylvania law does not limit the applicability of the implied warranty of merchantability, to the product's intended users."

Under the Pennsylvania Commercial Code, Musamanno noted, "the warranty of a seller whether express or implied extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume, or be affected by the goods and who is injured by breach of the warranty."

Not only did the implied warranty extend to Campbell, but "a reasonable jury could conclude, based on the factual issue of whether the lighter could have been designed to be more child-resistant, that the lighter was 'detective' and therefore not merchantable."

In reinstating the plaintiff's punitive damages claim, Musmanno wrote that her evidence about the hazards of butane lighters, particularly in the hands of young children, "was sufficient to create a jury question regarding whether Cricket's actions exhibited reckless indifference to the interests of others."

The ruling focused on the concept of product defect.

"When someone thinks of a defect, they think that the item doesn't work or that there's a broken part," said Sewinsky. "But that's not necessarily so in strict liability in Pennsylvania. It's more a word of art. In strict liability, if the jury finds that the product is unsafe for its intended purpose, they could find it to be defective even though it works exactly how it's supposed to work."

Under breach-of-warranty theory, if the jury would find the product unsafe for some who might come into contact with it, "then you can say it's defective," Sewinsky said. In this case, the lighter "could have been child-resistant, but they didn't make it that way, and they had the means to do it for quite a few years."

At least two complications remain: Cricket's petition for appeal to the state supreme court and the interpretation of that court's earlier ruling on strict liability. The supreme court decision to throw out the strict liability claim was joined by justices who concurred lot reasons other than the ruling on strict liability, Sewinsky said. The trial court may conclude that it was not a majority opinion and allow the plaintiff to go ahead with the strict liability claim.