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The hazards of multipurpose lighters.

Multipurpose lighters are butane-fueled devices with an extended nozzle that emits a flame. They are frequently used to ignite charcoal and gas grills, candies, and fireplaces.

Since the first multipurpose lighter was distributed in the United States in the mid-1980s, there have been hundreds of documented fires alleged to have been started by young children playing with the devices. Because these children typically are under five years of age, they are usually incapable of extinguishing a fire, putting them and their families at increased risk. As a result of these child-play fires, scores of children and adults have suffered severe burns and death.

Multipurpose lighter litigation is currently in its infancy. Only a few cases have been filed to date, and none has been tried. This brief overview is designed to help plaintiff attorneys succeed in this new area of products liability law.

According to the U.S. Consumer Product Safety Commission (CPSC), multipurpose lighters were introduced to the American market in 1985. About 1 million units were sold the first year, and sales have risen steadily.(1)

The Lighter Association, Inc., the industry's trade group, has estimated that total industry sales exceed 100 million units.(2) Sales are expected to increase at a rate of 5 percent to 10 percent annually.(3) Multipurpose lighters can usually be purchased for under $8 at discount stores or home-improvement centers such as Wal-Mart, Kmart, Home Depot, and Builder's Square.

There are currently about a dozen multipurpose lighter manufacturers. Most sales are attributed to Scripto-Tokai, Inc., of Fontana, California, which distributes the devices under the names Aim 'n Flame and Aim 'n Flame II. These lighters are designed by Tokai Corp. of Japan and manufactured in Mexico.

Scripto-Tokai currently controls about 90 percent of the market, flooding the United States with about 20 million of the lighters each year.(4)

BIC Corp., the runaway leader in disposable cigarette lighter sales, has been conspicuously absent from the multipurpose lighter market. However, in 1997, BIC began marketing a multipurpose lighter called SureStart.

The most significant difference between the BIC lighter and other multipurpose lighters is that BIC has certified that its SureStart lighter is child-resistant. If this is true, it is great news for consumers, because none of BIC's competitors markets a child-resistant model.

The remaining multipurpose lighter market is occupied by companies such as the Pinkerton Group (Cricket lighters), Colibri, and Calico Brand. There are also several Aim 'n Flame knockoffs imported from China. Apparently, the patent for the Aim 'n Flame mold has expired, allowing other manufacturers to use its distinctive shape. These Asian counterfeits, however, do not display the Aim 'n Flame name.

Hazards

Most child-play fires have been started by boys, many of whom have found the multipurpose lighters in easily accessible locations, such as on kitchen counters or furniture. Other children, however, have taken the lighters from more inaccessible locations, such as high shelves or cabinets, where parents had tried to hide them.(5)

The CPSC has reported that the hazards associated with these lighters are not obvious to ordinary consumers. For example, the shape of the devices makes them attractive to children.

In fact, many fire investigators have determined that the lighters' appearance is what draws many tykes to play with them. Unlike disposable cigarette lighters, multipurpose lighters have long nozzles with gunlike triggers and trigger guards.(6) Made mostly from shiny plastic, they are difficult for children to distinguish from toy guns.

The firing mechanism of multipurpose lighters is also easy for youngsters to operate. The force required to pull the trigger is so minimal that two-year-olds have done it. Also, studies show that the comparatively large flame produced by the devices is more attractive to children than that generated by smaller cigarette lighters.(7)

Most multipurpose lighters in households today have an on/off switch. These switches, however, provide little additional safety, because small children can easily defeat them.

The Scripto-Tokai Aim 'n Flame can be operated even in the "off" position. This is possible because when the trigger is repeatedly pulled, the switch migrates from "off" to "on." Scripto-Tokai has apparently remedied this defect in its new Aim 'n Flame II. But the company continues to sell the more dangerous earlier version.

Lack of regulations

Currently, there are no known federal or state laws governing the safety of multipurpose lighters. However, due to the flood of reported injuries and deaths associated with children playing with them and the failure of the industry to address these safety issues, long overdue regulation is on the horizon.

On January 16, 1997, the CPSC published an advance notice of proposed rulemaking stating it has reason to believe that "unreasonable risks of injury and death may be associated with multipurpose lighters that can be operated by children under age five."(8) This preliminary rulemaking procedure is the first step toward mandatory federal regulation.

In what can be termed a "cut our losses" type of move, the lighter industry finally endorsed the CPSC's movement toward mandatory regulation at its spring 1998 meeting in New Orleans. The industry surely saw the writing on the wall, changing its stance so that manufacturers can take the high ground at trial by claiming cooperation with the CPSC.

The industry will have a hard time explaining why it has published voluntary regulations so weak as to make them useless, however. ASTM F-400 addresses several performance requirements of lighters in general but fails to address the issue of child resistance--even in the wake of federal law requiring that cigarette lighters be child-resistant.(9) This is not surprising, because the ASTM subcommittee for lighters is controlled by the industry with little meaningful participation from consumer groups or individual advocates.

Cigarette lighter standard

On July 12, 1993, the CPSC published a Consumer Product Safety Standard requiring disposable and novelty cigarette lighters to have a child-resistant mechanism making the lighters difficult for children under the age of five to operate.(10) The standard excluded lighters primarily intended for igniting materials other than cigars, cigarettes, and pipes. Based on the information available to the CPSC in 1993, multipurpose lighters were not primarily intended for igniting tobacco, and therefore were not subject to the cigarette lighter standard.(11)

Three years later, Philip Morris--maker of Marlboro cigarettes and one of the major players in the tobacco industry--purchased 3.5 million specially made Aim 'n Flames for a summer promotion. The advertising campaign began in late spring 1996-and ended that fall.

Philip Morris flooded retail outlets across the United States, purportedly giving away a free Aim 'n Flame with a special three-pack of its Basic brand cigarettes. These special Basic Aim 'n Flames differed from those available at retail outlets in that they were all black with a red and white logo that read "Your Basic Light." There have been several reported child-play fires resulting in injuries and deaths stemming from young children playing with these Basic brand Aim 'n Flames.

If confronted with a Basic Aim 'n Flame case, plaintiff attorneys should assert that because the Aim 'n Flame was packaged and sold with cigarettes, it should fall within the definition of a cigarette lighter and be regulated by 16 C.F.R. pt. 1210. If this argument--which is, admittedly, untested--works, then all Basic Aim 'n Flames should be considered defective and in violation of federal law.

Costly litigation

Litigating a case against the manufacturer or distributor of a multipurpose lighter is a costly proposition, both in time and money. To successfully show that a multipurpose lighter is defective, plaintiff lawyers must retain experts qualified in the areas of human factors, mechanical engineering, and safety engineering. Depending on the facts of the case, the services of a child psychiatrist or psychologist may also be needed.

Due to the overwhelming market share held by Scripto-Tokai and its Aim 'n Flame lighters, the company is the target for most litigation. In fact, the author is unaware of any litigation against any other manufacturer or distributor. There are currently several actions pending against Scripto-Tokai, with several others waiting in the wings.

Scripto-Tokai has general counsel in Los Angeles. On learning of a lawsuit being filed, these general counsel will then locate and engage local counsel to take the lead in litigation. The author is not aware of any multipurpose lighter case having been tried and is aware of only one having been settled.

Multipurpose lighter litigation is document intensive. But because there is a small network of plaintiff attorneys handling this litigation, attorneys will most likely share their materials. Some documents may be subject to protective orders, however.

Plaintiff lawyers should plead all the standard products liability theories, including strict products liability, negligence, and failure to adequately warn. Again, working with other trial attorneys who have handled these cases ensures a well-pleaded complaint.

One of the most important parts of a multipurpose lighter case involves the role of the fire investigator. A good investigator can go a long way toward proving a case. Plaintiff lawyers should prepare the fire investigator for deposition by reviewing tactics the defense will likely use in an attempt to get the investigator to waver about the fire's cause and origin.

Since plaintiff lawyers rarely exercise any control over how a fire investigator examines a fire scene, it is critical that they meet with the investigator early and take a statement--preferably on video--that details the cause and origin of the fire and leaves no stone unturned and no questions unanswered.

Plaintiff lawyers must also make it a practice to ask the investigator to try and rule out all other possible causes of the fire in his or her statement.

Before meeting with the investigator, attorneys should also read about the causes and origins of fires generally, as well as about those that were started by children playing with multipurpose lighters.

Common defenses

A main defense in any lighter case is inadequate parental supervision. It will be asserted that inadequate supervision is a supervening or intervening cause that should allow the manufacturer to escape liability. This argument should fail, however.

In Oklahoma, for an action to be a supervening cause, three elements must be present. First, the supervening cause must be independent of the primary negligence. Second, the supervening cause must be adequate by itself to bring about the injury. Third, the supervening cause must not be reasonably foreseeable.(12)

Obviously, a parent's lax supervision cannot be independent of the dangerous condition presented by the defective lighter. Parental negligence, if any, is never adequate in and of itself to bring about the injury without the presence of the defective multipurpose lighter.

Finally, it is certainly foreseeable that lax supervision could contribute to a small child getting hold of a multipurpose lighter and starting a fire. This is exactly why disposable cigarette lighters are required to be child-resistant.

The same companies that manufacture multipurpose lighters also make cigarette lighters. As a result, they should not be able to claim it was unforeseeable that a child might gain access to a more attractive multipurpose lighter and start a fire--especially since there is a tremendous amount of research in this area related to cigarette lighter safety.

Another defense asserts that the fire was started in some other way. A good fire investigator, however, will be able to exclude other possible causes of the fire, including electrical shorting, candles, smoking, and faulty appliances.

If the child fire-starter admits he or she started the fire using a multipurpose lighter, the defense will most assuredly hire a child psychologist or psychiatrist to criticize the interviewing technique employed by the fire investigator. To counter this, plaintiff counsel may also want to retain a child psychologist. This psychologist should review the child's confession to examine whether it may have been coerced. The review will go a long way toward establishing the testimony's reliability.

If the case is in a consumer-expectation state such as Oklahoma, then the defense will likely argue that the mere lack of child-resistant features does not make the lighter defective. The defense will assert that an ordinary consumer would expect that any lighter that falls into the hands of a child is dangerous and therefore a fire is not beyond the reasonable expectations of the consumer.

This can be a formidable defense. Therefore, attorneys should identify other defects in the product, such as on/off switch migration, flare-ups, and afterburn. Even after the trigger is released, the lighter still emits a flame, which is a defect known as afterburn.

The only case law in this area available to the defense involves cigarette lighters, not multipurpose lighters. Distinguishing cigarette lighter cases from multipurpose lighter cases is not hard, however, because the products are so different in their appeal to children. Most consumers fail to realize how attractive multipurpose lighters are to small children or the lengths to which a determined child will go to get his or her hands on one.

A risk utility holding from the New Hampshire Supreme Court may be persuasive in consumer-expectation states. The court reasoned that an injured child's representative may maintain an action in products liability "even though the product [cigarette lighter] was intended to be used only by adults, when the risk that children might misuse the product was open and obvious to the product's manufacturer and its intended users."(13)

Fighting fire with ire

Without a doubt, multipurpose lighters in the hands of small children pose an unnecessary risk of injury and death. As plaintiff attorneys have seen time and time again, it is only through aggressive litigation that manufacturers will be persuaded to correct the defects in their products. Trial lawyers have an obligation to hold accountable these negligent companies to better ensure the safety of children and their families.

Notes

(1.) Advance Notice of Proposed Rulemaking, 62 Fed. Reg. 2327, 2329 (1997).

(2.) Id.

(3.) Id.

(4.) Id.

(5.) Id. at 2328.

(6.) Id.

(7.) Id. at 2330.

(8.) Id. at 2327.

(9.) Rule to Regulate Under the Consumer Product Safety Act Risks of Injury Associated with Lighters That Can Be Operated by Children, 58 Fed. Reg. 37554 (1993) (to be codified at 16 C.F.R. pt. 1145).

(10.) Safety Standard for Cigarette Lighters, 16 C.F.R. pt. 1210 (1993).

(11.) Id. [sections] 1210.2(c); see 62 Fed. Reg. 2327, 2328.

(12.) Strong v. Allen, 768 P.2d 369, 371 (Okla. 1989). See also Dresser Indus. v. Lee, 880 S.W.2d 750 (Tex. 1993); Hartford Ins. Co. v. Manor Inn, 642 A.2d 219 (Md. 1994); McLaughlin v. Mine Safety Appliances Co., 181 N.E.2d 430 (N.Y. 1962); Secrest v. Turley, 412 P.2d 976 (Kan. 1966).

(13.) Price v. BIC Corp., 702 A.2d 330, 333 (N.H. 1997).

Mark A. Cox practices law with Norman, Edem, McNaughton & Wallace in Oklahoma City, Oklahoma.
COPYRIGHT 1998 American Association for Justice
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Author:Cox, Mark A.
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Geographic Code:1USA
Date:Nov 1, 1998
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