Perkins v. Wilkinson Sword, Inc.

[This opinion has been published in Ohio Official Reports at 

83 Ohio St.3d 507

.]




                PERKINS, ADMR., v. WILKINSON SWORD, INC. ET AL.
            [Cite as Perkins v. Wilkinson Sword, Inc., 

1998-Ohio-16

.]
Torts—Products liability—Risk-benefit test of the Ohio Products Liability Act
        may be used in attempting to prove a design defect in a properly
        functioning disposable cigarette lighter.
   (No. 97-2507—Submitted August 19, 1998—Decided November 10, 1998.)
        ON ORDER Certifying a Question of State Law from the United States Court
of Appeals for the Sixth Circuit, No. 96-4144.
                                  __________________
        {¶ 1} This case comes to us as a certified question of state law from the
United States Court of Appeals for the Sixth Circuit. The court certified the
following facts to us.
        {¶ 2} Petitioner, Thomas Lee Perkins, was the former husband of Traci
Perkins and the father of Chelsie, Andrew, and Chrystal Perkins. Although Thomas
and Traci had been divorced, they were living together, with their three children, in
Ashland, Ohio. On July 13, 1992, their residence caught fire, resulting in the tragic
deaths of Traci, Andrew, and Chrystal.
        {¶ 3} Petitioner, as administrator of the estates of Traci, Andrew, and
Chrystal Perkins, brought this wrongful death products liability action in the United
States District Court, Northern District of Ohio, under that court’s diversity
jurisdiction. Petitioner alleged that the fire was started by four-year-old Chelsie
Perkins while playing with a disposable butane cigarette lighter manufactured and
sold by respondents, Wilkinson Sword, Inc. and Wal-Mart, Inc., and that the lighter
was defective in design because “it lacked feasible child resistant features.”
        {¶ 4} The district court granted summary judgment in favor of respondents,
finding that the lighter was not defective in design under Ohio law. In so finding,
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the court rejected petitioner’s claim that the lighter could be found defective under
the “consumer expectation” test codified at former R.C. 2307.75(A)(2), and held
that former R.C. 2307.75(A)(1)’s “risk-benefit” test is inapplicable to properly
functioning disposable lighters.
       {¶ 5} The Sixth Circuit Court of Appeals, while agreeing with the district
court that the petitioner cannot prevail on a consumer-expectation theory, is
“uncertain * * * whether Ohio’s statutory risk-benefit test is applicable to properly
functioning disposable lighters.”
       {¶ 6} The cause is now before this court pursuant to S.Ct.Prac.R. XVIII.
                                    __________________
       Michael M. Heimlich, for petitioner.
       Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C., Carl A. Eck, Louis C.
Long and Eric A. Kauffman, for respondents.
                                    __________________
       ALICE ROBIE RESNICK, J.
       {¶ 7} The United States Court of Appeals for the Sixth Circuit has certified
the following question to this court for our determination:
       “May the risk-benefit test of the Ohio Products Liability Act be used in
attempting to prove a design defect in a properly functioning disposable cigarette
lighter?”
       {¶ 8} For the reasons that follow, we answer the certified question in the
affirmative.
       {¶ 9} In cases arising prior to the enactment of the Ohio Products Liability
Act, we established that there are “two alternatives available to determine whether
a product design is in a defective condition * * *[:] the consumer-expectation
standard [and] a second, alternative, risk-benefit standard.” State Farm Fire & Cas.
Co. v. Chrysler Corp. (1988), 

37 Ohio St.3d 1, 7

, 

523 N.E.2d 489, 495

. We held
that a product is defective in design “if it is more dangerous than an ordinary




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consumer would expect when used in an intended or reasonably foreseeable manner
or if the benefits of the challenged design do not outweigh the risk inherent in such
design.” (Emphasis added.) Knitz v. Minster Machine Co. (1982), 

69 Ohio St.2d 460

, 

23 O.O.3d 403

, 

432 N.E.2d 814

, syllabus,
         {¶ 10} We made clear that these standards are not mutually exclusive, but
instead constitute “a single, two-pronged test” for determining whether a product is
defectively designed. Cremeans v. Internatl. Harvester Co. (1983), 

6 Ohio St.3d 232

, 6 OBR 302, 

452 N.E.2d 1281

, at the syllabus. As then Judge (now Chief
Justice) Moyer explained in Eldridge v. Firestone Tire & Rubber Co. (1985), 

24 Ohio App.3d 94, 97

, 24 OBR 164, 167, 

493 N.E.2d 293, 296

, “a product may be
found defective in design even if it satisfies ordinary consumer expectations if the
jury determines that the product’s design embodies ‘excessive preventable danger.’
” In other words, “if the jury concludes that one standard is not met, the jury may
consider the other standard.” Beavercreek Local Schools v. Basic, Inc. (1991), 

71 Ohio App.3d 669, 693

, 

595 N.E.2d 360, 376

.
         {¶ 11} In enacting the Ohio Products Liability Act, the General Assembly
codified this analytic approach at former R.C. 2307.75,1 which provided:
         “(A) Subject to divisions (D), (E), and (F) of this section, a product is
defective in design or formulation if either of the following applies:
         “(1) When it left the control of its manufacturer, the foreseeable risks
associated with its design or formulation as determined pursuant to division (B) of
this section exceeded the benefits associated with that design or formulation as
determined pursuant to division (C) of this section;




1. An amendment after this case arose eliminated the consumer-expectation test, leaving this section
of the statute otherwise substantively the same. Am.Sub.S.B. No. 350, 146 Ohio Laws, Part II,
3867, 3950.




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       “(2) It is more dangerous than an ordinary consumer would expect when
used in an intended or reasonably foreseeable manner.”            (Emphasis added.)
Am.Sub.H.B. No. 1, 142 Ohio Laws, Part I, 1661.
       {¶ 12} Thus, “Section 2307.75 allows the trial court to apply one or another,
or both, of two distinct ‘design defect’ standards. The plaintiff can choose to
proceed under one or both tests.” (Footnote omitted.) O’Reilly & Cody, Ohio
Products Liability Manual (1992) 70-71, Section 6.08.           Indeed, “[t]he very
existence of a risk/benefit analysis in the Ohio cause of action for design defect
helps those plaintiffs who would otherwise lose in a consumer expectation case.”
(Footnotes omitted.) Id. at 80, Section 7.05.
       {¶ 13} The Act does not contain any exception for properly functioning
products, and does not limit the applicability of the risk-benefit test to products
which malfunction. Instead, the Act collects all product liability claims into a
standard set of theories of recovery, one of which is that the product in question
was defective in design or formulation as described in former R.C. 2307.75. See
former R.C. 2307.71(M) and 2307.73(A). 142 Ohio Laws, Part I, 1675-1676, 1677-
1678. There is absolutely no basis under the common or statutory law of Ohio for
creating a dichotomy between properly and improperly functioning products when
applying the risk-benefit test.
       {¶ 14} Nevertheless, the district court relied heavily on Caveny v. Raven
Arms Co. (S.D.Ohio 1987), 

665 F.Supp. 530

, affirmed without published opinion
(C.A.6, 1988), 

849 F.2d 608

, and Koepke v. Crosman Arms Co. (1989), 

65 Ohio App.3d 1

, 

582 N.E.2d 1000

, for the proposition that Ohio’s statutory risk-benefit
test is not applicable to a properly functioning disposable lighter.
       {¶ 15} In Caveny, plaintiffs sought to recover from the manufacturer of a
.25 caliber handgun, a so-called Saturday Night Special, which was used to murder
plaintiffs’ decedent. Plaintiffs alleged that this handgun had no legitimate purpose




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                                 January Term, 1998




and, therefore, its risks far exceeded its benefits. The court, finding the risk-benefit
standard inappropriate in this case, reasoned as follows:
       “This standard is only applicable in situations in which a product has
functioned improperly, not when products have functioned as intended.               For
instance, in Cremeans * * * a tractor that slipped off a trailer and overturned did
not have roll-over protection. Similarly, in Knitz * * * a punch press lacked safety
guards. In both of these cases, the products operated improperly due to design
inadequacies. Here, by contrast, the handgun operated as intended; when fired a
bullet struck an individual in its path. In other words, the risk/utility test is only
proper when the product could be made safer through an alternative design and not
when the product is by its nature dangerous.” 

Id.,

665 F.Supp. at 532-533

.
       {¶ 16} In Koepke, the court relied on Caveny to find that “[i]n the absence
of any allegation by appellants that the BB gun functioned improperly, we conclude
that the risk-benefit test does not apply in this case * * *.” 

Id.,

65 Ohio App.3d at 3

, 

582 N.E.2d at 1001

.
       {¶ 17} According to respondents, “[t]he risk-utility test may only be applied
when something goes wrong with the product,” i.e., when the product
“malfunctioned.” (Emphasis sic.) By way of illustration, respondents explain that
the products in Knitz and Cremeans “operated improperly, and not as intended, due
to design inadequacies. Here, by contrast, the disposable lighter operated properly
and as intended; when the lighter was activated, it produced a flame. Had the lighter
exploded when activated due to a design inadequacy, however, then, and only then,
would the risk-utility test be applicable.” (Emphasis sic.)
       {¶ 18} In attempting to limit Ohio’s risk-benefit test to those situations in
which a product malfunctions, the district court, respondents, and the courts in
Caveny and Koepke proceed from the premise that the products in Knitz and
Cremeans failed to operate properly and as intended. However, the limitation




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cannot stand because the premise is faulty; no malfunction occurred in either the
punch press in Knitz or the tractor in Cremeans.
        {¶ 19} In Knitz, 

69 Ohio St.2d at 467

, 

23 O.O.3d at 407

, 

432 N.E.2d at 819

,
we held the risk-benefit test applicable to determine whether the “press design was
defective by allowing accidental tripping of the foot pedal control and in failing to
provide a point of operation guard when the foot pedal is operative.” However,
these design inadequacies did not cause the press to malfunction.               To use
respondent’s terminology, had the press double-tripped upon activation of the foot
switch, or become active without the operator depressing the foot pedal, then, and
only then, could it be said that the press malfunctioned. Instead, the press in Knitz
operated properly and precisely as it was intended to operate—when the foot switch
was activated, the press ram descended. The activation of the foot switch was not
caused by any malfunction or design inadequacy, but by simple human error. The
press tripped when the plaintiff, who was operating the press, inadvertently and
accidentally depressed the foot pedal while her right hand was within the point of
operation.
        {¶ 20} Similarly, in Cremeans, 

6 Ohio St.3d at 233

, 6 OBR at 303, 

452 N.E.2d at 1283

, we held the risk-benefit test applicable to determine “whether the
design of the tractor without roll-over protection was in a defective condition.”
However, it was an error in judgment, not a malfunction or design inadequacy, that
caused the tractor in Cremeans to overturn. The plaintiff was attempting to load
the tractor onto a trailer, and the tractor overturned when it slipped off the trailer.
        {¶ 21} Thus, Knitz and Cremeans provide no support for the proposition
that Ohio’s risk-benefit test is applicable only in those situations where a product
has functioned improperly. To the contrary, these cases stand for the proposition
that a product may be found defective in design under the risk-benefit test where
the manufacturer fails to incorporate feasible safety features to prevent harm caused
by foreseeable human error.




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                                 January Term, 1998




       {¶ 22} Moreover, even if we followed Caveny, we would still find the risk-
benefit test to be appropriate in the present case. According to Caveny, a product
functions improperly, and thus the risk-benefit test applies, “when the product could
be made safer through an alternative design.” Under this reasoning, the risk-benefit
test would apply when a lighter (the product) could be made safer through the
inclusion of child-resistant features (an alternative design).
       {¶ 23} In fact, this is precisely the analysis that the court later employed in
Aikman v. BIC Corp. (Nov. 13, 1991), S.D.Ohio No. C-3-89-272, unreported. On
facts virtually identical to those in the case sub judice, the court in Aikman held
summary judgment to be inappropriate on plaintiff’s claim that “the lighter was
defective, under a risk-benefit analysis, because it did not include child resistant
features.” Id. at 12-13. In reaching its holding, the court distinguished its prior
decision in Caveny as follows:
       “In Caveny, the plaintiff alleged that the product by its very nature was
unsafe, not that it could be made safer. It was on that basis that Judge Spiegel
concluded that the gun was not defective under a risk-benefit analysis. Unlike the
plaintiff in Caveny, the Plaintiff herein argues that Defendant could have made the
lighter safer, by adopting an alternative design which would make the lighter
childproof; therefore, Caveny does not provide the basis for sustaining this branch
of Defendant’s motion for summary judgment.” Id. at 12.
       {¶ 24} Respondents argue, however, that “Aikman was in error when it
repudiated the analogy to a hand gun made positive in Caveny. As the United States
Court of Appeals for the Sixth Circuit recognized in Byler v. Scripto-Tokai Corp.,

1991 WL 181749

 (6th Cir. September 17, 1991) [Nos. 90-6112 and 90-6113,
unreported], a case involving a disposable cigarette lighter, some products—such
as guns, knives or lighters—invite contemplation of the real possibility of danger
regardless of their design.” In Byler, the court held that, under the law of Kentucky,
lighters without child-resistant features are not “unreasonably dangerous” because




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                                  SUPREME COURT OF OHIO




“[t]he dangers of disposable butane lighters are both obvious and unavoidable.” Id.
at 4. Respondents’ reliance on Byler is misplaced because the law in Kentucky, as
it was interpreted in Byler, is markedly different from products liability law in
Ohio.2
         {¶ 25} Unlike Kentucky, Ohio does not require the plaintiff in a design
defect case to prove that a product is “unreasonably dangerous.” In Knitz, supra,

69 Ohio St.2d at 464-465

, 

23 O.O.3d at 406

, 

432 N.E.2d at 817, fn. 2

, we explicitly
“dispense[d] with any requirement for strict liability in tort that a defect be
unreasonably dangerous.” The General Assembly has also dispensed with the
unreasonable-danger requirement in former R.C. 2307.75(A), providing instead, as
we did in Knitz, that the plaintiff must prove only that a product is “defective in
design” under either a risk-benefit or consumer-expectation standard.
         {¶ 26} Unlike Kentucky law, R.C. 2307.75(D) limits the application of the
“unavoidably unsafe” defense to design defect claims involving “[a]n ethical drug
or ethical medical device,” thus precluding its application in claims involving
disposable lighters. See, also, 

Knitz, supra,

69 Ohio St.2d at 464-465

, 

23 O.O.3d at 406

, 

432 N.E.2d at 817, fn. 2

 (distinguishing “defective products from those
foods or drugs which necessarily involve some risk of harm”).
         {¶ 27} Also, unlike Kentucky, Ohio does not recognize the “obvious
danger” defense in a design-defect claim. While provision is made in R.C.
2307.76(B) for an “open and obvious risk” defense in failure-to-warn claims, no
such provision is contained in R.C. 2307.75 with respect to design-defect claims.


2. Respondents also cite several decisions from other jurisdictions in which courts have denied
recovery on claims involving disposable lighters without child-resistant features. Respondents then
argue that these cases represent “[t]he vast weight of precedent,” and that Aikman “has not been
followed in any other reported decision.” The truth is that courts are split over this issue, both
among and within various jurisdictions. See Annotation, Products Liability: Lighters and Lighter
Fluid (1993), 

14 A.L.R.5th 47

. Upon review of these and other cases, we find that, like Kentucky
law, the law in those other jurisdictions that have denied recovery is too different from Ohio law to
serve as persuasive authority.




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                                      January Term, 1998




Instead, R.C. 2307.75(B)(2) lists “the likely awareness of product users * * * of
those risks of harm” as one factor to be considered in determining the foreseeable
risks associated with a product’s design. However, this factor may be outweighed
by the other statutory risk-benefit factors set forth in R.C. 2307.75(B) and (C).3
         {¶ 28} Finally, respondents argue that a manufacturer cannot be held liable
for failing to make cigarette lighters childproof because cigarette lighters are
intended to be utilized by adults and not children. However, R.C. 2307.75 does not
support such a sweeping and peremptory pronouncement that the manufacturer of




3. In finding that the dangers of disposable butane lighters are both obvious and unavoidable, the
court in Byler reasoned that the production and maintenance of a flame are inherent aspects of a
lighter, and that “[a]ny disposable butane lighter of any design necessarily must possess these
characteristics.” Id. at 3-4. Under R.C. 2307.75(E), recovery is barred where “the harm for which
the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the
product which is a generic aspect of the product that cannot be eliminated without substantially
compromising the product’s usefulness or desirability and which is recognized by the ordinary
person with the ordinary knowledge common to the community.”
          However, R.C. 2307.75(E) does not apply automatically to bar claims involving the
propriety of incorporating safety features into the product. Fundamentally, such claims admit that
one or more aspects or characteristics of the product cannot be eliminated, but maintain that the
harm for which plaintiff seeks to recover could have been prevented by the incorporation of a safety
device to protect against a dangerous aspect of the product. These cases are to be resolved by
focusing on the viability of the proposed alternative design, not on one or more of several inherent
characteristics of the product. See R.C. 2307.75(C)(2) and (F).
          Stated differently, such a claim brings into focus an aspect or characteristic of the product
which would not be apparent in the absence of such an allegation. The obvious inherent
characteristics of a lighter are the production and maintenance of a flame. These characteristics
cannot be eliminated by any design. However, this fact alone would not preclude recovery any more
than would the fact that the punch press in Knitz must necessarily create a pinch point, or that the
lawnmower in Eldridge must necessarily have rotating blades. These are not the characteristics
which are alleged to have caused the harm. Instead, in each case another aspect or characteristic of
the product which could have been eliminated comes into focus by virtue of the proposed safety
feature. In Knitz, the press allowed the ram to descend while the operator’s hand was within the
point of operation. In Eldridge, the lawnmower allowed the operator’s foot to slide into the point
of operation. In the present case, the lighter was susceptible to activation by children. It is these
latter aspects or characteristics of the product that become the focal point of an R.C. 2307.75(E)
analysis; and the question whether these characteristics could have been eliminated depends on the
propriety of the proposed alternative design inclusive of a safety feature. Any other application of
R.C. 2307.75(E) would generally eliminate the failure-to-guard case, a result clearly not envisioned
under R.C. 2307.75. Thus, R.C. 2307.75(E) does not apply to preclude recovery in this case simply
because the production and maintenance of a flame are inherent characteristics of a lighter.




                                                  9
                             SUPREME COURT OF OHIO




a product intended for adult use can never be liable for failing to improve safety by
making its product child resistant. To the contrary, R.C. 2307.75 fully contemplates
that a manufacturer may be liable for failing to use a feasible alternative design that
would have prevented harm caused by an unintended but reasonably foreseeable
use of its product. See R.C. 2307.75(B)(1) and (3), (C)(2) and (F).
       {¶ 29} Lighters are commonly used and kept around the home, and it is
reasonably foreseeable that children would have access to them and attempt to use
them. “It has been estimated, for example, that 5,800 residential structural fires,
170 deaths, and 1,190 injuries occur each year because of children under 5 playing
with lighters. The annual cost of children playing with lighters has been estimated
at $300 million to $375 million.” Annotation, Products Liability: Lighters and
Lighter Fluid (1993), 

14 A.L.R.5th 47

, 56, Section 2[a].
       {¶ 30} In Queen City Terminals v. Gen. Am. Transp. Corp. (1995), 

73 Ohio St.3d 609, 621

, 

653 N.E.2d 661

, 671-672, we explained:
       “The first and foremost objective of strict liability is to promote product
safety. The doctrine of strict products liability provides manufacturers a strong
incentive to design, manufacture, and distribute safe products. Prosser & Keeton
[Law of Torts (5 Ed.1984)], Section 4 at 25-26. ‘The basis for the rule is the ancient
one of the special responsibility for the safety of the public undertaken by one who
enters into the business of supplying human beings with products which may
endanger the safety of their persons and property, and the forced reliance upon that
undertaking on the part of those who purchase such goods.’ [2] Restatement [of
the Law 2d, Torts (1965)] Section 402A, Comment f. This court has expressly
stated that ‘the public interest in human life and safety can best be protected by
subjecting manufacturers of defective products to strict liability in tort when the
products cause harm.’ Leichtamer v. Am. Motors Corp. (1981), 

67 Ohio St.2d 456, 464-465

, 

21 O.O.3d 285, 291

, 

424 N.E.2d 568, 575

.”




                                          10
                                January Term, 1998




       {¶ 31} This public policy nowhere applies with more force than where it
comes to the protection of our children. We therefore decline the invitation to read
into R.C. 2307.75 any provision that would ipso facto preclude liability for harm
caused by the foreseeable use of a lighter by a child.
       {¶ 32} Based on all of the foregoing, we hold that the risk-benefit test of the
Ohio Products Liability Act may be used in attempting to prove a design defect in
a properly functioning disposable cigarette lighter.      We answer the certified
question in the affirmative.
                                                             Judgment accordingly.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG
STRATTON, JJ., concur.
                               __________________




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