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• 5TH CIRCUIT COURT

GLORIA MARIE HERNANDEZ, as next friend of Ruben Richard Emeterio, a minor,

Plaintiff-Appellant,

v.

TOKAI CORPORATION; SCRIPTO-TOKAI CORPORATION,

Defendants-Appellees.

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Before WISDOM, KING, and DAVIS, Circuit Judges.

PER CURIAM:

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTHCIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT TO THE TEXASCONSTITUTION, ART. 5, § 3-C AND RULE 58 OF THE TEXAS RULES OFAPPELLATE PROCEDURE

TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:

I. STYLE OF THE CASE

The style of the case in which this certificate is made isGloria Marie Hernandez, as next friend of Ruben Richard Emeterio,a minor, Plaintiff-Appellant v. Tokai Corporation and Scripto-Tokai Corporation, Defendants-Appellees, Case No. 97-50862, inthe United States Court of Appeals for the Fifth Circuit, onappeal from the United States District Court for the WesternDistrict of Texas. This case involves a determinative questionof state law, and jurisdiction of the case in the federal courtsis based solely on diversity of citizenship.

II. STATEMENT OF THE CASE

The salient underlying facts in this case are undisputed. On April 4, 1995, two-year-old Ruben Richard Emeterio wasseverely burned in a house fire that was started by his sister,five-year-old Daphne Hernandez, with a "Tokai" brand disposablebutane lighter that was designed without a child-resistant safetymechanism. The fire occurred on the top bunk of a bunk bed in abedroom of the children's grandparents' home. The lighter hadapparently been obtained by Daphne, or by her twin sister,Stephanie Hernandez, from their mother's purse on the top shelfof a closet in the room in which the fire occurred. ⁽¹⁾  

On May 6, 1996, plaintiff-appellant Gloria Marie Hernandez(Hernandez), as next friend of Ruben, filed suit againstdefendants-appellees Tokai Corporation and Scripto-TokaiCorporation (collectively, Defendants), asserting claims ofstrict liability and negligence with regard to their design ofthe lighter. In particular, Hernandez alleged that the lighterwas defectively designed and unreasonably dangerous due to theabsence of a child-resistant mechanism that would have preventedor substantially reduced the likelihood of a child using it tostart a fire.

On August 13, 1997, Defendants moved for summary judgment onall claims, alleging that a manufacturer of a cigarette lighteris not required to incorporate child-resistant features into itsdesign in order to protect unintended users from dangers that areobvious and inherent in the tool's utility. Defendants furtherargued that the subject lighter was a simple household toolintended for use only by adults, that an adequate warning hadbeen provided to keep the lighter out of the reach of children,and that the dangers of allowing children to play with lightersare so commonly known that even if the warning was ignored byconsumers it was not reasonably foreseeable that a child would begiven unsupervised access to the lighter.

Hernandez timely filed a response on August 26, 1997,arguing that, at the time the lighter at issue was manufacturedand distributed, a safer alternative design incorporating achild-resistant mechanism existed. She claimed that theexistence of the safer alternative design created a fact issuefor the jury regarding whether the product was defective underTexas's risk-utility test. In support of her response, Hernandezpresented uncontroverted evidence that alternative lighterdesigns with child-resistant mechanisms existed as early as 1974and that defendant Tokai Corporation held patents on several suchdesigns, one of which it applied for in 1987 and received in1988. ⁽²⁾  

On September 8, 1997, the United States District Court forthe Western District of Texas granted Defendants' motion forsummary judgment and entered final judgment in favor ofDefendants. Hernandez timely appealed the district court'sjudgment.

III. QUESTION CERTIFIED

Under the Texas Products Liability Act of 1993, can thelegal representative of a minor child injured as a result of themisuse of a product by another minor child maintain a defective-design products liability claim against the product'smanufacturer where the product was intended to be used only byadults, the risk that children might misuse the product wasobvious to the product's manufacturer and to its intended users,and a safer alternative design was available?

IV. CONCLUSION

We disclaim any intention or desire that the Supreme Courtof Texas confine its reply to the precise form or scope of thequestion certified. The answer provided by the Supreme Court ofTexas will determine the issue on appeal in this case.

1.   ¹ In deposition testimony, both Gloria Marie Hernandezand Ruben's grandmother, Rita Emeterio, admitted that they weresmokers at the time of the fire, and both acknowledged that theywere aware that it was dangerous for children to play withlighters.

2.   ² Included in the evidence submitted by Hernandez inopposition to Defendants' motion for summary judgment was areport produced by the Consumer Product Safety Commission (CPSC)in September 1987 and a subsequent rulemaking promulgated by theCPSC in 1993 banning the manufacture and import of non-child-resistant lighters effective July 12, 1994. In one 1992 reportincluded in the record, the CPSC predicted that its proposed rulewould "prevent about 85-120 deaths per year and . . . result in atotal annual savings, including savings in deaths, injuries, andproperty damage, of $210-$290 million. The annual costs toconsumers of the proposed rule are estimated to be about $95million." 57 Fed. Reg. 36,932, 36,936 (1992). The CPSCtherefore noted that "the expected benefits substantiallyoutweigh the estimated costs to the public." Id.