Jennings v. BIC Corporation ( 1999 )


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  •                                                                                      [PUBLISH]
                        IN THE UNITED STATES COURT OF APPEALS
    
                                  FOR THE ELEVENTH CIRCUIT
                                                                                   FILED
                                          )))))))))))           U.S. COURT OF APPEALS
                                           No. 95-2963            ELEVENTH CIRCUIT
                                          )))))))))))                  07/22/99
                                 D.C. Docket No. 92-369-CIV-T-24E THOMAS K. KAHN
                                                                                    CLERK
    SELMA JENNINGS, individually and as
    next friend of Maximo Edwards, a minor,
    and MAXIMO EDWARDS, a minor,
                                                                               Plaintiffs-Appellants
                                                  versus
    
    BIC CORPORATION and
    SOUTHLAND CORPORATION,
    d.b.a. 7-ELEVEN,
                                                                            Defendants-Appellees,
    
    MONTGOMERY WARD & CO.,
                                                     Defendant-Third-Party-Plaintiff-Appellee,
    
    PAJAMA CORPORATION OF
    AMERICA, a New York
    corporation,
                                                                            Third-Party-Defendant.
    
                                        ______________
                            Appeal from the United States District Court
                                for the Middle District of Florida
                                        ______________
                                         (July 22, 1999)
    
    Before COX and BARKETT, Circuit Judges, and SMITH*, Senior Circuit Judge.
    SMITH, Senior Circuit Judge:
    
    ∗ Honorable    Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by
    designation.
          Selma Jennings and Maximo Edwards (collectively, "Jennings") sued the
    
    makers and distributors of a pair of pajamas and of a disposable lighter after
    
    Maximo was injured when his pajamas caught fire. The District Court for the
    
    Middle District of Florida granted partial summary judgment to the BIC
    
    Corporation ("BIC"), holding that BIC had no duty to child-proof its lighters under
    
    Florida law. The district court also denied Jennings' motion for leave to amend the
    
    complaint to state a cause of action under the Consumer Products Safety Act, 15
    
    U.S.C. § 2051 et seq. Jennings appeals these rulings, along with evidentiary
    
    rulings and the jury instructions. We affirm.
    
                                   Facts and Procedural History
    
          Maximo Edwards was injured on November 25, 1987 when his pajamas
    
    were accidentally lit on fire by his three-year-old brother, who was playing with a
    
    cigarette lighter. Maximo's mother, Selma Jennings, filed suit against BIC, the
    
    maker of the lighter; Southland Corporation ("Southland"), which operated the 7-
    
    Eleven store where the lighter was purchased; and Montgomery Ward & Co.
    
    ("Wards"), where the pajamas were purchased. As relevant here, the suit alleged
    
    that BIC was liable in both negligence and strict liability because its lighter
    
    suffered from a design defect; specifically, it was alleged to be unreasonably
    
    dangerous because BIC failed to child-proof it. The suit also alleged that
    
    
                                               2
    Southland was liable for distributing the defective product, and that Wards was
    
    liable for distributing the flammable pajamas.
    
          Jennings filed suit in Florida state court and the suit was removed by the
    
    defendants to the U.S. District Court for the Middle District of Florida. The
    
    district court granted partial summary judgment to BIC on August 29, 1994,
    
    holding that Florida law imposes no duty on a manufacturer to child-proof its
    
    cigarette lighters. On November 17, 1994, the district court denied Jennings'
    
    motion for leave to amend her complaint to state a cause of action under the
    
    Consumer Products Safety Act, 15 U.S.C. § 2051 et seq. The case was tried to a
    
    jury. During trial, the court ruled against Jennings on several matters relating to
    
    expert witness testimony. The jury held for the defendants on all counts. Jennings
    
    appeals the trial court's grant of summary judgment to BIC, its denial of leave to
    
    amend, and its evidentiary rulings. Jennings also appeals the jury verdict on the
    
    ground that the trial court gave erroneous instructions.
    
    
    
    
                                              3
                                        Standard of Review
    
          We review a district court's grant of summary judgment completely and
    
    independently, with all facts and reasonable inferences therefrom viewed in the
    
    light most favorable to the nonmoving party. Hale v. Tallapoosa County, 
    50 F.3d 1579
    , 1581 (11th Cir. 1995). We apply the same standard as the district court.
    
    Rodgers v. Singletary, 
    142 F.3d 1252
    , 1253 (11th Cir. 1998). We affirm the grant
    
    of summary judgment only if "there is no genuine issue as to any material fact and
    
    ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P.
    
    56(c). "If the record presents factual issues, the court must not decide them; it
    
    must deny the motion and proceed to trial." Clemons v. Dougherty County, Ga.,
    
    
    684 F.2d 1365
    , 1369 (11th Cir. 1982).
    
          "A district court's decision to grant or deny leave to amend is reviewed for
    
    abuse of discretion." Forbus v. Sears Roebuck & Co., 
    30 F.3d 1402
    , 1404 (11th
    
    Cir. 1994).
    
          "A district court's decision to admit or exclude expert testimony under Rule
    
    702 is reviewed for abuse of discretion." United States v. Gilliard, 
    133 F.3d 809
    ,
    
    812 (11th Cir. 1998) (citing General Elec. Co. v. Joiner, 
    522 U.S. 136
    , 141
    
    
    
    
                                              4
    (1997)).1
    
           Our review of a trial court's jury instructions is limited. Eskra v. Provident
    
    Life & Accident Ins. Co., 
    125 F.3d 1406
    , 1415 (11th Cir. 1997). If the instructions
    
    accurately reflect the law, the trial judge is given wide discretion as to the style and
    
    wording employed in the instruction. Id. "We will reverse the trial court because
    
    of an erroneous instruction only if we are 'left with a substantial and ineradicable
    
    doubt as to whether the jury was properly guided in its deliberations.' [Carter v.
    
    DecisionOne Corp., 
    122 F.3d 997
    , 1005 (11th Cir. 1997)] (citation omitted). And
    
    we will find reversible error in the refusal to give a requested instruction only if (1)
    
    the requested instruction correctly stated the law, (2) the instruction dealt with an
    
    issue properly before the jury, and (3) the failure to give the instruction resulted in
    
    prejudicial harm to the requesting party." Roberts & Schaefer Co. v. Hardaway
    
    Co., 
    152 F.3d 1283
    , 1295 (11th Cir. 1998).
    
                                   Duty to Child-proof Cigarette Lighters
    
           Jennings' complaint stated a cause of action against BIC in strict liability, on
    
    the basis that its cigarette lighters are defectively designed by reason of their lack
    
    of child-proof safety features. The complaint also stated a cause of action in
    
    1
      "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
    the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
    experience, training, or education, may testify thereto in the form of an opinion or otherwise."
    FED. R. EVID. 702.
    
                                                      5
    negligence based on an alleged failure to exercise due care in designing the
    
    lighters. The district court concluded that, under Florida law, BIC had no duty to
    
    make its lighters child-proof and therefore granted summary judgment to BIC.
    
           Federal jurisdiction in this case rests on the diversity of the citizenship of the
    
    parties. Therefore, we apply the law of the appropriate state, in this case Florida.
    
    See Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
     (1938). Florida law provides no
    
    explicit answer to the central issue in this case, however, because the Florida
    
    Supreme Court has not considered the duty of manufacturers to child-proof
    
    cigarette lighters.2
    
           Although no binding Florida precedent is directly on point, decisions of the
    
    Florida courts provide sufficient and significant guidance as to how the Florida
    
    Supreme Court would rule on the issue if the issue were considered. Our
    
    consideration of Florida law convinces us that BIC's decision not to child-proof its
    
    cigarette lighters does not subject it to liability under either strict liability or
    
    negligence.
    
    
    2
     Jennings asserts that certification of this issue to the Florida Supreme Court is appropriate.
    Certification of a state law question is a matter of discretion. Escareno v. Noltina Crucible &
    Refractory Corp., 
    139 F.3d 1456
    , 1461 (11th Cir. 1998). The decision to certify a question is
    based on a number of factors, "'[t]he most important [of which] are the closeness of the question
    and the existence of sufficient sources of state law.'" Id. (quoting State of Florida ex rel. Shevin
    v. Exxon Corp., 
    526 F.2d 266
    , 274 (5th Cir. 1976)). In this case, existing Florida law provides
    substantial confidence in how the Florida Supreme Court would rule on the question. We do not
    consider certification appropriate in this case.
    
                                                     6
                                       A. Strict Liability
    
          Florida adopted the strict products liability standard of the Restatement
    
    (Second) of Torts § 402(a) in West v. Caterpillar Tractor Co., 
    336 So. 2d 80
    , 87
    
    (Fla. 1976). Under this standard, the manufacturer of a defective product can be
    
    held liable if the manufacturer made the product in question, if the product has a
    
    defect that renders it unreasonably dangerous, and if the unreasonably dangerous
    
    condition is the proximate cause of the plaintiff's injury. Id. The manufacturer's
    
    liability also extends to bystanders who are injured by the defective product. Id. at
    
    89. The issue in this case is whether the lack of child-proof or child-resistant
    
    features on a cigarette lighter renders the lighter defective and unreasonably
    
    dangerous.
    
          "Under the theory of strict products liability adopted in West v. Caterpillar
    
    Tractor Co., 
    336 So. 2d 80
     (Fla. 1976), a product may be defective by virtue of a
    
    design defect, a manufacturing defect, or an inadequate warning." Ferayorni v.
    
    Hyundai Motor Co., 
    711 So. 2d 1167
    , 1170 (Fla. Dist. Ct. App. 1998). Jennings
    
    has not alleged that the lighter had a manufacturing defect or that a lack of warning
    
    made it unreasonably dangerous. The issue in this case is therefore limited to
    
    whether the alleged design defect of the lighter, i.e., its lack of child-proof features,
    
    renders it unreasonably dangerous.
    
    
                                                7
          The defectiveness of a design is determined based on an objective standard,
    
    not from the viewpoint of any specific user. See Hobart Corp. v. Siegle, 
    600 So. 2d
     503, 505 (Fla. Dist. Ct. App. 1992). The Hobart court noted that the Florida
    
    Standard Jury Instructions allow the jury to be instructed on the consumer
    
    expectation test of § 402A, the risk-benefit test, or both. Id. at 504 n.3. However,
    
    "[b]oth tests require application of the objective standard to determine the defective
    
    nature of the product. The consumer expectation test requires consideration of the
    
    ordinary consumer's expectations. The risk-benefit analysis requires consideration
    
    of the 'normal public expectation of danger.'" Id. (quoting Auburn Mach. Works
    
    Co., Inc. v. Jones, 
    366 So. 2d 1167
    , 1170 (Fla. 1979)).
    
          See also Norton v. Snapper Power Equip., 
    806 F.2d 1545
    , 1548 (11th Cir.
    
    1987), which notes that the Florida Supreme Court has adopted a balancing test for
    
    determining whether a product is "unreasonably dangerous." The factors to be
    
    considered include "public knowledge and expectation of the danger." Id.
    
          Thus, defectiveness is not judged from a child's perspective, but from the
    
    perspective of an "ordinary consumer" or the "normal public expectation." The
    
    ordinary consumer and general public appreciate that lighters can start dangerous
    
    fires and therefore that care is required in handling them. A lighter without child-
    
    proof features is not "defective" based on objective standard; it could only be
    
    
                                              8
    found "defective" based on a subjective, child's-perspective standard. Since neither
    
    test of defectiveness allowed under the Florida Standard Jury Instructions permits
    
    such a subjective determination, a lighter lacking child-proof features is as a matter
    
    of law not defective.
    
          In addition, as defined by the Restatement (Second) of Torts § 402(a) and as
    
    adopted by the Florida Supreme Court, the term "strict liability" is something of a
    
    misnomer. A manufacturer is not strictly liable for all injuries caused by its
    
    product, however it is used. On the contrary, a manufacturer is liable only when
    
    the product is used as intended. See High v. Westinghouse Elec. Corp., 
    610 So. 2d 1259
    , 1262 (Fla. 1992). In High, the Florida Supreme Court held that "section
    
    402A applies to intended uses of products for which they were produced. When an
    
    injury occurs under those circumstances, the manufacturer is strictly liable." Id.
    
    Since "dismantling a product is not an intended use," the court held that
    
    Westinghouse was not strictly liable for injuries suffered when its transformers
    
    were dismantled. Id. The court's majority did not adopt the dissenting view that
    
    "'intended use' includes unintended uses of a product if they were reasonably
    
    foreseeable by the defendant." Id. at 1263 (Barkett, J., dissenting).
    
          Cigarette lighters are intended to be used to set fire to things that are
    
    intended to be burned: cigarettes, cigars, candles, etc. They are not intended to be
    
    
                                               9
    used as children's playthings. Indeed, the packaging of BIC lighters bears the
    
    warning: "Keep out of reach of children." Since use of a lighter as a children's
    
    plaything was not its intended use, the manufacturer is not strictly liable for
    
    injuries incurred when it is so used, even if such use was reasonably foreseeable by
    
    BIC. See High, 610 So. 2d at 1263.
    
                                        B. Negligence
    
          The district court did not separately treat the issues of negligence and strict
    
    liability. Rather, the court considered Florida trial court decisions and decisions on
    
    point from other jurisdictions and concluded that "Defendant BIC does not have a
    
    duty under Florida law to design, manufacture, and market a 'child-proof' lighter."
    
    The court granted BIC's motion for partial summary judgment on the basis of this
    
    lack of duty.
    
          Some Florida case law supports the position that, in regard to liability for an
    
    allegedly defectively designed product, negligence and strict liability are
    
    essentially different ways of stating the same duty. See Husky Indus., Inc. v.
    
    Black, 
    434 So. 2d 988
    , 991 (Fla. Dist. Ct. App. 1983) ("A defectively designed
    
    product is one that has been negligently designed."). However, we do not think
    
    this position represents current Florida law.
    
          More recent cases make clear that Florida courts impose different standards
    
    
                                              10
    in assessing liability under negligence and strict products liability.
    
           [I]t is unnecessary in a strict liability action to show that the
           manufacturer has been negligent in any way. In fact he can be found
           liable even though he was utterly non-negligent. It is thus obvious that
           strict liability has been placed into a user's arsenal of remedies as an
           addition to the traditional tort remedy of negligence, not in displacement
           of it. … Hence, we note, in Thursby v. Reynolds Metals Co., 
    466 So. 2d 245
     (Fla. 1st DCA 1984), rev. denied, 
    476 So. 2d 676
     (Fla. 1985), the
           court disapproved the notion that our products liability law made strict
           liability and negligence two separate verbalizations of a single legal
           concept.
    
    Moorman v. American Safety Equip. Corp., 
    594 So. 2d 795
    , 800-801 (Fla. Dist. Ct.
    
    App. 1992). See also Ferayorni, 711 So. 2d at 1170 ("West's progeny have
    
    emphasized that the strict liability theories are generally distinct from
    
    negligence."); High, 610 So. 2d at 1262 (transformer manufacturer not strictly
    
    liable for injuries allegedly incurred in dismantling transformers but possibly liable
    
    in negligence for failing to warn of risks to people dismantling transformers).
    
           Thus, although BIC is not strictly liable for the injury caused by its product
    
    in this case, it could still be liable if it was negligent in failing to design child-proof
    
    features into its lighters. The first element that must be shown to establish
    
    negligence is that the defendant owed a duty of care to the plaintiff. See Robertson
    
    v. Deak Perera (Miami), Inc., 
    396 So. 2d 749
    , 750 (Fla. Dist. Ct. App. 1981) ("In
    
    the absence of a duty to the plaintiff, actionable negligence does not exist.").
    
           Florida law imposes a broad duty of care in the negligence context.
    
                                                11
          Florida, like other jurisdictions, recognizes that a legal duty will arise
          whenever a human endeavor creates a generalized and foreseeable risk
          of harming others. As we have stated, "Where a defendant's conduct
          creates a foreseeable zone of risk, the law generally will recognize a
          duty placed upon defendant either to lessen the risk or see that
          sufficient precautions are taken to protect others from the harm that
          the risk poses." Kaisner [v. Kolb], 543 So.2d [732,] 735 (citing
          Stevens v. Jefferson, 
    436 So. 2d 33
    , 35 (Fla. 1983)) (emphasis added).
          … Thus, as the risk grows greater, so does the duty, because the risk
          to be perceived defines the duty that must be undertaken. J.G.
          Christopher Co. v. Russell, 
    63 Fla. 191
    , 
    58 So. 45
     (1912).
    
    McCain v. Florida Power & Light Co., 
    593 So. 2d 500
    , 503 (Fla. 1992) (footnote
    
    omitted).
    
          Here, it was foreseeable that children would get hold of a BIC lighter, that
    
    they would be able to use the lighter because it was not child-proof, and that they
    
    would hurt themselves or others by using the lighter inappropriately. The
    
    foreseeability of these events happening are supported by the record, which
    
    contains a report concluding that 140 people, including 125 children, are killed
    
    each year in fires caused by children playing with lighters. Consumer Federation
    
    of America, Up in Flames: The Deadly Consequences of Children Playing with
    
    Cigarette Lighters, 3 (1987). Their foreseeability is also supported by the number
    
    of reported cases arising from lighter-related injuries to children. See, e.g., Todd v.
    
    Societe BIC, S.A., 
    21 F.3d 1402
     (7th Cir. 1994); Kirk v. Hanes Corp., 
    16 F.3d 705
    
    (6th Cir. 1994); Griggs v. BIC Corp., 
    981 F.2d 1429
     (3rd Cir. 1992). Indeed, BIC
    
    
                                              12
    lighter packages are labeled "Keep out of reach of children," directly
    
    demonstrating that BIC appreciated the hazards that their lighters posed in
    
    unsupervised little hands.
    
          But it is not foreseeable that a child would buy a lighter or otherwise obtain
    
    one without the involvement of an adult. Cigarette lighters are marketed to adults
    
    and intended for adult use. Clearly, the "Keep out of reach of children" warning on
    
    lighter packaging is there in order to put the adult purchaser, the intended user, on
    
    notice that the lighters pose a danger to children. It is reasonable for BIC to
    
    assume that the warning on its lighters was sufficient and adequate for the adult
    
    purchasers of its products to read, understand, and heed.
    
          It is not reasonable to require BIC to take all possible measures to ensure
    
    that its products could not be misused by anyone who might, even foreseeably,
    
    come into possession of them. Decisions of the Florida courts demonstrate that a
    
    maker or seller of a product need not go to extreme lengths to protect foreseeable
    
    users of its products. See Vic Potamkin Chevrolet, Inc. v. Horne, 
    505 So. 2d 560
    ,
    
    562 (Fla. Dist. Ct. App. 1987) (car dealer not liable in negligence for selling car to
    
    apparently incompetent driver; "[a] seller cannot be held liable for harm caused by
    
    a 'defective' customer."); Babine v. Gilley's Bronco Shop, Inc., 
    488 So. 2d 176
    , 178
    
    (Fla. Dist. Ct. App. 1986) ("[T]here is no requirement for a manufacturer to
    
    
                                              13
    provide all designed and recommended safety devices with its product. Warning
    
    of the need of additional equipment for safe operation of the product is
    
    sufficient.").
    
           Under Florida law, therefore, BIC was not required to child-proof its lighters
    
    to satisfy its duty of reasonable care. BIC could satisfy that duty using measures
    
    short of child-proof safety features; e.g., by supplying a warning to the intended
    
    adult purchasers of its products, putting them on notice of the potential danger of
    
    such products to children. Since, under Florida law, the exercise of reasonable care
    
    clearly does not require child-proofing cigarette lighters, the district court correctly
    
    granted summary judgment to BIC on the issue of liability arising out of the lack of
    
    child-proof features on BIC lighters.
    
    
    
    
                                               14
                               Consumer Products Safety Act
    
          On September 29, 1994, Jennings moved for leave to amend the complaint.
    
    Jennings sought to state a claim based on BIC's alleged withholding of information
    
    about the dangers of their lighters from the Consumer Products Safety
    
    Commission, in violation of the Consumer Products Safety Act ("CPSA"), 15
    
    U.S.C. § 2051 et seq., and the regulations promulgated thereunder. The district
    
    court denied the motion on the basis that it would be futile because, although the
    
    Eleventh Circuit had not ruled on the issue, the great weight of precedent holds that
    
    the CPSA does not give rise to a private cause of action for violation of its
    
    reporting provisions. The court also denied the motion on the basis that it was
    
    untimely, being filed over five months after the court's deadline for amending the
    
    pleadings. We find it unnecessary to decide the issue whether a private cause of
    
    action exists under the CPSA's reporting provisions because the district court acted
    
    within its discretion in denying Jennings' motion as untimely.
    
          Although leave to amend should be liberally granted when necessary in the
    
    interest of justice, FED. R. CIV. P. 15(a), the decision is committed to the district
    
    court's discretion and grant or denial of leave to amend is reviewed for abuse of
    
    discretion. Smith v. Duff and Phelps, Inc., 
    5 F.3d 488
    , 493 (11th Cir. 1993). The
    
    district court in this case denied Jennings' motion because "Plaintiffs have failed to
    
    
                                              15
    show good cause why they should be permitted to amend their complaint
    
    approximately two months before trial is scheduled to commence and over four
    
    months after the deadline of April 15, 1994, for the amending of pleadings has
    
    passed."
    
           The U.S. Supreme Court has held that undue delay is an adequate basis for
    
    denying leave to amend.
    
           In the absence of any apparent or declared reason – such as undue delay,
           bad faith or dilatory motive on the part of the movant, repeated failure
           to cure deficiencies by amendments previously allowed, undue prejudice
           to the opposing party by virtue of allowance of the amendment, futility
           of amendment, etc. – the leave sought should, as the rules require, be
           "freely given." Of course, the grant or denial of an opportunity to amend
           is within the discretion of the District Court.
    
    Foman v. Davis, 
    371 U.S. 178
    , 182 (1962). This court has found delay to be undue
    
    where the motion for leave to amend was filed thirty months after the original
    
    complaint and three weeks before trial, where the only apparent reason for the delay
    
    was the plaintiff's retention of a new attorney. Rhodes v. Amarillo Hosp. Dist., 
    654 F.2d 1148
    , 1154 (5th Cir. 1981).3 See also Smith, 5 F.3d at 493-494 (delay of three
    
    years justified denial of leave to amend).
    
    
    
    
    3
     The Eleventh Circuit has adopted as binding precedent decisions of the Fifth Circuit rendered
    prior to October 1, 1981. Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en
    banc).
    
                                                  16
           Here, the plaintiffs waited to move for leave to amend until thirty-four months
    
    after their original complaint was filed. Their motion came two months before the
    
    trial was scheduled to begin, and five months after the district court's deadline for
    
    amending the pleadings. The motion provides no basis for the delay other than that
    
    "it has recently come to [Plaintiffs'] attention that certain failures and derelictions of
    
    Defendant BIC Corporation give rise to an additional cause of action," without any
    
    further explanation. We are unable to say that the court abused its discretion in
    
    denying leave to amend because of undue delay.
    
                                       Expert Testimony
    
           Jennings asserts that the district court erred by admitting the testimony of
    
    Wards' expert witness David W. Herring and by refusing to either allow Plaintiffs'
    
    expert witness David Kessinger to testify in rebuttal or to grant a continuance to allow
    
    Plaintiffs' expert Leighton W. Sisson to testify in rebuttal. As BIC points out,
    
    however, Plaintiffs' counsel at trial conceded that the substance of Mr. Herrings'
    
    testimony was disclosed in a pre-trial disclosure statement. Although Plaintiffs
    
    apparently failed to appreciate the significance of Mr. Herrings' testimony and failed
    
    to prepare to rebut it adequately, the district court acted within its discretion in
    
    admitting the testimony and in its rulings on Plaintiffs' expert testimony proffered in
    
    rebuttal.
    
    
                                               17
           In addition, Jennings asserts that the district court erred in refusing to grant a
    
    continuance to allow testimony of Plaintiffs' expert Dwight Bellinger. The district
    
    court denied the continuance because, inter alia, Mr. Bellinger's testimony would be
    
    duplicative of that of Plaintiffs' other experts. In view of the availability of Plaintiffs'
    
    other expert witnesses and alternative means (e.g., deposition) of providing Mr.
    
    Bellinger's testimony, we cannot say that the court abused its discretion in denying the
    
    motion for a continuance.
    
                                        Jury Instructions
    
           Jennings cites as reversible error the district court's refusal to give an
    
    "intervening negligence" instruction to the jury. Jennings also asserts that the
    
    court's definition of "unreasonably dangerous" confused the jury because it
    
    "ignore[d] foreseeable users and concentrate[d] only on intended users." Finally,
    
    Jennings asserts that the court erred in refusing to give a requested instruction on a
    
    guardianship account for any damages awarded.
    
           We apply a deferential standard in reviewing jury instructions. Eskra, 125
    
    F.3d at 1415. "This Court examines jury instructions as a whole to determine
    
    whether they fairly and adequately addressed the issue and correctly stated the
    
    law." Christopher v. Cutter Labs., 
    53 F.3d 1184
    , 1190 (11th Cir. 1995). The
    
    district court committed no reversible error in its jury instructions.
    
    
                                                18
          The court gave the jury the following instruction (emphasis added):
    
          Negligence may be a legal cause of damage even though it operates in
          combination with an act of another, some natural cause, or some other
          cause if such other cause occurs a the same time as the negligence and
          if the negligence contributes substantially to producing such damage.
    
          As relevant here, this instruction differed from Jennings' requested
    
    "intervening negligence" instruction only in that the requested instruction would
    
    have replaced the above-underlined phrase with the phrase "occurring after the
    
    negligence occurs if such other cause was itself reasonably foreseeable." Thus, the
    
    only difference between the instructions is in the timing of any other act
    
    contributing to the injury.
    
          According to Jennings, the requested instruction "would have permitted the
    
    jury to find that BIC should have anticipated the possibility that a child would
    
    obtain possession of the lighter in question and be injured." In addition, Jennings
    
    asserts that "failure to give this instruction confused the jury be [sic] allowing them
    
    to assume that Selma Jenning's [sic] negligence was the legal cause of the injuries
    
    to Maximo Edwards."
    
          We see no merit in either of these assertions. First, the instructions concern
    
    only the contributing acts of persons other than BIC; they are not relevant to
    
    whether BIC should have foreseen the possibility of children coming into
    
    possession of BIC lighters. Second, the instruction given to the jury accurately
    
                                              19
    reflected Florida negligence law and therefore could not have confused the jury.
    
    The Notes on Use to the Florida Standard Jury Instruction on intervening
    
    negligence state that it is given "only in cases in which the court concludes that
    
    there is a jury issue as to the presence and effect of an intervening cause." The
    
    court determined that there was no issue of intervening negligence in this case and
    
    Jennings cites no error in this determination. The court's refusal to give the
    
    requested instruction was not erroneous.
    
          In addition, the district court correctly stated Florida law when it defined the
    
    term "unreasonably dangerous" to ignore foreseeable users and concentrate on
    
    intended users. See High v. Westinghouse Elec. Corp., 
    610 So. 2d 1259
    , 1262 (Fla.
    
    1992) ("section 402A applies to intended uses of products for which they were
    
    produced," not to unintended uses).
    
          Finally, "we will find reversible error in the refusal to give a requested
    
    instruction only if … the failure to give the instruction resulted in prejudicial harm
    
    to the requesting party." Roberts & Schaefer Co. v. Hardaway Co., 
    152 F.3d 1283
    ,
    
    1295 (11th Cir. 1998). Here, the jury determined that none of the defendants were
    
    liable for Maximo Edwards' injury, and therefore the jury never considered the
    
    issue of damages. Thus, the court's refusal to give Jennings' requested instruction
    
    regarding a guardianship account for any damage award is not reversible error.
    
    
                                               20
                                          Conclusion
    
          The district court properly granted partial summary judgment to BIC and
    
    acted within its discretion in denying Jennings' motion for leave to amend the
    
    complaint and in its evidentiary rulings. The district court committed no reversible
    
    error in instructing the jury. For these reasons, the decision of the district court is
    
    affirmed.
    
                                             AFFIRMED
    
    
    
    
                                               21
    BARKETT, Circuit Judge, dissenting:
    
          Although conceding that no binding Florida precedent is directly on point,
    
    the majority claims that its resolution of this case represents “how the Florida
    
    Supreme Court would rule on the issue if the issue were considered.” Jennings v.
    
    BIC Corp., __ F.3d __, ___ (11th Cir. 1999). I respectfully dissent both because
    
    existing Florida law points to a conclusion opposite to that reached by the majority
    
    on the merits and because if any debate exists on how the Florida Supreme Court
    
    would rule, we should simply ask that court for a definitive resolution through the
    
    procedure established for that purpose. There is no reason to decline to certify this
    
    question of pure Florida law to the Florida Supreme Court so that Florida judges
    
    can determine the parameters of Florida law.
    
                                      A. Strict Liability
    
          The majority offers two grounds to support its conclusion that no claim lies
    
    against BIC in strict liability, neither of which stand up to scrutiny. First, as the
    
    majority explains, the question of whether a design is defective is appropriately
    
    answered with reference to an “objective standard” that involves “consideration of
    
    the ordinary consumer’s expectations,” or, put another way, consideration of the
    
    “normal public expectation of danger.” See Hobart Corp. v. Siegle, 
    600 So. 2d
    
    503, 505 n.4 (Fla. Dist. Ct. App. 1992) (including “common knowledge and
    
    
                                               22
    normal public expectation of danger” among the criteria for determining whether a
    
    product is defectively designed). In answering this question, the majority asserts
    
    that the “normal public expectation of danger” relating to lighters would not
    
    include the likelihood of fires started by careless children. However, given that, by
    
    the majority’s own admission, “140 people, including 125 children, are killed each
    
    year in fires caused by children playing with lighters,” Jennings, __ F.3d at __
    
    (citing Consumer Federation of America, Up in Flames: The Deadly Consequences
    
    of Children Playing with Cigarette Lighters 3 (1987)), it is hard to credit the
    
    conclusion that the “normal public expectation of danger” would not include the
    
    risk of fires so caused, and that expectation of such a risk would arise only if one
    
    adopted “a subjective, child’s-perspective standard.” Id. To the contrary, in light
    
    of the high casualty rate and the obviousness of the danger, a jury could well find
    
    BIC lighters to be defectively designed under an objective, ordinary consumer
    
    standard.
    
          Similarly, the majority’s argument that High v. Westinghouse Elec. Corp.,
    
    
    610 So. 2d 1259
     (Fla. 1992), precludes a jury from determining whether strict
    
    liability applies is premised on a misreading of High and of Florida law in general.
    
    The majority posits that “a manufacturer is [strictly] liable only when the product
    
    is used as intended,” and asserts, on the basis of High, that a child’s use of a
    
    
                                              23
    cigarette lighter to set fire to things that are not intended to be burned is an
    
    unintended use under Florida law. Jennings, __ F.3d at __. The High court did
    
    hold, rightly, that a product manufacturer can be held strictly liable when injury
    
    results from an “intended use[]” of the product at issue. High, 610 So. 2d at 1262.
    
    However, the High court neither defined the term “intended use” nor did it exclude
    
    reasonable foreseeability as an element thereof. Rather, limiting itself to the
    
    specific facts before it, the court concluded only that unsealing and dismantling the
    
    defendant’s product – an electrical transformer – in order to salvage junk
    
    components was not an intended use of the product and thus that strict liability did
    
    not apply for injuries caused by the hazardous fluids that were released when the
    
    transformers were dismantled. Id. (finding, “under these facts, that strict liability
    
    does not apply”).1
    
           High thus provides no support for the majority’s assertion that, under Florida
    
    law, manufacturers are not strictly liable for injuries caused by reasonably
    
    
    1
      The dissent, arguing that the majority opinion was “deficient . . . in failing to define ‘intended
    uses,’”explained that “[t]he prevailing view recognizes that an ‘intended use’ includes
    unintended uses of a product if they were reasonably foreseeable by the defendant.” High, 610
    So. 2d at 1163 (Barkett, J., dissenting). Although the dissent disagreed with the majority’s
    disposition, it did so not because of any quarrel with the appropriate standard for strict products
    liability. Rather, the dissent disagreed with the majority because “foreseeability is usually a jury
    question,” and “[n]either the majority opinion nor the cases cited therein explain why that
    determination should be removed from the jury in this instance or why, as a matter of law, the
    manufacturer would not have reasonably foreseen that its product would be dismantled.” Id.
    
    
                                                     24
    foreseeable uses of their products. To the contrary, the High majority cites with
    
    approval two cases that acknowledge that a determination as to the “intended use”
    
    of a product involves an inquiry into “reasonably foreseeable uses.” See id. at
    
    1261-62 (citing Kalik v. Allis-Chalmers Corp., 
    658 F. Supp. 631
     (W.D. Pa. 1987);
    
    Wingett v. Teledyne Indus., Inc., 
    479 N.E.2d 51
     (Ind. 1985), overruled on other
    
    grounds by Douglass v. Irvin, 
    549 N.E.2d 368
     (Ind. 1990)).
    
          Applying the reasonable foreseeability standard in Jennings’ case would
    
    yield a different result than that reached by the majority. The very statistics cited
    
    by the majority regarding the annual number of deaths caused by children playing
    
    with lighters support the conclusion that the child’s use of the lighter was
    
    reasonably foreseeable and that BIC could therefore be held liable for the damages
    
    resulting therefrom. But to the extent that the application of strict liability to such
    
    a reasonably foreseeable use of the defendant’s product can be considered an open
    
    question of Florida law, I would at least certify it to the Florida Supreme Court for
    
    resolution.
    
                                        B. Negligence
    
          Turning to the negligence analysis, the majority concedes the first element of
    
    the negligence test, that BIC owed a duty of care to Selma Jennings’ child.
    
    Jennings, __ F.3d at __. The duty element is a question of law which is resolved
    
    
                                               25
    by determining “whether the defendant created a generalized and foreseeable risk
    
    of harming others.” Stazenski v. Tennant Co., 
    617 So. 2d 344
    , 346 (Fla. Dist. Ct.
    
    App. 1993). The majority acknowledges that children fall within the foreseeable
    
    zone of risk, recognizing, as noted earlier, that many accidents caused by children
    
    playing with lighters result in the deaths of children and adults alike.
    
          Having determined that a duty of care exists, the majority then concludes, as
    
    a matter of law, that BIC met its duty, noting that Florida courts have held that
    
    manufacturers need not go to “extreme lengths” or “take all possible measures” to
    
    protect foreseeable users of its products, and that BIC fulfilled its duty of care by
    
    placing warning labels on the lighters. Jennings, __ F.3d at __. However,
    
    Jennings makes no assertion that BIC should have gone to “extreme lengths” or
    
    taken “all possible measures” to make its products safe from children. The claim is
    
    that BIC, knowing that children would acquire its lighters and cause injury with
    
    them, was negligent in failing to incorporate a child-safety feature into the design.
    
    To sustain a cause of action for negligence, Jennings must establish that: (1) the
    
    defendant had a duty to protect the plaintiff; (2) the defendant breached that duty;
    
    and (3) the defendant's breach was the proximate cause of the plaintiff's injuries
    
    and resulting damages. See Lake Parker Mall, Inc. v. Carson, 
    327 So. 2d 121
    , 123
    
    (Fla. Dist. Ct. App.1976). The question before us is whether BIC breached the
    
    
                                              26
    duty of care the majority concedes BIC owed the plaintiff.
    
          A breach is the failure to use due care to do what a reasonable and prudent
    
    person would ordinarily have done under the circumstances. See De Wald v.
    
    Quarnstrom, 
    60 So. 2d 919
    , 921 (Fla. 1952). With respect to a manufacturer,
    
    negligence arises when the failure to use reasonable care results in an unsafe
    
    product. Determining whether the manufacturer used reasonable care involves a
    
    balancing test wherein the likelihood and the gravity of the potential harm are
    
    weighed against the burden of the precaution necessary to avoid that harm. See
    
    Auburn Machine Works v. Jones, 
    366 So. 2d 1167
    , 1171 (Fla. 1979).
    
          The majority’s conclusion in this case – that, as a matter of law, a warning
    
    was sufficient and that anything more would represent an “extreme” measure – has
    
    no basis in Florida law. As the majority recognizes, there are no Florida Supreme
    
    Court cases directly on point. It cites only two cases from the Florida District
    
    Court of Appeals, neither of which are analogous to the facts here. Vic Potamkin
    
    Chevrolet, Inc. v. Horne, 
    505 So. 2d 560
    , 562 (Fla. Dist. Ct. App. 1987) was a
    
    negligent entrustment case requiring a totally different analytical approach than
    
    that of a claim for negligent design. In Potamkin, the plaintiff sued a car dealer for
    
    letting an incompetent driver buy a car and drive it away. The buyer lost control of
    
    the vehicle and hit a tree, injuring her passenger. The passenger sued, and the
    
    
                                              27
    court found that the car dealer had fulfilled its duty of care by verifying that the
    
    buyer had a valid driver’s license. This case is inapposite to the issue presented
    
    here. In Jennings’ case, the issue is not whether a seller failed to evaluate the
    
    fitness of a purchaser, but rather whether a manufacturer is required to do more
    
    than warn against the possible misuse of its product by people (in this case,
    
    children) to whom it owes a duty of care.
    
          In Babine v. Gilley’s Bronco Shop, Inc., 
    488 So. 2d 176
     (Fla. Dist. Ct. App.
    
    1986), the plaintiff sued for injuries sustained when he was thrown from a
    
    mechanical bull in a bar. The bar had placed mattresses around the bull to cushion
    
    the fall of riders but the mattresses were not adequately pushed together, and when
    
    the appellant was thrown off, he hit his head on the floor. The claim was that the
    
    mechanical bull was defective because the manufacturer did not supply adequate
    
    landing gear and that, because the bull was inherently dangerous, strict liability
    
    should apply. The court held that it was not necessary for the manufacturer to
    
    provide landing pads with the mechanical bull. It analogized such a claim to that
    
    of requiring manufacturers of power saws or welding torches to provide safety
    
    glasses or other guards and found that this additional equipment need not be
    
    required. A warning that such additional equipment is necessary suffices unless
    
    the safety device can be made an “integral part” of the product. Id. at 178. There
    
    
                                               28
    is no claim here that the manufacturer should have provided additional equipment
    
    along with the lighter but rather that the manufacturer failed to use reasonable care
    
    by not developing a safety lock – which would be an “integral part” of the product
    
    – to make it more difficult for a child to use it, as, for example, pharmaceutical
    
    drug companies did in putting child-proof caps on their containers. It is for a jury
    
    to decide, based upon appropriate evidence, whether disposable lighters could
    
    incorporate child safety devices at a reasonable cost and without undue burden.
    
    And again, where any debate exists as to Florida law, that debate should be
    
    resolved by the Florida Supreme Court.
    
          Finally, I disagree with the majority’s conclusion that the district court did
    
    not err in refusing to give a jury instruction on intervening cause. The appellants’
    
    requested instruction provided that, “[n]egligence may also be a legal cause of
    
    injury even though it operates in combination with . . . some other cause occurring
    
    after the negligence occurs if such other cause was itself reasonably foreseeable . .
    
    . .” Florida Standard Jury Instruction 5.1(c) (emphasis added). This instruction
    
    recognizes that BIC could still be liable even if a later event or action (i.e., a parent
    
    leaving a lighter within reach of a small child) also played a role in the injury.
    
          The district court’s instruction that “[n]egligence may be a legal cause of
    
    damage even though it operates in combination with an act of another, some
    
    
                                               29
    natural cause, or some other cause if such other cause occurs at the same time as
    
    the negligence . . .” excluded this possibility. This instruction permitted the jury to
    
    assume that any negligence on Selma Jennings’ part obliterated any negligence on
    
    BIC’s part. Because this instruction caused “prejudicial harm to the requesting
    
    party,” Roberts v. Schaefer Co. v. Hardaway Co., 
    152 F.3d 1283
    , 1295 (11th Cir.
    
    1998), it warrants reversal.
    
    
    
    
                                              30
    

Document Info

DocketNumber: 95-2963

Filed Date: 7/22/1999

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (36)

Rodgers v. Singletary , 142 F.3d 1252 ( 1998 )

Roberts & Schaefer v. Hardaway Co. , 152 F.3d 1283 ( 1998 )

Erie R. Co. v. Tompkins , 304 U.S. 64 ( 1938 )

Foman v. Davis , 371 U.S. 178 ( 1962 )

General Electric Co. v. Joiner , 522 U.S. 136 ( 1997 )

State of Florida Ex Rel. Robert L. Shevin, Attorney General,... , 526 F.2d 266 ( 1976 )

Jess F. Rhodes v. Amarillo Hospital District , 654 F.2d 1148 ( 1981 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

Ernest Leon Clemons v. Dougherty County, Georgia , 684 F.2d 1365 ( 1982 )

James L. Norton, Cross-Appellee v. Snapper Power Equipment, ... , 806 F.2d 1545 ( 1987 )

timothy-w-griggs-catherine-h-griggs-individually-and-as-parents-and , 981 F.2d 1429 ( 1992 )

Vera Smith, of the Estate of Robert J. Smith, Deceased v. ... , 5 F.3d 488 ( 1993 )

Robert Kirk, as Next Friend of Amanda Gryka, a Minor v. ... , 16 F.3d 705 ( 1994 )

Rodney Todd, as Special Administrator of the Estate of ... , 21 F.3d 1402 ( 1994 )

Vernal Forbus Earl J. Beacham Rudolph Caddell Frank R. ... , 30 F.3d 1402 ( 1994 )

steven-christopher-jason-christopher-brenda-mills-as-natural-guardian-of , 53 F.3d 1184 ( 1995 )

75-fair-emplpraccas-bna-108-47-fed-r-evid-serv-1101-11-fla-l , 122 F.3d 997 ( 1997 )

48 Fed. R. Evid. Serv. 832, 11 Fla. L. Weekly Fed. C 975 ... , 133 F.3d 809 ( 1998 )

Alejandro Escareno v. Noltina Crucible and Refractory ... , 139 F.3d 1456 ( 1998 )

McCain v. Florida Power Corporation , 593 So. 2d 500 ( 1992 )

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