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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
U.S. District Court
No. 96-759
KATHLEEN PRICE, GUARDIAN OVER THE ESTATE OF MATTHEW RYAN MOORE
v.
BIC CORPORATION
November 3, 1997
Burns, Bryant, Hinchey, Cox & Rockefeller, P.A., of Dover (Christine M. Rockefeller on the brief and orally), for the plaintiff.
Burns & Levinson, of Boston, Massachusetts (Charles Mark Furcolo and Andrew P. Botti on the brief, and Mr. Furcolo orally), and Law Office of Thomas F. Kehr, of Concord (Thomas F. Kehr on the brief), for the defendant.
Moquin & Daley, P.A., of Manchester (Martin R. Jenkins on the brief), for the NH Trial Lawyers Association, as amicus curiae.
HORTON, J. Pursuant to Supreme Court Rule 34, the United States District Court for the District of New Hampshire (Barbadoro, J.) certified to us the following question of law:
Can the legal representative of a minor child injured as a result of the misuse of a product by another minor child maintain a defective design product liability claim against the product's manufacturer if the product was intended to be used only by adults and the risk that children might misuse the product was open and obvious to the product's manufacturer and its intended users?
We respond in the affirmative.
Since this issue arises in the context of a motion for summary judgment, the district court has presented the facts in the light most favorable to the non-moving party. We adopt the district court's recitation of the facts. In November 1991, three-year-old Douglas Moore used a BIC model J-6 lighter to start a fire that severely burned his seventeen-month-old brother, Matthew Ryan Moore. The lighter had been purchased by the boys' mother, Mary Moore.
The packaging on BIC lighters provided the warnings "Keep out of Reach of Children" and "Keep Away From Children." The defendant, BIC Corporation (BIC), was aware that the lighters could be used by children to ignite fires. BIC did not incorporate known and available child resistant features into the design of the J-6 lighter even though it was possible to do so without significantly affecting the lighter's cost or effectiveness.
The plaintiff, Kathleen Price, the guardian over the estate of Matthew Ryan Moore, contends that BIC should be strictly liable because the lighter was defectively designed in that it lacked child resistant features and adequate warnings. The plaintiff produced no evidence in response to BIC's claims that its lighters were intended to be used only by adults and that the risk that minor children might use the lighters to start fires was open and obvious to the intended users of the lighters.
BIC moved for summary judgment, asserting that New Hampshire does not permit a plaintiff to maintain a strict product liability defective design claim if the injuries complained of result from a risk that is open and obvious to the product's intended users. The federal district court asks us to clarify whether we would limit strict liability defective design claims in the manner that BIC suggests.
Nearly thirty years ago this court adopted the doctrine of strict liability of manufacturers for product defects as stated in section 402A (1) of the Restatement (Second) of Torts: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer . . . ." Restatement (Second) of Torts