The Texas Supreme Court has determined that the mother of a 6-year-old girl, who was severely injured when her 5-year-old brother set her dress on fire while playing with a BIC lighter, did not introduce sufficient evidence that a manufacturing defect caused the injury to support a jury verdict in her favor. BIC Pen Corp. v. Carter, No. 09-0039 (Tex., decided June 17, 2011). The ruling follows a previous decision finding that the design defect claims in the case were preempted by federal law. On remand, the court of appeals affirmed the verdict based on the jury’s manufacturing defect findings.  

In its second appeal, BIC argued that manufacturing defects are also preempted by federal law. The supreme court disagreed, but determined that the evidence did not show that the two force-related child safety features, which did not allegedly meet design parameters approved by the Consumer Product Safety Commission (CPSC), were overcome by the 5-year-old, who apparently had developmental issues that could have prevented him from overcoming the three cognitive-related safety features. The court also noted, “Even more important than the statistics referenced above is the fact that even a lighter that meets CPSC child-resistant specifications is not intended to be completely inoperable by children, whether they are under or over five years of age. The specifications contemplate that some children less than five years old will be able to operate a lighter certified as child resistant.”