1 Revised February 7, 2003

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-20098

BRYAN FLOCK, Individually and as next friend, Natural Father, and as Heir of Son, Brandon

Flock (Deceased); OMY RAY MUNSINGER, Individually, and as Natural Father, and as an Heir

of Shonda Munsinger (Deceased); PATRICIA MUNSINGER HARRIS, Individually, and as

Natural Mother, and as an heir of Shonda Munsinger (Deceased); MICKEY BRITT,

Plaintiffs-Appellants,

VERSUS

SCRIPTO-TOKAI CORPORATION; TOKAI CORPORATION; JMP MEXICO SA DE CV,

also known as JMP Mexico SAdeCV; TOKAI DE MEXICO SA DE CV,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

February 3, 2003

Before DAVIS, BARKSDALE and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Plaintiffs, Bryan Flock, Omy Ray Munsinger, Patricia Harris Munsinger, and Mickey Britt,2

appeal the dist rict court’s judgment granting summary judgment to defendants, Scripto-Tokai

Corporation (“Scripto”) and Tokai Corporation (“Tokai”) (collectively “Scripto-Tokai”). The

district court concluded that the plaint iffs could not establish that a defect in an Aim ’n Flame utility

lighter designed, manufactured, and distributed by S cripto-Tokai caused the fi re that destroy ed a

trailer and resulted in the deaths of Shonda Munsinger (“Shonda”) and Brandon Flock (“Brandon”).

We disagree and conclude that plaintiffs presented sufficient summary judgment evidence to create

a genuine issue of material fact on whether the Aim ’n Flame caused the fire that resulted in Shonda’s

and Brandon’s deaths. We therefore vacate the district court’s judgment in part and remand for

further proceedings.

I.

In October 1999, Shonda and her four year-old son, Brandon, died of asphyxia after the trailer

they shared with

Kennet h Keith Mann, Shonda’s boyfriend, in Conroe, Texas, caught fire. That

morning, Mann left for work at 7:30 a.m. Shonda was still sleeping in the master bedroom on the

north end of the trailer, but as he left, Mann heard Brandon awake and playing in his room located

on the south end of the trailer. At approximately 9:00 a.m., neighbors noticed fire blazing out of the

windows at the south end of the trailer and called for help. Firefighters arrived short ly t hereafter.

After bringing the blaze under control, the firefighters found Shonda and Brandon dead in the master

bedroom, which remained untouched by the fire.

Montgomery County fire investigators determined that the fire started in Brandon’s bedroom.

The investigators found the metal tip of an Aim ’n Flame utility lighter in the room

. The plastic arm

of the Aim ’n Flame was melted in the fire ma king it impo ssible to determine when it was3

manufactured. The Aim ’n Flame was the only incendiary device in this room, though matches and

cigarette lighters were found elsewhere in the trailer. Considering the point of origin of the fire and

the proximity of the Aim ’n Flame thereto, the investigators concluded that Brandon started the fire

by playing with the lighter in his bedroom.

Brandon’s father, Bryan Flock, Shonda’s parents, Omy Munsinger and Patricia Harris, and

Mickey Britt, the owner of the trailer, filed suit against Scripto-Tokai in federal court on the basis

of diversity jurisdiction. They sought compensatory and exemplary damages on the basis of products

liabilit y, negligence, breach of express and implied warranties, misrepresentation, and violations of

the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code § 17.46 et seq

. In response to

their complaint, the defendants filed a third-party complaint against Mann alleging he had a duty to

install and maintain smoke detectors in the trailer.

Scri pto-Tokai moved for summary judgment seeking dismissal of all of the plaint iffs’ claims.

The magistrate judge, to whom the case was referred for pre-trial management, recommended that

summary judgment be granted for some of the plaint iffs’ claims but denied as to others. The district

court adopted this recommendation to the ex t ent that the magistrate recommended dismissing the

plaintiffs’ claims but issued its own opinion granting summary judgment for the remaining claims.

The district court concluded that “assuming there was a defect in the lighter they [plaintiffs] cannot

establish that the particul ar defect was connected to the fire.” The plaintiffs have lodged a timely

appeal.

II.

We review the district court’s ruling on the defendants’ Motion for Summary Judgment de

novo

, applying the same legal standard as the district court. R amirez v. City of San A ntoni o , 3121 Section 82.005 of the Texas Civil Practice & Remedy Code reads:

(a) In a products liability action in which a claimant alleges a design defect, the

burden is on the claimant to prove by a preponderance of the evidence that:

(1) there was a safer alternative design; and

(2) the defect was a producing cause of the personal injury, property

damage, or death for which the claimant seeks recovery.

(b) In this section, "safer alternative design" means a product design other than the

one actually used that in reasonable probability:

(1) would have prevented or significantly reduced the risk of the claimant's

personal injury, property damage, or death without substantially impairing

the product's utility; and

(2) was economically and technologically feasible at the time the product

left the control of the manufacturer or seller by the application of existing

or reasonably achievable scientific knowledge.

4 F.3d 178, 181 (5th Cir. 2002). A summary judgment is only appropriate when, viewing the evidence

in the light most favorable to the nonmoving party, no genuine issue of material fact exists, and the

moving party is entitled to judgment as a matter of law. C anova v. Shell Pipeline Co.

, 290 F.3d 753,

755 (5th Cir. 2002). In determining whether there is a dispute as to any material fact, we consider

all of the evidence in the record, but we do not make credibility determinations or weigh evidence.

Ramirez v. City of San Antonio

, 312 F.3d at 181. Instead, we draw all reasonable inferences in favor

of the nonmoving party. Id

.

Plaint iffs’ primary claim is that Scri pto-Tokai are liable under the theory of products liabilit y

based on the defective design of the defendants’ Aim ’n Flame utility lighter. In Texas, Texas Civil

Practice & Remedy Code § 82.005 and Section 402A of the Restatement (Second) of Torts govern

products liability claims for design defects. 1 Uniroyal Goodrich Tire Co. v. Martinez

, 997 S.W.2dSection 402A of the Restatement (Second) of Torts reads:

(1) 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, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold.

5 328, 334 ( Tex. 1998); A merican Tobacco Company, Inc. v. Grinnell

, 951 S.W.2d 420, 426 (Tex.

1997). Under this schema, the plaint iff must show that: (1) because of its defective design the product

is unreasonably dangerous, (2) a safer alternative design exists, and (3) the defective design was the

producing cause of the plaintiffs’ injuries.

III.

Because the focus of the district court’s ruling was the lack of a causal link between the

defendants’ lighter and the fire, we begin with a consideration of this issue.

U nder Texas law, causation generally is a question of fact for the jury. G utierrez v. Excel

Corp.

, 106 F.3d 683, 687 (5th Cir. 1997). “Proof of causation requires more t han conjecture or

guess.” M osley v. Excel Corp.

, 109 F.3d 1006, 1009 (5th Cir. 1997). However, it need not be

supported by direct evidence. T ompkins v. Cyr

, 202 F.3d 770, 782 (5th Cir. 2000). Circumstantial

evidence and reasonable inferences therefrom may form a sufficient basis for a finding of causation.

Id

. Establishing causation requires facts sufficient for a jury to reasonably infer that the defendants’

acts were a substantial factor in bringing about the injury. I d

. Nevertheless, when circumstances are

consistent with either of two factual scenarios and one is no more probable than the other, neither can

be inferred. S ummers v. Fort Crockett Hotel

, 902 S.W.2d 20, 25 (Tex. App. Houston 1st Dist. 1995)2 The plastic component of the lighter was not found in the debris.

6 (citing Li tton Industrial Products Inc. v. Gammage

, 668 S.W.2d 319, 324 (Tex. 1984); Marshall Field

Stores, Inc. v. Gardiner , 859 S.W.2d 391, 400 (Tex. App. Houston 1st Dist. 1993)).

In their Moti on for Summary Judgment, Scri pto-Tokai argued that, because cigarette lighters

and matches were found in other areas of the trailer, it was just as likely that the fire could have been

started with these incendia ry devices rather than the Aim ’n Flame. However, Scripto-Tokai

overlook the inference that can be drawn from the fact that the Aim ’n Flame was the only incendiary

device that was found in Brandon’s room

, where the fire started. The Official Fire Report of t he

Montgomery County Fire Marshall’s Office and its supplements (the “Fire Report”) strongly support

plaintiffs’ contention that the fire was started by Brandon using an Aim ’n Flame.

The Fire Report contains the findings of Investigator Darren Hess. Investigator Hess found

no evidence that a wire, gas line, or weather was the source of the fire. Hess determined that the fire

began in the south bedroom, Brandon’s bedroom, near the bunk bed. Investigator Hess noted in the

report that remains of a “BBQ/fireplace propane light er” were recovered from the area of origin.

Investigator Williams, who investigated the scene of the fire with He ss, likewi se noted that the

remains of a “disposable lighter, of the type normally used to light fireplaces and BBQ pits (red plastic

handle and squared off metal tip)” were found in the room

. 2 Without being informed that the metal

tip of an Aim ’n Flame was found in Brandon’s bedroom, Mann informed Investigator Williams that

he and Shonda had an Aim ’n Flame in the trailer which they kept in the master bedroom on top of

the TV. Mann led Investigat o r Williams to the location where he believed the lighter was left the

morning of the fire, but it was no longer there.

Scri pto-Tokai surmise other possible scenarios which could have caused the fire, e.g. Brandon7

took a lighter from a drawer in the master bedroom, started the fire, and then returned the lighter to

the drawer, or Brandon started the fire with matches which were destroyed in the fire. They contend

t hat t hese hypothetical scenarios were “as likely” as that contained in the fire report. We do no t

agree. The only evidence of an ignition source found in Brandon’s bedroom, where the fire

originated, was the remains of the Aim ’n Flame lighter. This fact, together with other surrounding

circumstances, creates a genuine issue of material fact on whether Brandon started the fire using the

lighter. Thus, issues of fact preclude an award of summary judgment on this basis.

IV.

Scri pto-Tokai argue next that, even if an Aim ’n Flame w as used to start the bl aze, the

summary judgment evidence fails to establish that a design defect was the producing cause of the fire.

In Texas, producing cause is a statutorily required element for recovery in a products liabilit y case.

Tex. Civ. Prac. & Rem. Code § 82.005 (a) (2). “A producing cause is ‘an efficient, exciting, or

contributing cause, which in a natural sequence, produced injuries or damages complained of, if any.’”

G.M.C. v. Harper

, 61 S.W.3d 118, 130 (Tex. App. Eastland 2001) (citing Union Pump Company v.

Allbritton

, 898 S.W.2d 773, 775 (Tex. 1995) and Rourke v. Garza

, 530 S.W.2d 7 94, 801 (Tex.

1975)). Producing cause is the cause-in-fact of the harm, meaning that a “defendant’s conduct must

have been a substantial factor in bringing about the injury and that the injury would not have occurred

but for the defendant’s conduct.” Id . at 131.

The crux of Scripto-Tokai’s argument is that there is no way to det ermine whether a

manufacturing defect caused the fire because there is no way to determine when the Aim ’n Flame

found in Brandon’s room was manufactured because the plastic component was destroyed in the fire.3 The plaintiffs also contend that the lighter is defective because it releases butane each

time the trigger is pulled; however, they have presented no evidence establishing a causal link

between this purported defect and the fire. Thus, the plaintiffs have failed to create a genuine

issue of material fact regarding this theory.

8 The plaint iffs have urged two potential design defect theor ies for which the time of

manufacture plays a key role. 3 First, the plaintiffs contend that a problem wit h t he safety on/off

switch on the Aim ’n Flame may have caused the fire. The switch is designed so that the lighter will

not ignite if the trigger is pulled when the switch is in the “off” position. Both the pre-1996 model

a nd a 1996 redesigned model of the Aim ’n Flame have the on/off safety switch. The plaint iffs

produced evidence showing that the on/off switch of the pre-1996 model gradually migrates to the

“on” position after the trigger is pulled a number of times in repet it io n. This migration problem,

however, was apparently corrected in the 1996 redesign. Thus, plaintiffs cannot rely on the migration

problem as the design defect, unless they can produce evidence from which a jury could find that the

lighter found in Brandon’s bedroom was manufactured before 1996.

The plaint iffs produced evidence that Shonda and her former husband, Bryan Flock,

purchased two or three Aim ’n Flam e lighters just after Brandon was born in 1995. However,

Shonda and Bryan separated in 1997, two years before the fire . He has no knowledge of what

happened to these lighters after that time. While the plaintiffs contend that Brandon used one of the

lighters purchased in 1995, Shonda may have bought others after she and Bryan separated. We agree

with Scri pto-Tokai that it is impossible to determine from the summary judgment evidence whether

the Aim ’n Flame used to start the fire was a pre-1996 model or the 1996 redesign. Further, even if

the Aim ’n Flame had a migration defect, there is no way to determine whether the switch migrated

to the “on” position, whether it was left “on” by the last adult to use it, or whether Brandon turned4 Scripto-Tokai does not contend the safety on/off switch was intended to afford any level

of child resistance.

9 the switch to the “on” position himself. Thus, to the extent that the plaintiffs urge that the fire was

caused by the migration of the on/off switch, summary judgment is appropriate.

However, independent of their migration theory, the plaintiffs also contend that the lack of

child resistant features constitutes a design defect. Prior to 1999, Scripto-Tokai did not offer a child

resistant model of the Aim ’n Flame. 4 In late-1999, Scripto-Tokai redesigned the Aim ’n Flame to

incorporate child resistant features which require the use of the thumb to move a locking member at

the same time the index finger is used to pull the trigger. According to expert testimony, a four yearold child does not have the m otor or cognitive capacity to master the specific, sequential m otor tasks

required t o ignit e t he child resistant model and would abandon the Aim ’n Flame after several

minutes, thus, preventing child play fires.

In his deposition, Mann stated that the only utility lighters in the trailer at the time of the fire

were purchased by Shonda before she moved into the trailer in March 1999. Though the date of

manufacture of the Aim ’n Flames in the trailer cannot be pinpointed, from this evidence a jury could

find that the Aim ’n Flame which caused the fire was manufactured prior to the introduction of a child

resistant model. A jury could find it unlikely that Brandon, as a four year-old child, would have been

able to ignite the Aim ’n Flame had it been equipped with the chi ld resistant features. Thus, the

plaint iffs produced evidence from which a jury could find that the lack of an adequate child resistant

mechanism was a substantial factor in starting the fire.

Plaint iffs have produced substantial evid ence fro m which a jury could find that the lighter

without the child resistant features was defectively designed and was a substantial factor in starting10

the fire. Because issues of fact are presented, summary judgment is inappropriate on this issue.

V.

Scri pto-Tokai also contend that they are entitled to judgment as a matter of law because the

plaint iffs have no evidence that there was a safer alternative design. H ernandez v. Tokai Corp.

, 2

S.W.3d 251 (Tex. 1999); Tex. Civ. Prac. & Rem. Code § 82.005 (a) (1).

A safer alternative design is both a statutorily required element of a design defect claim and

a factor considered when conducting a risk-utility an a lysis to determine whether a product is

unreasonably dangerous. Tex. Civ. Prac. & Rem. Code Section 82.005 (b); H ernandez v. Tokai

Corp.

, 2 S.W.3d 251, 256. Under Texas Civil Practice & Remedy Code Section 82.005 (b), a “safer

alternati ve design” is one that in reasonable probability: (1) would have prevented or significantly

reduced the risk of the claimant's personal i njury, property damage, or death without substantially

impairing the product's utility; and (2) was economically and technologically feasible at the time the

product left the control of the manufacturer or seller by the application of existi ng or reasonably

achievable scient ific knowledge. The summary judgment record is replete with evidence that a “safer

alternative design” as defined by Section 82.005 (b) existed by October 1995, the earliest purchase

date of the Aim ’n Flame that caused the fire.

As noted in Section IV above, the plaintiffs produced substantial evidence that an adequate

child resistant mechanism would have prevented the fire. The plaintiffs’ industrial engineering expert,

Professor Tarald Kvalseth, stated in his affidavit that existing child resistant technology would have

made the Aim ’n Flame nearly impossible for a child to ignite yet, at the same time, would not have

substantially reduced the utility of the lighter for adult use. The plaintiffs also produced the affidavit

of Dr. Bruce Perry, a board certified child psychiatrist , who averred that i t woul d have been11

“extremely difficult if not impossible” for a f o ur year-old child, like Brandon, to activate a child

resistant Aim ’n Flame. Because a child of this age lacks the required motor skills and co gnitive

abilities to activate the child resistant mechanism, the child grows bored and abandons the Aim ’n

Flame after his efforts to ignite it are frustrated by the child resistant features. In contrast, only a brief

exploration or manipulation by a child results in the producti on of a flame when the Aim ’n Flame

lacks child resistant features. Based on this evidence, a jury could find that, had the Aim ’n Flame

possessed the child resistant mechanism, the risk of Brandon starting a fire with it would have been

prevented or significantly reduced.

Regarding the availability of this technology, Professor Kvalseth stated that the technology

was within the state of the art in 1985 when Scripto-Tokai first introduced the Aim ’n Flame in the

United States. Moreover, the history of the development of the 1999 child resistant model of the Aim

’n Flame demonstrates that the technology was available at the time the product left the control of

Scripto-Tokai.

The child resistant model of the Aim ’n Flame introduced by Scripto-Tokai in 1999 was

covered by a 1994 patent owned by Tokai. In early 1994, Scripto directed Tokai’s research and

development staff to quickly develop plans to make the Aim ’n Flame child resistant due to concerns

regarding child play fires. Three formal mock ups of a child resistant Aim ’n Flame were presented

to Scripto’s management by Tokai’s research and development staff in June 1994. As a result, Tokai

filed four patents of child resistant devices for use in its utility lighters in October 1994, noting in the

patents that the current designs were not desirable from the perspective of safet y. According to

Scripto’s former president, it would have taken only seven to n ine months to manufacture and

distribute this child resistant version of the Aim ’n Flame. Thus, it is clear t hat the child resistant12

technology was available by October 1995, the earliest purchase date of the Aim ’n Flame involved

in this fire.

Further, the plaint iffs produced evidence t hat producing a child resistant model was

economically feasible. According to Kvalseth, if child resistant features had been incorporated in the

original design in 1984, the cost would have been negligible. It is only when a product is modified

that a manufacturer incurs additional expense. In internal memoranda authored in 1996, ScriptoTokai estimated the cost to be 3.0 yen or approximately 3¢ per unit for the modification and mass

producti on of a child resistant Aim ’n Flame. The cost of modification of the child resistant model

ultimately introduced in 1999 proved to be less than 5¢ per unit, with a total out of pocket cost to

the company of $5 00,000. Hence, it was also arguably economically feasible to produce a child

resistant Aim ’n Flame at the time of its purchase.

In light of the above, it is clear that the plaint iffs met their burden of producti on on summary

judgment and that questions of fact remain with regard to whether a “safer alternative design” existed

at the time the Aim ’n Flame left the control of Scripto-Tokai. These questions of fact preclude

summary judgment on this issue.

VI.

Scripto-Tokai next argue that, because the Aim ’n Flame was designed solely for adult use

and because the danger associated with the produc t was apparent to the ordi nary consum er, the

product is not u nreaso nably dangerous under a risk-utility analysis and that judgment should be

rendered in its favor as a matter of law.

While the elements of Section 82.005 of the Texas Civil Practice & Remedy Code must be

proved to establish liabilit y for a defectively designed product, fulfilling the statute’s requirements is5 The second and third of these factors have been codified by the Texas Legislature in the

“safer alternative design” requirement of Tex. Civ. Prac. & Rem. Code § 82.005. American

Tobacco Company v. Grinnell , 951 S.W.2d 420, 433. A thorough analysis of whether a safer

alternative design was available can be found in Section V above.

13 not sufficient to establish liabilit y. H ernandez v. Tokai Corp. , 2 S.W.3d 251, 256. To prevail in a

design defect claim in Texas, plaint iff must also prove that a product is unreasonably dangerous. I d

.

Whether a defendant has breached its duty to design a safe product is generally a question of fact for

a jury. A merican Tobacco Company, Inc. v. Grinnell

, 951 S.W.2d 420, 432 (1997). “In determining

whether a product is defectively designed, the jury must conclude that the product is unreasonably

dangerous as designed, taking into consideration the utility of the product and the risk involved in its

use.” Id . A risk-utility analysis involves the consideration of several factors, including:

(1) the utility of the product to the user and to the public as a whole weighed against

the gravity and likelihood of injury from its use; (2) the availabilit y of a substitute

product which

wo uld meet the same need and not be unsafe or unreasonably

expensive; (3) the manufacturer's abilit y to eliminat e the unsafe character of the

product without seriously impairing its usefulness or significant ly increasing its costs;

(4) the user's anticipated awareness of the dangers inherent in the product and their

avoidability because of the general public knowledge of the obvious condition of the

product, o r o f the existence of suitable warnings or instructions, and (5) the

expectations of the ordinary consumer. 5 H ernandez v. Tokai Corp.

, 2 S.W.3d at 256

(citing American Tobacco Co. v. Grinnell , 951 S.W.2d 420, 432).

Here, Scri pto-Tokai argue that the plaint iffs have failed to produce evidence that the Aim ’n

Flame is unreasonably dangerous because they have failed to identify a risk associated with adult use

of the Aim ’n Flame. Scripto-Tokai contend that, under H ernandez v. Tokai Corp.

, the risks weighed

in a risk-utility analysis must be risks associated with use of the Aim ’n Flame by an intended adult

user.

The Texas Supreme Court decided Hernandez in response to a certified question from this

court rega rding whether a design defect products liability claim could be maintained in a case14

invo lving a fire started by a child using a cigarette lighter without child resistant features. I d

. at 254.

The court recognized that a risk associated with adult use is that “a lighter will come into a child’s

hands.” Id . at 259. The relevant inquiry includes assessing the risk that an adult will allow a child

access and the gravity of the harm resulting therefrom. I d

. Thus, the risk of child play is subsumed

in the risks of adult use and is clearly relevant to a risk-utility analysis. T his risk is t hen balanced

against the consumer preference for utility lighters without child resistant features to determine

“whether the adult users of lighters should be deprived of this choice because of the risk that some

child will obtain lighters that are not child resistant and cause harm.” Id . at 260.

Through Consumer Products Safety Commissions notices, their o wn experts’ reports, and

documents obtained from Scripto-Tokai, plaint iffs have produced volumes of evidence showing that

the risk of child access to the Aim ’n Flame and the resulting harm are both significant. The risk that

a child will gain access to an Aim ’n Flame is higher than that asso ciated with a cigarette lighter

because children find the toy gun-like appearance of the Aim ’n Flame particularly attractive. Out

of natural curiosity a child would seek out the Aim ’n Flame, pull th e trigger, and acti vate the

mechanism. The number of child play fires between 1990 and 1994 prompted Scripto-Tokai to begin

developing child resistant models, though one was not actually marketed until 1999. In addition to

the obvious harm that a child, like Brandon, may injure himself or others, plaint iffs produced evidence

quantifying the societal cost of child play fires at $192 million between 1995 and 1998. In view of

this evidence, the risk and harm identified by the plaint iffs create a material issue of fact on the aspect

of liabilit y. These factors should be weighed by the finder of fact against the consumer’s preference

for non-child resistant utility lighters.

The intended user’s awareness of the risk is also an important consideration in determining15

whether a product is unreasonably dangerous. Id . Scripto-Tokai urge that the risk of child play is

so apparent to the intended user that this fact alone is dispositive of the case. We agree with ScriptoTokai that the dangers associated with the Aim ’n Flame may well be readily apparent to the

reasonable user. However, this singular fact does not tilt the balance of the risk-utility analysis so far

in the defendants’ favor as to warrant resolution as a matter of law.

The Supreme Court of Texas has consistently held that liabilit y for a design defect may attach

even if the defect is apparent. U niroyal Goodrich Tire Company v. Martinez, 977 S.W.2d 328, 336;

American Tobacco Company, Inc. v. Grinnell

, 951 S.W.2d 420, 432; C aterpillar, Inc. v. Shears

, 911

S.W.2d 379, 383 (1995); T urner v. General Motors Corp.

, 584 S.W.2d 844, 850 (Tex. 1979).

“[T]he fact that a danger is open and obvious

. . . does not preclude a finding of product defect when

a safer, reasonable alternative design exists.” U niroyal Goodrich Tire Company v. Martinez, 977

S.W.2d 328, 336. While the obvious risk of allowing Brandon access to the lighter weighs against

liability, it is merely one factor which must be weighed by the jury in determining whether the Aim

’n Flame is unreasonably dangerous in design. This factor standing alone does not dictate t hat

judgment be granted as a matter of law.

For the reasons discussed above, issues o f fact preclude summary judgment on plaintiffs’

products liability claims based on defective design.

VII.

Scripto-Tokai next argue that plaintiffs cannot show that they are entitled to recover under

the Texas Deceptive Trade Practices Act (“DTPA”). Tex. Bus. & Com. Code § 17.46 e t seq

. From

our review of the summary judgment record, we agree with the district court that plaint iffs produced

no evidence that Scri

pto-Tokai made misrepresentations o r omitted important facts regarding the Aim6 In addition to those claims treated herein, defendants also moved for summary judgment

on plaintiffs’ claims under the theories of products liability based on a marketing defect,

negligence, breach of express and implied warranty, and on plaintiffs’ right to recovery exemplary

damages.

16 ’n Flame. Thus, for essentially the same reasons stated by the district court, Scripto-Tokai is entitled

to summary judgment on plaintiffs’ DTPA claims.

VIII.

Because of the district court’s dispositi o n o f t he plaintiffs’ suit, the district court found it

unnecessary to address several of the defendants’ bases for summary judgment directed to various

other predicates for liabilit y and damages assert ed by the plaintiffs. 6 We remand this case to the

district court so that it can consider these arguments in the first instance.

For the reasons stated above, we AFFIRM the district court’s o r der granting summary

judgment to Scri

pto-Tokai on plaint iffs’ DTP A claims. We VACATE the district court’s order

granting summary judgment on plaint iffs’ design defect claims and REMAND this case to the district

court for further proceedings consistent with this opinion.