Dane Shelley

BL 260
Case Problem
I.
Plaintiff:

Susan Calles

Defendant:

Scripto-Tokai Corporation
Dr. Richard Fox
Strict Product Liability
Product Liability based on Negligence
Design Defects
Warranty
Medical Malpractice
Plaintiff Negligence
Commonly Known Dangers
Assumption of Risk
Obvious Risk

Theories:

Defenses:

Susan Calles
can try to sue Scripto-Tokai Corporation because her daughter was severely injured by
their product Aim N Flame. She can use the theory of strict product liability to do so.
There is substantial evidence in this case for her to claim that the Aim N Flame was an
unreasonably dangerous product and at the same time had design defects. Scripto-Tokai
Corporation can use the theory that Susan Calles was extremely negligent and she should
have realized the commonly known dangers and the obvious risk of their product.
II.
Theories
Strict Product Liability
Strict Product liability focuses on the dangers that can be caused to consumers
because of the product. People who sell or manufacture products can incur product

liability if these said products have any defects that cause any harm or injury to its
consumers. There is a set of six requirements for strict product liability and if theyre met,
a manufacturers liability to an injured party can be basically unlimited. These six
requirements are:
1. The product must be in a defective condition when the defendant sells it.
2. The defendant must normally be engaged in the business of selling (or
otherwise distributing) that product.
3. The product must be unreasonably dangerous to the user or consumer because
of its defective condition (in most states).
4. The plaintiff must incur physical harm to self or property by use or
consumption of the product.
5. The defective condition must be the proximate cause of the injury or damage.
6. The goods must not have been substantially changed from the time the
product was sold to the time the injury was sustained. (BL 260 p. 145)
Susan Calles could also use the theory that the product was unreasonably dangerous
because of a defective condition. A court could consider a product so defective as to be an
unreasonably dangerous product in either of the following situations:
1. The product was dangerous beyond the expectation of the ordinary consumer.
2. A less dangerous alternative was economically feasible for the manufacturer,
but the manufacturer failed to produce it. (BL 260 p. 145)
Susan Calles can use the theory that the product was unreasonably dangerous based on
the idea that a less dangerous alternative was economically feasible to make. I found that
under the Indiana Code 34-30-2-3 that the plaintiff would be able to bring action in
Indiana against the Tokai Corporation for strict liability is she can prove that the product
was unreasonably dangerous to her because of the defective condition. Also, according to

Indiana Law, in order to succeed in an action based on strict liability, the plaintiff must
prove that:
1. The product was defective and unreasonably dangerous.
2. The defective condition existed at the time the product left the defendants
control.
3. The defective condition was the proximate cause of the plaintiffs injuries.
{27 Ind. Law Encyclopedia. Negligence & 10 (2010)}.

Product Liability Based on Negligence

Another theory that Susan Calles can use to sue Scripto-Tokai Corporation is
product liability based on negligence. She can argue that Scripto-Tokai failed to exercise
the degree of care that a reasonable, prudent person would have exercised under the
circumstances. Our textbook states that manufacturers must use due care in all of these
following areas or they will be held liable:
1.
2.
3.
4.
5.

Designing the product.

Selecting the materials.
Using the appropriate production process.
Assembling and testing the product.
Placing adequate warning on the label to inform the user of dangers of which

an ordinary person might not be aware.

6. Inspecting and testing any purchased components used in the product.
(BL 260 p. 142)
In the state of Indiana, the Indiana Products and Liability Act governs all
negligence and strict product liability actions for defective products. This article also
governs all actions that are brought by a user or consumer against a manufacturer or
seller and any physical harm caused by a product regardless of the substantive legal
theory or theories upon which the action is brought (Indiana Code 34-20-1-1). After

looking at this article in the Indiana Codes, one could clearly realize that Susan Calles
daughter was incredibly hurt by the product that was used. Also, according to the Indiana
Law encyclopedia, if an injury might have resulted from two or more possible causes for
only one of which the defendant may be liable, the plaintiff may recover by establishing
facts from which it can be said with reasonable certainty that the direct cause of injury is
the one for which the defendant is liable. {21 Ind. Law Encyclopedia. Negligence & 94
(2010)}. Therefore, Susan Called could sue Scripto-Tokai on the theory of product
liability based on negligence.

Design Defects
In the case of Calles v. Scripto-Tokai Corp., Susan Calles has to prove that the
design was defective in order to bring about strict product liability. In this case, one might
say that there was some kind of design defect that was associated with the product, as it
ended up burning down a house and severely injuring multiple people. Our textbook,
Business Law: Texts and Cases gives insight onto what exactly it means for a product to
have a design defect. It states that a product is defective in design when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the adoption
of a reasonable alternative design by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design renders the
product not reasonably safe (BL 260 p. 146). It goes on to highlight to successfully
assert a design defect, a plaintiff has to show that:
1. A reasonable alternative design was available.
2. The defendants failure to adopt the alternative design rendered the product
not reasonably safe. (BL 260 p. 146)

In this case, Calles can sue for product liability because of a design defect and Indiana
Code 34-20-2-1 states grounds for action. Indiana Code 34-20-2-1 states that a person
who sells, leases, or otherwise puts into the stream of commerce any product in a
defective condition unreasonably dangerous to any user or consumer or to the users or
consumers property if:
1. That user or consumer is in the class of persons that the seller should
reasonably foresee as being subject to the harm caused by the defective
condition.
2. The seller is engaged in the business of selling the product.
3. The product is expected to and does reach the user or consumer without
substantial alteration in the condition in which the product is sold by the
person sough to be held liable under this article.
This article from the Indiana Codes could indeed be used in the case because the seller
could reasonably foresee children or anybody not of age taking the lighter and easily
being able to ignite it especially because unlike a regular lighter, Aim N Flame lighters
can be turned on just by pressing the button on the product.

Warranty
Warranties are given to products that the seller is sure to be very good in quality.
In the case Calles v. Scripto-Tokai Corp., the corporation made an implied warranty of
merchantability. According to the UCC, every sale or lease of goods made by a merchant
who deals in good of the kind sold or leased automatically gives rise to an implied
warranty of merchantability [UCC 2-314, 2A-212]. However, tis warranty may be

breached even know the merchant did not know or could not have discovered that a
product was defective. In this specific case, it would have to be proven that the lighter in
question was reasonably fit for its ordinary purpose in order for it to be considered
merchantable.

Medical Malpractice
Hundreds of thousands of injuries that require treatment happen all the time. In
some instances, doctors, nurses, and other professionals can actually cause more damage
to a patient that is being treated under their supervision. There are certain rules that have
guidelines on who is to blame and be held liable for extra injuries that happen to patients
while they are being treated by medical staff. In the case of Susan Calles, her daughter
actually passed away from her injuries. Dr. Richard Fox and physicians from Loyola
University were the ones that treated her daughter at the hospital. Called could argue that
her daughter would not have died if Dr. Fox and the physicians would have treated her
daughter in a different manner. Most of the time, if a plaintiff wanted to prove a medical
malpractice claim, they would have to have the case reviewed by a medical review panel.
However, in Indiana there is a way to get around it being reviewed by a medical panel.
According to Indiana Code 34-18-8-5, Calles would not have to have the case reviewed is
if she got the defendant to agree in writing that it did not need a medical panel to review
it (Ind. Code 34-18-8-5).

III.
Opposing Points of View
In the case Calles v. Scripto-Tokai Corp., Susan Calles brought multiple claims to
question and tried suing different people for different things. One issue that can be
debated is whether or not Scripto-Tokai Corp. made a lighter that can be proved to be
unreasonably dangerous. Another issue that arose is if strict liability can be enforced due
to a design defect. There are obviously two points of view in the case, the plaintiff and
the defendant.
Calles- In this case, the plaintiff would argue that Scripto-Tokai Corporation is
strictly liable for all of the damages due to a defect in the design of the Aim N Flame
lighter. The plaintiff would have to prove that a less dangerous alternative was
economically feasible to achieve and that Scripto-Tokai Corp did not produce it. Indiana
Code 34-20-2-2 states, The party making the claim must establish that the manufacturer
or seller failed to exercise reasonable care under the circumstances in designing the
product. Our textbook declares, A product will be considered defective when the
foreseeable risks of harm posed by the product could have been reduced or avoided by
the provision of reasonable instructions or warnings by the seller or other distributor
and the omission of the instructions or warnings renders the product not reasonably safe
(BL 260 p. 148). Calles could possibly argue that there were no proper warnings on the
lighter, which would make it defective. The plaintiff also would have to prove that the
specific reason the lighter was unreasonably dangerous was due to the defective
condition.

Scripto-Tokai Corporation- The main counter-argument that the defense would

have to the plaintiffs claim of strict liability would be that of obvious risks and
commonly known dangers. The defendant would argue that adding adequate warnings to
their product would not have been any more useful or make a difference in the outcome
because a young child would not have been able to understand what the warnings said.
They would also claim that they did not have to put warnings on the lighter in the first
place because a lighter has obvious risks and commonly known dangers that come along
with it. The last claim that Scripto-Tokai Corporation would make in the argument of
strict liability would be that the plaintiff did not take the right measures to hide it from
her children well enough and that the product performed just as it was supposed to.
Calles- Susan Calles also claimed medical malpractice. This claim was brought
against Dr. Richard Fox and the physicians at Loyola University Medical Center. In order
to exercise her claim as true, Calles would indefinitely have to prove that the reason for
her daughters death was because of the mistakes that were made by Dr. Fox and the
medical team at Loyola. She also must prove that she would have survived the whole
incident if it werent for the faulty treatment.
Dr. Richard Fox- In the claim of medical malpractice, obviously Dr. Fox as well
as the other medical staff would be the defendant, with Dr. Fox taking the brunt of the
accusations. In order for this claim to be found as true, as stated earlier, Calles would
need to have the claim reviewed by a medical review panel. The only way Dr. Fox could
have helped himself in this case would to provide the panel with all the steps he took to
save Susans daughters life. He would need to prove they were the correct steps one
would take in that kind of procedure and he did nothing to jeopardize her daughters

health or life. The panel would then discuss with one another to decide whether or not
they believe Dr. Fox is guilty or innocent of malpractice. It is more or less in the hands of
the panel whether or not Calles will be able to use her claim and have Dr. Richard Fox
found guilty of medical malpractice.

IV.
Arguments
Susan Calles tries to sue Scripto-Tokai Corporation for strict product liability and
negligence. Scripto-Tokai will use the defense of assumption of risk and commonly
known dangers. In order for Susane Calles to win based on strict liability, she must prove
that:
1. The product was defective and unreasonably dangerous
2. The defective condition existed at the time the product left the defendants
control
3. The defective condition was the proximate cause of the plaintiffs injuries.
Susan would argue that the Aim N Flame lighter was defective when it left ScriptoTokais hands because of the fact it didnt have a safety device for young children and
obviously the lighter was the cause of the injuries
The defendant, Scripto-Tokai Corporation would claim that as a reasonably
person, Susan Calles should have known the risk and the common dangers of the Aim N
Flame lighter and should have taken the necessary steps to keep it away from her
children.

Scripto-Tokai turns around and sues Susan Calles stating that she is just as liable
for the damages that were caused to her daughter. Calles defends herself stating that the
product was unreasonably dangerous because it was defective when she received it.
Scripto-Tokai accepts responsibility for some of the liability for the injuries that resulted
from the lighter but they also believe that it was just as much Susan Calles fault for not
having reasonable care and hiding it well enough to where young children could play
with it. Susan Calles disagrees because she believes the design was defective when
getting the lighter. Indiana Law states that a product may be defective within the meaning
of the Product Liability Act because of a manufacturing flaw, a design defect, or a failure
to warn of danger in the products use.
Dr. Richard Fox and the Loyola Medical Center sue Scripto-Tokai Corporation for
strict liability of the Aim N Flame and Scripto-Tokai uses the defense that the lighter is a
commonly known danger. Dr. Fox is using the same method and theory as Susan Calles,
which I stated a few paragraphs back under the strict product liability. Dr. Fox was the
main caregiver of Susan Calles daughter and he believes the care he provided would not
have happened if it werent for the defective design in the product. Scripto-Tokai states
that the dangers of their Aim N Flame lighter are obvious to a reasonable person. They
believe it is Susan Calles duty to care for the well being of her children, and being a
reasonable person, she should be aware of the dangers the lighter could cause to her
children. She breached her said duty of care, which ended up in her daughter severely
injuring herself with the product. Indiana Law claims a determination of what is
reasonably foreseeable is not governed by the subjective opinions of those involved; the

proper standard is whether the resulting injury might reasonably have been anticipated in
ordinary experience.
Susan Calles tries to sue Dr. Richard Fox and Loyola University Medical Center
for Medical Malpractice. Indiana State Law claims that to prove medical malpractice the
plaintiff must show:
1. A duty of care owed to the plaintiff by defendant
2. Breach of duty by allowing conduct to fall below the applicable standard of
care
3. Compensable injury that was proximately caused by defendants breach of
duty
Susan claims that her daughter should have been able to recover just fine from her
injuries but did not end up doing so because of improper care by Dr. Fox and the medical
team. Dr. Fox and the Loyola University Medical Center are supposed to care for their
patients in a way that in enhance the quality of each person in their so under these
requirements it doesnt seem as they did anything wrong.
The last argument is Scripto-Tokai suing Dr. Fox and the Loyola University
Medical Center for joint liability. The people who were supposed to take care of Jillian
Calles had a duty to save and keep the child alive, which they did not accomplish. This is
the reason Scripto-Tokai is willing to be liable for the damages but not for the treatment
or care of Jillian Calles. There was no mistreatment in the case of Jillian Calles so as the
Loyola University Medical Center sees nothing that they did wrong in this case.

V.
Outcome

In the case Calles vs. Scripto-Tokai Corporation, the defense would most likely
win under the argument of their product not being defective and having obvious risks and
commonly known dangers associated with it. There has been a similar case in the past
that has to due with strict product liability that is somewhat similar to this one. In the case
Kennedy vs. Guess Inc., Richard Kennedy took an umbrella with him to work and one of
his co-workers started playing with it and swinging it around from its handle. The
umbrella separated and hit Richard in the nose. The court found that Guess Inc. was liable
for the damages caused to Richard because their design was defective causing it to be
unreasonably dangerous. (Kennedy v. Guess Inc. 765 N.E. 2d 213 Ind. Ct. App. 2002).
Unlike the Kennedy vs. Guess case, Scripto-Tokai would not find themselves liable
because their was never a defective design in their product.
In the suit of medical malpractice, it is most likely that the plaintiff would win.
Under Indiana law, Susan Calles has a much greater change to win her case than she does
in Illinois. Under Indiana law, a panel of 3 experts will review the case and determine
whether or not the defense should be held liable. This is different than Illinoi because in
Illinois you only need one expert to look over the case. Having three would be a great
advantage to Susan Calles because the more people there are, the greater the chance one
of the experts would find a mistake in the process that Dr. Richard Fox used on Jillian
Calles.

VI.
Consequences

The case Calles v. Scripto-Tokai Corporation is an extremely important case when

it comes to product liability for any type of business. Also, it is important to any parent or
families out there that have young children that could potentially be around dangers
inside of the household.
In the end, Susan Calles received a settlement of $3.5 million paid to her by the
Loyola University Medical Center and Scripto-Tokai Corporation. Manufacturers or
products such as lighter should realize what harm can come from them, especially when
in the hands of young children, so it would be best for companies to start putting child
resistant safety devices on their products, so cases like these wouldnt end up happening.
All in all, it would only be right right for Susan Calles to win her case under Indiana law,
even though no amount of money could replace her child, it would be important that she
sees the companies and people whose product ended up killing her daughter were found
liable.

Bibliography

1.
2.
3.
4.
5.
6.
7.
8.
9.

{27 Ind. Law Encyclopedia. Negligence & 10 (2010)}.

{21 Ind. Law Encyclopedia. Negligence & 94 (2010)}.
Indiana Code 34-20-2-3
Indiana Code 34-20-1-1
Indiana Code 34-20-2-1
Indiana Code 34-18-8-5
Indiana Code 34-20-2-2
UCC 2-314, 2A-212
Clarkson, Kenneth W., Roger LeRoy. Miller, and Frank B. Cross. Business Law:

Texts and Cases. N.p.: n.p., n.d. Print.

10. Defects in Design- FindLaw. Findlaw. N.p, n.d. Web 15 Oct. 2014.
11. Kennedy V. Guess Inc. 765 N.E. 2d 213 (Ind. Ct. App. 2002)