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Williams v. BIC Corp.5/5/2000
lighters."
Cunningham acknowledged that she had seen Franklin Williams using a lighter and an aerosol can to make a torch in front of the children and that Franklin had used a lighter to burn trash in a drum in front of the children. She also testified that Franklin had used a lighter to light fireworks in front of the children.
In addition, Form-by testified that on several occasions she had seen Mark and Dontavious light cigarettes. She testified that she and Cunningham had on several occasions asked the boys to light cigarettes for them by using the gas stove in the apartment and that the boys had also lit cigarettes by using a cigarette lighter. She stated that it was not a surprise to her that the children knew how to use a cigarette lighter.
The facts before the jury, although in conflict in many instances, could permit a rationally functioning jury to conclude that a manufacturer should not reasonably foresee the occurrence of this kind of physical injury under such circumstances as we have described herein. The jury could have concluded that Cunningham returned at 3:45 a.m. from a bar after drinking for four hours and, after she returned, left three children, ages two, three, and five, asleep in an adjoining room in the apartment, an apartment in which were located numerous cigarette lighters and aerosol cans containing flammable materials, including several lighters and cans in the bedroom. The jury also could have found that at least two of these children had been trained by an adult to use cigarette lighters to light fireworks and cigarettes and that these children had at least witnessed, if they had not tried themselves, the use of a cigarette lighter to ignite the contents of an aerosol can so as to produce a torch. The jury also heard evidence indicating that the mother was aware of Dontavious's attraction to cigarette lighters, having seen him lighting one at age three, six months before the incident, having indulged him in this fascination by having him light her cigarette and permitting Form-by to have him light her cigarette and that she had seen Franklin Williams playing with fire, including igniting the contents of an aerosol can in the presence of the children. Finally, the jury could have concluded that, while the mother slept heavily in the living room from the effects of alcohol, Dontavious, age three, awakened in the bedroom, where there were numerous lighters and aerosol cans within his reach, used one of them to set fire to the curtains, and thereby caused his two-year-old sister to be severely burned. Under these facts, the jury could have reasonably concluded that the adults supervising the children, including Cunningham, were aware of the potential danger and displayed an incredibly casual attitude toward the dangers of allowing small children to be entertained by fire.
Under these circumstances, we cannot say that as a matter of law BIC should have foreseen the conduct of the parent in this case; thus, we cannot hold the instruction on foreseeability inappropriate. The trial court was careful in recognizing a distinction between the impropriety of a charge on contributory negligence and the propriety of a instruction dealing with foreseeability and proximate cause. We hasten to add that an instruction on foreseeability is inappropriate when it constitutes merely a disguised means of authorizing a jury to deny recovery to a child because of negligence on the part of a parent. The determination whether a charge on foreseeability is appropriate must be based on the facts of the particular case. Where the evidence of the obviousness of the danger, coupled with the parent's egregious and systemic failure to supervise, is as compelling as it is i
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