                                                                                     [PUBLISH]
                    IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                                                               FILED
                                      )))))))))))           U.S. COURT OF APPEALS
                                       No. 95-2963            ELEVENTH CIRCUIT
                                      )))))))))))                  07/22/99
                             D.C. Docket No. 92-369-CIV-T-24E THOMAS K. KAHN
                                                                                CLERK
SELMA JENNINGS, individually and as
next friend of Maximo Edwards, a minor,
and MAXIMO EDWARDS, a minor,
                                                                           Plaintiffs-Appellants
                                              versus

BIC CORPORATION and
SOUTHLAND CORPORATION,
d.b.a. 7-ELEVEN,
                                                                        Defendants-Appellees,

MONTGOMERY WARD & CO.,
                                                 Defendant-Third-Party-Plaintiff-Appellee,

PAJAMA CORPORATION OF
AMERICA, a New York
corporation,
                                                                        Third-Party-Defendant.

                                    ______________
                        Appeal from the United States District Court
                            for the Middle District of Florida
                                    ______________
                                     (July 22, 1999)

Before COX and BARKETT, Circuit Judges, and SMITH*, Senior Circuit Judge.
SMITH, Senior Circuit Judge:

∗ Honorable    Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by
designation.
      Selma Jennings and Maximo Edwards (collectively, "Jennings") sued the

makers and distributors of a pair of pajamas and of a disposable lighter after

Maximo was injured when his pajamas caught fire. The District Court for the

Middle District of Florida granted partial summary judgment to the BIC

Corporation ("BIC"), holding that BIC had no duty to child-proof its lighters under

Florida law. The district court also denied Jennings' motion for leave to amend the

complaint to state a cause of action under the Consumer Products Safety Act, 15

U.S.C. § 2051 et seq. Jennings appeals these rulings, along with evidentiary

rulings and the jury instructions. We affirm.

                               Facts and Procedural History

      Maximo Edwards was injured on November 25, 1987 when his pajamas

were accidentally lit on fire by his three-year-old brother, who was playing with a

cigarette lighter. Maximo's mother, Selma Jennings, filed suit against BIC, the

maker of the lighter; Southland Corporation ("Southland"), which operated the 7-

Eleven store where the lighter was purchased; and Montgomery Ward & Co.

("Wards"), where the pajamas were purchased. As relevant here, the suit alleged

that BIC was liable in both negligence and strict liability because its lighter

suffered from a design defect; specifically, it was alleged to be unreasonably

dangerous because BIC failed to child-proof it. The suit also alleged that


                                           2
Southland was liable for distributing the defective product, and that Wards was

liable for distributing the flammable pajamas.

      Jennings filed suit in Florida state court and the suit was removed by the

defendants to the U.S. District Court for the Middle District of Florida. The

district court granted partial summary judgment to BIC on August 29, 1994,

holding that Florida law imposes no duty on a manufacturer to child-proof its

cigarette lighters. On November 17, 1994, the district court denied Jennings'

motion for leave to amend her complaint to state a cause of action under the

Consumer Products Safety Act, 15 U.S.C. § 2051 et seq. The case was tried to a

jury. During trial, the court ruled against Jennings on several matters relating to

expert witness testimony. The jury held for the defendants on all counts. Jennings

appeals the trial court's grant of summary judgment to BIC, its denial of leave to

amend, and its evidentiary rulings. Jennings also appeals the jury verdict on the

ground that the trial court gave erroneous instructions.




                                          3
                                    Standard of Review

      We review a district court's grant of summary judgment completely and

independently, with all facts and reasonable inferences therefrom viewed in the

light most favorable to the nonmoving party. Hale v. Tallapoosa County, 50 F.3d

1579, 1581 (11th Cir. 1995). We apply the same standard as the district court.

Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998). We affirm the grant

of summary judgment only if "there is no genuine issue as to any material fact and

... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P.

56(c). "If the record presents factual issues, the court must not decide them; it

must deny the motion and proceed to trial." Clemons v. Dougherty County, Ga.,

684 F.2d 1365, 1369 (11th Cir. 1982).

      "A district court's decision to grant or deny leave to amend is reviewed for

abuse of discretion." Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th

Cir. 1994).

      "A district court's decision to admit or exclude expert testimony under Rule

702 is reviewed for abuse of discretion." United States v. Gilliard, 133 F.3d 809,

812 (11th Cir. 1998) (citing General Elec. Co. v. Joiner, 522 U.S. 136, 141




                                          4
(1997)).1

       Our review of a trial court's jury instructions is limited. Eskra v. Provident

Life & Accident Ins. Co., 125 F.3d 1406, 1415 (11th Cir. 1997). If the instructions

accurately reflect the law, the trial judge is given wide discretion as to the style and

wording employed in the instruction. Id. "We will reverse the trial court because

of an erroneous instruction only if we are 'left with a substantial and ineradicable

doubt as to whether the jury was properly guided in its deliberations.' [Carter v.

DecisionOne Corp., 122 F.3d 997, 1005 (11th Cir. 1997)] (citation omitted). And

we will find reversible error in the refusal to give a requested instruction only if (1)

the requested instruction correctly stated the law, (2) the instruction dealt with an

issue properly before the jury, and (3) the failure to give the instruction resulted in

prejudicial harm to the requesting party." Roberts & Schaefer Co. v. Hardaway

Co., 152 F.3d 1283, 1295 (11th Cir. 1998).

                               Duty to Child-proof Cigarette Lighters

       Jennings' complaint stated a cause of action against BIC in strict liability, on

the basis that its cigarette lighters are defectively designed by reason of their lack

of child-proof safety features. The complaint also stated a cause of action in

1
  "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise."
FED. R. EVID. 702.

                                                  5
negligence based on an alleged failure to exercise due care in designing the

lighters. The district court concluded that, under Florida law, BIC had no duty to

make its lighters child-proof and therefore granted summary judgment to BIC.

       Federal jurisdiction in this case rests on the diversity of the citizenship of the

parties. Therefore, we apply the law of the appropriate state, in this case Florida.

See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). Florida law provides no

explicit answer to the central issue in this case, however, because the Florida

Supreme Court has not considered the duty of manufacturers to child-proof

cigarette lighters.2

       Although no binding Florida precedent is directly on point, decisions of the

Florida courts provide sufficient and significant guidance as to how the Florida

Supreme Court would rule on the issue if the issue were considered. Our

consideration of Florida law convinces us that BIC's decision not to child-proof its

cigarette lighters does not subject it to liability under either strict liability or

negligence.


2
 Jennings asserts that certification of this issue to the Florida Supreme Court is appropriate.
Certification of a state law question is a matter of discretion. Escareno v. Noltina Crucible &
Refractory Corp., 139 F.3d 1456, 1461 (11th Cir. 1998). The decision to certify a question is
based on a number of factors, "'[t]he most important [of which] are the closeness of the question
and the existence of sufficient sources of state law.'" Id. (quoting State of Florida ex rel. Shevin
v. Exxon Corp., 526 F.2d 266, 274 (5th Cir. 1976)). In this case, existing Florida law provides
substantial confidence in how the Florida Supreme Court would rule on the question. We do not
consider certification appropriate in this case.

                                                 6
                                   A. Strict Liability

      Florida adopted the strict products liability standard of the Restatement

(Second) of Torts § 402(a) in West v. Caterpillar Tractor Co., 336 So. 2d 80, 87

(Fla. 1976). Under this standard, the manufacturer of a defective product can be

held liable if the manufacturer made the product in question, if the product has a

defect that renders it unreasonably dangerous, and if the unreasonably dangerous

condition is the proximate cause of the plaintiff's injury. Id. The manufacturer's

liability also extends to bystanders who are injured by the defective product. Id. at

89. The issue in this case is whether the lack of child-proof or child-resistant

features on a cigarette lighter renders the lighter defective and unreasonably

dangerous.

      "Under the theory of strict products liability adopted in West v. Caterpillar

Tractor Co., 336 So. 2d 80 (Fla. 1976), a product may be defective by virtue of a

design defect, a manufacturing defect, or an inadequate warning." Ferayorni v.

Hyundai Motor Co., 711 So. 2d 1167, 1170 (Fla. Dist. Ct. App. 1998). Jennings

has not alleged that the lighter had a manufacturing defect or that a lack of warning

made it unreasonably dangerous. The issue in this case is therefore limited to

whether the alleged design defect of the lighter, i.e., its lack of child-proof features,

renders it unreasonably dangerous.


                                            7
      The defectiveness of a design is determined based on an objective standard,

not from the viewpoint of any specific user. See Hobart Corp. v. Siegle, 600 So.

2d 503, 505 (Fla. Dist. Ct. App. 1992). The Hobart court noted that the Florida

Standard Jury Instructions allow the jury to be instructed on the consumer

expectation test of § 402A, the risk-benefit test, or both. Id. at 504 n.3. However,

"[b]oth tests require application of the objective standard to determine the defective

nature of the product. The consumer expectation test requires consideration of the

ordinary consumer's expectations. The risk-benefit analysis requires consideration

of the 'normal public expectation of danger.'" Id. (quoting Auburn Mach. Works

Co., Inc. v. Jones, 366 So. 2d 1167, 1170 (Fla. 1979)).

      See also Norton v. Snapper Power Equip., 806 F.2d 1545, 1548 (11th Cir.

1987), which notes that the Florida Supreme Court has adopted a balancing test for

determining whether a product is "unreasonably dangerous." The factors to be

considered include "public knowledge and expectation of the danger." Id.

      Thus, defectiveness is not judged from a child's perspective, but from the

perspective of an "ordinary consumer" or the "normal public expectation." The

ordinary consumer and general public appreciate that lighters can start dangerous

fires and therefore that care is required in handling them. A lighter without child-

proof features is not "defective" based on objective standard; it could only be


                                          8
found "defective" based on a subjective, child's-perspective standard. Since neither

test of defectiveness allowed under the Florida Standard Jury Instructions permits

such a subjective determination, a lighter lacking child-proof features is as a matter

of law not defective.

      In addition, as defined by the Restatement (Second) of Torts § 402(a) and as

adopted by the Florida Supreme Court, the term "strict liability" is something of a

misnomer. A manufacturer is not strictly liable for all injuries caused by its

product, however it is used. On the contrary, a manufacturer is liable only when

the product is used as intended. See High v. Westinghouse Elec. Corp., 610 So. 2d

1259, 1262 (Fla. 1992). In High, the Florida Supreme Court held that "section

402A applies to intended uses of products for which they were produced. When an

injury occurs under those circumstances, the manufacturer is strictly liable." Id.

Since "dismantling a product is not an intended use," the court held that

Westinghouse was not strictly liable for injuries suffered when its transformers

were dismantled. Id. The court's majority did not adopt the dissenting view that

"'intended use' includes unintended uses of a product if they were reasonably

foreseeable by the defendant." Id. at 1263 (Barkett, J., dissenting).

      Cigarette lighters are intended to be used to set fire to things that are

intended to be burned: cigarettes, cigars, candles, etc. They are not intended to be


                                           9
used as children's playthings. Indeed, the packaging of BIC lighters bears the

warning: "Keep out of reach of children." Since use of a lighter as a children's

plaything was not its intended use, the manufacturer is not strictly liable for

injuries incurred when it is so used, even if such use was reasonably foreseeable by

BIC. See High, 610 So. 2d at 1263.

                                    B. Negligence

      The district court did not separately treat the issues of negligence and strict

liability. Rather, the court considered Florida trial court decisions and decisions on

point from other jurisdictions and concluded that "Defendant BIC does not have a

duty under Florida law to design, manufacture, and market a 'child-proof' lighter."

The court granted BIC's motion for partial summary judgment on the basis of this

lack of duty.

      Some Florida case law supports the position that, in regard to liability for an

allegedly defectively designed product, negligence and strict liability are

essentially different ways of stating the same duty. See Husky Indus., Inc. v.

Black, 434 So. 2d 988, 991 (Fla. Dist. Ct. App. 1983) ("A defectively designed

product is one that has been negligently designed."). However, we do not think

this position represents current Florida law.

      More recent cases make clear that Florida courts impose different standards


                                          10
in assessing liability under negligence and strict products liability.

       [I]t is unnecessary in a strict liability action to show that the
       manufacturer has been negligent in any way. In fact he can be found
       liable even though he was utterly non-negligent. It is thus obvious that
       strict liability has been placed into a user's arsenal of remedies as an
       addition to the traditional tort remedy of negligence, not in displacement
       of it. … Hence, we note, in Thursby v. Reynolds Metals Co., 466 So. 2d
       245 (Fla. 1st DCA 1984), rev. denied, 476 So. 2d 676 (Fla. 1985), the
       court disapproved the notion that our products liability law made strict
       liability and negligence two separate verbalizations of a single legal
       concept.

Moorman v. American Safety Equip. Corp., 594 So. 2d 795, 800-801 (Fla. Dist. Ct.

App. 1992). See also Ferayorni, 711 So. 2d at 1170 ("West's progeny have

emphasized that the strict liability theories are generally distinct from

negligence."); High, 610 So. 2d at 1262 (transformer manufacturer not strictly

liable for injuries allegedly incurred in dismantling transformers but possibly liable

in negligence for failing to warn of risks to people dismantling transformers).

       Thus, although BIC is not strictly liable for the injury caused by its product

in this case, it could still be liable if it was negligent in failing to design child-proof

features into its lighters. The first element that must be shown to establish

negligence is that the defendant owed a duty of care to the plaintiff. See Robertson

v. Deak Perera (Miami), Inc., 396 So. 2d 749, 750 (Fla. Dist. Ct. App. 1981) ("In

the absence of a duty to the plaintiff, actionable negligence does not exist.").

       Florida law imposes a broad duty of care in the negligence context.

                                            11
      Florida, like other jurisdictions, recognizes that a legal duty will arise
      whenever a human endeavor creates a generalized and foreseeable risk
      of harming others. As we have stated, "Where a defendant's conduct
      creates a foreseeable zone of risk, the law generally will recognize a
      duty placed upon defendant either to lessen the risk or see that
      sufficient precautions are taken to protect others from the harm that
      the risk poses." Kaisner [v. Kolb], 543 So.2d [732,] 735 (citing
      Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983)) (emphasis added).
      … Thus, as the risk grows greater, so does the duty, because the risk
      to be perceived defines the duty that must be undertaken. J.G.
      Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912).

McCain v. Florida Power & Light Co., 593 So. 2d 500, 503 (Fla. 1992) (footnote

omitted).

      Here, it was foreseeable that children would get hold of a BIC lighter, that

they would be able to use the lighter because it was not child-proof, and that they

would hurt themselves or others by using the lighter inappropriately. The

foreseeability of these events happening are supported by the record, which

contains a report concluding that 140 people, including 125 children, are killed

each year in fires caused by children playing with lighters. Consumer Federation

of America, Up in Flames: The Deadly Consequences of Children Playing with

Cigarette Lighters, 3 (1987). Their foreseeability is also supported by the number

of reported cases arising from lighter-related injuries to children. See, e.g., Todd v.

Societe BIC, S.A., 21 F.3d 1402 (7th Cir. 1994); Kirk v. Hanes Corp., 16 F.3d 705

(6th Cir. 1994); Griggs v. BIC Corp., 981 F.2d 1429 (3rd Cir. 1992). Indeed, BIC


                                          12
lighter packages are labeled "Keep out of reach of children," directly

demonstrating that BIC appreciated the hazards that their lighters posed in

unsupervised little hands.

      But it is not foreseeable that a child would buy a lighter or otherwise obtain

one without the involvement of an adult. Cigarette lighters are marketed to adults

and intended for adult use. Clearly, the "Keep out of reach of children" warning on

lighter packaging is there in order to put the adult purchaser, the intended user, on

notice that the lighters pose a danger to children. It is reasonable for BIC to

assume that the warning on its lighters was sufficient and adequate for the adult

purchasers of its products to read, understand, and heed.

      It is not reasonable to require BIC to take all possible measures to ensure

that its products could not be misused by anyone who might, even foreseeably,

come into possession of them. Decisions of the Florida courts demonstrate that a

maker or seller of a product need not go to extreme lengths to protect foreseeable

users of its products. See Vic Potamkin Chevrolet, Inc. v. Horne, 505 So. 2d 560,

562 (Fla. Dist. Ct. App. 1987) (car dealer not liable in negligence for selling car to

apparently incompetent driver; "[a] seller cannot be held liable for harm caused by

a 'defective' customer."); Babine v. Gilley's Bronco Shop, Inc., 488 So. 2d 176, 178

(Fla. Dist. Ct. App. 1986) ("[T]here is no requirement for a manufacturer to


                                          13
provide all designed and recommended safety devices with its product. Warning

of the need of additional equipment for safe operation of the product is

sufficient.").

       Under Florida law, therefore, BIC was not required to child-proof its lighters

to satisfy its duty of reasonable care. BIC could satisfy that duty using measures

short of child-proof safety features; e.g., by supplying a warning to the intended

adult purchasers of its products, putting them on notice of the potential danger of

such products to children. Since, under Florida law, the exercise of reasonable care

clearly does not require child-proofing cigarette lighters, the district court correctly

granted summary judgment to BIC on the issue of liability arising out of the lack of

child-proof features on BIC lighters.




                                           14
                           Consumer Products Safety Act

      On September 29, 1994, Jennings moved for leave to amend the complaint.

Jennings sought to state a claim based on BIC's alleged withholding of information

about the dangers of their lighters from the Consumer Products Safety

Commission, in violation of the Consumer Products Safety Act ("CPSA"), 15

U.S.C. § 2051 et seq., and the regulations promulgated thereunder. The district

court denied the motion on the basis that it would be futile because, although the

Eleventh Circuit had not ruled on the issue, the great weight of precedent holds that

the CPSA does not give rise to a private cause of action for violation of its

reporting provisions. The court also denied the motion on the basis that it was

untimely, being filed over five months after the court's deadline for amending the

pleadings. We find it unnecessary to decide the issue whether a private cause of

action exists under the CPSA's reporting provisions because the district court acted

within its discretion in denying Jennings' motion as untimely.

      Although leave to amend should be liberally granted when necessary in the

interest of justice, FED. R. CIV. P. 15(a), the decision is committed to the district

court's discretion and grant or denial of leave to amend is reviewed for abuse of

discretion. Smith v. Duff and Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993). The

district court in this case denied Jennings' motion because "Plaintiffs have failed to


                                          15
show good cause why they should be permitted to amend their complaint

approximately two months before trial is scheduled to commence and over four

months after the deadline of April 15, 1994, for the amending of pleadings has

passed."

       The U.S. Supreme Court has held that undue delay is an adequate basis for

denying leave to amend.

       In the absence of any apparent or declared reason – such as undue delay,
       bad faith or dilatory motive on the part of the movant, repeated failure
       to cure deficiencies by amendments previously allowed, undue prejudice
       to the opposing party by virtue of allowance of the amendment, futility
       of amendment, etc. – the leave sought should, as the rules require, be
       "freely given." Of course, the grant or denial of an opportunity to amend
       is within the discretion of the District Court.

Foman v. Davis, 371 U.S. 178, 182 (1962). This court has found delay to be undue

where the motion for leave to amend was filed thirty months after the original

complaint and three weeks before trial, where the only apparent reason for the delay

was the plaintiff's retention of a new attorney. Rhodes v. Amarillo Hosp. Dist., 654

F.2d 1148, 1154 (5th Cir. 1981).3 See also Smith, 5 F.3d at 493-494 (delay of three

years justified denial of leave to amend).




3
 The Eleventh Circuit has adopted as binding precedent decisions of the Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc).

                                              16
       Here, the plaintiffs waited to move for leave to amend until thirty-four months

after their original complaint was filed. Their motion came two months before the

trial was scheduled to begin, and five months after the district court's deadline for

amending the pleadings. The motion provides no basis for the delay other than that

"it has recently come to [Plaintiffs'] attention that certain failures and derelictions of

Defendant BIC Corporation give rise to an additional cause of action," without any

further explanation. We are unable to say that the court abused its discretion in

denying leave to amend because of undue delay.

                                   Expert Testimony

       Jennings asserts that the district court erred by admitting the testimony of

Wards' expert witness David W. Herring and by refusing to either allow Plaintiffs'

expert witness David Kessinger to testify in rebuttal or to grant a continuance to allow

Plaintiffs' expert Leighton W. Sisson to testify in rebuttal. As BIC points out,

however, Plaintiffs' counsel at trial conceded that the substance of Mr. Herrings'

testimony was disclosed in a pre-trial disclosure statement. Although Plaintiffs

apparently failed to appreciate the significance of Mr. Herrings' testimony and failed

to prepare to rebut it adequately, the district court acted within its discretion in

admitting the testimony and in its rulings on Plaintiffs' expert testimony proffered in

rebuttal.


                                           17
       In addition, Jennings asserts that the district court erred in refusing to grant a

continuance to allow testimony of Plaintiffs' expert Dwight Bellinger. The district

court denied the continuance because, inter alia, Mr. Bellinger's testimony would be

duplicative of that of Plaintiffs' other experts. In view of the availability of Plaintiffs'

other expert witnesses and alternative means (e.g., deposition) of providing Mr.

Bellinger's testimony, we cannot say that the court abused its discretion in denying the

motion for a continuance.

                                    Jury Instructions

       Jennings cites as reversible error the district court's refusal to give an

"intervening negligence" instruction to the jury. Jennings also asserts that the

court's definition of "unreasonably dangerous" confused the jury because it

"ignore[d] foreseeable users and concentrate[d] only on intended users." Finally,

Jennings asserts that the court erred in refusing to give a requested instruction on a

guardianship account for any damages awarded.

       We apply a deferential standard in reviewing jury instructions. Eskra, 125

F.3d at 1415. "This Court examines jury instructions as a whole to determine

whether they fairly and adequately addressed the issue and correctly stated the

law." Christopher v. Cutter Labs., 53 F.3d 1184, 1190 (11th Cir. 1995). The

district court committed no reversible error in its jury instructions.


                                            18
      The court gave the jury the following instruction (emphasis added):

      Negligence may be a legal cause of damage even though it operates in
      combination with an act of another, some natural cause, or some other
      cause if such other cause occurs a the same time as the negligence and
      if the negligence contributes substantially to producing such damage.

      As relevant here, this instruction differed from Jennings' requested

"intervening negligence" instruction only in that the requested instruction would

have replaced the above-underlined phrase with the phrase "occurring after the

negligence occurs if such other cause was itself reasonably foreseeable." Thus, the

only difference between the instructions is in the timing of any other act

contributing to the injury.

      According to Jennings, the requested instruction "would have permitted the

jury to find that BIC should have anticipated the possibility that a child would

obtain possession of the lighter in question and be injured." In addition, Jennings

asserts that "failure to give this instruction confused the jury be [sic] allowing them

to assume that Selma Jenning's [sic] negligence was the legal cause of the injuries

to Maximo Edwards."

      We see no merit in either of these assertions. First, the instructions concern

only the contributing acts of persons other than BIC; they are not relevant to

whether BIC should have foreseen the possibility of children coming into

possession of BIC lighters. Second, the instruction given to the jury accurately

                                          19
reflected Florida negligence law and therefore could not have confused the jury.

The Notes on Use to the Florida Standard Jury Instruction on intervening

negligence state that it is given "only in cases in which the court concludes that

there is a jury issue as to the presence and effect of an intervening cause." The

court determined that there was no issue of intervening negligence in this case and

Jennings cites no error in this determination. The court's refusal to give the

requested instruction was not erroneous.

      In addition, the district court correctly stated Florida law when it defined the

term "unreasonably dangerous" to ignore foreseeable users and concentrate on

intended users. See High v. Westinghouse Elec. Corp., 610 So.2d 1259, 1262 (Fla.

1992) ("section 402A applies to intended uses of products for which they were

produced," not to unintended uses).

      Finally, "we will find reversible error in the refusal to give a requested

instruction only if … the failure to give the instruction resulted in prejudicial harm

to the requesting party." Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283,

1295 (11th Cir. 1998). Here, the jury determined that none of the defendants were

liable for Maximo Edwards' injury, and therefore the jury never considered the

issue of damages. Thus, the court's refusal to give Jennings' requested instruction

regarding a guardianship account for any damage award is not reversible error.


                                           20
                                      Conclusion

      The district court properly granted partial summary judgment to BIC and

acted within its discretion in denying Jennings' motion for leave to amend the

complaint and in its evidentiary rulings. The district court committed no reversible

error in instructing the jury. For these reasons, the decision of the district court is

affirmed.

                                         AFFIRMED




                                           21
BARKETT, Circuit Judge, dissenting:

      Although conceding that no binding Florida precedent is directly on point,

the majority claims that its resolution of this case represents “how the Florida

Supreme Court would rule on the issue if the issue were considered.” Jennings v.

BIC Corp., __ F.3d __, ___ (11th Cir. 1999). I respectfully dissent both because

existing Florida law points to a conclusion opposite to that reached by the majority

on the merits and because if any debate exists on how the Florida Supreme Court

would rule, we should simply ask that court for a definitive resolution through the

procedure established for that purpose. There is no reason to decline to certify this

question of pure Florida law to the Florida Supreme Court so that Florida judges

can determine the parameters of Florida law.

                                  A. Strict Liability

      The majority offers two grounds to support its conclusion that no claim lies

against BIC in strict liability, neither of which stand up to scrutiny. First, as the

majority explains, the question of whether a design is defective is appropriately

answered with reference to an “objective standard” that involves “consideration of

the ordinary consumer’s expectations,” or, put another way, consideration of the

“normal public expectation of danger.” See Hobart Corp. v. Siegle, 600 So. 2d

503, 505 n.4 (Fla. Dist. Ct. App. 1992) (including “common knowledge and


                                           22
normal public expectation of danger” among the criteria for determining whether a

product is defectively designed). In answering this question, the majority asserts

that the “normal public expectation of danger” relating to lighters would not

include the likelihood of fires started by careless children. However, given that, by

the majority’s own admission, “140 people, including 125 children, are killed each

year in fires caused by children playing with lighters,” Jennings, __ F.3d at __

(citing Consumer Federation of America, Up in Flames: The Deadly Consequences

of Children Playing with Cigarette Lighters 3 (1987)), it is hard to credit the

conclusion that the “normal public expectation of danger” would not include the

risk of fires so caused, and that expectation of such a risk would arise only if one

adopted “a subjective, child’s-perspective standard.” Id. To the contrary, in light

of the high casualty rate and the obviousness of the danger, a jury could well find

BIC lighters to be defectively designed under an objective, ordinary consumer

standard.

      Similarly, the majority’s argument that High v. Westinghouse Elec. Corp.,

610 So. 2d 1259 (Fla. 1992), precludes a jury from determining whether strict

liability applies is premised on a misreading of High and of Florida law in general.

The majority posits that “a manufacturer is [strictly] liable only when the product

is used as intended,” and asserts, on the basis of High, that a child’s use of a


                                          23
cigarette lighter to set fire to things that are not intended to be burned is an

unintended use under Florida law. Jennings, __ F.3d at __. The High court did

hold, rightly, that a product manufacturer can be held strictly liable when injury

results from an “intended use[]” of the product at issue. High, 610 So. 2d at 1262.

However, the High court neither defined the term “intended use” nor did it exclude

reasonable foreseeability as an element thereof. Rather, limiting itself to the

specific facts before it, the court concluded only that unsealing and dismantling the

defendant’s product – an electrical transformer – in order to salvage junk

components was not an intended use of the product and thus that strict liability did

not apply for injuries caused by the hazardous fluids that were released when the

transformers were dismantled. Id. (finding, “under these facts, that strict liability

does not apply”).1

       High thus provides no support for the majority’s assertion that, under Florida

law, manufacturers are not strictly liable for injuries caused by reasonably


1
  The dissent, arguing that the majority opinion was “deficient . . . in failing to define ‘intended
uses,’”explained that “[t]he prevailing view recognizes that an ‘intended use’ includes
unintended uses of a product if they were reasonably foreseeable by the defendant.” High, 610
So. 2d at 1163 (Barkett, J., dissenting). Although the dissent disagreed with the majority’s
disposition, it did so not because of any quarrel with the appropriate standard for strict products
liability. Rather, the dissent disagreed with the majority because “foreseeability is usually a jury
question,” and “[n]either the majority opinion nor the cases cited therein explain why that
determination should be removed from the jury in this instance or why, as a matter of law, the
manufacturer would not have reasonably foreseen that its product would be dismantled.” Id.


                                                 24
foreseeable uses of their products. To the contrary, the High majority cites with

approval two cases that acknowledge that a determination as to the “intended use”

of a product involves an inquiry into “reasonably foreseeable uses.” See id. at

1261-62 (citing Kalik v. Allis-Chalmers Corp., 658 F.Supp. 631 (W.D. Pa. 1987);

Wingett v. Teledyne Indus., Inc., 479 N.E. 2d 51 (Ind. 1985), overruled on other

grounds by Douglass v. Irvin, 549 N.E. 2d 368 (Ind. 1990)).

      Applying the reasonable foreseeability standard in Jennings’ case would

yield a different result than that reached by the majority. The very statistics cited

by the majority regarding the annual number of deaths caused by children playing

with lighters support the conclusion that the child’s use of the lighter was

reasonably foreseeable and that BIC could therefore be held liable for the damages

resulting therefrom. But to the extent that the application of strict liability to such

a reasonably foreseeable use of the defendant’s product can be considered an open

question of Florida law, I would at least certify it to the Florida Supreme Court for

resolution.

                                    B. Negligence

      Turning to the negligence analysis, the majority concedes the first element of

the negligence test, that BIC owed a duty of care to Selma Jennings’ child.

Jennings, __ F.3d at __. The duty element is a question of law which is resolved


                                           25
by determining “whether the defendant created a generalized and foreseeable risk

of harming others.” Stazenski v. Tennant Co., 617 So. 2d 344, 346 (Fla. Dist. Ct.

App. 1993). The majority acknowledges that children fall within the foreseeable

zone of risk, recognizing, as noted earlier, that many accidents caused by children

playing with lighters result in the deaths of children and adults alike.

      Having determined that a duty of care exists, the majority then concludes, as

a matter of law, that BIC met its duty, noting that Florida courts have held that

manufacturers need not go to “extreme lengths” or “take all possible measures” to

protect foreseeable users of its products, and that BIC fulfilled its duty of care by

placing warning labels on the lighters. Jennings, __ F.3d at __. However,

Jennings makes no assertion that BIC should have gone to “extreme lengths” or

taken “all possible measures” to make its products safe from children. The claim is

that BIC, knowing that children would acquire its lighters and cause injury with

them, was negligent in failing to incorporate a child-safety feature into the design.

To sustain a cause of action for negligence, Jennings must establish that: (1) the

defendant had a duty to protect the plaintiff; (2) the defendant breached that duty;

and (3) the defendant's breach was the proximate cause of the plaintiff's injuries

and resulting damages. See Lake Parker Mall, Inc. v. Carson, 327 So. 2d 121, 123

(Fla. Dist. Ct. App.1976). The question before us is whether BIC breached the


                                          26
duty of care the majority concedes BIC owed the plaintiff.

      A breach is the failure to use due care to do what a reasonable and prudent

person would ordinarily have done under the circumstances. See De Wald v.

Quarnstrom, 60 So. 2d 919, 921 (Fla. 1952). With respect to a manufacturer,

negligence arises when the failure to use reasonable care results in an unsafe

product. Determining whether the manufacturer used reasonable care involves a

balancing test wherein the likelihood and the gravity of the potential harm are

weighed against the burden of the precaution necessary to avoid that harm. See

Auburn Machine Works v. Jones, 366 So. 2d 1167, 1171 (Fla. 1979).

      The majority’s conclusion in this case – that, as a matter of law, a warning

was sufficient and that anything more would represent an “extreme” measure – has

no basis in Florida law. As the majority recognizes, there are no Florida Supreme

Court cases directly on point. It cites only two cases from the Florida District

Court of Appeals, neither of which are analogous to the facts here. Vic Potamkin

Chevrolet, Inc. v. Horne, 505 So. 2d 560, 562 (Fla. Dist. Ct. App. 1987) was a

negligent entrustment case requiring a totally different analytical approach than

that of a claim for negligent design. In Potamkin, the plaintiff sued a car dealer for

letting an incompetent driver buy a car and drive it away. The buyer lost control of

the vehicle and hit a tree, injuring her passenger. The passenger sued, and the


                                          27
court found that the car dealer had fulfilled its duty of care by verifying that the

buyer had a valid driver’s license. This case is inapposite to the issue presented

here. In Jennings’ case, the issue is not whether a seller failed to evaluate the

fitness of a purchaser, but rather whether a manufacturer is required to do more

than warn against the possible misuse of its product by people (in this case,

children) to whom it owes a duty of care.

      In Babine v. Gilley’s Bronco Shop, Inc., 488 So. 2d 176 (Fla. Dist. Ct. App.

1986), the plaintiff sued for injuries sustained when he was thrown from a

mechanical bull in a bar. The bar had placed mattresses around the bull to cushion

the fall of riders but the mattresses were not adequately pushed together, and when

the appellant was thrown off, he hit his head on the floor. The claim was that the

mechanical bull was defective because the manufacturer did not supply adequate

landing gear and that, because the bull was inherently dangerous, strict liability

should apply. The court held that it was not necessary for the manufacturer to

provide landing pads with the mechanical bull. It analogized such a claim to that

of requiring manufacturers of power saws or welding torches to provide safety

glasses or other guards and found that this additional equipment need not be

required. A warning that such additional equipment is necessary suffices unless

the safety device can be made an “integral part” of the product. Id. at 178. There


                                           28
is no claim here that the manufacturer should have provided additional equipment

along with the lighter but rather that the manufacturer failed to use reasonable care

by not developing a safety lock – which would be an “integral part” of the product

– to make it more difficult for a child to use it, as, for example, pharmaceutical

drug companies did in putting child-proof caps on their containers. It is for a jury

to decide, based upon appropriate evidence, whether disposable lighters could

incorporate child safety devices at a reasonable cost and without undue burden.

And again, where any debate exists as to Florida law, that debate should be

resolved by the Florida Supreme Court.

      Finally, I disagree with the majority’s conclusion that the district court did

not err in refusing to give a jury instruction on intervening cause. The appellants’

requested instruction provided that, “[n]egligence may also be a legal cause of

injury even though it operates in combination with . . . some other cause occurring

after the negligence occurs if such other cause was itself reasonably foreseeable . .

. .” Florida Standard Jury Instruction 5.1(c) (emphasis added). This instruction

recognizes that BIC could still be liable even if a later event or action (i.e., a parent

leaving a lighter within reach of a small child) also played a role in the injury.

      The district court’s instruction that “[n]egligence may be a legal cause of

damage even though it operates in combination with an act of another, some


                                           29
natural cause, or some other cause if such other cause occurs at the same time as

the negligence . . .” excluded this possibility. This instruction permitted the jury to

assume that any negligence on Selma Jennings’ part obliterated any negligence on

BIC’s part. Because this instruction caused “prejudicial harm to the requesting

party,” Roberts v. Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir.

1998), it warrants reversal.




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