                                IN THE COURT OF APPEALS
                                         OF THE
                                  STATE OF MISSISSIPPI
                                       NO. 2000-CA-01124-COA
BILLY WAYNE FRITH AND WANDA FRITH AS PARENTS AND
NATURAL GUARDIANS OF JOSHUA BRENT FRITH, A MINOR                                           APPELLANTS
v.
BIC CORPORATION                                                                               APPELLEE

DATE OF TRIAL COURT JUDGMENT:                06/20/2000
TRIAL JUDGE:                                 HON. V. R. COTTEN
COURT FROM WHICH APPEALED:                   SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      DANA J. SWAN
ATTORNEYS FOR APPELLEE:                      JAMES D. HOLLAND
                                             D. COLLIER GRAHAM JR.
NATURE OF THE CASE:                          CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                     SUMMARY JUDGMENT FOR DEFENDANTS
DISPOSITION:                                 AFFIRMED - 4/09/2002
MOTION FOR REHEARING FILED:                  4/23/2002
CERTIORARI FILED:
MANDATE ISSUED:

     BEFORE KING, P.J., THOMAS, AND MYERS, JJ.

     KING, P.J., FOR THE COURT:

¶1. This appeal arises from the Scott County Circuit Court's judgment sustaining the BIC Corporation's
(BIC) motion for summary judgment. The trial court determined that the Friths' (Billy Wayne Frith, Wanda
Frith as Parents and Natural Guardians of Joshua Brent Frith, a Minor) claims against the BIC Corporation
were preempted by safety regulations promulgated pursuant to the Federal Consumer Product Safety Act
(CPSA). Aggrieved, the Friths have raised the following issue:

     Whether the CPSA preempts the Plaintiffs' state-based common law claims.

                                                  FACTS

¶2. On December 19, 1994, Joshua Frith (Joshua), then ten years old, was severely burned when he found
a disposable cigarette lighter in his backyard in Morton, Mississippi and attempted to ignite it near a
container of gasoline. According to Joshua, the lighter was found as he played alone in his backyard in the
drainage ditch behind his house. Joshua cleaned the mud from the lighter and attempted to operate it. In his
deposition, Joshua stated that he could not light a flame with the lighter, but that he was able to produce
sparks from it. As Joshua walked towards the rear of the house, he continued to strike sparks from the
lighter. A plastic container of gasoline was stored at the rear of the house. As Joshua continued to strike
sparks from the lighter, an explosion occurred when he was approximately four to six feet from the
container.

¶3. After the accident, the lighter was not recovered. However, Joshua, who claimed the lighter was a BIC,
identified an exemplar lighter as the kind that he had at the time of the accident. The lighter identified by
Joshua was a J-26 model Child Guard lighter manufactured by BIC.

¶4. Joshua's parents filed suit in the Circuit Court of Scott County, Mississippi against the BIC Corporation,
Gott a/k/a Gott Corporation, Rubbermaid Specialty Products, Inc., and the Estate of Eva Odom under
negligence and product liability theories. The case was removed to the United States District Court for the
Southern District of Mississippi by BIC on the basis of that court's diversity jurisdiction, alleging that Mrs.
Odom, a Mississippi resident was fraudulently joined. The Friths filed a motion to remand. In ruling on that
motion, United States District Judge William H. Barbour, Jr. determined that the Friths' claims against BIC
were preempted by federal law, but that the court lacked removal jurisdiction to enforce preemption
because all necessary parties (the Estate of Mrs. Odom) had not joined in the removal.

¶5. After the case was remanded, BIC filed a motion for summary judgment which alleged that the Friths'
state-based claims were preempted by federal law. The trial court determined that the Friths' state-based
claims were preempted by federal law and granted BIC's motion for summary judgment. From that
decision, the Friths perfected this appeal.

                                         ISSUE AND ANALYSIS

      Whether the CPSA preempts the Plaintiffs' state-based common law claims.

¶6. The Friths contend that there is no express or implied preemption under the CPSA of their state-based
claims of negligence and product liability. They contend that the applicable federal statutes do not apply
because Joshua was ten years old at the time and the intent of the statute is for "operation by children
younger than five years of age." The Friths also maintain that the CPSA contains a savings clause which
prohibits express preemption of their state-based claims.

¶7. BIC maintains that the trial court correctly applied the principles of implied conflict preemption found in
Cooper v. General Motors Corp., 702 So. 2d 428 (Miss. 1997), and Geier v. American Honda Motor
Co., 529 U.S. 861 (U.S. Dist. Col. 2000). The United States District Court Judge for the Southern District
of Mississippi also accepted BIC's argument against dual regulation of the same subject by both federal and
state law and determined that:

      To apply state or common law standards to the design of the cigarette lighter could subject BIC to
      two different regulations of the same subject: the federal regulations of the CPSC and the higher
      common law standard urged by the Plaintiff. Clearly, this was not what Congress intended when it
      passed the CPSA. The court finds that Plaintiff's cause of action for design defect of the cigarette
      lighter necessarily 'arises under' federal law and presents a federal question.

¶8. The argument regarding the Supremacy Clause of the U.S. Constitution and the application of
preemption was spoken to in Cooper which states that:

      The cornerstone of preemption is that a state law which conflicts with the federal law is invalid under
     the Supremacy Clause. Federal preemption can occur (1) where Congress explicitly preempts state
     law, (2) where preemption is implied because Congress has occupied the entire field, or (3) where
     preemption is implied because there is an actual conflict between federal and state law.

Cooper, 702 So. 2d at (¶16).

¶9. It is noted that the CPSA contains a preemption clause, 15 U.S.C.A. § 2075 (a) (1997), which
provides:

     Whenever a consumer product safety standard under this chapter is in effect and applies to a risk of
     injury associated with a consumer product, no [s]tate or political subdivision of a [s]tate shall have any
     authority either to establish or to continue in effect any provision of a safety standard or regulation
     which prescribes any requirements as to the performance, composition, contents, design, finish,
     construction, packaging, or labeling of such product which are designed to deal with the same risk of
     injury associated with such consumer product, unless such requirements are identical to the
     requirements of the Federal standard.

¶10. The Friths suggest that the savings clause in the Safety Act, 15 U.S.C.A. § 2074(a) (1997)(1) and 15
U.S.C.A. § 2072(c) (1997)(2) preclude a broad reading of the Act's preemption provision to include
common law claims. They support this position by citing Colon ex. rel. Molina v. BIC USA, Inc. 136 F.
Supp. 2d 196, 203 (S.D. N.Y. 2000). We note that Colon is neither persuasive to nor binding upon this
Court. Likewise, we note that the Friths have dropped the pursuit of a common law negligence claim, and
are pursuing strict liability under products liability theory.

¶11. The Consumer Product Safety Commission sets standards for disposable and novelty lighters to make
them reasonably child resistant. 16 C.F.R. § 1210.1. These requirements are intended to make the lighters
subject to the standard's provisions resistant to successful operation by children younger than five years of
age. This standard applies to all disposable and novelty lighters, as defined in § 1210.2, that are
manufactured or imported after July 12, 1994. 16 C.F.R. § 1210.1.

¶12. Sometimes, depending on the regulation, federal laws or standards may be considered floors, which
allow state laws or standards to create a ceiling, so long as they do not conflict. Where there is a conflict,
the court must review the law to determine whether preemption is implied. Cooper, 702 So. 2d at (¶16). In
Cooper, the court decided that when determining whether there is implied preemption, the following rule
must apply:

     "Implied preemption exists when (1) state law regulates conduct in a field Congress intended the
     federal government to occupy exclusively [referred to as implied field preemption], or (2) when state
     law actually conflicts with federal law [referred to as implied conflict preemption]." [English v.
     General Electric, 496 U.S. 72, 79 (1990)]. Implied conflict preemption occurs when it is "
     'impossible for a private party to comply with both state and federal requirements, . . . or when state
     law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
     Congress.'"

Id. at (¶24). This view of implied preemption is stated in both Cooper and Geier.

¶13. Having reviewed the relevant statutes and other evidence presented, this Court affirms the trial court's
decision that the Friths' state-based claims are preempted by federal law.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

      McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, AND, MYERS, JJ.,
      CONCUR. IRVING, J., CONCURS IN RESULT ONLY. BRANTLEY, J., DISSENTS
      WITH SEPARATE WRITTEN OPINION JOINED BY LEE AND CHANDLER, JJ.


      BRANTLEY, J., DISSENTING:

¶15. I respectfully dissent. The savings clause of the Consumer Protection Act states, "[c]ompliance with
consumer product safety rules or other rules or orders under this chapter shall not relieve any person from
liability at common law or under State statutory law to any other person." 15 U.S.C.A. § 2074 (1991). In
my view, failing to apply this savings clause ignores both the letter of the applicable federal regulations as
well as the intent of the Consumer Protection Act.

¶16. Geier expressly stated that an identically phrased savings clause preserved state causes of actions that
"seek to establish greater than the minimum safety achieved by a federal regulation intended to provide a
floor." Geier v. American Honda Co., Inc., 529 U.S. 861, 870.(2000). Despite this savings clause, Geier
held that implied preemption barred a suit in that case where federal regulations provided several safety
measure automobile manufacturers could employ, and the plaintiff sought to enforce the air bag safety
measure to the exclusion of the others, because allowing a cause of action to mandate only one of several
permissible safety measures would have defeated the intent of the regulations to allow an array of safety
measures to develop within the marketplace. Id. at 881. The majority cites Geier for the proposition that
implied preemption applies in this case, yet the precedential value of Geier is that safety regulations that
expressly set a minimum standard are not preempted. Id. at 868-870. The regulations at issue in this case
mandate that any disposable lighter manufactured must meet a standardized testing criteria involving children
under the age of five years old trying to operate the lighters. 16 CFR §§1210.1-1210.20. To pass the
testing, the lighters "shall be resistant to successful operation by at least 85 percent of the child-test panel
when tested in the manner prescribed." 16 C.F.R. § 1210.3 (emphasis added). "At least" is a minimum
standard that creates a "floor." Under Geier, no preemption should apply to this case.

¶17. Furthermore, implied preemption cannot apply to this case absent a judicial finding that Frith's claim is
"an obstacle" to achieving the benefits that the federal regulations aim to accomplish. See Geier at 529 U.S.
886. The circuit court did not consider Geier, as that opinion did not issue until approximately three weeks
before the circuit court's memorandum opinion and order. Moreover, three of the cases that the circuit
court did rely upon involved issues of express, not implied, preemption. CSX Transportation, Inc. v.
Easterwood, 507 U.S. 658, 671 (1993); Hester v. CTX Transportation, Inc., 61 F.3rd 382, 386 (5th
Cir. 1998); Pearson v. Columbus and Greenville Ry. Co., 737 So. 2d 390, 401 (¶¶ 40-41) (Miss. Ct.
App. 1998). Additionally, the circuit court relied upon Cooper v. General Motors Corporation, 702 So.
2d 428 (Miss. 1997), when stating that the savings clause preserves only state actions that are based upon
defects "not covered by the federal standard or which were beyond the scope of federal safety regulations."
Cooper does not stand for this proposition. Rather, Cooper, like Geier, involved a claim based upon
failure to install an air bag in an automobile when federal regulations allowed manufacturers to select one of
several safety measures, with air bags being only one of the options. Id. at 434. Contrary to the circuit
court's reading of Cooper, that case stated "[s]ometimes, depending on the regulation, federal laws or
standards can be considered floors, and a state law can create a ceiling, so long as it does not pose a
conflict." Id. The circuit court found preemption because if Frith prevailed the case would impose "a child
resistance standard which would require the subject lighter to preclude 100% of children as old as 10 years
from operating said lighters, thus resulting in a standard which is non-identical with the established federal
standard and imposing a burden that was not intended." The circuit court's finding of preemption is flawed
both factually and legally. Frith's claim was not factually predicated upon a finding that ten-year-old children
would never be able to light the lighter 100% of the time. And, the circuit court erred as a matter of law in
finding that implied preemption results only from a state action imposing an added burden. There must be a
finding that the regulatory scheme cannot exist if the state action simultaneously exists. Geier at 529 U.S.
886. Because the circuit court applied the incorrect legal standard, it also failed to make any findings as to
the affect on the regulatory scheme from state causes of actions such as Firth's.

¶18. Nevertheless, before this Court, both Frith and BIC correctly frame the issue in terms of a Geier
analysis. As a public policy argument, BIC asserts that implied preemption must be found because the
Consumer Products Safety Commission determined that the 85% safety rate was "a reasonable balance"
between protecting children and making the disposable lighters easy to use. BIC admits that if liability were
imposed, manufacturers of disposable lighters would be compelled to make safer products. Nevertheless, it
contends that this would be contrary to the public policy of the Consumer Protection Act, because safer
disposable lighters would be more difficult for adults to use, so adults would be encouraged to use non-
regulated, and presumably less safe, products. Aside from the obvious cynicism, this analysis ignores the
fact that any coercive affect of potential product liability actions to make safer products would apply to all
manufacturers of these products, the regulated and non-regulated alike.

¶19. Under the same law and essentially the same facts as these, a federal district court stated:

      Moreover, allowing plaintiffs' claims to go forward is consistent with the stated purposes of the
      CPSA. The four (4) stated purposes of the CPSA are: 1) [T]o protect the public against
      unreasonable risks of injury associated with consumer products; (2)[T]o assist consumers in
      evaluating the comparative safety of consumer products; (3)[T]o develop uniform safety standards for
      consumer products and to minimize conflicting State and local regulations; and (4)[T]o promote
      research and investigation into the causes and prevention of product-related deaths, illnesses, and
      injuries. . . . A national minimum standard for the design, manufacture, and testing of disposable
      lighters, coupled with the added protection of state common law liability can only further protect the
      public, especially young children, against unreasonable risks of injury. In addition, the threat of liability
      under state common law will give manufacturers such as BIC further incentives to research and
      develop safer products.

Colon ex rel. Molina v. BIC USA, Inc., 136 F. Supp.2d 196, 209 (S.D.N.Y. 2000) (citing Leipart v.
Guardian Indus., Inc., 234 F.3d 1063, 1070 (9th Cir. 2000).

¶20. The majority finds this reasoning unpersuasive. Nevertheless, Geier expressly stated, "occasional
nonuniformity is a small price to pay for a system in which juries not only create, but also enforce, safety
standards, while providing necessary compensation to victims." Geier, 529 U.S. at 871. Implied
preemption should not be found simply on the basis that a state cause of action could lead to one state
requiring a higher safety standard than a minimum, federally mandated standard. Rather, Geier requires that
for implied preemption to apply, the state cause of action must take away from the regulatory scheme "the
very ability to achieve the law's congressionally mandated objectives." Id. at 872.

¶21. Furthermore, even if the regulations precluded Frith from delving into the lighter's mechanical
operations, the regulations do not touch upon much of Frith's claim. Frith was ten-years-old at the time he
was injured. The regulations speak to a purposefully designed mechanical difficulty which is designed to
defeat five-year-old children at least 85% of the time. Frith's claim arose from the fact that he found a lighter
abandoned in a ditch, retrieved it, cleaned it and was thereafter injured. Frith's claim as pled may go to the
color and physical attractiveness of the design, which are design features that the regulations do not touch
upon. Under these facts, it could be immaterial that five-year-old children would fail to operate the lighter
85% of the time. It could well be that ten-year-old children could operate the lighter 100% of the time.
However, if a jury concluded that a lighter could be designed so as to be equally utilitarian and easy to use
for adults as the federal regulations specify, yet be less physically alluring to children, Frith would state a
claim that did not touch upon the mechanical operations required under the federal regulations.

¶22. BIC's argument that allowing this cause of action to go forward would destroy the benefits of the
consumer protection regulations is spurious. The results BIC predicts would, at worst, be that all
manufacturers of the means to light tobacco would be compelled to make their products as safe as is
achievable with current technology. This result would be consistent with the Consumer Protection Act. This
case should be reversed and remanded for trial on the merits.

      LEE AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


      1. 15 U.S.C.A.§2074(a) (1997), Liability at common law or under State statute not relieved
      by compliance:

            Compliance with consumer product safety rules or other rules or orders under this chapter shall
            not relieve any person from liability at common law or under State statutory law to any other
            person.

      2. 15 U.S.C.A.§ 2072(c) (1997), Remedies available:

            The remedies provided for in this section shall be in addition to and not in lieu of any other
            remedies provided by common law or under Federal or State law.
