Appellate Brief
Kate Voigt
July 26, 2013
Professor Doug Simon
MBA 660 The Legal and Ethical Environment of Management

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No. 1
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IN THE EIGHT CIRCUIT COURT OF APPEALS
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MARY DEAREST,
Petitioner,
V.

STATE OF MINNESOTA,
Respondent,
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IN REVIEW TO THE SUPREME COURT OF MINNESOTA
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BRIEF FOR THE RESPONDENT
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Kate Voigt
1678 Snelling Ave, Suite #987
St. Paul, MN 55108
(123) 456-7890

TABLE OF CONTENTS
Table of Authorities………………………………………………………………………5
Statement of the Issues……………………………………………………………………6
Statement of the Case and Facts …………………………………………………..7
Argument…………………………………………………………………..7

Mr. Gonzalez should not be held negligent for leaving the matches on the sales table; they were set out of reach of children, in a position where he could see customers take them if he were to be standing behind the counter. …………………………7,8,9,10,11,12

THE RULING THAT MR. GONZALEZ SHOULD NOT BE HELD NEGLEGENT SHOULD STAND BECAUSE THERE WAS NO FORSEEABLE INJURY INVOLVED IN GIVING THE CUSTOMERS FREE MATCHES…………………………8,9,10

MR. GONZALEZ SHOULDN’T BE HELD NEGLEGENT FOR GIVING HIS CUSTOMERS FREE MATCHES BECAUSE IF THEY WERE DEFECTIVE, THERE SHOULD’VE BEEN A RECALL BUT SINCE THERE WAS NO KNOWN DEFECT, THE MATCHES CANNOT BE RECALLED……………………………………………..9, 10

The court should uphold the ruling due to the product not being defective in its design…..9,10,11,12

THE STATES PRODUCT LIABILITY STANDARDS ARE THAT THE PRODUCT NEEDS TO DISPLAY BOTH DEFECTIVE DESIGN AND UNREASONABLY DANGEROUS BECAUSE OF THE DEFECT………10, 12, 13

MR GONZALEZ DID NOT BREACH THE WARRANTY OF MERCHANTABILITY BY ALLOWING DEFECTIVE MATCHES GET INTO THE HANDS OF THE PUBLIC BECAUSE TO HIS KNOWLEDGE AND THE REST OF THE PUBLICS THE MATCHES WERE NOT DEFECTIVE………………………………11

Hellfire company was not negligent in the design, manufacture and packaging of the matches because the matches are not defective………….12, 13

Hellfire company did not breach the warranty of merchantability by manufacturing and selling matches …………………………………….13,14

Conclusion…………………………………………….15

TABLE OF AUTHORITIES

United States Court of Appeals Cases:
D.D Bean & Sons, Co. V. CPSC, 574 F. 2d 643………………7

Minnesota Supreme Court Cases:
Austin v. Metro. Life Ins. Co., 277 Minn. 214,217, 152 N.W.2d 136,138 (1967)….8
Foss v. Kincade, 766 N.W.2d 317,319 (Minn.2009)………………………8
Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995)…………….8
Whiteford v. Yamaha Motor Corp.,582 n.w.2d 916,918 (Minn.1998)………..8

Minnesota Appellate Court Cases:
Marshall v. Esco Indus., Inc., No.A08-2046 (Minn. App. 2009)…………9
Watkins v. Greyhound Bus Lines, Inc., (Minn. App. 2004)……………..11

Secondary Sources:
Coffer v. Standard Brands, 30 N.C. App. 134, 226 S.E.2d 534 [1976]…….12
Consumer Product Safety Act……………………………………………….10
Goldstein V. United Amusement Corp., 86 N.H. 402, 169 ATL 587 (1933)….10
Huprich v. Bitto, 667 So.2 685 (Ala.1995)………………………………….12
Uniform Commercial Code………………………………………............11

STATEMENT OF CASE AND FACTS
On the 23 day of April 2007, the plaintiff Mary Dearest and her daughter Heather walked to the corner store in Kenwood, Minnesota. While in the convenience store, Mary became absorbed in a search for a gallon of milk, thus leaving Heather unattended at the front of the store. Heather stole a book of matches while Mary left her unattended.
When Mary and Heather arrived home, Mary again left Heather unattended. Heather then locked herself in the hallway closet, bunched up papers and lit a match as if to start a fire. Heather strikes a match and lets it fall on the papers without getting burned. The papers then ignite, and burn the closet and heather until Mary can open the closet and extinguish the fire.
The defense attorney for Hellfire is represented by Bill Bully and the defense attorney for Mr. Gonzalez is Minnie Successes. Both attorneys hired an independent engineering firm to test the Hellfire matches and compare them with the rest of the matches in the industry. What the firm concluded to find was that the matches burn 30% hotter and the flame is 20% larger than that of the industry average. Bully and Successes contend that there is no economically feasible way to design and package book matches in a way to make them completely safe and with respect to Mr. Gonzales, Successes argues that he was following industry practices by having matches in a location by the cash register that would be inaccessible to children on the customer side of the counter.

ARGUMENT
MINNESOTA’S NEGLIGENCE LAW INCLUDES FOUR ELEMENTS, DUTY, BREACH, PROXIMATE CAUSE AND DAMAGES. FORSEEABLILITY IS AN IMPORTANT CONSIDERATION IN MINNESOTA NEGLIGENCE LAW.
When assessing the story that the victim is claiming, the first thing that the victim has done is steal the matches, Mr. Gonzalez never intended Heather to be the user of the matches, since federal law enacted Part 1202 created by the Consumer Protection Safety Commission which stated that the unreasonable risks of injury from accidents are associated with matchbooks these unreasonable risks, which Part 1202 is intended to reduce or eliminate are: (1) Burn injuries , sustained by children and others, including mentally or physically impaired persons, who play with or otherwise improperly use bookmatches (2) Burn injuries sustained by persons who use bookmatches that fragment or have delayed ignition (3) eye injuries sustained by persons who use bookmatches that fragment and cause particles from such matches to lodge in a person’s eye (4) burn injuries sustained by persons who use bookmatches that, when struck, ignite the remaining matches in the matchbook (5) burn injuries sustained by persons from fires that have resulted from unexpected ignition of bookmatches with no deliberate action by the user (6) burn injuries that have been sustained by persons from fires that have been set by afterglow of extinguished bookmatches. Part 1202.2 goes on to explain that the Commission estimates that the standard will have no adverse effects on the utility that consumers derive from matchbooks. To the extent that injuries and property damage associated with the use of matchbooks is reduced or eliminated as a result of this standard, the utility of matchbooks as a source of fire will be increased. D.D Bean & Sons, Co. V. CPSC, 574 F. 2d 643
Minnie Successes even went so far as to figure out that the matches can only be reached by adults unless a child is on the other side of the counter, therefore the defendant, Mr. Gonzales did fulfill his legal duty to keep the matches out of the hand of children by putting them in a place where they cannot be accessed by children unless they broke the policy and went behind the counter and then broke the law and stole the matches. In Minnesota, the standard for duty to child injured by an unforeseen event can be reviewed in Foss v. Kincade, 766 N.W.2d 317, 319 (Minn.2009) .
Duty is legally defined as the responsibility to perform certain acts or meet certain standards of performance. The defendant will always have a duty to act in a certain manner; duties may be mandated by law or may be voluntary, such as those assumed under a contract. When questioning Mr. Gonzalez and whether he performed his duty that he owed his customers, by law he did. He sold a product that fit industry safety standards even though he knew it would be harmful in the hands of the unintended user. Mr. Gonzales performed his duty in such a way to keep the matches out of reach of children unless they were breaking store policy by being on the wrong side of the sales counter. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn.1995)
Furthermore, The Minnesota supreme courts ruled that detailed factual examination of the record often results in conclusions that the injury was not foreseeable Whiteford v. Yamaha Motor Corp.,582 n.w.2d 916.918 (Minn.1998). That sometimes results in no-duty determinations, holdings that there is no breach of duty as a matter of law, that there is no proximate cause as a matter of law, or even that the label makes no difference if the injury is unforeseeable. Austin V. Metro. Life Ins. Co., 277 Minn. 214,217,152 N.W.2d 136,138(1967) The Third Restatement of Torts: liability for physical and emotional harm, recently published by the American Law Institute, takes an approach to negligence law that takes a step in separating foresee ability from duty and scope of liability and proximate cause in determinations and adopting but-for standard to determine causation, The Third Restatements approach to negligence cases is to intend to achieve greater clarity in negligence law, avoid the inconsistencies that result when courts engage in detailed analysis of adjudicative facts in the resolution of duty and scope of liability issues, and to achieve an appropriate balance between the functions of judge and jury in negligence cases. In such case with Mr. Gonzalez should not be held accountable for negligence with there being evidence of him having not foreseeing there being an injury. Marshall V. Esco Indus., Inc., No.A08-2046(Minn. App. 2009) though the matches were placed in a spot out of reach from children and the said matches were stolen from the convenience store.
When addressing the issue of whether Mr. Gonzales is liable for the making defective matches available to the public, Mr. Gonzalez cannot be held liable due to the fact the matches are not defective. The matches performed the same task as the rest of the matches in the industry; they started a fire. The matches were never recalled, and furthermore the matches were fitted for the standards for the Consumer Product Safety Commission. When reading the standards of the Consumer Product Safety Commission, the Hellfire Company was in full compliance. The standards are as follows (a) the fraction shall be located on the outside back cover near the bottom of the matchbook (b) the cover shall remain closed without external force (c) No friction material shall be located on the inside of the cover where possible contact with the matchheads may occur during ordinary use (d) there shall be no bridge(s) or broken bridge(s) (e) no matchhead in the matchbook shall be split, chipped, cracked or crumbled (f) no portion of any matchhead shall be outside the matchbook cover when the cover is closed (g) no part of a staple or other assembly device for securing the cover and combs shall be within or touching the friction area (h) a staple used as an assembly device for securing the cover and combs shall be fully clinched so that the ends are flattened or turned into the cover. Upon compliance to section 14(a) of the Consumer Product Safety Act (15 U.S.C.2063(a) Hellfire had to have certified that the matchbooks conformed to the based on either a test of each product or on a reasonable testing program, therefore if the matchbooks had been defective and deemed unsellable they never would’ve left the warehouse.
The Commission had received complaints over the matches, it is my belief that the Consumer Product Safety Commission should’ve investigated farther into the reports and then made the call of if to notify the proper authorities of a recall or a product defect that they should fix but, since the company was within compliance there would’ve been no reason to investigate, being as though complaints come in everyday to the CPSC. There is no fault here it was simply an accident. Mr. Gonzalez is not guilty of contributory negligence as a matter of law because of failure to take every available precaution to prevent injury; but such failure is one of the circumstances baring on the issue of due care, which we already visited and Mr. Gonzales fulfilled the duty of making sure the matches were out of reach of children. Goldstein v. United Amusement Corp., 86 N.H. 402,169 ATL. 587(1933). The defense can also apply that matches fall under “Commonly Known Dangers”. This is defined as dangers that are associated with certain products (such as matches, and sharp knives) are so commonly known that, as already mentioned, manufacturers need not warn users of the dangers. If a plaintiff’s injury resulted in a commonly known danger, the defendant will not be held liable. Therefore the fact that the matches were above common grade matches is negated due to the grouping that all matches in the industry are dangerous. Product defects causing injuries to minors are met with the defense that the child was not an intended user, manufacturers are obligated to design these types of products recognizing that it is foreseeable that the children will have contact with the product, so when Mr. Gonzalez placed the matches in a spot where the matches cannot be reached by children he was taking the necessary steps to prevent the child from being the intended user. Matches are not intended for child’s use. It is foreseeable that the matches are going to be left around and picked up by a child. If there was a failure to incorporate child resistant features this ay be evidence of negligence or of a breach of warranty therefore the Consumer Product Safety Commission has set certain mandatory safety standards as to matches to make them child-resistant.
When looking at whether Mr. Gonzalez breached the warranty or merchantability by allowing defective matches to get into the hands of the public, it is clear that he is not guilty of this charge as well. Mr. Gonzales had no knowledge of the matches being defective or any of the complaints that the Consumer Product Commission had received. Because the safety standards had been met and there were no known defects or recalls by federal and state standards, the matches were allowed to be made available to the public. The only way that Mr. Gonzalez can be held responsible for the accident is if he were to have had knowledge of a recall, ignored it, and continued to sell the matches.
Within the sale of a product there is either an express or implied warranty that the product is reasonably fit for the purpose for which it is sold. The implied warranty of merchantability is an unwritten and unspoken guarantee to the buyer that goods purchased conform to ordinary standards of care and that they are of the same average grade, quality and value as the similar goods sold under similar circumstances. Merchantable goods are goods fit for the ordinary purposes for which they are to be used. The Uniform Commercial Code has been adopted by states, and provides that courts imply a warranty of merchantability when (1) the seller is a merchant of such goods, and (2) the buyer uses the goods for ordinary purposes for which such goods are sold (2-314) thus a buyer can sue for breaching the implied warranty by selling goods unfit for their ordinary purpose. There are two points to argue here (1) Heather was not a buyer, nor was she the intended buyer. She stole the matches from Mr. Gonzales; Mr. Gonzales had stopped heather before from stealing the matches proving that Heather was not an intended buyer therefore there was no guarantee on the behalf of the seller. (2) The matches fitted their intended use, there were made to start fires, they started a fire. (Coffer v. Standard Brands, 30 N.C. App. 134, 226 S.E.2d 534 [1976]
It should also be noted that Mr. Gonzalez cannot be held liable due to the fact that the seller isn’t the merchant of the goods sold. Huprich v. Bitto, 667 So.2d 685 (Ala. 1995) these are similar cases in that Mr. Gonzales did not possess expertise, knowledge, or skill in the sale of matches, he only knew what common people and the law knows, they burn and children shouldn’t play with them. For this there is a policy behind the limiting breach of warranty of merchantability, it states as follows, a seller may not have sufficient expertise or control over a product to ensure that it will perform properly when used for nonstandard purposes, an assumption at law that products are “merchantable,” meaning they work and are useable as normally expected by consumers, unless there is a warning that they are sold “as is “or second-hand without any warranty.
The next issue is deciding if Hellfire is negligent in the design, manufacture and packaging of the matches. Courts can require that a product be proved both defective in design and unreasonably dangerous because of the defect; many courts have combined the defect and danger elements. In those courts a product is defectively designed if is unreasonably dangerous because of its design. Courts use various definitions of “unreasonably dangerous” including a product that is more dangerous than an ordinary consumer would expect, or a product whose risks are so great that a reasonable seller would not place the product on the market, or a product design whose risks outweigh its benefits. In this argument the defendant will argue again the “Commonly Known Dangers”. A product cannot be commonly known dangerous and unreasonably dangerous because there was no known defect. When looking at 402A comment (I) of the Restatement (second) of Torts a product is not unreasonably dangerous if the danger is obvious, and since matches are also listed in the “Commonly known dangers” section the defendant can say the danger was obvious to the user. The argument that Billy Bully made in the original case stands for this argument, matches are intended to burn hot enough to start a fire. That is why matches are purchased, to start a fire; the child harmed herself because she stole matches and started a fire in her parent’s closet while the parents were not watching her. The plaintiff is claiming that the matches were defective because they worked for their intended use.
In regards to Mr. Yus next charge of Hellfire company’s liability issue of selling a defective product the company cannot be held liable because of the industry tests that were taken place in the original hearing during the discovery process by which Mr. Bully and Mrs. Successes found that the matches are fit to comply with the regulations set by the Consumer Product Safety Commission. The matches were allowed to sell in book form, and the company took the necessary precautions to administer the child safety precautions.
The next issue is that of if Hellfire Company breached it warranty of merchantability by manufacturing and selling the matches that caused harm to the unintended user. The matches cannot be deemed as Unreasonably Dangerous because they also fit into the Obviously Dangerous category. When a customer purchases matches, it is for the purpose for starting a fire; it is obvious to the consumer that matches create fire. To say that matches are Unreasonably Dangerous would be saying that matches do their job too well or they start fires too quickly. It is economically feasible for companies to create matches that burn. If Hellfire Company were to make a match that didn’t work well, the company would cease to exist. The claim that Mr. Yus is trying to make is that the defendant created a product with a design defect. By definition a design defect is a determination that a product which has a design defect is one that can affect all of the units of a product. A product “is defective in design when all foreseeable risks of harm have been avoided by the adaptation 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. Since Hellfire Company is in the business of producing a product that has obvious risks, the matches are going to never be completely safe.
The attorney for the Dearest family, Mr. Yus is contending that matches should never be sold in book form. It is my opinion that if he feels that way, that he shouldn’t waste his time arguing that in this case over product liability and considers a petition to the Consumer Product Safety Commission and have the standards for matches revisited.

CONCLUSION
For the foregoing reasons, the State of Minnesota requests that the judgment of the Minnesota Court of Appeals be affirmed.
DATED: _______________ _____________________
Katlyn Voigt
Attorney for Respondent
Simon & Simon, Attorneys at Law
1678 Snelling Ave, Suite #987
St. Paul, MN 55108