IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 97-50862
                       _____________________


          GLORIA MARIE HERNANDEZ, as next friend of Ruben
          Richard Emeterio, a minor,

                                Plaintiff-Appellant,

          v.

          TOKAI CORPORATION; SCRIPTO-TOKAI CORPORATION,

                                Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Western District of Texas
_________________________________________________________________
                         September 4, 1998

Before WISDOM, KING, and DAVIS, Circuit Judges.

PER CURIAM:

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH

  CIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT TO THE TEXAS

  CONSTITUTION, ART. 5, § 3-C AND RULE 58 OF THE TEXAS RULES OF

                        APPELLATE PROCEDURE



TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:



                       I.   STYLE OF THE CASE

     The style of the case in which this certificate is made is

Gloria Marie Hernandez, as next friend of Ruben Richard Emeterio,

a minor, Plaintiff-Appellant v. Tokai Corporation and Scripto-
Tokai Corporation, Defendants-Appellees, Case No. 97-50862, in

the United States Court of Appeals for the Fifth Circuit, on

appeal from the United States District Court for the Western

District of Texas.   This case involves a determinative question

of state law, and jurisdiction of the case in the federal courts

is based solely on diversity of citizenship.

                     II.   STATEMENT OF THE CASE

     The salient underlying facts in this case are undisputed.

On April 4, 1995, two-year-old Ruben Richard Emeterio was

severely burned in a house fire that was started by his sister,

five-year-old Daphne Hernandez, with a “Tokai” brand disposable

butane lighter that was designed without a child-resistant safety

mechanism.   The fire occurred on the top bunk of a bunk bed in a

bedroom of the children’s grandparents’ home.      The lighter had

apparently been obtained by Daphne, or by her twin sister,

Stephanie Hernandez, from their mother’s purse on the top shelf

of a closet in the room in which the fire occurred.1

     On May 6, 1996, plaintiff-appellant Gloria Marie Hernandez

(Hernandez), as next friend of Ruben, filed suit against

defendants-appellees Tokai Corporation and Scripto-Tokai

Corporation (collectively, Defendants), asserting claims of

strict liability and negligence with regard to their design of

the lighter.   In particular, Hernandez alleged that the lighter

     1
          In deposition testimony, both Gloria Marie Hernandez
and Ruben’s grandmother, Rita Emeterio, admitted that they were
smokers at the time of the fire, and both acknowledged that they
were aware that it was dangerous for children to play with
lighters.

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was defectively designed and unreasonably dangerous due to the

absence of a child-resistant mechanism that would have prevented

or substantially reduced the likelihood of a child using it to

start a fire.

     On August 13, 1997, Defendants moved for summary judgment on

all claims, alleging that a manufacturer of a cigarette lighter

is not required to incorporate child-resistant features into its

design in order to protect unintended users from dangers that are

obvious and inherent in the tool’s utility.   Defendants further

argued that the subject lighter was a simple household tool

intended for use only by adults, that an adequate warning had

been provided to keep the lighter out of the reach of children,

and that the dangers of allowing children to play with lighters

are so commonly known that even if the warning was ignored by

consumers it was not reasonably foreseeable that a child would be

given unsupervised access to the lighter.

     Hernandez timely filed a response on August 26, 1997,

arguing that, at the time the lighter at issue was manufactured

and distributed, a safer alternative design incorporating a

child-resistant mechanism existed.   She claimed that the

existence of the safer alternative design created a fact issue

for the jury regarding whether the product was defective under

Texas’s risk-utility test.   In support of her response, Hernandez

presented uncontroverted evidence that alternative lighter

designs with child-resistant mechanisms existed as early as 1974

and that defendant Tokai Corporation held patents on several such


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designs, one of which it applied for in 1987 and received in

1988.2

     On September 8, 1997, the United States District Court for

the Western District of Texas granted Defendants’ motion for

summary judgment and entered final judgment in favor of

Defendants.   Hernandez timely appealed the district court’s

judgment.

                     III.   QUESTION CERTIFIED

     Under the Texas Products Liability Act of 1993, can the

legal representative of a minor child injured as a result of the

misuse of a product by another minor child maintain a defective-

design products liability claim against the product’s

manufacturer where the product was intended to be used only by

adults, the risk that children might misuse the product was

obvious to the product’s manufacturer and to its intended users,

and a safer alternative design was available?




     2
          Included in the evidence submitted by Hernandez in
opposition to Defendants’ motion for summary judgment was a
report produced by the Consumer Product Safety Commission (CPSC)
in September 1987 and a subsequent rulemaking promulgated by the
CPSC in 1993 banning the manufacture and import of non-child-
resistant lighters effective July 12, 1994. In one 1992 report
included in the record, the CPSC predicted that its proposed rule
would “prevent about 85-120 deaths per year and . . . result in a
total annual savings, including savings in deaths, injuries, and
property damage, of $210-$290 million. The annual costs to
consumers of the proposed rule are estimated to be about $95
million.” 57 Fed. Reg. 36,932, 36,936 (1992). The CPSC
therefore noted that “the expected benefits substantially
outweigh the estimated costs to the public.” 

  CONCLUSION




        5
     We disclaim any intention or desire that the Supreme Court

of Texas confine its reply to the precise form or scope of the

question certified.   The answer provided by the Supreme Court of

Texas will determine the issue on appeal in this case.




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