92 F.3d 1185
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Frederick Turner RAY, a Minor by Next Friend and Natural
Mother, Erma L. HOLMAN, Plaintiff-Appellant,
v.
BIC CORPORATION, Defendant-Appellee.
No. 93-6105.
United States Court of Appeals, Sixth Circuit.
Aug. 5, 1996.
Before: KENNEDY and SILER, Circuit Judges; CHURCHILL, District Judge.1
PER CURIAM.
This matter was certified to the Tennessee Supreme Court under its Rule 23, for that court to determine whether the product liability law of Tennessee includes the application of a "risk-utility" test under Tenn.Code Ann. § 2928-102(8). The Tennessee Supreme Court has now answered that question by saying that Tennessee law recognizes a "risk-utility" balancing approach under a prudent manufacturer test. Ray v. Bic Corp., --- S.W.2d ---- (No. 01S1-9501-FD-00011 July 15, 1996).
The district court in this case did not have the benefit of the opinion by the Tennessee Supreme Court and did the best that it could in attempting to ascertain whether Tennessee would recognize the "risk-utility" test. Finding no authority to support such a test, the district court granted summary judgment on behalf of BIC, using only the "consumer expectation" test. Therefore, this matter is REMANDED to the district court to determine whether summary judgment is appropriate under the circumstances when Tennessee recognizes the "risk-utility" test.
The Honorable James P. Churchill, United States District Judge for the Eastern District of Michigan, sitting by designation
