IN THE SUPREME COURT OF TEXAS

No. 98-0881

The Kroger Co. and

Direct Source International, Inc., Petitioners

v.

Rhonda Rene Robins, individually and

as next friend of Jackie Wayne Robins, Jr., a minor,

and Jackie Wayne Robins, Sr., Respondents

On Petition for Review from the

Court of Appeals for the First District of Texas

PER CURIAM

In 1989, three-year-old Jackie Robins, Jr. found a disposable butane lighter in his parents' van and used it to start a fire in which he was severely burned. His parents sued The Kroger Co. and Direct Source International, Inc. for selling the lighter without a child-resistant mechanism. Plaintiffs asserted causes of action for breach of warranty, negligence, negligence per se, and products liability. Defendants moved for summary judgment on all plaintiffs' claims on a single ground: that the manufacturers and sellers of lighters or other such products intended only for adult use have no legal duty to make them child-resistant. The district court granted both defendants' motions. The court of appeals reversed only on plaintiffs' defective-design products-liability claim, ⁽¹⁾ and plaintiffs have not petitioned for review. For the reasons we explained in Hernandez v. Tokai Corp. , ⁽²⁾ the court of appeals correctly rejected defendants' no-duty argument and remanded the case to the district court. The court of appeals added, however, "that a fact issue exists under the risk-utility analysis as to whether Kroger and DSI breached their duty to design a safe product". ⁽³⁾ The existence of such a fact issue cannot be determined on this record because defendants' motions did not attempt to apply the risk-utility test to plaintiffs' design-defect claims. Thus, defendants' petitions for review are denied.

Opinion delivered: September 9, 1999

1.   982 S.W.2d 156.