Plaintiff Zachary, age 11 months, sustained serious injuries in a fire at his home when his three-year-old brother, Kenneth ignited Zachary’s bed with a disposable butane cigarette lighter manufactured by the defendant BAC Corporation (BAC). Kenneth removed the lighter from his father’s pants pocket in the early hours of the morning and set fire with it to Zachary’s bedding while the rest of the household slept. Prior to Zachary’s injuries, his mother had seen warnings that BAC placed on the lighter to keep it away from children. Plaintiff sues BAC for negligence and contends that BAC was negligent for failing to design a child-proof lighter which would require more strength to ignite than a pre-teen child would normally possess.  Such a “child-proof” lighter, manufactured by the Zappo company, was introduced to the market 6 months before the fire which injured Zachary.

Plaintiff’s market expert admitted on cross-examination, that BAC represents just 15% of the disposable lighter market and that its profits from the sale of disposable lighters, up until the time of Zachary’s injuries, were barely enough to continue manufacture, and that its profits were driven largely by being the most inexpensive disposable lighter on the market.  Plaintiff’s market- expert witness further admitted that BAC’s manufacturing a “child-proof” disposable lighter would raise the consumer cost to the point that BAC would no longer be able to profitably continue the product.  Other witnesses called by the plaintiff also admitted that BAC Knowing that children accidentally being seriously burned in accidents involving disposable lighters was a significant problem, had decided to place a highly visible, written warning on the lighter itself stating “DANGER!! KEEP OUT OF REACH OF CHILDREN”. This is the warning that was on the lighter involved in Zachary’s injury.

After presentation of the above evidence, defendant BAC moves for a directed verdict claiming that as a matter of law, there is not sufficient prima facie evidence that BAC exposed Zachary to an unreasonable risk.  Should the court grant this motion?