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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 17, 1999
Before KING, Chief Judge, and DAVIS, Circuit Judge.*
PER CURIAM:
Plaintiff-Appellant Gloria Marie Hernandez, as next friend
of Ruben Richard Emeterio, a minor, filed suit against
Defendants-Appellees Tokai Corporation and Scripto-Tokai
Corporation asserting claims of negligence and strict products
liability in the design of a butane lighter. The district court
* Judge John Minor Wisdom, who was originally a member of
the hearing panel, heard oral argument and joined in the decision
to certify a question to the Supreme Court of Texas. Judge
Wisdom died on May 15, 1999. The appeal is being decided by a
quorum. See 28 U.S.C. § 46(d). (1994).

granted summary judgment in favor of Defendants-Appellees, and
Plaintiff-Appellant appealed.
On appeal, we recognized that the case involved a
determinative question of state law for which there was no
controlling precedent; therefore, we certified the following
question to the Supreme Court of Texas:
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?
Hernandez v. Tokai Corp., 154 F.3d 224, 225 (5th Cir. 1998). The
Supreme Court of Texas, with explanation, answered that:
·
none of the conditions stated in the question precludes
imposition of liability, but neither are they together
enough to establish liability;
·
proof of an available "safer alternative design", as
defined by statute, is necessary but not sufficient for
liability; the claimant must also show that the product
was unreasonably dangerous as designed, taking into
consideration the utility of the product and the risk
involved in its use; and
·
in determining whether a product is unreasonably
dangerous, the product's utility to its intended market
must be balanced against foreseeable risks associated
with use by its intended users.
Hernandez v. Tokai Corp., No. 98-0857, 1999 WL 645114, at *1
(Tex. Aug. 26, 1999). In light of this answer, we VACATE the
judgment of the district court and REMAND the case for further
2