Mikolajczykv. Ford Motor Company ( 2008 )

Docket No. 104983.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
CONNIE MIKOLAJCZYK, Indiv. and as Special Adm’r of the Estate
of James Mikolajczyk, Deceased, Appellee, v. FORD MOTOR
COMPANY et al., Appellants.
Opinion filed October 17, 2008.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Justices Freeman, Thomas, Karmeier, and Burke concurred in the
judgment and opinion.
Chief Justice Fitzgerald concurred in part and dissented in part,
with opinion.
Chief Justice Fitzgerald dissented upon denial of rehearing, with
opinion.
Justice Kilbride took no part in the decision.
OPINION
James Mikolajczyk died of injuries sustained when the Ford
Escort he was driving was struck from behind by another vehicle. His
widow, as special administrator of his estate, sued the other driver,
claiming negligence, and Ford Motor Company and Mazda Motor
Corporation, claiming defective design of the driver’s seat. Summary
judgment was entered against the other driver. The claims against the
other two defendants proceeded to a jury trial in the circuit court of
Cook County. The jury found defendants liable and awarded plaintiff
$2 million in damages for loss of money, goods, and services, and
$25 million for loss of society.
The appellate court affirmed in part and reversed in part.
Mikolajczyk v. Ford Motor Co., 369 Ill. App. 3d 78 (2006). This court
denied defendants’ petition for leave to appeal, but remanded the
matter to the appellate court with instructions to reconsider in light of
Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007). On remand, the
appellate court again affirmed in part and reversed in part, finding the
damages awarded for loss of society to be excessive and remanding
to the circuit court for a hearing on the proper amount of remittitur.
374 Ill. App. 3d 646. This court granted defendants’ petition for leave
to appeal pursuant to Supreme Court Rule 315 (210 Ill. 2d R. 315) to
determine whether the trial court erred by instructing the jury on the
consumer-expectation test and rejecting defendants’ tendered
instruction on the risk-utility test for defective design. In addition, we
allowed plaintiff’s petition to seek cross-relief on the damages issue.
We have permitted the Products Liability Advisory Council, Inc.,
the Illinois Manufacturers’ Association and the National Association
of Manufacturers, the Illinois Association of Defense Trial Counsel,
and the Alliance of Automobile Manufacturers, Inc., to file briefs
amici curiae on behalf of the defendants. We have also permitted the
Illinois Trial Lawyers Association to file a brief amicus curiae on
behalf of the plaintiff. 210 Ill. 2d R. 345.
BACKGROUND
On February 4, 2000, William Timberlake shared two pints of gin
with a friend before getting behind the wheel of his Cadillac. He was
traveling approximately 60 miles per hour when he smashed into the
rear of a 1996 Ford Escort that was stopped at a red light. The driver
of the Escort, James Mikolajczyk, suffered severe, irreversible brain
trauma and spent several days on life support before his death. His
daughter, Elizabeth, then aged 10, who was asleep in the backseat at
the time of the accident, suffered two broken legs. James was also
survived by his wife, Connie, and son, Adam, then aged 14.
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Plaintiff’s negligence suit against defendant Timberlake resulted
in the entry of summary judgment. Plaintiff’s lawsuit against
defendants Ford and Mazda alleged strict product liability premised
on defective design of the driver’s seat of the Escort. Specifically, she
claimed that as a result of the defective design of the seat, it collapsed
when the car was struck from behind, causing James to be propelled
rearward and to strike his head on the backseat of the car. Plaintiff
further alleged that the design of the seat was unreasonably dangerous
and that the design defect proximately caused James’s death. The
Escort was manufactured by defendant Ford. The seat was designed
by defendant Mazda; Ford had the authority to approve or disapprove
the design.
The trial testimony is summarized in detail in the appellate court
opinion. 374 Ill. App. 3d at 650-53. For purposes of this appeal, it is
necessary to note only that the evidence included testimony by expert
witnesses for both parties regarding the risks and benefits posed by
the “yielding” seat (referred to as the CT20 design), its compliance
with federal safety requirements, the availability and feasibility of a
rigid seat, the risks and benefits posed by the rigid seat design, and
the seat designs employed in other makes and models of cars
manufactured in 1996.
The trial court instructed the jury using plaintiff’s tendered
versions of Illinois Pattern Jury Instructions, Civil, Nos. 400.01.01
(setting out the plaintiff’s claim of defective design and the
defendants’ denials), 400.02 (setting out the plaintiff’s burden of
proof and the elements of a claim for strict liability), and 400.06
(defining the expression “unreasonably dangerous”). Illinois Pattern
Jury Instructions, Civil, Nos. 400.01.01, 400.02, 400.06 (2006)
(hereinafter IPI Civil (2006)). The trial court rejected defendants’
tendered nonpattern jury instructions that would have specifically
instructed the jury to consider the “overall safety” of the design,
whether the foreseeable risks of harm of the design outweighed its
benefits, and whether the adoption of a feasible alternative design
would have avoided or reduced the risks. Defendants argued
unsuccessfully that this instruction should be given either instead of
or in addition to instruction 400.06.
The jury answered the following special interrogatory in the
affirmative: “Was the driver’s seat of the Mikolajczyk car in an
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unreasonably dangerous condition that was a proximate cause of
James Mikolajczyk’s death?” The jury then returned a verdict in favor
of the plaintiff and awarded $2 million in damages for loss of money,
goods, and services and $25 million for loss of society. The jury
assigned 60% of fault to Timberlake and 40% to Ford and Mazda.
The appellate court rejected defendants’ argument that the jury
was improperly instructed, but reversed the judgment in part, finding
the $25 million award for loss of society excessive. 374 Ill. App. 3d
at 674.
Before this court, defendants argue that the appellate court
“turned back the evolution of Illinois law” by applying the “outdated”
consumer-expectation test rather than the risk-utility test that, they
assert, is now the exclusive test for defective design of a complex
product. In the alternative, they argue that even if this court has not
expressly adopted risk-utility as the exclusive test in such cases, it
should do so now. In effect, they argue that the trial court applied the
wrong substantive law to plaintiff’s claim, raising this issue in the
context of the trial court’s refusal to give their non-IPI jury
instruction. Defendants also argue that a new trial must be granted in
any event because the jury instructions that were given did not
correspond to the evidence presented at trial.
Plaintiff argues that the appellate court erred by finding the $25
million award for loss of society excessive and remanding for a new
hearing on defendants’ motion for remittitur.
ANALYSIS
Neither the first edition (1961) nor the second edition (1971) of
the Illinois Pattern Jury Instructions, Civil, contained instructions
dealing with claims of strict product liability. The 400.00 series of
instructions, which deals with strict product liability, was adopted in
1977 in a supplement to the second edition. See IPI Civil (2006), at
xiii-xiv (foreward to the third edition). The third edition, which was
adopted in 1992, retained instruction 400.06 without change, as have
subsequent editions in 1995, 1997, 2000, and 2006. Pattern jury
instruction 400.06 defines the term “unreasonably dangerous” in the
context of a strict product liability claim:
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“When I use the expression ‘unreasonably dangerous’ in
these instructions, I mean unsafe when put to a use that is
reasonably foreseeable considering the nature and function of
the [product].” IPI Civil (2006) No. 400.06.
The comment following this instruction observes that the
“expression ‘unreasonably dangerous’ first found acceptance in
Illinois in Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182
(1965).”1 IPI Civil (2006) No. 400.06, Comment, at 562. In Suvada,
this court recognized a cause of action for strict liability in tort against
the manufacturer of a product whose defective condition made it
unreasonably dangerous to the user or consumer. This court noted that
its conclusion “coincide[d] with the position taken in section 402A of
the American Law Institute’s revised Restatement of the Law of
Torts,” which had recently been approved. Suvada, 32 Ill. 2d at 621.
This section provides, in part, that:
“One who sells any product in a defective condition
unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property
***.” Restatement (Second) of Torts §402A (1965).
The drafters of the pattern jury instruction explained that they
chose the phrase “unreasonably dangerous condition” instead of the
words “defect” or “defective condition” because the phrase “is more
conversational and is less likely to suggest traditional concepts of
fault to the jurors.” The drafters noted, further, that an instruction
defining “unreasonably dangerous” is needed “because the concept is
not generally understood by, nor within the common experience of,
jurors.” Under this instruction, “a product can be ‘unreasonably
dangerous’ only when put to a use that is reasonably foreseeable.” IPI
Civil (2006) No. 400.06, Comment, at 563.
It has since been well established that to recover in a strict product
liability action, a plaintiff must plead and prove that the injury
1
Suvada was impliedly overruled on other grounds in Frazer v. A.F.
Munsterman, Inc., 123 Ill. 2d 245 (1988). The implied overruling of Suvada
was recognized by this court in Dixon v. Chicago & North Western
Transportation Co., 151 Ill. 2d 108, 123 (1992).
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complained of resulted from a condition of the product, that the
condition was unreasonably dangerous, and that it existed at the time
the product left the manufacturer’s control. Sollami v. Eaton, 201 Ill.
2d 1, 7 (2002). A product may be found to be unreasonably dangerous
based on proof of any one of three conditions: a physical defect in the
product itself, a defect in the product’s design, or a failure of the
manufacturer to warn of the danger or to instruct on the proper use of
the product. Sollami, 201 Ill. 2d at 7.
As early as 1979, this court held that when a strict liability claim
is based on an alleged design defect, the product may be proven to be
unreasonably dangerous “by evidence of the availability and
feasibility of alternate designs at the time of its manufacture, or that
the design used did not conform with the design standards of the
industry, design guidelines provided by an authoritative voluntary
association, or design criteria set by legislation or governmental
regulation.” Anderson v. Hyster Co., 74 Ill. 2d 364, 368 (1979).
That same year, this court held that a product may be found
unreasonably dangerous based on a design defect if the plaintiff
presents evidence of an alternative design that is “economical,
practical and effective.” Kerns v. Engelke, 76 Ill. 2d 154, 162-63
(1979). Such evidence introduces the question of feasibility, “ ‘since
a manufacturer’s product can hardly be faulted if safer alternatives are
not feasible.’ ” Kerns, 76 Ill. 2d at 163, quoting Sutkowski v.
Universal Marion Corp., 5 Ill. App. 3d 313, 319 (1972). Because the
evidence and the court’s instructions were sufficient for the jury to
find for the plaintiff in Kerns, this court did not determine whether a
plaintiff claiming design defect must plead and prove that a feasible
alternative design is available. Kerns, 76 Ill. 2d at 163-64.
In Lamkin v. Towner, 138 Ill. 2d 510, 528 (1990), this court
reiterated its earlier adoption of section 402A of the Restatement
(Second) of Torts, observing that a product is “unreasonably
dangerous” due to a defect in either manufacturing or design when it
is “ ‘dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its
characteristics.’ ” Lamkin, 138 Ill. 2d at 528, quoting Restatement
(Second) of Torts §402A, Comment i, at 352 (1965).
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We further stated that in a strict product liability action, a claim
of defective design may be proven in either of two ways. First, the
plaintiff may introduce “evidence that the product failed to perform
as safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner.” Lamkin, 138 Ill. 2d at
529. This has come to be known as the consumer-expectation test.
Second, the plaintiff may introduce “evidence that the product’s
design proximately caused his injury.” If the defendant thereafter
“fails to prove that on balance the benefits of the challenged design
outweigh the risk of danger inherent in such designs,” the plaintiff
will prevail. Lamkin, 138 Ill. 2d at 529. This test, which added the
balancing of risks and benefits to the alternative design and feasibility
inquiries adopted in Anderson and Kerns, has come to be known as
the risk-utility or risk-benefit test.
The product at issue in Lamkin was a window screen. The
plaintiffs were parents of two children who were injured when they
fell from apartment windows. The trial court denied the defendants’
motions for summary judgment and certified four questions for
interlocutory appeal. Lamkin, 138 Ill. 2d at 516-17. On the question
of the plaintiffs’ claims of strict liability for defective design, this
court applied both the consumer-expectation test and the risk-utility
test to the evidentiary materials in the record and determined that the
trial court’s denial of the motion for summary judgment was improper
because plaintiffs could not have met either test. Lamkin, 138 Ill. 2d
at 529-31.
Specifically, under the consumer-expectation test, the question
was whether “the window screens failed to perform as safely as an
ordinary consumer would expect when used in an intended or
reasonably foreseeable manner.” (Emphasis in original.) Lamkin, 138
Ill. 2d at 529. Because window screens are designed for ventilation
and to prevent insects from entering, not to prevent an individual
from falling, the window screen did what it was designed to do
without unreasonable danger. The danger arose only when the
window screen did not do something it was not designed to do. The
ordinary person, with ordinary knowledge, would appreciate this
distinction. Lamkin, 138 Ill. 2d at 529-30.
Applying the risk-utility test, this court considered whether there
was evidence of how the “window screens’ design proximately
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caused” the children’s injuries. (Emphasis in original.) Lamkin, 138
Ill. 2d at 530. This court asked whether the plaintiff had provided
“evidence of how the window screens’ design could have been altered
to create a safer screen *** or any evidence of the form and feasibility
of the alternative screen design.” Lamkin, 138 Ill. 2d at 530. Finding
no evidence to support the plaintiffs’ allegations, this court found, as
a matter of law, that the window screens were not “ ‘defective or
unreasonably dangerous’ such as to serve as the basis for a products
liability action.” Lamkin, 138 Ill. 2d at 530-31.
Notably, in Lamkin, when applying the consumer-expectation test,
this court focused on the manner in which the allegedly dangerous
product was being used. When applying the risk-utility test, this court
focused on the availability and feasibility of alternative designs for
the product. IPI Civil (2006) No. 400.06, which was given in the
present case, also focuses on the use to which the allegedly defective
product was being put, thus stating, at least in part, the content of the
consumer-expectation test. The instruction, however, does not include
any content specific to the risk-utility test.
(1)
Defendants argue that this court’s decisions subsequent to
Lamkin, specifically Hansen v. Baxter Healthcare Corp., 198 Ill. 2d
420 (2002), Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78
(2005), and Calles, 224 Ill. 2d 247, have established that in a product
liability action predicated on a claim of defective design, the risk-
utility test is the only proper test. If this court’s precedents do not
establish this definitive rule, they argue, our decisions have
nevertheless established that the risk-utility test is the only test to be
applied if the product at issue is complex and if the injury occurred
in circumstances unfamiliar to the average consumer. Thus,
defendants argue, even if the consumer-expectation test might still be
applicable in some design defect cases, it is “reserved” for cases
involving simple products or everyday circumstances. They argue,
further, that despite this development in the law of strict product
liability, the existing pattern jury instruction misinforms the jury by
not setting out the applicable test.
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The defendants frame the question for this court as whether the
existing jury instruction accurately states the law, subject to de novo
review, citing People v. Parker, 223 Ill. 2d 494, 501 (2006). Plaintiff
argues for application of the abuse of discretion standard, under
which reversal is not appropriate for giving a faulty instruction or
refusing to give a tendered instruction absent a showing of prejudice
to party’s right to a fair trial. McCarthy v. Kunicki, 355 Ill. App. 3d
957, 970 (2005). Defendants reply that even if this court were to
apply the abuse of discretion standard, it was an abuse of discretion
requiring a new trial for the trial court to give an outdated,
inapplicable instruction on a key issue, citing Eshoo v. Chicago
Transit Authority, 309 Ill. App. 3d 831, 836-37 (1999). We agree
with defendants that the question presented at this stage of our
analysis is a question of law because it asks whether, as a matter of
substantive law, this court has abandoned or limited the application
of the consumer-expectation test in design defect cases and replaced
it with the risk-utility test. Our review is, therefore, de novo.
We first used the expression “risk-utility” in Hansen, 198 Ill. 2d
at 428, where the unintentional disconnection of an intravenous
catheter connecting device had caused a fatal air embolism. The
plaintiff claimed that the manufacturer failed to warn users of the
device of the likelihood of unintentional disconnection and also that
the device was unreasonably dangerous due to a design defect.
Hansen, 198 Ill. 2d at 423-24. The jury rendered a general verdict,
finding the defendant liable. The appellate court found that the
general verdict could not be sustained on the failure-to-warn theory,
but that the evidence justified a finding of design defect under either
the consumer-expectation test or the risk-utility test. Hansen v. Baxter
Healthcare Corp., 309 Ill. App. 3d 869 (1999). The defendant
manufacturer argued on appeal to this court that the appellate court
erred by applying risk-utility analysis. Hansen, 198 Ill. 2d at 428. The
defendant argued for application of only the consumer-expectation
test, but claimed that the relevant expectations were those of health-
care professionals, not patients, and that the ordinary professional
consumer of this product would not have found it more dangerous
than expected. Hansen, 198 Ill. 2d at 433-34.
This court first addressed the failure to warn claim and found,
contrary to the appellate court’s holding, that the defendant had a duty
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to warn physicians and other health-care professionals who might use
the device of its “known dangerous propensities” and that the jury’s
general verdict could reasonably have been based on a finding that the
defendant had not fulfilled that duty. Hansen, 198 Ill. 2d at 430-32.
This court then turned to the design defect claim. We must note,
however, that this court’s holding on the failure to warn claim would
have been a sufficient basis to affirm the trial court judgment.
Arguably, it was not necessary for this court to reach the design defect
claim, even though the defendant’s petition for leave to appeal had
been granted to review the appellate court’s ruling on this issue.
Whether this renders the remainder of the decision dictum is open to
debate, but if dictum, it is judicial dictum. Hawes v. Luhr Brothers,
Inc., 212 Ill. 2d 93, 100 (2004) (supreme court’s unnecessary
pronouncement on an issue briefed and argued by the parties is
“judicial dicta,” rather than mere “obiter dicta” and should be given
dispositive weight by the lower courts).
Considering the consumer-expectation test, this court concluded
that the ordinary-consumer-expectation test, rather than the ordinary-
physician-expectation test, applied to the design defect claim because
the patient “was the person who would be harmed if the device
failed” and because she “could have reasonably expected that her IV
catheter connection, if properly designed and manufactured, would be
safe to use for its intended purpose.” Hansen, 198 Ill. 2d at 435. The
evidence at trial was sufficient to establish that the design of the
device was defective under this test. Thus, the appellate court was
correct that the jury’s decision was not against the manifest weight of
the evidence. Hansen, 198 Ill. 2d at 435. Again, our analysis could
have stopped here, but we went on to consider whether the evidence
supported the verdict under the risk-utility test.
The defendant in Hansen argued that the risk-utility test was not
appropriately applied to the medical device because it was simple and
its risks were well known to the medical community. Hansen, 198 Ill.
2d at 436. The defendant relied on Scoby v. Vulcan-Hart Corp., 211
Ill. App. 3d 106 (1991), in which the appellate court had rejected
application of the risk-utility test to a claim that a deep-fat fryer used
in a restaurant was defectively designed because it lacked a cover,
stating:
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“Somewhere, a line must be drawn beyond which the danger-
utility test cannot be applied. Considering not only the
obvious nature of any danger here but, also, the simple nature
of the mechanism involved, we conclude that the circuit court
properly applied only the consumer-user contemplation test.”
Scoby, 211 Ill. App. 3d at 112.
This court neither rejected nor adopted the principle set out in
Scoby, but found that even if such a principle applied, it would not
have affected the outcome in Hansen. First, such a conclusion was
“not compelled by the facts” related to the medical device, which,
unlike the deep-fat fryer, had been developed and marketed as a
safety device. Second, this court found that, unlike the deep-fat fryer,
the danger presented by the medical device was “not obvious, nor was
the mechanism simple.” Hansen, 198 Ill. 2d at 437. Thus, this court
concluded that evidence of the existence of an alternative, safer
design for the medical device was properly admitted and that the
record was “sufficient to sustain a finding of unreasonable
dangerousness under a risk-utility analysis.” Hansen, 198 Ill. 2d at
436.
We also declined the defendant’s invitation to adopt a new test for
design defects in medical devices and prescription drugs under
section 6 of the then-new Restatement (Third) of Torts: Products
Liability (1998) (hereinafter Products Liability Restatement), finding
the argument forfeited. We did, however, leave open the possibility
of considering the adoption of sections of the Products Liability
Restatement in the proper case. Hansen, 198 Ill. 2d at 438.
No issue was raised in Hansen regarding jury instructions. Both
tests were applied by this court in the context of determining whether
the evidence in the record supported the jury’s general verdict.
Thus, by 2002, our case law had established that strict liability
may be imposed based on proof of injury proximately caused by an
unreasonably dangerous condition of a product and that such a
condition may consist of a manufacturing defect, a design defect, or
inadequate warnings. We had further established that a product’s
design may be found to be unreasonably dangerous and, thus,
defective under either the consumer-expectation test or the risk-utility
test. Lamkin, 138 Ill. 2d at 528-29. We had not limited the application
of either test to a specific class of products. We had concluded that a
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“complex” product, such as a medical device, may be subjected to
both tests, but we did not define “complex” except to distinguish an
IV catheter connector from a deep-fat fryer. Hansen, 198 Ill. 2d at
437. The pattern jury instruction defining “unreasonably dangerous,”
which had been adopted in 1977, many years prior to our decisions in
Lamkin and Hansen, remained unchanged despite our adoption of two
alternative methods of proving that a product is defectively designed
because it presents an unreasonable danger.
We next considered the risk-utility test in 2005 in Blue. The
product at issue was a trash compactor. The plaintiff pleaded both
negligence and strict product liability based on design defect, but was
forced to proceed solely on the negligence theory after the strict
liability count was dismissed because it was filed beyond the limits
of the statute of repose. Blue, 215 Ill. 2d at 81. The issue presented to
this court was whether the trial court erred by giving the jury a special
interrogatory, over plaintiff’s objection, asking whether “the risk of
injury by sticking a foot over or through a gate into a moving
compactor [was] open and obvious.” See Blue, 215 Ill. 2d at 85. The
jury answered this question in the affirmative, but nevertheless
returned a general verdict for the plaintiff. The trial court granted the
defendants’ posttrial motion for judgment n.o.v. on the basis that the
jury’s answer to the special interrogatory was inconsistent with the
general verdict.
The appellate court reversed, noting that in a negligence action
based on breach of a duty to warn, no such duty exists when the
danger is open and obvious. Blue, 215 Ill. 2d at 86. The appellate
court also held, however, that an open and obvious risk is not an
absolute bar to liability in an action for negligent design, citing
Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 902-03
(2002) (open and obvious danger does not necessarily bar recovery in
a strict product liability case based on defective design; under the
risk-utility test, the open and obvious nature of the risk posed by the
product is merely a factor to be considered in the overall assessment
of its risks and utility). Blue v. Environmental Engineering, Inc., 345
Ill. App. 3d 455, 468 (2003).
After a discussion of the risk-utility test and its similarity to the
negligence standard, a plurality of this court concluded that the risk-
utility test, which would have been applicable to the dismissed strict
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liability claims, did not apply to the claim of negligent design. Blue,
215 Ill. 2d at 97-98.
Defendant argues that in Blue, this court embraced section 2 of
the Products Liability Restatement, which states:
“A product is defective when, at the time of sale or
distribution, it contains a manufacturing defect, is defective
in design, or is defective because of inadequate instructions or
warnings. A product:
(a) contains a manufacturing defect when the product
departs from its intended design even though all possible
care was exercised in the preparation and marketing of the
product:
(b) is defective in design when the foreseeable risks of
harm posed by the product could have been reduced or
avoided by the adoption of a reasonable alternative design
by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe;
(c) is defective because of inadequate instructions or
warnings when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the
seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the
instructions or warnings renders the product not
reasonably safe.” Restatement (Third) of Torts: Products
Liability §2, at 14 (1998).
The first sentence of this section parallels this court’s language in
Lamkin, recognizing three separate bases for strict product liability.
Paragraph (a) sets out a test for defective manufacturing; paragraph
(b) applies the risk-utility test to claims of defective design; and
paragraph (c) sets out a test for inadequate instructions or warnings.
Our “adoption” of this section of the Products Liability Restatement,
according to defendants, means that use of the consumer-expectation
test is now “restricted”to claims of manufacturing defect and that the
risk-utility test alone applies to all claims of defective design.
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Defendants argue further that even though Blue was a negligence
case, not a strict liability case, the appellate court in the present case
erred by treating our discussion of section 2 as mere dicta. Even
though Blue was a plurality opinion, defendants assert that none of
the concurring justices questioned whether the risk-utility test governs
strict liability design defect cases and that two concurring justices
suggested expanding the risk-utility test to cover negligent design
claims as well. Blue, 215 Ill. 2d at 119 (Fitzgerald, J., specially
concurring, joined by McMorrow, C.J.). They argue further that a
“fair reading” of Blue suggests that it was “a signpost along the way
to the law’s current place, the risk-utility test.”
We disagree. We did cite section 2 of the Products Liability
Restatement in Blue, but only in the context of distinguishing
negligent design claims from strict product liability defective design
claims. Blue, 215 Ill. 2d at 93-94. We noted that this section was
drafted in response to the recognized “inadequacy of section 402A to
address claims of defective design and defects based on inadequate
instructions and warnings.” Blue, 215 Ill. 2d at 93. We did not,
however, expressly or impliedly adopt section 2(b) as the sole,
exclusive test for dangerousness in strict liability design defect cases.
The most that can be said regarding Blue is that a plurality of this
court noted the American Law Institute’s observation that “the same
rationale for imposing strict liability in manufacturing defect cases
does not apply to design defects.” Blue, 215 Ill. 2d at 94, citing
Restatement (Third) of Torts: Products Liability §2, Comment a, at
16 (1998).
The Blue plurality went on to consider whether, under the risk-
utility test, once the plaintiff shows that a design defect proximately
caused his injury, the burden of proof shifts to the defendant to prove
that the benefits of the design outweigh its inherent danger. Blue, 215
Ill. 2d at 98-99. This burden-shifting formulation of the risk-utility
test comes from Lamkin (138 Ill. 2d at 529), but was not a part of the
holding in that case. In fact, the holding in Lamkin negates any such
burden on the defendant, because this court found that summary
judgment for the defendant in that case was proper. If the burden had
shifted to the defendant, summary judgment could not have been
entered in the defendant’s favor. Blue, 215 Ill. 2d at 99.
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The burden-shifting formulation emanates from a citation to
Barker v. Lull Engineering Co., 20 Cal. 3d 413, 429-30, 573 P.2d
443, 453-54, 143 Cal. Rptr. 225, 235-36 (1978), widely recognized
as the seminal case on risk-utility. This court cited Barker in Palmer
v. Avco Distributing Corp., 82 Ill. 2d 211, 219-20 (1980), and then
cited both Palmer and Barker in Lamkin (138 Ill. 2d at 529), but no
decision of this court has expressly adopted this burden-shifting
formulation of the risk-utility test.
Having already concluded that the risk-utility test did not apply to
the plaintiff’s negligent design claim, it was not necessary for us to
reach this question in Blue. We addressed it “only because of the
appellate court’s finding that the risk-utility test applied” to the
negligence claim in that case. Blue, 215 Ill. 2d at 98. The plurality
cited, with approval, a comment to section 2 of the Products Liability
Restatement, which states that a plaintiff must establish a prima facie
case of design defect by introducing evidence of a technologically
feasible and practical alternative design that would have reduced or
prevented the harm. Restatement (Third) of Torts: Products Liability
§2, Comment f, at 23-24 (1998). Once that showing is made, the issue
of liability is “one for the trier of fact to resolve.” Blue, 215 Ill. 2d at
100.
With respect to the issues in the present case, the plurality opinion
in Blue did not abandon or limit use of the consumer-expectation test.
Blue signals only that this court is aware of the potential
shortcomings of using the consumer-expectation test in design defect
cases. The plurality in Blue also rejected a burden-shifting element of
the risk-utility test, a conclusion that none of the concurring justices
questioned.
Ultimately, defendants rely on this court’s decision in Calles to
argue that risk-utility is now the sole, exclusive test to determine
whether an allegedly defectively designed product is unreasonably
dangerous.
The product at issue in Calles was a utility lighter. The plaintiff
was the mother of a three-year-old who died of smoke inhalation after
her twin sister started a fire with the lighter. The plaintiff made both
negligence and strict liability claims. Calles, 224 Ill. 2d at 251. The
trial court granted summary judgment for the defendants.
-15-
The appellate court noted the Blue plurality’s citation to Scoby “as
authority that some simple products present such obvious dangers that
the court need not apply the risk-utility balancing test.” Calles v.
Scripto-Tokai Corp., 358 Ill. App. 3d 975, 982 (2005). Under this
reasoning, the appellate court concluded, if a product is simple and its
danger obvious, summary judgment for the defendant manufacturer
is warranted if “the balance of all considerations so clearly favors the
defendant that no reasonable jury could find for the plaintiff.” Calles,
358 Ill. App. 3d at 983. Reversing in part, the appellate court held that
the lighter did “not qualify as the kind of especially simple device for
which the result of the risk-utility balancing is too obvious for trial.”
Calles, 358 Ill. App. 3d at 983.
The issue presented to this court in Calles was whether we had
established, in Blue, a “simple product exception” to application of
the risk-utility test in strict liability defective design cases.
Specifically, the question was formulated as whether a product that
is deemed “simple,” with open and obvious dangers, was per se
exempt from the risk-utility test. Calles, 224 Ill. 2d at 250.
We noted, again, that the consumer-expectation test was
developed in the context of claims of manufacturing defects, but that
it came to be applied to design defect claims as well. Calles, 224 Ill.
2d at 254-55. We acknowledged that the applicability of the
consumer-expectation test to alleged design defects had been
questioned and that the risk-utility test had been devised to respond
to these concerns. Calles, 224 Ill. 2d at 255. We did not, however,
state that the consumer-expectation test no longer applies in design
defect cases. Indeed, we applied both tests in our analysis of the
utility lighter after observing that “[s]ince Lamkin, this court has
continued to employ these two tests when determining whether a
product is unreasonably dangerous.” Calles, 224 Ill. 2d at 256.
We observed that while a product might satisfy ordinary
consumer expectations, its design could still be found defective using
risk-utility analysis. Calles, 224 Ill. 2d at 256. Thus, the plaintiff in
a design defect case whose claim failed the consumer-expectation test
could nevertheless prevail under the risk-utility test.
The utility lighter at issue in Calles met the expectations of the
ordinary adult consumer because it produced a flame when used as
intended. The lighter, however, had not been used in its intended
-16-
manner; it had been used by a three-year-old child to start a fatal fire.
This use, while tragic, was reasonably foreseeable. Because the
lighter produced a flame when used in a reasonably foreseeable
manner, thus fulfilling the expectations of the ordinary consumer, it
could not, as a matter of law, be found unreasonably dangerous under
the consumer-expectation test. Calles, 224 Ill. 2d at 258-59.
We then turned to the risk-utility analysis because it might still
have been possible for the plaintiff to prevail under that test. Our first
step was to address the defendant’s reliance on Scoby for the
proposition that there is a “simple product” exception to the risk-
utility test that applies when the mechanism is so simple and the
danger so obvious that it is proper to apply only the consumer-
expectation test, citing Scoby, 211 Ill. App. 3d at 112. The defendant
argued that the utility lighter, like the deep-fat fryer at issue in Scoby,
was such a product and that, therefore, the risk-utility test should not
be utilized.
We examined Scoby and concluded that the exception to risk-
utility analysis that it espoused contained two separate components:
the product must be “simple” and its danger must be “open and
obvious.” We disagreed with this formulation, finding that “the
dangers associated with a product that is deemed ‘simple’ are, by
their very nature, open and obvious.” Calles, 224 Ill. 2d at 261. This
is certainly true of the danger of being burned by boiling oil in a deep-
fat fryer or the danger of starting a fire with a utility lighter. Thus, we
concluded, the purported simple-product exception is “nothing more
than the adoption of a general rule that a manufacturer will not be
liable for open and obvious dangers.” Calles, 224 Ill. 2d at 261.
After further analysis, we rejected such a per se rule exempting
products with open and obvious dangers from risk-utility analysis.
Instead, we concluded, the open and obvious danger of a product is
but one factor to be considered when applying the risk-utility test.
Calles, 224 Ill. 2d at 262. Our application of the risk-utility test to the
evidence of record resulted in our conclusion that there was a
disputed issue of material fact that precluded the entry of summary
judgment in the defendant’s favor. Calles, 224 Ill. 2d at 268-69.
In the end, Calles rejected the premise that in a certain category
of strict liability cases, only the consumer-expectation test applies.
Calles, 224 Ill. 2d at 263. Defendants argue that as a result, Calles has
-17-
rendered the consumer-expectation test “largely superfluous,”
because “the law is now clear: the risk-utility test applies to the
design of all products, even simple products with open and obvious
dangers.” Defendants base this argument primarily on our citation in
Calles to the decision of the Supreme Court of California in Soule v.
General Motors Corp., 8 Cal. 4th 548, 882 P.2d 298, 34 Cal. Rptr. 2d
607 (1994). Calles, 224 Ill. 2d at 256.
We had previously cited Barker, another California case, in
Lamkin for the rationale for employing both the consumer-
expectation test and the risk-utility test. Lamkin, 138 Ill. 2d at 529,
citing Parker v. Avco Distributing Corp., 82 Ill. 2d 211, 219-20
(1980), citing Barker, 20 Cal. 3d at 427-28, 573 P.2d at 452, 143 Cal.
Rptr. at 234-35. We reiterated that rationale, and our citation to
Barker, in Calles. Calles, 224 Ill. 2d at 255-56. Following a brief
explanation of the rationale of Barker, we directed the reader to “see
also” Soule, which, we explained in a parenthetical remark, refined
the Barker risk-utility test and held that the “ ‘consumer expectations
test is reserved for cases in which the everyday experience of the
product’s users permits a conclusion that the product’s design
violated minimum safety assumptions,’ ” but that “ ‘the risks and
benefits of a challenged design must be carefully balanced whenever
the issue of design defect goes beyond the common experience of the
product’s users.’ ” (Emphases omitted.) Calles, 224 Ill. 2d at 256,
quoting Soule, 8 Cal. 4th at 567, 882 P.2d at 308, 34 Cal. Rptr. 2d at
617. We reject this argument. Our mere citation of Soule, using the
signal “see also,” and without further discussion, cannot be read as
this court’s adoption of a new rule that would necessarily overrule
Lamkin and its progeny.
Calles concluded that a product that presents an open and obvious
danger is not per se exempt from application of the risk-utility test in
a strict liability case. Calles, however, did not address the issue raised
by defendants in the present case–whether a complex product is per
se exempt from the consumer-expectation test.
Nothing in our past decisions, even where we have applied the
risk-utility test, has signaled a rejection of the consumer-expectation
test merely because a complex product was involved. For example,
in Hansen, which involved a complex product (Hansen, 198 Ill. 2d at
437 (intravenous catheter connecting device is not simple)), we found
-18-
that the evidence at trial was sufficient to sustain a finding of
defective design under both tests. Hansen, 198 Ill. 2d at 435
(consumer-expectation), 437-38 (risk-utility). We, therefore, reject
defendants’ claim that under Illinois law the risk-utility test is the sole
measure of the dangerousness of an allegedly defectively designed
product in all strict liability cases or in a subset of those cases.
(2)
Defendants argue that if we have not adopted the risk-utility test
as the sole, exclusive test in design defect cases, we should do so
now. They argue, in the alternative, that if we do not adopt the risk-
utility test as the sole, exclusive test in all design defect cases, it
should be the sole, exclusive test when the product is complex and
the circumstances are not familiar to the ordinary consumer. This
case, they insist, illustrates the need to restrict application of the
consumer-expectation test to claims of defective manufacture or, at
least, to design defects in simple products.
According to defendants, the consumer-expectation test evolved
to evaluate claims of manufacturing defect where it is reasonable to
believe that jurors, as ordinary consumers, can rely on their own
experience and expectations to determine whether a manufacturing
defect has rendered a product unreasonably dangerous. This,
defendants assert, is a simple, straight-forward inquiry focused on one
particular “unit” of the product and not on the product as a whole.
Thus, there are no countervailing benefits to consider when a
manufacturing defect is alleged.
The consumer-expectation test, defendants argue, does not make
sense when a design defect is alleged because design decisions, by
their very nature, involve considerations of the feasibility of
alternative designs, cost, safety, and other factors with which the
ordinary consumer is not familiar. In the context of the present case,
defendants assert, the jurors could not have had reasonable
expectations of their own regarding the proper degree of rigidity or
flexibility in a car seat or how a seat should function in a wide range
of potential accident conditions. According to defendants, the risk-
utility test is specifically fashioned to evaluate this kind of claim and
-19-
should be the sole measure of whether the product is unreasonably
dangerous due to a design defect.
Plaintiff responds that defendants are proposing a “radical
theory,” adoption of which would overrule Lamkin, Hansen, and
Calles. Even if the proposed new rule were limited to cases involving
complex products, plaintiffs claim, the distinction between simple
and complex products is unworkable because there is no rational
basis on which to distinguish them. Indeed, plaintiff points out, this
court was divided in Calles on the question of whether the utility
lighter was a “simple” product. See Calles, 224 Ill. 2d at 274
(Karmeier, J., specially concurring).
The rule advocated by defendants is contained in section 2(b) of
the Products Liability Restatement, which would allow a finding of
design defect only “when the foreseeable risks of harm posed by the
product could have been reduced or avoided by the adoption of a
reasonable alternative design *** and the omission of the alternative
design renders the product not reasonably safe.” Restatement (Third)
of Torts: Products Liability §2(b), at 14 (1998).
If we were to accept defendants’ invitation to adopt section 2(b)
of the Products Liability Restatement, we would indeed overrule
precedent, because section 2(b) would redefine the elements of a
product liability claim based on alleged defective design.
Under Illinois law, the elements of a claim of strict liability based
on a defect in the product are: (1) a condition of the product as a
result of manufacturing or design, (2) that made the product
unreasonably dangerous, (3) and that existed at the time the product
left the defendant’s control, and (4) an injury to the plaintiff, (5) that
was proximately caused by the condition. The plaintiff has the burden
of proof on each element. See Sollami, 201 Ill. 2d at 7; Suvada, 32 Ill.
2d at 623.
Section 2(b) of the Products Liability Restatement would alter the
“unreasonably dangerous” element in design defect cases in two
significant ways. First, a plaintiff would be required to plead and
prove the existence of a feasible alternative design in every case.
Second, instead of proving that the defect rendered the product
“unreasonably dangerous,” the plaintiff would have the burden of
proving that the product was “not reasonably safe.”
-20-
The first of these new elements was briefly a part of Illinois law.
In 1995, enactment of Public Act 89–7, the so-called “Tort Reform
Act,” added section 2–2104 to the Code of Civil Procedure. This
section provided that in strict product liability actions, the design of
a product is “presumed to be reasonably safe,” unless the plaintiff
proves that, “at the time the product left the control of the
manufacturer, a practical and technically feasible alternative design
was available that would have prevented the harm without
significantly impairing the usefulness, desirability, or marketability
of the product.” 735 ILCS 5/2–2104 (West 1996) (declared
unconstitutional).
In 1997, this court decided Best v. Taylor Machine Works, 179 Ill.
2d 367, 467 (1997), which held Public Act 89–7 unconstitutional in
its entirety. Section 2–2104, standing alone, was not found
unconstitutional, but this court held in Best that provisions of the act
that were essential to the legislative purpose could not be severed
from the rest of the act.
Our legislature has not reenacted this provision in the decade
since Best was decided. We are reluctant to make a change that would
so fundamentally alter the law of product liability in this state based
solely on the suggestion that the drafters of the Restatement have a
better idea of what the law should be than our own legislature. Such
a change, if it is to be made, is a matter of public policy, better suited
to legislative action than judicial decisionmaking.
As for the second alteration, adoption of section 2(b) of the
Products Liability Restatement would require the plaintiff to prove
that the alleged defect renders the product “not reasonably safe”
rather than “unreasonably dangerous.” This change has its roots in a
law review article that argued:
“[T]he term ‘unreasonably dangerous’ gives rise to the
impression that the plaintiff must prove that the product was
‘unusually or extremely dangerous.’ The term ‘not reasonably
safe’ is less subject to misinterpretation.” Restatement (Third)
of Torts: Products Liability §2, Reporters’ Note, at 80 (1978),
citing J. Wade, Strict Tort Liability of Manufacturers, 19 Sw.
L.J. 5, 15 (1965), and J. Wade, On the Nature of Strict Tort
Liability for Products, 44 Miss. L.J. 825, 833 (1973).
-21-
The term “not reasonably safe” offers an “aspirational advantage,”
because it “elevates the norm” to one of reasonable safety, and
“serves symbolically to provide a signal that (reasonable) product
safety–as a positive goal required by the law–must now be afforded
a central place in the decisional calculus of manufacturers.”
Restatement (Third) of Torts: Products Liability §2, Reporters’ Note,
at 80-81 (1998), citing D. Owen, Defectiveness Restated: Exploding
the ‘Strict’ Products Liability Myth, 1996 U. Ill. L. Rev. 743, 777.
Our concern is less with the aspirational goal that might be set for
manufacturers than with parties’ and jurors’ need for clarity. In effect,
under the existing “unreasonably dangerous” test, jurors are asked to
determine whether a product is too dangerous; under the proposed
“not reasonably safe” test, they would be asked whether it is not safe
enough. We find the former more likely to be understood by the
average juror. See IPI Civil (2006) No. 400.01, Comment, at 553
(noting that the phrase “not reasonably safe” might be
interchangeable with “unreasonably dangerous,” but that the
“Restatement, and Suvada and all its progeny, furnish persuasive
authority that the jury should be instructed that it is the ‘unreasonably
dangerous’ condition of the product which leads to liability”).
By urging adoption of the Products Liability Restatement’s
formulation of the elements of a strict product liability design defect
claim, defendants seek a change in the substantive law of this state.
This argument goes far beyond their assertion that the jury in this
particular case was not properly instructed and would require our
overruling Lamkin, Hansen, and Calles, at least in part. We,
therefore, decline defendants’ invitation to adopt section 2(b) of the
Products Liability Restatement. Thus, the existence of a feasible
alternative design and the balancing of risks and benefits are relevant
considerations in a strict product liability design defect case, but they
are not elements of the claim that the plaintiff is required to plead and
prove in every case.
(3)
We now turn to defendants’ alternative argument that even if the
risk-utility test is not the sole, exclusive test for strict product liability
-22-
based on defective design, they are nevertheless entitled to a jury
instruction on the risk-utility test under the circumstances of this case.
We concluded in Calles that when a plaintiff’s claim cannot meet
the consumer-expectation test, it may nevertheless be proven using
the risk-utility test. Calles, 224 Ill. 2d at 256. No issue was raised in
Calles regarding jury instructions because Calles came to us after a
grant of summary judgment. We reversed that judgment and
remanded for trial, but our analysis necessarily foreclosed
consideration on remand of the consumer-expectation test for
unreasonable dangerousness. Our holding required that only the risk-
utility test be applied at trial. The result we reached in Calles leads to
the inescapable conclusion that the present instruction on
unreasonable dangerousness, IPI Civil (2006) No. 400.06, which
focuses the jury’s inquiry on the use to which the product was being
put at the time of the injury, is inappropriate in some cases. In order
to ensure that the jury undertakes the appropriate inquiry when the
consumer-expectation analysis does not apply, as in Calles, an
instruction that incorporates consideration of risk and utility,
including the feasibility of an alternative design, is required.
The question posed in the present case is whether the same holds
true when the consumer-expectation test is not foreclosed from jury
consideration. In effect, defendants argue that the answer to the risk-
utility test “trumped” the answer to the consumer-expectation test in
Calles and that it should do so even when the consumer expectation
test favors plaintiff and the risk-utility test favors the defendant. The
only consideration, defendants claim, should be whether the issue of
risk-utility has been raised by the evidence presented. Defendants rely
on this court’s decision in Kerns, where we held that a nonpattern
jury instruction on the feasibility of an alternative design was properly
given because the trial court must instruct the jury on all issues raised
by the evidence. Kerns, 76 Ill. 2d at 164. See also Rios v. Navistar
International Transportation Corp., 200 Ill. App. 3d 526, 537 (1990)
(each party has the right to have the jury instructed on his theory of
the case and the circuit court, in exercising its discretion, must
instruct the jury on all issues that it finds have been raised by the
evidence presented).
Plaintiff responds that it is her choice whether to proceed under
the “consumer-expectation theory” or the “risk-utility theory” of
-23-
design defect. She notes that “plaintiffs are masters of their complaint
and are entitled to proceed under whichever theory they decide, so
long as the evidence supports such a theory,” citing Reed v. Wal-Mart
Stores, Inc., 298 Ill. App. 3d 712, 717-18 (1998). See also Barbara’s
Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 59 (2007) (referring to
plaintiffs as “masters of their complaint”). Plaintiff argues that it
would be “utterly absurd” for defendants to “choose the theory
plaintiff pursues at trial.” She states that she chose to try her case
under “what is labeled the ‘consumer expectation’ theory of strict
liability” rather than the other “form of strict liability,” risk-utility.
She concludes that the trial court was not required to instruct the jury
on “other potential theories of liability” that might have been
available to her. Plaintiff further asserts that the instructions given
accurately state that law and have never been modified because no
modification has been needed.
Plaintiff has confused theories of liability with methods of proof.
This court has recognized three theories of strict product liability:
manufacturing defect, design defect, and failure to warn. Sollami, 201
Ill. 2d at 7. In Hansen, the plaintiff claimed strict liability under both
the failure to warn and design defect theories. Hansen, 198 Ill. 2d at
423-24. Similarly, in Blue, the plaintiff pleaded two theories of
liability–negligence and strict liability–but was forced to proceed only
with the negligence claim because the strict liability claim was barred
by the statute of repose. Blue, 215 Ill. 2d at 81. In the present case,
plaintiff has chosen to proceed under the design defect theory of strict
product liability.
In Lamkin, we stated that a plaintiff “may demonstrate that a
product is defective in design, so as to subject a retailer and a
manufacturer to strict liability for resulting injuries, in one of two
ways.” Lamkin, 138 Ill. 2d at 529. We then set out the consumer-
expectation test and the risk-utility test. These two tests, therefore, are
not theories of liability; they are methods of proof by which a plaintiff
“may demonstrate” that the element of unreasonable dangerousness
is met. See, e.g., Heastie v. Roberts, 226 Ill. 2d 515, 542 (2007)
(explaining that the res ipsa loquitur doctrine is a “species of
circumstantial evidence” that may be used to prove the element of
breach of duty when the theory of liability is negligence).
-24-
In the present case, plaintiff elected to proceed under a theory of
strict product liability based on design defect and not to pursue a
negligence claim. She also chose to rely on the consumer-expectation
method of proof, as demonstrated by the jury instructions she
submitted. Defendants are not asserting that they have the right to
choose plaintiff’s theory of liability. Rather, defendants are asserting
that they, too, have the right to put on their case using any permissible
method of proof. When the record contains evidence relevant to their
chosen method of proof, they insist that they are entitled to a
corresponding jury instruction. Their tendered instruction, defendants
claim, is the only way to ensure that the jury utilizes the proper
analytical framework to test the evidence before it.
These arguments pose two questions for this court. First, is a
defendant entitled to an instruction on the risk-utility test over the
objection of a plaintiff whose chosen method of proof is consumer
expectation? Second, if both consumer-expectation and risk-utility
instructions are given and the tests yield inconsistent answers, which
result prevails?
“[T]he parties are entitled to have the jury instructed on the issues
presented, the principles of law to be applied, and the necessary facts
to be proved to support its verdict.” Dillon v. Evanston Hospital, 199
Ill. 2d 483, 505 (2002). The threshold for giving an instruction in a
civil case is “not a high one.” Heastie, 226 Ill. 2d at 543.
“Generally speaking, litigants have the right to have the jury
instructed on each theory supported by the evidence. Whether
the jury would have been persuaded is not the question. All
that is required to justify the giving of an instruction is that
there be some evidence in the record to justify the theory of
the instruction. The evidence may be insubstantial.” Heastie,
226 Ill. 2d at 543.
The decision to give or deny a tendered instruction is within the
discretion of the trial court. Dillon, 199 Ill. 2d at 505. So long as the
tendered instructions clearly and fairly instruct the jury, a party is
entitled to instructions on any theory of the case that is supported by
the evidence. Snelson v. Kamm, 204 Ill. 2d 1, 27 (2003). As the
appellate court has noted, “[i]t is within the discretion of the trial
court to determine which issues are raised by the evidence presented
-25-
and which jury instructions are thus warranted.” Brdar v. Cottrell,
Inc., 372 Ill. App. 3d 690, 704 (2007).
The expression “theory of the case” does not refer to the
plaintiff’s theory of liability. It refers, instead, to each party’s framing
of the issues and arguments in support of its position. It is, therefore,
well established that while a plaintiff is entitled to an instruction
setting out her own theory of the case, based on her theory of liability
and her chosen method of proof, she may not unilaterally preclude the
giving of a jury instruction that presents the defendant’s theory of the
case, so long as the defendant’s instruction accurately states the law
and is supported by the evidence. Assuming, for now, that
defendants’ tendered instructions met these criteria, we consider the
implications of giving a jury both consumer-expectation and risk-
utility instructions in a design defect case.
If a jury were to consider the two tests independently, there are
four possible outcomes. First, the product could be found
unreasonably dangerous under both tests and judgment would be for
the plaintiff. This was the case in Hansen, where the design of a
complex medical device was at issue. Hansen, 198 Ill. 2d at 435-36.
Second, the product could be found not unreasonably dangerous
under either test and judgment would be for the defendant. This was
the case in Lamkin, where the design of a window screen was at issue.
Lamkin, 138 Ill. 2d at 529-31.
Third, the product could be found not unreasonably dangerous
under the consumer-expectation test, but unreasonably dangerous
under the risk-utility test. In such a case, judgment would be for the
plaintiff. This is the possible outcome of Calles on remand, where the
design of a utility lighter was at issue. Calles, 224 Ill. 2d at 256.
Defendants in the present case posit the fourth possible outcome
when the two tests are applied independently. The product could be
found unreasonably dangerous under the consumer-expectation test,
but risk-utility analysis could reveal that an alternative is not
available, or that available alternatives are not feasible, or that the
benefits of the design outweigh its inherent risks. In such a case,
defendants argue, the result of the risk-utility test should trump the
result of the consumer-expectation test. Defendant argues that if the
tests are treated as alternatives so that a plaintiff may prevail by
-26-
meeting either test, the effect will be to impose absolute–not just
strict–liability. This will occur, defendants claim, because the
consumer-expectation test will, at least where a complex product is
involved, almost always lead to a finding of unreasonable
dangerousness. As a result, defendants will be liable for all injuries
in all circumstances, no matter how much the risk-utility balance
weighs in favor of the challenged product design.
Defendants cite Mele v. Howmedica, Inc., 348 Ill. App. 3d 1
(2004), and Besse v. Deere & Co., 237 Ill. App. 3d 497 (1992), in
support of this argument. These cases have been overruled, at least to
the extent they relied on Scoby, by our decision in Calles. See Calles,
224 Ill. 2d at 260 (listing appellate court decisions, including Mele,
Besse, and Wortel, that had followed the “so called ‘simple product’
exception” of Scoby). Nevertheless, defendants point to the appellate
court’s efforts in Mele and Besse to fashion an “integrated test” for
design defect, combining the consumer-expectation test and the risk-
utility test.
In Besse, the defendant appealed from a judgment of strict
liability due to defective design of a cornpicker, arguing that the
elements of unreasonable dangerousness and proximate causation
were not proven. Besse, 237 Ill. App. 3d at 499. The plaintiff
presented evidence that the loss of her leg could have been prevented
with a simple design modification that would not have hindered the
machine’s function and that the necessary technology was available
to the defendant when the machine was manufactured. Besse, 237 Ill.
App. 3d at 501. The defendant argued on appeal that the machine
operated exactly as it was designed to operate and, therefore, it could
not be found unreasonably dangerous under the consumer-expectation
test. Besse, 237 Ill. App. 3d at 500. The appellate court noted that the
“narrow test” set out in comment i to section 402A of the
Restatement (Second) of Torts (1965) is not a complete statement of
the law in Illinois. Rather, the court observed, “a broader definition
of ‘unreasonably dangerous’ is available to the products liability
plaintiff,” and this broader definition “embraces both the ‘consumer
expectation’ test and a ‘risk/utility analysis’ test.” Besse, 237 Ill. App.
3d at 500. The two tests, according to the Besse court, are “not
mutually exclusive.” Besse, 237 Ill. App. 3d at 501. The evidence
presented in Besse “presented a factual question of whether the
-27-
product was unreasonably dangerous when analyzed under the
integrated consumer expectation test and risk/benefit analysis test,”
and the jury found this “integrated” test met by the plaintiff’s
evidence. Besse, 237 Ill. App. 3d at 501.
No issue was raised in Besse regarding jury instructions.
However, despite its misplaced reliance on Scoby (Besse, 237 Ill.
App. 3d at 501-02), we agree with the Besse court that the two tests
are not mutually exclusive and may be applied together if the
evidence supports it.
In Mele, the manufacturer of a medical device implanted in a
patient as part of a hip replacement procedure was held strictly liable
on a theory of defective design. The plaintiff utilized the consumer-
expectation method of proof, arguing to the jury that the device “did
not perform as safely as an ordinary implantee would expect.” The
plaintiff objected, successfully, to the defendant’s attempt “to show
that the benefits of the product outweighed its risks.” Mele, 348 Ill.
App. 3d at 8.
The appellate court noted that to “show that a product is
unreasonably dangerous due to a defective design, a plaintiff must
present evidence that the design includes ‘a defect which subjects
those exposed to the product to an unreasonable risk of harm.’ ”
(Emphasis omitted.) Mele, 348 Ill. App. 3d at 13, quoting Hunt v.
Blasius, 74 Ill. 2d 203, 211 (1978). A plaintiff may make this
showing in either of two ways: consumer expectation or risk utility.
Mele, 348 Ill. App. 3d at 14. The defendant urged the court to adopt
section 6(c) of the Products Liability Restatement, which would apply
a risk-utility test to strict liability claims involving prescription drugs
or medical devices. Mele, 348 Ill. App. 3d at 15-16. The court
rejected this suggestion because adoption of section 6(c) would
“completely eliminate[ ] appraisal of the consumer’s expectations
from determination of whether a medical device is unreasonably
dangerous.” The section, therefore, “conflicts with Illinois law.”
Mele, 348 Ill. App. 3d at 16.
The Mele court next considered the defendant’s argument that the
trial court erred by excluding all evidence of the risks and benefits of
the device. The trial court found this evidence irrelevant because the
plaintiff “sought to prove only that defendant’s product failed to meet
the ordinary consumer’s expectations for the safety of the product”
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and specifically decided not to seek to prove the design “unreasonably
dangerous by showing its risks outweighed its benefits.” Mele, 348
Ill. App. 3d at 17. The court noted that there was “no Illinois authority
on the issue of whether a defendant may present evidence that the
benefits of a product’s design outweigh its risks when a plaintiff
argues that the product is unreasonably dangerous because it fails to
meet ordinary consumer expectations for its safety.” Mele, 348 Ill.
App. 3d at 17. After exploring the evolution of the two tests, the court
cited Besse for the proposition that when a plaintiff alleges a design
defect in a complex product, the product’s danger should be evaluated
“using a test that incorporates both the ordinary consumer’s
expectations and the risks and benefits of the product.” Mele, 348 Ill.
App. 3d at 19. After further discussion related to medical devices in
particular, the Mele court concluded that the trial court erred by
excluding evidence of the risks and benefits of the hip replacement
device. The evidence contained in defendant’s offer of proof could
have shown “that the product was not unreasonably dangerous under
the integrated test recommended in Besse.” Mele, 348 Ill. App. 3d at
20. The appellate court, therefore, reversed the judgment of the trial
court and remanded for retrial. Mele, 348 Ill. App. 3d at 20-21.
No issue was raised in Mele regarding jury instructions. However,
Mele does suggest that even when a plaintiff chooses to proceed
under the consumer-expectation test, she cannot dictate the
defendant’s method of proving its case by preventing the admission
of evidence relevant to the risk-utility analysis. We agree with Mele
in this regard.
In the present case, both parties presented evidence relevant to the
risk-utility inquiry, so the question is whether, having argued that the
risk-utility evidence favors its position, defendant is entitled to have
the jury specifically instructed on the test. We conclude that this
question is resolved by examining the scope of each inquiry.
The consumer-expectation test is a single-factor test and,
therefore, narrow in scope. See Besse, 237 Ill. App. 3d at 500
(describing the consumer-expectation test as “narrow”). The jury is
asked to make a single determination: whether the product is unsafe
when put to a use that is reasonably foreseeable considering its nature
and function. IPI Civil (2006) No. 400.06. No evidence of ordinary
consumer expectations is required, because the members of the jury
-29-
may rely on their own experiences to determine what an ordinary
consumer would expect. Mele, 348 Ill. App. 3d at 14.
The risk-utility test, in contrast, is a multifactor analysis and,
therefore, much broader in scope. Under an “integrated” test, as
envisioned by the Mele and Besse courts, consumer expectations are
but one of the factors to be considered. Mele, 348 Ill. App. 3d at 20;
Besse, 237 Ill. App. 3d at 501.
Although we have declined to adopt section 2 of the Products
Liability Restatement as a statement of substantive law, we do find its
formulation of the risk-utility test to be instructive. Under section
2(b), the risk-utility balance is to be determined based on
consideration of a “broad range of factors,” including “the magnitude
and probability of the foreseeable risks of harm, the instructions and
warnings accompanying the product, and the nature and strength of
consumer expectations regarding the product, including expectations
arising from product portrayal and marketing,” as well as “the likely
effects of the alternative design on production costs; the effects of the
alternative design on product longevity, maintenance, repair, and
esthetics; and the range of consumer choice among products.”
(Emphasis added.) Restatement (Third) of Torts: Products Liability
§2, Comment f, at 23 (1998).
This formulation of the risk-utility test is an “integrated” test of
the kind envisioned by the appellate court in Mele and Besse. Under
this formulation, consumer expectations are included within the scope
of the broader risk-utility test. In addition, the test refines the
consumer-expectation factor by specifically allowing for advertising
and marketing messages to be used to assess consumer expectations.
We adopt this formulation of the risk-utility test and hold that
when the evidence presented by either or both parties supports the
application of this integrated test, an appropriate instruction is to be
given at the request of either party. If, however, both parties’ theories
of the case are framed entirely in terms of consumer expectations,
including those based on advertising and marketing messages, and/or
whether the product was being put to a reasonably foreseeable use at
the time of the injury, the jury should be instructed only on the
consumer-expectation test.
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Adoption of this integrated test resolves the question of whether
the answer to the risk-utility test “trumps” the answer to the
consumer-expectation test because the latter is incorporated into the
former and is but one factor among many for the jury to consider.
This is consistent with our conclusion in Calles that while a plaintiff
might not prevail under the single-factor test, she might still prevail
under the multifactor test. See Calles, 224 Ill. 2d at 256.
In sum, we hold that both the consumer-expectation test and the
risk-utility test continue to have their place in our law of strict product
liability based on design defect. Each party is entitled to choose its
own method of proof, to present relevant evidence, and to request a
corresponding jury instruction. If the evidence is sufficient to
implicate the risk-utility test, the broader test, which incorporates the
factor of consumer expectations, is to be applied by the finder of fact.
In the present case, the occupant of the car seat was killed when
the car was struck from behind. Rear-end collisions are reasonably
foreseeable and the ordinary consumer would likely expect that a seat
would not collapse rearward in such an accident, allowing the
occupant to sustain massive head injury. Thus, the jury concluded that
the car seat was unreasonably dangerous because it proved “unsafe
when put to a use that is reasonably foreseeable considering the
nature and function of the product.” See IPI Civil (2006) No. 400.06.
If the evidence presented was sufficient to require the jury to engage
in risk-utility analysis, this conclusion as to consumer expectations
would be properly considered as one factor in the broader, integrated
risk-utility analysis.
(4)
In Kerns, the plaintiff lost an eye when he was struck by a wire
that was part of the power takeoff assembly of a forage blower.
Kerns, 76 Ill. 2d at 159. He presented evidence of an alternative
design. Kerns, 76 Ill. 2d at 164. This court held that the trial court
properly gave the defendant’s nonpattern instruction on feasibility,
over the plaintiff’s objection. Kerns, 76 Ill. 2d at 164.
A familiar treatise cites Kerns for the following proposition:
“In a products liability action for injuries caused by a
defective product, the instructions must state correctly the
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legal principles applicable to the case. The instructions should
state the correct issues and should be supported by the
evidence.” 30A Ill. L. & Prac. Products Liability §91,
Instructions, at 146-47 (1994).
We must next consider whether the trial court erred by refusing
to give the nonpattern instruction tendered by the defendants. This
requires us to determine: (a) if defendants’ tendered nonpattern
instructions were adequate to preserve the jury instruction issue for
review on appeal, (b) if the evidence was sufficient to support the
giving of an instruction on the risk-utility test, and (c) if these criteria
are met, whether the trial court’s refusal to instruct the jury on the
risk-utility test is error requiring a new trial.
(a)
A party forfeits the right to challenge a jury instruction that was
given at trial unless it makes a timely and specific objection to the
instruction and tenders an alternative, remedial instruction to the trial
court. Deal v. Byford, 127 Ill. 2d 192, 202-03 (1989). These
requirements ensure that the trial court has the opportunity to correct
a defective instruction and to prevent the challenging party from
gaining an unfair advantage by failing to act when the trial court
could remedy the faulty instruction and then obtaining a reversal on
appeal. Morus v. Kapusta, 339 Ill. App. 3d 483, 489 (2003).
Thus, in Morus, the defendant was found not to have forfeited his
right to challenge a jury instruction on damages for reduced life
expectancy because the instruction had been “a central topic of debate
among the parties and the trial court at several junctures,” the
defendant specifically objected to the instruction, and the defendant
“also submitted an instruction to the court on this issue.” The
appellate court, therefore, found the jury instruction issue preserved
for review. Morus, 339 Ill. App. 3d at 489-90.
In the present case, defendants objected to plaintiff’s version of
IPI Civil No. 400.06, which was given by the trial court:
“When I use the expression ‘unreasonably dangerous’ in
these instructions, I mean unsafe when put to a use that is
reasonably foreseeable considering the nature and function of
the car.”
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This instruction is generally considered to express the consumer-
expectation test because it does not call upon the jury to use anything
outside its own experience to determine whether the product is
defective because it is unsafe when used in a reasonably foreseeable
manner.
Defendants’ tendered nonpattern instructions numbers 17 and 29
were refused:
“A product is defective in its design when the foreseeable
risks of harm posed by the product outweigh the benefits of
the design and the risks can be avoided or reduced by the
adoption of alternative feasible design. Feasible alternative
designs must be available at the time that the product left the
control of the defendant.
Feasibility includes not only elements of economy,
effectiveness, and practicality, but also technological
possibilities under the state of the manufacturing art at the
time the product was produced.”
“When evaluating the reasonableness of a design
alternative, the overall safety of the product must be
considered. It is not sufficient that the alternative design
would have reduced or prevented the harm suffered by the
plaintiff if it would also have introduced into the product
other dangers of equal or greater magnitude. A product’s
design may be reasonably safe even if the product is not
accident proof.”
Defendants note that despite this court’s recognition of the risk-
utility test in Lamkin, Blue, and Calles, no corresponding pattern
instruction has been developed. Thus, they argue, current pattern
instructions no longer reflect Illinois law and a nonpattern instruction
is necessary when the jury is required to assess the risk-utility of a
product. Defendants support their tendered nonpattern instructions by
citation to Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)
(“Whenever IPI does not contain an instruction on a subject on which
the court determines that the jury should be instructed, the instruction
given in that subject should be simple, brief, impartial, and free from
argument”)), Lamkin and its progeny, and to the Products Liability
Restatement. See also Gordon v. Chicago Transit Authority, 128 Ill.
-33-
App. 3d 493, 501 (1984) (nonpattern instructions are permitted where
the case presents a unique factual situation or point of law not
addressed by the IPI and which requires clarification or
amplification).
Plaintiff responds that defendants’ nonpattern instructions are not
an accurate statement of the law and, therefore, did not meet the
threshold requirement of having tendered an alternative instruction
that correctly states the legal principles applicable to the case.
Specifically, plaintiff asserts that none of the “concepts” contained in
the nonpattern instructions are part of the plaintiff’s burden of proof
in a product liability case. Plaintiff also argues that the nonpattern
instruction is confusing.
Plaintiff is correct that a product liability plaintiff is not required
to utilize the risk-utility method of proof and does not have a
“burden” of proving the existence of a feasible alternative design. She
does, however, have the burden of proving that the product is
unreasonably dangerous due to a design defect. If, however, a product
liability defendant introduces evidence that no feasible alternative
design exists or that the design offers benefits that might outweigh its
risks, the plaintiff who does not rebut such evidence with evidence of
her own runs the risk that the trier of fact may resolve the issue
against her. Given our fact-pleading rule (Iseberg v. Gross, 227 Ill. 2d
78, 87 (2007)), discovery procedures, and rules requiring the
disclosure of witnesses (735 ILCS 5/2–1003 (West 2006); 210 Ill. 2d
R. 201)), it should not come as a surprise to any product liability
plaintiff that the defendant intends to utilize the risk-utility method of
proof and to seek a corresponding jury instruction.
Our review of the record reveals that the risk-utility test was a
central topic of debate among the parties, the defendants specifically
objected to plaintiff’s instruction on the consumer-expectation test,
and the defendants submitted a nonpattern instruction on the risk-
utility test. The tendered nonpattern instructions would not have
placed a burden on the plaintiff to prove the existence of a feasible
alternative design. In addition, plaintiff herself used evidence relevant
to the risk-utility inquiry in her case in chief to bolster her consumer-
expectation argument. She cannot have been surprised that defendants
responded with evidence relevant to the risk-utility inquiry, argued to
the jury that the benefits of the seat’s design outweighed its risks, and
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sought an instruction that would have directed the jury’s attention to
this inquiry. Further, we are not persuaded by plaintiff’s argument
that the tendered nonpattern instruction is so flawed or confusing that
it did not meet the standard set out in Deal. Defendants, therefore,
have properly preserved for appeal the question of whether the
evidence presented was sufficient to entitle them to have the jury
instructed on the risk-utility test.
(b)
Each party has the right to have the jury clearly and fully
instructed on any relevant theory of the case that is supported by the
evidence. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83,
100 (1995). Thus, the second question that must be addressed in this
section is whether the risk-utility test was sufficiently implicated by
the evidence presented during the 2½-week trial that it would have
been proper to give such an instruction. See Heastie, 226 Ill. 2d at
543 (“[a]ll that is required to justify the giving of an instruction is that
there be some evidence in the record to justify the theory of the
instruction”). This is a question that is readily answered by this
court’s review of the record. See 374 Ill. App. 3d at 650-53 (appellate
court’s summary of the testimony at trial).
Defendants argue that the question of risk utility was raised by the
evidence presented by both parties, specifically by the expert
testimony regarding the feasibility of other seat designs, the results of
crash tests, the commercial availability of cars with alternative seat
designs at the time the Escort was manufactured, the risks posed by
rigid seats, and the circumstances in which a yielding seat would be
safer than a rigid seat. This evidence, defendants assert, was sufficient
to justify a jury instruction on the risk-utility test.
Plaintiff does not deny that the evidence was sufficient to meet
this rather low threshold, but argues that it is her choice, as plaintiff,
whether to proceed under the “consumer-expectation theory” or the
“risk-utility theory” of design defect.
As noted above, plaintiff has chosen her theory of liability (design
defect) and her method of proof (consumer expectation). She may not
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choose defendants’ theory of defense (absence of design defect, lack
of proximate cause) or their method of proof (risk utility).
We conclude, based on our review of the record, that sufficient
evidence was presented at trial to raise an issue regarding the risk
versus the utility of the CT20 seat design and to justify a
corresponding jury instruction.
(c)
Having established that the tendered nonpattern instruction was
adequate to preserve defendants’ jury instruction issue for appeal and
that the evidence presented at trial was sufficient to justify the giving
of an instruction on the risk-utility test, the question remains whether
the trial court erred by refusing the tendered instruction.
Plaintiff correctly notes that the standard of review on this issue
is abuse of discretion. Dillon, 199 Ill. 2d at 505. Defendants
acknowledge that the trial court has discretion in instructing the jury,
but assert that refusal to instruct the jury on a theory supported by the
evidence, when that refusal prejudices the requesting party’s right to
a fair trial, is an abuse of discretion (citing McCarthy, 355 Ill. App.
3d at 970). This prejudice-based formulation of the abuse of
discretion standard is not one that this court has had occasion to use,
although the standard has often been expressed in these terms by the
appellate court. See, e.g., Smith v. Marvin, 377 Ill. App. 3d 562, 567
(2007); Frigo v. Silver Cross Hospital & Medical Center, 377 Ill.
App. 3d 43, 77 (2007); Barth v. State Farm Fire & Casualty Co., 371
Ill. App. 3d 498, 504 (2007); Schmidt v. Ameritech Illinois, 329 Ill.
App. 3d 1020, 1031 (2002).
We agree with the cited cases that when a party tenders a jury
instruction that states the legal principles applicable to the case and
that instruction is supported by the evidence, it is an abuse of
discretion to refuse to give the instruction if the refusal prejudices the
party’s right to a fair trial.
On the merits, defendants claim the evidence showed that the
designers of the CT20 seat had to take into account all of the various
types of possible collisions (front-end, rear-end, side, rollover) that
could occur at a wide range of speeds, and with occupants of different
sizes, who may or may not be properly using their seatbelts,
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positioned at various seats in the vehicle. This “complex set of
considerations,” defendants assert, is not amenable to consumer-
expectation analysis. As a result, they tendered the nonpattern
instruction to focus the jury’s inquiry on the evidence regarding the
availability of feasible alternative designs, the risk posed by the CT20
seat, and the benefits of the CT20 design. If the court had given the
tendered nonpattern risk-utility instruction instead of the pattern
instruction, defendants posit, the jury would have been directed to
weigh this evidence, including expert testimony that the yielding seat
that caused James’s death might nevertheless have been a safer
alternative for other drivers in other types of collisions. Defendants
also point to testimony by one of their own experts that the yielding
driver’s seat may have prevented fatal or more serious injury to the
backseat passenger even while causing more serious injury to James.
Defendants claim that they were prejudiced by the refusal of their
instruction because the jurors were given no guidance as to how they
were to assess the evidence and no instruction that directed them to
balance risks and benefits. As a result, defendants argue, the jury’s
deliberations were “untethered to any rule of law.” Under IPI Civil
(2006) No. 400.06 as given, the jurors were merely asked to
determine whether the seat was unsafe when used in a reasonably
foreseeable manner, such as being stopped at a red light. Defendants
posit that any jury would be likely to find the seat unreasonably
dangerous under this standard, because the accident was fatal and
because they were not specifically instructed to give due
consideration to the evidence of benefits, risks, and alternative
designs. As a result, the jury may have done “rough justice” based on
their sympathy for the tragic death of a young husband and father,
without considering, for example, the evidence that 99.6% of the cars
on the road at that time were equipped with yielding seats.
Plaintiff responds that she tendered the applicable pattern
instructions in total compliance with Supreme Court Rule 239 and
that no case of this court has ever held that an additional instruction
setting out the risk-utility test is required. She relies on Carrillo v.
Ford Motor Co., 325 Ill. App. 3d 955 (2001), to argue that the trial
court did not abuse its discretion.
Carrillo involved the same mechanism of injury as the present
case (a rear-end collision in which the driver of a Ford vehicle was
-37-
killed or injured when the car seat collapsed on impact), and the same
theory of liability (product liability due to design defect). The same
judge who presided in the present case gave the same jury
instructions. (The jury instructions that were given in Carrillo were
provided to the trial court in the present case and are part of the
record.) The trial testimony in the two cases was similar, including
testimony by some of the same expert witnesses for both sides. See
374 Ill. App. 3d at 650-53; Carrillo, 325 Ill. App. 3d at 958-63. The
Carrillo jury returned a verdict for the plaintiff and this judgment was
affirmed on appeal.
Ford argued on appeal that the trial court erred by refusing to give
the following instruction, based on IPI Civil (2000) No. 400.07:
“ ‘It is the duty of an automobile manufacturer to furnish
a product which is in a reasonably safe condition when put to
a use that was reasonably foreseeable considering its nature
and intended function.’ ” Carrillo, 325 Ill. App. 3d at 963-64,
quoting IPI Civil (2000) No. 400.07.
The appellate court affirmed, for several reasons. First, the
rejected instruction uses the expression “reasonably safe,” which
suggests that the jury is to determine whether the product’s design is
“not reasonably safe.” The court noted that this court had previously
rejected the suggestion that this element of a strict liability claim
should be expressed as “not reasonably safe” instead of
“unreasonably dangerous.” Carrillo, 325 Ill. App. 3d at 964, citing
Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill. 2d 339, 343 (1969)
(the test is whether the product is “unreasonably dangerous,” even
though the expression “not reasonably safe” might be “[s]omewhat
preferable”). Further, the expression “not reasonably safe” is
inconsistent with IPI Civil (2000) No. 400.06 and the comments
thereto. IPI Civil (2000) No. 400.06, Comment, at 620.
Second, the appellate court found no Illinois decision, either from
this court or the appellate court, that requires IPI Civil (2000) No.
400.07 to be given in design defect cases.
Third, IPI Civil (2000) No. 400.07 contains the word “duty,”
which, the appellate court suggested, should be avoided in strict
liability instructions because it tends to blur the distinction between
strict liability and negligence. The appellate court noted the absence
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of comments to this instruction, thus giving trial courts no guidance
as to when it should be used. Carrillo, 325 Ill. App. 3d at 965.
(Partially in response to the concerns raised in Carrillo, the 2006
edition of the IPI Civil has replaced instruction 400.07 with a notation
that “The Committee recommends that no instruction concerning the
duty of strict product liability defendants be given, except in cases
where [instructions regarding the duty to warn] are applicable.” IPI
Civil (2006) No. 400.07A.)
The Carrillo court held that IPI Civil (2000) No. 400.06 fully,
fairly and comprehensively informed the jury of all the relevant legal
principles. Carrillo, 325 Ill. App. 3d at 966.
Plaintiff’s position is that if IPI Civil (2000) No. 400.06, standing
alone, was a full, fair and comprehensive instruction in Carrillo,
where the three-week trial included the same sort of evidence that
was given in the present case, then it must also have been a full, fair,
and comprehensive instruction in the present case. She insists that the
trial court’s hands were tied by Carrillo, because if the trial court had
given the requested nonpattern instructions, it would have been acting
inconsistently with applicable precedent and that, itself, would have
been error.
We do not find Carrillo to be helpful. The nonpattern instruction
tendered by defendants in the present case suffers from none of the
infirmities affecting IPI Civil (2000) No. 400.07. In addition, the
issue in Carrillo (whether a flawed pattern instruction should have
been given) is not the same as whether a nonpattern instruction that
states an applicable principle of law that has been implicated by the
evidence should have been given.
We find our decision in Dillon instructive. Dillon involved a
medical malpractice claim against a physician, a hospital, and other
defendants. When an intravenous catheter was removed from the
plaintiff/patient, a nine-centimeter fragment of the catheter remained
in her vein. It subsequently migrated to her heart, where the tip of the
fragment became embedded in the heart wall. Removal of the
fragment would have been more dangerous than leaving it in place.
The jury returned a verdict for the plaintiff. Included in the damages
award was $500,000 for the increased risk of future injuries that
might result from leaving the catheter fragment in place. Dillon, 199
Ill. 2d at 487-89.
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The physician and the hospital argued on appeal that the trial
court erred by giving a modified pattern jury instruction. Specifically,
the trial court, at plaintiff’s request, added a sentence to the pattern
instruction that directed the jury to take into consideration the
“increased risk of future injuries” when calculating the amount of
damages. Dillon, 199 Ill. 2d at 497.
As in the present case, the debate over the jury instruction issue
reflected a larger debate over the applicable law. Prior to Dillon, this
court had rejected the risk of future injury as an element of damages.
Dillon, 199 Ill. 2d at 497-98. After a careful analysis of the history of
this rule, the case law from Illinois and elsewhere, the scholarly
literature, the split of authority in our appellate court, and policy
(Dillon, 199 Ill. 2d at 497-504), we held that “a plaintiff must be
permitted to recover for all demonstrated injuries,” including the risk
of future injury. (Emphasis in original.) Dillon, 199 Ill. 2d at 504. We
explained that the burden was on the plaintiff to quantify the degree
of risk and that amount of compensation must reflect the probability
of the occurrence of future injury. Dillon, 199 Ill. 2d at 504.
We then turned to the issue of jury instructions. At that time, there
was no pattern jury instruction on the increased risk of future injury
as an element of damages. Because the pattern jury instructions were
inadequate, an additional instruction was appropriate. Dillon, 199 Ill.
2d at 505. The instruction that was given, however, failed to fully and
fairly convey the newly adopted principle of law. Dillon, 199 Ill. 2d
at 506. The instruction merely told the jury to consider the “increased
risk of future injuries”; it did not convey the principle that the jury
should consider the degree of risk of that future harm occurring and
adjust the damages amount proportionally to the degree of the risk.
Dillon, 199 Ill. 2d at 506-07.
In Dillon, a pattern jury instruction regarding damages was
modified at plaintiff’s request. The jury found the defendants liable
and awarded damages. Having “definitively spoken” to a disputed
question of law, we determined that a retrial on the damages issue, “in
which a jury may apply the correct legal principles to the submitted
evidence, is appropriate,” because the jury “was inadequately
instructed.” Dillon, 199 Ill. 2d at 507-08.
In the present case, a nonpattern jury instruction was refused
because the trial court determined that the risk-utility test did not
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apply. The jury found defendants liable. We have definitively spoken
to the questions of the applicability of the risk-utility test and its
relationship to the consumer-expectation test. A retrial is required
because the jury was inadequately instructed and was, therefore,
unable to apply the correct legal principles to the submitted evidence.
We conclude that defendants were prejudiced by the failure to
give an instruction that would have caused the jury to apply the risk-
utility test in addition to the consumer-expectation test. Although
defendants were not prevented from introducing evidence regarding
the risks and benefits of the alternative designs that were feasible at
the time, and were not prevented from arguing to the jury that, on
balance, the CT20 seat was not “unreasonably dangerous” because it
prevented more injuries than it caused, the jury was specifically
instructed to focus its deliberations solely on whether the seat was
unsafe when put to a reasonably foreseeable use. The lack of a risk-
utility instruction, combined with the use of IPI Civil (2000) No.
400.06, prejudiced defendants’ ability to obtain a full, fair, and
comprehensive review of the issues by the jury. We, therefore, hold
that the trial court’s refusal to give the tendered instruction was an
abuse of discretion.
We note that this decision does not preclude a plaintiff in a design
defect case from proving her case using the consumer-expectation
test. Indeed, both parties may litigate an entire case using the
consumer-expectation test if, for example, the dispositive issue is
whether the manner in which the product was used was reasonably
foreseeable. Our holding does mean that if either or both of the
parties in a strict liability design defect case utilize risk-utility
evidence as their method of proof, a corresponding jury instruction
must be given if requested.
(5)
Given our conclusion that the judgment must be vacated and the
matter remanded for a new trial, it is not necessary for us to address
the question of whether the award for loss of society was excessive.
CONCLUSION
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In sum, we hold that both the consumer-expectation test and the
risk-utility test may be utilized in a strict liability design defect case
to prove that the product is “unreasonably dangerous.” Whether an
instruction is required on either test or both tests will depend on the
issues raised in the pleadings and the evidence presented at trial.
When both tests are employed, consumer expectation is to be treated
as one factor in the multifactor risk-utility analysis.
Because the trial court abused its discretion by refusing the
tendered nonpattern instructions, the judgment of the appellate court,
which affirmed in part and reversed in part the judgment of the circuit
court, is reversed, the judgment of the circuit court is reversed, and
the cause is remanded to the circuit court for a new trial.
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
JUSTICE KILBRIDE took no part in the consideration or
decision of this case.
CHIEF JUSTICE FITZGERALD, concurring in part and
dissenting in part:
While I agree with the majority opinion in parts (1), (2), and
(4)(a) and (b), I depart from the majority’s conclusion in sections (3)
and (4)(c), particularly to the extent that it can be read to approve
defendants’ tendered non-IPI instructions. Because I am not
persuaded that defendants’ non-IPI instructions were superior to
plaintiff’s approved IPI instructions in guiding the jury’s
consideration of the issues in this case, I do not believe the trial court
abused its discretion. Instead, I believe the IPI instructions–along with
the arguments of counsel based upon the evidence
presented–provided an adequate framework to allow the members of
the jury to reach the ultimate issue. Therefore, I depart from the
majority because I cannot find that the jury was clearly misled or that
the defendant was prejudiced. My basis for that opinion rests largely
upon matters in the record not addressed by the majority’s opinion,
namely, the arguments of counsel and the faultiness of defendants’
instructions.
As required by Illinois Pattern Jury Instructions, Civil, No. 400.06
(2006), the trial court gave the jury an instruction requiring it to find
in favor of plaintiffs on a strict liability theory if, inter alia, the seat
was “unreasonably dangerous” in the sense that it was “unsafe when
put to a use that is reasonably foreseeable considering the nature and
function” of the seat. IPI Civil (2006) No. 400.06. In contrast, Ford’s
issues and burden instructions submitted to the court stated that the
issue was whether “the design defect made the Escort unreasonably
dangerous” and that “on balance the benefits of the 1996 Escort’s
front seat design outweigh the risks of danger inherent in the design.”
Defendants’ definition instruction No. 27 stated, in part,
“[A] product is defective in design when the foreseeable risks
of harm posed by the product outweigh the benefits of the
design and the risks can be reduced or avoided by the
adoption of an alternative feasible design. Feasibility includes
not only elements of economy, effectiveness and practicality,
but also technological possibilities under the state of
manufacturing art at the time the product was produced.”
Defendants’ definition instruction No. 28 stated,
“[W]hen evaluating the reasonableness of a design
alternative, the overall safety of the product must be
considered. It is not sufficient that the alternative design
would have reduced or prevented the harm suffered by the
plaintiff if it would also have introduced into the product
other dangers of equal or greater magnitude. A product’s
design may be reasonably safe even if the product is not
accident proof.”
Both plaintiff’s and defendants’ instructions must be evaluated to
determine whether the trial court abused its discretion.
Illinois Supreme Court Rule 239(a) governs the choosing of
instructions and provides that the court should consider the facts and
law and “shall” use the IPI unless it determines that it does not
accurately state the law. 177 Ill. 2d R. 239(a). A reviewing court will
reverse a trial court’s determination about which instruction to give
upon an abuse of discretion. Schultz v. Northeast Illinois Regional
Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002). We will examine
the jury instructions in their entirety, to determine whether they fairly,
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fully and comprehensively informed the jury of the relevant law.
Schultz, 201 Ill. 2d at 273-74. Ordinarily, we will not reverse a trial
court, even if the trial court gave faulty instructions, unless the
instructions clearly misled the jury and resulted in prejudice to the
appellant. Schultz, 201 Ill. 2d at 274; Dillon v. Evanston Hospital,
199 Ill. 2d 483, 507 (2002).
Our jurisprudence recognizes counsel has some role to play in
helping the jury to understand the instructions given by the judge. As
is stated in the foreward to the first edition of the Illinois Pattern Jury
Instructions, Civil, “on many occasions when the Committee has
rejected an instruction it has felt not so much that the point ought not
to be told to the jury, but rather it should be told to the jury by counsel
rather than by the Court.” (Emphasis in original.) See IPI Civil
(2006), at xxii (foreward to the first edition). This court echoed that
idea in Schultz v. Northeast Illinois Regional Commuter R.R. Corp.,
201 Ill. 2d 260 (2002). In Schultz, the court concluded that the trial
court erred in giving an IPI instruction. Schultz, 201 Ill. 2d at 281.
Nevertheless, the court held that the trial court’s failure to properly
instruct the jury was not reversible error and noted the appellate
court’s judgment may be affirmed on any basis in the record. Schultz,
201 Ill. 2d at 281. We found that it was not clear from the record that
the jury was misled by the error. Schultz, 201 Ill. 2d at 281. We noted
that the trial court allowed defense counsel to discuss in closing
argument evidence regarding defendant’s rejected instruction, and
noted that defense counsel did so, emphasizing that evidence in the
framework of the instructions given by the court. Schultz, 201 Ill. 2d
at 282.
This idea that the arguments can supplement the jury instruction
is also found in Carrillo v. Ford Motor Co., 325 Ill. App. 3d 955
(2001). As the majority notes, the Carrillo case involves nearly
identical facts, the same lawyers, trial judge, and experts as the instant
matter. More importantly, the instructions against Ford were identical
in both trials: the court gave plaintiff’s tendered IPI instruction nos.
400.01, 400.02 and 400.06 and refused to give defendant’s
instruction, IPI Civil No. 400.07. 325 Ill. App. 3d at 963-64. The
court noted, however, that defense counsel’s arguments were
sufficient when it stated “IPI Civil (2000) No. 400.06 told the jury a
product is unreasonably dangerous only when put to a use that is
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reasonably foreseeable. [Citation.] Ford was free to argue and did
argue that Lydia’s accident was of a rare type. Both sides presented
lengthy and conflicting testimony from a long list of experts. The jury
made its decision.” (Emphasis added.) Carrillo, 325 Ill. App. 3d at
965-66. Therefore, following Carrillo, the foreward to the first
edition of the Illinois Pattern Jury Instructions, and Schultz, I find IPI
Civil (2006) No. 400.06 can provide an adequate framework to
deliver the appropriate legal guidance to the jury if counsel was
permitted to make arguments pertaining to the rejected instruction.
Looking at the record, it is clear that counsel emphasized the
risks and benefits of the CT20 seat. The majority recounted the
extensive evidence submitted to the jury regarding the benefits and
dangers of the CT20 seat, as well as Timberlake’s role in the accident.
The defense counsel was free to argue, and did argue extensively, that
the “balance” of the risks of an alternate seat design outweighed the
benefits such that the CT20 seat was not “unreasonably dangerous.”
I note also that defense counsel devoted some argument on the
proximate cause issue to Timberlake’s role as the potential sole
proximate cause of the accident, as a drunk driver of a Cadillac
speeding at 60 miles per hour into the back of a standing Ford Escort.
Based upon the use of IPI Civil (2006) Nos. 400.01, 400.02 and
400.06 and arguments from counsel, there is no indication that the
jury was clearly misled and that defendants were prejudiced. Schultz,
201 Ill. 2d at 274. The general instruction contains nothing which
would prevent the jury from considering the defense experts’
testimony that a different seat design would have introduced a host of
dangers. Certainly, if the jurors had credited the defense experts and
discredited the plaintiff’s experts, the jury had the proper legal
framework to find that seat was allowably dangerous–dangerous to
some consumers like Mikolaczyck perhaps–but not unreasonably
dangerous considering the nature and function of the seat in relation
to all possible accidents that could occur.
Further, there is no indication that the jury could not make some
form of a risk/benefit analysis in coming to its decision. That
determination is not beyond the ken of the jury given adequate expert
testimony. Indeed, it would be difficult to find that a jury conducted
an adequate reasonableness analysis without simultaneously
conducting a risk/benefit analysis. The jury could have concluded that
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the risks of the current seat to James Mikolajczyck’s life were not
outweighed by the benefits of some other hypothetical lives that
would have been saved. Whether it performed that balance correctly
is beyond the purview of this opinion as it relates to a manifest weight
of the evidence argument, which was not raised by the defense
counsel before the appellate court or this court.
Turning to defendants’ instructions, I believe that the trial court
correctly rejected the non-IPI instructions. First, read as a whole, the
conspicuous problem with the defendants’ instructions is that they
deny plaintiff her chosen method of proof: consumer expectations.
Rather, it appears the defendants’ strategy was the adoption of the
risk-utility test as the sole test for products liability. In fact, defendant
appears to have admitted as much to the appellate court (see 369 Ill.
App. 3d 78, 87) and contains no argument before this court that the
consumer expectations test should be retained. There was no basis in
precedent for the trial court to force plaintiff to abandon her choice of
the consumer expectations test.
I note also that defendants’ instruction departs from the majority’s
possible formulation of the risk utility test (see slip op. at 30), which
includes “ ‘the nature and strength of consumer expectations
regarding the product, including expectations arising from product
portrayal and marketing.’ ” (Emphasis omitted.) Slip op. at 30,
quoting Restatement (Third) of Torts: Products Liability §2,
Comment f, at 23 (1998). I agree with the majority that the “consumer
expectation” test should not be abandoned. But I also note that the
Third Restatement does not itself propose a jury instruction.
Restatement (Third) of Torts: Products Liability §2, Comment f, at 25
(“This Restatement takes no position regarding the specifics of how
a jury should be instructed. So long as jury instructions are generally
consistent with the rule of law set forth in Subsection (b), their
specific form and content are matters of local law”); Comment f,
Illustration 6, at 25 (1998) (“Whether instructions to the trier of fact
should include specific reference to these factors is beyond the scope
of this Restatement and should be determined under local law”)
(1998).
Next, defendants’ instructions contain an inaccurate statement of
the law in their burden shifting language in instruction 19. The
relevant portion of that instruction provides: “If you find from your
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consideration of all the evidence that each of these propositions has
been proved, then the burden shifts to Ford/Mazda to prove that on
balance the benefits of the 1996 Escort’s front seat design outweigh
the risks inherent in the design.” The burden of proof does not shift
to Ford/Mazda. Rather, the ultimate burden remains with the plaintiff
to prove that the car seat was unreasonably dangerous. The majority
notes that no decision of this court has ever expressly adopted this
burden-shifting formulation, and rejects that position in its opinion.
Slip op. at 14-15.
Defendants’ non-IPI instruction No. 28 was also problematic in
that it, inter alia, provided “a product’s design may be reasonably
safe even if the product is not accident proof.” I note that this
language–“reasonably safe”–has not been approved in Illinois
precedent, and the majority has rejected it for lack of clarity. Slip op.
at 22 (noting that the phrase “ ‘not reasonably safe’ might be
interchangeable with ‘unreasonably dangerous,’ but that the
‘Restatement, and Suvada and all its progeny, furnish persuasive
authority that the jury should be instructed that it is the “unreasonably
dangerous” condition of the product which leads to liability’ ”),
quoting IPI Civil (2006) No. 400.01, Comment, at 553. As the
majority notes, this language amounts to adoption of section 2(b) of
the Restatement (Third) and would necessarily overrule Lamkin,
Hansen, and Calles. Slip op. at 22. Furthermore, the words “not
accident proof” are argumentative in that they have no source in
Illinois law, according to my research, and could render any product
not “unreasonably dangerous,” as every product can meet the standard
of not being accident proof.
As such, the trial judge faced the possibility that the jury would
have been misled and the plaintiff would have been prejudiced had
defendants’ instructions been used. Therefore, had the trial judge
been dissatisfied with plaintiff’s IPI instructions, the defendants’ non-
IPI instructions would have presented greater difficulties in giving the
jury an accurate statement of the law.
Lastly, I find Dillon distinguishable. In Dillon, we held that the
jury instructions on damages including the phrase “the increased risk
of future injuries” failed to instruct the jury properly. The holding in
Dillon was at odds with this court’s historical rejection of recovery
for risk of future injuries. Dillon, 199 Ill. 2d at 497. There also was a
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split of authority in the appellate court. Dillon, 199 Ill. 2d at 498.
Having determined for the first time that the element of damages was
compensable, the court then turned to whether the jury instruction
was proper. Dillon, 199 Ill. 2d at 504. This court did not address the
supplementation of the jury instructions with adversarial emphasis
during argument. Further, we deemed the instruction faulty because
it failed to distinctly instruct the jury regarding the amount of possible
future damage multiplied by the probability that it would occur.
Dillon, 199 Ill. 2d at 507. There was no indication in Dillon that this
was supplemented by the arguments of counsel. Here, this court had
not spoken on this specific issue, there was no split in authority in the
appellate court, and the parties were able to supply adversarial
emphasis. I therefore cannot find that the trial court abused its
discretion as the jury was not clearly misled and the defendants were
not prejudiced by the use of the IPI instruction.
I therefore depart from sections 3 and 4(c) of the majority opinion
as those sections rest on the assumption that defendants’ instruction
were superior to plaintiff’s instructions and fail to consider the effect
of defense counsel’s argument. See slip op. at 25-26 (stating the trial
judge “may not unilaterally preclude the giving of a jury instruction
that presents the defendant’s theory of the case, so long as the
defendant’s instructions accurately state the law and is supported by
the evidence. Assuming, for now, that defendants’ tendered
instructions met these criteria, we consider the implications of giving
a jury both consumer-expectation and risk-utility instructions in a
design defect case”). Accordingly, I believe that the trial court did not
abuse its discretion in choosing plaintiff’s IPI instructions over
defendants’ non-IPI instructions. I therefore respectfully dissent.
Dissent Upon Denial of Rehearing
CHIEF JUSTICE FITZGERALD, dissenting:
Among plaintiff’s arguments on rehearing under Supreme Court
Rule 367(b) (210 Ill. 2d R. 367(b)) are that the court “overlooked or
misapprehended” the faultiness of the defendants’ instructions and
the majority silently overruled prior precedent of this court as found
in Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007), Hansen v.
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Baxter Healthcare Corp., 198 Ill. 2d 420 (2002), and Lamkin v.
Towner, 138 Ill. 2d 510 (1990). I agree with these points and
additionally find that they are not reargument of the case. I therefore
respectfully dissent upon denial of rehearing.
Plaintiff first asserts that defendants’ alternate instructions
misstated the law in seven respects, including some of those I noted
in my dissent. Defendants’ instructions improperly: (1) required
plaintiff to prove there was an alternative feasible design in existence
at the time defendant sold the product in order to impose liability; (2)
misstated the law for proving risk-utility in that they stated that the
burden shifts to defendants to prove that the benefits of the design
outweighs its risks; (3) failed to correctly state the majority’s
“integrated test” because defendants’ instructions did not include any
reference to consumer expectation; (4) required the plaintiff to prove
the product was “unreasonably dangerous” without a definition of the
phrase; (5) required the plaintiff to prove both that the vehicle had a
“design defect” and the vehicle was “unreasonably dangerous”; (6)
used the phrase “not reasonably safe,” which this court rejected as an
inadequate substitute for “unreasonably dangerous”; and (7)
contained an argumentative reference to a product being reasonably
safe even if it is not “accident proof.” I note that these liability
instructions were the topic of extensive discussion before and during
the trial. Therefore, unaddressed by the majority opinion is the trial
court’s consideration of whether plaintiff would have suffered serious
prejudice had the trial court opted for defendants’ instructions. A
principal result of this omission is that the majority opinion can be
read as approving defendants’ instructions. For that reason alone,
plaintiffs have presented a strong case to grant rehearing in order to
remove this court’s possible imprimatur on defendants’ instructions.
The failure to examine defendants’ instructions also leads to a
misapprehension of the extent the trial court’s decision allowed for
a fair, although imperfect, trial for both parties. The trial court used
IPI instructions that generally, although not specifically (see Hansen
v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 884 (1999); see
also slip op. at 8), provided for consideration of risk-utility evidence
by the jury. The trial court allowed defendants to argue risk utility to
the jury. As I stated in my dissent, shortcomings within the jury
instructions may be remedied in closing argument. See slip op. at 44
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(Fitzgerald, C.J., concurring in part and dissenting in part) (citing
Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill.
2d 260 (2002), Carrillo v. Ford Motor Co., 325 Ill. App. 3d 955
(2001), and IPI Civil (2006), at xxii (foreward to the first edition)). I
also believe that rehearing should be granted to consider the role that
argument to the jury could have lessened or removed any possible
prejudice to defendant.
Plaintiff next claims that the majority opinion departed from this
court’s decision in Deal v. Byford, 127 Ill. 2d 192, 202-03 (1989).
Under Deal, a party claiming error in instructions must submit “a
correct instruction” stating the law for which he argues on appeal to
avoid waiver. Deal, 127 Ill. 2d at 202, citing 107 Ill. 2d R. 239(b).
Here, defendants’ instructions were not “correct” by reason of the
errors listed above. Left unanswered by the majority opinion is the
role of the trial court when submitted incorrect instructions which
would have prejudiced the opposing party. Importantly, plaintiff
suggests that she may not have objected had the trial court given a
neutral instruction such as:
“When I use the expression ‘unreasonably dangerous,’ I mean
that the risk of danger inherent in the design outweighs the
benefits of the design when the product is put to a use that is
reasonably foreseeable considering the nature and function of
the product.”
Thus, the majority decision may have been entirely different if
defendants had additionally offered such an “integrated” instruction
to the trial court instead of attempting to submit fatally flawed
instructions which denied plaintiff’s theory of the case, namely,
consumer expectation. Therefore, I believe a proper examination of
defendants’ instructions must also include discussion of whether
defendant properly submitted a “correct” instruction under Deal and
what role the submission of an incorrect instruction played into the
trial court’s exercise of discretion.2
2
Plaintiff makes a similar argument concerning Dillon v. Evanston
Hospital, 199 Ill. 2d 483 (2002). However, I believe the debate over that
case was adequately set forth in my dissent.
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Plaintiff next argues that the majority’s adoption of the
“integrated test” ignores this court’s past precedent allowing a
plaintiff to prove strict liability under alternate theories of liability,
i.e., the consumer-expectation theory and the risk-utility theory. I note
that, in general, a plaintiff is entitled to jury instructions embodying
her theory of the case. Snelson v. Kamm, 204 Ill. 2d 1, 27-28 (2003);
LaFever v. Kemlite Co., 185 Ill. 2d 380, 406-07, 414-15 (1998).
Similarly, the majority held that a party has the right to have the jury
instructed on each theory supported by the evidence and referred to
decisions of this court over the past two decades. Slip op. at 26 (citing
Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007), Hansen v.
Baxter Healthcare Corp., 198 Ill. 2d 420 (2002), and Lamkin v.
Towner, 138 Ill. 2d 510, 529 (1990)). Here, plaintiff tendered
consumer-expectation instructions and, since the evidence supported
that claim, the trial court was required to instruct the jury on her
theory.
The majority, however, held that the trial court abused its
discretion in giving the IPI instructions that properly set forth
plaintiff’s theory of the case. Therefore, as the plaintiff correctly
points out, the majority’s statement that the consumer-expectation test
still exists as a separate theory is illusory. It also calls into question
the holdings of Lamkin, Hansen, and Calles that a plaintiff may
pursue her strict liability case either under the consumer-expectation
test, the risk-utility test, or both.
This question arises from the incorrect assumption that defendants
had a case to prove. Defendants had no case to prove; they had a case
to defend. If there were affirmative defenses raised by the evidence,
defendants would have been entitled to choose whether to ask for an
instruction on any one or all of them. Here, I believe that the general
instructions provided by the IPI along with defense counsel’s
argument specifically concerning risk-utility adequately provided a
fair trial. Instead, the majority improperly erased all of the lines
drawn in our decisions in Calles, Hansen, and Lamkin delineating a
plaintiff’s ability to choose between the consumer-expectation test
and the risk-utility test.
In sum, we are left with the still unresolved question of the role
of a trial judge when given a general IPI jury instruction on the one
hand, and flawed jury instructions on the other. Because the majority
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has “overlooked” the problem presented by defendants’ badly flawed
instructions, I believe the majority has arrived at a similarly badly
flawed solution and rehearing is required under Rule 367(b) (210 Ill.
2d R. 367(b)). The majority’s resolution of the jury instructions issue
also leaves in doubt whether the consumer-expectation test remains
a viable alternative and whether portions of Lamkin, Hansen, and
Calles have been overruled. As a result, because I believe the
majority wrongly found the trial court abused its discretion, I would
reach the issue of remittitur. I therefore respectfully dissent upon
denial of rehearing.
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