The Supreme Court of Illinois recently ruled that a defendant in a product liability claim is entitled to a jury instruction on the “Risk Utility Test,” despite the fact that plaintiff attempted to prove her case solely by way of the “Consumer Expectations Test.” Mikolajczyk v. Ford Motor Company, No. 104983 (October 17, 2008).
In so holding, the court adopted a new ‘Integrated Test’ for proving strict liability in defective design cases, a test that combines both the Consumer Expectations Test and the Risk Utility Test into one “Integrated Test”. In Mikolajczyk, James Mikolajczyk died of injuries sustained when the Ford Escort he was driving was struck from behind by another vehicle. His widow filed a negligence claim against the other driver and a defective design claim against Ford Motor Company and Mazda Motor Corporation. The Escort was manufactured by defendant Ford, and the seat was designed by defendant Mazda. The Illinois Supreme Court granted defendants’ petition for leave to determine whether the trial court erred by instructing the jury on the Consumer Expectations Test and rejecting defendants’ tendered instruction on the Risk Utility Test for defective design. In the underlying case, the plaintiff tendered the pattern jury instruction No. 400.06 which defines the expression “unreasonably dangerous” in a way that coincides with the Consumer Expectations Test. However, this instruction does not include any factors specific to the Risk Utility Test.
Under Illinois law, strict liability may be imposed based on proof of an injury proximately caused by an unreasonably dangerous condition of a product and such a condition may consist of a manufacturing defect, a design defect or inadequate warnings. 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) that existed at the time the product left the defendants’ control; 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 v. Eaton, 201 Ill.2d 1, 7 (2002); Suvada v. White Motor Co., 32 Ill.2d 612, 623 (1965).
A plaintiff may prove that a design defect is unreasonably dangerous by offering proof under either the Consumer Expectations Test or the Risk Utility Test. Under the Consumer Expectations Test, the plaintiff offers evidence that the product failed to perform as safely as an ordinary customer would expect when used in an intended or reasonably foreseeable manner. Lamkin v. Towner, 138 Ill. 2d 510, 529 (1990). The Risk Utility Test offers proof of factors not contemplated by the Consumer Expectations Test; particularly, the defendant attempts to prove that the benefits of the challenged design outweigh the risk of danger inherent in such designs and may offer proof of a lack of an alternative design or inquiries into such a design’s feasibility. Id.
On petition before the Illinois Supreme Court, the defendants made three arguments. First, the defendants argued that Illinois law establishes that in a product liability action for defective design, the plaintiff may only prove her case by way of the Risk Utility Test. Hansen v. Baxter Healthcare Corp., 309 Ill. App. 3d 869 (1999); Blue v. Environmental Engineering, Inc., 345 Ill. App. 3d 455 (2003); Calles v. Scripto-Tokai Corp., 358 Ill. App. 3d 975 (2005). In the alternative, the defendants argued if the court did not find that precedent dictates a bright line rule adopting only the Risk Utility Test in all defective design cases, precedent does exclude use of the Consumer Expectations Test when the case involves a “complex product.”
Finally, the defendants challenged the trial court’s rejection of defendants’ tendered non-patterned jury instructions which would have informed the jury to consider factors unique to the Risk Utility Test, such as: 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. The defendants asserted that this instruction should have been given either instead of or in addition to the plaintiff’s tendered instruction 400.06, which provides the method of proof depicted in the Consumer Expectations Test.
After analysis of the history of the Consumer Expectations and Risk Utility Test, and the precedent cited by the defendants, the court rejected 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.
The court next addressed the defendants’ second argument that if the court does not adopt the Risk Utility Test as a sole exclusive test in all design defect cases, it should be the exclusive test when a product is complex because the circumstances are not familiar to the ordinary customer. The defendants argued that, by very definition, a design defect of a complex product requires considerations of the feasibility of alternative designs, costs, safety and other factors which the ordinary customer is not familiar with, and which the Consumer Expectations Test does not capture. The court, however, rejected this argument, finding that while a feasible alternative design in the balancing of risks and benefits are relative considerations in a product liability design defect case, they are not and should not be elements of the claim that the plaintiff is required to plead and prove in every case.
In answering the defendants’ third argument, the court stated that the plaintiff is entitled to an instruction setting out her own theory of the case, based on her own theory of liability. In this case, the plaintiff chose strict liability on defective design, and her own chosen method of proving defective design was the Consumer Expectations Test. However, the court further stated that the plaintiff may not unilaterally preclude the defendant from tendering a jury instruction that presents the defendant’s theory of the case. In this case, the defendants wished to prove their case by way of the Risk Utility Test, despite the fact that the plaintiff chose to prove her case exclusively by way of the Consumer Expectations Test. The court held that the defendants are entitled to jury instruction on their theory of the case so long as the defendants’ instruction 1) accurately states the law and 2) is supported by the evidence.
The defendants also argued that if the court was to hold that both tests may be used by the plaintiff to prove her case, then the Risk Utility Test must trump the Consumer Expectations Test when both are offered as methods of proof. The defendants argued that, by allowing the plaintiff to prove her case by way of both tests, the plaintiff is essentially given “two bites at the same apple” and the court would be requiring defendants prove their case and succeed under both tests.
The court addressed the defendants’ concerns by adopting an Integrated Test as set out in Mele and Besse. Mele v. Howmedica, Inc. 348 Ill. App. 3d 1 (2004); Besse v. Deere & Co., 237 Ill. App. 3d 497 (1992). The court stated that while both tests are still mutually exclusive, if there is evidence that tends to prove the Risk Utility Test, then the Consumer Expectations Test is “integrated” into the broader Risk Utility Test. Specifically, “consumer expectations” become merely one factor in the broader balancing of risks and benefits as defined by the Risk Utility Test.
Thus, the court held 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. However, if both parties’ theories of the case are framed entirely in terms of the Consumer Expectations Test, then the jury should be instructed on only the Consumer Expectations Test.
After adoption of this Integrated Test, the court next turned to determine whether or not the defendant in this case was nevertheless entitled to instruction on this Integrated Test. In order to hold that the trial court erred in rejecting defendants’ tendered non-patterned jury instruction the court needed to find three things in the defendants’ favor: 1) that the defendants’ jury instruction accurately states the law, 2) that evidence presented on the record supports application of this Integrated Risk Utility Test, and 3) that the defendant in this case was prejudiced by exclusion of their non-patterned jury instruction. The court found all of the above questions in favor of the defendant and held that a retrial on liability was required because the jury was inadequately instructed, and was therefore unable to apply the correct legal principles to the submitted evidence.
In summary, the court held that both the Consumer Expectations Test and the Risk Utility Test may be utilized in a strict liability design defect case to prove that the product is unreasonably dangerous. However, when both Tests are employed, consumer expectations are to be treated as merely one factor in the broader Integrated Risk Utility Test adopted by the court.
This decision appears at first glance as being pro-plaintiff because the court rejected defendants’ argument that the court must adopt the Risk Utility Test as the sole means of proof. However, such an impression does not accurately assess the consequences of this court’s decision. If a plaintiff wishes to prove its theory of liability strictly by way of the Consumer Expectations Test, the defendant, by its own initiative, may introduce evidence regarding feasibility of an alternative design, existence of an alternative design or any evidence towards the balancing of risks and benefits towards such a design and by presenting this evidence. By introducing this evidence, the defendant makes herself entitled to a jury instruction encapsulating the ‘Integrated Test’ adopted by this opinion. Under these circumstances, this new Integrated Test essentially swallows the plaintiff’s chosen method of proof because the Consumer Expectations Test becomes merely one factor in the broader Risk Utility Test proposed by the defendant.
It is unclear whether the court’s adoption of this Integrated Test applies only to strict liability design defect cases, or whether it will be applied in negligent product liability claims. However, one could make a compelling argument that the court’s adoption of the Integrated Risk Utility Test applies to all product liability cases in which evidence offered tends to prove both the Consumer Expectations Test and the Risk Utility Test, and that this holding is not merely limited to strict liability design defect cases.
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Christopher Harney, admitted to the bar on November 6, 2008, is a new associate in Querrey & Harrow's Chicago office. We welcome Chris to our firm! Chris previously clerked for Querrey & Harrow during law school and concentrates his practice in general litigation and currently assists in a variety of matters, including: auto liability cases, premises slip and fall claims, and drafting commercial contract provisions. We welcome Chris to our practice.
Christopher graduated Cum Laude from the University of Mississippi School of Law, following receiving a Bachelor’s Degree in Psychology from the University of Chicago as a four-year recipient of the Chicago Police and Fire Scholarship.
During law school, Christopher was active on the moot court team and successfully competed in a variety of appellate competitions and was a Semifinalist in the State of Mississippi Appellate Advocacy Competition. If you have any questions regarding this article, or would like copies of any of the materials cited, please contact Chris via charney@querrey.com, or via 312-540-7622.
