In Mikolajczyk v. Ford Motor Company, 2007 Ill. App. LEXIS 640 (1st Dist., June 13, 2007), the Illinois First District Appellate Court clarified the correct test to be used for strict products liability design defect lawsuits. In addition, the decision provides an excellent analysis of damages for loss of society which, while likely curbing huge “run-away” verdicts in the future, still points to very large loss of society claims remaining available in Illinois’ courts.
The lawsuit in question followed an automobile accident between James Timberlake and James Mikolajczyk. On February 4, 2000, Mikolajczyk was stopped at a stoplight while traveling with his daughter Elizabeth, who was seated directly behind him in the rear driver’s side seat. While waiting to proceed, Mikolajczyk’s vehicle was hit from behind by a vehicle traveling at approximately 60 mph being driven by the intoxicated Defendant, Timberlake. The force of the impact caused Mikolajczyk’s vehicle to spin directly into the intersection where it was struck by another vehicle.
Within Mikolajczyk’s vehicle, and as a result of the force created by the impact, the driver’s seat reclined backwards allowing James to be propelled headfirst into the rear seating area. Mikolajczy’s head struck the rear seat of his vehicle causing severe injuries. In addition, Elizabeth suffered injuries to her legs as a result of the flattened front seat. Elizabeth recovered from her injuries. However, the damage to Mikolajczyk’s brain rendered his recovery hopelessly remote, and his life support was terminated on February 7, 2000.
Plaintiff Connie Mikolajczyk, individually and as special administrator of the estate of her deceased husband James Mikolajczyk, brought suit alleging strict products liability for a defective driver’s seat design against defendants Ford Motor Company and Mazda Motor Corporation (“Ford” and “Mazda”) and negligence against defendant Timberlake (“Timberlake”). Summary Judgment was entered in favor of plaintiff as to Timberlake and the case proceeded to trial on plaintiff’s strict products liability design defect claim against defendants and for an assessment of damages. Plaintiff’s strict products liability cause of action was based on allegations that the driver’s seat of Mikolajczk’s vehicle was defectively designed with inadequate strength making it unreasonably dangerous.
At trial, evidence was presented that Mikolajczk’s seat was a “yielding seat,” as opposed to a “rigid seat,” which was an available alternative design. Plaintiff’s experts testified that the Defendants should have utilized the rigid seat as it would have provided better protection and that the risk of fatal head injury was 10 to 25 times greater with the yielding seat. Conversely, Ford’s and Mazda’s experts testified the safety benefits of the yielding seat outweighed the risks of not utilizing an alternative design. Moreover, their experts testified that rigid seat design was rejected due to a comparatively higher level of safety concerns.
At the conclusion of the evidence, the jury was instructed as to the “consumer expectations test” as opposed to the “risk-utility test” with regards to whether the defendants should be held liable under strict products liability for a defective design. The jury found in favor of the plaintiff and awarded $2 million in loss of support and $25 million in loss of society. Liability for plaintiff’s damages was distributed 60% to defendant Timberlake and 40% to defendants Ford and Mazda.
On appeal, Ford and Mazda contended that the trial court erred in instructing the jury on the law of strict product liability for design defect, and that the jury’s verdict was arbitrary and excessive. Specifically, they contended that the jury should have been instructed as to the risk-utility test as opposed to the consumer expectation test. In particular, Ford and Mazda argued that the Illinois Supreme Court’s recent decision in Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78 (2005), resulted in the adoption of the risk-utility test as the exclusive test for design defects of complex products. Prior to the decision in Blue, a plaintiff could choose to prove his or her claim under either one or both of the consumer expectations test or the risk-utility test.
The consumer expectation test, which was derived from section 402A of the Second Restatement of Torts, provides that a product is:
unreasonably dangerous 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.
Alternatively, under the risk-utility test:
a plaintiff may demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented the injury and was feasible in terms of cost, practicality and technological possibility.
In Blue, the Illinois Supreme Court analyzed the current state of Illinois law with regards to strict product liability for design defects and the provisions regarding strict product liability in the Restatement Third of Torts: Products Liability § 2. Section 2 of the Third Restatement of Torts distinguishes between manufacturing defects, design defects and failures to warn with regard to strict products liability. Ford and Mazda contended that the Blue opinion marked a change in Illinois law regarding strict product liability design defect cases and that, in light of the relevant sections of the Restatement Third of Torts, the risk-utility test is now the sole test for establishing liability in such cases.
The First District Appellate Court disagreed. The court held that although there was significant discussion of the Third Restatement of Torts in the Blue decision, the majority of this discussion was dicta and therefore nonbinding. Moreover, the appellate court reasoned that Justice Thomas, in his discussion of the risk-utility test and the Third Restatement of Torts, never explicitly endorsed the Third Restatement or renounced the consumer expectations test. Accordingly, the appellate court found that the law of Illinois remains that a plaintiff may prove a strict liability design defect by either the consumer expectations test or the risk-utility test. Therefore, the appellate court found that the trial court’s instructions to the jury were not improper and Defendants’ request for a new trial as to that argument was properly denied.
Finally, the appellate court analyzed Ford’s and Mazda’s contention that the jury’s $25 million verdict for loss of society was arbitrary and excessive. The court stated that the rule with regards to damages is that:
[a]n award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.
Upon review, the court noted that the testimony provided at trial established that the Mikolajczyk family was very close and that they spent a great deal of time together. Nevertheless, the court held that the jury’s award was excessive to an extent that it shocked the judicial conscience. However, in commenting on this, the court stated:
We agree that the evidence presented at trial certainly revealed the close nature of the Mikolajczyk family's relationship and demonstrated that the loss suffered by the family when James died was enormous. The loss of a parent in any family relationship is catastrophic. Gone is the guidance one expects of a parent. Gone is the love and affection in such relationships. Gone is the intimacy so ever-present in a close family. Unfortunately, however, our system of justice does not have a formula to determine the fair amount of loss of society. Often the finder of fact relies more on the heart than the mind.
While we understand the jury's sympathy, we must disagree with the verdict and the trial court's assessment of that verdict and find that the $25 million loss of society award exceeds all fair and reasonable compensation and is so large as to shock the judicial conscience.
Therefore, the court remanded the case to the trial court with instructions to hold a hearing to determine the appropriate amount of remittitur. Additionally, in rejecting both the plaintiff’s position that the $25 million award was appropriate and defendants’ suggestion that a loss of society award of $6 million (three times the $2 million awarded for loss of money, goods and services) would be appropriate, the appellate court provided guidance to the appellate court stated that they “would find it difficult to deem reasonable a loss of society award of more than seven figures” and that they would find an award of more than half of the $25 million settled upon by the jury to be unreasonable.
The Mikolajczyk decision is welcome as it clarifies the analysis to be used in complex product liability actions. However, while the First District Appellate Court’s limiting of the loss of society damages award is notable, the decision is not a total “victory” for defense interests that casual reading may suggest. Rather, the appellate court’s suggested cap of $10 million is countered by the appellate court allowing for the potential of a verdict up to $12.5 million for these damages being proper, however suspect.
Providing this range may serve as a signal to trial courts considering wrongful death claims that verdicts of this nature should approach these levels – such that plaintiffs may actually cite the decision seeking an increase in loss of society verdicts in the thousands or low million dollar plus range. This would occur despite that the facts at trial in many cases reflect that damages should be far less for loss of society. While the decision will serve as a basis for defendants to seek reduction of truly extreme “runaway” verdicts, the end result may still be extremely large loss of society verdicts for many times over the compensatory damages awards.
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Matthew Byrne, an associate in our Chicago office, is a member of the Commercial Liability litigation practice group. Matt served as a law clerk at Querrey & Harrow during his second and third years of law school, which prepared him well to assume his role as an associate with the firm. While attending law school, Matt was a member of The John Marshall Law Review and was a member of the Family Law and the Health Law Societies.
