In a case brought by the mother of a child who died from injuries caused by a utility lighter, the Illinois Supreme Court recently decided that the “open and obvious” danger of a simple product should not exempt such products from application of the risk-utility test for design defect in a products liability case with negligence and strict liability claims. Calles v. Scripto-Tokai Corp., --- N.E.2d ---, 2007 WL 495315 (Ill. Feb. 16, 2007). The decision was criticized in a special concurrence by Justice Karmeier for rejecting the “simple-product exception,” that had been recognized in the Illinois lower courts since the decision in Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106, 155 Ill. Dec. 536, 569 N.E.2d 1147 (Ill. App. Ct. 1991).
The three-year-old daughter of the Plaintiff Susan Calles died after a fi re started in her home by another child with an “Aim N Flame” utility lighter designed and manufactured by Scripto-Tokai (“Scripto”). Calles, 2007 WL 495315 at *1. As administrator of her daughter’s estate and individually, Plaintiff brought claims in negligence, strict liability and breach of warranties of merchantability and fi tness for particular purpose against Scripto. Scripto fi led a motion for summary judgment, arguing that (1) the Aim N Flame was not defective because it worked as expected; (2) Scripto had no duty to make the product child resistant; (3) Scripto had no duty to warn because the dangers of the Aim N Flame were open and obvious; and (4) Scripto did not breach any warranties because the Aim N Flame operated as intended and expected. Id. The trial court granted the motion for summary judgment, holding that Scripto neither owed nor breached any duty imposed upon them.
The First District Appellate Court affi rmed in part, reversed in part and remanded the case for further proceedings. Calles v. Scripto-Tokai Corp., 832 N.E. 2d 409 (Ill. App. Ct. 2005), affi rmed, --- N.E.2d ---, 2007 WL 495315 (Ill. Feb. 16, 2007). The appellate court reversed the summary judgment on the design defect strict liability claim, holding that the Plaintiff presented suffi cient evidence to create a genuine issue of material fact as to whether the utility of the lighter’s design was outweighed by the risks of the lack of child-resistant features and the minimal cost to add them. The First District court also remanded the case to the trial court to determine whether the simple products exception applied in negligent design cases after the Illinois Supreme Court’s decision in Blue v. Environmental Engineering, Inc., et al., 215 Ill.2d 78, 293 Ill. Dec. 630, 828 N.E.2d 1128 (Ill. 2005). The appellate court affi rmed the summary judgment for Scripto on the failure to warn claim, which Plaintiffs did not brief on appeal. The Illinois Supreme Court then granted Scripto’s petition for leave to appeal.
In an opinion by Justice Burke, the Supreme Court reviewed the history of strict liability doctrine in Illinois, beginning with Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965), in which the Court adopted Section 402(a) of the Second Restatement of Torts, which provided a “consumer expectation” test for determining whether a product was “unreasonably dangerous.” Under the test, the plaintiff “must establish what an ordinary consumer would expect about the product and its safety” and is an objective standard. Calles, 2007 WL 495315 at *3. The consumer expectation test was applied to manufacturing defect and design defect cases.
Until 1990, the “consumer expectation” test was the only test to determine the existence of a design defect in Illinois, until the adoption of the risk-utility test, which could be used alternatively. See Lamkin v. Towner, 138 Ill.2d 510, 150 Ill. Dec. 562, 563 N.E.2d 449 (1990). In Lamkin, the Illinois Supreme Court allowed the Plaintiff to pursue a strict liability claim under a risk-utility test by “introducing evidence that the product’s design proximately caused his injury and the defendant fail[ed] to prove that on balance the benefi ts of the challenged design outweigh the risk of danger inherent in such designs.” Id. at 529. The adoption of risk-benefi t in Illinois was partly due to the recognition that for various products, it would be diffi cult to discern what the consumer would expect as to their safety.
In Calles, the Plaintiff argued that the consumer-expectation test should be applied to the lighter from the point of view of a child, but Illinois’s highest court disagreed, citing cases from several other jurisdictions in which a lighter’s “ordinary consumer” was held to be an adult. 2007 WL 495315 at *4. The court went on to hold that because an ordinary consumer would expect the lighter to produce a fl ame when used in a reasonably foreseeable manner (including by a child), and because it did not fail to perform as expected, no fact fi nder could conclude the Aim N Flame was unreasonably dangerous under the consumer-expectation test. Id. at *5.
The Court then addressed whether the Aim N Flame was unreasonably dangerous under the risk-utility test, primarily through assessing Scripto’s argument that a “simple product” exception to the risk-utility test is applicable in Illinois. In Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d at 107, the plaintiff was injured in a restaurant kitchen when he slipped and his arm became submerged in the hot oil of a open deep-fat fryer. The Scoby court held that the hot oil was an “open and obvious danger” and that the risk-utility test should not be applied because of the simple nature of the product and the obvious nature of the danger. Id. at 112.
Subsequent decisions interpreting Illinois law applied the “simple product” exception to prevent the risk-utility test from being used with certain products, including Todd v. Societe Bic, S.A., 21 F.3d 1402 (7th Cir. 1994). In Todd, the Seventh Circuit held the risk-utility test should not apply in a case involving a fi re caused by a disposable lighter used by a child, basing its opinion on its assumption that the Illinois Supreme Court would uphold the “simple product” exception to the use of the risk-benefi t test in a case involving a lighter.
After noting that it was the fi rst time that the Illinois Supreme Court was directly addressing the “simple product” exception, the Calles court found that the “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.” 2007 WL 495315 at *7. The Court then proceeded to observe that a “majority of courts have rejected the notion that the open and obvious danger of a product is an absolute defense to a defective-design claim in strict liability.”
Id. The Court explained that policy reasons favor rejecting a “simple product” exception, because it would discourage product improvements in simple products when a manufacturer knows it would not be held liable. Id.
Ultimately, the Court held that “the open and obvious danger of a product does not create a per se bar to a manufacturer’s liability, nor does it preclude application of the riskutility test. Rather, the open and obvious nature of a danger is one factor that may be weighed in the risk-utility test.” Id. at *8. The Court proceeded to consider “whether Calles presented suffi cient evidence under the risk-utility test to withstand summary judgment.” Finding that “numerous factors” may be relevant to the risk-utility assessment, the Court cited some language from prior design defect cases to suggest that the availability and feasibility of alternative designs may be probative evidence. The Court also cited an infl uential 1973 law review article by Dean Wade of Vanderbilt that identifi ed various factors “relevant when engaging in risk-utility analysis,” including “the likelihood that (the product) will cause injury, and the probable seriousness of the injury.” Id. at *9 (citing J. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973)). After discussing more than 10 factors for assessing risk-utility from various sources, the Court stated that the factors are not exclusive, that a plaintiff need not present proof on each of them, and that the trial court must decide which evidence on which factors can be submitted to the fact-fi nder, which would determine the relevance and importance of any particular factor. Id. at *10.
Although none of these factors were discussed explicitly in the appellate court decision, the Supreme Court’s own review of the evidence led it to conclude that Calles presented suffi cient evidence of the likelihood of serious injury from “lighters which do not have child-safety devices” to withstand summary judgment on risk-utility. Id. The Court also noted that there was a material issue of fact on the question of whether there was a feasible alternative design available, as Plaintiff’s expert contended that child-resistant options were feasible, despite Scripto’s contentions to the contrary. Id. The Court affi rmed the appellate court’s decision reversing the trial court’s grant of summary judgment for Scripto on the strict liability claims. Id. at *11.
Turning to the negligent design claim, the Court also affi rmed the appellate court’s reversal of the trial court’s grant of summary judgment for Scripto, even though the appellate court had based its ruling on an erroneous conclusion that risk-utility was not applicable to negligent design cases. Id. The high court explained that the appellate court had believed that the Supreme Court’s prior decision in Blue v. Environmental Engineering, Inc., et al., 215 Ill.2d 78, 293 Ill. Dec. 630, 828 N.E.2d 1128 (Ill. 2005), held that that riskutility was not applicable to negligent design cases, but the high court noted that this section of Blue was only joined by three justices and thus was not binding precedent. Calles, at *11. The Supreme Court went on to hold that questions of fact exist as to whether Scripto “exercised reasonable care in the design and manufacture of the Aim N Flame, precluding summary judgment.” Id. at *12.
In a special concurrence, Justice Karmeier wrote that he agreed with the majority that the summary judgment should not have been granted, but disagreed with their rejection of the “simple product” exception to the risk-utility test (although he also stated it should not have applied in this case because “the Aim N Flame is not a simple product.”) Id. at 13. He noted that the Scoby test for the exception would not apply unless the product was simple and the dangers were open and obvious, and that the majority erroneously assumed that a simple product’s dangers were always open and obvious and thus the majority held the exception should not survive. Id.
The Calles decision eliminates a former safe haven in Illinois from liability for manufacturers of simple products with open and obvious dangers, such as the open deep fryer in the Scoby case. Now such open and obvious dangers are merely a factor for the fact-fi nder to weigh along with numerous other factors under the risk-utility test. It is easy to speculate that this kind of amorphous factor-driven analysis will make it less likely that manufacturers of simple products will be able to obtain summary judgment in the future in Illinois.