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06/01/2007 ILLINOIS SUPREME COURT ELIMINATES PER SE EXEMPTION FOR SIMPLE PRODUCTS UNDER RISK-UTILITY ANALYSIS IN DESIGN DEFECT CASES By: Joseph L. Nelson, J.D. Plaintiffs contending that a manufacturer or seller is strictly liable for a design defect that renders a product unreasonably dangerous ordinarily have two methods available for proving their case: either that it was more dangerous than the ordinary consumer would expect (the “consumer expectation test”), or that the dangers of the design outweighed its usefulness (the “risk-utility test”). For more than a decade, however, Illinois appellate courts and even the United States Court of Appeals for the Seventh Circuit, have held that the “risk-utility test” may not be applied to “simple” products when its dangers are “open and obvious.” But in Calles v. Scripto-Tokai Corp., et al., the Illinois Supreme Court recently rejected the existence of such an exception[1], mandating that both tests be available to establish liability in any design-defect case. Illinois courts long ago adopted the strict liability doctrine set forth in Section 402A of the Restatement (Second) of Torts. Under this theory, strict liability is imposed upon the seller of “any product in a defective condition unreasonably dangerous to the user or consumer or to his property.”[2] To determine whether a product was unreasonably dangerous, courts originally employed only the “consumer expectation test.” This was an objective standard under which the fact finder determined whether the product was dangerous “to an extent beyond which would be ordinarily contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”[3] This test was originally applied to manufacturing defects, but was later expanded to cases involving design defects as well. Critics of the consumer expectation test argued, however, that consumers might not be aware of what to expect regarding the safety of some products. In response to these objections, Illinois courts adopted a second test: the risk-utility test.[4] Now, consumers could demonstrate a design defect in either of two ways: (1) by meeting the consumer expectation test, or (2) by showing that the risk of danger inherent in the challenged design outweighed the benefits of such design. This test was applied in cases involving designs beyond the common experience of the product’s users. Using hindsight, the test placed in the jury’s hands the decision of whether the risk of danger inherent in the challenged design outweighed the benefits of that design. In 1991, however, an Illinois Appellate Court created a “simple product” exception to the risk-utility test. In Scoby v. Vulcan-Hart Corp.,[5] a restaurant worker slipped and fell, causing his arm to be submerged in hot oil in a deep-fat fryer. He sued the manufacturer alleging that the fryer was defectively designed, but the manufacturer claimed that the danger was not excessive; that the danger of the hot oil in the fryer was open and obvious; and that efficient use of the kitchen required that the fryer be lidless. The court concluded that the circuit court properly applied only the consumer-expectation test “[c]onsidering the obvious nature of any danger here [and], also, the simple nature of the mechanism involved.”[6] Scoby was subsequently followed by several other appellate districts as well as the Seventh Circuit, which predicted that the Illinois Supreme Court would not apply the risk-utility test to simple but obviously dangerous products.[7] This exception remained the law of Illinois until Calles. In Calles, the decedent’s mother took one of her four daughters out, leaving three at home. While she was gone, one of the children started a fire using an Aim N Flame utility lighter. The Aim N Flame lighter was activated by sliding a switch to the “on” position and pulling a trigger. The child suffered smoke inhalation, was hospitalized, and died three weeks later. Plaintiff filed suit against the manufacturer and distributor (collectively Scripto-Tokai) under a defective design theory, alleging that the lighter was defectively designed because it did not contain a child-safety device. The complaint also contained negligent product design and breach of warranty claims, which are not discussed herein. Scripto moved for summary judgment, arguing that the Aim N Flame was not unreasonably dangerous because it worked as expected; that it had no duty to make an adult product child-resistant; and that it had no duty to warn because the dangers were open and obvious. The plaintiff had testified in her deposition that she was aware of the risks and dangers of lighters in the hands of children, and that the Aim N Flame operated as intended and expected. The plaintiff presented several experts, however, who all opined that the Aim N Flame was defective and unreasonably dangerous because it lacked a child-resistant design, which was available and could have been added at a cost of just forty cents per unit. The trial court granted summary judgment, finding that Scripto neither owed nor breached any duty imposed upon it by law, applying only the “consumer expectation” test and declining to subject the product to a risk-utility test. The appellate court reversed, finding that the Aim N Flame did not qualify as the kind of “especially simple device” that would excuse it from analysis under the risk-utility test. The Illinois Supreme Court granted Scripto’s petition for leave to appeal. The Illinois Supreme Court first applied the consumer-expectation test. The Court found that the ordinary consumer of an Aim N Flame lighter is an adult, and thus the expectations of the lighter’s use and safety must come from an adult point of view. The Court also found that the purpose of the lighter is to produce a flame. Finally, the Court found that it was reasonably foreseeable that a child could obtain the lighter and attempt to use it. Concluding it was reasonably foreseeable to an ordinary consumer that the Aim N Flame, in the hands of a child, could start a fire, the Court found that the product fulfilled the ordinary consumer’s expectations and the plaintiff therefore could not succeed under a consumer-expectation test. The Supreme Court then applied the risk-utility test. After tracking the “simple product” exception’s sixteen year history in Illinois, the Court summarily refused to apply it. The Court noted that, although Scoby deemed “simple” and “open and obvious” to be two separate components of the test, in reality a product is “simple” precisely because the dangers associated with it are open and obvious, and Illinois courts have long rejected the notion that the openness and obviousness of a product’s danger was an absolute defense to a defective design claim. Instead, the open and obvious nature of the risk is only one of many factors that can be considered in deciding whether the risks of the design outweigh its benefits. The Court also cited policy reasons for refusing to adopt a per se exception for so-called “simple products,” including the concern that the existence of such an exception would reduction the incentive to make an “obviously” dangerous product safer with design changes. The Court listed thirteen factors that could be considered in applying the risk-benefit analysis, including several suggested by Dean John Wade.[8] The Court held, however, that the list was not dispositive or exhaustive, and not all of them might be applicable in every case. The Court concluded that one factor was applicable to the product in question and weighed in favor of the plaintiff, namely, its “Safety Aspects,” i.e., the likelihood that as designed the Aim N Flame would cause injury and the probable seriousness of that injury. The Court found that the plaintiff had presented detailed evidence on the likelihood and seriousness of injury from lighters without child-safety devices. The Court found two factors that favored Scripto: the utility of the Aim N Flame and the user’s awareness of its dangers. After an exhaustive analysis of each of these factors, the Court determined that reasonable persons could differ on whether the risks of the Aim N Flame outweighed its utility without a child-safety device, and reversed the trial court’s decision granting summary judgment in favor of Scripto on the strict liability claims. Notably, the Illinois Supreme Court had previously addressed the Scoby exception in a medical products liability case, Hansen v. Baxter Healthcare Corp.,[9] involving a Leur-lock IV catheter connector. The Hansen Court never reached the viability of that exception, however, but instead merely rejected the comparison of a catheter connector (described as a safety device) to the open and obvious danger of the deep-fat fryer in Scoby. The per se exception for simple products with open and obvious dangers was eliminated in Calles, although the open and obvious danger of a product remains very much a factor to be considered. -------------------------------------------------------------------------------------------------------------------- [1] Calles v. Scripto-Tokai Corp.,224 Ill.2d 247 (2007). [2] Restatement (Second) of Torts, s. 402A (1965). [3] Id., comment i. [4] Lamkin v. Towner, 138 Ill.2d 510, 528 (1990). [5] Scoby v. Vulcan-Hart Corp., 211 Ill.App.3d 106, 112 (4th Dist. 1991). [6] Id. [7] Note 1, supra, at 11. [8] These potential factors include:
[9] Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420 (2002). -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
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