Change in Product Liability Precendent

Yields New IPI Instruction

By Bruce R. Pfaff

Pfaff & Gill, Ltd.

www.pfaffgill.com

Chicago

Illinois adopted strict product liability in 1965. To prove a case, plaintiff must establish the product is "unreasonably dangerous" and that the unreasonably dangerous condition of the product proximately caused the injury. IPI Civil 400.02. The IPI Committee approved the definition of "unreasonably dangerous" in the 1970's and its words are familiar to all of us who try products cases: "when I use the expression "unreasonably dangerous" in these instructions, I mean unsafe when put to a use that is reasonably foreseeable concerning the nature and function of the product." IPI Civil 400.06.

The use of IPI 400.06 had always been upheld since it was published. It has been used in design defect and in manufacturing defect cases for more than 30 years. Nevertheless, use of IPI 400.06 was held to be reversible error in a design defect case late last year. Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516 (2008). This article will describe the new standard of liability in design defect cases in Illinois.

To understand Illinois product liability law, one must read these decisions: Suvada v. White Motor Co., 32 Ill.2d 612 (1965), establishing strict liability under the Restatement Second, Section 402A; Lamkin v. Towner, 138 Ill.2d 510 (1990), adopting the risk-utility test as an alternative to the consumer expectation test; Carrillo v. Ford Motor Co., 325 Ill.App.3d 955 (1st Dist. 2001), affirming a plaintiff's verdict in a seat design case where the trial court used the identical instructions that were used in Mikolajczyk; Hansen v. Baxter Healthcare Corporation, 198 Ill.2d 420 (2002), affirming a plaintiff's verdict as being sufficient under both tests; Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 255-256 (2007), reversing summary judgment under the risk-utility test but affirming it under the consumer expectation test; and Mikolajczyk v. Ford Motor Company, supra, reversing and remanding a plaintiff's verdict because a risk-utility instruction should have been given instead of the consumer expectation instruction, IPI 400.06.

Lamkin was the first Supreme Court case to hold that plaintiff could prove a strict products case in either of two ways: consumer expectations, embodied in IPI 400.06, or the risk-utility test. The Lamkin court made it clear that plaintiff had the option of proving her case by either method. Lamkin, supra at 529. This holding was affirmed by the high court in Hansen and Calles. Hansen, supra at 433 and Calles, supra at 255. Lamkin, Hansen and Calles were design defect cases involving a window screen, a catheter and a disposable lighter. Hansen was tried using the IPI instruction; Lamkin and Calles both arrived at the Supreme Court on appeals from summary judgments.

The plaintiff's option of trying a design defect case under the consumer expectation test was taken away by the Supreme Court in Mikolajczyk. The plaintiff presented evidence that met their burden under the consumer expectation test. There was also evidence to support plaintiff's case under the risk-utility test. Plaintiff asked the trial court to give IPI 400.06 and the court did so. The Supreme Court held that IPI 400.06 embodied the consumer expectation test and should not have been given even though evidence supported the consumer expectation test that the product was unsafe when put to use that was reasonably foreseeable.

It takes a careful reading of the opinion and the two dissents from Chief Justice Fitzgerald to see exactly what the majority of the court did. Going forward in design defect cases, if there is any evidence of the utility of a product's design (when would a defendant not present such evidence?), the jury should be instructed on the risk-utility test to the exclusion of the consumer expectation test if Mikolajczyk remains binding precedent: "…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." Mikolajczyk, supra at 569.

One thing the court did not do was affirm the use of any of the defendants" tendered instructions, leaving the IPI Committee with a more challenging than usual task. The product of the Committee's work was published on the Supreme Court's website in May 2009. The Committee created a new instruction for design defect cases, IPI 400.06A. The new instruction says:

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.

The language of the instruction imposes the burden on plaintiff to prove that the risk of danger outweighs the benefits of the design. This is supported by language in the majority and dissenting opinions ("…no decision of this court has expressly adopted this burden-shifting formulation of the risk-utility test," Mikolajczyk, supra at 536; "[t]he burden of proof does not shift to Ford/Mazda.," Mikolajczyk, dissenting op, supra at 575). It should not be forgotten, however, that what Illinois courts have always called the "seminal case" on risk-utility, Barker v. Lull Engineering Co., 20 Cal.3d 413, 429-430 (1978) imposes the burden on the defendant to prove that the benefits of the design outweigh its risk of danger. Lamkin, Hansen and Calles had not questioned the Barker burden-shifting test in dicta, but it appears from Mikolajczyk that it may be plaintiff's burden to prove the risk outweighs the benefit. That is the view that the IPI Committee took in its formulation of its new instruction.

No reported Illinois case has been tried using risk-utility instructions. It seems highly unlikely in the usual design defect case that the risk-utility definition of "unreasonably dangerous" will lead a jury to a different result that the "consumer expectation" test. The retrial of Mikolajczyk is set to begin on October 5, 2009.