• Kirk Hartley

Illinois Supreme Court Finally Adopts the Risk Utility Test for Design Defect Product Liability Case

Finally, it has happened. The following article says it all:


By Stephanie Potter Law Bulletin staff writer

The Illinois Supreme Court on Friday set new ground rules for the method of proof in design-defect cases, and in so ruling granted a new trial to two car companies that were hit with a $27 million verdict to the family of a man killed in a high-speed, rear-end collision. At issue in the case was the relationship between the two tests that can be used by plaintiffs to prove their case in strict-liability design-defect cases: the consumer-expectations test and the risk-utility test. The consumer-expectations test asks whether the product failed to perform as safely as an ordinary consumer would expect when used in its intended manner. The risk-utility test asks whether the harm could have been avoided by the adoption of a reasonable alternative design and incorporates a number of factors, including the consumer’s expectations. Writing for the court in a 42-page opinion, Justice Rita B. Garman said both tests can be used by plaintiffs in strict-liability design-defect cases in order to prove a product is unreasonably dangerous. However, if the defendant presents evidence under the risk-utility test, that test is determinative because the consumer-expectations test is incorporated into it. In this case, Garman wrote, defendants Ford Motor Co. and Mazda Motor Corp. are entitled to a new trial because they presented evidence of risk-utility and requested a jury instruction on it, but were refused by Cook County Circuit Judge James P. Flannery Jr. ”In sum, we hold that both the consumer-expectation test and risk-utility test continue to have their place in our law of strict product liability based on design defect,” Garman wrote. ”Each party is entitled to choose its own method of proof, to present relevant evidence, and to request a corresponding jury instruction. If the evidence is sufficient to implicate the risk-utility test, the broader test, which incorporates the factor of consumer expectations, is to be applied by the trier of fact.” In so ruling, the high court rejected a request by attorneys for the defendants to adopt the risk-utility test as the sole method of proof in strict-liability design-defect cases involving complex products. Justice Thomas L. Kilbride did not participate in the ruling. Chief Justice Thomas R. Fitzgerald dissented in part, saying he believed the defendants’ proposed non-pattern jury instructions were flawed and that Flannery did not abuse his discretion in declining to give them to the jury. Plaintiff Connie Mikolajczyk sued the car companies after her husband, James, suffered fatal head injuries when his Ford Escort was struck from behind by a drunk-driver. James Mikolajczyk was stopped at a red-light when the driver, William Timberlake, plowed into him at 60 mph, the opinion said. The Mikolajczyks’ then 10-year-old daughter also was injured in the February 2000 wreck. The suit alleged that James Mikolajczyk died because of the driver’s side seat collapsed when the car was rear-ended, causing him to be propelled backward and strike his head on the backseat of the car. The seat was designed by Mazda, the opinion said. At trial, the car companies argued the ”yielding” seat used in the Escort would be safer than a rigid seat during certain types of accidents. They contend that jurors presented with an instruction on the risk-utility test could have weighed the evidence of risks, benefits and alternative designs and found in favor of the car companies, the opinion said. However, Garman wrote in summarizing the defense argument, being presented only with the consumer-expectation test in a case involving a fatal accident raised the risk that the jury might have ”done ‘rough-justice’ based on their sympathy for the tragic death of a young husband and father, without considering, for example, the evidence that 99.6 percent of the cars on the road at that time were equipped with yielding seats.” Because of its ruling ordering a new trial, it also did not take up a key issue in the 1st District Appellate Court’s ruling affirming the verdict finding the defendants liable. The appeals court had upheld the $2 million award to Connie Mikolajczyk for loss of money, goods and services, but found the $25 million loss of society award was excessive. Plaintiff attorney Bruce R. Pfaff of Pfaff & Gill Ltd. was disappointed in the ruling and planned to seek rehearing. Pfaff maintains that the ruling wrongly strips plaintiffs of control over their theory of the case. He said Flannery could not have predicted the high court’s change in the law when trial was held more than three years ago. Nevertheless, he said he would try the case again if necessary, and expected to prevail. ”I received the kindest e-mail from my clients expressing their faith in us and our work and telling us to keep on, and naturally we will,” Pfaff said. Pfaff tried the case with Michael T. Gill. Attorneys for the defendants also were confident they would prevail at a new trial. ”We think the improper jury instructions were a substantial contributing factor to the verdict against Ford in the case,” said Scott P. Glauberman of Winston & Strawn LLP. Also representing the defendants were Bruce R. Braun and a number of other attorneys from Winston & Strawn LLP, as well as Karen Kies DeGrand and Mark H. Boyle, both of Donohue, Brown, Mathewson & Smyth LLC. Amici briefs were filed for the defendants by the Products Liability Advisory Council Inc., the Illinois Manufacturers’ Association, the National Association of Manufacturers, the Illinois Association of Defense Trial Counsel, and the Alliance of of Automobile Manufacturers, Inc. The Illinois Trial Lawyers Association filed a brief in support of the plaintiff’s position. Connie Mikolajczyk etc. v. Ford Motor Co., et al., No. 104893. In other decisions issued Friday, the Supreme Court:


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