- "Consumer Expectation" vs. "Risk-Utility" Test for Defective Design: Both Available in Illinois Depending on Theory of Case and Supporting Evidence
- December 5, 2008
- Law Firm: Hinshaw & Culbertson LLP - Chicago Office
Mikolajczyk v. Ford Motor Company 2008 WL 4603565 (Oct. 17, 2008, Supreme Court of Illinois)
On February 4, 2000, the Ford Escort operated by a driver was struck from behind while stopped at a red light. The driver consequently suffered severe injuries, ultimately resulting in death. Plaintiff, the deceased driver’s widow, sued: (1) the other motorist, for negligence; (2) the car manufacturer, for strict products liability; and (3) the designer of an allegedly defective seat in the vehicle, also for strict products liability.
Plaintiff alleged in her strict liability claims that the allegedly defective seat collapsed when the deceased’s vehicle was struck from behind, and that that design defect proximately caused the driver’s death. The jury found that the driver’s seat was in an unreasonably dangerous condition, which proximately caused the death. The jury returned a verdict in favor of plaintiff, and awarded $2 million for loss of money, goods and services, and $25 million for loss of society.
On appeal, defendants argued that the jury was improperly instructed. The appellate court rejected this argument, but reversed the judgment in part, finding the $25 million award for loss of society excessive. The Supreme Court of Illinois granted defendants’ petition for leave to appeal, to consider whether the trial court erred in its instructions to the jury. Defendants argued that with respect to the instruction regarding the proper measure of defective design, the trial court erred when it instructed the jury on the consumer-expectation test, rather than the risk-utility test. In the alternative, defendants asserted that even if Illinois has not yet adopted risk-utility as the exclusive test, the circumstances of this case warranted a risk-utility instruction.
The Court explained that in strict liability actions, Illinois recognizes that defective design claims can be proven by either the consumer-expectation test or the risk-utility test. Under the consumer expectation test, a plaintiff may introduce evidence that the product failed to “perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” In contrast, the risk-utility test allows the plaintiff to introduce evidence that the product’s design proximately caused the injury. Under such an approach, if the defendant does not prove “that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs,” the plaintiff’s claim will succeed.
More specifically, the consumer-expectation test focuses on the manner in which the allegedly dangerous product was used, whereas the risk-utility test hones in on the availability and feasibility of alternative designs for the product. In this case, the instruction given to the jury focused on the use of the allegedly dangerous product. The instruction did not contain “any content specific to the risk-utility test.” Defendants interpreted recent Illinois Supreme Court case law as holding that the risk-utility test is the only proper test in cases involving complex products and asserted that the failure to instruct on it was improper. The Court rejected this claim.
Nevertheless, while the Court rejected the argument that risk-utility is the exclusively proper test, it found merit in defendants’ alternative argument that the circumstances of this case warranted a jury instruction on the risk-utility test. Specifically, the Court reasoned that a plaintiff may not preclude the giving of a jury instruction that presents the defendants’ theory of the case, “so long as the defendants’ instruction accurately states the law and is supported by the evidence.” Accordingly, the trial court was required to determine whether the risk-utility test “was sufficiently implicated by the evidence presented during the trial.” Defendants argued that the risk-utility test was implicated by expert testimony concerning, among other things, “. . . the commercial availability of cars with alternative seat designs at the time the Escort was manufactured, the risks posed by rigid seats, and the circumstances in which a yielding seat would be safer than a rigid seat.” The Court found this evidence sufficient to warrant a risk-utility jury instruction. In addition, the Court found that defendants were prejudiced “by the failure to give an instruction that would have caused the jury to apply the risk-utility test in addition to the consumer-expectation test.” The Court reversed the decision of the appellate court, holding that a retrial on the issue of liability was warranted as the trial court’s refusal to submit the defendants’ risk-utility instruction to the jury precluded the jury from “applying the correct legal principles to the submitted evidence.”