Calles v. Scripto-Tokai Corp.

Docket No. 101089.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

SUSAN CALLES, Independent Adm’r of the Estate of Jillian Calles,

Deceased, and Indiv., Appellee, v. SCRIPTO-TOKAI

CORPORATION et al., Appellants (Richard Fox et al., Appellees).

Opinion filed February 16, 2007.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Justices Freeman, Fitzgerald, and Garman concurred in the

judgment and opinion.

Justice Karmeier specially concurred, with opinion.

Chief Justice Thomas and Justice Kilbride took no part in the

decision.

OPINION

In Illinois, two tests are employed when determining whether a

product is unreasonably dangerous under a strict liability design-defect

theory–the consumer-expectation test and the risk-utility test. In this

case, we are asked to consider whether there is a “simple product”

exception to the application of the risk-utility test. That is, we must

decide whether a product which is deemed “simple” and its dangers

“open and obvious” will be per se exempt from the risk-utility test and

subject only to the consumer-expectation test. We decline to adopt

such a per se rule.

BACKGROUND

On March 31, 1998, plaintiff Susan Calles resided with her four

daughters, Amanda, age 11, Victoria, age 5, and Jenna and Jillian, age

3. At some point that night, Calles left her home with Victoria to get

videos for Amanda. When she left, the twins were in bed and Amanda

was watching television. Calles returned to find fire trucks and

emergency vehicles around her home. It was subsequently determined

by a fire investigator, Robert Finn, that Jenna had started a fire using

an Aim N Flame utility lighter Calles had purchased approximately

one week earlier. The Aim N Flame was ignited by pulling a trigger

after an “ON/OFF” switch was slid to the “on” position. As a result

of the fire, Jillian suffered smoke inhalation. She was hospitalized and

died on April 21.

Calles, individually and as administrator of Jillian’s estate, filed suit

in the circuit court of Cook County against Tokai, designer and

manufacturer of the Aim N Flame, and Scripto-Tokai, distributor

(collectively Scripto), alleging that the Aim N Flame was defectively

designed and unreasonably dangerous because it did not contain a

child-resistant safety device. According to the complaint, a safety

device was available, inexpensive, and would have reduced the risk

that children could ignite the lighter. Calles’ claims sounded in strict

liability, negligence, and breach of the implied warranties of

merchantability and fitness for a particular purpose.1 Calles further

alleged that Scripto was negligent and strictly liable because of a

failure to give adequate warnings.

1

The only counts at issue here are the strict liability and negligent-

product-design claims. Calles abandoned the breach of warranty claims by

failing to argue for reversal of summary judgment before the appellate court.

Although Calles appealed the trial court’s order granting summary judgment

in favor of Scripto in general, she presented no argument to the appellate

court in connection with the breach of warranty claims. Therefore, she has

forfeited these claims from any further challenge. Accordingly, we do not

address the breach of warranty claim.

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Calles also filed a medical malpractice claim against Dr. Richard

Fox and Loyola University Medical Center (collectively Loyola) in

connection with their treatment of Jillian following the fire. Scripto

filed counterclaims against Calles and Loyola. Loyola then filed a

counter-complaint for contribution against Scripto.

Thereafter, Scripto filed a motion for summary judgment on the

claims brought by Calles and Loyola. Scripto argued that: (1) the Aim

N Flame was not defective or unreasonably dangerous because it

worked as expected; (2) Scripto had no duty to make an adult product

child resistant; (3) Scripto had no duty to warn because the dangers

of the Aim N Flame were open and obvious; and (4) there was no

breach of warranties because the Aim N Flame operated as intended

and expected.

In support of its motion for summary judgment, Scripto offered

the deposition testimony of Calles and Robert Finn, the fire inspector.

In her deposition, Calles admitted she was aware of the risks and

dangers presented by lighters in the hands of children, and, for this

reason, she stored the Aim N Flames on the top shelf of her kitchen

cabinet. Calles further admitted that the Aim N Flame operated as

intended and expected.

In opposition to Scripto’s motion for summary judgment, Calles

offered affidavits from several experts including John Geremia, a

chemical and mechanical engineer; Tarald Kvålseth, a mechanical and

industrial engineer; William Kitzes, a board-certified product safety

manager; Richard Dahlquist, an electrical engineer; and Carol Pollack-

Nelson, an engineering psychologist. All of these experts opined that

the Aim N Flame was defective and unreasonably dangerous because

it lacked a child-resistant design. They also opined that a

technologically and economically feasible alternative design, which

included a child-resistant safety device, existed at the time the Aim N

Flame was manufactured. Several of the experts averred that Scripto

was aware of the desirability of a child-safety device because it knew

children could operate the Aim N Flame. Further, according to these

experts, Scripto owned the technology to make the Aim N Flame child

resistant in 1994 and 1995.

With respect to the cost of an alternative design, Kvålseth noted

that the Consumer Product Safety Commission, the regulatory body

for lighters, in a proposed rule dated September 30, 1998, estimated

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the increased cost of adding a safety device to the lighter would be

$0.40 per unit. However, it was Kvålseth’s opinion that, had the

feature been incorporated into the original design, the cost would have

been negligible.

Calles also offered evidence of the dangerousness of lighters in the

hands of children and Scripto’s awareness of such dangers. She

introduced into evidence statistics showing the number of previous

fires started by children with lighters (both utility and cigarette), the

number of deaths and injuries that had occurred each year as a result

of fires started by children, and the reduction in cost to society that

would be derived from the addition of child-resistant safety devices on

the lighters. Calles further pointed to Scripto’s answers to

interrogatories, in which Scripto admitted they had been named as

defendants in 25 lawsuits filed between 1996 and 2000 for injuries that

occurred between 1992 and 1999 under circumstances similar to this

case.

The trial court granted summary judgment in favor of Scripto on

both Calles’ complaint and Loyola’s counter-complaint. The trial

court found that all claims “must fall because these defendants neither

owed nor breached any duty imposed upon them by law” under any

of the causes of action raised.

On appeal, the appellate court affirmed in part and reversed in

part.2 358 Ill. App. 3d 975. With respect to strict liability, the

appellate court held that the Aim N Flame “does not qualify as the

kind of especially simple device for which the result of the risk-utility

balancing is too obvious for trial.” 358 Ill. App. 3d at 983.

Accordingly, the appellate court reversed the trial court’s grant of

summary judgment in favor of Scripto. 358 Ill. App. 3d at 984. The

appellate court also reversed summary judgment on the negligent-

design claims and remanded for further proceedings. 358 Ill. App. 3d

2

The appellate court affirmed summary judgment in favor of Scripto

“insofar as the judgment relates to claims for failure to warn.” 358 Ill. App.

3d at 984. We note that the “failure to warn” was not a separate count but

rather part of the allegations under each of the other counts (strict liability,

negligence, and breach of warranty) serving as a basis to impose liability

upon Scripto. No arguments are raised before us in connection with the

propriety of the appellate court’s holding and, thus, we need not address it.

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at 984. We granted Scripto’s petition for leave to appeal. 210 Ill. 2d

R. 315.

Analysis

Strict Liability

In Suvada v. White Motor Co., 32 Ill. 2d 612, 622-23 (1965), this

court adopted the strict liability doctrine set forth in section 402A of

the Second Restatement of Torts. Under this doctrine, strict liability

is imposed upon a seller of “any product in a defective condition

unreasonably dangerous to the user or consumer or to his property.”

Restatement (Second) of Torts §402A, at 347-48 (1965). The test

outlined in section 402A for determining whether a product is

“unreasonably dangerous” is known as the consumer-expectation or

consumer-contemplation test. This test provides that a product is

“unreasonably dangerous” when it is “dangerous to an extent beyond

that which would be contemplated by the ordinary consumer who

purchases it, with the ordinary knowledge common to the community

as to its characteristics.” Restatement (Second) of Torts §402A,

Comment i, at 352 (1965).

Under the consumer-expectation test, a plaintiff must establish

what an ordinary consumer purchasing the product would expect

about the product and its safety. This is an objective standard based

on the average, normal, or ordinary expectations of the reasonable

person; it is not dependent upon the subjective expectation of a

particular consumer or user. See American Law of Products Liability

3d §17:24, at 17–44 (1997); L. Bass, Products Liability: Design &

Manufacturing Defects §4:1 (2d ed. 2001); Britton v. Electrolux

Home Products, Inc., No. CIV–05–1322–F (W.D. Okla. October 13,

2006); Crosswhite v. Jumpking, Inc., 411 F. Supp. 2d 1228, 1232 (D.

Or. 2006); Henrie v. Northrop Grumman Corp., No.

2:04–CIV–00296 (D. Utah April 24, 2006). See also 1 D. Owens, M.

Madden & M. Davis, Madden & Owens on Products Liability §5:6,

at 294–5 (3d ed. 2000).

The consumer-expectation test was originally applied to

manufacturing defects, but soon came to be applied to design-defect

issues as well. Over time, the applicability of the consumer-

expectation test to design-defect cases was questioned, primarily

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because it became apparent that consumers might not be aware of

what to expect regarding the safety of certain products. See Barker v.

Lull Engineering Co., 20 Cal. 3d 413, 427-28, 573 P.2d 443, 452-53,

143 Cal. Rptr. 225, 234-35 (1978). Accordingly, this court in Lamkin

v. Towner, 138 Ill. 2d 510, 528 (1990), adopted a second, alternative

test for design defect cases known as the risk-utility, or risk-benefit,

test. See Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 91

(2005) (noting this court “understood the problem[s associated with

application of the consumer-expectation test to design-defect cases]

and recognized a second, alternative test”).

In Lamkin, this court held that a plaintiff may demonstrate a

product has been defectively designed “in one of two ways.” One way

a plaintiff may demonstrate a design defect is to present evidence that

the product fails to satisfy the consumer-expectation test.

Alternatively, a plaintiff may demonstrate a design defect by

presenting evidence that the risk of danger inherent in the challenged

design outweighs the benefits of such design. Lamkin, 138 Ill. 2d at

529; Blue, 215 Ill. 2d at 98-99.

The rationale for employing two tests was explained in Barker.

There, the court noted that “at a minimum a product must meet

ordinary consumer expectations as to safety to avoid being found

defective.” (Emphases omitted.) Barker, 20 Cal. 3d at 426 n.7, 573

P.2d at 451 n.7, 143 Cal. Rptr. at 233 n.7. However, “the

expectations of the ordinary consumer cannot be viewed as the

exclusive yardstick for evaluating design defectiveness because ‘[i]n

many situations ... the consumer would not know what to expect,

because he would have no idea how safe the product could be made.’

[Citation.]” Barker, 20 Cal. 3d at 430, 573 P.2d at 454, 143 Cal. Rptr.

at 236. Thus, even if a product satisfies ordinary consumer

expectations, “if through hindsight the jury determines that the

product’s design embodies ‘excessive preventable danger,’ or, in other

words, if the jury finds that the risk of danger inherent in the

challenged design outweighs the benefits of such design,” a product

may be found defective in design. Barker, 20 Cal. 3d at 430, 573 P.2d

at 454, 143 Cal. Rptr. at 236. See also Soule v. General Motors

Corp., 8 Cal. 4th 548, 567, 882 P.2d 298, 308, 34 Cal. Rptr. 2d 607,

617 (1994) (refining Barker test and holding that the “consumer

expectations test is reserved for cases in which the everyday

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experience of the product’s users permits a conclusion that the

product’s design violated minimum safety assumptions,” (emphases

omitted) but that “the risks and benefits of a challenged design must

be carefully balanced whenever the issue of design defect goes beyond

the common experience of the product’s users”).

Since Lamkin, this court has continued to employ these two tests

when determining whether a product is unreasonably dangerous. See

Blue, 215 Ill. 2d at 91-92 (noting there are two, alternative tests in

Illinois for proving a strict liability design defect claim); Hansen v.

Baxter Healthcare Corp., 198 Ill. 2d 420, 433-38 (2002) (separately

analyzing whether an IV catheter connector was unreasonably

dangerous under the consumer-expectation and risk-utility tests). We

now turn to them.

Consumer-Expectation Test

As noted above, under the consumer-expectation test, a plaintiff

may prevail if he or she demonstrates that the product failed to

perform as an ordinary consumer would expect when used in an

intended or reasonably foreseeable manner. In the case at bar, there is

a threshold question. Whose expectations control, i.e., the adult

purchaser or the child user? Calles argues we must apply the

consumer-expectation test from the point of view of a child. We

disagree.

For purposes of the consumer-expectation test, “ordinary”

modifies consumer. Ordinary means “[r]egular; usual; normal;

common.” Black’s Law Dictionary 989 (5th ed. 1979). See also 1

Madden & Owen on Products Liability §8:3, at 71 (Supp. 2006)

(ordinary consumer “applies to the customary or usual consumer of

the product”). See also Swix v. Daisy Manufacturing Co., 373 F.3d

678, 686 (6th Cir. 2004) (“ ‘[t]he focus is the typical user’s

perception and knowledge’ [citation]” (emphasis added)). Several

courts in other jurisdictions have held that the “ordinary consumer” of

a lighter is an adult, not a child. See, e.g., Talkington v. Atria

Reclamelucifers Fabrieken BV, 152 F.3d 254, 263 (4th Cir. 1998)

(applying South Carolina law); Curtis v. Universal Match Corp., 778

F. Supp. 1421, 1425 (E.D. Tenn. 1991), aff’d, 966 F.2d 1451 (6th

Cir. 1992); Kelley v. Rival Manufacturing Co., 704 F. Supp. 1039,

1043 (W.D. Okla. 1989); Welch v. Scripto-Tokai Corp., 651 N.E.2d

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810, 814 (Ind. App. 1995); Bellotte v. Zayre Corp., 116 N.H. 52, 54,

352 A.2d 723, 725 (1976). In light of these cases, we hold that the

ordinary consumer of a lighter, such as the Aim N Flame here, is an

adult–the typical user and purchaser. Therefore, the expectations

regarding the Aim N Flame’s use and safety must be viewed from the

point of view of the adult consumer.

We now consider whether the Aim N Flame meets the consumer-

expectation test. The purpose of a lighter, such as the Aim N Flame,

is to produce a flame. See T. Peters & H. Carroll, Playing with Fire:

Assessing Lighter Manufacturers’ Duties Regarding Child Play

Lighter Fires, 9 Loy. Consumer L. Rep. 339, 340 (1997). Clearly

then, the ordinary consumer would expect that, when the trigger is

pulled, a flame would be produced. Here, the Aim N Flame was not

used in its intended manner, i.e., by an adult. Thus, the question is

whether it was used in a reasonably foreseeable manner. We find that

it was.

An ordinary consumer would expect that a child could obtain

possession of the Aim N Flame and attempt to use it. Thus, a child is

a reasonably foreseeable user. Likewise, an ordinary consumer would

appreciate the consequences that would naturally flow when a child

obtains possession of a lighter. See M. Madden, Products Liability,

Products for Use by Adults, And Injured Children: Back to the

Future, 61 Tenn. L. Rev. 1205, 1222 (Summer 1994). Specifically, an

ordinary consumer would expect that the Aim N Flame, in the hands

of a child, could cause the result that occurred here–the starting of a

fire that led to injury to a child. See, e.g., Flock v. Scripto-Tokai

Corp., 319 F.3d 231, 242 (5th Cir. 2003) (Texas law); Curtis, 778 F.

Supp. at 1430 (Tennessee law); Bondie v. BIC Corp., 739 F. Supp.

346, 349 (E.D. Mich. 1990); Williams v. BIC Corp., 771 So. 2d 441,

449-50 (Ala. 2000); Welch, 651 N.E.2d at 814; Price v. BIC Corp.,

142 N.H. 386, 390, 702 A.2d 330, 333 (1997); Campbell v. BIC

Corp., 154 Misc. 2d 976, 978, 586 N.Y.S.2d 871, 873 (1992);

Perkins v. Wilkinson Sword, Inc., 83 Ohio St. 3d 507, 513, 700

N.E.2d 1247, 1252 (1998); Hernandez v. Tokai Corp., 2 S.W.3d 251,

258 (Tex. 1999).

Under the facts of this case, the Aim N Flame performed as an

ordinary consumer would expect–it produced a flame when used in a

reasonably foreseeable manner, i.e., by a child. This leads to the

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inescapable conclusion that the ordinary consumer’s expectations

were fulfilled. In other words, the Aim N Flame did not fail to perform

as an ordinary consumer would expect when used in a reasonably

foreseeable manner. Thus, as a matter of law, no fact finder could

conclude that the Aim N Flame was unreasonably dangerous under the

consumer-expectation test. Therefore, Calles cannot prevail under this

theory.

This does not end our analysis however. Though the Aim N Flame

satisfies the consumer-expectation test, it may, nonetheless, be

deemed unreasonably dangerous under the risk-utility test.

Risk-Utility Test

Under the risk-utility test, a plaintiff may prevail in a strict liability

design-defect case if he or she demonstrates that the magnitude of the

danger outweighs the utility of the product, as designed. Lamkin, 138

Ill. 2d at 529. Stated differently, “[t]he utility of the design must

therefore be weighed against the risk of harm created” and “[i]f the

likelihood and gravity of the harm outweigh the benefits and utilities

of the product, the product is unreasonably dangerous.” 63A Am. Jur.

2d Products Liability §978, at 146-47 (1997).

Relying on Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106

(1991), Scripto argues there is a “simple product” exception to the

application of the risk-utility test. In other words, Scripto contends

that, when a product is deemed “simple,” the risk-utility test need not

be employed. We disagree.

In Scoby, an individual was injured while working in a restaurant

kitchen when he slipped and fell and his arm became submerged in hot

oil contained in an open deep-fat fryer. Scoby, 211 Ill. App. 3d at 107.

The plaintiff sued the fryer manufacturer, alleging a design defect, and

argued for liability under the risk-utility test. Scoby, 211 Ill. App. 3d

at 109. Relying on Lamkin, the manufacturer argued that, because the

danger at issue was not “excessive,” the risk-utility test should not be

utilized. Scoby, 211 Ill. App. 3d at 111-12.

The Scoby court agreed with the defendant. Scoby, 211 Ill. App.

3d at 112. Noting that hot oil in a fryer was an open and obvious

danger and that, for efficient kitchen operation, it was often necessary

to keep a lid off the fryer, the Scoby court concluded:

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“We do not deem that Lamkin or other cases applying

aspects of the danger-utility test intend that all manufacturers

*** should be subject to liability depending upon a trier of

fact’s balancing under that test ***. Somewhere, a line must

be drawn beyond which the danger-utility test cannot be

applied. Considering not only the obvious nature of any

danger here but, also, the simple nature of the mechanism

involved, we conclude the circuit court properly applied only

the consumer-user contemplation test.” Scoby, 211 Ill. App.

3d at 112.

Several appellate court decisions have followed Scoby in various

situations giving rise to the so called “simple product” exception to

the application of the risk-utility test. See Miller v. Rinker Boat Co.,

352 Ill. App. 3d 648, 664 (2004); Mele v. Howmedica, Inc., 348 Ill.

App. 3d 1, 19 (2004); Bates v. Richland Sales Corp., 346 Ill. App. 3d

223, 234 (2004); Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d

895, 908 (2002); Besse v. Deere & Co., 237 Ill. App. 3d 497, 501-02

(1992).

In support of their position that summary judgment was properly

granted in their favor, Scripto also cites to Todd v. Societe Bic, S.A.,

21 F.3d 1402 (7th Cir. 1994), wherein the court applied the Scoby

exception to facts very similar to those in the case at bar. In Todd, a

two-year-old child died when a four-year-old child used a Bic lighter

to start a fire in the two-year-old’s bedroom. Todd, 21 F.3d at 1403.

The plaintiff filed a strict liability design-defect claim against the

manufacturer, alleging the lighter was unreasonably dangerous

because it did not contain a child-resistant safety device. Todd, 21

F.3d at 1404. The district court granted summary judgment in favor

of the manufacturer and the plaintiff appealed. Todd, 21 F.3d at 1405.

The Seventh Circuit Court of Appeals affirmed, concluding that the

lighter was not unreasonably dangerous under the consumer-

expectation test because it performed exactly as a consumer would

expect–it produced a flame when activated. Todd, 21 F.3d at 1407.

The Todd court then observed that this court had adopted a

second test in strict liability design-defect cases, the risk-utility test.

The court also observed, however, that in Scoby, a simple-product

exception to application of this test had been adopted. Todd, 21 F.3d

at 1410-11. Noting that this court had not yet addressed the Scoby

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exception, the Todd court opined that this court “would not apply the

risk-utility test to simple but obviously dangerous products.” Todd, 21

F.3d at 1412. The Todd court then concluded the lighter was a simple

product and, for that reason, the risk-utility test was not applicable.

Todd, 21 F.3d at 1412.

While this court has made reference to Scoby in past decisions, we

have never had occasion to squarely address the simple-product

exception it adopted. See Blue, 215 Ill. 2d at 108; Hansen, 198 Ill. 2d

at 437. We do so now.

Upon close examination of Scoby, we find that it uses “simple”

and “open and obvious” as separate components. However, in our

view, the dangers associated with a product that is deemed “simple”

are, by their very nature, open and obvious. See, e.g., Swix, 373 F.3d

at 684-85 (finding “that the fact that a product may be a ‘simple tool’

is not dispositive in a design defect case–the obviousness of a danger

is merely one factor in the analysis of whether the risks are

unreasonable in light of the foreseeable injuries”). We conclude, then,

that Scoby’s adoption of a “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.

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. Restatement (Third) of Torts: Products

Liability §2, Reporters’ Note, Comment d, at 84-85 (1998)

(identifying 25 jurisdictions that have rejected a per se rule). See also

American Law of Products Liability 3d §28:82, at 28–108 (1997); 61

Tenn. L. Rev. at 1227-28. We, too, recognized this principle in Blue,

when this court stated:

“In strict products liability cases, the open and obvious nature

of the risk is just one factor to be considered in the range of

considerations required by the risk-utility test, and it will only

serve to bar the liability of the manufacturer where it

outweighs all other factors to be considered in weighing the

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inherent design risks against the utility of the product as

manufactured.” Blue, 215 Ill. 2d at 103. 3

Moreover, this court noted that such a ruling appeared to be

consistent with Illinois law. Blue, 215 Ill. 2d at 103, citing Coney v.

J.L.G. Industries, Inc., 97 Ill. 2d 104, 119 (1983) (assumption of risk

is not a bar to recovery in strict liability). See also Miller, 352 Ill.

App. 3d at 661; Wortel, 331 Ill. App. 3d at 902. As one case has held,

the obviousness of a risk inherent in a product, simple or nonsimple,

does not by itself obviate a manufacturer’s liability. Cacevic v.

Simplimatic Engineering Co., 241 Mich. App. 717, 725, 617 N.W.2d

386, 390 (2000), vacated in part, 463 Mich. 997, 625 N.W.2d 784

(2001).

Policy reasons also support rejection of a per se rule excepting

simple products with open and obvious dangers from analysis under

the risk-utility test. Adoption of such a rule would essentially absolve

manufacturers from liability in certain situations even though there

may be a reasonable and feasible alternative design available that

would make a product safer, but which the manufacturer declines to

incorporate because it knows it will not be held liable. This would

discourage product improvements that could easily and cost-

effectively alleviate the dangers of a product. A per se rule would also

frustrate the policy of preventing future harm which is at the heart of

strict liability law. See 1 Madden & Owens on Product Liability §8:3,

at 447 (noting that the consumer-expectation test limited by the open

and obvious doctrine “perniciously rewards manufacturers for failing

to adopt cost-effective measures to remedy obviously unnecessary

dangers to human life and limb”); Restatement (Third) of Torts:

Products Liability §2, Comment a, at 16 (1998) (strict liability for

design defects creates “incentives for manufacturers to achieve

optimal levels of safety in designing and marketing products”);

Restatement (Third) of Torts: Products Liability §2, Reporters’ Note,

Comment a, at 40 (1998) (strict liability “promotes investment in

product safety”).

3

Although there were three separate opinions in Blue, involving four

members of this court, no justice disagreed with the proposition that an open

and obvious danger is not an absolute bar to a strict liability design-defect

claim.

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Accordingly, we hold 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 risk-utility test. Rather, the open

and obvious nature of a danger is one factor that may be weighed in

the risk-utility test. Blue, 215 Ill. 2d at 103. See also Restatement

(Third) of Torts: Products Liability §2, Reporters’ Note, Comment d,

at 85 (1998). We reject Scoby’s adoption of a per se rule excepting

simple products with open and obvious dangers from analysis under

the risk-utility test. Accordingly, we reject Scripto’s assertion that

only the consumer-expectation test applies here. We now consider

whether Calles presented sufficient evidence under the risk-utility test

to withstand summary judgment.

Under the risk-utility test, a court may take into consideration

numerous factors. In past decisions, this court has held that a plaintiff

may prove a design defect by presenting evidence of “the availability

and feasability of alternate designs at the time of its manufacture, or

that the design used did not conform with the design standards of the

industry, design guidelines provided by an authoritative voluntary

association, or design criteria set by legislation or governmental

regulation.” Anderson v. Hyster Co., 74 Ill. 2d 364, 368 (1979). See

also Hansen, 198 Ill. 2d at 436 (feasibility of alternative design

relevant); Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299, 304

(1982) (evidence of compliance with governmental regulations

relevant in design defect cases to determine whether a product is

unreasonably dangerous); Rucker v. Norfolk & Western Ry. Co., 77

Ill. 2d 434, 436-39 (1979) (same); Kerns v. Engelke, 76 Ill. 2d 154,

162-63 (1979) (feasibility of alternative design relevant). Although all

of these cases, except Hansen, preceded the adoption of the risk-

utility test in Illinois, we find the factors set forth in these cases are

relevant when engaging in risk-utility analysis. See Blue, 215 Ill. 2d at

92 (noting the rationale of Anderson “appears to partially set forth the

risk-utility test”).

John W. Wade, dean and professor of law, emeritus, Vanderbuilt

University School of Law, has also identified several factors relevant

when engaging in risk-utility analysis. These factors include:

“(1) The usefulness and desirability of the product-its

utility to the user and to the public as a whole.

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(2) The safety aspects of the product-the likelihood that it

will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would

meet the same need and not be as unsafe.

(4) The manufacturer’s ability to eliminate the unsafe

character of the product without impairing its usefulness or

making it too expensive to maintain its utility.

(5) The user’s ability to avoid danger by the exercise of

care in the use of the product.

(6) The user’s anticipated awareness of the dangers

inherent in the product and their availability, because of

general public knowledge of the obvious condition of the

product, or of the existence of suitable warnings or

instructions.

(7) The feasibility, on the part of the manufacturer, of

spreading the loss by setting the price of the product or

carrying liability insurance.” J. Wade, On The Nature of Strict

Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973).

Wade’s factors have been adopted and relied upon by numerous

jurisdictions, including our own appellate court. See LaBelle v. Philip

Morris, Inc., 243 F. Supp. 2d 508, 515 n.4 (D. S.C. 2001); Nemir v.

Mitsubishi Motors Sales Corp. of America, 60 F. Supp. 2d 660, 674

(E.D. Mich. 1999), aff’d in part, rev’d in part, 6 Fed. App’x 266 (6th

Cir. 2001); Dart v. Wiebe Manufacturing, Inc., 147 Ariz. 242, 245-

46, 709 P.2d 876, 879-80 (1985); Armentrout v. FMC Corp., 842

P.2d 175, 184 n.10 (Colo. 1992); Potter v. Chicago Pneumatic Tool

Co., 241 Conn. 199, 213 n.10, 694 A.2d 1319, 1330 n.10 (1997);

Tabieros v. Clark Equipment Co., 85 Haw. 336, 366, 944 P.2d 1279,

1309 (1997); Wortel, 331 Ill. App. 3d at 904; Banks v. Iron Hustler

Corp., 59 Md. App. 408, 425-26 & n.3, 475 A.2d 1243, 1252 & n.3

(1984); Nunnally v. R.J. Reynolds Tobacco Co., 869 So. 2d 373, 379-

80 (Miss. 2004); Duke v. Gulf & Western Manufacturing Co., 660

S.W.2d 404, 411-12 (Mo. App. 1983); Johansen v. Makita U.S.A.,

Inc., 128 N.J. 86, 96, 607 A.2d 637, 642-43 (1992); Duran v.

General Motors Corp., 101 N.M. 742, 747, 688 P.2d 779, 784 (App.

1983); Rainbow v. Albert Elia Building Co., 79 A.D.2d 287, 291 n.2,

436 N.Y.S.2d 480, 483 n.2 (1981), aff’d, 56 N.Y.2d 550, 449

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N.Y.S.2d 967, 434 N.E.2d 1345 (1982); Roach v. Kononen/Ford

Motor Corp., 269 Or. 457, 464, 525 P.2d 125, 128-29 (1974); Phatak

v. United Chair Co., 756 A.2d 690, 694 (Pa. Super. 2000); Ray v.

BIC Corp., 925 S.W.2d 527, 532, 533 n.10 (Tenn. 1996).

Lastly, we find that when assessing the utility of a product, the

following factors may also be relevant: “(1) the appearance and

aesthetic attractiveness of the product; (2) its utility for multiple uses;

(3) the convenience and extent of its use, especially in light of the

period of time it could be used without harm resulting from the

product; and (4) the collateral safety of a feature other than the one

that harmed the plaintiff.” American Law of Products Liability 3d

§28:19, at 28–30 through 28–31 (1997).

Although we have listed a number of factors which courts may

consider when assessing risk-utility, we do not mean to imply that the

list is exclusive. The factors cited merely illustrate those that may

assist a court and jury in evaluating whether a design is unreasonably

dangerous. A plaintiff need not present proof on each of the factors.

In the first instance, the court must balance factors it finds relevant to

determine if the case is a proper one to submit to the jury.

Restatement (Third) of Torts: Products Liability §2, Reporters’ Notes,

Comment e, at 94 (1998). Once this threshold determination has been

met, it is up to the fact finder to determine the importance of any

particular factor, and its “relevance, and the relevance of other factors,

will vary from case to case.” See Restatement (Third) of Torts:

Products Liability §2, Comment f, at 23 (1998). We now apply those

factors identified above to the evidence presented in the case at bar.

After reviewing the evidence presented, we find the only factor

which favors Calles and a finding of unreasonably dangerous is the

second Wade factor–safety aspects. Calles presented specific and

detailed evidence as to the likelihood of injury and the seriousness of

injury from lighters which do not have child-safety devices.

Factors which would favor Scripto and a finding that the product

is not unreasonably dangerous are the first and sixth Wade factors–the

utility of the Aim N Flame and the user’s awareness of the dangers. As

to the utility of the Aim N Flame, it is both useful and desirable to

society as a whole–it serves as an inexpensive alternative source of

fire. Moreover, compared to other sources of fire, such as matches, it

is more convenient and longer lasting since it is a multiuse product.

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The lighter may also be safer since it will extinguish if dropped on the

floor while lit, unlike a match. With respect to the user’s awareness of

the dangers, there is no question, based on Calles’ deposition

testimony, that it was obvious to her that the lighter could come into

the hands of a child and the dangers and risks that situation would

pose.

In connection with the remaining relevant factors, we find that

these neither weigh for nor against a finding of unreasonably

dangerous. Calles claims that a substitute product was available, but

the only evidence she relies upon is the fact Bic introduced a child-

resistant utility lighter in March 1998, the very same month of the

incident here. This is insufficient to demonstrate that a substitute

product was available at the time of the manufacture of the Aim N

Flame.

Calles offered expert affidavits regarding the availability and

feasibility of an alternative design, including product impairment and

cost factors, along with industry standards. Each expert opined, in a

conclusory fashion, that a feasible alternative design existed. Kvålseth

identified three alternative designs.

Scripto argues that, although Kvålseth set forth these alternative

designs, he failed to give a basis for his feasability determination, nor

did he show that these alternative designs met regulatory standards.

In this regard, Scripto notes that the Consumer Product Safety

Commission (CPSC), the regulatory body for these products, required

safety devices on cigarette lighters beginning in 1994, but exempted

utility lighters. It was not until 1999 that CPSC required safety

devices on utility lighters. See, e.g., Bartholic v. Scripto-Tokai Corp.,

140 F. Supp. 2d 1098, 1117 (D. Colo. 2000). CPSC exempted utility

lighters because it was concerned about “flashbacks” (the build up of

gas and resultant sudden flash when a lighter was not ignited

properly). Specifically, CPSC feared that if a child-resistant device on

a utility lighter needed to be reset between attempts, this could cause

a delay in ignition, resulting in the increased risk of flashback. Scripto

maintains that this concern shows that some of the child-resistant

options proffered by Kvålseth in his affidavit were not, in fact,

feasible. Scripto also disputes Calles’ claim that there would be no

impairment to the Aim N Flame from modification with a child-

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resistant safety device since she cites no evidence in support of her

argument.

With respect to the cost feasability, Calles offered evidence

through Kvålseth’s affidavit. According to Kvålseth,

“the CPSC [Consumer Product Safety Commission] in the

Proposed Rule dated September 20, 1998, has estimated that

the rule will likely increase the cost of manufacturing utility

lighters by about $0.40 per unit. The defendants have

indicated that such a cost increase would only be a few cents

per lighter. However, had a utility lighter *** been originally

designed to be effectively child resistant, *** then the

incremental cost due to an effective child-resistancy feature

would have been negligible.”

There is nothing in our record showing Scripto provided any amount

as to the increase in cost of incorporating a safety device. Apparently,

according to Loyola, this information was offered into evidence in

Flock, 319 F.3d 231, where an internal Scripto memorandum

authored in 1996 estimated cost increase would be $0.03 per unit. In

light of the foregoing, we conclude that a material issue of fact exists

on the question of whether there was a feasible alternative design

available, which cannot be determined on the basis of the record as it

currently stands.

Lastly, with respect to the user’s ability to avoid the danger, Calles

testified she put the Aim N Flames on the top shelf of her kitchen

cabinet. However, she also acknowledged she could have left them on

the counter. As Scripto maintains, the appellate court embraced the

former testimony, despite contradictory evidence. This is a factual

determination we cannot make.

Based on a review of the foregoing factors, reasonable persons

could differ on the weight to be given the relevant factors, particularly

where additional proofs are necessary, and thus could differ on

whether the risks of the Aim N Flame outweigh its utility. Therefore,

reasonable persons could differ as to whether the Aim N Flame is

unreasonably dangerous, and we cannot say that Scripto was entitled

to judgment as a matter of law. As such, we affirm the appellate

court’s decision reversing the trial court’s decision granting summary

judgment in favor of Scripto on the strict liability claims.

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Negligence Claim

The next question we must decide is whether Scripto was entitled

to summary judgment on the negligent-product-design claims.

The appellate court found that the trial court granted summary

judgment in favor of Scripto on the basis of the simple-product

exception. 358 Ill. App. 3d at 984. It then concluded that Blue held

that the risk-utility test was not applicable to negligent-product-design

claims. 358 Ill. App. 3d at 984. Based on this holding, the appellate

court reversed summary judgment and remanded for further

proceedings. We find that the appellate court erred in doing so.

There was no majority opinion in Blue holding that the risk-utility

test was not applicable to negligent-product-design cases. Rather, as

Justice Freeman pointed out, only three Justices (Thomas, Garman,

and Kilbride) concurred in this conclusion. Blue, 215 Ill. 2d at 115

(Freeman, J., specially concurring). As such, the conclusion that the

risk-utility test is not applicable in negligent-product-design cases is

not binding precedent. Accordingly, we conclude that the appellate

court erred in reversing summary judgment based on Blue and we

must review anew the trial court’s order that Scripto owed no duty,

nor breached any duty owed.

A product liability action asserting a claim based on negligence,

such as negligent design, falls within the framework of common law

negligence. Flaugher v. Sears, Roebuck & Co., 61 Ill. App. 3d 671,

675 (1978). Thus, a plaintiff must establish the existence of a duty of

care owed by the defendant, a breach of that duty, an injury that was

proximately caused by that breach, and damages. Ward v. K mart

Corp., 136 Ill. 2d 132, 140 (1990). The key distinction between a

negligence claim and a strict liability claim lies in the concept of fault.

Coney v. J.L.G. Industries, Inc., 97 Ill. 2d 104, 117 (1983). In a strict

liability claim, the focus is on the condition of the product. Coney, 97

Ill. 2d at 117-18. However, in a negligence claim, a defendant’s fault

is at issue in addition to the condition of the product. Coney, 97 Ill. 2d

at 117-18.

A manufacturer has a nondelegable duty to design reasonably safe

products. Doser v. Savage Manufacturing & Sales, Inc., 142 Ill. 2d

176, 188 (1990), quoting Savage Manufacturing & Sales, Inc. v.

Doser, 184 Ill. App. 3d 405, 410-11 (1989) (Jiganti, P.J., dissenting);

Coney, 97 Ill. 2d at 117. The crucial question in a negligent-design

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case is whether the manufacturer exercised reasonable care in the

design of the product. American Law of Products Liability 3d §28:46,

at 28-64 (1997); 63A Am. Jur. 2d Products Liability §953, at 130

(1997). See also Restatement (Second) of Torts §398, at 336 (1965)

(“A manufacturer of a chattel made under a plan or design which

makes it dangerous for the uses for which it is manufactured is subject

to liability to others whom he should expect to use the chattel or to be

endangered by its probable use for physical harm caused by his failure

to exercise reasonable care”).

In determining whether the manufacturer’s conduct was

reasonable, the question is “whether in the exercise of ordinary care

the manufacturer should have foreseen that the design would be

hazardous to someone.” American Law of Products Liability 3d

§28:48, at 28-66 (1997). See also 63A Am. Jur. 2d Products Liability

§953, at 129 (1997) (a manufacturer has a “duty to design against

reasonably foreseeable hazards”). To show that the manufacturer

acted unreasonably based on the foreseeability of harm, the plaintiff

must show the manufacturer knew or should have known of the risk

posed by the product design at the time of manufacture. 63A Am. Jur.

2d Products Liability §942, at 120 (1997).

Scripto argues that if the Aim N Flame is not unreasonably

dangerous for purposes of strict liability because of the open and

obvious nature of the dangers associated with it, then the Aim N

Flame is not unreasonably dangerous for purposes of negligent

product design. Stated differently, Scripto maintains that, because of

the patent nature of the danger, no duty exists on their part as a matter

of law, and they are entitled to summary judgment.

We disagree with Scripto’s argument for many of the reasons

stated in connection with our discussion of the strict liability claim.

The open and obvious nature of a danger is just one factor in

evaluating whether a manufacturer acted reasonably in designing its

product. It is not dispositive.

After reviewing the evidence presented here, we find that

conflicting evidentiary facts were presented with respect to whether

the design of the Aim N Flame was defective. We further find that

conflicting evidentiary facts were presented in connection with

foreseeability, i.e., Scripto’s knowledge of the potential risks posed by

the Aim N Flame’s design. Accordingly, we conclude that questions

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of fact exist as to whether Scripto exercised reasonable care in the

design and manufacture of the Aim N Flame, precluding summary

judgment. For the reasons stated, we affirm the appellate court’s

reversal of summary judgment in favor of Scripto on the negligent

product design claims.

Conclusion

We find there is no per se rule excepting application of the risk-

utility test where a product is deemed simple and its dangers are open

and obvious. We also find that there are material questions of law and

fact that preclude us from finding, as a matter of law, that the Aim N

Flame was not unreasonably dangerous under the risk-utility test. For

the reasons set forth above, we affirm the appellate court’s reversal of

summary judgment in favor of Scripto on the strict liability claims and

on the negligent-product-design claims.

Appellate court judgment affirmed.

CHIEF JUSTICE THOMAS and JUSTICE KILBRIDE took no

part in the consideration or decision of this case.

JUSTICE KARMEIER, specially concurring:

I agree with the majority summary judgment was improper in this

case because material questions of fact exist as to whether there was

a feasible alternative design available and whether Scripto exercised

reasonable care in the design and manufacture of the Aim N Flame.

With respect to the strict liability claim, I also agree that no reasonable

fact finder could conclude that the Aim N Flame was unreasonably

dangerous under the consumer expectation test. Regarding the risk-

utility test, however, I disagree with the reasoning behind the

majority’s rejection of the simple-product exception. I would hold that

whatever its merits, the exception has no application in this case

because the Aim N Flame lighter is not a simple product.

Consequently, the majority properly evaluates the plaintiff’s claim

under the risk-utility test.

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In Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106 (1991), the

plaintiff was working in a restaurant kitchen when he slipped and fell,

submerging his arm in hot oil contained in an open deep-fat fryer.

Scoby, 211 Ill. App. 3d at 112. The plaintiff sued the fryer

manufacturer, who argued that because the danger in question was not

“excessive,” the risk-utility test should not be utilized. Scoby, 211 Ill.

App. 3d at 111-12. The Scoby court agreed, holding that where the

danger at issue is open and obvious, and the mechanism in question is

simple, the risk-utility test should not be used. Scoby, 211 Ill. App. 3d

at 112-13.

The majority concludes that while Scoby used “simple” and “open

and obvious” as separate components, the dangers associated with a

“simple” product are, by their very nature, open and obvious.

Consequently, the majority concludes that the simple-product

exception set forth in Scoby is nothing more than the adoption of a

general rule that a manufacturer will not be liable for open and

obvious dangers, a position this court rejected in Blue v.

Environmental Engineering, 215 Ill. 2d 78, 103 (2005).

I am not persuaded by the majority’s reasoning. As the majority

acknowledges, the Scoby court treated simplicity of the product and

the openness and obviousness of the danger as separate elements. As

envisioned by Scoby, the simple-product exception applies only when

the product is simple and the dangers are open and obvious. In other

words, under the simple-product exception, the openness and

obviousness of a product’s dangers will not per se preclude liability

unless the product is also a simple one. The majority’s view that the

simple-product exception is nothing more than a general rule that a

manufacturer will not be liable for open and obvious dangers

essentially reads the “simple” component out of the simple-product

exception. Consequently, the majority rejects the simple-product

exception without ever addressing its merits.

Although I disagree with the majority’s rejection of the simple-

product exception, I would hold that it does not preclude application

of the risk-utility test in this case because the Aim N Flame is not a

simple product. Applying that test, I agree with the majority that there

was sufficient evidence to raise a genuine material issue of fact with

respect to the question of whether a feasible alternative design was

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available. Consequently, summary judgement on the strict liability

count was improper.

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