Mikolajczykv. Ford Motor Company

Docket No. 104983.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

CONNIE MIKOLAJCZYK, Indiv. and as Special Adm’r of the Estate

of James Mikolajczyk, Deceased, Appellee, v. FORD MOTOR

COMPANY et al., Appellants.

Opinion filed October 17, 2008.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Justices Freeman, Thomas, Karmeier, and Burke concurred in the

judgment and opinion.

Chief Justice Fitzgerald concurred in part and dissented in part,

with opinion.

Chief Justice Fitzgerald dissented upon denial of rehearing, with

opinion.

Justice Kilbride took no part in the decision.

OPINION

James Mikolajczyk died of injuries sustained when the Ford

Escort he was driving was struck from behind by another vehicle. His

widow, as special administrator of his estate, sued the other driver,

claiming negligence, and Ford Motor Company and Mazda Motor

Corporation, claiming defective design of the driver’s seat. Summary

judgment was entered against the other driver. The claims against the

other two defendants proceeded to a jury trial in the circuit court of

Cook County. The jury found defendants liable and awarded plaintiff

$2 million in damages for loss of money, goods, and services, and

$25 million for loss of society.

The appellate court affirmed in part and reversed in part.

Mikolajczyk v. Ford Motor Co., 369 Ill. App. 3d 78 (2006). This court

denied defendants’ petition for leave to appeal, but remanded the

matter to the appellate court with instructions to reconsider in light of

Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007). On remand, the

appellate court again affirmed in part and reversed in part, finding the

damages awarded for loss of society to be excessive and remanding

to the circuit court for a hearing on the proper amount of remittitur.

374 Ill. App. 3d 646. This court granted defendants’ petition for leave

to appeal pursuant to Supreme Court Rule 315 (210 Ill. 2d R. 315) to

determine whether the trial court erred by instructing the jury on the

consumer-expectation test and rejecting defendants’ tendered

instruction on the risk-utility test for defective design. In addition, we

allowed plaintiff’s petition to seek cross-relief on the damages issue.

We have permitted the Products Liability Advisory Council, Inc.,

the Illinois Manufacturers’ Association and the National Association

of Manufacturers, the Illinois Association of Defense Trial Counsel,

and the Alliance of Automobile Manufacturers, Inc., to file briefs

amici curiae on behalf of the defendants. We have also permitted the

Illinois Trial Lawyers Association to file a brief amicus curiae on

behalf of the plaintiff. 210 Ill. 2d R. 345.

BACKGROUND

On February 4, 2000, William Timberlake shared two pints of gin

with a friend before getting behind the wheel of his Cadillac. He was

traveling approximately 60 miles per hour when he smashed into the

rear of a 1996 Ford Escort that was stopped at a red light. The driver

of the Escort, James Mikolajczyk, suffered severe, irreversible brain

trauma and spent several days on life support before his death. His

daughter, Elizabeth, then aged 10, who was asleep in the backseat at

the time of the accident, suffered two broken legs. James was also

survived by his wife, Connie, and son, Adam, then aged 14.

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Plaintiff’s negligence suit against defendant Timberlake resulted

in the entry of summary judgment. Plaintiff’s lawsuit against

defendants Ford and Mazda alleged strict product liability premised

on defective design of the driver’s seat of the Escort. Specifically, she

claimed that as a result of the defective design of the seat, it collapsed

when the car was struck from behind, causing James to be propelled

rearward and to strike his head on the backseat of the car. Plaintiff

further alleged that the design of the seat was unreasonably dangerous

and that the design defect proximately caused James’s death. The

Escort was manufactured by defendant Ford. The seat was designed

by defendant Mazda; Ford had the authority to approve or disapprove

the design.

The trial testimony is summarized in detail in the appellate court

opinion. 374 Ill. App. 3d at 650-53. For purposes of this appeal, it is

necessary to note only that the evidence included testimony by expert

witnesses for both parties regarding the risks and benefits posed by

the “yielding” seat (referred to as the CT20 design), its compliance

with federal safety requirements, the availability and feasibility of a

rigid seat, the risks and benefits posed by the rigid seat design, and

the seat designs employed in other makes and models of cars

manufactured in 1996.

The trial court instructed the jury using plaintiff’s tendered

versions of Illinois Pattern Jury Instructions, Civil, Nos. 400.01.01

(setting out the plaintiff’s claim of defective design and the

defendants’ denials), 400.02 (setting out the plaintiff’s burden of

proof and the elements of a claim for strict liability), and 400.06

(defining the expression “unreasonably dangerous”). Illinois Pattern

Jury Instructions, Civil, Nos. 400.01.01, 400.02, 400.06 (2006)

(hereinafter IPI Civil (2006)). The trial court rejected defendants’

tendered nonpattern jury instructions that would have specifically

instructed the jury to consider the “overall safety” of the design,

whether the foreseeable risks of harm of the design outweighed its

benefits, and whether the adoption of a feasible alternative design

would have avoided or reduced the risks. Defendants argued

unsuccessfully that this instruction should be given either instead of

or in addition to instruction 400.06.

The jury answered the following special interrogatory in the

affirmative: “Was the driver’s seat of the Mikolajczyk car in an

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unreasonably dangerous condition that was a proximate cause of

James Mikolajczyk’s death?” The jury then returned a verdict in favor

of the plaintiff and awarded $2 million in damages for loss of money,

goods, and services and $25 million for loss of society. The jury

assigned 60% of fault to Timberlake and 40% to Ford and Mazda.

The appellate court rejected defendants’ argument that the jury

was improperly instructed, but reversed the judgment in part, finding

the $25 million award for loss of society excessive. 374 Ill. App. 3d

at 674.

Before this court, defendants argue that the appellate court

“turned back the evolution of Illinois law” by applying the “outdated”

consumer-expectation test rather than the risk-utility test that, they

assert, is now the exclusive test for defective design of a complex

product. In the alternative, they argue that even if this court has not

expressly adopted risk-utility as the exclusive test in such cases, it

should do so now. In effect, they argue that the trial court applied the

wrong substantive law to plaintiff’s claim, raising this issue in the

context of the trial court’s refusal to give their non-IPI jury

instruction. Defendants also argue that a new trial must be granted in

any event because the jury instructions that were given did not

correspond to the evidence presented at trial.

Plaintiff argues that the appellate court erred by finding the $25

million award for loss of society excessive and remanding for a new

hearing on defendants’ motion for remittitur.

ANALYSIS

Neither the first edition (1961) nor the second edition (1971) of

the Illinois Pattern Jury Instructions, Civil, contained instructions

dealing with claims of strict product liability. The 400.00 series of

instructions, which deals with strict product liability, was adopted in

1977 in a supplement to the second edition. See IPI Civil (2006), at

xiii-xiv (foreward to the third edition). The third edition, which was

adopted in 1992, retained instruction 400.06 without change, as have

subsequent editions in 1995, 1997, 2000, and 2006. Pattern jury

instruction 400.06 defines the term “unreasonably dangerous” in the

context of a strict product liability claim:

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“When I use the expression ‘unreasonably dangerous’ in

these instructions, I mean unsafe when put to a use that is

reasonably foreseeable considering the nature and function of

the [product].” IPI Civil (2006) No. 400.06.

The comment following this instruction observes that the

“expression ‘unreasonably dangerous’ first found acceptance in

Illinois in Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182

(1965).”1 IPI Civil (2006) No. 400.06, Comment, at 562. In Suvada,

this court recognized a cause of action for strict liability in tort against

the manufacturer of a product whose defective condition made it

unreasonably dangerous to the user or consumer. This court noted that

its conclusion “coincide[d] with the position taken in section 402A of

the American Law Institute’s revised Restatement of the Law of

Torts,” which had recently been approved. Suvada, 32 Ill. 2d at 621.

This section provides, in part, that:

“One who sells any product in a defective condition

unreasonably dangerous to the user or consumer or to his

property is subject to liability for physical harm thereby

caused to the ultimate user or consumer, or to his property

***.” Restatement (Second) of Torts §402A (1965).

The drafters of the pattern jury instruction explained that they

chose the phrase “unreasonably dangerous condition” instead of the

words “defect” or “defective condition” because the phrase “is more

conversational and is less likely to suggest traditional concepts of

fault to the jurors.” The drafters noted, further, that an instruction

defining “unreasonably dangerous” is needed “because the concept is

not generally understood by, nor within the common experience of,

jurors.” Under this instruction, “a product can be ‘unreasonably

dangerous’ only when put to a use that is reasonably foreseeable.” IPI

Civil (2006) No. 400.06, Comment, at 563.

It has since been well established that to recover in a strict product

liability action, a plaintiff must plead and prove that the injury

1

Suvada was impliedly overruled on other grounds in Frazer v. A.F.

Munsterman, Inc., 123 Ill. 2d 245 (1988). The implied overruling of Suvada

was recognized by this court in Dixon v. Chicago & North Western

Transportation Co., 151 Ill. 2d 108, 123 (1992).

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complained of resulted from a condition of the product, that the

condition was unreasonably dangerous, and that it existed at the time

the product left the manufacturer’s control. Sollami v. Eaton, 201 Ill.

2d 1, 7 (2002). A product may be found to be unreasonably dangerous

based on proof of any one of three conditions: a physical defect in the

product itself, a defect in the product’s design, or a failure of the

manufacturer to warn of the danger or to instruct on the proper use of

the product. Sollami, 201 Ill. 2d at 7.

As early as 1979, this court held that when a strict liability claim

is based on an alleged design defect, the product may be proven to be

unreasonably dangerous “by evidence of the availability and

feasibility 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).

That same year, this court held that a product may be found

unreasonably dangerous based on a design defect if the plaintiff

presents evidence of an alternative design that is “economical,

practical and effective.” Kerns v. Engelke, 76 Ill. 2d 154, 162-63

(1979). Such evidence introduces the question of feasibility, “ ‘since

a manufacturer’s product can hardly be faulted if safer alternatives are

not feasible.’ ” Kerns, 76 Ill. 2d at 163, quoting Sutkowski v.

Universal Marion Corp., 5 Ill. App. 3d 313, 319 (1972). Because the

evidence and the court’s instructions were sufficient for the jury to

find for the plaintiff in Kerns, this court did not determine whether a

plaintiff claiming design defect must plead and prove that a feasible

alternative design is available. Kerns, 76 Ill. 2d at 163-64.

In Lamkin v. Towner, 138 Ill. 2d 510, 528 (1990), this court

reiterated its earlier adoption of section 402A of the Restatement

(Second) of Torts, observing that a product is “unreasonably

dangerous” due to a defect in either manufacturing or design 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.’ ” Lamkin, 138 Ill. 2d at 528, quoting Restatement

(Second) of Torts §402A, Comment i, at 352 (1965).

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We further stated that in a strict product liability action, a claim

of defective design may be proven in either of two ways. First, the

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.” Lamkin, 138 Ill. 2d at

529. This has come to be known as the consumer-expectation test.

Second, the plaintiff may introduce “evidence that the product’s

design proximately caused his injury.” If the defendant thereafter

“fails to prove that on balance the benefits of the challenged design

outweigh the risk of danger inherent in such designs,” the plaintiff

will prevail. Lamkin, 138 Ill. 2d at 529. This test, which added the

balancing of risks and benefits to the alternative design and feasibility

inquiries adopted in Anderson and Kerns, has come to be known as

the risk-utility or risk-benefit test.

The product at issue in Lamkin was a window screen. The

plaintiffs were parents of two children who were injured when they

fell from apartment windows. The trial court denied the defendants’

motions for summary judgment and certified four questions for

interlocutory appeal. Lamkin, 138 Ill. 2d at 516-17. On the question

of the plaintiffs’ claims of strict liability for defective design, this

court applied both the consumer-expectation test and the risk-utility

test to the evidentiary materials in the record and determined that the

trial court’s denial of the motion for summary judgment was improper

because plaintiffs could not have met either test. Lamkin, 138 Ill. 2d

at 529-31.

Specifically, under the consumer-expectation test, the question

was whether “the window screens failed to perform as safely as an

ordinary consumer would expect when used in an intended or

reasonably foreseeable manner.” (Emphasis in original.) Lamkin, 138

Ill. 2d at 529. Because window screens are designed for ventilation

and to prevent insects from entering, not to prevent an individual

from falling, the window screen did what it was designed to do

without unreasonable danger. The danger arose only when the

window screen did not do something it was not designed to do. The

ordinary person, with ordinary knowledge, would appreciate this

distinction. Lamkin, 138 Ill. 2d at 529-30.

Applying the risk-utility test, this court considered whether there

was evidence of how the “window screens’ design proximately

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caused” the children’s injuries. (Emphasis in original.) Lamkin, 138

Ill. 2d at 530. This court asked whether the plaintiff had provided

“evidence of how the window screens’ design could have been altered

to create a safer screen *** or any evidence of the form and feasibility

of the alternative screen design.” Lamkin, 138 Ill. 2d at 530. Finding

no evidence to support the plaintiffs’ allegations, this court found, as

a matter of law, that the window screens were not “ ‘defective or

unreasonably dangerous’ such as to serve as the basis for a products

liability action.” Lamkin, 138 Ill. 2d at 530-31.

Notably, in Lamkin, when applying the consumer-expectation test,

this court focused on the manner in which the allegedly dangerous

product was being used. When applying the risk-utility test, this court

focused on the availability and feasibility of alternative designs for

the product. IPI Civil (2006) No. 400.06, which was given in the

present case, also focuses on the use to which the allegedly defective

product was being put, thus stating, at least in part, the content of the

consumer-expectation test. The instruction, however, does not include

any content specific to the risk-utility test.

(1)

Defendants argue that this court’s decisions subsequent to

Lamkin, specifically Hansen v. Baxter Healthcare Corp., 198 Ill. 2d

420 (2002), Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78

(2005), and Calles, 224 Ill. 2d 247, have established that in a product

liability action predicated on a claim of defective design, the risk-

utility test is the only proper test. If this court’s precedents do not

establish this definitive rule, they argue, our decisions have

nevertheless established that the risk-utility test is the only test to be

applied if the product at issue is complex and if the injury occurred

in circumstances unfamiliar to the average consumer. Thus,

defendants argue, even if the consumer-expectation test might still be

applicable in some design defect cases, it is “reserved” for cases

involving simple products or everyday circumstances. They argue,

further, that despite this development in the law of strict product

liability, the existing pattern jury instruction misinforms the jury by

not setting out the applicable test.

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The defendants frame the question for this court as whether the

existing jury instruction accurately states the law, subject to de novo

review, citing People v. Parker, 223 Ill. 2d 494, 501 (2006). Plaintiff

argues for application of the abuse of discretion standard, under

which reversal is not appropriate for giving a faulty instruction or

refusing to give a tendered instruction absent a showing of prejudice

to party’s right to a fair trial. McCarthy v. Kunicki, 355 Ill. App. 3d

957, 970 (2005). Defendants reply that even if this court were to

apply the abuse of discretion standard, it was an abuse of discretion

requiring a new trial for the trial court to give an outdated,

inapplicable instruction on a key issue, citing Eshoo v. Chicago

Transit Authority, 309 Ill. App. 3d 831, 836-37 (1999). We agree

with defendants that the question presented at this stage of our

analysis is a question of law because it asks whether, as a matter of

substantive law, this court has abandoned or limited the application

of the consumer-expectation test in design defect cases and replaced

it with the risk-utility test. Our review is, therefore, de novo.

We first used the expression “risk-utility” in Hansen, 198 Ill. 2d

at 428, where the unintentional disconnection of an intravenous

catheter connecting device had caused a fatal air embolism. The

plaintiff claimed that the manufacturer failed to warn users of the

device of the likelihood of unintentional disconnection and also that

the device was unreasonably dangerous due to a design defect.

Hansen, 198 Ill. 2d at 423-24. The jury rendered a general verdict,

finding the defendant liable. The appellate court found that the

general verdict could not be sustained on the failure-to-warn theory,

but that the evidence justified a finding of design defect under either

the consumer-expectation test or the risk-utility test. Hansen v. Baxter

Healthcare Corp., 309 Ill. App. 3d 869 (1999). The defendant

manufacturer argued on appeal to this court that the appellate court

erred by applying risk-utility analysis. Hansen, 198 Ill. 2d at 428. The

defendant argued for application of only the consumer-expectation

test, but claimed that the relevant expectations were those of health-

care professionals, not patients, and that the ordinary professional

consumer of this product would not have found it more dangerous

than expected. Hansen, 198 Ill. 2d at 433-34.

This court first addressed the failure to warn claim and found,

contrary to the appellate court’s holding, that the defendant had a duty

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to warn physicians and other health-care professionals who might use

the device of its “known dangerous propensities” and that the jury’s

general verdict could reasonably have been based on a finding that the

defendant had not fulfilled that duty. Hansen, 198 Ill. 2d at 430-32.

This court then turned to the design defect claim. We must note,

however, that this court’s holding on the failure to warn claim would

have been a sufficient basis to affirm the trial court judgment.

Arguably, it was not necessary for this court to reach the design defect

claim, even though the defendant’s petition for leave to appeal had

been granted to review the appellate court’s ruling on this issue.

Whether this renders the remainder of the decision dictum is open to

debate, but if dictum, it is judicial dictum. Hawes v. Luhr Brothers,

Inc., 212 Ill. 2d 93, 100 (2004) (supreme court’s unnecessary

pronouncement on an issue briefed and argued by the parties is

“judicial dicta,” rather than mere “obiter dicta” and should be given

dispositive weight by the lower courts).

Considering the consumer-expectation test, this court concluded

that the ordinary-consumer-expectation test, rather than the ordinary-

physician-expectation test, applied to the design defect claim because

the patient “was the person who would be harmed if the device

failed” and because she “could have reasonably expected that her IV

catheter connection, if properly designed and manufactured, would be

safe to use for its intended purpose.” Hansen, 198 Ill. 2d at 435. The

evidence at trial was sufficient to establish that the design of the

device was defective under this test. Thus, the appellate court was

correct that the jury’s decision was not against the manifest weight of

the evidence. Hansen, 198 Ill. 2d at 435. Again, our analysis could

have stopped here, but we went on to consider whether the evidence

supported the verdict under the risk-utility test.

The defendant in Hansen argued that the risk-utility test was not

appropriately applied to the medical device because it was simple and

its risks were well known to the medical community. Hansen, 198 Ill.

2d at 436. The defendant relied on Scoby v. Vulcan-Hart Corp., 211

Ill. App. 3d 106 (1991), in which the appellate court had rejected

application of the risk-utility test to a claim that a deep-fat fryer used

in a restaurant was defectively designed because it lacked a cover,

stating:

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“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 that the circuit court

properly applied only the consumer-user contemplation test.”

Scoby, 211 Ill. App. 3d at 112.

This court neither rejected nor adopted the principle set out in

Scoby, but found that even if such a principle applied, it would not

have affected the outcome in Hansen. First, such a conclusion was

“not compelled by the facts” related to the medical device, which,

unlike the deep-fat fryer, had been developed and marketed as a

safety device. Second, this court found that, unlike the deep-fat fryer,

the danger presented by the medical device was “not obvious, nor was

the mechanism simple.” Hansen, 198 Ill. 2d at 437. Thus, this court

concluded that evidence of the existence of an alternative, safer

design for the medical device was properly admitted and that the

record was “sufficient to sustain a finding of unreasonable

dangerousness under a risk-utility analysis.” Hansen, 198 Ill. 2d at

436.

We also declined the defendant’s invitation to adopt a new test for

design defects in medical devices and prescription drugs under

section 6 of the then-new Restatement (Third) of Torts: Products

Liability (1998) (hereinafter Products Liability Restatement), finding

the argument forfeited. We did, however, leave open the possibility

of considering the adoption of sections of the Products Liability

Restatement in the proper case. Hansen, 198 Ill. 2d at 438.

No issue was raised in Hansen regarding jury instructions. Both

tests were applied by this court in the context of determining whether

the evidence in the record supported the jury’s general verdict.

Thus, by 2002, our case law had established that strict liability

may be imposed based on proof of injury proximately caused by an

unreasonably dangerous condition of a product and that such a

condition may consist of a manufacturing defect, a design defect, or

inadequate warnings. We had further established that a product’s

design may be found to be unreasonably dangerous and, thus,

defective under either the consumer-expectation test or the risk-utility

test. Lamkin, 138 Ill. 2d at 528-29. We had not limited the application

of either test to a specific class of products. We had concluded that a

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“complex” product, such as a medical device, may be subjected to

both tests, but we did not define “complex” except to distinguish an

IV catheter connector from a deep-fat fryer. Hansen, 198 Ill. 2d at

437. The pattern jury instruction defining “unreasonably dangerous,”

which had been adopted in 1977, many years prior to our decisions in

Lamkin and Hansen, remained unchanged despite our adoption of two

alternative methods of proving that a product is defectively designed

because it presents an unreasonable danger.

We next considered the risk-utility test in 2005 in Blue. The

product at issue was a trash compactor. The plaintiff pleaded both

negligence and strict product liability based on design defect, but was

forced to proceed solely on the negligence theory after the strict

liability count was dismissed because it was filed beyond the limits

of the statute of repose. Blue, 215 Ill. 2d at 81. The issue presented to

this court was whether the trial court erred by giving the jury a special

interrogatory, over plaintiff’s objection, asking whether “the risk of

injury by sticking a foot over or through a gate into a moving

compactor [was] open and obvious.” See Blue, 215 Ill. 2d at 85. The

jury answered this question in the affirmative, but nevertheless

returned a general verdict for the plaintiff. The trial court granted the

defendants’ posttrial motion for judgment n.o.v. on the basis that the

jury’s answer to the special interrogatory was inconsistent with the

general verdict.

The appellate court reversed, noting that in a negligence action

based on breach of a duty to warn, no such duty exists when the

danger is open and obvious. Blue, 215 Ill. 2d at 86. The appellate

court also held, however, that an open and obvious risk is not an

absolute bar to liability in an action for negligent design, citing

Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 902-03

(2002) (open and obvious danger does not necessarily bar recovery in

a strict product liability case based on defective design; under the

risk-utility test, the open and obvious nature of the risk posed by the

product is merely a factor to be considered in the overall assessment

of its risks and utility). Blue v. Environmental Engineering, Inc., 345

Ill. App. 3d 455, 468 (2003).

After a discussion of the risk-utility test and its similarity to the

negligence standard, a plurality of this court concluded that the risk-

utility test, which would have been applicable to the dismissed strict

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liability claims, did not apply to the claim of negligent design. Blue,

215 Ill. 2d at 97-98.

Defendant argues that in Blue, this court embraced section 2 of

the Products Liability Restatement, which states:

“A product is defective when, at the time of sale or

distribution, it contains a manufacturing defect, is defective

in design, or is defective because of inadequate instructions or

warnings. A product:

(a) contains a manufacturing defect when the product

departs from its intended design even though all possible

care was exercised in the preparation and marketing of the

product:

(b) is defective in design when the foreseeable risks of

harm posed by the product could have been reduced or

avoided by the adoption of a reasonable alternative design

by the seller or other distributor, or a predecessor in the

commercial chain of distribution, and the omission of the

alternative design renders the product not reasonably safe;

(c) is defective because of inadequate instructions or

warnings when the foreseeable risks of harm posed by the

product could have been reduced or avoided by the

provision of reasonable instructions or warnings by the

seller or other distributor, or a predecessor in the

commercial chain of distribution, and the omission of the

instructions or warnings renders the product not

reasonably safe.” Restatement (Third) of Torts: Products

Liability §2, at 14 (1998).

The first sentence of this section parallels this court’s language in

Lamkin, recognizing three separate bases for strict product liability.

Paragraph (a) sets out a test for defective manufacturing; paragraph

(b) applies the risk-utility test to claims of defective design; and

paragraph (c) sets out a test for inadequate instructions or warnings.

Our “adoption” of this section of the Products Liability Restatement,

according to defendants, means that use of the consumer-expectation

test is now “restricted”to claims of manufacturing defect and that the

risk-utility test alone applies to all claims of defective design.

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Defendants argue further that even though Blue was a negligence

case, not a strict liability case, the appellate court in the present case

erred by treating our discussion of section 2 as mere dicta. Even

though Blue was a plurality opinion, defendants assert that none of

the concurring justices questioned whether the risk-utility test governs

strict liability design defect cases and that two concurring justices

suggested expanding the risk-utility test to cover negligent design

claims as well. Blue, 215 Ill. 2d at 119 (Fitzgerald, J., specially

concurring, joined by McMorrow, C.J.). They argue further that a

“fair reading” of Blue suggests that it was “a signpost along the way

to the law’s current place, the risk-utility test.”

We disagree. We did cite section 2 of the Products Liability

Restatement in Blue, but only in the context of distinguishing

negligent design claims from strict product liability defective design

claims. Blue, 215 Ill. 2d at 93-94. We noted that this section was

drafted in response to the recognized “inadequacy of section 402A to

address claims of defective design and defects based on inadequate

instructions and warnings.” Blue, 215 Ill. 2d at 93. We did not,

however, expressly or impliedly adopt section 2(b) as the sole,

exclusive test for dangerousness in strict liability design defect cases.

The most that can be said regarding Blue is that a plurality of this

court noted the American Law Institute’s observation that “the same

rationale for imposing strict liability in manufacturing defect cases

does not apply to design defects.” Blue, 215 Ill. 2d at 94, citing

Restatement (Third) of Torts: Products Liability §2, Comment a, at

16 (1998).

The Blue plurality went on to consider whether, under the risk-

utility test, once the plaintiff shows that a design defect proximately

caused his injury, the burden of proof shifts to the defendant to prove

that the benefits of the design outweigh its inherent danger. Blue, 215

Ill. 2d at 98-99. This burden-shifting formulation of the risk-utility

test comes from Lamkin (138 Ill. 2d at 529), but was not a part of the

holding in that case. In fact, the holding in Lamkin negates any such

burden on the defendant, because this court found that summary

judgment for the defendant in that case was proper. If the burden had

shifted to the defendant, summary judgment could not have been

entered in the defendant’s favor. Blue, 215 Ill. 2d at 99.

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The burden-shifting formulation emanates from a citation to

Barker v. Lull Engineering Co., 20 Cal. 3d 413, 429-30, 573 P.2d

443, 453-54, 143 Cal. Rptr. 225, 235-36 (1978), widely recognized

as the seminal case on risk-utility. This court cited Barker in Palmer

v. Avco Distributing Corp., 82 Ill. 2d 211, 219-20 (1980), and then

cited both Palmer and Barker in Lamkin (138 Ill. 2d at 529), but no

decision of this court has expressly adopted this burden-shifting

formulation of the risk-utility test.

Having already concluded that the risk-utility test did not apply to

the plaintiff’s negligent design claim, it was not necessary for us to

reach this question in Blue. We addressed it “only because of the

appellate court’s finding that the risk-utility test applied” to the

negligence claim in that case. Blue, 215 Ill. 2d at 98. The plurality

cited, with approval, a comment to section 2 of the Products Liability

Restatement, which states that a plaintiff must establish a prima facie

case of design defect by introducing evidence of a technologically

feasible and practical alternative design that would have reduced or

prevented the harm. Restatement (Third) of Torts: Products Liability

§2, Comment f, at 23-24 (1998). Once that showing is made, the issue

of liability is “one for the trier of fact to resolve.” Blue, 215 Ill. 2d at

100.

With respect to the issues in the present case, the plurality opinion

in Blue did not abandon or limit use of the consumer-expectation test.

Blue signals only that this court is aware of the potential

shortcomings of using the consumer-expectation test in design defect

cases. The plurality in Blue also rejected a burden-shifting element of

the risk-utility test, a conclusion that none of the concurring justices

questioned.

Ultimately, defendants rely on this court’s decision in Calles to

argue that risk-utility is now the sole, exclusive test to determine

whether an allegedly defectively designed product is unreasonably

dangerous.

The product at issue in Calles was a utility lighter. The plaintiff

was the mother of a three-year-old who died of smoke inhalation after

her twin sister started a fire with the lighter. The plaintiff made both

negligence and strict liability claims. Calles, 224 Ill. 2d at 251. The

trial court granted summary judgment for the defendants.

-15-

The appellate court noted the Blue plurality’s citation to Scoby “as

authority that some simple products present such obvious dangers that

the court need not apply the risk-utility balancing test.” Calles v.

Scripto-Tokai Corp., 358 Ill. App. 3d 975, 982 (2005). Under this

reasoning, the appellate court concluded, if a product is simple and its

danger obvious, summary judgment for the defendant manufacturer

is warranted if “the balance of all considerations so clearly favors the

defendant that no reasonable jury could find for the plaintiff.” Calles,

358 Ill. App. 3d at 983. Reversing in part, the appellate court held that

the lighter did “not qualify as the kind of especially simple device for

which the result of the risk-utility balancing is too obvious for trial.”

Calles, 358 Ill. App. 3d at 983.

The issue presented to this court in Calles was whether we had

established, in Blue, a “simple product exception” to application of

the risk-utility test in strict liability defective design cases.

Specifically, the question was formulated as whether a product that

is deemed “simple,” with open and obvious dangers, was per se

exempt from the risk-utility test. Calles, 224 Ill. 2d at 250.

We noted, again, that the consumer-expectation test was

developed in the context of claims of manufacturing defects, but that

it came to be applied to design defect claims as well. Calles, 224 Ill.

2d at 254-55. We acknowledged that the applicability of the

consumer-expectation test to alleged design defects had been

questioned and that the risk-utility test had been devised to respond

to these concerns. Calles, 224 Ill. 2d at 255. We did not, however,

state that the consumer-expectation test no longer applies in design

defect cases. Indeed, we applied both tests in our analysis of the

utility lighter after observing that “[s]ince Lamkin, this court has

continued to employ these two tests when determining whether a

product is unreasonably dangerous.” Calles, 224 Ill. 2d at 256.

We observed that while a product might satisfy ordinary

consumer expectations, its design could still be found defective using

risk-utility analysis. Calles, 224 Ill. 2d at 256. Thus, the plaintiff in

a design defect case whose claim failed the consumer-expectation test

could nevertheless prevail under the risk-utility test.

The utility lighter at issue in Calles met the expectations of the

ordinary adult consumer because it produced a flame when used as

intended. The lighter, however, had not been used in its intended

-16-

manner; it had been used by a three-year-old child to start a fatal fire.

This use, while tragic, was reasonably foreseeable. Because the

lighter produced a flame when used in a reasonably foreseeable

manner, thus fulfilling the expectations of the ordinary consumer, it

could not, as a matter of law, be found unreasonably dangerous under

the consumer-expectation test. Calles, 224 Ill. 2d at 258-59.

We then turned to the risk-utility analysis because it might still

have been possible for the plaintiff to prevail under that test. Our first

step was to address the defendant’s reliance on Scoby for the

proposition that there is a “simple product” exception to the risk-

utility test that applies when the mechanism is so simple and the

danger so obvious that it is proper to apply only the consumer-

expectation test, citing Scoby, 211 Ill. App. 3d at 112. The defendant

argued that the utility lighter, like the deep-fat fryer at issue in Scoby,

was such a product and that, therefore, the risk-utility test should not

be utilized.

We examined Scoby and concluded that the exception to risk-

utility analysis that it espoused contained two separate components:

the product must be “simple” and its danger must be “open and

obvious.” We disagreed with this formulation, finding that “the

dangers associated with a product that is deemed ‘simple’ are, by

their very nature, open and obvious.” Calles, 224 Ill. 2d at 261. This

is certainly true of the danger of being burned by boiling oil in a deep-

fat fryer or the danger of starting a fire with a utility lighter. Thus, we

concluded, the purported 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.” Calles, 224 Ill. 2d at 261.

After further analysis, we rejected such a per se rule exempting

products with open and obvious dangers from risk-utility analysis.

Instead, we concluded, the open and obvious danger of a product is

but one factor to be considered when applying the risk-utility test.

Calles, 224 Ill. 2d at 262. Our application of the risk-utility test to the

evidence of record resulted in our conclusion that there was a

disputed issue of material fact that precluded the entry of summary

judgment in the defendant’s favor. Calles, 224 Ill. 2d at 268-69.

In the end, Calles rejected the premise that in a certain category

of strict liability cases, only the consumer-expectation test applies.

Calles, 224 Ill. 2d at 263. Defendants argue that as a result, Calles has

-17-

rendered the consumer-expectation test “largely superfluous,”

because “the law is now clear: the risk-utility test applies to the

design of all products, even simple products with open and obvious

dangers.” Defendants base this argument primarily on our citation in

Calles to the decision of the Supreme Court of California in Soule v.

General Motors Corp., 8 Cal. 4th 548, 882 P.2d 298, 34 Cal. Rptr. 2d

607 (1994). Calles, 224 Ill. 2d at 256.

We had previously cited Barker, another California case, in

Lamkin for the rationale for employing both the consumer-

expectation test and the risk-utility test. Lamkin, 138 Ill. 2d at 529,

citing Parker v. Avco Distributing Corp., 82 Ill. 2d 211, 219-20

(1980), citing Barker, 20 Cal. 3d at 427-28, 573 P.2d at 452, 143 Cal.

Rptr. at 234-35. We reiterated that rationale, and our citation to

Barker, in Calles. Calles, 224 Ill. 2d at 255-56. Following a brief

explanation of the rationale of Barker, we directed the reader to “see

also” Soule, which, we explained in a parenthetical remark, refined

the Barker risk-utility test and held that the “ ‘consumer expectations

test is reserved for cases in which the everyday experience of the

product’s users permits a conclusion that the product’s design

violated minimum safety assumptions,’ ” 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.’ ” (Emphases omitted.) Calles, 224 Ill. 2d at 256,

quoting Soule, 8 Cal. 4th at 567, 882 P.2d at 308, 34 Cal. Rptr. 2d at

617. We reject this argument. Our mere citation of Soule, using the

signal “see also,” and without further discussion, cannot be read as

this court’s adoption of a new rule that would necessarily overrule

Lamkin and its progeny.

Calles concluded that a product that presents an open and obvious

danger is not per se exempt from application of the risk-utility test in

a strict liability case. Calles, however, did not address the issue raised

by defendants in the present case–whether a complex product is per

se exempt from the consumer-expectation test.

Nothing in our past decisions, even where we have applied the

risk-utility test, has signaled a rejection of the consumer-expectation

test merely because a complex product was involved. For example,

in Hansen, which involved a complex product (Hansen, 198 Ill. 2d at

437 (intravenous catheter connecting device is not simple)), we found

-18-

that the evidence at trial was sufficient to sustain a finding of

defective design under both tests. Hansen, 198 Ill. 2d at 435

(consumer-expectation), 437-38 (risk-utility). We, therefore, reject

defendants’ claim that under Illinois law the risk-utility test is the sole

measure of the dangerousness of an allegedly defectively designed

product in all strict liability cases or in a subset of those cases.

(2)

Defendants argue that if we have not adopted the risk-utility test

as the sole, exclusive test in design defect cases, we should do so

now. They argue, in the alternative, that if we do not adopt the risk-

utility test as the sole, exclusive test in all design defect cases, it

should be the sole, exclusive test when the product is complex and

the circumstances are not familiar to the ordinary consumer. This

case, they insist, illustrates the need to restrict application of the

consumer-expectation test to claims of defective manufacture or, at

least, to design defects in simple products.

According to defendants, the consumer-expectation test evolved

to evaluate claims of manufacturing defect where it is reasonable to

believe that jurors, as ordinary consumers, can rely on their own

experience and expectations to determine whether a manufacturing

defect has rendered a product unreasonably dangerous. This,

defendants assert, is a simple, straight-forward inquiry focused on one

particular “unit” of the product and not on the product as a whole.

Thus, there are no countervailing benefits to consider when a

manufacturing defect is alleged.

The consumer-expectation test, defendants argue, does not make

sense when a design defect is alleged because design decisions, by

their very nature, involve considerations of the feasibility of

alternative designs, cost, safety, and other factors with which the

ordinary consumer is not familiar. In the context of the present case,

defendants assert, the jurors could not have had reasonable

expectations of their own regarding the proper degree of rigidity or

flexibility in a car seat or how a seat should function in a wide range

of potential accident conditions. According to defendants, the risk-

utility test is specifically fashioned to evaluate this kind of claim and

-19-

should be the sole measure of whether the product is unreasonably

dangerous due to a design defect.

Plaintiff responds that defendants are proposing a “radical

theory,” adoption of which would overrule Lamkin, Hansen, and

Calles. Even if the proposed new rule were limited to cases involving

complex products, plaintiffs claim, the distinction between simple

and complex products is unworkable because there is no rational

basis on which to distinguish them. Indeed, plaintiff points out, this

court was divided in Calles on the question of whether the utility

lighter was a “simple” product. See Calles, 224 Ill. 2d at 274

(Karmeier, J., specially concurring).

The rule advocated by defendants is contained in section 2(b) of

the Products Liability Restatement, which would allow a finding of

design defect only “when the foreseeable risks of harm posed by the

product could have been reduced or avoided by the adoption of a

reasonable alternative design *** and the omission of the alternative

design renders the product not reasonably safe.” Restatement (Third)

of Torts: Products Liability §2(b), at 14 (1998).

If we were to accept defendants’ invitation to adopt section 2(b)

of the Products Liability Restatement, we would indeed overrule

precedent, because section 2(b) would redefine the elements of a

product liability claim based on alleged defective design.

Under Illinois law, the elements of a claim of strict liability based

on a defect in the product are: (1) a condition of the product as a

result of manufacturing or design, (2) that made the product

unreasonably dangerous, (3) and that existed at the time the product

left the defendant’s control, and (4) an injury to the plaintiff, (5) that

was proximately caused by the condition. The plaintiff has the burden

of proof on each element. See Sollami, 201 Ill. 2d at 7; Suvada, 32 Ill.

2d at 623.

Section 2(b) of the Products Liability Restatement would alter the

“unreasonably dangerous” element in design defect cases in two

significant ways. First, a plaintiff would be required to plead and

prove the existence of a feasible alternative design in every case.

Second, instead of proving that the defect rendered the product

“unreasonably dangerous,” the plaintiff would have the burden of

proving that the product was “not reasonably safe.”

-20-

The first of these new elements was briefly a part of Illinois law.

In 1995, enactment of Public Act 89–7, the so-called “Tort Reform

Act,” added section 2–2104 to the Code of Civil Procedure. This

section provided that in strict product liability actions, the design of

a product is “presumed to be reasonably safe,” unless the plaintiff

proves that, “at the time the product left the control of the

manufacturer, a practical and technically feasible alternative design

was available that would have prevented the harm without

significantly impairing the usefulness, desirability, or marketability

of the product.” 735 ILCS 5/2–2104 (West 1996) (declared

unconstitutional).

In 1997, this court decided Best v. Taylor Machine Works, 179 Ill.

2d 367, 467 (1997), which held Public Act 89–7 unconstitutional in

its entirety. Section 2–2104, standing alone, was not found

unconstitutional, but this court held in Best that provisions of the act

that were essential to the legislative purpose could not be severed

from the rest of the act.

Our legislature has not reenacted this provision in the decade

since Best was decided. We are reluctant to make a change that would

so fundamentally alter the law of product liability in this state based

solely on the suggestion that the drafters of the Restatement have a

better idea of what the law should be than our own legislature. Such

a change, if it is to be made, is a matter of public policy, better suited

to legislative action than judicial decisionmaking.

As for the second alteration, adoption of section 2(b) of the

Products Liability Restatement would require the plaintiff to prove

that the alleged defect renders the product “not reasonably safe”

rather than “unreasonably dangerous.” This change has its roots in a

law review article that argued:

“[T]he term ‘unreasonably dangerous’ gives rise to the

impression that the plaintiff must prove that the product was

‘unusually or extremely dangerous.’ The term ‘not reasonably

safe’ is less subject to misinterpretation.” Restatement (Third)

of Torts: Products Liability §2, Reporters’ Note, at 80 (1978),

citing J. Wade, Strict Tort Liability of Manufacturers, 19 Sw.

L.J. 5, 15 (1965), and J. Wade, On the Nature of Strict Tort

Liability for Products, 44 Miss. L.J. 825, 833 (1973).

-21-

The term “not reasonably safe” offers an “aspirational advantage,”

because it “elevates the norm” to one of reasonable safety, and

“serves symbolically to provide a signal that (reasonable) product

safety–as a positive goal required by the law–must now be afforded

a central place in the decisional calculus of manufacturers.”

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

at 80-81 (1998), citing D. Owen, Defectiveness Restated: Exploding

the ‘Strict’ Products Liability Myth, 1996 U. Ill. L. Rev. 743, 777.

Our concern is less with the aspirational goal that might be set for

manufacturers than with parties’ and jurors’ need for clarity. In effect,

under the existing “unreasonably dangerous” test, jurors are asked to

determine whether a product is too dangerous; under the proposed

“not reasonably safe” test, they would be asked whether it is not safe

enough. We find the former more likely to be understood by the

average juror. See IPI Civil (2006) No. 400.01, Comment, at 553

(noting that the phrase “not reasonably safe” might be

interchangeable with “unreasonably dangerous,” but that the

“Restatement, and Suvada and all its progeny, furnish persuasive

authority that the jury should be instructed that it is the ‘unreasonably

dangerous’ condition of the product which leads to liability”).

By urging adoption of the Products Liability Restatement’s

formulation of the elements of a strict product liability design defect

claim, defendants seek a change in the substantive law of this state.

This argument goes far beyond their assertion that the jury in this

particular case was not properly instructed and would require our

overruling Lamkin, Hansen, and Calles, at least in part. We,

therefore, decline defendants’ invitation to adopt section 2(b) of the

Products Liability Restatement. Thus, the existence of a feasible

alternative design and the balancing of risks and benefits are relevant

considerations in a strict product liability design defect case, but they

are not elements of the claim that the plaintiff is required to plead and

prove in every case.

(3)

We now turn to defendants’ alternative argument that even if the

risk-utility test is not the sole, exclusive test for strict product liability

-22-

based on defective design, they are nevertheless entitled to a jury

instruction on the risk-utility test under the circumstances of this case.

We concluded in Calles that when a plaintiff’s claim cannot meet

the consumer-expectation test, it may nevertheless be proven using

the risk-utility test. Calles, 224 Ill. 2d at 256. No issue was raised in

Calles regarding jury instructions because Calles came to us after a

grant of summary judgment. We reversed that judgment and

remanded for trial, but our analysis necessarily foreclosed

consideration on remand of the consumer-expectation test for

unreasonable dangerousness. Our holding required that only the risk-

utility test be applied at trial. The result we reached in Calles leads to

the inescapable conclusion that the present instruction on

unreasonable dangerousness, IPI Civil (2006) No. 400.06, which

focuses the jury’s inquiry on the use to which the product was being

put at the time of the injury, is inappropriate in some cases. In order

to ensure that the jury undertakes the appropriate inquiry when the

consumer-expectation analysis does not apply, as in Calles, an

instruction that incorporates consideration of risk and utility,

including the feasibility of an alternative design, is required.

The question posed in the present case is whether the same holds

true when the consumer-expectation test is not foreclosed from jury

consideration. In effect, defendants argue that the answer to the risk-

utility test “trumped” the answer to the consumer-expectation test in

Calles and that it should do so even when the consumer expectation

test favors plaintiff and the risk-utility test favors the defendant. The

only consideration, defendants claim, should be whether the issue of

risk-utility has been raised by the evidence presented. Defendants rely

on this court’s decision in Kerns, where we held that a nonpattern

jury instruction on the feasibility of an alternative design was properly

given because the trial court must instruct the jury on all issues raised

by the evidence. Kerns, 76 Ill. 2d at 164. See also Rios v. Navistar

International Transportation Corp., 200 Ill. App. 3d 526, 537 (1990)

(each party has the right to have the jury instructed on his theory of

the case and the circuit court, in exercising its discretion, must

instruct the jury on all issues that it finds have been raised by the

evidence presented).

Plaintiff responds that it is her choice whether to proceed under

the “consumer-expectation theory” or the “risk-utility theory” of

-23-

design defect. She notes that “plaintiffs are masters of their complaint

and are entitled to proceed under whichever theory they decide, so

long as the evidence supports such a theory,” citing Reed v. Wal-Mart

Stores, Inc., 298 Ill. App. 3d 712, 717-18 (1998). See also Barbara’s

Sales, Inc. v. Intel Corp., 227 Ill. 2d 45, 59 (2007) (referring to

plaintiffs as “masters of their complaint”). Plaintiff argues that it

would be “utterly absurd” for defendants to “choose the theory

plaintiff pursues at trial.” She states that she chose to try her case

under “what is labeled the ‘consumer expectation’ theory of strict

liability” rather than the other “form of strict liability,” risk-utility.

She concludes that the trial court was not required to instruct the jury

on “other potential theories of liability” that might have been

available to her. Plaintiff further asserts that the instructions given

accurately state that law and have never been modified because no

modification has been needed.

Plaintiff has confused theories of liability with methods of proof.

This court has recognized three theories of strict product liability:

manufacturing defect, design defect, and failure to warn. Sollami, 201

Ill. 2d at 7. In Hansen, the plaintiff claimed strict liability under both

the failure to warn and design defect theories. Hansen, 198 Ill. 2d at

423-24. Similarly, in Blue, the plaintiff pleaded two theories of

liability–negligence and strict liability–but was forced to proceed only

with the negligence claim because the strict liability claim was barred

by the statute of repose. Blue, 215 Ill. 2d at 81. In the present case,

plaintiff has chosen to proceed under the design defect theory of strict

product liability.

In Lamkin, we stated that a plaintiff “may demonstrate that a

product is defective in design, so as to subject a retailer and a

manufacturer to strict liability for resulting injuries, in one of two

ways.” Lamkin, 138 Ill. 2d at 529. We then set out the consumer-

expectation test and the risk-utility test. These two tests, therefore, are

not theories of liability; they are methods of proof by which a plaintiff

“may demonstrate” that the element of unreasonable dangerousness

is met. See, e.g., Heastie v. Roberts, 226 Ill. 2d 515, 542 (2007)

(explaining that the res ipsa loquitur doctrine is a “species of

circumstantial evidence” that may be used to prove the element of

breach of duty when the theory of liability is negligence).

-24-

In the present case, plaintiff elected to proceed under a theory of

strict product liability based on design defect and not to pursue a

negligence claim. She also chose to rely on the consumer-expectation

method of proof, as demonstrated by the jury instructions she

submitted. Defendants are not asserting that they have the right to

choose plaintiff’s theory of liability. Rather, defendants are asserting

that they, too, have the right to put on their case using any permissible

method of proof. When the record contains evidence relevant to their

chosen method of proof, they insist that they are entitled to a

corresponding jury instruction. Their tendered instruction, defendants

claim, is the only way to ensure that the jury utilizes the proper

analytical framework to test the evidence before it.

These arguments pose two questions for this court. First, is a

defendant entitled to an instruction on the risk-utility test over the

objection of a plaintiff whose chosen method of proof is consumer

expectation? Second, if both consumer-expectation and risk-utility

instructions are given and the tests yield inconsistent answers, which

result prevails?

“[T]he parties are entitled to have the jury instructed on the issues

presented, the principles of law to be applied, and the necessary facts

to be proved to support its verdict.” Dillon v. Evanston Hospital, 199

Ill. 2d 483, 505 (2002). The threshold for giving an instruction in a

civil case is “not a high one.” Heastie, 226 Ill. 2d at 543.

“Generally speaking, litigants have the right to have the jury

instructed on each theory supported by the evidence. Whether

the jury would have been persuaded is not the question. All

that is required to justify the giving of an instruction is that

there be some evidence in the record to justify the theory of

the instruction. The evidence may be insubstantial.” Heastie,

226 Ill. 2d at 543.

The decision to give or deny a tendered instruction is within the

discretion of the trial court. Dillon, 199 Ill. 2d at 505. So long as the

tendered instructions clearly and fairly instruct the jury, a party is

entitled to instructions on any theory of the case that is supported by

the evidence. Snelson v. Kamm, 204 Ill. 2d 1, 27 (2003). As the

appellate court has noted, “[i]t is within the discretion of the trial

court to determine which issues are raised by the evidence presented

-25-

and which jury instructions are thus warranted.” Brdar v. Cottrell,

Inc., 372 Ill. App. 3d 690, 704 (2007).

The expression “theory of the case” does not refer to the

plaintiff’s theory of liability. It refers, instead, to each party’s framing

of the issues and arguments in support of its position. It is, therefore,

well established that while a plaintiff is entitled to an instruction

setting out her own theory of the case, based on her theory of liability

and her chosen method of proof, she may not unilaterally preclude the

giving of a jury instruction that presents the defendant’s theory of the

case, so long as the defendant’s instruction accurately states the law

and is supported by the evidence. Assuming, for now, that

defendants’ tendered instructions met these criteria, we consider the

implications of giving a jury both consumer-expectation and risk-

utility instructions in a design defect case.

If a jury were to consider the two tests independently, there are

four possible outcomes. First, the product could be found

unreasonably dangerous under both tests and judgment would be for

the plaintiff. This was the case in Hansen, where the design of a

complex medical device was at issue. Hansen, 198 Ill. 2d at 435-36.

Second, the product could be found not unreasonably dangerous

under either test and judgment would be for the defendant. This was

the case in Lamkin, where the design of a window screen was at issue.

Lamkin, 138 Ill. 2d at 529-31.

Third, the product could be found not unreasonably dangerous

under the consumer-expectation test, but unreasonably dangerous

under the risk-utility test. In such a case, judgment would be for the

plaintiff. This is the possible outcome of Calles on remand, where the

design of a utility lighter was at issue. Calles, 224 Ill. 2d at 256.

Defendants in the present case posit the fourth possible outcome

when the two tests are applied independently. The product could be

found unreasonably dangerous under the consumer-expectation test,

but risk-utility analysis could reveal that an alternative is not

available, or that available alternatives are not feasible, or that the

benefits of the design outweigh its inherent risks. In such a case,

defendants argue, the result of the risk-utility test should trump the

result of the consumer-expectation test. Defendant argues that if the

tests are treated as alternatives so that a plaintiff may prevail by

-26-

meeting either test, the effect will be to impose absolute–not just

strict–liability. This will occur, defendants claim, because the

consumer-expectation test will, at least where a complex product is

involved, almost always lead to a finding of unreasonable

dangerousness. As a result, defendants will be liable for all injuries

in all circumstances, no matter how much the risk-utility balance

weighs in favor of the challenged product design.

Defendants cite Mele v. Howmedica, Inc., 348 Ill. App. 3d 1

(2004), and Besse v. Deere & Co., 237 Ill. App. 3d 497 (1992), in

support of this argument. These cases have been overruled, at least to

the extent they relied on Scoby, by our decision in Calles. See Calles,

224 Ill. 2d at 260 (listing appellate court decisions, including Mele,

Besse, and Wortel, that had followed the “so called ‘simple product’

exception” of Scoby). Nevertheless, defendants point to the appellate

court’s efforts in Mele and Besse to fashion an “integrated test” for

design defect, combining the consumer-expectation test and the risk-

utility test.

In Besse, the defendant appealed from a judgment of strict

liability due to defective design of a cornpicker, arguing that the

elements of unreasonable dangerousness and proximate causation

were not proven. Besse, 237 Ill. App. 3d at 499. The plaintiff

presented evidence that the loss of her leg could have been prevented

with a simple design modification that would not have hindered the

machine’s function and that the necessary technology was available

to the defendant when the machine was manufactured. Besse, 237 Ill.

App. 3d at 501. The defendant argued on appeal that the machine

operated exactly as it was designed to operate and, therefore, it could

not be found unreasonably dangerous under the consumer-expectation

test. Besse, 237 Ill. App. 3d at 500. The appellate court noted that the

“narrow test” set out in comment i to section 402A of the

Restatement (Second) of Torts (1965) is not a complete statement of

the law in Illinois. Rather, the court observed, “a broader definition

of ‘unreasonably dangerous’ is available to the products liability

plaintiff,” and this broader definition “embraces both the ‘consumer

expectation’ test and a ‘risk/utility analysis’ test.” Besse, 237 Ill. App.

3d at 500. The two tests, according to the Besse court, are “not

mutually exclusive.” Besse, 237 Ill. App. 3d at 501. The evidence

presented in Besse “presented a factual question of whether the

-27-

product was unreasonably dangerous when analyzed under the

integrated consumer expectation test and risk/benefit analysis test,”

and the jury found this “integrated” test met by the plaintiff’s

evidence. Besse, 237 Ill. App. 3d at 501.

No issue was raised in Besse regarding jury instructions.

However, despite its misplaced reliance on Scoby (Besse, 237 Ill.

App. 3d at 501-02), we agree with the Besse court that the two tests

are not mutually exclusive and may be applied together if the

evidence supports it.

In Mele, the manufacturer of a medical device implanted in a

patient as part of a hip replacement procedure was held strictly liable

on a theory of defective design. The plaintiff utilized the consumer-

expectation method of proof, arguing to the jury that the device “did

not perform as safely as an ordinary implantee would expect.” The

plaintiff objected, successfully, to the defendant’s attempt “to show

that the benefits of the product outweighed its risks.” Mele, 348 Ill.

App. 3d at 8.

The appellate court noted that to “show that a product is

unreasonably dangerous due to a defective design, a plaintiff must

present evidence that the design includes ‘a defect which subjects

those exposed to the product to an unreasonable risk of harm.’ ”

(Emphasis omitted.) Mele, 348 Ill. App. 3d at 13, quoting Hunt v.

Blasius, 74 Ill. 2d 203, 211 (1978). A plaintiff may make this

showing in either of two ways: consumer expectation or risk utility.

Mele, 348 Ill. App. 3d at 14. The defendant urged the court to adopt

section 6(c) of the Products Liability Restatement, which would apply

a risk-utility test to strict liability claims involving prescription drugs

or medical devices. Mele, 348 Ill. App. 3d at 15-16. The court

rejected this suggestion because adoption of section 6(c) would

“completely eliminate[ ] appraisal of the consumer’s expectations

from determination of whether a medical device is unreasonably

dangerous.” The section, therefore, “conflicts with Illinois law.”

Mele, 348 Ill. App. 3d at 16.

The Mele court next considered the defendant’s argument that the

trial court erred by excluding all evidence of the risks and benefits of

the device. The trial court found this evidence irrelevant because the

plaintiff “sought to prove only that defendant’s product failed to meet

the ordinary consumer’s expectations for the safety of the product”

-28-

and specifically decided not to seek to prove the design “unreasonably

dangerous by showing its risks outweighed its benefits.” Mele, 348

Ill. App. 3d at 17. The court noted that there was “no Illinois authority

on the issue of whether a defendant may present evidence that the

benefits of a product’s design outweigh its risks when a plaintiff

argues that the product is unreasonably dangerous because it fails to

meet ordinary consumer expectations for its safety.” Mele, 348 Ill.

App. 3d at 17. After exploring the evolution of the two tests, the court

cited Besse for the proposition that when a plaintiff alleges a design

defect in a complex product, the product’s danger should be evaluated

“using a test that incorporates both the ordinary consumer’s

expectations and the risks and benefits of the product.” Mele, 348 Ill.

App. 3d at 19. After further discussion related to medical devices in

particular, the Mele court concluded that the trial court erred by

excluding evidence of the risks and benefits of the hip replacement

device. The evidence contained in defendant’s offer of proof could

have shown “that the product was not unreasonably dangerous under

the integrated test recommended in Besse.” Mele, 348 Ill. App. 3d at

20. The appellate court, therefore, reversed the judgment of the trial

court and remanded for retrial. Mele, 348 Ill. App. 3d at 20-21.

No issue was raised in Mele regarding jury instructions. However,

Mele does suggest that even when a plaintiff chooses to proceed

under the consumer-expectation test, she cannot dictate the

defendant’s method of proving its case by preventing the admission

of evidence relevant to the risk-utility analysis. We agree with Mele

in this regard.

In the present case, both parties presented evidence relevant to the

risk-utility inquiry, so the question is whether, having argued that the

risk-utility evidence favors its position, defendant is entitled to have

the jury specifically instructed on the test. We conclude that this

question is resolved by examining the scope of each inquiry.

The consumer-expectation test is a single-factor test and,

therefore, narrow in scope. See Besse, 237 Ill. App. 3d at 500

(describing the consumer-expectation test as “narrow”). The jury is

asked to make a single determination: whether the product is unsafe

when put to a use that is reasonably foreseeable considering its nature

and function. IPI Civil (2006) No. 400.06. No evidence of ordinary

consumer expectations is required, because the members of the jury

-29-

may rely on their own experiences to determine what an ordinary

consumer would expect. Mele, 348 Ill. App. 3d at 14.

The risk-utility test, in contrast, is a multifactor analysis and,

therefore, much broader in scope. Under an “integrated” test, as

envisioned by the Mele and Besse courts, consumer expectations are

but one of the factors to be considered. Mele, 348 Ill. App. 3d at 20;

Besse, 237 Ill. App. 3d at 501.

Although we have declined to adopt section 2 of the Products

Liability Restatement as a statement of substantive law, we do find its

formulation of the risk-utility test to be instructive. Under section

2(b), the risk-utility balance is to be determined based on

consideration of a “broad range of factors,” including “the magnitude

and probability of the foreseeable risks of harm, the instructions and

warnings accompanying the product, and the nature and strength of

consumer expectations regarding the product, including expectations

arising from product portrayal and marketing,” as well as “the likely

effects of the alternative design on production costs; the effects of the

alternative design on product longevity, maintenance, repair, and

esthetics; and the range of consumer choice among products.”

(Emphasis added.) Restatement (Third) of Torts: Products Liability

§2, Comment f, at 23 (1998).

This formulation of the risk-utility test is an “integrated” test of

the kind envisioned by the appellate court in Mele and Besse. Under

this formulation, consumer expectations are included within the scope

of the broader risk-utility test. In addition, the test refines the

consumer-expectation factor by specifically allowing for advertising

and marketing messages to be used to assess consumer expectations.

We adopt this formulation of the risk-utility test and hold that

when the evidence presented by either or both parties supports the

application of this integrated test, an appropriate instruction is to be

given at the request of either party. If, however, both parties’ theories

of the case are framed entirely in terms of consumer expectations,

including those based on advertising and marketing messages, and/or

whether the product was being put to a reasonably foreseeable use at

the time of the injury, the jury should be instructed only on the

consumer-expectation test.

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Adoption of this integrated test resolves the question of whether

the answer to the risk-utility test “trumps” the answer to the

consumer-expectation test because the latter is incorporated into the

former and is but one factor among many for the jury to consider.

This is consistent with our conclusion in Calles that while a plaintiff

might not prevail under the single-factor test, she might still prevail

under the multifactor test. See Calles, 224 Ill. 2d at 256.

In sum, we hold that both the consumer-expectation test and the

risk-utility test continue to have their place in our law of strict product

liability based on design defect. 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 finder of fact.

In the present case, the occupant of the car seat was killed when

the car was struck from behind. Rear-end collisions are reasonably

foreseeable and the ordinary consumer would likely expect that a seat

would not collapse rearward in such an accident, allowing the

occupant to sustain massive head injury. Thus, the jury concluded that

the car seat was unreasonably dangerous because it proved “unsafe

when put to a use that is reasonably foreseeable considering the

nature and function of the product.” See IPI Civil (2006) No. 400.06.

If the evidence presented was sufficient to require the jury to engage

in risk-utility analysis, this conclusion as to consumer expectations

would be properly considered as one factor in the broader, integrated

risk-utility analysis.

(4)

In Kerns, the plaintiff lost an eye when he was struck by a wire

that was part of the power takeoff assembly of a forage blower.

Kerns, 76 Ill. 2d at 159. He presented evidence of an alternative

design. Kerns, 76 Ill. 2d at 164. This court held that the trial court

properly gave the defendant’s nonpattern instruction on feasibility,

over the plaintiff’s objection. Kerns, 76 Ill. 2d at 164.

A familiar treatise cites Kerns for the following proposition:

“In a products liability action for injuries caused by a

defective product, the instructions must state correctly the

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legal principles applicable to the case. The instructions should

state the correct issues and should be supported by the

evidence.” 30A Ill. L. & Prac. Products Liability §91,

Instructions, at 146-47 (1994).

We must next consider whether the trial court erred by refusing

to give the nonpattern instruction tendered by the defendants. This

requires us to determine: (a) if defendants’ tendered nonpattern

instructions were adequate to preserve the jury instruction issue for

review on appeal, (b) if the evidence was sufficient to support the

giving of an instruction on the risk-utility test, and (c) if these criteria

are met, whether the trial court’s refusal to instruct the jury on the

risk-utility test is error requiring a new trial.

(a)

A party forfeits the right to challenge a jury instruction that was

given at trial unless it makes a timely and specific objection to the

instruction and tenders an alternative, remedial instruction to the trial

court. Deal v. Byford, 127 Ill. 2d 192, 202-03 (1989). These

requirements ensure that the trial court has the opportunity to correct

a defective instruction and to prevent the challenging party from

gaining an unfair advantage by failing to act when the trial court

could remedy the faulty instruction and then obtaining a reversal on

appeal. Morus v. Kapusta, 339 Ill. App. 3d 483, 489 (2003).

Thus, in Morus, the defendant was found not to have forfeited his

right to challenge a jury instruction on damages for reduced life

expectancy because the instruction had been “a central topic of debate

among the parties and the trial court at several junctures,” the

defendant specifically objected to the instruction, and the defendant

“also submitted an instruction to the court on this issue.” The

appellate court, therefore, found the jury instruction issue preserved

for review. Morus, 339 Ill. App. 3d at 489-90.

In the present case, defendants objected to plaintiff’s version of

IPI Civil No. 400.06, which was given by the trial court:

“When I use the expression ‘unreasonably dangerous’ in

these instructions, I mean unsafe when put to a use that is

reasonably foreseeable considering the nature and function of

the car.”

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This instruction is generally considered to express the consumer-

expectation test because it does not call upon the jury to use anything

outside its own experience to determine whether the product is

defective because it is unsafe when used in a reasonably foreseeable

manner.

Defendants’ tendered nonpattern instructions numbers 17 and 29

were refused:

“A product is defective in its design when the foreseeable

risks of harm posed by the product outweigh the benefits of

the design and the risks can be avoided or reduced by the

adoption of alternative feasible design. Feasible alternative

designs must be available at the time that the product left the

control of the defendant.

Feasibility includes not only elements of economy,

effectiveness, and practicality, but also technological

possibilities under the state of the manufacturing art at the

time the product was produced.”

“When evaluating the reasonableness of a design

alternative, the overall safety of the product must be

considered. It is not sufficient that the alternative design

would have reduced or prevented the harm suffered by the

plaintiff if it would also have introduced into the product

other dangers of equal or greater magnitude. A product’s

design may be reasonably safe even if the product is not

accident proof.”

Defendants note that despite this court’s recognition of the risk-

utility test in Lamkin, Blue, and Calles, no corresponding pattern

instruction has been developed. Thus, they argue, current pattern

instructions no longer reflect Illinois law and a nonpattern instruction

is necessary when the jury is required to assess the risk-utility of a

product. Defendants support their tendered nonpattern instructions by

citation to Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)

(“Whenever IPI does not contain an instruction on a subject on which

the court determines that the jury should be instructed, the instruction

given in that subject should be simple, brief, impartial, and free from

argument”)), Lamkin and its progeny, and to the Products Liability

Restatement. See also Gordon v. Chicago Transit Authority, 128 Ill.

-33-

App. 3d 493, 501 (1984) (nonpattern instructions are permitted where

the case presents a unique factual situation or point of law not

addressed by the IPI and which requires clarification or

amplification).

Plaintiff responds that defendants’ nonpattern instructions are not

an accurate statement of the law and, therefore, did not meet the

threshold requirement of having tendered an alternative instruction

that correctly states the legal principles applicable to the case.

Specifically, plaintiff asserts that none of the “concepts” contained in

the nonpattern instructions are part of the plaintiff’s burden of proof

in a product liability case. Plaintiff also argues that the nonpattern

instruction is confusing.

Plaintiff is correct that a product liability plaintiff is not required

to utilize the risk-utility method of proof and does not have a

“burden” of proving the existence of a feasible alternative design. She

does, however, have the burden of proving that the product is

unreasonably dangerous due to a design defect. If, however, a product

liability defendant introduces evidence that no feasible alternative

design exists or that the design offers benefits that might outweigh its

risks, the plaintiff who does not rebut such evidence with evidence of

her own runs the risk that the trier of fact may resolve the issue

against her. Given our fact-pleading rule (Iseberg v. Gross, 227 Ill. 2d

78, 87 (2007)), discovery procedures, and rules requiring the

disclosure of witnesses (735 ILCS 5/2–1003 (West 2006); 210 Ill. 2d

R. 201)), it should not come as a surprise to any product liability

plaintiff that the defendant intends to utilize the risk-utility method of

proof and to seek a corresponding jury instruction.

Our review of the record reveals that the risk-utility test was a

central topic of debate among the parties, the defendants specifically

objected to plaintiff’s instruction on the consumer-expectation test,

and the defendants submitted a nonpattern instruction on the risk-

utility test. The tendered nonpattern instructions would not have

placed a burden on the plaintiff to prove the existence of a feasible

alternative design. In addition, plaintiff herself used evidence relevant

to the risk-utility inquiry in her case in chief to bolster her consumer-

expectation argument. She cannot have been surprised that defendants

responded with evidence relevant to the risk-utility inquiry, argued to

the jury that the benefits of the seat’s design outweighed its risks, and

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sought an instruction that would have directed the jury’s attention to

this inquiry. Further, we are not persuaded by plaintiff’s argument

that the tendered nonpattern instruction is so flawed or confusing that

it did not meet the standard set out in Deal. Defendants, therefore,

have properly preserved for appeal the question of whether the

evidence presented was sufficient to entitle them to have the jury

instructed on the risk-utility test.

(b)

Each party has the right to have the jury clearly and fully

instructed on any relevant theory of the case that is supported by the

evidence. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83,

100 (1995). Thus, the second question that must be addressed in this

section is whether the risk-utility test was sufficiently implicated by

the evidence presented during the 2½-week trial that it would have

been proper to give such an instruction. See Heastie, 226 Ill. 2d at

543 (“[a]ll that is required to justify the giving of an instruction is that

there be some evidence in the record to justify the theory of the

instruction”). This is a question that is readily answered by this

court’s review of the record. See 374 Ill. App. 3d at 650-53 (appellate

court’s summary of the testimony at trial).

Defendants argue that the question of risk utility was raised by the

evidence presented by both parties, specifically by the expert

testimony regarding the feasibility of other seat designs, the results of

crash tests, 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. This evidence, defendants assert, was sufficient

to justify a jury instruction on the risk-utility test.

Plaintiff does not deny that the evidence was sufficient to meet

this rather low threshold, but argues that it is her choice, as plaintiff,

whether to proceed under the “consumer-expectation theory” or the

“risk-utility theory” of design defect.

As noted above, plaintiff has chosen her theory of liability (design

defect) and her method of proof (consumer expectation). She may not

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choose defendants’ theory of defense (absence of design defect, lack

of proximate cause) or their method of proof (risk utility).

We conclude, based on our review of the record, that sufficient

evidence was presented at trial to raise an issue regarding the risk

versus the utility of the CT20 seat design and to justify a

corresponding jury instruction.

(c)

Having established that the tendered nonpattern instruction was

adequate to preserve defendants’ jury instruction issue for appeal and

that the evidence presented at trial was sufficient to justify the giving

of an instruction on the risk-utility test, the question remains whether

the trial court erred by refusing the tendered instruction.

Plaintiff correctly notes that the standard of review on this issue

is abuse of discretion. Dillon, 199 Ill. 2d at 505. Defendants

acknowledge that the trial court has discretion in instructing the jury,

but assert that refusal to instruct the jury on a theory supported by the

evidence, when that refusal prejudices the requesting party’s right to

a fair trial, is an abuse of discretion (citing McCarthy, 355 Ill. App.

3d at 970). This prejudice-based formulation of the abuse of

discretion standard is not one that this court has had occasion to use,

although the standard has often been expressed in these terms by the

appellate court. See, e.g., Smith v. Marvin, 377 Ill. App. 3d 562, 567

(2007); Frigo v. Silver Cross Hospital & Medical Center, 377 Ill.

App. 3d 43, 77 (2007); Barth v. State Farm Fire & Casualty Co., 371

Ill. App. 3d 498, 504 (2007); Schmidt v. Ameritech Illinois, 329 Ill.

App. 3d 1020, 1031 (2002).

We agree with the cited cases that when a party tenders a jury

instruction that states the legal principles applicable to the case and

that instruction is supported by the evidence, it is an abuse of

discretion to refuse to give the instruction if the refusal prejudices the

party’s right to a fair trial.

On the merits, defendants claim the evidence showed that the

designers of the CT20 seat had to take into account all of the various

types of possible collisions (front-end, rear-end, side, rollover) that

could occur at a wide range of speeds, and with occupants of different

sizes, who may or may not be properly using their seatbelts,

-36-

positioned at various seats in the vehicle. This “complex set of

considerations,” defendants assert, is not amenable to consumer-

expectation analysis. As a result, they tendered the nonpattern

instruction to focus the jury’s inquiry on the evidence regarding the

availability of feasible alternative designs, the risk posed by the CT20

seat, and the benefits of the CT20 design. If the court had given the

tendered nonpattern risk-utility instruction instead of the pattern

instruction, defendants posit, the jury would have been directed to

weigh this evidence, including expert testimony that the yielding seat

that caused James’s death might nevertheless have been a safer

alternative for other drivers in other types of collisions. Defendants

also point to testimony by one of their own experts that the yielding

driver’s seat may have prevented fatal or more serious injury to the

backseat passenger even while causing more serious injury to James.

Defendants claim that they were prejudiced by the refusal of their

instruction because the jurors were given no guidance as to how they

were to assess the evidence and no instruction that directed them to

balance risks and benefits. As a result, defendants argue, the jury’s

deliberations were “untethered to any rule of law.” Under IPI Civil

(2006) No. 400.06 as given, the jurors were merely asked to

determine whether the seat was unsafe when used in a reasonably

foreseeable manner, such as being stopped at a red light. Defendants

posit that any jury would be likely to find the seat unreasonably

dangerous under this standard, because the accident was fatal and

because they were not specifically instructed to give due

consideration to the evidence of benefits, risks, and alternative

designs. As a result, the jury may 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% of the cars

on the road at that time were equipped with yielding seats.

Plaintiff responds that she tendered the applicable pattern

instructions in total compliance with Supreme Court Rule 239 and

that no case of this court has ever held that an additional instruction

setting out the risk-utility test is required. She relies on Carrillo v.

Ford Motor Co., 325 Ill. App. 3d 955 (2001), to argue that the trial

court did not abuse its discretion.

Carrillo involved the same mechanism of injury as the present

case (a rear-end collision in which the driver of a Ford vehicle was

-37-

killed or injured when the car seat collapsed on impact), and the same

theory of liability (product liability due to design defect). The same

judge who presided in the present case gave the same jury

instructions. (The jury instructions that were given in Carrillo were

provided to the trial court in the present case and are part of the

record.) The trial testimony in the two cases was similar, including

testimony by some of the same expert witnesses for both sides. See

374 Ill. App. 3d at 650-53; Carrillo, 325 Ill. App. 3d at 958-63. The

Carrillo jury returned a verdict for the plaintiff and this judgment was

affirmed on appeal.

Ford argued on appeal that the trial court erred by refusing to give

the following instruction, based on IPI Civil (2000) No. 400.07:

“ ‘It is the duty of an automobile manufacturer to furnish

a product which is in a reasonably safe condition when put to

a use that was reasonably foreseeable considering its nature

and intended function.’ ” Carrillo, 325 Ill. App. 3d at 963-64,

quoting IPI Civil (2000) No. 400.07.

The appellate court affirmed, for several reasons. First, the

rejected instruction uses the expression “reasonably safe,” which

suggests that the jury is to determine whether the product’s design is

“not reasonably safe.” The court noted that this court had previously

rejected the suggestion that this element of a strict liability claim

should be expressed as “not reasonably safe” instead of

“unreasonably dangerous.” Carrillo, 325 Ill. App. 3d at 964, citing

Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill. 2d 339, 343 (1969)

(the test is whether the product is “unreasonably dangerous,” even

though the expression “not reasonably safe” might be “[s]omewhat

preferable”). Further, the expression “not reasonably safe” is

inconsistent with IPI Civil (2000) No. 400.06 and the comments

thereto. IPI Civil (2000) No. 400.06, Comment, at 620.

Second, the appellate court found no Illinois decision, either from

this court or the appellate court, that requires IPI Civil (2000) No.

400.07 to be given in design defect cases.

Third, IPI Civil (2000) No. 400.07 contains the word “duty,”

which, the appellate court suggested, should be avoided in strict

liability instructions because it tends to blur the distinction between

strict liability and negligence. The appellate court noted the absence

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of comments to this instruction, thus giving trial courts no guidance

as to when it should be used. Carrillo, 325 Ill. App. 3d at 965.

(Partially in response to the concerns raised in Carrillo, the 2006

edition of the IPI Civil has replaced instruction 400.07 with a notation

that “The Committee recommends that no instruction concerning the

duty of strict product liability defendants be given, except in cases

where [instructions regarding the duty to warn] are applicable.” IPI

Civil (2006) No. 400.07A.)

The Carrillo court held that IPI Civil (2000) No. 400.06 fully,

fairly and comprehensively informed the jury of all the relevant legal

principles. Carrillo, 325 Ill. App. 3d at 966.

Plaintiff’s position is that if IPI Civil (2000) No. 400.06, standing

alone, was a full, fair and comprehensive instruction in Carrillo,

where the three-week trial included the same sort of evidence that

was given in the present case, then it must also have been a full, fair,

and comprehensive instruction in the present case. She insists that the

trial court’s hands were tied by Carrillo, because if the trial court had

given the requested nonpattern instructions, it would have been acting

inconsistently with applicable precedent and that, itself, would have

been error.

We do not find Carrillo to be helpful. The nonpattern instruction

tendered by defendants in the present case suffers from none of the

infirmities affecting IPI Civil (2000) No. 400.07. In addition, the

issue in Carrillo (whether a flawed pattern instruction should have

been given) is not the same as whether a nonpattern instruction that

states an applicable principle of law that has been implicated by the

evidence should have been given.

We find our decision in Dillon instructive. Dillon involved a

medical malpractice claim against a physician, a hospital, and other

defendants. When an intravenous catheter was removed from the

plaintiff/patient, a nine-centimeter fragment of the catheter remained

in her vein. It subsequently migrated to her heart, where the tip of the

fragment became embedded in the heart wall. Removal of the

fragment would have been more dangerous than leaving it in place.

The jury returned a verdict for the plaintiff. Included in the damages

award was $500,000 for the increased risk of future injuries that

might result from leaving the catheter fragment in place. Dillon, 199

Ill. 2d at 487-89.

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The physician and the hospital argued on appeal that the trial

court erred by giving a modified pattern jury instruction. Specifically,

the trial court, at plaintiff’s request, added a sentence to the pattern

instruction that directed the jury to take into consideration the

“increased risk of future injuries” when calculating the amount of

damages. Dillon, 199 Ill. 2d at 497.

As in the present case, the debate over the jury instruction issue

reflected a larger debate over the applicable law. Prior to Dillon, this

court had rejected the risk of future injury as an element of damages.

Dillon, 199 Ill. 2d at 497-98. After a careful analysis of the history of

this rule, the case law from Illinois and elsewhere, the scholarly

literature, the split of authority in our appellate court, and policy

(Dillon, 199 Ill. 2d at 497-504), we held that “a plaintiff must be

permitted to recover for all demonstrated injuries,” including the risk

of future injury. (Emphasis in original.) Dillon, 199 Ill. 2d at 504. We

explained that the burden was on the plaintiff to quantify the degree

of risk and that amount of compensation must reflect the probability

of the occurrence of future injury. Dillon, 199 Ill. 2d at 504.

We then turned to the issue of jury instructions. At that time, there

was no pattern jury instruction on the increased risk of future injury

as an element of damages. Because the pattern jury instructions were

inadequate, an additional instruction was appropriate. Dillon, 199 Ill.

2d at 505. The instruction that was given, however, failed to fully and

fairly convey the newly adopted principle of law. Dillon, 199 Ill. 2d

at 506. The instruction merely told the jury to consider the “increased

risk of future injuries”; it did not convey the principle that the jury

should consider the degree of risk of that future harm occurring and

adjust the damages amount proportionally to the degree of the risk.

Dillon, 199 Ill. 2d at 506-07.

In Dillon, a pattern jury instruction regarding damages was

modified at plaintiff’s request. The jury found the defendants liable

and awarded damages. Having “definitively spoken” to a disputed

question of law, we determined that a retrial on the damages issue, “in

which a jury may apply the correct legal principles to the submitted

evidence, is appropriate,” because the jury “was inadequately

instructed.” Dillon, 199 Ill. 2d at 507-08.

In the present case, a nonpattern jury instruction was refused

because the trial court determined that the risk-utility test did not

-40-

apply. The jury found defendants liable. We have definitively spoken

to the questions of the applicability of the risk-utility test and its

relationship to the consumer-expectation test. A retrial is required

because the jury was inadequately instructed and was, therefore,

unable to apply the correct legal principles to the submitted evidence.

We conclude 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. Although

defendants were not prevented from introducing evidence regarding

the risks and benefits of the alternative designs that were feasible at

the time, and were not prevented from arguing to the jury that, on

balance, the CT20 seat was not “unreasonably dangerous” because it

prevented more injuries than it caused, the jury was specifically

instructed to focus its deliberations solely on whether the seat was

unsafe when put to a reasonably foreseeable use. The lack of a risk-

utility instruction, combined with the use of IPI Civil (2000) No.

400.06, prejudiced defendants’ ability to obtain a full, fair, and

comprehensive review of the issues by the jury. We, therefore, hold

that the trial court’s refusal to give the tendered instruction was an

abuse of discretion.

We note that this decision does not preclude a plaintiff in a design

defect case from proving her case using the consumer-expectation

test. Indeed, both parties may litigate an entire case using the

consumer-expectation test if, for example, the dispositive issue is

whether the manner in which the product was used was reasonably

foreseeable. Our holding does mean that 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.

(5)

Given our conclusion that the judgment must be vacated and the

matter remanded for a new trial, it is not necessary for us to address

the question of whether the award for loss of society was excessive.

CONCLUSION

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In sum, we hold that both the consumer-expectation test and the

risk-utility test may be utilized in a strict liability design defect case

to prove that the product is “unreasonably dangerous.” Whether an

instruction is required on either test or both tests will depend on the

issues raised in the pleadings and the evidence presented at trial.

When both tests are employed, consumer expectation is to be treated

as one factor in the multifactor risk-utility analysis.

Because the trial court abused its discretion by refusing the

tendered nonpattern instructions, the judgment of the appellate court,

which affirmed in part and reversed in part the judgment of the circuit

court, is reversed, the judgment of the circuit court is reversed, and

the cause is remanded to the circuit court for a new trial.

Appellate court judgment reversed;

circuit court judgment reversed;

cause remanded.

JUSTICE KILBRIDE took no part in the consideration or

decision of this case.

CHIEF JUSTICE FITZGERALD, concurring in part and

dissenting in part:

While I agree with the majority opinion in parts (1), (2), and

(4)(a) and (b), I depart from the majority’s conclusion in sections (3)

and (4)(c), particularly to the extent that it can be read to approve

defendants’ tendered non-IPI instructions. Because I am not

persuaded that defendants’ non-IPI instructions were superior to

plaintiff’s approved IPI instructions in guiding the jury’s

consideration of the issues in this case, I do not believe the trial court

abused its discretion. Instead, I believe the IPI instructions–along with

the arguments of counsel based upon the evidence

presented–provided an adequate framework to allow the members of

the jury to reach the ultimate issue. Therefore, I depart from the

majority because I cannot find that the jury was clearly misled or that

the defendant was prejudiced. My basis for that opinion rests largely

upon matters in the record not addressed by the majority’s opinion,

namely, the arguments of counsel and the faultiness of defendants’

instructions.

As required by Illinois Pattern Jury Instructions, Civil, No. 400.06

(2006), the trial court gave the jury an instruction requiring it to find

in favor of plaintiffs on a strict liability theory if, inter alia, the seat

was “unreasonably dangerous” in the sense that it was “unsafe when

put to a use that is reasonably foreseeable considering the nature and

function” of the seat. IPI Civil (2006) No. 400.06. In contrast, Ford’s

issues and burden instructions submitted to the court stated that the

issue was whether “the design defect made the Escort unreasonably

dangerous” and that “on balance the benefits of the 1996 Escort’s

front seat design outweigh the risks of danger inherent in the design.”

Defendants’ definition instruction No. 27 stated, in part,

“[A] product is defective in design when the foreseeable risks

of harm posed by the product outweigh the benefits of the

design and the risks can be reduced or avoided by the

adoption of an alternative feasible design. Feasibility includes

not only elements of economy, effectiveness and practicality,

but also technological possibilities under the state of

manufacturing art at the time the product was produced.”

Defendants’ definition instruction No. 28 stated,

“[W]hen evaluating the reasonableness of a design

alternative, the overall safety of the product must be

considered. It is not sufficient that the alternative design

would have reduced or prevented the harm suffered by the

plaintiff if it would also have introduced into the product

other dangers of equal or greater magnitude. A product’s

design may be reasonably safe even if the product is not

accident proof.”

Both plaintiff’s and defendants’ instructions must be evaluated to

determine whether the trial court abused its discretion.

Illinois Supreme Court Rule 239(a) governs the choosing of

instructions and provides that the court should consider the facts and

law and “shall” use the IPI unless it determines that it does not

accurately state the law. 177 Ill. 2d R. 239(a). A reviewing court will

reverse a trial court’s determination about which instruction to give

upon an abuse of discretion. Schultz v. Northeast Illinois Regional

Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002). We will examine

the jury instructions in their entirety, to determine whether they fairly,

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fully and comprehensively informed the jury of the relevant law.

Schultz, 201 Ill. 2d at 273-74. Ordinarily, we will not reverse a trial

court, even if the trial court gave faulty instructions, unless the

instructions clearly misled the jury and resulted in prejudice to the

appellant. Schultz, 201 Ill. 2d at 274; Dillon v. Evanston Hospital,

199 Ill. 2d 483, 507 (2002).

Our jurisprudence recognizes counsel has some role to play in

helping the jury to understand the instructions given by the judge. As

is stated in the foreward to the first edition of the Illinois Pattern Jury

Instructions, Civil, “on many occasions when the Committee has

rejected an instruction it has felt not so much that the point ought not

to be told to the jury, but rather it should be told to the jury by counsel

rather than by the Court.” (Emphasis in original.) See IPI Civil

(2006), at xxii (foreward to the first edition). This court echoed that

idea in Schultz v. Northeast Illinois Regional Commuter R.R. Corp.,

201 Ill. 2d 260 (2002). In Schultz, the court concluded that the trial

court erred in giving an IPI instruction. Schultz, 201 Ill. 2d at 281.

Nevertheless, the court held that the trial court’s failure to properly

instruct the jury was not reversible error and noted the appellate

court’s judgment may be affirmed on any basis in the record. Schultz,

201 Ill. 2d at 281. We found that it was not clear from the record that

the jury was misled by the error. Schultz, 201 Ill. 2d at 281. We noted

that the trial court allowed defense counsel to discuss in closing

argument evidence regarding defendant’s rejected instruction, and

noted that defense counsel did so, emphasizing that evidence in the

framework of the instructions given by the court. Schultz, 201 Ill. 2d

at 282.

This idea that the arguments can supplement the jury instruction

is also found in Carrillo v. Ford Motor Co., 325 Ill. App. 3d 955

(2001). As the majority notes, the Carrillo case involves nearly

identical facts, the same lawyers, trial judge, and experts as the instant

matter. More importantly, the instructions against Ford were identical

in both trials: the court gave plaintiff’s tendered IPI instruction nos.

400.01, 400.02 and 400.06 and refused to give defendant’s

instruction, IPI Civil No. 400.07. 325 Ill. App. 3d at 963-64. The

court noted, however, that defense counsel’s arguments were

sufficient when it stated “IPI Civil (2000) No. 400.06 told the jury a

product is unreasonably dangerous only when put to a use that is

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reasonably foreseeable. [Citation.] Ford was free to argue and did

argue that Lydia’s accident was of a rare type. Both sides presented

lengthy and conflicting testimony from a long list of experts. The jury

made its decision.” (Emphasis added.) Carrillo, 325 Ill. App. 3d at

965-66. Therefore, following Carrillo, the foreward to the first

edition of the Illinois Pattern Jury Instructions, and Schultz, I find IPI

Civil (2006) No. 400.06 can provide an adequate framework to

deliver the appropriate legal guidance to the jury if counsel was

permitted to make arguments pertaining to the rejected instruction.

Looking at the record, it is clear that counsel emphasized the

risks and benefits of the CT20 seat. The majority recounted the

extensive evidence submitted to the jury regarding the benefits and

dangers of the CT20 seat, as well as Timberlake’s role in the accident.

The defense counsel was free to argue, and did argue extensively, that

the “balance” of the risks of an alternate seat design outweighed the

benefits such that the CT20 seat was not “unreasonably dangerous.”

I note also that defense counsel devoted some argument on the

proximate cause issue to Timberlake’s role as the potential sole

proximate cause of the accident, as a drunk driver of a Cadillac

speeding at 60 miles per hour into the back of a standing Ford Escort.

Based upon the use of IPI Civil (2006) Nos. 400.01, 400.02 and

400.06 and arguments from counsel, there is no indication that the

jury was clearly misled and that defendants were prejudiced. Schultz,

201 Ill. 2d at 274. The general instruction contains nothing which

would prevent the jury from considering the defense experts’

testimony that a different seat design would have introduced a host of

dangers. Certainly, if the jurors had credited the defense experts and

discredited the plaintiff’s experts, the jury had the proper legal

framework to find that seat was allowably dangerous–dangerous to

some consumers like Mikolaczyck perhaps–but not unreasonably

dangerous considering the nature and function of the seat in relation

to all possible accidents that could occur.

Further, there is no indication that the jury could not make some

form of a risk/benefit analysis in coming to its decision. That

determination is not beyond the ken of the jury given adequate expert

testimony. Indeed, it would be difficult to find that a jury conducted

an adequate reasonableness analysis without simultaneously

conducting a risk/benefit analysis. The jury could have concluded that

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the risks of the current seat to James Mikolajczyck’s life were not

outweighed by the benefits of some other hypothetical lives that

would have been saved. Whether it performed that balance correctly

is beyond the purview of this opinion as it relates to a manifest weight

of the evidence argument, which was not raised by the defense

counsel before the appellate court or this court.

Turning to defendants’ instructions, I believe that the trial court

correctly rejected the non-IPI instructions. First, read as a whole, the

conspicuous problem with the defendants’ instructions is that they

deny plaintiff her chosen method of proof: consumer expectations.

Rather, it appears the defendants’ strategy was the adoption of the

risk-utility test as the sole test for products liability. In fact, defendant

appears to have admitted as much to the appellate court (see 369 Ill.

App. 3d 78, 87) and contains no argument before this court that the

consumer expectations test should be retained. There was no basis in

precedent for the trial court to force plaintiff to abandon her choice of

the consumer expectations test.

I note also that defendants’ instruction departs from the majority’s

possible formulation of the risk utility test (see slip op. at 30), which

includes “ ‘the nature and strength of consumer expectations

regarding the product, including expectations arising from product

portrayal and marketing.’ ” (Emphasis omitted.) Slip op. at 30,

quoting Restatement (Third) of Torts: Products Liability §2,

Comment f, at 23 (1998). I agree with the majority that the “consumer

expectation” test should not be abandoned. But I also note that the

Third Restatement does not itself propose a jury instruction.

Restatement (Third) of Torts: Products Liability §2, Comment f, at 25

(“This Restatement takes no position regarding the specifics of how

a jury should be instructed. So long as jury instructions are generally

consistent with the rule of law set forth in Subsection (b), their

specific form and content are matters of local law”); Comment f,

Illustration 6, at 25 (1998) (“Whether instructions to the trier of fact

should include specific reference to these factors is beyond the scope

of this Restatement and should be determined under local law”)

(1998).

Next, defendants’ instructions contain an inaccurate statement of

the law in their burden shifting language in instruction 19. The

relevant portion of that instruction provides: “If you find from your

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consideration of all the evidence that each of these propositions has

been proved, then the burden shifts to Ford/Mazda to prove that on

balance the benefits of the 1996 Escort’s front seat design outweigh

the risks inherent in the design.” The burden of proof does not shift

to Ford/Mazda. Rather, the ultimate burden remains with the plaintiff

to prove that the car seat was unreasonably dangerous. The majority

notes that no decision of this court has ever expressly adopted this

burden-shifting formulation, and rejects that position in its opinion.

Slip op. at 14-15.

Defendants’ non-IPI instruction No. 28 was also problematic in

that it, inter alia, provided “a product’s design may be reasonably

safe even if the product is not accident proof.” I note that this

language–“reasonably safe”–has not been approved in Illinois

precedent, and the majority has rejected it for lack of clarity. Slip op.

at 22 (noting that the phrase “ ‘not reasonably safe’ might be

interchangeable with ‘unreasonably dangerous,’ but that the

‘Restatement, and Suvada and all its progeny, furnish persuasive

authority that the jury should be instructed that it is the “unreasonably

dangerous” condition of the product which leads to liability’ ”),

quoting IPI Civil (2006) No. 400.01, Comment, at 553. As the

majority notes, this language amounts to adoption of section 2(b) of

the Restatement (Third) and would necessarily overrule Lamkin,

Hansen, and Calles. Slip op. at 22. Furthermore, the words “not

accident proof” are argumentative in that they have no source in

Illinois law, according to my research, and could render any product

not “unreasonably dangerous,” as every product can meet the standard

of not being accident proof.

As such, the trial judge faced the possibility that the jury would

have been misled and the plaintiff would have been prejudiced had

defendants’ instructions been used. Therefore, had the trial judge

been dissatisfied with plaintiff’s IPI instructions, the defendants’ non-

IPI instructions would have presented greater difficulties in giving the

jury an accurate statement of the law.

Lastly, I find Dillon distinguishable. In Dillon, we held that the

jury instructions on damages including the phrase “the increased risk

of future injuries” failed to instruct the jury properly. The holding in

Dillon was at odds with this court’s historical rejection of recovery

for risk of future injuries. Dillon, 199 Ill. 2d at 497. There also was a

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split of authority in the appellate court. Dillon, 199 Ill. 2d at 498.

Having determined for the first time that the element of damages was

compensable, the court then turned to whether the jury instruction

was proper. Dillon, 199 Ill. 2d at 504. This court did not address the

supplementation of the jury instructions with adversarial emphasis

during argument. Further, we deemed the instruction faulty because

it failed to distinctly instruct the jury regarding the amount of possible

future damage multiplied by the probability that it would occur.

Dillon, 199 Ill. 2d at 507. There was no indication in Dillon that this

was supplemented by the arguments of counsel. Here, this court had

not spoken on this specific issue, there was no split in authority in the

appellate court, and the parties were able to supply adversarial

emphasis. I therefore cannot find that the trial court abused its

discretion as the jury was not clearly misled and the defendants were

not prejudiced by the use of the IPI instruction.

I therefore depart from sections 3 and 4(c) of the majority opinion

as those sections rest on the assumption that defendants’ instruction

were superior to plaintiff’s instructions and fail to consider the effect

of defense counsel’s argument. See slip op. at 25-26 (stating the trial

judge “may not unilaterally preclude the giving of a jury instruction

that presents the defendant’s theory of the case, so long as the

defendant’s instructions accurately state the law and is supported by

the evidence. Assuming, for now, that defendants’ tendered

instructions met these criteria, we consider the implications of giving

a jury both consumer-expectation and risk-utility instructions in a

design defect case”). Accordingly, I believe that the trial court did not

abuse its discretion in choosing plaintiff’s IPI instructions over

defendants’ non-IPI instructions. I therefore respectfully dissent.

Dissent Upon Denial of Rehearing

CHIEF JUSTICE FITZGERALD, dissenting:

Among plaintiff’s arguments on rehearing under Supreme Court

Rule 367(b) (210 Ill. 2d R. 367(b)) are that the court “overlooked or

misapprehended” the faultiness of the defendants’ instructions and

the majority silently overruled prior precedent of this court as found

in Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007), Hansen v.

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Baxter Healthcare Corp., 198 Ill. 2d 420 (2002), and Lamkin v.

Towner, 138 Ill. 2d 510 (1990). I agree with these points and

additionally find that they are not reargument of the case. I therefore

respectfully dissent upon denial of rehearing.

Plaintiff first asserts that defendants’ alternate instructions

misstated the law in seven respects, including some of those I noted

in my dissent. Defendants’ instructions improperly: (1) required

plaintiff to prove there was an alternative feasible design in existence

at the time defendant sold the product in order to impose liability; (2)

misstated the law for proving risk-utility in that they stated that the

burden shifts to defendants to prove that the benefits of the design

outweighs its risks; (3) failed to correctly state the majority’s

“integrated test” because defendants’ instructions did not include any

reference to consumer expectation; (4) required the plaintiff to prove

the product was “unreasonably dangerous” without a definition of the

phrase; (5) required the plaintiff to prove both that the vehicle had a

“design defect” and the vehicle was “unreasonably dangerous”; (6)

used the phrase “not reasonably safe,” which this court rejected as an

inadequate substitute for “unreasonably dangerous”; and (7)

contained an argumentative reference to a product being reasonably

safe even if it is not “accident proof.” I note that these liability

instructions were the topic of extensive discussion before and during

the trial. Therefore, unaddressed by the majority opinion is the trial

court’s consideration of whether plaintiff would have suffered serious

prejudice had the trial court opted for defendants’ instructions. A

principal result of this omission is that the majority opinion can be

read as approving defendants’ instructions. For that reason alone,

plaintiffs have presented a strong case to grant rehearing in order to

remove this court’s possible imprimatur on defendants’ instructions.

The failure to examine defendants’ instructions also leads to a

misapprehension of the extent the trial court’s decision allowed for

a fair, although imperfect, trial for both parties. The trial court used

IPI instructions that generally, although not specifically (see Hansen

v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 884 (1999); see

also slip op. at 8), provided for consideration of risk-utility evidence

by the jury. The trial court allowed defendants to argue risk utility to

the jury. As I stated in my dissent, shortcomings within the jury

instructions may be remedied in closing argument. See slip op. at 44

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(Fitzgerald, C.J., concurring in part and dissenting in part) (citing

Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill.

2d 260 (2002), Carrillo v. Ford Motor Co., 325 Ill. App. 3d 955

(2001), and IPI Civil (2006), at xxii (foreward to the first edition)). I

also believe that rehearing should be granted to consider the role that

argument to the jury could have lessened or removed any possible

prejudice to defendant.

Plaintiff next claims that the majority opinion departed from this

court’s decision in Deal v. Byford, 127 Ill. 2d 192, 202-03 (1989).

Under Deal, a party claiming error in instructions must submit “a

correct instruction” stating the law for which he argues on appeal to

avoid waiver. Deal, 127 Ill. 2d at 202, citing 107 Ill. 2d R. 239(b).

Here, defendants’ instructions were not “correct” by reason of the

errors listed above. Left unanswered by the majority opinion is the

role of the trial court when submitted incorrect instructions which

would have prejudiced the opposing party. Importantly, plaintiff

suggests that she may not have objected had the trial court given a

neutral instruction such as:

“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.”

Thus, the majority decision may have been entirely different if

defendants had additionally offered such an “integrated” instruction

to the trial court instead of attempting to submit fatally flawed

instructions which denied plaintiff’s theory of the case, namely,

consumer expectation. Therefore, I believe a proper examination of

defendants’ instructions must also include discussion of whether

defendant properly submitted a “correct” instruction under Deal and

what role the submission of an incorrect instruction played into the

trial court’s exercise of discretion.2

2

Plaintiff makes a similar argument concerning Dillon v. Evanston

Hospital, 199 Ill. 2d 483 (2002). However, I believe the debate over that

case was adequately set forth in my dissent.

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Plaintiff next argues that the majority’s adoption of the

“integrated test” ignores this court’s past precedent allowing a

plaintiff to prove strict liability under alternate theories of liability,

i.e., the consumer-expectation theory and the risk-utility theory. I note

that, in general, a plaintiff is entitled to jury instructions embodying

her theory of the case. Snelson v. Kamm, 204 Ill. 2d 1, 27-28 (2003);

LaFever v. Kemlite Co., 185 Ill. 2d 380, 406-07, 414-15 (1998).

Similarly, the majority held that a party has the right to have the jury

instructed on each theory supported by the evidence and referred to

decisions of this court over the past two decades. Slip op. at 26 (citing

Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007), Hansen v.

Baxter Healthcare Corp., 198 Ill. 2d 420 (2002), and Lamkin v.

Towner, 138 Ill. 2d 510, 529 (1990)). Here, plaintiff tendered

consumer-expectation instructions and, since the evidence supported

that claim, the trial court was required to instruct the jury on her

theory.

The majority, however, held that the trial court abused its

discretion in giving the IPI instructions that properly set forth

plaintiff’s theory of the case. Therefore, as the plaintiff correctly

points out, the majority’s statement that the consumer-expectation test

still exists as a separate theory is illusory. It also calls into question

the holdings of Lamkin, Hansen, and Calles that a plaintiff may

pursue her strict liability case either under the consumer-expectation

test, the risk-utility test, or both.

This question arises from the incorrect assumption that defendants

had a case to prove. Defendants had no case to prove; they had a case

to defend. If there were affirmative defenses raised by the evidence,

defendants would have been entitled to choose whether to ask for an

instruction on any one or all of them. Here, I believe that the general

instructions provided by the IPI along with defense counsel’s

argument specifically concerning risk-utility adequately provided a

fair trial. Instead, the majority improperly erased all of the lines

drawn in our decisions in Calles, Hansen, and Lamkin delineating a

plaintiff’s ability to choose between the consumer-expectation test

and the risk-utility test.

In sum, we are left with the still unresolved question of the role

of a trial judge when given a general IPI jury instruction on the one

hand, and flawed jury instructions on the other. Because the majority

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has “overlooked” the problem presented by defendants’ badly flawed

instructions, I believe the majority has arrived at a similarly badly

flawed solution and rehearing is required under Rule 367(b) (210 Ill.

2d R. 367(b)). The majority’s resolution of the jury instructions issue

also leaves in doubt whether the consumer-expectation test remains

a viable alternative and whether portions of Lamkin, Hansen, and

Calles have been overruled. As a result, because I believe the

majority wrongly found the trial court abused its discretion, I would

reach the issue of remittitur. I therefore respectfully dissent upon

denial of rehearing.

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