The opinion
2018 IL App (3d) 170116
Opinion filed February 28, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
KARRIE POMMIER, ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Plaintiff-Appellant, ) Kankakee County, Illinois.
)
v. )
)
JUNGHEINRICH LIFT TRUCK )
CORPORATION, MULTITON MIC )
CORPORATION, and CALUMET LIFT )
TRUCK CORPORATION, ) Appeal No. 3-17-0116
) Circuit No. 12-L-180
Defendants )
)
(Jungheinrich Lift Truck Corporation and )
Multiton Mic Corporation, )
)
Defendants-Appellees, )
)
EMD Millipore Corporation, ) Honorable Adrienne W. Albrecht,
) Judge, Presiding.
Third-Party Defendant). )
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices McDade and Wright concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Karrie Pommier, filed this lawsuit after she allegedly injured her right shoulder
while operating an electric pallet jack at work on October 29, 2009. Her complaint alleged strict
products liability and negligence claims against Jungheinrich Lift Truck Corporation (JLT),
Multiton Mic Corporation (MMC), and Calumet Lift Truck Service Company, Inc. (Calumet).
The trial court granted Calumet summary judgment on the strict liability claim but denied
Calumet summary judgment on the negligence claim. The court later granted JLT and MMC
(defendants) summary judgment on all claims. Plaintiff appeals this judgment. We affirm.
¶2 BACKGROUND
¶3 On September 29, 2011, plaintiff filed her complaint in Cook County. In October 2012,
the court transferred the case to Kankakee County pursuant to Illinois Supreme Court Rule 187
(eff. Aug. 1, 1986). The complaint alleged that plaintiff worked as a manufacturing operator at
EMD Millipore Corporation (Millipore). On October 29, 2009, she injured her right shoulder
while operating a Multiton ELE 45 electric pallet jack for Millipore.
¶4 The complaint alleged negligence and strict products liability claims against defendants.
Count I alleged that defendants “carelessly and negligently developed, designed, manufactured,
distributed, and sold [the jack] such that it could suddenly stop functioning; *** without
conducting or obtaining adequate research that the control circuitry and machine was generally
recognized as safe; [and] *** when it knew or should have known that the particular product
may cause injury to its operators.” Count II alleged that the jack “was in a defective condition,
unreasonably dangerous for its intended use” because “the device spontaneously malfunctioned
without warning; there were inadequate power controls for movement of the device; the controls
permitted unexpected, sudden application of the brakes during movement; [and] the emergency
stopping protocol engaged in unplanned or unexpected situations.”
¶5 I. The Pallet Jack’s Alleged Defect
¶6 When they examined the jack, experts for both sides found that someone previously
inverted the jack’s brake cam. Neither expert found any other defect. The jack’s braking system
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employs three primary parts: the tiller handle, the cam, and the roller switch. Operators use the
tiller handle to steer and drive the jack. The cam is mounted at the base of the tiller. It rotates
over the fixed roller switch as the operator raises or lowers the tiller. Contact between the cam
and the roller switch activates the brakes.
¶7 The cam is designed to contact the roller switch when the tiller reaches certain angles.
Based on the jack’s design, an operator cannot physically position the tiller in any range between
0 degrees (parallel to the ground) and 15 degrees. The designed lower braking range is between
15 degrees and 34 degrees—when an operator lowers the tiller to angles in this range, the cam
should contact the roller switch and activate the brakes. The designed upper braking range is
between 80 degrees and 90 degrees. The “F arc” should be between 34 degrees and 80 degrees.
When an operator positions the tiller within the “F arc,” the brakes should not activate.
¶8 The cam screws onto a stud affixed to the tiller. A nut in the center of the cam holds it in
place. If someone tightens the nut without holding the cam in place, the cam may rotate with the
nut as it is secured. Properly installed, the cam should sit horizontally while the tiller rests at a
39-degree angle.
¶9 During her deposition, plaintiff testified that she operated the jack on October 29, 2009.
She walked in front of the jack and held onto the tiller handle with her right hand. Her right arm
extended behind her; her hand and the tiller handle were positioned just above her waist. As
plaintiff continued to move forward, the jack stopped and caused “a pulling in her shoulder.” She
stated: “If you would walk it would— it would automatically stop on you. You could be walking
and it would just—it would just stop and it would jerk you.”
¶ 10 Plaintiff’s expert, Daniel Pacheco, opined that the inverted cam caused plaintiff’s injury
“and similar [prior] incidents” that plaintiff’s coworkers reported. He opined that defendants
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negligently designed the jack’s brake system by failing to preclude the possibility of someone
inverting the cam. He offered a “technologically and economically feasible” alternative lock nut
design that would require a key to adjust the cam. He also opined that defendants should have
included on-machine instructions with embedded warnings that explained how to properly
position the cam.
¶ 11 Pacheco concluded that the cam’s inverted position “had the effect of causing the brake
to be applied when the steering tiller was higher in the lower braking range than it should have
been.” However, his findings from examining the jack refuted this conclusion. Pacheco found
that the tiller’s travel arc—the total range in which an operator could physically position the
tiller—totaled 74.2 degrees (i.e., any range between 15 to 15.8 degrees and 89.2 to 90 degrees).
He also found that the lower brake arc totaled 10 degrees. Because an operator cannot physically
position the tiller below a 15-degree angle, Pacheco’s lower brake arc ranged from 15 degrees to
25 degrees. Finally, Pacheco concluded that the upper brake arc totaled just 1.5 degrees
(approximately 88 to 90 degrees). According to Pacheco’s findings, the inverted cam could not
activate the brakes unless plaintiff positioned the tiller below 25 or above 88 degrees—well past
the threshold for each designed brake range (34 degrees and 80 degrees, respectively). In other
words, the inverted cam made the brakes less likely to activate.
¶ 12 II. The Pallet Jack’s History
¶ 13 The manufacturer, which is not a party to this lawsuit, produced the jack in 1999.
Millipore, plaintiff’s employer, bought it new the same year. Defendants are the manufacturer’s
wholly-owned subsidiaries and distributors. Millipore hired Calumet to periodically maintain the
jack. During discovery, Millipore and Calumet failed to produce any service records from 1999
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through most of 2008. The record lacks any evidence indicating what service or alterations
Millipore and Calumet performed for nearly a decade after Millipore purchased the jack.
¶ 14 The jack came with two manuals, an operating manual and a service manual. The
operating manual specifically prohibits operators from repairing or modifying the jack: “Without
specific training and express authorization the driver is not allowed to perform any repairs or
modifications on the [jack]. Under no circumstances must the driver change the setting of
switches or safety installations, or render them ineffective.” The operating manual also states that
only “expert personnel of the manufacturer” may perform maintenance on the jack. The
maintenance personnel may not modify it in any way. They also must “recommission” the jack
after performing maintenance. Before “recommissioning” the jack, maintenance personnel must
“check the brake for correct function.”
¶ 15 Plaintiff claims that defendants failed to produce the correct service manual during
discovery. Joern Soukup, a Jungheinrich employee, testified about the service manual’s contents.
He stated that the manual “provides expert personnel with the specific manner in which the tiller
handle must be positioned for correct function.” The manual indicates that the upper braking
range requires the operator to position the tiller between 80 and 90 degrees; the lower braking
range requires the operator to position the tiller between 15 and 34 degrees.
¶ 16 Soukup also testified that the manufacturer employed several processes to ensure the
brake system operated properly before shipment. First, the manufacturer used special equipment
to secure the tiller at a 39-degree angle. Then, an employee used a 24-millimeter wrench to
correctly position the cam while tightening the nut. A 24-millimeter wrench cannot fit around the
cam if it is not positioned properly. Next, the manufacturer performed a “lamp test” where it
wired an electronic device into the brake switch to ensure the brake operated within the proper
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ranges. Finally, the manufacturer tested each jack’s brakes at least three times before shipment:
on the assembly line, after assembly, and during a documented final inspection before shipment.
¶ 17 Defendants’ expert, Michael Rogers, opined that the manufacturer correctly positioned
the cam, and it remained properly positioned when the jack left defendants’ control. He based his
opinion on Soukup’s description of the manufacturer’s procedures. He also observed that using a
24-millimeter wrench made it impossible to invert or misalign the cam. Rogers and Pacheco
agreed that patterns of uneven wear and tear on the roller switch and cam (“witness marks”)
suggested that the cam was previously properly positioned.
¶ 18 III. Procedural History
¶ 19 On September 20, 2016, defendants filed a combined motion for summary judgment.
Despite her lack of evidence indicating that defendants inverted the cam, plaintiff maintained
that the brake system design was defective because it did not prevent operators and other third
parties from inverting the cam. Plaintiff also claimed that defendants should have foreseen that
someone could and would invert the cam. On January 11, 2017, the trial court granted
defendants’ motion. The court determined that plaintiff failed to show that defendants could
reasonably foresee the cam modification when they designed the jack. The court also determined
that plaintiff failed to provide any evidence that the inverted cam caused plaintiff’s injury. We
agree with the trial court’s judgment.
¶ 20 ANALYSIS
¶ 21 We review trial courts’ orders granting summary judgment de novo. Horwitz v. Holabird
& Root, 212 Ill. 2d 1, 8 (2004). Summary judgment is appropriate where “the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
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matter of law.” 735 ILCS 5/2-1005(c) (West 2016). Parties opposing summary judgment must
present evidence sufficient to establish a genuine issue of material fact or that the moving party
is not entitled to judgment as a matter of law. Performance Food Group Co., LLC v. ARBA Care
Center of Bloomington, LLC, 2017 IL App (3d) 160348, ¶ 18. We review the trial court’s
judgment, not its reasoning, and we may affirm on any basis supported by the record. Hope v.
Hope, 398 Ill. App. 3d 216, 220 (2010).
¶ 22 Plaintiff appears to abandon her negligence claims on appeal. Plaintiffs who raise
negligence claims “must do more than simply allege a better design for the product; [they] must
plead and prove evidence of a standard of care by which to measure a defendant’s design and
establish a deviation from that standard.” Blue v. Environmental Engineering, Inc., 215 Ill. 2d
78, 96 (2005). Plaintiff’s brief fails to mention such a standard of care or reference evidence
tending to show that defendants deviated from it. Instead, plaintiff focuses on a single defective
condition (the inverted cam) and defendants’ liability for its existence. This is a strict products
liability argument.
¶ 23 Under Illinois law, a plaintiff bringing a strict products liability action must prove the
following elements: (1) an unreasonably dangerous product condition that resulted from
manufacturing or its design, (2) the existence of the condition existed when the product left the
defendant’s control, and (3) the condition having proximately caused plaintiff’s injuries.
Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 543 (2008).
¶ 24 In the trial court proceedings, plaintiff presented no evidence that defendants inverted the
cam before selling the jack to Millipore in 1999. In fact, no party has disclosed evidence
regarding the cam’s positioning or the jack’s maintenance prior to 2008. The trial court
determined that plaintiff failed to prove that defendants could reasonably foresee the defect or
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that it proximately caused plaintiff’s injury. On appeal, plaintiff argues that the record
sufficiently establishes that the jack’s design was defective and proximately caused her injuries.
We address her arguments below.
¶ 25 I. Defective Design
¶ 26 Plaintiff advances two arguments in support of her design defect claim. First, she claims
that inverting the cam did not substantially modify the jack’s design; the defective design existed
before the jack left defendants’ control. Alternatively, plaintiff argues that defendants should
have foreseen operators’ modifications and other third parties’ negligent acts or omissions. She
claims that defendants remain liable for such foreseeable events. We reject both arguments.
¶ 27 A. Modification
¶ 28 Plaintiff argues that a person “modifies” a product only if he or she removes, adds, or
substitutes the product’s parts or alters how operators use it. Based on this definition, plaintiff
argues that the inverted brake cam cannot constitute a “modification” that absolves defendants’
liability. No evidence indicated that someone removed, added, or substituted the jack’s parts.
Nor did any evidence indicate that the inverted cam required plaintiff to operate the jack
differently than its design intended.
¶ 29 We reject plaintiff’s definition because “alteration, modification or change” is already
defined by statute as “an alteration, modification or change that was made in the original makeup
characteristics, function or design of a product or in the original recommendations, instructions
and warnings given with respect to a product including the failure properly to maintain and care
for the product.” 735 ILCS 5/13-213(a)(1) (West 2016). Courts have characterized alterations
that do not add, remove, or substitute parts as modifications in products cases. See Masters v.
Hesston Corp., 291 F.3d 985, 989-90 (7th Cir. 2002) (misaligning a twine tube while rewelding
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it to a hay baler); Davis v. Pak-Mor Manufacturing Co., 284 Ill. App. 3d 214, 217-18 (1996)
(rewiring a garbage truck’s switch); Gowler v. Ferrell-Ross Co., 206 Ill. App. 3d 194, 200
(1990) (disabling a lever); Kempes v. Dunlop Tire & Rubber Corp., 192 Ill. App. 3d 209, 215
(1989) (cutting into a golf ball). The statutory definition clearly contemplates all unintended
changes to a product’s original components and all deviations from the manufacturer’s
recommended maintenance.
¶ 30 Section 213(a)(1)’s definition coincides with the well-settled principle that manufacturers
are not insurers. Hunt v. Blasius, 74 Ill. 2d 203, 211 (1978). Because manufacturers are not
insurers, the law does not automatically attribute defects caused by unintended alterations to the
product’s design or manufacturing. For example, an automobile’s wheel might become
unreasonably dangerous if the driver loosens the lug nuts. Although the driver did not add,
substitute, or remove parts, or alter the way in which he or she drove the automobile, the
manufacturer never intended for the wheel to function with loosened lug nuts. On the other hand,
if the driver pushes a button or operates a lever to adjust the driver’s seat or steering wheel, no
modification occurs; the manufacturer clearly intended the seat and steering wheel to adjust
based on the driver’s physical stature. See, e.g., Stehl v. Brown’s Sporting Goods, Inc., 236 Ill.
App. 3d 976 (1992).
¶ 31 In lockstep with the statutory definition and principles of products liability law, we find
that the inverted brake cam constituted a modification in this case. We now must determine
whether defendants could reasonably foresee this modification.
¶ 32 B. Foreseeability
¶ 33 Plaintiff argues that defendants remain liable because they could reasonably foresee, as a
matter of law, that operators could and would modify the jack’s braking system, including the
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cam. Plaintiff also argues that a question of facts exists as to whether defendants could foresee
Calumet’s or some other nonoperator’s negligence. It is important to note that plaintiff presented
no evidence showing who inverted the brake cam—an operator or other Millipore employee, a
Calumet agent, or some other third party.
¶ 34 We summarily reject plaintiff’s argument that defendants remain liable if Calumet or
another nonoperator third party negligently inverted the brake cam. Plaintiff cites no law
supporting this proposition. Whether defendants could foresee that some professional might
negligently service the jack or alter its original design is irrelevant. In retrospect, almost anything
is foreseeable. Majumdar v. Lurie, 274 Ill. App. 3d 267, 271 (1995) (citing Mieher v. Brown, 54
Ill. 2d 539, 544 (1973)). We reiterate that “[p]roducts liability does not make the manufacturer an
insurer of all foreseeable accidents which involve its product.” Hunt, 74 Ill. 2d at 211. It is
conceivable that expert maintenance personnel or service companies like Calumet might
negligently maintain a product or alter its functionality. However, the law does not deem
manufacturers forever liable for such negligence beyond their control. See Kirby v. General
Motors Corp., 10 Ill. App. 3d 92, 96 (1973). Manufacturers have no duty to design foolproof
products immune from all possible accidents. Flaugher v. Sears, Roebuck & Co., 61 Ill. App. 3d
671, 676 (1978).
¶ 35 In some cases, however, manufacturers must anticipate modifications that operators can
easily effect. DeArmond v. Hoover Ball & Bearing, 86 Ill. App. 3d 1066, 1071 (1980). The two
factors relevant to this analysis are whether operators could easily modify the product and
whether the manufacturer should reasonably anticipate that operators would modify the product
for some particular reason. See id.; Woods v. Graham Engineering Corp., 183 Ill. App. 3d 337,
342 (1989); Foster v. Devilbiss Co., 174 Ill. App. 3d 359, 363 (1988).
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¶ 36 Plaintiff argues that defendants could reasonably foresee that operators could modify the
brake cam; an operator without any specific expertise could access the cam by using common
tools such as screwdrivers and wrenches. Plaintiff also claims that an operator would foreseeably
maintain the jack’s brake system as the operating manual requires.
¶ 37 Plaintiff’s argument lacks a necessary ingredient—proof that an operator inverted the
cam. Unlike in DeArmond and Foster, plaintiff presented no evidence that an operator modified
the product. Whether defendants should have reasonably foreseen that an operator could and
would invert the cam is irrelevant if an operator did not invert the cam.
¶ 38 Even if we assume, arguendo, that an operator inverted the cam, plaintiff’s argument still
fails. Although we agree that operators can use common tools such as screwdrivers and wrenches
to access the cam, plaintiff presents no evidence that operators typically understand the
interacting functions of the tiller handle, cam, and switch roller. Nor does plaintiff provide any
evidence that operators’ regular job duties include adjusting or maintaining the jack’s braking
system.
¶ 39 In fact, the operating manual specifically prohibits operators from performing
maintenance on the jack. The manual states: “Without specific training and express authorization
the driver is not allowed to perform any repairs or modifications on the jack. Under no
circumstances must the driver change the setting of switches or safety installations, or render
them ineffective.” Clearly, defendants intended to prohibit operators from maintaining or
modifying the jack’s braking system. Defendants could not reasonably foresee that operators
would ignore this express and unambiguous direction.
¶ 40 The trial court correctly determined that plaintiff failed to present sufficient evidence to
survive summary judgment. Plaintiff cannot prove that defendants inverted the brake cam or that
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they should have reasonably foreseen that someone would later invert the cam during a repair,
thus rendering the design defective. We agree with the trial court’s determination.
¶ 41 II. Proximate Cause
¶ 42 Although our holding above is sufficient to affirm summary judgment, we briefly address
plaintiff’s proximate cause argument. Although proximate cause is typically a question of fact, a
court may determine the issue as a matter of law if the evidence shows that plaintiff “would
never be entitled to recover.” Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004).
Proximate cause incorporates two elements—cause in fact and legal cause. Id. at 258.
¶ 43 Plaintiff argues that her deposition testimony provided sufficient evidence to survive
summary judgment. She testified that the jack “would automatically stop” and “jerk” operators.
On the date of her injury, plaintiff pulled the machine behind her with her right arm. She
positioned her right hand and the tiller handle just above her waist. As she walked forward, the
jack “suddenly stopped” and pulled her shoulder. In her brief, plaintiff contends that her injury
“occurred as a result of the [jack] stopping suddenly when plaintiff operated the machine for its
intended purpose; pulling it behind her within the proper ‘F’ range.” She claims that her
testimony sufficiently shows that the allegedly defective design, which permitted the inverted
cam, caused the jack to brake erratically or suddenly stop.
¶ 44 Plaintiff’s testimony fails to satisfy the “cause in fact” element. Her own expert shoots
this argument out of the water. Her expert’s findings do not indicate that the inverted cam caused
the jack to stop erratically; instead, they revealed that the inverted cam decreased the upper and
lower braking ranges. This means that the alleged defect increased the “F” range within which
operators could freely move the jack. Although plaintiff testified that the jack suddenly stopped,
no factual findings or even expert opinions support plaintiff’s argument that the alleged defect
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caused the sudden stop. “The existence of proximate cause cannot be established by speculation,
surmise, or conjecture.” Majetich v. P.T. Ferro Construction Co., 389 Ill. App. 3d 220, 224
(2009).
¶ 45 Plaintiff also failed to present sufficient evidence that she positioned the tiller within the
“F” range when she sustained her injury. She testified that she pulled the jack behind her and
positioned her right hand and the tiller handle just above her waist. The jack’s braking system
engages based on the tiller’s angle, not its height. Plaintiff failed to present evidence
demonstrating the angle at which she positioned the tiller handle when she sustained her injury.
Without demonstrating that she, in fact, positioned the tiller within the “F” range, rather than the
lower braking range, plaintiff cannot recover in this case.
¶ 46 We agree with the trial court that plaintiff failed to present sufficient evidence
demonstrating that the inverted cam caused her injuries. We affirm the trial court’s judgment.
¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, we affirm the judgment of the Kankakee County circuit court.
¶ 49 Affirmed.
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