Mikolajczyk v. Ford Motor Co.

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 plaintiffs 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, 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 foreword 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.) IPI Civil (2006), at xxii (foreword 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 plaintiffs 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 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 foreword 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 plaintiffs experts, the jury had the proper legal framework to find that seat was allowably dangerous — dangerous to some consumers like Mikolajczyk 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 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 231 Ill. 2d at 555), which includes “ ‘the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.’ ” (Emphasis omitted.) 231 Ill. 2d at 555, 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 (“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 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. 231 Ill. 2d at 536.

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. 231 Ill. 2d at 545 (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. 231 Ill. 2d at 545. 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 juiy 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 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’ instructions were superior to plaintiffs instructions and fail to consider the effect of defense counsel’s argument. See 231 Ill. 2d at 550 (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 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”). Accordingly, I believe that the trial court did not abuse its discretion in choosing plaintiffs IPI instructions over defendants’ non-IPI instructions. I therefore respectfully dissent.