Illinois Supreme Court Addresses Design Defect Standards

In Mikolajczyk v. Ford Motor Co., the Illinois Supreme Court considered the relationship between the consumer-expectation and risk-utility standard in a design case that arose when a Ford Escort James Mikolajczyk was driving was rear-ended by a vehicle whose driver was intoxicated.  Mr. Mikolajczyk suffered severe injuries, from which he died a few days later.  His widow, as special administrator of his estate, brought suit against the other driver and Ford and Mazda Motor Company, alleging that the design of the driver's seat of the Ford Escort was defective.  The trial court granted summary judgment against the other driver.  The claims against the other two defendants went to trial.  The jury in the case found them liable and awarded the plaintiff  $2 million in damages for loss of money, goods, and services, and $25 million for loss of society.  The damages for loss of society were reduced by the Illinois Court of appeals.  On a second appeal to the Illinois Supreme Court the issue was whether the trial court in the case erred in instructing the jury on the consumer-expectation standard and refusing to instruct on the defendants' proposed risk-utility standard.

In a lengthy opinion the court held considered two questions for this court. The first was whether a defendant is entitled to an instruction on the risk-utility test over the objection of a plaintiff whose chosen method of proof is consumer expectation.  The second was "if both consumer-expectation and risk-utility instructions are given and the tests yield inconsistent answers, which result prevails?"

The court held "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,'  and that "[w]hether 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, and if "both tests are employed, consumer expectation is to be treated as one factor in the multifactor risk-utility analysis."

The defendant asked the court to adopt section 2(b) of the Restatement (Third) of Torts:  Products liability (1998), as the exclusive test for resolving design defect issues.  The court rejected the invitation because of its conclusion that section 2(b) would alter the "unreasonably dangerous" element in Illinois design defect cases  by requiring the plaintiff to prove the existence of a feasible alternative and also by requiring proof not that a product is "unreasonably dangerous" but only "not reasonably safe."  The court's concern about the "not reasonably safe" standard related less to "the aspirational goal that might be set for manufacturers than with parties' and jurors' need for clarity."  The court's concern was that the ‘unreasonably dangerous" standard would be more likely to be understood by the average juror than the "not reasonably safe" test.

Having rejected the Restatement standard, the court nonetheless thought that the risk-utility formulation was "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).

The test integrates the risk-utility and consumer expectation standards by making consumer expectations a factor in the risk-utility analysis.  The court said that its formulation of the risk-utility standard would be an appropriate basis for a jury instruction "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."  The consumer expectation standard could still be the sole standard for determining the existence of a design defect if "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."

MKS