Calles v. Scripto-Tokai Corp.

• Decision Date: 16 February 2007
• Docket Number: No. 101089.,101089.
• Citation: 864 N.E.2d 249,224 Ill.2d 247
• Parties: Susan CALLES, Independent Adm'r of the Estate of Jillian Calles, Deceased, and Indiv., Appellee, v. SCRIPTO-TOKAI CORPORATION et al., Appellants (Richard Fox et al., Appellees).
• Court: Illinois Supreme Court

864 N.E.2d 249

224 Ill.2d 247

Susan CALLES, Independent Adm'r of the Estate of Jillian Calles, Deceased, and Indiv., Appellee, v. SCRIPTO-TOKAI CORPORATION et al., Appellants (Richard Fox et al., Appellees).

No. 101089.

Supreme Court of Illinois.

February 16, 2007.

Michael D. Freeborn, Michael P. Kornak, Patrick J. Woytek, of Freeborn & Peters, LLP, Chicago, Mark K. Suzumoto, Keith A. Sipprelle, of Van Etten Suzumoto & Becket, LLP, Santa Monica, California, Kenneth A. Peterson, of McGuire Woods, LLP, Los Angeles, California, for appellants.

Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., Ottawa, Thomas A. Demetrio, Margaret M. Power, Corboy & Demetrio, Chicago, for appellee Susan Calles.

Terrence M. Burns, Pamela Davis Gorcowski, John M. Steed, of Dykema Gossett, PLLC, Chicago, Charles E. Reiter III, Maywood, for appellees Richard Fox and Loyola University Medical Center.

Jeffrey S. Hebrank, Edwardsville, Michael L. Young, St. Louis, Missouri, both of Burroughs, Hepler, Broom, MacDonald, Hebrank & True, LLP, for amicus curiae Illinois Association of Defense Trial Counsel.

James P. Costello, Bruce R. Pfaff, Chicago, for amicus curiae Illinois Trial Lawyers Association.

Justice BURKE delivered the judgment of the court, with opinion:

In Illinois, two tests are employed when determining whether a product is unreasonably dangerous under a strict liability design-defect theory — the consumer-expectation test and the risk-utility test. In this case, we are asked to consider whether there is a "simple product" exception to the application of the risk-utility test. That is, we must decide whether a product which is deemed "simple" and its dangers "open and obvious" will be per se exempt from the risk-utility test and subject only to the consumer-expectation test. We decline to adopt such a per se rule.

BACKGROUND

On March 31, 1998, plaintiff Susan Calles resided with her four daughters, Amanda, age 11, Victoria, age 5, and Jenna and Jillian, age 3. At some point that night, Calles left her home with Victoria to get videos for Amanda. When she left, the twins were in bed and Amanda was watching television. Calles returned to find fire trucks and emergency vehicles around her home. It was subsequently determined by a fire investigator, Robert Finn, that Jenna had started a fire using an Aim N Flame utility lighter Calles had purchased approximately one week earlier. The Aim N Flame was ignited by pulling a trigger after an "ON/OFF" switch was slid to the "on" position. As a result of the fire, Jillian suffered smoke inhalation. She was hospitalized and died on April 21.

Calles, individually and as administrator of Jillian's estate, filed suit in the circuit court of Cook County against Tokai, designer and manufacturer of the Aim N Flame, and Scripto-Tokai, distributor (collectively Scripto), alleging that the Aim N Flame was defectively designed and unreasonably dangerous because it did not contain a child-resistant safety device. According to the complaint, a safety device was available, inexpensive, and would have reduced the risk that children could ignite the lighter. Calles' claims sounded in strict liability, negligence, and breach of the implied warranties of merchantability and fitness for a particular purpose.¹ Calles further alleged that Scripto was negligent and strictly liable because of a failure to give adequate warnings.

Calles also filed a medical malpractice claim against Dr. Richard Fox and Loyola University Medical Center (collectively Loyola) in connection with their treatment of Jillian following the fire. Scripto filed counterclaims against Calles and Loyola. Loyola then filed a counter-complaint for contribution against Scripto.

Thereafter, Scripto filed a motion for summary judgment on the claims brought by Calles and Loyola. Scripto argued that: (1) the Aim N Flame was not defective or unreasonably dangerous because it worked as expected; (2) Scripto had no duty to make an adult product child resistant; (3) Scripto had no duty to warn because the dangers of the Aim N Flame were open and obvious; and (4) there was no breach of warranties because the Aim N Flame operated as intended and expected.

In support of its motion for summary judgment, Scripto offered the deposition testimony of Calles and Robert Finn, the fire inspector. In her deposition, Calles admitted she was aware of the risks and dangers presented by lighters in the hands of children, and, for this reason, she stored the Aim N Flames on the top shelf of her kitchen cabinet. Calles further admitted that the Aim N Flame operated as intended and expected.

In opposition to Scripto's motion for summary judgment, Calles offered affidavits from several experts including John Geremia, a chemical and mechanical engineer; Tarald Kvålseth, a mechanical and industrial engineer; William Kitzes, a board-certified product safety manager; Richard Dahlquist, an electrical engineer; and Carol Pollack-Nelson, an engineering psychologist. All of these experts opined that the Aim N Flame was defective and unreasonably dangerous because it lacked a child-resistant design. They also opined that a technologically and economically feasible alternative design, which included a child-resistant safety device, existed at the time the Aim N Flame was manufactured. Several of the experts averred that Scripto was aware of the desirability of a child-safety device because it knew children could operate the Aim N Flame. Further, according to these experts, Scripto owned the technology to make the Aim N Flame child resistant in 1994 and 1995.

With respect to the cost of an alternative design, Kvålseth noted that the Consumer Product Safety Commission, the regulatory body for lighters, in a proposed rule dated September 30, 1998, estimated the increased cost of adding a safety device to the lighter would be $0.40 per unit. However, it was Kvålseth's opinion that, had the feature been incorporated into the original design, the cost would have been negligible.

Calles also offered evidence of the dangerousness of lighters in the hands of children and Scripto's awareness of such dangers. She introduced into evidence statistics showing the number of previous fires started by children with lighters (both utility and cigarette), the number of deaths and injuries that had occurred each year as a result of fires started by children, and the reduction in cost to society that would be derived from the addition of child-resistant safety devices on the lighters. Calles further pointed to Scripto's answers to interrogatories, in which Scripto admitted they had been named as defendants in 25 lawsuits filed between 1996 and 2000 for injuries that occurred between 1992 and 1999 under circumstances similar to this case.

The trial court granted summary judgment in favor of Scripto on both Calles' complaint and Loyola's counter-complaint. The trial court found that all claims "must fall because these defendants neither owed nor breached any duty imposed upon them by law" under any of the causes of action raised.

On appeal, the appellate court affirmed in part and reversed in part.² 358 Ill. App.3d 975, 295 Ill.Dec. 258, 832 N.E.2d 409. With respect to strict liability, the appellate court held that the Aim N Flame "does not qualify as the kind of especially simple device for which the result of the risk-utility balancing is too obvious for trial." 358 Ill.App.3d at 983, 295 Ill.Dec. 258, 832 N.E.2d 409. Accordingly, the appellate court reversed the trial court's grant of summary judgment in favor of Scripto. 358 Ill.App.3d at 984, 295 Ill.Dec. 258, 832 N.E.2d 409. The appellate court also reversed summary judgment on the negligent-design claims and remanded for further proceedings. 358 Ill.App.3d at 984, 295 Ill.Dec. 258, 832 N.E.2d 409. We granted Scripto's petition for leave to appeal. 210 Ill.2d R. 315.

Analysis

Strict Liability

In Suvada v. White Motor Co., 32 Ill.2d 612, 622-23, 210 N.E.2d 182 (1965), this court adopted the strict liability doctrine set forth in section 402A of the Second Restatement of Torts. Under this doctrine, strict liability is imposed upon a seller of "any product in a defective condition unreasonably dangerous to the user or consumer or to his property." Restatement (Second) of Torts § 402A, at 347-48 (1965). The test outlined in section 402A for determining whether a product is "unreasonably dangerous" is known as the consumer-expectation or consumer-contemplation test. This test provides that a product is "unreasonably dangerous" when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement (Second) of Torts § 402A, Comment i, at 352 (1965).

Under the consumer-expectation test, a plaintiff must establish what an ordinary consumer purchasing the product would expect about the product and its safety. This is an objective standard based on the average, normal, or ordinary expectations of the reasonable person; it is not dependent upon the subjective expectation of a particular consumer or user. See American Law of Products Liability 3d § 17:24, at 17-44 (1997); L. Bass, Products Liability: Design & Manufacturing Defects § 4:1 (2d ed.2001); Britton v. Electrolux Home Products, Inc., No. CIV-05-1322-F, 2006 WL 2934271 (W.D.Okla. October 13, 2006); Crosswhite v. Jumpking, Inc., 411 F.Supp.2d 1228, 1232 (D.Or. 2006); Henrie v. Northrop Grumman Corp., No. 2:04-CV-00296, 2006 WL 1129399 (D.Utah April 24, 2006). See also 1 D. Owens, M. Madden & M. Davis, Madden & Owens on Products Liability § 5:6, at 294-5 (3d ed.2000).

The consumer-expectation test was originally applied to manufacturing defects, but soon came to be applied to design-defect issues as well. Over time, the applicability of the consumer-expectation test to design-defect cases was questioned, primarily...