Hakim v. Safariland, LLC

• Decision Date: 18 October 2019
• Docket Number: No. 15 C 6487,15 C 6487
• Court: U.S. District Court — Northern District of Illinois
• Parties: David HAKIM, Plaintiff, v. SAFARILAND, LLC & Defense Technology Corporation of America, Defendants.

410 F.Supp.3d 862

David HAKIM, Plaintiff,

v.SAFARILAND, LLC & Defense Technology Corporation of America, Defendants.

No. 15 C 6487

United States District Court, N.D. Illinois, Eastern Division.

Signed October 18, 2019

Edmund J. Scanlan, Scanlan Law Group, Chicago, IL, for Plaintiff.

John William Patton, Jr., Paul Donald Motz, Stephen R. Niemeyer, Whitney Leigh Burkett, Patton & Ryan, LLC, Chicago, IL, for Defendants.

Honorable Thomas M. Durkin, United States District Judge

MEMORANDUM OPINION AND ORDER

Former DuPage County SWAT team member David Hakim brings this action against defendants Safariland, LLC and Defense Technology Corporation (together "Safariland") for injuries he sustained from an allegedly defective shotgun shell made for door breaching.¹ Safariland moved for summary judgment on Hakim's strict product liability and negligence claims. For the following reasons, Safariland's motion [R. 93] is granted in part and denied in part.

Legal Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Horton v. Pobjecky , 883 F.3d 941, 948 (7th Cir. 2018). To defeat summary judgment, a nonmovant must produce more than a "mere scintilla of evidence" and come forward with "specific facts showing that there is a genuine issue for trial." Johnson v. Advocate Health and Hosps. Corp. , 892 F.3d 887, 894, 896 (7th Cir. 2018). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Background

Safariland Def-Tech TKO Breaching Rounds are translucent shotgun shells loaded with compressed zinc powder. 103-12 ¶ 11.² The breaching rounds are most widely used as a method to breach door locks, hinges, dead bolts, or safety chains for entry by law enforcement during tactical operations. Id. Upon impact with the target, the breaching rounds are designed to disintegrate into a fine powder. Id.

Plaintiff David Hakim is a former member of the DuPage County SWAT team. R. 93-1 ¶ 3. On December 11, 2014, Officer Patrick O'Neil led the SWAT team in door-breaching training at an abandoned residence in Hinsdale, Illinois. Id. ¶¶ 4-5, 7. Following O'Neil's demonstration, SWAT team officers were divided into groups to practice the shotgun-breaching technique in both the basement and on the first floor of the house. Id. ¶ 6. O'Neil did not know until after he finished his demonstration that the officers would be performing live breaching. Id. ¶ 19; R. 102 ¶ 19. When O'Neil learned of this fact, he told the commanding officer that the trainees should learn on a flat range before breaching in the home. R. 93-1 ¶ 22. The commanding officer still allowed the officers to proceed with the training. R. 103-1 at 76:22-77:1.

During the breaching practice, Hakim was positioned on the first floor of the house. R. 93-1 ¶ 8. Meanwhile, Officer Andy Alaniz was practicing shotgun-breaching in the basement with O'Neil using the TKO breaching rounds. Id. ¶¶ 9, 10. Alaniz had no experience with shotgun breaching prior to the training. Id. ¶ 24. O'Neil instructed Alaniz to keep the shotgun reasonably parallel to the floor and shoot straight between the hinge pin and the door. Id. ¶ 25. Alaniz then fired multiple shots directed at the hinge. Id. ¶ 10. One of the fired rounds traveled through the basement ceiling and first-floor floorboard, struck the back-bottom edge of Hakim's body armor, dented the armor, deflected at a downward angle and lodged into Hakim's spine. Id. ¶ 11.

At least one SWAT team member said that there were rounds "all over the place" that did not disintegrate on the day in question. R. 103 ¶ 21. Hakim and Safariland dispute whether the surface must be metal for disintegration to occur, and if it does, whether this fact was communicated to law enforcement officials and Hakim. See id. ¶ 34; R. 93-1 ¶ 38. They also dispute whether the round fired by Alaniz that hit Hakim ever hit the metal hinge of the door before traveling through the floorboard. R. 102 ¶ 10.

Safariland moved for summary judgment on Hakim's strict liability and negligence claims for manufacturing defect, design defect, and failure to warn.

Analysis

I. Strict Liability (Counts I-III)

A strict liability claim may proceed under three theories: manufacturing defect, design defect, and failure to warn. Mikolajczyk v. Ford Motor Co. , 231 Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d 329, 348 (2008), opinion modified on denial of reh'g (Dec. 18, 2008). Hakim alleges all three. Each is addressed in turn.

a) Manufacturing Defect (Count I) and Design Defect (Count II)

A manufacturing defect "occurs when one unit in a product line is defective, whereas a design defect occurs when the specific unit conforms to the intended design but the intended design itself renders the product unreasonably dangerous." Salerno v. Innovative Surveillance Tech., Inc. , 402 Ill.App.3d 490, 342 Ill.Dec. 210, 932 N.E.2d 101, 108 (2010) (citing Blue v. Environmental Engineering, Inc. , 215 Ill.2d 78, 293 Ill.Dec. 630, 828 N.E.2d 1128, 1137 (2005) ). Under both a manufacturing defect and a design defect theory, a plaintiff must allege: "(1) a condition of the product that results from manufacturing or design; (2) the condition made the product unreasonably dangerous; (3) the condition existed at the time the product left the defendant's control; (4) the plaintiff suffered an injury; and (5) the injury was proximately caused by the condition." Id. , 342 Ill.Dec. 210, 932 N.E.2d at 109 (citing Mikolajczyk , 327 Ill.Dec. 1, 901 N.E.2d at 345 ).

A plaintiff may demonstrate that a product is unreasonably dangerous by using either the consumer-expectation test or the risk-utility test. Mikolajczyk , 327 Ill.Dec. 1, 901 N.E.2d at 348. Under the consumer-expectation test, a plaintiff must prove that the product "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." Calles v. Scripto-Tokai Corp. , 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 254 (2007) (quoting Restatement (Second) of Torts § 402A cmt. i (1965)). "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." Id. , 309 Ill.Dec. 383, 864 N.E.2d at 256.

Under the risk-utility test, a plaintiff may demonstrate a design defect "by presenting evidence that the risk of danger inherent in the challenged design outweighs the benefits of such design." Calles , 309 Ill.Dec. 383, 864 N.E.2d at 255. Factors that courts consider in their risk-utility analysis include the availability and feasibility of alternative designs; conformity with industry standards, voluntary organization guidelines, and governmental regulation; the utility of the product; the safety aspects of the product; and the manufacturer's ability to eliminate unsafe characteristics of the product without impairing its usefulness or making it prohibitively expensive. Id. 309 Ill.Dec. 383, 864 N.E.2d at 263-64 ; Jablonski v. Ford Motor Co. , 353 Ill.Dec. 327, 955 N.E.2d 1138, 1154 (2011). When there is enough evidence to implicate both tests, consumer expectation becomes one factor in the risk-utility analysis, and the risk-utility test is applied by the fact finder. Mikolajczyk , 327 Ill.Dec. 1, 901 N.E.2d at 360, 363.

Although Safariland nominally moves for summary judgment on all counts, it does not address the consumer-expectation test, which is the governing standard for strict liability manufacturing defect claims. See Salerno , 342 Ill.Dec. 210, 932 N.E.2d at 109 ("When proceeding under a manufacturing defect theory, we apply the consumer-expectation test to determine whether the product is unreasonably dangerous."). And while Hakim has not provided direct evidence of a specific defect in the breaching round, this is not fatal to his claim. See DiCosolo v. Janssen Pharm., Inc. , 351 Ill.Dec. 574, 951 N.E.2d 1238, 1244 (Ill. App. Ct. 2011) (stating that "Illinois courts have acknowledged that the unavailability of the product does not preclude a plaintiff from proving that a product was defective through circumstantial evidence" and collecting cases to this effect). Because Safariland has not raised any arguments addressing Hakim's strict liability manufacturing defect claim, to the extent it moves for summary judgment on this count, the motion is denied.

Turning to strict liability design defect, Safariland argues that summary judgment is proper because Hakim did not establish that an alternative design was available or that the breaching rounds failed to conform with industry standards. The Illinois Supreme Court has rejected this exact argument. See Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 354 ("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.").

Rather than pursuing a risk-utility method of proof, under which alternative design is a factor, Hakim is proceeding under the consumer-expectation test. R. 104 at 5. The single question for the jury under the consumer-expectation test is "whether the product is unsafe when put to a use that is reasonably foreseeable considering its nature and function." Mikolajczyk , 327 Ill.Dec. 1, 901 N.E.2d at 352. While risk-utility "trumps" consumer-expectation when the two tests yield conflicting results, Ferraro v....