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A recent Illinois Supreme Court ruling of major significance examines the risk-utility test as a method of proof in product liability cases premised on a design-defect theory.  The holding in the case, which includes a rejection of a post-sale duty to warn, merits the special attention of the product liability defense bar.

Jablonski v. Ford Motor Co., 2011 Ill. LEXIS 1136, decided by the Illinois Supreme Court on Sept. 22, 2011, involved the collision of a 1993 Lincoln Town Car in which the plaintiff, Dora Mae Jablonski, and her husband, John L. Jablonski, Sr., were riding on July 7, 2003, in Madison County, Illinois.  When their car came to a stop in a highway construction zone, it was struck from behind by a car traveling at a high speed.  A large pipe wrench in the trunk of the Jablonski’s Town Car penetrated the trunk, puncturing the back of the car’s fuel tank. The tank had been mounted between the trunk and the vehicle’s rear axle as part of a design that Ford introduced in 1979, called the “Panther platform.”  The puncture of the fuel tank caused the Town Car to burst into flames, resulting in severe burns and permanent disfigurement to Mrs. Jablonski and the death of her husband.

A.        Procedural History.

Mrs. Jablonski and her son, John Jr., as special administrator and personal representative of his deceased father’s estate, sued Ford Motor Company in the Circuit Court of Madison County under theories of strict tort liability and negligence, alleging design defects associated with the location of the Town Car’s fuel tank.  In addition to compensatory damages, punitive damages were also sought under a theory of willful and wanton misconduct.  Specifically, the plaintiffs claimed that Ford was liable for injuries to Mrs. Jablonski and the death of her husband by reasons of:  (1) Ford’s design of the vehicle in which the fuel tank was positioned behind the rear axle (as opposed to above or in front of the axle); (2) its failure to shield the fuel tank to avoid penetration of the tank by objects in the trunk of the vehicle during a collision; and (3) for failure to warn the purchasers of its cars of the risk of trunk contents puncturing the fuel tank.

At the conclusion of the 11-day trial, following the close of the evidence, the plaintiffs dismissed, with prejudice, their strict liability claim against Ford (for reasons not specifically articulated in the Supreme Court’s opinion), and the case was submitted to the jury on theories of design negligence and willful and wanton misconduct.  Over Ford’s objection, the plaintiffs were also allowed to instruct the jury on another claim of negligence not previously pled, i.e. the breach of an alleged post-sale duty to warn.  Specifically, the plaintiffs claimed that the car manufacturer failed to warn or inform the Jablonskis of a certain remedial measure that had been instituted by Ford subsequent to the manufacture of the Jablonskis’ Town Car, but before their accident.  The remedial measure in question consisted Ford’s 2002 development of an “Upgrade Kit,” which  included shields designed to be installed between the trunk and the fuel tank of certain police vehicles (specifically the Ford Crown Victoria Police Interceptor).  The shields were intended to protect the fuel tank from puncture by objects during high-speed rear-end collisions.  In conjunction with various police agencies and the National Highway Transportation Safety Administration, Ford had also developed a drop-in trunk liner for police vehicles along with instructions regarding how items should be stored in the trunk (laterally rather than longitudinally) in order to decrease the risk of gas-tank puncture in the event of a rear-end collision.  Ford’s failure to advise consumers of the existence and availability of these remedial measures (although designed specifically for use in Ford’s Crown Victoria police vehicles) was the crux of the plaintiffs’ post-sale duty to warn case.

The Madison County jury returned a verdict against Ford for $28 million in compensatory damages and an additional $15 million in punitive damages.  Following the trial courtdenial  Ford’s motion for judgment notwithstanding the verdict, or alternatively, for a new trial, Ford appealed the ruling, and the Fifth District Illinois Appellate Court affirmed the plaintiffs’ judgment.  A petition for leave to appeal was granted by the Illinois Supreme Court, which also acceptedamici curiae briefs from the Illinois Trial Lawyers Association on behalf of the plaintiffs, and from the Alliance of Automobile Manufacturers and Caterpillar, Inc., on behalf of the defendant.

The Supreme Court’s opinion sets forth a detailed recitation of the evidence introduced at trial, and the objections thereto, including those relating to the design features of the Lincoln Town Car and other models using the Panther platform design; the admission of other incidents and accidents involving fuel-fed fires following rear-end collisions; alleged alternative feasible designs for the fuel tank mounting location; and compliance with applicable industry standards and other matters beyond the scope of this article. Instead it will focus upon four key points that follow the Court’s general discussion of the legal principles applicable to Illinois product liability cases premised upon allegations of negligent design.

B.        The Supreme Court’s Analysis.

Before addressing the issues raised by the defense for consideration, the court undertook a review of the general principles applicable to a product liability case based upon negligent design.  The court held that the key question of whether the manufacturer exercised reasonable care in the design of the product “encompasses a balancing of the risks inherent in the product design with the utility or benefit derived from the product . .  .” so that “[w]hen the risk of harm outweighs the utility of a particular design, there is a determination that the manufacturer exposed the consumer to a greater risk of danger than is acceptable to society.”  2011 Ill. LEXIS 1136 at pp.36-37.

The court noted that the same factors that are relevant to a risk-utility test analysis in a product liability case founded upon strict tort liability are also pertinent to a design-defect case based upon allegations of the product manufacturer’s negligence.  Such factors, illustrative but not exhaustive in the words of the court, include consideration of alternative, feasible designs in existence at the time of the subject product’s manufacture; conformance (or non-conformance) of the design to applicable industry standards or governmental regulations; the overall utility of the product both to its user and to the public, examined in the light of the likelihood of injury and the probable seriousness thereof; and the ability of the manufacturer to design out the unsafe characteristics of the product without impairing its usefulness or making it cost-prohibitive to the consumer.  The court must first balance such factors to determine if the case is submissible to a jury for consideration of these and other relevant factors in the risk-utility test analysis.

The Supreme Court, having determined that the risk-utility test is equally applicable to negligence-based design defect claims as it is to strict liability actions of that nature, then turned to the four major contentions raised by the defendant for review.

1. Compliance with industry standards.

Ford argued, based primarily on the plurality opinion of the Illinois Supreme Court’s decision in Blue v. Environmental Engineering, Inc., 215 Ill.2d 78, 828 N.E.2d 1128 (2005), that its unchallenged compliance with applicable industry standards was dispositive of the negligent design claim, since such a claim requires proof that the “defendant deviated from the standard of care that other manufacturers in the industry followed . . . .”  Blue, 215 Ill.2d at 96, 828 N.E.2d at 1141.

Despite Blue’s supposed suggestion that conformance with industry standards is dispositive of the issue of negligent design, the Supreme Court said that such is not the law, either in Illinois or elsewhere.  Instead, the manufacturer’s compliance with industry standards is simply one among several factors to be considered in determining whether reasonable care was exercised in the design of the product.  Relying primarily on its 2007 decision in Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 864 N.E.2d 249 (2007), the Supreme Court said that just as compliance with industry standards will not shield a manufacturer from a negligent design claim, neither will evidence of a violation of industry standards be deemed determinative of the manufacturer’s liability.  Instead, compliance with, or deviation from, applicable industry standards is probative of, but not conclusive of, the issue of the manufacturer’s due care.

2. Application of the risk-utility test.

Applying the risk-utility test analysis to the facts of the case, the Supreme Court said that it was incumbent upon the plaintiffs to introduce evidence that the defendant’s conduct in designing the placement of the fuel tank in the Lincoln Town Car was unreasonable, by demonstrating that the foreseeable risks of the adopted design outweighed its associated benefits and utility.  The court said such proof cannot be satisfied by an alternative design, which the evidence showed would introduce other risks of an equal or greater magnitude than the challenged design.

The risk of fuel-tank puncture in cars using the Panther platform design was shown at trial to be statistically remote and, despite the trial court’s admission of other incidents of fuel-fed fires following rear-end collisions, none were shown to have been caused by a gas tank being punctured by a projectile in the trunk of the vehicle.  Evidence of the shields designed by the defendant for a different model of car did not show the shield to have been compatible with the Jablonski’s vehicle.

After considering the foreseeable risks and their remoteness, as compared to the utility and benefits of the challenged design, the court concluded that there was insufficient evidence to submit the case to the jury on the plaintiff’s allegations of negligence concerning the location of gas tank, its absence of shielding, or the defendant’s failure to warn, as of the date of the car’s manufacture, of the claimed risk of fuel-tank puncture.

3. Post-sale duty to warn.

The Supreme Court then turns its attention to what is arguably the most important point of the case – the rejection of the plaintiff’s claim based upon an alleged post-sale duty of Ford to warn its purchasers about the existence of the purportedly remedial measures, and their associated instructions for use, that Ford had developed for the Crown Victoria police interceptor vehicles to lessen the likelihood of post-impact fires resulting from punctured fuel tanks.

Despite the Supreme Court’s characterization of the Illinois precedent regarding a manufacturer’s duty to warn in the following terms:  “[W]hen a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk created by its fault” (see 2011 Ill. LEXIS 1136 at p.52, emphasis added) (which might be interpreted to imply the existence of a post-sale duty to warn, even when the manufacturer was unaware of the risk posed by the product at the time of its sale), the court went on to cite other cases in which the existence of a post-sale duty to warn was rejected.  (See, e.g.Carrizales v. Rheem Mfg. Co., 226 Ill.App.3d 20, 34, 589 N.E.2d 569, 579 (1981)) (“Illinois law has been reluctant to impose a duty to warn beyond the time when the product leaves the manufacturer’s control unless the manufacturer knew or should have known at the time that the product was defective.”); Modelski v. Navistar Int’l Trans. Corp., 302 Ill.App.3d 879, 890, 707 N.E.2d 239, 247 (1999) (“[A] manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.”); Collins v. Hyster Co., 174 Ill.App.3d 972, 977, 529 N.E.2d 303, 306 (1988) (“[T]he law does not contemplate placing the onerous duty on manufacturers to subsequently warn all foreseeable users of products based upon increased design or manufacture expertise that was not present at the time the product left its control.”).

In urging the adoption of a post-sale duty to warn, such as that which is set forth in Section 10 of the Restatement (Third) of Torts:  Product Liability (1982) (which the court noted has never been previously adopted in Illinois), the Illinois Trial Lawyers Association cited certain factors in automotive litigation that it claimed to circumstantially support the adoption of a post-sale duty to warn.  Such factors include the ability of the car manufacturer to track the owner of a vehicle using Vehicle Identification Number information, and the ease of passing along a warning to consumers (either through mailings to the owners identified by the VIN information, or by publicizing through the general media) concerning the existence of a hazard and/or the means to address it, either by retrofit or the use of additional warnings.  Since, however, no such evidence regarding the means or methods of contacting consumers had been discussed at trial, the court declined, at least for now, to create a post-sale duty to warn in Illinois.

4.         Voluntary undertaking.

Lastly, the plaintiff argued that regardless of whether Illinois common law would otherwise impose upon the defendant a post-sale duty to warn, Ford nevertheless undertook such a duty, and was negligent in its performance, by providing post-sale warnings to some of its consumers (the owners of the aforementioned police vehicles) but not to others (the civilian owners of Ford cars designed with the aft-of-axle gas tanks).

The court noted that voluntary undertakings, for the purpose of imposing liability for their negligent performance, are “limited to the extent of the undertaking” and are “narrowly construed.”  2011 Ill. LEXIS            1136 at pp.61-62, citing its recent decision in Bell v. Hutsell, 2011 Ill. LEXIS 777 at p.8 (2011) as well asFrye v. Medicare-Glaser Corp., 153 Ill.2d 26, 32, 605 N.E.2d 557, 560 (1992).

According to the court, the development of the so-called post-remedial measures for fleets of police vehicles had nothing to do with other models of cars purchased by Ford’s individual civilian consumers.  The Supreme Court thereby held that the trial court erred in instructing the jury on a post-sale duty to warn based upon an unrelated voluntary undertaking.

For the reasons expressed above, the Supreme Court reversed the judgment of the trial court as well as the decision of the Fifth District Appellate Court, with no remand instructions being issued as part of its reversal.