Under Illinois law, a manufacturer’s liability for an allegedly defective product is determined by the condition of the product at the time that it left the manufacturer’s possession and control. Augenstine v. Dico Co., 135 Ill.App.3d 273, 481 N.E.2d 1225 (1985). Defects existing in the product at the time it leaves the manufacturer’s possession and control, whether in design, manufacture or warnings, that render the product unreasonably dangerous for its intended or foreseeable uses, by intended or foreseeable users, has long been the touchstone of a manufacturer’s liability for injuries caused by its product. See e.g., West v. Deere & Co., 145 Ill.2d 177, 582 N.E.2d 685 (1991); Hunt v. Blasius, 74 Ill.2d 203, 384 N.E.2d 368 (1978); Dunham v. Vaughn & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401 (1969).
What, then, of a situation in which a user of the product alters or modifies the product in a manner that causes injury to the user or others? According to a recent decision of the Second District of the Illinois Appellate Court, the answer depends upon the foreseeability to the manufacturer of injury-producing alterations or modifications of the product by its user.
In Perez v. Sunbelt Rentals, Inc., 2012 Ill.App. LEXIS 263, 2012 IL App. (2d) 110382 (April 9, 2012), the plaintiff, a painter, was using a scissor lift on a construction site. When the lift was manufactured and sold, its working platform was surrounded by a railing, with a gate at the rear of the platform to allow ingress and egress to the working surface of the lift. At some time prior to plaintiff’s accident the gate at the rear of the platform had been removed. While using the lift, the plaintiff fell from the platform at the place where the missing gate had been located, sustaining severe injuries. The plaintiff filed suit against the lift manufacturer, with one of his theories being that the lift was unreasonably dangerous because the rear gate of the platform could be easily removed, thereby allowing the user of the lift to fall from the platform as the plaintiff had done.
The lift manufacturer moved for summary judgment, contending that, as a matter of law, the removal of the gate from the rear of the lift’s platform was not reasonably foreseeable to the manufacturer, and that the removal of the gate by a prior user of the lift was an intervening cause of the accident. The trial judge agreed and granted the lift manufacturer’s summary judgment motion.
On appeal, the plaintiff argued that the granting of summary judgment by the trial court was error because there was a genuine issue of material fact as to the foreseeability on the part of the lift manufacturer that the gate guard would be removed by a user, and that the relative ease with which the gate could be removed was a condition which itself rendered the design of the lift defective and unreasonably dangerous. The Appellate Court agreed that factual issues remained regarding the foreseeability of the gate’s removal, and reversed the trial court’s summary judgment order, remanding the case for further proceedings.
The appeal centered on the nature and scope of the manufacturer’s objective foreseeability of the alteration of its product by a user. The defense relied primarily upon a series of cases, including DeArmond v. Hoover Ball and Bearing, Uniloy Division, 86 Ill.App.3d 1066, 408 N.E.2d 771 (1980), to the effect that when tools are required to make the modification of the product, such an alteration is unforeseeable to the manufacturer as a matter of law. 86 Ill.App.3d at 1071, 408 N.E.2d at 774.
The evidence in the Perez case demonstrated that in order to remove the gate guard from the platform of the lift, a Nyloc nut and bolt had to be removed with a wrench and screwdriver, two locking pins had to be pulled out of position, and the gate had to be pulled out of channels that held it in place on the platform. The Appellate Court distinguished the DeArmond case on its facts, in which the removal of the manufacturer-provided safety doors required the removal of eight bolts and a rod, as contrasted with the single bolt and two pins required to be removed from the lift’s platform in the Perez case.
The Appellate Court also found persuasive the cases cited by the plaintiff, primarily Davis v. Pak-Mor Mfg. Co., 284 Ill.App.3d 214, 672 N.E.2d 771 (1996), which held that where no special expertise is required to make the modification, and where the alteration of the product is not especially complex or time-consuming, a genuine issue of material fact exists as to the manufacturer’s foreseeability of the modification despite the fact that pliers and screwdrivers (characterized by the Appellate Court as "common tools") were required in order to perform the alteration.
The essence of the Perez case is that even though a manufacturer’s liability is generally determined by the condition of the product at the time it left the manufacturer’s possession and control (i.e. was there or was there not a defect in design, manufacture, warnings, etc. that rendered the product unreasonably dangerous at that time), the ease with which a user of the product can alter or modify the product in such a way as to create an injury-producing scenario can itself be considered a defect in the product if such a modification is reasonably (and objectively) foreseeable to the manufacturer. This now appears to be a question which a jury, rather than a motion judge, will generally have to answer in determining the liability, if any, of the product manufacturer.
