Ill. Pattern Jury Instr. (Civil) 400.00

Introduction

Strict product liability is imposed without regard to traditional questions of privity, fault,

or the user's ordinary negligence. It was developed in response to the inadequacy of negligence

and warranty remedies. P roduct liability cases based on negligence, warranties, or other

contractually-related theories of liability are not covered by these instructions.

The Origins of Strict Liability

The evolution of strict product liability began with the imposition of liability on sellers of

food when a special implied warranty theory was developed. Race v. Krum , 222 N.Y. 410, 118

N.E. 853 (1918); Van Bracklin v. Fonda, 12 Johns. 468, 7 Am. Dec. 339 (N.Y. 1815). Although

a privity requirement persisted for a time, even in food cases, that requirement was eventually

abolished and the right to recover was extended to the injured consumer. Tiffin v. Great Atl. &

Pac. Tea Co., 18 Ill.2d 48, 162 N.E.2d 406 (1959); Patargias v. Coca--Cola Bottling Co., 332

Ill.App. 117, 74 N.E.2d 162 (1st Dist. 1947); Welter v. Bowman Dairy Co., 318 Ill.App. 305, 47

N.E.2d 739 (1st Dist. 1943); Mazetti v. Armour & Co., 75 Wash. 622, 135 P. 633 (1913).

The special warranty in the case of food was gradually expanded to intimate items such as

hair dye and soap. See e.g. , Graham v. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413 (1954). In

1960, the landmark decision of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69

(1960), further extended the special warranty theory to all products . The Henningsen decision,

although not employing the term “strict liability in tort,” resolved the privity dilemma and

articulated the rationale upon which the total transition from special warranty to strict liability in

tort would ultimately be made:

The burden of losses consequent upon use of defective articles is borne by those who are

in a position to either control the danger or make an equitable distribution of the losses

when they do occur . . . .

We see no rational doctrinal basis for differentiating between a fly in a bottle of beverage

and a defective automobile. The unwholesome beverage may bring illness to one person,

the defective car, with its great potentiality for harm to the driver, occupants and others,

demands even less adherence to the narrow barrier of privity . . . .

Accordingly, we hold that under modern marketing conditions, when a manufacturer puts

a new automobile in the stream of trade and promotes its purchase by the public, an

implied warranty that it is reasonably suitable for use as such accompanies it into the

hands of the ultimate purchaser. Absence of agency between the manufacturer and the

dealer who makes the ultimate sale is immaterial. Henningsen v. Bloomfield Motors, Inc.,

supra, 32 N.J. at 379-384, 161 A.2d at 81-84.

After Chief Justice Traynor of the California Supreme Court authored the decision

adopting strict liability in tort in Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 377 P.2d

897, 27 Cal.Rptr. 697 (1963), the American Law Institute adopted Section 402A of the

Restatement (Second) of Torts in 1964 which embraced the theory of strict liability in tort for

defective products. The Illinois Supreme Court's decision in Suvada v. White Motor Co., 32 Ill.2d

612, 210 N.E.2d 182 (1965), soon followed. The Suvada decision is the touchstone of strict

liability in Illinois, and, although refinements have been supplied by subsequent decisions, the

basic element of the theory enunciated therein remains unchanged today:

Although in these cases strict liability has usually been based on the theory of an express

or implied warranty running from the manufacturer to the plaintiff, the abandonment of

the requirement of a contract between them, the recognition that the liability is not as

assumed by agreement but imposed by law . . . and the refusal to permit the manufacturer

to define the scope of its own responsibility for defective products ... made clear that the

liability is not one governed by the law of contract warranties but by the l aw of strict

liability in tort. Accordingly, rules defining and governing warranties that were developed

to meet the needs of commercial transactions cannot properly be invoked to govern the

manufacturer's liability to those injured by [its] defective prod ucts unless those rules also

serve the purposes for which such liability is imposed. Suvada v. White Motor Co., 32

Ill.2d at 621, 210 N.E.2d at 187 (citing Greenman v. Yuba Power Products, Inc., 59

Cal.2d at 63, 377 P.2d at 901, 27 Cal.Rptr. at 701).

Strict liability in tort for defective products is not a doctrine of absolute liability which

entitles a person injured while using a product to recover from any member of the chain of

production or distribution; it does not make the manufacturer, distributor or retailer an insurer of

the consumer's safety. Coney v. J.L.G. Indus., Inc., 97 Ill.2d 104, 111, 454 N.E.2d 197, 73

Ill.Dec. 337 (1983); Artis v. Fibre Metal Prods., 115 Ill.App.3d 228, 450 N.E.2d 756, 71 Ill.Dec.

68 (1st Dist. 1983). “Fault,” in the context of strict product liability, is the act of placing an

unreasonably dangerous product in the stream of commerce.

Parties Subject to Strict Product Liability

At common law, in order to be subject to strict product liability, a defendant must be

engaged in the business of placing such products in the stream of commerce. Torres v. Wilden

Pump & Eng'g Co., 740 F.Supp. 1370 (1990); Timm v. Indian Springs Recreation Ass'n, 187

Ill.App.3d 508, 543 N.E.2d 538, 135 Ill.Dec. 155 (4th Dist. 1989) (used golf ca rt, isolated sale;

no liability). Any person in the chain of distribution of a product, including manufacturers,

suppliers, distributors, wholesalers, retailers, and commercial lessors, could be held strictly liable

for any defect. Cruz v. Midland--Ross Co rp., 813 F.Supp. 628 (1993); Crowe v. Pub. Bldg.

Comm'n, 74 Ill.2d 10, 383 N.E.2d 951, 23 Ill.Dec. 80 (1978).

Legislation has modified the common law strict liability of non -manufacturers in the

chain of distribution. The Distributor's Act, 735 ILCS 5/2-621, permits dismissal of strict liability

claims against non -manufacturers not at the source of the chain of distribution in a product

liability action. The dismissal must be based on an affidavit filed by the defendant that correctly

identifies the manuf acturer of the product. The court, however, cannot enter a dismissal if the

plaintiff shows that the defendant filing the affidavit has exercised some significant control over

the design or manufacture of the product, or has provided instructions or warnings to the

manufacturer relative to the alleged defect in the product, 735 ILCS 5/2- 621(c) (1), or that the

defendant had actual knowledge of the alleged defect, 735 ILCS 5/2- 621(c) (2), or that the

defendant created the alleged defect in the product, 735 I LCS 5/2 -621(c) (3). Moreover, the

plaintiff can move to vacate any order of dismissal if the statute of limitations has run against the

manufacturer, 735 ILCS 5/2- 621(b) (1), or if the manufacturer is not subject to personal

jurisdiction in Illinois, 735 ILCS 5/2-621(b) (3).

Although strict product liability generally extends to sellers of all products, strict liability

may not extend to sellers of used products under certain circumstances. Peterson v. Lou Bachrodt

Chevrolet Co., 61 Ill.2d 17, 329 N.E.2d 785 (1975) (seller of used car not strictly liable); Timm v.

Indian Springs Recreation Ass'n, supra.

ELEMENTS OF PLAINTIFF'S CASE

Plaintiff's Prima Facie Case

To recover in strict product liability, a plaintiff must plead and prove that the injury or

damage resulted from a condition of the product manufactured or sold by the defendant, that the

condition was an unreasonably dangerous one, and that the condition existed at the time the

product left the manufacturer's control. (Coney, supra, 97 Ill.2d at 111; Hunt v. Blasius, 74 Ill.2d

203, 210 (1978), Suvada, supra, 32 Ill.2d at 623; Restatement Second of Torts, Section 402A ).

The determination of whether a product is defective, and therefore unreasonably dangerous, is

ordinarily a question of fact for the jury (see Renfro v. Allied Indus. Equip. Corp., 155 Ill.App.3d

140, 155 (1987)), and, in making its determination, the credibility of the witnesses and the

conflicts in the evidence are to be resolved by the jury. Korando v. Uniroyal Goodrich Tire Co.,

159 Ill.2d 335 (1994).

Although the defendant's role in commerce will seldom be an issue, the plaintiff may also

be required to prove that the defendant was in the business of selling the product and not solely

an installer. Restatement (Second) of Torts §402A (1965).

The plaintiff may create an inference that the product was unreasonably dangerous by

direct or circumstantial evidence that there was no abnormal use of the product, that there was no

reasonable secondary cause of the injury, and that the product failed to perform in the manner

reasonably to be expected in light of its nature and intended function. Tweedy v. Wright Ford

Sales, 64 Ill. 2d. 570 (1976); Doyle v. White Metal Rolling & Stamping Corp., 249 Ill.App.3d

370, 618 N.E.2d 909, 188 Ill.Dec. 339 (1st Dist. 1993); see IPI 400.01.01 and 400.02.01.

Meaning of “Unreasonably Dangerous”

See Comment to IPI 400.06 and 400.06A for a discussion of the case law defining

“unreasonably dangerous.”

Types of Defects

Products can be defective and unreasonably dangerous in any of three ways. First, a

particular item may contain a manufacturing flaw. Second, the product may be defectively

designed. Third, the product may have an informational defect (inadequate warnings, directions,

or instructions affixed to or accompanying the product).

Manufacturing Defects

A particular unit of a product may be defective because of an imperfection resulting from

some miscarriage during the manufacturing process. See, e.g., Tweedy v. Wright Ford Sales, Inc.,

64 Ill .2d 570, 357 N.E.2d 449, 2 Ill.Dec. 282 (1976) (automobile with defective brakes);

McKasson v. Zimmer Mfg. Co., 12 Ill.App.3d 429, 299 N.E.2d 38 (2d Dist. 1973) (imperfections

in surgical rod); Kappatos v. Gray Co., 124 Ill.App.2d 317, 260 N.E.2d 443 (1st Dist. 1970)

(defective plastic spray painting hose).

Design Defects

A product may be defective because its design renders it unreasonably dangerous.

There are two tests that may be used to establish a design defect. The first, which goes

back to the original Restatement (Second) of Torts §402A, is known as the “consumer

expectation” test. Under this test, the danger must go beyond that which would be contemplated

by the ordinary consumer with ordinary knowledge common to the community as to its

characteristics. Restatement (Second) of Torts §402A Comment (I) (1965); Riordan v. Int'l

Armament Corp., 132 Ill.App.3d 642, 477 N.E.2d 1293, 87 Ill.Dec. 765 (1st Dist. 1985).

In addition to the consumer expectation test, the plaintiff may choose to prove a st rict

product liability case under the “risk- utility” test. Under this test, a product is unreasonably

dangerous, subjecting a manufacturer to liability, if the design is a cause of the injuries and if the

benefits of the challenged design are outweighed by the design's inherent risk of danger. Lamkin

v. Towner , 138 Ill.2d 510, 563 N.E.2d 449, 150 Ill.Dec. 562 (1990); Palmer v. Avco Distrib.

Corp., 82 Ill.2d 211, 412 N.E.2d 959, 45 Ill.Dec. 377 (1980). These principles were fully

discussed by the Supreme Court in Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420 (2002);

Calles v. Scripto-Tokai , 224 Ill.2d 247 (2007); and Mikolajczyk v. Ford Motor Co., 231 Ill.2d.

516, 327 Ill. Dec. 1, 901 N.E.2d 329 (2008).

Inadequate Warnings and Instructions

A product also may be unreasonably dangerous because of a failure to adequately warn of

a danger or a failure to adequately instruct on the proper use of the product. Hammond v. N. Am.

Asbestos Corp., 97 Ill.2d 195, 454 N.E.2d 210, 73 Ill.Dec. 350 (1983). However, whe n a danger

is obvious and generally appreciated, there is no duty to warn of that danger. McColgan v. Envtl.

Control Sys., Inc., 212 Ill.App.3d 696, 571 N.E.2d 815, 156 Ill.Dec. 835 (1st Dist. 1991); Smith

v. Am. Motors Sales Corp., 215 Ill.App.3d 951, 576 N.E.2d 146, 159 Ill.Dec. 477 (1st Dist.

1991).

A defendant has no duty to warn of risks of which it neither knew nor should have known

at the time the product was manufactured. Byrne v. SCM Corp., 182 Ill.App.3d 523, 538 N.E.2d

796, 131 Ill.Dec. 421 (4th Dist. 1989) (manufacturer of epoxy paint); Salvi v. Montgomery Ward

& Co. , 140 Ill.App.3d 896, 489 N.E.2d 394, 95 Ill.Dec. 173 (1st Dist. 1986) (air gun

manufacturer had no duty to warn of dangers of which it neither knew nor should have known);

Elgin Airport Inn, Inc. v. Commonwealth Edison Co., 89 Ill.2d 138, 432 N.E.2d 259, 59 Ill.Dec.

675 (1982) (supplier of electricity not strictly liable for failure to warn when it neither knew nor

should have known about abnormal current); Woodill v. Parke Davis & Co., 79 Ill.2d 26, 402

N.E.2d 194, 37 Ill.Dec. 304 (1980) (pharmaceutical manufacturer can only be held liable for its

failure to warn of those risks it knew or should have known at the time of manufacture).

Foreseeability

Both the person using the product and the use to which it is being put must be reasonably

foreseeable. In Winnett v. Winnett , 57 Ill.2d 7, 310 N.E.2d 1 (1974), the Illinois Supreme Court

emphasized the foreseeability requirement:

In our judgment the liability of a manufacturer properl y encompasses only those

individuals to whom injury from a defective product may reasonably be foreseen and only

those situations where the product is being used for the purpose for which it was intended

or for which it is reasonably foreseeable that it ma y be used. Any other approach to the

problem results in making the manufacturer and those in the chain of product distribution

virtual insurers of the product, a position rejected by this Court in Suvada.

Id. at 11, 310 N.E.2d at 4; see Woodill v. Parke D avis & Co., supra. Recognizing that “in

retrospect almost nothing is entirely unforeseeable,” Mieher v. Brown , 54 Ill.2d 539, 544, 301

N.E.2d 307, 309 (1973), the Supreme Court in Winnett v. Winnett and thereafter has interpreted

foreseeability to mean “th at which it is objectively reasonable to expect, not merely what might

conceivably occur.” Kirk v. Michael Reese Hosp. & Med. Ctr. , 117 Ill.2d 507, 513 N.E.2d 387,

111 Ill.Dec. 944 (1987). Accordingly, a bystander may recover if injured by another's use of a

defective product, so long as the presence of the bystander is reasonably foreseeable. Schulz v.

Rockwell Mfg. Co., 108 Ill.App.3d 113, 117, 438 N.E.2d 1230, 1232, 63 Ill.Dec. 867, 869 (2d

Dist. 1982).

Damages

The plaintiff in a strict liability action may recover compensatory damages. Recovery in

strict liability always has included damage to the product itself. Suvada v. White Motor Co.,

supra. However, under the so- called “Moorman” doctrine (based on Moorman Mfg. Co. v. Nat'l

Tank Co., 91 Ill.2d 69, 435 N.E.2d 443, 61 Ill.Dec. 746 (1982)), a plaintiff cannot recover in tort

for solely economic losses. In Moorman, the court defined economic loss as:

damages for inadequate value, costs of repair and replacement of the defective product, or

consequent loss of profits --without any claim of personal injury or damage to other

property *** . . . as well as the diminution in the value of the product because it is inferior

in quality and does not work for the general purposes for which it was manufactured and

sold. 91 Ill.2d at 82, 435 N.E.2d at 449, 61 Ill.Dec. at 752.

The economic loss doctrine as stated in Moorman applies to negligence and strict liability

cases. Accordingly, a homeowner cannot recover in tort for solely economic losses resulting from

a homebuilder's negligence. 2314 Lincoln Park W. Condo. Ass'n v. Mann, Gin, Ebel & Frazier,

Ltd., 136 Ill.2d 302, 555 N.E.2d 346, 144 Ill.Dec. 227 (1990); Foxcroft Townhome Owners Ass'n

v. Hoffman Rosner Corp., 96 Ill.2d 150, 449 N.E.2d 125, 70 Ill.Dec. 251 (1983) (condominium

owners cannot recover economic losses from developer); Redarowicz v. Ohlendorf, 92 Ill.2d 171,

441 N.E.2d 324, 65 Ill.Dec. 411 (1982).

The Moorman doctrine applies even in the absence of an alternative remedy in contract.

Anderson Elec., Inc. v. Ledbetter Erection Corp., 115 Ill.2d 146, 503 N.E.2d 246, 104 Ill.Dec.

689 (1986).

AFFIRMATIVE DEFENSES

Plaintiff's Contributory Fault--Assumption of the Risk

One of the refinements to the Suvada decision was made in Coney v. J.L.G. Indus., Inc.,

97 Ill.2d 104, 454 N.E.2d 197, 73 Ill.Dec. 337 (1983). Since it was “demanded by today's

society” and in order to produce “a more just and socially desirable distribution of loss” in

negligence actions, Illinois adopted the concept of the “pure form ” of comparative negligence in

Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981). Adopting the same reasoning

which supported its decision in Alvis, and after determining that the vast majority of jurisdictions

have found comparative fault theories to be applicable to strict liability cases, the Supreme Court

in Coney adopted comparative fault principles in strict product liability actions. The Court

specifically found that the application of comparative fault principles in a product liabil ity action

would not frustrate the Court's fundamental reasons for adopting strict product liability as set out

in Suvada. Coney v. J.L.G. Indus., Inc., supra at 116.

However, plaintiff's fault is a defense only if it constitutes assumption of the risk.

Plaintiff's ordinary contributory negligence is not a defense to strict product liability when that

negligence consists merely in a failure to discover the defect in the product, or to guard against

the possibility of its existence. Coney v. J.L.G. Indus., Inc., supra at 118- 119. A consumer's

unobservant, inattentive, ignorant, or awkward failure to discover or guard against a defect, as

opposed to assuming a known risk, is not a defense to a strict product liability claim. Id.

The affirmative defense of assumption of the risk requires the defendant to prove that the

plaintiff knew of the specific product defect, understood and appreciated the risk of injury from

that defect, and nevertheless used the product in disregard of the known danger. Williams v.

Brown Mfg. Co., 45 Ill.2d 418, 426-427 (1970) A user may assume a product is safe; however, if

the user finds a defect and proceeds to use the product, the user assumes the risk of injury or

property damage. The test of whether the plaintiff has assumed the risk is subjective; the conduct

and knowledge of the plaintiff is at issue. The jury considers the plaintiff's age, experience,

knowledge, understanding, and the obviousness of the defect in considering assumption of the

risk. Williams v. Brown Mfg. Co., supra at 430-431; see Hanlon v. Airco Indus. Gases , 219

Ill.App.3d 777, 579 N.E.2d 1136, 162 Ill.Dec. 322 (1st Dist. 1991); Calderon v. Echo, Inc., 244

Ill.App.3d 1085, 1091,614 N.E.2d 140 (1st Dist. 1993).

Comparative fault principles apply to the plain tiff's assumption of the risk. Coney v.

J.L.G. Indus., Inc., supra. If plaintiff's fault in assuming the risk is 50% or less of the total fault

that proximately caused the injury or damage, plaintiff's damages are reduced by that percentage.

But under legislation enacted in 1986, the plaintiff is barred from recovery if the plaintiff's

assumption of the risk is “more than 50% of the proximate cause of the injury or damage for

which recovery is sought.” 735 ILCS 5/2-1116; Gratzle v. Sears, Roebuck & Co., 245 Ill.App.3d

292, 613 N.E.2d 802, 184 Ill.Dec. 485 (2d Dist. 1993).

Misuse--Foreseeable and Unforeseeable

“Misuse” has been defined as the use of a product for a purpose neither intended nor

objectively foreseeable by a reasonably prudent manufacturer. E.g., King v. Am. Food Equip. Co.,

160 Ill.App.3d 898, 513 N.E.2d 958, 965, 112 Ill.Dec. 349, 356 (1st Dist. 1987). Coney v. J.L.G.

Industries, Inc., 97 Ill. 2d 104, 119 (1983), in a phrase that has provided confusion, stated:

“[h]owever, the defenses of misuse and assumption of the risk will no longer bar recovery.”

Prior to Coney , an unforeseeable misuse of the product by the plaintiff was not

recognized as an affirmative defense. The issue of unforeseeable misuse usually “arise[s] in

connection with [the] plaintiff's proof of an unreasonably dangerous condition or in proximate

causation, or both.” Williams v. Brown Mfg. Co., 45 Ill.2d 418, 425, 261 N.E.2d 305 (1970)

(“plaintiffs who ‘misuse’ a product --use it for a purpose neither intended nor ‘f oreseeable’

(objectively reasonable) by the defendant--may be barred from recovery”).

In Whetstine v. Gates Rubber Co., 895 F.2d 388, 393 (7th Cir. 1990), the Seventh Circuit

noted:

Under Illinois law, misuse of a product is not an affirmative defense; rather, absence of

misuse is part of plaintiff's proof of an unreasonably dangerous condition or of proximate

cause. Schwartz v. American Honda Motor Co., Inc., 710 F.2d 378, 381 (7th Cir. 1983),

citing Ill. State Trust Co. v. Walker Mfg. Co., 73 Ill.App.3d 585, 589, 29 Ill.Dec. 513,

516, 392 N.E.2d 70, 73 (1979).

In Coney v. J.L.G. Indus., Inc., supra, the Supreme Court, referring to its Williams

decision, said that “misuse” was a defense, and went on to hold that “misuse” would no longer

bar recovery but rather would be incorporated into the concept of comparative fault. Importantly,

the decision did not define “misuse,” but its reference to the Williams decision leads to the

conclusion that the court was referring to unforeseeable misuse.

In contrast to unforeseeable misuse, foreseeable misuse has never been a defense to a

strict product liability action at all, since such a misuse, being foreseeable, does not affect the

defendant's responsibility. The manufacturer of a product has always had the duty to furnish a

product which is safe for foreseeable misuses, as well as for its intended uses. Spurgeon v. Julius

Blum, Inc., 816 F. Supp. 1317 (C.D. Ill.1993).

Thus, the appellate court cases decided since Coney appear to conclude that the former

rule--that unforeseeable misuse goes to the liability issue --has been replaced by the rule that

unforeseeable misuse constitutes comparative fault, a damage -reducing factor. Several appellate

court decisions have noted that misuse --defined as using the product for a purpose which is

neither intended nor foreseeable --is an affirmative defense which operates to reduce the

plaintiff's damages. Arellano v. SGL Abrasives, 246 Ill.App.3d 1002, 1010, 617 N.E.2d 130, 136,

186 Ill.Dec. 891, 897 (1st Dist. 1993) (finding of “misuse” vacated); Varilek v. Mitchell Eng'g

Co., 200 Ill.App.3d 649, 666- 667, 558 N.E.2d 365, 377, 146 Ill.Dec. 402, 414 (1st Dist. 1990)

(JNOV should have been entered on finding of “misuse”); Suich v. H & B Printing Mach., Inc.,

185 Ill.App.3d 863, 873- 874, 541 N.E.2d 1206, 1212- 13, 133 Ill.Dec. 768, 774- 75 (1st Dist.

1989) (trial court properly refused to allow misuse as a defense); Wheeler v. Sunbelt Tool Co.,

Inc., 181 Ill.App.3d 1088, 537 N.E.2d 1332, 1343, 130 Ill.Dec. 863, 874 (4th Dist. 1989).

Wheeler held:

The issue of misuse traditionally arises in Illinois in conjunction with plaintiff's duty to

prove an unreasonably defective product or proximate causation of the injury. See

Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970). Prior to Coney,

misuse was a complete defense to a strict liability action ( Coney, 97 Ill.2d at 119, 73

Ill.Dec. at 343, 454 N.E.2d at 203- 04), although it was not technically considered an

affirmative defense. Illinois State Trust Co. v. Walker Mfg. Co., 73 Ill.App.3d 585, 29

Ill.Dec. 513, 392 N.E.2d 70 (1979). However, some courts recognized misuse as an

affirmative defense under certain circumstances. Genteman v. Saunders Archery Co., 42

Ill.App.3d 294, 355 N.E.2d 647 (1976).

Dicta in Lamkin v. Towner , 138 Ill.2d 510, 531, 563 N.E.2d 449, 458, 150 Ill.Dec. 562,

571 (1990) commented that “neither a retailer nor a manufacturer can be held strictly liable for

injuries resulting from the misuse of its product.”

Introduction revised December 2007.