risk-utility test in Illinois

2019Risk-Utility Test ¶ 41 The Gillespies argue that they proffered evidence of alternative designs that would have prevented injury and were feasible in terms of cost, practicality, and technological feasibility that demonstrates that East Manufacturing’s trailer was unreasonably dangerous due to a design defect. ¶ 42 Under the risk-utility test, we must determine whether, “on balance[,] the benefits of the challenged design outweigh the risk of danger inherent in such designs.” (Internal quotation marks omitted.) Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 92-93 (2005).

2012Co., 77 Ill. 2d 434, 439 (1979) (holding that in strict liability based on design-defect, the product should be looked at and not the conduct of the manufacturer); Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 95 (2005) (holding that “[i]n a negligence defective design case, the focus is on the conduct of the defendant, but in a strict liability defective design case, the focus is on the product”). -12- ¶ 57 Under a design-defect theory of strict products liability, to determine whether the product is unreasonably dangerous Illinois courts apply the consumer-expectation test as well

2024“Under the risk-utility test, a plaintiff may prevail in a strict liability design-defect case if he or she demonstrates that the magnitude of the danger outweighs the utility of the product, as designed. [Citation.] Stated differently, ‘[t]he utility of the design must therefore be weighed against the risk of harm created’ and ‘[i]f the likelihood and gravity of the harm outweigh the benefits and utilities of the product, the product is unreasonably dangerous.’ [Citation.]” Calles, 224 Ill. 2d at 259 . 2 ¶ 30 There are numerous factors the court and jury may consider when applying the risk- u

2024“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.” Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 250 (2007).

2010Under the risk-utility test, the court must determine whether "`"on balance[,] the benefits of the challenged design outweigh the risk of danger inherent in such designs."'" Blue, 215 Ill.2d at 92-93 , 293 Ill.Dec. 630 , 828 N.E.2d 1128 , quoting Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 433 , 261 Ill.Dec. 744 , 764 N.E.2d 35 (2002), quoting Lamkin, 138 Ill.2d at 529 , 150 Ill.Dec. 562 , 563 N.E.2d 449 . [2] Although the question ultimately is one for the finder of fact, the court weighs numerous factors in deciding, as a threshold matter, whether the case is appropriate to submit to

2010Under the risk-utility test, the court must determine whether "`"on balance[,] the benefits of the challenged design outweigh the risk of danger inherent in such designs."'" Blue, 215 Ill.2d at 92-93 , 293 Ill.Dec. 630 , 828 N.E.2d 1128 , quoting Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 433 , 261 Ill.Dec. 744 , 764 N.E.2d 35 (2002), quoting Lamkin, 138 Ill.2d at 529 , 150 Ill.Dec. 562 , 563 N.E.2d 449 . [2] Although the question ultimately is one for the finder of fact, the court weighs numerous factors in deciding, as a threshold matter, whether the case is appropriate to submit to

2012Accordingly, in Lamkin v. Towner, 138 Ill. 2d 510, 528 (1990), the Illinois Supreme Court adopted a second alternative test for design-defect cases known as the risk-utility test. ¶ 61 B.

2010Under the risk-utility test, the court must determine whether "`"on balance[,] the benefits of the challenged design outweigh the risk of danger inherent in such designs."'" Blue, 215 Ill.2d at 92-93 , 293 Ill.Dec. 630 , 828 N.E.2d 1128 , quoting Hansen v. Baxter Healthcare Corp., 198 Ill.2d 420, 433 , 261 Ill.Dec. 744 , 764 N.E.2d 35 (2002), quoting Lamkin, 138 Ill.2d at 529 , 150 Ill.Dec. 562 , 563 N.E.2d 449 . [2] Although the question ultimately is one for the finder of fact, the court weighs numerous factors in deciding, as a threshold matter, whether the case is appropriate to submit to

2007Although plaintiff, under the pleading, might also have sought to prove the design of the [product] unreasonably dangerous by showing its risks outweighed its benefits, he decided not to do so"); Miller, 352 Ill.App.3d at 671 , 287 Ill.Dec. 416 , 815 N.E.2d 1219 (summary judgment on the plaintiff's strict liability claim was improper when genuine issue of material fact existed under the risk-utility test or under the consumer expectations test).

2007Although plaintiff, under the pleading, might also have sought to prove the design of the [product] unreasonably dangerous by showing its risks outweighed its benefits, he decided not to do so"); Miller, 352 Ill.App.3d at 671 , 287 Ill.Dec. 416 , 815 N.E.2d 1219 (summary judgment on the plaintiff's strict liability claim was improper when genuine issue of material fact existed under the risk-utility test or under the consumer expectations test).

2008Our first step was to address the defendant’s reliance on Scoby for the proposition that there is a “simple product” exception to the risk-utility test that applies when the mechanism is so simple and the danger so obvious that it is proper to apply only the consumer-expectation test, citing Scoby, 211 Ill.

2008The defendant relied on Scoby v. Vulcan-Hart Corp., 211 Ill.App.3d 106 , 155 Ill.Dec. 536 , 569 N.E.2d 1147 (1991), in which the appellate court had rejected application of the risk-utility test to a claim that a deep-fat fryer used in a restaurant was defectively designed because it lacked a cover, stating: "Somewhere, a line must be drawn beyond which the danger-utility test cannot be applied.

2008Mele, 348 Ill.

2006Dec. 738 , 808 N.E.2d 1026 ), in cases in which the nature of the danger is obvious and the nature of the mechanism involved is simple, a plaintiff may not demonstrate that a design is defective under the risk-utility test ( Scoby v. Vulcan-Hart Corp., 211 Ill.App.3d 106, 112 , 155 Ill.Dec. 536 , 569 N.E.2d 1147 (1991)).

2008The appellate court also held, however, that an open and obvious risk is not an absolute bar to liability in an action for negligent design, citing Wortel v. Somerset Industries, Inc., 331 Ill.App.3d 895, 902-03 , 264 Ill.Dec. 515 , 770 N.E.2d 1211 (2002) (open and obvious danger does not necessarily bar recovery in a strict product liability case based on defective design; under the risk-utility test, the open and obvious nature of the risk posed by the product is merely a factor to be considered in the overall assessment of its risks and utility).

2008The appellate court also held, however, that an open and obvious risk is not an absolute bar to liability in an action for negligent design, citing Wortel v. Somerset Industries, Inc., 331 Ill.App.3d 895, 902-03 , 264 Ill.Dec. 515 , 770 N.E.2d 1211 (2002) (open and obvious danger does not necessarily bar recovery in a strict product liability case based on defective design; under the risk-utility test, the open and obvious nature of the risk posed by the product is merely a factor to be considered in the overall assessment of its risks and utility).

2019When a plaintiff’s claim is based on an alleged design defect, the “unreasonably dangerous” element can be proven under the risk-utility test or the consumer- expectation test (Mikolajczyk, 231 Ill. 2d at 526-27 ), the requirements of each which we define more particularly in our analysis going forward. ¶ 40 a.

2012The consumer-expectation test and the risk-utility test “are not theories of liability; they are methods of proof by which a plaintiff ‘may demonstrate’ that the element of unreasonable dangerousness is met.” (Emphases in original.) Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 548 (2008) (quoting Heastie v. Roberts, 226 Ill. 2d 515, 542 (2007)). ¶ 58 A. The Consumer-Expectation Test ¶ 59 Restatement section 402A sets forth the consumer-expectation test and provides that “a product is ‘unreasonably dangerous’ when it is ‘dangerous to an extent beyond that which would be contemplated by the o

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015See also Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 85 (discussing the "risk-utility" test). ¶ 96 Plaintiff has alleged both that the product failed to perform as an ordinary consumer would expect when used in the intended dosage and that the high risk of dangerous side effects outweighed the marginal effectiveness of the product as designed.

2015See also Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 85 (discussing the "risk-utility" test). ¶ 96 Plaintiff has alleged both that the product failed to perform as an ordinary consumer would expect when used in the intended dosage, and that the high risk of dangerous side effects outweighed the marginal effectiveness of the product as designed.

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015II), 751 F.3d 150, 157-58, 165 (3d Cir. 2014) (strict-liability claim against a generic 3 Although we provide only an "e.g." cite here, a more complete list of cases is provided infra in paragraph 82, with their approximate complaint-filing dates. 22 No. 1-13-3940 manufacturer, which was based on a risk-utility analysis of an alleged design defect, was preempted). ¶ 81 In contrast, a substantial minority of courts have allowed claims against generic manufacturers to proceed.

2015E.g., 3 Strayhorn, 737 F.3d at 407 ("despite the 'Catch-22' dilemma" faced by plaintiffs, "we affirm" the trial court's dismissal); In re Fosamax, 751 F.3d 150, 157-58, 165 (3d Cir. 2014) (strict- liability claim against a generic manufacturer, which was based on a risk-utility analysis of an alleged design defect, was preempted). ¶ 81 In contrast, a substantial minority of courts have allowed claims against generic manufacturers to proceed.

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2015Fullington v. Pfizer, Inc., 720 F.3d 739, 745-47 (8th Cir. 2013) (reversing the trial court's dismissal of plaintiff's breach of implied warranty claim and strict- liability design-defect claim against generic manufacturers and remanding for reconsideration); Huck v. Wyeth, Inc., 850 N.W.2d 353, 356 (Iowa 2014) (reversing summary judgment for generic manufacturer and remanding for further proceedings on defendant's failure to update its label with "a stronger warning approved by the FDA"); Hassett, 74 A.3d at 215, 217 (holding that federal drug law does "not pre-empt claims based upon the mark

2012The consumer-expectation test and the risk-utility test “are not theories of liability; they are methods of proof by which a plaintiff ‘may demonstrate’ that the element of unreasonable dangerousness is met.” (Emphases in original.) Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 548 (2008) (quoting Heastie v. Roberts, 226 Ill. 2d 515, 542 (2007)). ¶ 58 A. The Consumer-Expectation Test ¶ 59 Restatement section 402A sets forth the consumer-expectation test and provides that “a product is ‘unreasonably dangerous’ when it is ‘dangerous to an extent beyond that which would be contemplated by the o

2008See Heastie, 226 Ill. 2d at 543 (“[a]ll that is required to justify the giving of an instruction is that there be some evidence in the record to justify the theory of the instruction”).

2005Of course, a plaintiff can also prove his strict liability claim by presenting proof that the defendant deviated from the industry standard (Anderson, 74 Ill. 2d at 368 ), and in that case it would subsume the risk-utility standard.

2005Of course, a plaintiff can also prove his strict liability claim by presenting proof that the defendant deviated from the industry standard ( Anderson, 74 Ill.2d at 368 , 24 Ill.Dec. 549 , 385 N.E.2d 690 ), and in that case it would subsume the risk-utility standard.

2005The California Supreme Court is generally credited with creating the risk-utility test in Barker v. Lull Engineering Co., 20 Cal. 3d 413 , 573 P.2d 443 , 143 Cal. Rptr. 225 (1978), to address the restrictions of the consumer-contemplation test.

2005The California Supreme Court is generally credited with creating the risk-utility test in Barker v. Lull Engineering Co., 20 Cal. 3d 413 , 573 P.2d 443 , 143 Cal. Rptr. 225 (1978), to address the restrictions of the consumer-contemplation test.

2008This court cited Barker in Palmer v. Avco Distributing Corp., 82 Ill. 2d 211, 219-20 (1980), and then cited both Palmer and Barker in Lamkin ( 138 Ill. 2d at 529 ), but no decision of this court has expressly adopted this burden-shifting formulation of the risk-utility test.

2008This court cited Barker in Palmer v. Avco Distributing Corp., 82 Ill.2d 211, 219-20 , 45 Ill.Dec. 377 , 412 N.E.2d 959 (1980), and then cited both Palmer and Barker in Lamkin, 138 Ill.2d at 529 , 150 Ill.Dec. 562 , 563 N.E.2d 449 , but no decision of this court has expressly adopted this burden-shifting formulation of the risk-utility test.

2005Under the risk-utility test, the open and obvious nature of the risk is just one factor to be considered within this range of considerations and it will only serve to bar the liability of the manufacturer where it outweighs all other factors to be considered in weighing the inherent risks against the utility of the product as manufactured. 345 Ill.

2005Under the appellate court’s view of the risk-utility test, the burden then shifted to defendant to show that, on balance, the benefits of the challenged design outweighed the risk inherent in the design. 345 Ill.

2007See Miller v. Rinker Boat Co., 352 Ill.App.3d 648, 664 , 287 Ill.Dec. 416 , 815 N.E.2d 1219 (2004); Mele v. Howmedica, Inc., 348 Ill.App.3d 1, 19 , 283 Ill.Dec. 738 , 808 N.E.2d 1026 (2004); Bates v. Richland Sales Corp., 346 Ill.App.3d 223, 234 , 281 Ill.Dec. 356 , 803 N.E.2d 977 (2004); Wortel v. Somerset Industries, Inc., 331 Ill.App.3d 895, 908 , 264 Ill.Dec. 515 , 770 N.E.2d 1211 (2002); Besse v. Deere & Co., 237 Ill.

2007See Miller v. Rinker Boat Co., 352 Ill.App.3d 648, 664 , 287 Ill.Dec. 416 , 815 N.E.2d 1219 (2004); Mele v. Howmedica, Inc., 348 Ill.App.3d 1, 19 , 283 Ill.Dec. 738 , 808 N.E.2d 1026 (2004); Bates v. Richland Sales Corp., 346 Ill.App.3d 223, 234 , 281 Ill.Dec. 356 , 803 N.E.2d 977 (2004); Wortel v. Somerset Industries, Inc., 331 Ill.App.3d 895, 908 , 264 Ill.Dec. 515 , 770 N.E.2d 1211 (2002); Besse v. Deere & Co., 237 Ill.

2015E.g.,3 Strayhorn, 737 F.3d at 407 (“despite the ‘Catch-22’ dilemma” faced by plaintiffs, “we affirm” the trial court’s dismissal); In re Fosamax (Alendronate Sodium) Products Liability Litigation (No. II), 751 F.3d 150, 157-58, 165 (3d Cir. 2014) (strict-liability claim against a generic manufacturer, which was based on a risk-utility analysis of an alleged design defect, was preempted). ¶ 81 In contrast, a substantial minority of courts have allowed claims against generic manufacturers to proceed.

2015E.g., 3 Strayhorn, 737 F.3d at 407 ("despite the 'Catch-22' dilemma" faced by plaintiffs, "we affirm" the trial court's dismissal); In re Fosamax, 751 F.3d 150, 157-58, 165 (3d Cir. 2014) (strict- liability claim against a generic manufacturer, which was based on a risk-utility analysis of an alleged design defect, was preempted). ¶ 81 In contrast, a substantial minority of courts have allowed claims against generic manufacturers to proceed.

2012Adames, 378 Ill.

2009The appellate court did affirm the trial court’s finding that the Beretta was not unreasonably dangerous or defectively designed under both the consumer expectation test and the risk-utility test for product liability claims. 378 Ill.