Illinois Supreme Court Applies Risk-Utility Analysis in Negligent Design Case and Refuses to Expand A Manufacturer’s Postsale Duty to Warn in Reversal of $43 Million Jury Verdict in Exploding Gas Tank Accident Case
In a significant victory for product manufacturers, the Illinois Supreme Court reversed a $43 million jury verdict against defendant Ford Motor Company in a case involving a fatal accident in which the fuel tank of a 1993 Lincoln Town Car exploded. The court held that a defendant’s duty in a negligent design case is determined by application of the risk-utility test and that, as a matter of public policy, a manufacturer “is not required to guard against every conceivable risk, regardless of the degree of harm.” Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1157 (Ill. 2011). The court refused to expand postsale duties beyond those currently required by Illinois law and held that a manufacturer “is under no duty to issue postsale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.” See id. at 1160 (citing Modelski v. Navistar International Transportation Corp., 302 Ill.App.3d 879, 890, 236 Ill.Dec. 394, 707 N.E.2d 239 (1999)).
John and Dora Jablonski were stopped at a stop sign in their 1993 Lincoln Town Car in 2003 when another car struck the Jablonskis’ car at between 55 and 65 mph. As a result of the crash, a large pipe wrench in the trunk of the Town Car penetrated the trunk and punctured the back of the car’s fuel tank. The car burst into flames, causing John’s death and Dora’s severe burns. See Jablonski, 955 N.E.2d at 1142. Plaintiffs brought suit in the Circuit Court of Madison County against Ford Motor Company, alleging negligent design of the 1993 Town Car’s fuel tank and willful and wanton conduct, seeking punitive damages.
Plaintiffs abandoned their strict liability claims after the close of evidence. The case was presented to the jury on several theories of negligent design and willful and wanton conduct, including (1) failing to locate the vertical-behind-the-axle fuel tank either overthe-axle or forward-of-the-axle, (2) failing to shield the fuel tank to prevent punctures by contents in the trunk, and (3) failing to warn of the risk of trunk contents puncturing the fuel tank. The jury was also presented with a fourth theory that had not been pled, that Ford failed to inform the Jablonskis of certain remedial measures taken by Ford after the manufacture of the vehicle, but prior to the accident. Jablonski, 955 N.E.2d at 1142-43. The jury returned a general verdict awarding a total of $28 million in compensatory damages and $15 million in punitive damages. Jablonski, 955 N.W.2d at 1142. The appellate court affirmed.
In a 5-0 opinion by Justice Theis, the Supreme Court clarified the duty analysis in negligent product design cases and adopted the risk-utility analysis, an analysis typically used to determine whether a product is unreasonably dangerous in a strict liability claim. The court explained that “the key question in a negligent-design case is whether the manufacturer exercised reasonable care in designing the product.” Jablonski, 955 N.W.2d at 1154 (citing Calles v. Scripto-Tokai Corp, 224 Ill.2d 247, 270, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007)), and this exercise of reasonable care “encompasses a balancing of the risks inherent in the product design with the utility or benefit derived from the product.” See id. at 1154 (citing Restatement (Second) of Torts § 291, at 54 (1965)). Despite prior indication by the Court in Blue v. Environmental Engineering, Inc., 215 Ill.2d 78, 293 Ill. Dec. 630, 828 N.E.2d 1128 (2005) that the risk-utility test does not apply in negligent product design cases, the Jablonski court found otherwise. See Jablonski, 955 N.E.2d at 1154-55.
As a threshold matter in applying the risk-utility test to determine the duty in a negligent-product-design case, “the court must initially balance factors it finds relevant to determine if the case is a proper one to submit to the jury.” See Jablonski, 955 N.E.2d at 1155 (citing Calles, 224 Ill.2d at 266). “Once this threshold determination has been met, the issue is then for the fact finder to determine the weight to be given any particular factor . . ..” Id. The court set forth a non-exhaustive list of factors that may be relevant to the risk-utility analysis including evidence of (1) the availability and feasibility of alternate designs at the time of the product’s manufacture; (2) the design used not conforming to the design standards in the industry, design guidelines provided by an authoritative voluntary organization, or design criteria set by legislation or governmental regulation; (3) the utility of the product to the user and to the public as a whole; (4) the safety aspects of the product including the likelihood that it will cause injury; and (5) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. Id. at 1154 (citing Calles224 Ill.2d at 263-64).
Ford argued that it was entitled to judgment notwithstanding the verdict because its compliance with industry standards, alone, was dispositive of its duty in a negligent design claim. The court disagreed. The language in Blue upon which Ford relied was not binding. 955 N.E.2d at 1156 (citing Blue, 215 Ill.2d at 96). Evidence of industry standards is just one of the factors to be balanced in the risk-utility test. It is not dispositive.
After conducting its threshold review, the court found plaintiffs failed to present sufficient evidence that Ford breached the standard of care, reasonable conduct, for their first three negligent design theories. The court balanced several factors in its risk-utility analysis, including evidence of compliance with industry standards, availability and feasibility of alternate designs, and the relative risk of the design at issue. Id. at 1157-59. The court explained that plaintiffs were required to produce evidence that “the risk was foreseeable and that the risks inherent in the product design outweighed the benefits.” Id. at 1157. A manufacturer “is not required to guard against every conceivable risk, regardless of the degree of harm.” Id. Because the unrebutted evidence revealed that Ford complied with, and even exceeded, the industry standard set for fuel system integrity, the court required plaintiffs to present evidence that Ford’s conduct was otherwise unreasonable because the foreseeable risk posed by the vertical-behind-the-axle design of the Town Car’s fuel tank at the time of manufacture outweighed its utility. Id.
In seeking to establish Ford’s unreasonable conduct, plaintiffs presented evidence of alternative tank designs, but the court found that plaintiffs had failed to establish the designs were safer than the design Ford adopted. Plaintiffs must “show more than the technical possibility of an alternative design.” Id. at 1158. The court further indicated that “[i]t is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would also introduce into the product other dangers of equal or greater magnitude.” See id. at 1158 (quoting Restatement (Third) of Torts, Product Liability §2, cmt. f, at 23 (1998)).
Plaintiffs also presented Ford’s internal recommendations from the late 1960s to early 1970s, regarding an over-the-axle location of the fuel tank as evidence for the risks involved with an under-the-trunk location. The court found this research irrelevant and inapposite since it occurred more than a decade before the vertical-behind-the-axle tank was introduced in “Panther platform” vehicles, such as the Mercury Grand Marquis, Ford Crown Victoria, Ford Crown Victoria Police Interceptor and Lincoln Town Car, in 1979. The jury could not conclude Ford’s conduct was unreasonable based on remote research on a different fuel tank location. Id. at 1158.
Likewise, the court found numerous accident reports irrelevant to prove Ford was aware of the potential for trunk contents to puncture the fuel tanks in the 1993 Lincoln Town Cars. Despite evidence that 11 Crown Victoria Police Interceptors had had trunk contents puncture the tank in high-speed rear-end collisions from 1997 to 2003, plaintiffs’ expert was unaware of any accident, occurring prior to 1993, which involved any vehicle made by any manufacturer where any object in any trunk had ever punctured a fuel tank. Plaintiffs also introduced 416 incidents involving the puncture of a fuel tank in various Ford models over a number of years, but none of the accidents reported involved a “Panther platform” or any other car as of 1993. Id. at 1158; see also id. at 1146.
Plaintiffs introduced, and the court also found insufficient, evidence related to gas tank shielding as a way to minimize the hazard. The court stated that, “although not required to develop a specific prototype, it was incumbent upon plaintiffs to present evidence that there was a shield that was feasible to prevent trunk contents from puncturing the tank in the 1993 Lincoln Town Car.” Id. at 1158. In other words, the shield design had to be feasible to prevent the particular occurrence from occurring in the car at issue. The “mock up” shield provided by plaintiffs’ expert was insufficient, as it had not been design tested. The evidence also showed that the trunk shields and shield alternatives for other cars would not have prevented the ruptures that occurred in the Jablonski accident. See id. at 1158-59.
The court concluded that, after balancing the foreseeable risks and utility factors, plaintiffs failed to present sufficient evidence from which a jury could conclude that Ford’s conduct was unreasonable at the time of manufacture. Accordingly, the court determined that there was insufficient evidence to justify the submission of plaintiffs’ first three claims of negligence to the jury. Id. at 1159.
The court next examined plaintiffs’ fourth theory of negligence, which was based upon a postsale duty to warn. Under this theory, the jury had been instructed that it could find Ford negligent for its failure to “inform of the existence of the Trunk Pack and/or Trunk Pack recommendations,” which Ford developed for a different car a decade after the sale of the 1993 Town Car. Id. at 1159. First, the court noted that plaintiffs’ claim was contrary to Illinois law. Under Illinois precedent, “when 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.” Id. at 1159 (emphasis added). Further, a duty may be imposed upon a manufacturer by a statute or administrative regulation that mandates the recall of the product, under circumstances where the dangerous characteristic of the product is not discovered until after the product has left the manufacturer’s control. Id. at 1160 n. 1. A manufacturer, however, is under no common law duty “to issue postsale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.” Id. at 1160.
Plaintiffs argued that their postsale duty to warn theory was, in fact, premised upon a continuing duty to warn at the time the car was manufactured. The instructions submitted to the jury inappropriately reiterated section 10 of the Third Restatement of Torts, which has not been adopted by Illinois and which establishes a duty to warn of a product-related risk after the time of sale, whether or not the product is defective at the time of the original sale. See id. at 1160-61; and see Restatement (Third) of Torts: Products Liability § 10, cmt. a, at 192 (1998). The court held that the jury instructions imposed an inappropriate duty of care that failed to require the jury to find that Ford knew or should have known that the product was unreasonably dangerous at the time of the sale. Id. at 1161.1 The court found plaintiffs’ theory legally defective and improperly submitted to the jury, as it was premised upon a duty not recognized in Illinois at the time of trial. Id. at 1161.
The court also briefly addressed the voluntary undertaking doctrine, under which the intermediate appellate court found the postsale duty to warn cognizable. The instruction on the voluntary undertaking doctrine provided that a manufacturer who voluntarily undertakes to provide postsale warnings to some of its customers may be liable if it does not warn other customers. Id. at 1162 (citing Restatement (Second) of Torts. § 323 (1965)). The court found the instruction was not an accurate statement of the law; rather “[u]nder a voluntary undertaking theory of liability, the duty of care to be imposed upon a defendant is limited to the extent of the undertaking.” Id. at 1162-63 (quoting Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 32, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992)). In other words, the voluntary undertaking doctrine is to be narrowly construed. Although Ford developed and provided a “Trunk Pack” for “Panther platform” police vehicles due to fuel tank punctures, because Ford’s undertaking in developing these “Trunk Packs” was directed specifically at improved police safety related to use of the Crown Victoria Police Interceptor this measure did not create a duty owed to civilians. Therefore, the court determined that the trial court erred in instructing the jury on a postsale duty to warn theory based on voluntary undertaking. Id. at 1163.
The Jablonski decision places some limits on a manufacturer’s liability under Illinois product liability law. The Illinois Supreme Court refused to make manufacturers absolute insurers of the safe use of their products: “A manufacturer is not required to guard against every conceivable risk, regardless of the degree of harm.” 955 N.E.2d at 1157. Although the court was unwilling to find evidence of compliance with industry standards dispositive, it applied the risk-utility analysis quite rigorously in this negligent product design case. Similarly, the court both refused to expand a manufacturer’s postsale duty to warn to include defects first discovered after a product has left the control of the manufacturer, and sought to limit the duty of care, under a voluntary undertaking theory of liability, to the extent of the specific undertaking.
1 Further, the Court declined Plaintiffs’ invitation to adopt Section 10 of the Restatement (Third). The Court did not, however, foreclose the possibility that a postsale duty to warn could be recognized in the future in Illinois. Id. at 1161-62.