Susan Calles v. Scripto-Tokai Corp. et al.
Supreme Court of Illinois
Susan Calles left three of her daughters-Amanda, age 11, and twins Jenna and Jillian, age 3-home while she ran an errand with her fourth daughter, Victoria, age 5. While she was out, Jenna started a fire with an Aim N Flame utility lighter Calles had recently purchased. Jillian suffered smoke inhalation and died less than a month later. Calles filed suit against Tokai, the designer and manufacturer of the Aim N Flame, and Scripto-Tokai, the distributor (collectively Scripto), on grounds of strict liability alleging, that the Aim N Flame was defectively designed and unreasonably dangerous because it lacked a child-resistant safety device. Scripto filed a motion for summary judgment, which was granted by the trial court. Calles appealed and the motion for summary judgment was reversed by the appellate court. Scripto appealed to the Illinois Supreme Court.
Justice Burke
In Illinois, two tests are employed when determining whether a product is unreasonably dangerous under a strict liability design-defect theory-the consumerexpectation test and the risk-utility test. . . . [S]trict liability is imposed upon a seller of "any product in a defective condition unreasonably dangerous to the user or consumer or to his property."
Under the consumer-expectation test, a plaintiff must establish what an ordinary consumer purchasing the product would expect about the product and its safety. This is an objective standard based on the average, normal, or ordinary expectations of the reasonable person; it is not dependent upon the subjective expectation of a particular consumer or user
Over time, the applicability of the consumer-expectation test to design-defect cases was questioned, primarily because it became apparent that consumers might not be aware of what to expect regarding the safety of certain products. Accordingly, this court in Lamkin v. Towner, adopted a second, alternative test for design defect cases known as the risk-utility, or risk-benefit, test.
In Lamkin, this court held that a plaintiff may demonstrate a product has been defectively designed "in one of two ways." One way a plaintiff may demonstrate a design defect is to present evidence that the product fails to satisfy the consumer-expectation test. Alternatively, a plaintiff may demonstrate a design defect by presenting evidence that the risk of danger inherent in the challenged design outweighs the benefits of such design.
Consumer-Expectation Test
As noted above, under the consumer-expectation test, a plaintiff may prevail if he or she demonstrates that the product failed to perform as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. The purpose of a lighter, such as the Aim N Flame, is to produce a flame. Clearly then, the ordinary consumer would expect that, when the trigger is pulled, a flame would be produced. Here, the Aim N Flame was not used in its intended manner, i.e., by an adult. Thus, the question is whether it was used in a reasonably foreseeable manner. We find that it was.
An ordinary consumer would expect that a child could obtain possession of the Aim N Flame and attempt to use it. Thus, a child is a reasonably foreseeable user. Likewise, an ordinary consumer would appreciate the consequences that would naturally flow when a child obtains possession of a lighter. Specifically, an ordinary consumer would expect that the Aim N Flame, in the hands of a child, could cause the result that occurred here-the starting of a fire that led to injury to a child.
Under the facts of this case, the Aim N Flame performed as an ordinary consumer would expect-it produced a flame when used in a reasonably foreseeable manner, i.e., by a child. This leads to the inescapable conclusion that the ordinary consumer's expectations were fulfilled. In other words, the Aim N Flame did not fail to perform as an ordinary consumer would expect when used in a reasonably foreseeable manner. Thus, as a matter of law, no fact finder could conclude that the Aim N Flame was unreasonably dangerous under the consumerexpectation test. Therefore, Calles cannot prevail under this theory
This does not end our analysis, however. Though the Aim N Flame satisfies the consumer-expectation test, it may, nonetheless, be deemed unreasonably dangerous under the risk-utility test.
Risk-Utility Test
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.
Under the risk-utility test, a court may take into consideration numerous factors. In past decisions, this court has held that a plaintiff may prove a design defect by presenting evidence of "the availability and feasibility of alternate designs at the time of its manufacture, or that the design used did not conform with the design standards of the industry, design guidelines provided by an authoritative voluntary association, or design criteria set by legislation or governmental regulation."
John W. Wade, dean and professor of law, emeritus, Vanderbilt University School of Law, has also identified several factors relevant when engaging in risk-utility analysis. These factors include:
1. "The usefulness and desirability of the product-its utility to the user and to the public as a whole.
2. The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury.
3. The availability of a substitute product which would meet the same need and not be as unsafe.
4. 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.
5. The user's ability to avoid danger by the exercise of care in the use of the product.
6. The user's anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance."
Wade's factors have been adopted and relied upon by numerous jurisdictions, including our own appellate court.
Lastly, we find that when assessing the utility of a product, the following factors may also be relevant: "(1) the appearance and aesthetic attractiveness of the product; (2) its utility for multiple uses; (3) the convenience and extent of its use, especially in light of the period of time it could be used without harm resulting from the product; and (4) the collateral safety of a feature other than the one that harmed the plaintiff."
Although we have listed a number of factors which courts may consider when assessing risk-utility, we do not mean to imply that the list is exclusive. The factors cited merely illustrate those that may assist a court and jury in evaluating whether a design is unreasonably dangerous. A plaintiff need not present proof on each of the factors. In the first instance, the court must balance factors it finds relevant to determine if the case is a proper one to submit to the jury. Once this threshold determination has been met, it is up to the fact finder to determine the importance of any particular factor, and its "relevance, and the relevance of other factors, will vary from case to case."
After reviewing the evidence presented, we find the only factor which favors Calles and a finding of unreasonably dangerous is the second Wade factor-safety aspects. Calles presented specific and detailed evidence as to the likelihood of injury and the seriousness of injury from lighters which do not have child-safety devices. Factors which would favor Scripto and a finding that the product is not unreasonably dangerous are the first and sixth Wade factors-the utility of the Aim N Flame and the user's awareness of the dangers. As to the utility of the Aim N Flame, it is both useful and desirable to society as a whole-it serves as an inexpensive alternative source of fire.
Moreover, compared to other sources of fire, such as matches, it is more convenient and longer lasting since it is a multiuse product. The lighter may also be safer since it will extinguish if dropped on the floor while lit, unlike a match. With respect to the user's awareness of the dangers, there is no question, based on Calles' deposition testimony, that it was obvious to her that the lighter could come into the hands of a child and the dangers and risks that situation would pose.
Based on a review of the foregoing factors, reasonable persons could differ on the weight to be given the relevant factors, particularly where additional proofs are necessary, and thus could differ on whether the risks of the Aim N Flame outweigh its utility. Therefore, reasonable persons could differ as to whether the Aim N Flame is unreasonably dangerous, and we cannot say that Scripto was entitled to judgment as a matter of law. As such, we affirm the appellate court's decision reversing the trial court's decision granting summary judgment in favor of Scripto on the strict liability claims.
Appellate court judgment affirmed in favor of Calles.
CRITICAL THINKING ABOUT THE LAW
Case 13-4 provides another illustration of the importance of criteria selection in determining the outcome of a case. When Sperry-New Holland appealed the case, it did not focus on the facts or on the court's conclusion. Instead, the appeal focused on the test used by the court to decide the case. The defendant's appeal presumed that if the consumerexpectations test had been used instead of the risk-utility analysis, the decision likely would have been different.
The questions that follow will help you to think more critically about the court's decision to use risk-utility analysis in Case 13-4.
1. To demonstrate your awareness of the guiding power of ethical norms, identify the primary ethical norm that would lead to the use of risk-utility analysis.
Clue: To answer this question, you may want to reread the court's discussion of each test.
2. In Case 13-4, the court selects risk-utility analysis as the test to apply in making its decision. What are its reasons for making this selection?
Clue: You know the court's holding. Every group of sentences that answers the question, "Why is that the holding?" provides a reason.