Mikolajczyk v. Ford Motor Co., 369 Ill. App. 3d 78 (2006). This court denied defendants' petition for leave to appeal, but remanded the matter to the appellate court with instructions to reconsider in light of Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007). On remand, the appellate court again affirmed in part and reversed in part, finding the damages awarded for loss of society to be excessive and remanding to the circuit court for a hearing on the proper amount of remittitur.
The supreme court has written extensively, particularly in the past five years, on the proper legal framework under which to analyze products liability cases. See, e.g., Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516 (2008); Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007); Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78 (2005). Although the parties cite Blue and Calles for general tort principles, neither they nor the circuit court recognized that the substance of those cases controls here.
“Under the consumer expectation test, a plaintiff succeeds by proving that ‘the product failed to perform as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.’ ” Duffy v. Togher, 382 Ill.App.3d 1, 14, 320 Ill.Dec. 391, 887 N.E.2d 535 (2008) (quoting Calles v. Scripto–Tokai Corp., 224 Ill.2d 247, 256, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007)). “Under the risk utility test, a plaintiff succeeds by proving that ‘the magnitude of the danger outweighs the utility of the product, as designed.’ ”
"Under the consumer expectation test, a plaintiff succeeds by proving that 'the product failed to perform as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.' " Duffy v. Togher, 382 Ill. App. 3d 1, 14 (2008) (quoting Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 256 (2007)). "Under the risk utility test, a plaintiff succeeds by proving that 'the magnitude of the danger outweighs the utility of the product, as designed.' "
Jackson, 185 Ill. 2d at 423-24; Osborne v. Claydon, 266 Ill. App. 3d 434, 435 (1994). As a result, summary judgment is not appropriate: (1) if "there is a dispute as to a material fact" ( Jackson, 185 Ill. 2d at 424); (2) if "reasonable persons could draw divergent inferences from undisputed material facts" ( Jackson, 185 Ill. 2d at 424); or (3) if "reasonable persons could differ on the weight to be given the relevant factors" of a legal standard ( Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 269 (2007)). A trial court's grant of summary judgment is subject to de novo review.
¶ 89 For a plaintiff to state a cause of action for negligence in Illinois, the complaint must allege facts sufficient to establish three elements: (1) the existence of a duty of care owed to the plaintiff by the defendant; (2) a breach of that duty, and (3) an injury proximately caused by that breach. Calles v. Scripto–Tokai Corp., 224 Ill.2d 247, 270, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007) ; Lewis, 2014 IL App (1st) 123303, ¶ 8, 384 Ill.Dec. 646, 17 N.E.3d 219 (citing Marshall v. Burger King Corp., 222 Ill.2d 422, 430, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006) ). ¶ 90 The key distinction between a negligence claim and a strict liability claim, which we discuss later, lies in the concept of fault.
Id. To prove a product is defectively designed under a negligence theory, the same common law framework applies as outside the products liability context. Calles v. Scripto–Tokai Corp. , 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 270 (2007). Thus, a plaintiff must prove that (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the breach proximately caused the plaintiff's injury; and (4) the plaintiff suffered damages.
A product liability action asserting a claim based on negligence, such as negligent design, is based upon fundamental concepts of common law negligence. Calles v. Scripto–Tokai Corp., 224 Ill.2d 247, 270, 309 Ill.Dec. 383, 864 N.E.2d 249 (2007). As in any negligence action, a plaintiff must establish the existence of a duty, a breach of that duty, an injury that was
To establish a product liability action asserting a claim based upon negligent product design, the plaintiff must establish, as in other negligence cases, "the existence of a duty of care owed by the defendant, a breach of that duty, an injury that was proximately caused by that breach, and damages." Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 270, 864 N.E.2d 249, 263 (2007). "The key distinction between a negligence claim and a strict liability claim lies in the concept of fault."
The last opinion to which Defendants object, that the public does not appreciate the dangers of cotton-polyester blend clothing, is also relevant to this case because the Court, for purposes of Plaintiff's strict liability claims, must analyze whether the Jacket and Sleepwear are unreasonably dangerous because they "failed to perform as an ordinary consumer would expect." Calles v. Scripto–Tokai Corp. , 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 256 (2007). All of these opinions will also assist a trier of fact in understanding safety standards affecting the clothing industry, as well as the scientific basis for any industry standards or clothing designs that are aimed to protect against flammability.