DALE GILLESPIE еt al., Appellees, v. ROBERT EDMIER et al. (East Manufacturing Corporation, Appellant)
Docket No. 125262
SUPREME COURT OF THE STATE OF ILLINOIS
December 3, 2020
2020 IL 125262
Chief Justice Anne M. Burke and Justice Theis concurred in the judgment and opinion.
Justice Karmeier specially concurred, joined by Justices Garman and Michael J. Burke.
Justice Neville took no part in the decision.
¶ 1 In this appeal, we address whether the circuit court of Cook County erroneously granted summary judgment under
BACKGROUND
¶ 2 Plaintiff Dale Gillespie worked as a truck driver for Barge Terminal. On February 14, 2012, he was working on a dump trailer manufactured and sold by defendant East Manufacturing and leased by Barge Terminal from defendant Trail Quest, Inc. The dump trailer was loaded with mulch for a delivery. Using the front cast iron side steps, Gillespie climbed on top of the dump trailer and lowered himself into the trailer to rake and level the mulch. After leveling the mulch, he turned to climb down the trailer using the front side steps. Gillespie crawled to the front of the trailer, positioned his right knee on the aluminum cap, placеd his left foot down on the first cast iron step, and attempted to place his right foot on the second step. At this point, his hands slid off the top of the trailer, and his left foot slipped, causing him to fall off the cast iron stairs. He landed on his feet and felt a sharp pain in his back. He immediately reported his injury to his supervisor before returning to work.
¶ 4 Dale and his wife Christine Gillespie filed suit against Robert Edmier, Thomas Edmier, and John Edmier (the owners and operators of Barge Terminal); Trail Quest; and East Manufacturing.1 The Gillespies alleged, inter alia, that East Manufacturing is strictly liable for, and acted negligently in, designing, manufacturing, and selling a defective and unreasonably dangerous product. The Gillespies further alleged that the product lacked adequate safety features, that East Manufacturing failed to warn consumers about foreseeable dangers from unsafe modifications, and that the product did not undergo product testing for safety.
¶ 5 In a deposition, the Gillespiеs’ expert, Gary Hutter, opined that the steps on
¶ 6 East Manufacturing moved for summary judgment. The circuit court granted the motion, ruling that OSHA does not apply to trailers and that industry standards are not mandatory. The court also found that East Manufacturing‘s trailer met the industry custom and practice because East Manufacturing built the trailer pursuant to the specifications of the purchaser and the purchaser had the trailer modified by a third party who added a tarp cover and cap. The court further found that the third-party modifications demonstrated that the trailer was not unreasonably dangerous when it left East Manufacturing‘s control.
¶ 7 The Gillespies appealed, challenging, inter alia, the trial court‘s grant of summary judgment on their strict liability claim against East Manufacturing.2 The appellate court reversed the grant of summary judgment in favor of East Manufacturing and remanded for further proceedings. 2019 IL App (1st) 172549. The appellate court reasoned that the deposition testimony of Hutter and others was sufficient to create a genuine issue of material fact as to whether the trailer was unreasonably dangerous.3 This court allowed East Manufacturing‘s petition for leave to appeal.
ANALYSIS
¶ 8 This matter comes for our review on the circuit court‘s grant of summary judgment in favor of defendant East Manufacturing. Summary judgment is approрriate if the pleadings, depositions, admissions, and affidavits on file establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
¶ 10 East Manufaсturing argues that the trial court properly granted summary judgment in its favor on the Gillespies’ strict liability claim. It is well established that, to recover in a strict product liability action, a plaintiff must plead and
“[a] product may be found to be unreasonably dаngerous based on proof of any one of three conditions: a physical defect in the product itself, a defect in the product‘s design, or a failure of the manufacturer to warn of the danger or to instruct on the proper use of the product.” Mikolajczyk, 231 Ill. 2d at 525.
¶ 11 A showing that the product is unreasonably dangerous in a strict liability claim, based on an alleged design defect, may be proved “by 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.” Anderson v. Hyster Co., 74 Ill. 2d 364, 368 (1979). A product may be found unreasonably dangerous based on a design defect when the plaintiff presents evidence of an alternative design that is “economical, practical and effective.” Kerns v. Engelke, 76 Ill. 2d 154, 162-63 (1979). Evidence of an alternative design introduсes the question of feasibility because a manufacturer‘s product cannot be faulted when safer alternatives are not feasible. Mikolajczyk, 231 Ill. 2d at 526. Plaintiffs may demonstrate that a product was defectively designed by presenting evidence that the product fails to satisfy the “consumer-expectation test” or the “risk-utility test.” Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 255 (2007). The determination of whether a product is defective and unreasonably dangerous is ordinarily a question of fact for the jury to consider. Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344 (1994).
¶ 12 On аppeal before this court, East Manufacturing submits that summary judgment was proper under the risk-utility test. Under the risk-utility test, the utility of the design must be weighed against the risk of harm created, and if the likelihood and gravity of the harm outweigh the benefits and utilities of the product, the product is unreasonably dangerous. Calles, 224 Ill. 2d at 259. Courts may consider numerous factors, including the availability and feasibility of alternate designs at the time of manufacture or whether the design conformed with design standards of the industry, design guidelines provided by an authoritative voluntary association, or design criteria set by legislation or government regulation. Calles, 224 Ill. 2d at 263-64. Other factors that may also be relevant include
“‘(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.‘” Calles, 224 Ill. 2d at 265-66 (quoting American Law of Products Liability 3d § 28:19, at 28-30 through 28-31 (1997)).
¶ 14 We agree with the Gillespies. Whether OSHA and the other protocols mentioned by Hutter during his deposition testimony are also admissible in evidence is not the touchstone for this appeal. Hutter used these sources solely to form his expert opinion. The sources were not admitted as substantive evidence. That is a separate issue that is not the subject of this appeal. Rather, the issue here is whether experts may rely on such data for the limited purpose of explaining the basis for the expert‘s opinion.
¶ 15 This court has already addressed that question. Specifically, this court approved the use of OSHA standards by expert witnesses in Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260 (2002). In Schultz, one of the issues addressed by this court was whether the trial court erred in allowing the plaintiff‘s expert to testify that various government regulations, such as OSHA, were evidence of the standard of care in an action brought under the federal Employers’ Liability Act (
¶ 16 In this case, Hutter‘s deposition testimony, that the spacing and width of the steps and the lack of side rails conflict with OSHA protoсol and other industry guidelines, was intended to support his expert opinion that East Manufacturing designed steps that were defective and unreasonably dangerous. Viewed in a light most favorable to the Gillespies, as the nonmovants, Hutter‘s deposition testimony was sufficient to create a genuine issue of material fact as to whether the dump trailer was unreasonably dangerous. Accordingly, we agree with the appellate court that the circuit cоurt erroneously granted summary judgment in favor of East Manufacturing.
¶ 17 East Manufacturing also argues that summary judgment on the strict liability count was proper under the consumer expectations test and under a failure to warn theory. We need not address the remaining arguments raised on appeal because we have already determined that the circuit court erroneously granted summary judgment in favor of East Manufacturing on the Gillespies’ strict liability claim. See Hertz Corp. v. City of Chicago, 2017 IL 119945, ¶ 31. We therefore affirm the judgment of the
CONCLUSION
¶ 19 For the foregoing reasons, we affirm the judgment of the appellate court that reversed the circuit court‘s order granting summary judgment in favor of defendant, East Manufacturing Corporation. We remand the cause to the circuit court of Cook County for further proceedings consistent with this opinion.
¶ 20 Appellate court judgment affirmed.
¶ 21 Circuit court judgment reversed.
¶ 22 Cause remanded.
¶ 23 JUSTICE KARMEIER, specially concurring:
¶ 24 While I find the lead opinion reaches the сorrect conclusion in this case, it misapprehends the legal analysis required here, leaving an incorrect impression that experts may always rely on regulations and standards as a basis for their opinions and must be allowed to testify to such evidence at trial to explain the basis for their opinion in every circumstance. Supra ¶ 15. As a result, the opinion could be misconstrued to impermissibly undermine the trial judge‘s role as a gatekeeper. Decker v. Libell, 193 Ill. 2d 250, 254 (2000) (trial judge has thе role of gatekeeper, barring testimony that is not sufficiently relevant or reliable to be admitted into evidence). I therefore write separately to clarify the relevant legal principles.
¶ 25 As a preliminary matter, I note that defendant argued in this court that plaintiffs forfeited the argument that the criteria set forth by OSHA, the American National Standards Institute (ANSI), the Federal Motor Carrier Safety Regulations (FMCSR), and the Truck Trailer Manufacturers Association (TTMA) wеre admissible to explain the basis for Hutter‘s expert opinion, because plaintiffs had argued in the lower courts that those standards, regulations, and practices were substantively admissible. The lead opinion does not acknowledge or address defendant‘s forfeiture argument. The lead opinion simply states that the issue before this court is whether an expert may rely upon such standards, regulations, and practices to explain the basis for the еxpert‘s opinion.
¶ 26 It well settled that this court may ignore forfeiture “in the interests of achieving a just result and maintaining a sound and uniform body of precedent.” Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 33. In addition, the appellate court arguably suggested that the standards and regulations at issue were admissible to support Hutter‘s expert opinion, in addition to being substantively admissible. See 2019 IL App (1st) 172549, ¶ 45. Nonetheless, I believe the lead opinion should have acknowledged the argument, as defendant is correct that plaintiffs’ argument in the lower courts and the decisions of the lower courts concerned the substantive admissibility of the OSHA regulations and the FMCSR, ANSI, and TTMA standards and practices. Plaintiffs have now essentially abandoned that argument in this court.
¶ 28 In Wilson v. Clark, this court adopted
¶ 29 Importantly, this court has explained that courts need not allow an expert tо testify to the basis of his opinion. City of Chicago v. Anthony, 136 Ill. 2d 169, 185 (1990) (trial judge need not allow the expert to recite inadmissible evidence to explain the basis of the opinion when, under
¶ 30 Under this standard, data and facts need to be reliable and probative of the particular facts in the case. Anthony, 136 Ill. 2d at 185-86; Decker, 193 Ill. 2d at 254; Ruffiner v. Material Service Corp., 116 Ill. 2d 53, 59-60 (1987); In re “Agent Orange” Product Liability Litigation, 611 F. Supp. at 1245 (“If the underlying data are so lacking in probative force and reliability that no reasonable expert could base an opinion on them, an opinion which rests entirely upon them must be excluded.“). As such, a court‘s determination should be mаde on a case-by-case basis. Anthony, 136 Ill. 2d at 185. Therefore, while regulations and standards are trustworthy information upon which an expert‘s opinion may be based, they are not always an appropriate basis for an expert‘s opinion. Compare Schultz, 201 Ill. 2d at 296-98 (OSHA standards were relevant to standard of care regarding retaining wall where expert explained standards indicate that change in elevation was hazardous and required a handrail, even though standards were admissible as evidence of standard of care, although the standards were not binding on defendant), with Ruffiner, 116 Ill. 2d at 58-59 (foundation to admit ANSI standards was insufficient where expert provided only common goal of safety to establish relevance of the standards).
¶ 31 The record shows that Hutter provided a factual basis for his opinion and did not rely solely on OSHA standards. His testimony included some conclusory statements and relied heavily on standards, but he provided the factual basis of the spacing and width of the stepladder on the dump trailer along with the absence of a handle and provided measurements that would have been reasonably safe. See Ruffiner, 116 Ill. 2d at 60 (“Although the plaintiff‘s expert relied heavily on the ANSI standards, which we have found to have been improperly admitted here, the basis for his opinion was directed at what he perceived to be the inadequate depth and width of the ladders, matters that could sustain a judgment fоr the plaintiff.“). Hutter referenced pictures of similar trailers in the industry, examples of safe ladders purchased by defendant, sales literature, and his extensive experience. He also relied upon standards other than OSHA, to which the trial court failed to make any findings other than stating that they were not mandatory. See Schultz, 201 Ill. 2d at 296-98 (OSHA standards were relevant to standard of care regarding retaining wall although the standards were not binding on defendant).
¶ 32 Based on this record, Hutter provided a sufficient basis for his opinion, which raised a genuine issue of material fact as to whether the steps were unreasonably dangerous. Thus, the trial court erred in granting summary judgment.
¶ 33 Although I do not determine whether any standard raised by Hutter is sufficiently reliable to form the basis for his expert opinion, these issues may arise again in the course of the proceedings below. Note, Hutter not only cited OSHA regulations and standards to support his opinion but provided аn explanation—other than safety—as to why the standards were relevant although not explicitly applicable to dump trailers. Moreover, the experts in this case also dispute whether OSHA is in fact applicable to the stepladder when this trailer is parked for loading and unloading. Accordingly, I reiterate that the determination of the admissibility of any standard to explain the basis of an expert‘s opinion and the reliability of the basis of an expert‘s opinion should be made on the facts of the case pursuant to the above principles and precedent of this court.
¶ 35 On the other hand, the failure to warn claim is a separate method of liability that warrants a separate analysis. Id. In their failure-to-warn claim, plaintiffs assert that defendant should have warned of the potential dangers when a user installs a tarp on its dump trailer. To impose strict liability for the failure to warn, the manufacturer must have known or should have known of the danger that caused the injury and failed to warn plaintiffs of that danger. Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 35 (1980).
¶ 36 Here, it is undisputed that defendant failed to provide any warning regarding the dump trailer. The record reflects that defendant‘s own employee testified that defendant sometimes installs tarp systems on its trailers and that defendant knew third parties installed a tarp system on its trailers. Based on this fact, Hutter opined that defendant should have warned consumers to also install a handle for safety when a user installed a tarp system. Accordingly, plaintiffs raised a genuine issue of whether the defendant should have provided a warning, and summary judgment was improper.
¶ 37 For these reasons, I specially concur.
¶ 38 JUSTICES GARMAN and MICHAEL J. BURKE join in this special concurrence.
¶ 39 JUSTICE NEVILLE took no part in the consideration or decision of this case.