*1 MILLER, Independent ANGELA L. Indiv. and as Ex’x of the Estate of Darrin Miller, Deceased, Plaintiffs-Appellants, COMPANY, R. INC., v. RINKER BOAT

Defendant-Appellee. Fourth District No. 4 — 03—0541 Opinion September filed *3 Robertson, (argued), Schmiedeskamp, Brett K. & Mitch- Gorman of Neu ell, Quincy, of appellant. for Allen, Peoria, (argued), Heyl, Royster, Voelker &

Karen L. Kendall Booker, Heyl, Royster, P Voelker and Frederick Velde and Matthew R. both Allen, appellee. Springfield, & both of for opinion

JUSTICE MYERSCOUGH delivered the the court: (hereinafter July 2000, Angela plaintiff), In Miller plaintiffs, L. her individually a and as executrix of deceased complaint filed Inc., Company, defendant, Rinker Boat against husband’s estate husband, Darrin of her death alleging wrongful corporation, Indiana In October (decedent), negligence. and liability strict based on R. Miller January summary judgment. a for 2002, defendant filed motion motion, granted court the trial hearing on the after (1) arguing granting in appeals, Plaintiff judgment for defendant. count, the court strict-liability defendant on summary judgment to sufficiently demonstrated concluding plaintiff has not erred unreasonably the boat design that made the existence of defect (2) duty to finding owed no dangerous; erred in defendant court alternative, warning as or, provided adequate warn, defendant (3) judgment to law; granting summary matter of and plaintiff failed count, concluding negligence the court erred duty by defendant breaches of present any support evidence breaches, any, caused proximately if prove and failed to defendant’s decedent’s death. We reverse and remand.

I. BACKGROUND A. Background Procedural July 24, plaintiff wrongful-death complaint against filed a On strict-liability theory negligence and also a defendant based on theory. Specifically, question claimed that the boat in had plaintiff following defects:

(1) by pas- had in locations utilized slippery The boat surfaces sengers ingress egress passenger compartment; for and from the (2) along boat had no rear in a antiskid surface location passengers ingress egress had and to and to stand on cross area; passenger from the markings, warnings, the boat or instructions to contained standing

discourage prevent slippery from on the passengers surfaces described above. for summary judgment,

On October defendant moved arguing as follows: count, strict-liability Under

(a) sufficiently plaintiff prove that defendant did unreasonably manufactured a boat that was defective dangerous,

(b) duty defendant had no to warn because obvious, and, in complains open that is about *4 event, adequate warning provided manual; instructional

(2) count, negligence under the

(a) plaintiff failed to that defendant breached demonstrate duty decedent, its of care to

(b) warn, duty provided defendant owed no or defendant adequate warning in the instruction manual.

Defendant attached to its memorandum of in support law of its motion summary judgment for a photocopied picture of the Rinker 232 Captiva Cuddy boat and the Rinker owner’s for Cuddy manual Cabin boats.

On 21, 2002, plaintiff response November filed a to defendant’s motion judgment for and a opposing memorandum law summary judgment. Plaintiff her attached to memorandum of law the (1) (2) (3) following: plaintiffs deposition, Randy deposition, Rinker’s (4) Angela deposition, Walker’s Robert “Whitey” deposition, Walker’s (5) (6) (7) deposition, Todd Miller’s James deposition, Lloyd Allen’s (8) (9) Standridge’s deposition, Dr. deposition, Travis Hindman’s Dr. (10) (11) Christopher Long’s deposition, deposition, Kim Slocum’s (12) Robert deposition, Dumford’s Hyde’s Christian Von Der deposi- (13) (U.S. Paint) tion, U.S. Paint Company’s mixing instructions mixture, sand-and-paint manual, Rinker owner’s Tom deposition. Richardson’s Plaintiffs opposition memorandum law in to the motion for summary judgment and the attachments set thereto following forth the evidence.

1. The Incident drowning This suit arose from a incident that occurred on August 30, 1998, on the Mississippi July River. On decedent purchased a Captiva Cuddy 1998 Model 232 motorboat from the Great (Great Lakes) Hamilton, Lakes Company Boat Illinois. Defendant boat, manufactured the and Great Lakes an authorized dealer for defendant. family Decedent’s members testified that this is the first Decedent, boat that personally however, decedent owned. raised was family around the his boats that owned and familiar boating on the Mississippi River. August 30, 1998,

On owning weeks, after for over boat six (Kent decedent took Sawyer, three friends who died thereafter, shortly Walker, Angela Whitey) Mississippi out on the go River to to an annual Hog’s boat festival on Back Island. Plaintiff they stated that left a public ramp at about a.m. from in War- Illinois, saw, away which is about miles from her home in Hamil- ton, just Whitey Hog’s Illinois. stated that Back Island is north of Quincy, Illinois, away and is about 30 miles from Warsaw. When the island, group already They arrived at the the shore full of boats. stayed anchored behind other out in the water and there for boats about three four hours. Whitey brought

Plaintiff and testified that the with them group part Royal. cooler of beer and soft drinks and of a bottle of Crown *5 a half a case or a case and contained about They the cooler estimated one- Royal was about the bottle of Crown Whitey also stated of beer. Walker, who was except Angela drank beer quarter Everyone full. testified that Angela Whitey and the time. Walker pregnant at each drank about same decedent, plaintiff, Kent, Whitey and Royal they until did drink the Crown group The not amount beer. decedent, Kent, he and way Whitey stated that were on their home. Royals] a and finished piece [sic]” “probably [Crown had about two “over the Whitey further estimated that was left the bottle. what to nine” seven day” he drank “somewhere between course No one the same amount.” drinks, “probably and decedent drank exactly however, left in the cooler and certain, many how beers were drank. how much and what decedent Hog’s to Back Island. 4:30 decided leave p.m., group

At about tubing. for tub- way home, go prepare On decedent wanted to To tube, rope, neces- ing, pump, and Kent removed the and other decedent Whitey and Walker sary storage Angela items from the boat’s area. tube, decedent that, blowing up stepped testified while Kent was (transom) from the rear bench seat with engine-cover onto the area ropes hand, tube to the back of the boat. preparing his to tie the decedent, Whitey standing, facing stated he was when decedent was Whitey turning away from stepping up to the rear deck. As (from boat) port get decedent side of the to into the stern side to seat, “in the “squeak” the driver’s he heard and saw decedent’s feet Whitey my eye [port side] corner of to direction.” admit- up slide this only “caught he one foot in the [decedent’s] ted that motion of hard Whitey air” and he did not see fall. then heard one decedent immediately he on the bench seat and looked “thump,” up stood initially okay. Whitey to if he at the water see decedent was stated time, “goofing off,” but at the same he was thought might decedent be thump also hard the was on “a little concerned” because “how back of boat.” not fall

Angela stated that she also did see decedent Walker Angela she Kent blow the tube. Walker stated watching up not Angela Walker did “thump” “splash.” she heard sound, immediately see up” “stood know source of but she on,” body “already under the going “what was and she saw decedent’s *** up lying was “face Angela water.” Walker recalled that decedent boat,” “just he down” parallel and then went with stern of did body Angela under the Walker stated that when decedent’s water. resurface, for decedent to “come back” everyone yelling not started Whitey recalled “quit messing Angela with us.” Walker seconds,” into water to jumped Kent less than five “probably Whitey look for jumped help decedent. then into the water to Kent. after, Soon plaintiff jumped Angela also in. described Walker “hysterical,” as crying help floating while in the Angela water. jumped jacket Walker into the water soon after “to get life [plaintiff] cause knew [plaintiffs] already [sic] [she] state was going quick.” start real deteriorating

Plaintiff testified that she witnessed the entire and fall. slip She sitting stated she was seat, and, the chair next to the as driver’s decedent was preparing rope boat, tie the to the back of the she swivelled around to watch decedent. Plaintiff stated that she watched her go husband because she wanted to home and happy was not his to go decision tubing. step Plaintiff saw decedent from the floor of foot, the boat onto the rear bench with his right then onto transom with his left foot. Plaintiff did recall whether decedent had *6 anything in his stepped transom, hands. After decedent on the he took right another step with his foot into the rear starboard stern corner. time, plaintiff At that right “just saw decedent’s right foot come out “just from underneath of legs him” and his went up the air.” Plaintiff stated that she remembered decedent’s back “went down” from the side and head snapped.” decedent’s was “like Plaintiff heard “a big[,] hit,” loud thud” and [decedent] “felt it when and then decedent sight. was out her Plaintiff “jumped up stated that she immediately” yelled, said, “Oh, and hit his initially “he head.” Kent us,” probably just messing everyone he with but looked over the water, they and did see anything. again not Plaintiff told Kent head, decedent hit his and Kent “dove in” to for right search decedent. seconds, plaintiff passengers Within and the other jumped also into the water to search for they decedent. Plaintiff testified that could not eventually Whitey pulled find decedent and Kent and plaintiff out of the water. towboat,

Lloyd Standridge, of a captain witnessed the accident as it happened. Standridge August 30, testified that on he and his Mississippi towboat were northbound on the Standridge River. stated pretty pleasure that the weather was on that day and boats were all Standridge the p.m., over river. Sometime between 6 and 7 noticed pleasure yards away guys boat about 200 girls” with “two and two on down, out, Standridge got board. slowed his boat his and binoculars on by girls.” Standridge “eased them” to “check out the the stated that pleasure passed side, on his towboat the starboard then turned and and stopped, drifting” yards away. was “more or less at about 30

Standridge watching girls, stated that as he was the he noticed facing people talking up three each other while male “stood and stepped platform.” Standridge on the that as the male down testified ladder, platform the to the boat’s up” step left to from “raised his foot Standridge saw the from under him.” just “his other foot went out water, the back ladder, already in the male which was hit straight and went splash did not make his neck or head. The male hard,” “the himself, “God, he hit but thought to Standridge down. any attention” paying on the boat “weren’t people” other three that at the Standridge believed “kept talking.” on happened what jacket accident, did have a life on and was time of the male not jackets. life addition, passengers on board wore barefoot. In none of water, got up Standridge did come from the When male not pointing hollering at the the boat and people worried and started on that, Standridge initially, people toward the stated on water. thought [have] him I was pleasure boat could hear and “must have realized the crazy.” passengers But then the must situation eyes big” they walking “started around got serious because “their Standridge his towboat to make sure looking stopped [and] around.” He spot he mark the male fell in. then called could where notify all and to Search and Rescue. stop towing Coast traffic Guard that, talking he the Coast Guard about Standridge stated as was boat were “all over the happened, people pleasure what had going looking [the male].” place crazy get one

Standridge requested that the Guard him stated Coast to come to his towboat so that the Coast Guard passengers get person could information that had fallen into water. about boat, Standridge pleasure they brought sent crew to the two his (Kent) male noticed that passenger Standridge back to the towboat. passenger “completely “emotionally distraught” from the Standridge pas- stated that he smelled alcohol confused.” Stan- senger’s passenger “staggering breath was not drunk.” but *7 effort until it was dark. dridge stayed the scene to assist the search water, of she sat on the got that after she out Plaintiff testified boat, gone.” decedent “was Plaintiff crying screaming, knowing parents and brothers about Whitey then to inform decedent’s asked afternoon, Water Patrol and the drowning. Later that the Missouri the scene to search for arrived at Department Illinois Conservation find one was able to the incident. No investigate decedent shore, later, and a body up washed days decedent. Two decedent’s the coroner pursuant request to the report prepared coroner’s Adams County. Autopsy 2. Decedent’s Hindman, to the results testified pathologist, Dr. Travis a forensic Hindman of decedent’s Dr. that the cause autopsy. of decedent’s stated death was Dr. “drowning.” Hindman found a laceration on the left side decedent’s but no of significant face evidence trauma. Dr. Hind- man stated he could not determine the cause of the laceration. Dr. Hindman also testified that at time of the autopsy, decedent’s blood-alcohol level .185. Dr. Hindman stated that because of the decomposition, humor,” he transpar- was not able to obtain “vitreous jelly eyeball posterior lens, ent that fills the from decedent’s result, body. As a compare he was not able to decedent’s vitreous- alcohol level decedent’s blood-alcohol level. Dr. Hindman therefore stated that he could not determine decedent’s blood-alcohol im- level mediately before his death because “there unpredictable is an rate of production by organisms acting upon body the decedent’s tissues and fluids” that would increase decedent’s blood-alcohol level. Dr. Hind- man individuals, further stated that in postmortem decomposi- some tion could up contribute to 0.2 of the blood alcohol.

Dr. Christopher Long, a toxicologist forensic and one of plaintiffs witnesses, expert also testified to the cause of the decedent’s blood- Long alcohol Dr. agreed level. with Dr. Hindman that the .185 postmortem blood-alcohol level is indicative of amount of alcohol decedent prior addition, consumed to the time of his death. In based on description decomposition autopsy, of decedent’s in the quite “it [.185] reasonable that are generated strictly [sic] alcohols decomposition.” from Manufacturing Process Defendant’s Slocum, general

Kim manager, Dumford, defendant’s and Robert plant manager, defendant’s testified that defendant manufactured question boat in plant. October 1997 at its Indiana Dumford stated that defendant intended its boats to be used on the waterways for tub- ing skiing. Slocum and Dumford stated that defendant uses a two- step process First, in manufacturing develop- boats. the research and department ment creates a full-scale prototype of a boat from a drawing like; second, of what the boat should look defendant casts a fiberglass mold of prototype and makes all the boats from that mold. in producing Dumford testified that defendant prototype, sprays a slip-resistant sand-and-paint platform. mixture onto the swim paint prototype The nonskid on the then in the creates texture fiberglass poured into the mold all boats manufactured from The platform prototype mold. swim and the foredeck of the are the only painted paint that are surfaces the nonskid mixture. sand-and-paint

U.S. Paint manufactured the nonskid mixture that in manufacturing question. used the boat in Christian Von Hyde, Paint, president Der and chief officer U.S. testified executive *8 (1) by applied ways: in two mixture can be sand-and-paint that the (2) by boat or it on the mixing paint spraying the into the and sand also Hyde the Der already on boat. Von adding tacky paint the sand to recom- method, spray application, U.S. Paint that the first stated for of every gallon mix four ounces of sand with mends its customers paint. mixing for any of standard that he is not aware

Dumford testified boat creates paints who the paint. employee the The the sand and paper, of paint, of and mixture onto sheet places mixture sand the that Dumford plant manager approval. the for stated and shows it to approves sand-and-paint the plant manager, as the he examines and by at how by feeling paper looking the and mixture texture the test ap- grains square-inch in a area. Once Dumford many of sand are it, adequate platform mixture deemed for the swim proves the the prototype further that after prototype. the Dumford stated the employees would around on completed, he other walk of the slip of the resistance prototype adequacy barefoot test (1) however, admitted, he platform and foredeck. Dumford that swim condition, dry tests the resistance under a prototype’s slip any defendant does not conduct coefficient-of-friction test surface, and defendant does not add additional nonskid prototype surfacing after a boat is removed from the mold. began manufacturing a walk-

Dumford testified that defendant through after back ingress egress transom 1989 to make from the however, the boat A have to on the passenger, step easier. would question. transom to the boat in Dumford platform reach swim also stated does nonskid materials to that defendant not add prototype transom area of the or the mold. manufacturing

Slocum and Dumford stated that at end of every inspection an process, employees inspect per defendant’s boat in a large by placing checklist. Defendant tests boats them also its tank 18 and water in one the factories. For boat that is between feet, question, only sprays is the which size boat occasion, On water on the boat check leaks. defendant’s nearby boat in the lakes and test employees take random out when deposition it his using themselves. Slocum stated water, employees the boat is taken out in the walk around In ad- boat, front, back, upholstery including the entire barefoot. step dition, they upholstered in the area and climb across seats jump off the boat into the water. platform, they onto swim where involves deposition testing Dumford stated in his lake checking electrical, mechanical, Dumford “engine, that’s it.” have been tested in further stated decedent’s boat would never November, lake it came off line production and the lake was frozen.

4. The Instruction Manual provides Defendant owners’ instruction manuals with its boats. Plaintiff testified decedent received instruction manual with the *9 purchased. boat he The instruction manual for decedent’s boat (1) types contains three different warnings: of a “DANGER” indica- tion, personal result; which means severe or injury death will a indication, “WARNING” which personal means severe or injury death result; indication, could and a “CAUTION” which means minor personal or injury property damage or could result. The provides manual two areas the of possibilities slipping and states as follows: slippery.

“CAUTION: Wet can Passengers surfaces be should adequate boarding underway wear deck shoes while and to avoid slipping injury.” accidental and

“CAUTION: Deck platform slippery areas and swim are when Passengers be passing through companion- wet. must careful when way prevent slipping tripping. accidental or Passengers should all adequate wear deck shoes at to prevent slip- times accidental Passengers ping. stay must platform off swim while underway to prevent falling overboard.”

The provisions Underway” above are contained in “Getting sec- warning tion. The boat itself no regarding has labels of slipping falling from the boat. Experts’ Deposition Testimonies Plaintiff’s Allen,

James of retired member the Coast and a Guard marine consultant, regard testified with to decedent’s fall slipperiness and the of transom, the boat surfaces. Allen examined the the swim platform, and steering areas of the in question. sprayed boat Allen then platform some water on the it and walked on barefoot. Allen stated that he believes the mechanics of fall decedent’s are most consistent slip with a on the transom. Allen also stated that on based his barefoot boat, on walking he concluded the nonskid surface on swim platform of the boat in question inadequate. Allen stated that the (ABYC) American Boat & Yacht walkways Council recommends that all eompanionways surfacing and have nonskid and most manufacturers guidelines. follow these Allen indicated that transom on boat only way is the a passenger platform for to reach the swim of the boat Therefore, and a walkway. defendant failed to meet the ABYC’s guidelines by on having not skid-resistant materials the transom. acknowledge, however, guidelines Allen ABYC’s are recom- did Allen mandatory. are and mendations to the boat manufacturers Guard, he that, with the Coast experience on his also stated based on warnings pos- provide adequate failed to believes defendant on warnings are falling passengers slipping sibilities of are in the instruction manual warnings the boat and the contained insufficient. consultant, Richardson, engineering also testified

Thomas he coefficient-of- way of Richardson stated that conducted deposition. boat swim-platform surfaces testing friction transom a similar test on question. Richardson stated that he also conducted as nonskid surface, widely teak that is used on boats material two compared then the results of the tests surface. Richardson friction, that, on the measured coefficient concluded based is too and not suitable for walk- slippery surface transom ing on when wet. The on Ruling

B. Trial Court’s the Motion Summary Judgment

for hearing On December trial court conducted motion judgment. defendant’s Plaintiff presented no evidence the court hearing. February On granted summary judgment. reaching *10 defendant’s motion for its decision, court reasoned as follows:

(1) A triable does not that the boat was defective or issue exist unreasonably sufficiently dangerous plaintiff has not because design boat demonstrated the existence of a defect that made the unreasonably dangerous;

(2) under the and facts circumstances of this defendant duty warn, and, warn, legal duty owed no if there to even is a to warning provided by the adequate instruction manual is as law; matter of and

(3) plaintiff present any any failed to to support evidence duty by prove breaches of and to failed defendant’s breaches, any, if proximately caused decedent’sdeath. 19, 2003, May

On March plaintiff filed a motion to reconsider. On 27, 2003, plaintiffs ap- the trial heard motion. This court and denied peal followed.

II. ANALYSIS Review A. Standard of de summary judgment We a trial novo. Sol- grant review court’s (2002). Summary Eaton, 1, 6-7, 215, lami v. 218 2d 772 N.E.2d judgment admis- appropriate pleadings, depositions, is when “the and affidavits, file, together any, sions on if show that there is 660

genuine issue as to material moving party fact that the 1005(c) to judgment entitled as a matter of law.” 735 ILCS 5/2 — (West 2002); Sollami, 6, 201 Ill. 2d at 772 at 218. Because sum- mary judgment disposing litigation, is a drastic means of it should be only right judgment allowed when “the movant’s clear free from doubt.” Corp. Liberty Outboard Marine Mutual Insurance (1992). Co., 102, 1204, 154 Ill. 2d addition, 607 N.E.2d 1209 court must all presented, including deposi- consider evidence expert tions, nonmoving against in favor of the party strictly the movant. Corp., 131-32, Outboard Marine 154 Ill. 2d at 607 N.E.2d at 1223. At judgment stage, required is not to establish his as case he would at trial present but must some factual basis that arguably Co., would entitle him a judgment. Westv. Deere & (1991). 177, 182, 582 N.E.2d 687 Strict-Liability

B. Plaintiffs Claim adopted strict-liability Illinois has set formula forth sec (Second) (Restatement (Second) tion 402A Restatement of Torts (1965)) (hereinafter Restatement). § of Torts 402A Towner, Lamkin v. (1990). Ill. 2d 563 N.E.2d Accordingly, Illinois imposes liability strict on anyone any product who sells in a defective unreasonably dangerous consumers, condition users, or their 402A; § property. Lamkin, Restatement at Ill. 2d may dangerous 457. A be considered unreasonably two reasons: of a design manufacturing (design-defect defect theory) or because of a failure warn consumers of a posed product of which the average already consumer would not (failure-to-warn be theory). Lamkin, aware N.E.2d at 457.

1. The Design-Defect Theory alleges Plaintiff first concluding trial court erred sufficiently she failed to of design demonstrate the existence defect unreasonably dangerous. argues made Plaintiff that the trial apply court failed to of the required both tests used to determine exists, design grant- whether a defect therefore the court erred in ing summary judgment strict-liability to defendant count. We agree. *11 Illinois, a plaintiff may

In a demonstrate that defec design, subject tive in so to and a to strict as retailer manufacturer resulting injuries, in liability ways: by introducing for one of two safely ordinary evidence that the to as an perform failed as expect reasonably consumer would when used in intended or (a) (2) by the introducing foreseeable manner or evidence that

661 (b) the defendant injury and design proximately caused his product’s challenged design balance, of the that on the benefits prove failed to Lamkin, 138 Ill. design. inherent in such danger the risk of outweigh Therefore, 1990, two alternative 528, at since 2d 563 N.E.2d 457. at liability strict in determine a manufacturer’s exist Illinois to tests contemplation” test theory: a “consumer-user “design-defect” under Ill. App. 211 Scoby Corp., v. Vulcan-Hart “danger-utility” and a test. (1991). 1147, 106, 109, 3d 569 1149 N.E.2d whether Usually, apply both tests determine court should at Ill. at N.E.2d 1151. Scoby, 211 3d 569 design App. defect exists. contemplation However, an action under the consumer-user is barred plaintiff. the Hunt Bla danger open test the if obvious (1978). 203, 368, danger- sius, Ill. 2d 384 N.E.2d 372 Under 74 factor test, open danger is a to be utility and obvious nature exists, design but an determining when whether defect considered bar under this test. open danger per recovery and obvious does not se Industries, Inc., App. Wortel v. Somerset 3d (2002). 1211, 1216 N.E.2d Test Danger-Utility

a. The argues present failed to Plaintiff address test, and, danger-utility to overcome its burden under the evidence therefore, judgment. The granting summary the trial court erred ruling at the time its defendant’s motion record before court judgment required contained none of evidence test, i.e., under evidence summary judgment danger-utility obtain challenged outweigh danger benefits the risk of design that the However, court design. inherent in the defendant maintains the cor- danger-utility danger test rectly apply refused because the alleged design open defect was and obvious and the mechanism simple; therefore, inapplicable. involved was test was Exists Regarding i. A Genuine Issue Material Fact Test Applicability Danger-Utility argues danger-utility test in the inapplicable Defendant alleged danger open case and obvious instant Scoby, mechanism was Defendant this court’s decision simple. cites support argument. of its Scoby, danger-utility that the test would this court concluded nature of the is obvious and the nature of apply when the simple. Scoby, mechanism involved is 1151; Corp., Hansen v. Healthcare Ill. 2d see also Baxter (the court, deciding that a supreme N.E.2d 35 friction-fit connec- danger-utility applied test should be to determine a *12 662 liability, Scoby exception

tor manufacturer’s strict stated the is “inapposite” because the of is “open disconnection not and and obvious” the of a simple); mechanism friction-fit connector is not Wortel, 909, 3d at at 770 N.E.2d decisis, which,

Based on the principle Supreme of stare as the Mraz, 223, 230, Court of Illinois stated Wakulich v. 203 Ill. 2d 785 843, (2003), Skokie, quoting Village N.E.2d 848 Zimmerman v. 183 of “ 699, (1998), Ill. 2d requires 697 N.E.2d 708 a court to ‘stand ” by precedents points,’ Scoby and not to disturb settled we follow the exception to application danger-utility the universal and test danger-utility continue hold that the test not apply given does open-and-obvious danger where product simple. and the involved is movant,

In the instant as the defendant had the burden right establish that its judgment was “free and clear from Therefore, doubt.” genuine this court must whether first determine a issue material regarding simplicity product fact existed the and open-and-obvious danger. involved the nature of the See Outboard 102, Corp., Marine 154 Ill. 2d at at 1209.

(a) The Trial Court Erred Granting Summary Judgment a Because Issue Material Fact Regarding Genuine Exists the Mechanism Was Simple

Whether above, simplicity product As stated the allegedly of an defective is an exception “risk-utility” one element of under the which test (both would apply. though Even courts courts Illinois and federal law) applying courts Illinois have determined applicability the “risk-utility” Scoby exception, specific guidelines test based few state how to determine a product/mechanism whether is See simple. Co., Scaccianoce v. Manufacturing Supply Hixon & 57 F.3d 586-87 (7th 1995) (“We guidance opinion Cir. have little either from our own from Illinois courts as to the for distinguishing ‘simple’ criteria products from the not so Cases simple”). applying Scoby exception simplicity product (see, indicate that the is a question of law Scaccianoce, e.g., (stating 57 F.3d at 586 [simple-product] “this court”)), characterization is matter of to be determined law and courts make decisions based on their evaluations of the products test, developed before them. Since there is no we must examine courts’ previous holdings underlying “risk-utility” rationale test Scoby exception correctly determine if the product- in the is “simple.” mechanism instant case First, compare allegedly let us product question, defective motorboat, products “simplic- where courts have made the other (see Industries, Inc., ity” King determination McDaniel v. Trail 248 F. 2002) (N.D. to determine (stating way the best 2d Ill. Supp. above, As this by analogy)). discussed simple whether a fryer “simple” to be a Scoby open-lid deep found an court in (see (stating “the Scoby, fryer] simple”)). Compared to deep [in involved are mechanics fact, clearly complex has more mechanisms. fryer, a motorboat deep products also more than two complex a motorboat is a lot ap to which it “simple” deemed not to be Supreme Illinois Court Lamkin, 138 Ill. 2d plied danger-utility test: the window screen connector used to connect 510, 563 N.E.2d “friction-fit” Corp., in Hansen Baxter Healthcare the IV tube to catheter (2002). correctly pointed As counsel plaintiffs 764 N.E.2d 35 brief, found not to be by reply products out other that courts have *13 (Fuller a Rand Automated hydraulic lifting system include v. “simple” (N.D. 7, Inc., 1995)), Systems, No. Ill. March Compaction 92 — C—1797 (Besse 497, Co., 502, 3d App. a corn combine v. Deere & picker (Mc (1992)), 998, system 604 a a tarping N.E.2d 1002 trailer with (Wortel, Daniel., Supp. 756), pizza-dough 248 F. 2d at a machine rolling 895, 1211), manually operated 331 3d N.E.2d and a lathe Ill. 770 (Staecker (N.D. U.S.A., Inc., v. Hitachi No. 95 — C—0743 Ill. Seiki 1998)). 21, hand, January products On the other courts found to be (Todd Bic, lighter S.A., v. 21 “simple” disposable include a Societe (7th (Haddix 1402, 1994)), a tampon Playtex Family F.3d 1412 Cir. v. (7th 1998)), Corp., pair panty Products 138 F.3d 685 Cir. and a (Golden Co., & Ill. 479 hose Marshall Field (1985)). The a much mechanism involved in motorboat is closer combine, trailer, in complexity prism picker terms of to a corn pole, rolling machine, lifting than a pizza-dough hydraulic system deep or fryer, tampon, motorboat, A disposable lighter, panty or hose. therefore, not a simple product. is 586-87,

Further, Scaccianoce, in Seventh Circuit 57 F.3d at the surveyor’s pole “simple,” not Appeals prism Court of found a to be is to use the stating degree expertise required the fact that some products. it Similar a prism pole “simple” takes out of the class of to prism training an pole, requires motorboat is instrument some and to The boat in came a manual expertise question use. with “docking.” “steering” boaters The everything instructed on from classes “urges” also boaters to the instruction manual “attend and other boat[-]safety sponsored by courses the U.S. Coast Guard in organizations.” pole Scaccianoce, the boat prism ques- Like the product. tion is also not a simple question simple that the is not

The determination motorboat law but also product only previous is not consistent with the case “risk-utility” with the underlying coincides the economic rationale Scoby exception. test Lamkin,

As the Court Supreme of Illinois stated in “risk-utility” compares test risk allegedly design. imposes benefit of an A liability defective court strict on a when danger outweighs manufacturer the benefit and there alternative, an design is cost-effective make product would As such, Dobbs, safer. it is tort approach. economic-based See D. (2001). § Scoby hand, Torts at 985-87 exception, The the other provides analysis an economical threshold under which the cost-benefit words, unnecessary. simple, is In other when is the overall manufacturing low, cost cost of an alterna tive, safer design mandatory safety device be disproportion would ately high. design, Despite protected “less-safe” consumers are they obviously because can appreciate dangerous propensity injured product. very likely by “simple Since few are consumers to be obviously dangerous” product, economically but it is place efficient to the risks on the than on The consumers rather the manufacturer. Scoby therefore, exception, essentially following: very states the (i.e., products extreme cases very production costs), low courts make the may analysis determination that cost-benefit under “risk-utility” strongly test favors manufacturer and there no jury need to send jury the case could for reasonable find Consequently, summary for plaintiff. judgment manufacturers be appropriate would those cases. $20,000.

In the instant the motorboat retails over expert alleged question Plaintiffs witnesses that the boat in is defec- provide adequate protection because it tive does antiskid passengers plaintiffs experts, on board. According the boat *14 easily the alleged by adding manufacturer could have cured defect anti- stripes to the slip by applying paint the transom surface or nonskid to judgment, Since of an of summary mold. this is review award we must all presented, including expert depositions, consider evidence in favor strictly nonmoving party against Accepting of the the movant. true, the a safer plaintiffs experts’ design testimonies as cost of case is cost of the As compared this minimal when overall boat. above, Scoby excep- economic the underlying discussed the rationale analysis strongly is to the dispose tion of those cases where risk-benefit clearly the case not favors manufacturer. The economics of this do such disposition. warrant a

Moreover, legal to presented authority defendant evidence or Instead, counsel simplicity the a motorboat. defense wants establish swim-platform surfaces of only us to focus on transom and injury occurred. We boat, might areas have where particular First, three reasons. disagree suggested approach with this a contention that legal authority support its defendant cited no only of a based on simplicity product court should determine injury occurred. Defendant particular product of the where part clearly a court with duty reviewing did not its of presenting fulfill 341(e)(7). See 210 Ill. 2d R. As defined issues and relevant authorities. result, argued by citation to any point supported a raised but not (Brown Tenney, 125 Ill. 2d authority is deemed forfeited relevant (1988)). 362, 532 N.E.2d Further, that, making the simplicity our own research evidences determination, product, entire always courts have focused on the Besse, product. e.g., rather particular than a area of the See (where injury was a plaintiffs 3d at 604 N.E.2d at 1002 chain, right leg touching running result of her the combine’s and the court held a “eombine-with-attached-cornhead mechanism involved simple preclude application this case not so in nature as to is Wortel, analysis test”); see also risk/benefit (where got caught hand in the rollers of plaintiffs rolling machine, a pizza-dough pizza[-]dough and the court found “the *** machine”). rolling complex machine here is a Second, above, underlying as discussed the economic rationale Scoby requires production at the cost of exception us to look the entire product economically can so that we determine whether it is sensible require adopt design. only a manufacturer to a safer To focus on a particular product area of a defeat purpose would the “risk- utility” always particular test as can area of pinpoint manufacturers complex that area argue simple that the mechanism of is example, production cost low. For the defendants in Besse is argue respective “products” Wortel could that the in their cases running are the chain rollers and the instead “combine-with- “pizza[-]dough rolling attached-cornhead and the mechanism” machine.”

Third, question is even the notion accepting boat, the surface of the failed to establish that this is particular “simple” product purpose grant- boat surface for the ing may “simple” floor be a summary judgment. regular A surface boat, safely on product, but the surface which needs to function slip-resistance and is provide passengers water and board fiberglass, mold, processed made into a and then poured from then surface, necessarily product. into a Defendant “simple” the boat presented no evidence its assertion that surface support *15 product a “simple” evidentiary and therefore did not meet the burden summary judgment. an award of (b) Trial Judgment The Court Erred in Granting Summary Because Genuine Issue Material Exists Fact Regarding is Open

Whether and Danger Obvious assuming question Even is the surface assuming alone and further is a “simple” product, boat surface under Scoby exception, required a trial court apply is still test “risk-utility” liability to determine a manufacturer’s strict if the allegedly “obviously dangerous.” open defective not An and danger only obvious exists where “both the condition and risk are apparent to and be appreciated by would reasonable person plaintiffs position exercising ordinary intelligence, perception, and Stores, judgment.” Inc., Drug Simmons v. American Ill. App. (2002), citing 768 N.E.2d Deibert Bauer Brothers (1990). Co., Construction 141 Ill. 2d asserts, agrees, danger Defendant and the dissent this case such, is that the boat becomes wet. slippery surface when As defendant ordinary maintains consumers are aware of dangers. such “obvious” disagree We with such a ordinary characterization. An consumer certainly expect would boat surfaces to become when slippery wet. however, The consumer, same not necessarily would that know certain boat, surface areas of the on the manufacturer pas- which intended conditions, sengers walk wet slippery they under are so should not walk on those areas when the boat is wet. plaintiff alleges this provide defendant did not

adequate antiskid on platform texture the swim defendant failed nonskid-paint instructions, to follow the applied defendant Here, nonskid materials on the only prototype. faced danger by a merely boat user is not platform the swim is “slippery when wet” but the lack of protection provided by resulting sufficient words, nonskid surface. In other a boat user would a certain expect level of protection platform, from texturized swim arises level fell below that protection provided when actual expectation. provided Defendant no evidence to show that swim- platform provided protec- on the boat in the level question surface on the expect. tion that an boat user would As movant ordinary motion, burden summary-judgment defendant had the to establish summary judgment that its was “clear free from doubt.” right alleged danger failed Accordingly, defendant to establish ordinary to an as a platform “open swim obvious” consumer matter of law. transom: in the following design defects alleges

Plaintiff also area, pas- swim-platform to reach the in question, the boat transom; on the and walk step onto would have senger despite surface the transom materials on any nonskid apply did *16 conduct did not ABYC; defendant by the the recommendations (4) the surface; and transom slipperiness regarding tests and is of friction low coefficient very has a transom surface resulting on under wet walking for slippery too experts as by plaintiffs deemed fact: material issue of genuine raise a allegations These conditions. and obvi- open was the transom surface danger posed by whether the is a boat surface know that differently, might a boat user Stated ous. on transom surface wet, he know that the but would slippery when walkway, boat, essentially designated an area that is particular this on wet? walking when that it is not suitable slippery is so recent this court’s analogizes the instant case with The dissent Ill. 803 Corp., App. in Bates v. Richland Sales decision that the of the boat (2004), reach the conclusion N.E.2d 977 clearly distinguishable and obvious.” Bates is “open surface is also N.E.2d at Bates, App. In 3d at from the instant case. removed the manufacturer-installed plaintiffs coworkers (to manager of a sales Wrangler roll bar of a loader which protective anyone ‘totally “it inconceivable’ the manufacturer testified: sense, removing a bar; common like the roll it offended would remove one of against the loader seatbelt”), plaintiff up and the then backed to death. This court observed building, crushing in a himself the rods power- if this fully expected that ordinary consumer would have “[a]n against an machine, bar, body his or her pushed ful without a roll Bates, 3d at object, unyielding injury could result.” case, slipped on and In the instant decedent walked 803 N.E.2d at 987. intended the manufacturer areas of the boat where from the surface the loader conditions. Unlike for a to walk under wet boat user safety device that would Bates, installed the manufacturer which did not incident, in the instant case defendant prevented have (or surface, any) antiskid the transom adequate install in the case of (two tubing skiing Further, in to use the boat for materials. order the transom intended), had to walk on decedent uses that rope tie a so that he could swim-platform and the area surface later testified, defendant’s plaintiffs experts end of the boat. As this design that eliminated walk-through transom designs employed the result of Bates, injury unlike Therefore, where problem. case, alleged defec- instant wrongdoing, in the the decedent’s own Accord- husband’s death. plaintiffs caused design proximately tive fully reasoning in Bates that “our ingly, the dissent’s determination (352 676) to this more applies only strongly” A comparison inaccurate. between this case and Bates case would only appropriate be if the loader manufacturer Bates also failed to design install the roll protective bar. and/or conclude, assertion,

To contrary plaintiff defendant’s did merely allege a “slippery-when-wet” Rather, condition. presented expert testimonial evidence that specific demonstrated defects surfaces made the boat surface unexpectedly dangerous. Defendant of its presented contrary evidence own to the (except using certain from excerpts plaintiffs out-of-context one of expert testimony) witness’s and therefore failed to establish that the danger possessed surface by “open the boat and obvious” a mat- as ter law. reaching conclusion, distinguish this we also the Illinois

Supreme LeMay, Court’s in Fanning decision 38 Ill. 2d (1967), on by defendant, relied which consumer, wear- ing pair of shoes U.S. Company, slipped made Rubber and fell asphalt-tile supreme wet floor. The plaintiffs court disallowed the against claim Company “[i]t U.S. Rubber is a com- matter of mon knowledge slip are more likely shoes when wet than when *17 dry, provides this pair but no basis for the that a particular conclusion dangerous of shoes is or Ill. 2d at Fanning, unsafe.” Here, court, at 184. the trial in granting judgment defendant, parallel stated instant Fan- that “the between the case and noteworthy.” ning disagree. [citation] We out, the supreme pointed alleged As court the in plaintiff Fanning setting specific why neither facts forth defects nor a design reason particular pair question dangerous the of in or Fan- shoes unsafe. 38 Ill. 2d at ning, 230 N.E.2d at 184. Plaintiff the instant however, alleges design defects, including the applica- several incorrect the on paint platform, apply tion of nonskid the swim the failure to any slip-resistant transom, materials on the and the test- inadequate ing platform transom, of the that the boat in question made addition, above, dangerous. In as particularly unsafe or discussed plaintiff allege common-knowledge “slippery-when-wet” does not a rather, from the danger; danger discrepancy the this case results protection antiskid expectation adequate between consumer’s of alleged protection by the provided the insufficient manufacturer. Therefore, Fanning the rationale in supreme inapplicable court’s the instant case. regarding of exists genuine

Because issue material fact whether obvious, the danger alleged open created defect the the turn danger-utility erred in the test. We now applying trial court fact exists material issue of genuine of question whether to the such a test. under the Under Fact Exists Issue Material

A ii. Genuine Test Danger-Utility danger- design defect under a manufacturer’s prove To the product’s that introduce evidence test, must utility plaintiff to prove failed and defendant injury caused his design proximately outweigh challenged design that, balance, the benefits 529, 563 Lamkin, design. inherent in such risk correctly trial court that maintains at 457. Defendant to defendant’s material fact exists as issue of genuine that no concluded any evidence to present failed plaintiff design defects decedent’s caused proximately defects alleged design establish danger- exists under genuine that a issue fall. Plaintiff asserts to establish sufficient evidence presented she utility test because decedent’s fall caused design proximately defective that defendant’s associated with any design benefits present failed to defendant issue genuine that a agree defect. We alleged design of material fact exists. alleged that defendant’s

First, plaintiff introduced evidence fall. Plaintiffs proximate cause of decedent’s design defects were designing the swim depositions in their experts testified mixture, sand-and-paint incorrectly applied defendant platform, only, prototype nonskid-paint application mixture limited the slipperiness testing regarding inadequate and conducted that as a result experts Plaintiffs concluded swim-platform surface. deficiencies, nonskid texture on swim design defendant’s also experts Plaintiffs inadequate protection. skid platform provided transom, adopt did not designing testified that on the any nonskid material walk-through and did not add feature defects, design a result of such fiberglass transom’s surface. As is unsuitable coefficient of friction and very transom surface has a low therefore, concluded experts, Plaintiffs walking on when wet. platform and fell on the swim regardless slipped decedent whether was the inadequate protection skid transom, the boat surfaces’ *18 that experts Plaintiffs also stated injury. cause of decedent’s fatal would have on the boat surface opinion protection their increased skid fall. prevented decedent’s defects alleged design the that present

Defendant did evidence that a dif- slip and fall or the cause of decedent’s proximate were not injury. fatal decedent’s design prevented ferent would not have s credibility of Instead, argument on defendant focused its stating experts, plaintiffs experts were not qualified opinions their However, were baseless. the credibility of the to be witnesses is by jury. Diversey Neunkirchen, determined Liquidating Corp. (1939). 370 Ill. Further, 19 N.E.2d in reviewing of grants summary judgment, a court must consider all evidence presented, including depositions, favor of expert nonmoving party strictly against movant. Corp., Outboard Marine 154 Ill. 131-32, 2d at at 607 N.E.2d 1223. The record as it existed before trial at ruling court the time of its plaintiffs included evidence from expert testimony design that defendant’s defects proximately caused decedent’s fall. Defendant failed to rebut this evidence.

Moreover, present that, defendant did not evidence any to show balance, the challenged design benefits outweigh the risk of designs. Lamkin, inherent in such 2d at fact, at In defendant introduced no evidence of benefits alleged design defective swim-platform transom surfaces. Accordingly, we that conclude not entitled to judgment danger-utility test, under the trial court erred in finding for defendant as a matter of law.

b. The Contemplation Consumer-User Test Plaintiff next that argues the trial court’s conclusion that defects design genuine existed is erroneous because a issue of material fact remains contemplation under the consumer-user test as to a design whether defect exists. test, contemplation may

Under consumer-user a plaintiff a product’s design by introducing demonstrate defective evidence failed as perform safely ordinary as an consumer would expect reasonably when used in an intended or foreseeable manner. Lamkin, Hunt, In N.E.2d at 457. recovery 384 N.E.2d at the court stated the plaintiffs

may injury barred when merely be derives from those inherent of a all properties product that are obvious to who come in contact product. with the bar, plaintiff presented case at evidence that decedent and fell

slipped trying rope from the back the boat as he was to tie Defendant, statements, he go tubing. so that could its own intended tubing skiing, require its boats to be used for or water activities that Therefore, injured part access back boat. decedent was using reasonably intended and man- while foreseeable and the alleges platform ner. Plaintiff also swim transom inadequate question provided protection. areas the boat in skid testimony introduced to demonstrate that defendant expert Plaintiff

671 and the result- resistance for skid guidelines meet industrial failed to to be safe. slippery are too ing surfaces recovery under not entitled to is plaintiff asserts that

Defendant injury fatal decedent’s test because contemplation the consumer-user that is property “slippery-when-wet” inherent from the boat’s derived Defendant, product. the in contact with to all who come obvious of Illinois’s that, Supreme Court based on the therefore, contends 372, 211, at Hunt, 2d at holding in 74 Ill. fact under the consumer-user issue of material

presented genuine disagree. test. We contemplation applicability regarding section

As discussed merely allege case does not test, plaintiff the instant danger-utility Instead, that the boat plaintiff alleges danger. “slippery-when-wet” actual level of because the unreasonably dangerous in question was ordinary an falls below what provided by boat surfaces protection the “inherent danger Such a is not one of expect. consumer would boat; rather, alleged to be a feature that was of the it is propensities” Accordingly, of this boat. brought by particular design about the defect was material fact remain as to whether genuine issues of defect exists under open design and whether a obvious contemplation test. consumer-user summary judg- summary, granted the trial court erred when it fact exist under genuine

ment defendant because material issues of to (1) alleged danger danger-utility regarding test whether (3) (2) obvious, existed, whether open design whether a defect Further, design outweigh the risks. alleged the benefits of the defective consumer-user genuine of material fact exist under issues (1) open alleged danger contemplation regarding test whether (2) defect exists. design and obvious and whether Theory

2. The Failure-To-Warn held defects, a manufacturer can also be design In addition to Lamkin, 138 Ill. 2d at strictly for its failure to warn. liable summary judg that, in argues granting N.E.2d at Plaintiff 457. finding defendant defendant, also erred ment tó the trial court warn, duty to legal if there is a duty had no to warn and even as a matter by adequate the instruction manual was warning provided duty defendant had a decide the of whether question law. We first warn. To Duty a. Defendant Had a Warn Whether *** failure unreasonably dangerous by product may

“A be found proper on the danger of the or instruct manufacturer warn be would not average as to consumer use which Sollami, 2d at Specifically, aware.” 201 Ill. 772 N.E.2d at 219. warn duty product possesses dangerous arises “where the propensi- harm, knowledge respect ties and there is unequal risk of manufacturer, possessed knowledge, and the of such knows or should may warning.” Sollami, know that harm absent a 201 Ill. 2d at occur exists, duty however, N.E.2d at 219. No warn “where Sollami, apparent open and obvious.” duty objective analysis, at 219. The to warn determined duty and the determination of whether a to warn existed is a question Sollami, law. N.E.2d at Plaintiff some on the provided warnings contends that slipperiness of the boat surface its instruction manual and *20 warnings, although inadequate, such showed that the manufacturer of of danger slippery was aware the boat’s surfaces. Plaintiff claims that may therefore that defendant was aware harm occur due slipperiness knowledge of the boat surfaces and that established duty duty defendant’s to warn. Defendant that it had no asserts a “slippery-boat-surfaces” danger open warn because is and obvious. plaintiff with that material of to be agree We issues fact remain as to duty resolved whether defendant had a to warn. duty

“It is settled that manufacturer has no law to warn product inherent of a are who propensities ‘those which obvious to all ” Sollami, 10, product.’ in contact 201 come with the Ill. 2d at 772 221, McColgan at quoting Systems, N.E.2d Environmental Control (1991). Inc., 696, 700, 815, Here, App. 212 Ill. 3d 571 N.E.2d 817 alleged at issue is danger inadequate protection level of skid by the provided swim-platform boat’s transom and the surface areas. above, alleged danger As discussed such a not an plaintiff that is “inherent the boat but rather a propensity” of feature that brought particular design. about defendant’s Defendant not did regarding ordinary knowledge introduce evidence boat user’s dangers therefore, of the boat in did not specific question, of the it danger “apparent open that the here is and obvious.” Ac- establish material remain cordingly, we conclude issues of fact as to whether had a duty defendant to warn.

b. Was Warning Adequate Whether the Provided 523, in Byrne Corp., App. This court stated v. SCM 182 Ill. 3d 547, 796, (1989), question N.E.2d 811 that of whether 538 unreasonably warnings are dangerous is product if it jury. Warning adequate is a fact for the inadequate question Byrne, perform the intended function risk reduction. adequate 547, Warnings may 3d at N.E.2d at be found App. 182 Ill. 538 by the specify presented the risk inadequate warnings if the fail is to be are with how the warnings if the inconsistent product, warnings, or if the used, they if fail to of the reason for the advise 3d at Byrne, App. users. warnings do not reach foreseeable 811, Sunnyside citing Corp., Collins v. (1986). 496 N.E.2d that witnesses testified plaintiff’s expert In this warnings. alleged Plaintiff provided inadequate defendant boat itself to advise boat us warning defendant affixed no label on the surfaces, only ers of the and defendant’s communication slippery “getting in the regarding danger slipping falling appeared underway” experts section under “caution” indicators. Plaintiffs did warning inadequate warning concluded that because the specify may the seriousness of risks that boat users encounter warning not reach the intended users. would in Byrne, As this court held 538 N.E.2d at only purpose warning of a is to apprise person who would person danger, use the so as to make that aware of the above, in enabling person protect reviewing himself. As stated summary all judgment, fact, pleadings, depositions, issues of strictly against admissions must be construed the movant and liber- ally party opposing Loyola Academy favor of the the motion. v. S&S Maintenance, Inc., 263, 271-72, 146 Ill. 2d Roof (1992). Therefore, presented, based on the evidence material issues of warning provided by fact remain as to whether suf- ficiently potential alerted users boat’s swim- We, therefore, platform agree and transom surfaces.

the trial court in awarding judgment. erred Negligence C. Plaintiffs Claim *21 Plaintiff next argues granting that the trial court also erred summary judgment negligence Specifically, to defendant on the count. plaintiff erroneously plaintiff contends that the court concluded that (1) duty by failed to of present any support any evidence to breaches defendant; if prove any proximately failed to defendant’s breaches death; prove caused decedent’s failed to that defendant negligently duty agree. breached its to warn. We Duty Breach To a Product of Manufacture Safe Illinois, duty

In to nondelegable produce manufacturer has Hansen, reasonably that is safe for all intended uses. In Corp., N.E.2d 43. Rotzoll v. Overhead Door 156, 162 (1997), citing Kokoyachuk 3d v.Aero (1988), 432, 437-38, 609-10 quip Corp., this court stated: plaintiff prevail theory

“For a under a design negligence, he must show that the quality particular product of a is insufficient duty and that the of care on part required manufacturer design something it to safer for the user. Regardless [Citations.] plaintiff alleges whether a liability strict for a design defect or design negligence,he proving has the burden of the existence of a defective condition at the time it left the manufac- turer’s control.” defendant, the instant as a pleasure manufacturer of

boats, legal had a duty to make its boat safe for recreational boating. Defendant acknowledges that it intended its boats to be used for tub- ing skiing. go however, or To tubing skiing, required user is step onto the surface of the transom of the boat in question to access platform. above, swim As discussed introduced evidence defendant, to show in manufacturing surface, the transom deviated guidelines, from ABYC’s require which walkways all boat have protection. result, skid As a may transom’s surface be defective because it has a low coefficient may of friction and not be suitable for walking on when wet. Similarly, plaintiff introduced evidence to show the texturized swim platform on the boat in question was defective because it did provide adequate nonskid resistance. Plaintiffs experts testified that defendant should have adopted designs different rigorous and conducted more tests to adequate ensure skid resistance on the Again, boat surfaces. defendant did not rebut this evidence. evidence, Based on this genuine issue of material fact exists as to whether defendant’s boat was defective whether defendant breached duty produce product. its a safe

As determined in our earlier discussion related danger- to the test, utility plaintiff presented sufficient evidence to genuine raise is- regarding sues material fact duty whether defendant’s breach of proximately injury. We, therefore, caused decedent’s fatal find the trial court erred in granting summary judgment. 2. Breach Duty To Warn

Finally, plaintiff duty exists, maintains a by providing warn inadequate warning, defendant negligent. Defendant asserts that it had duty or, to warn because the open and obvious alternatively, provided adequate warning. it on previous Based our strict-liability discussion the issue of failure to warn under the claim, we conclude that plaintiff genuine raised a issue of material fact as to whether duty defendant breached its to warn under negligence claim.

Last, in response today to the dissent’s concern that our decision where, law, “dangerously point Illinois manufac- close under *22 safety persons using truly turers are the absolute insurers may be, and no mat- products, simple product their no matter how (352 678), reemphasize ter it is used” we the nature how us, summary judgment. of the case before review of an award of court, remain reversing the trial all we decided is that triable issues as (2) (1) unreasonably dangerous, whether the boat was defective duty warning whether defendant owed a and whether the warn (3) provided by adequate, instruction manual is whether duty proximately breach of the to warn caused decedent’s death. Ac- cordingly, the dissent’s concern is unfounded.

III. CONCLUSION stated, For the grant reasons we reverse the trial court’s of sum- mary judgment.

Reversed.

KNECHT, EJ., concurs. STEIGMANN,

JUSTICE dissenting: Froducts-liability in law Illinois is difficult and I evolving, ap- preciate the majority’s scholarly appropriately efforts to review trial court’s grant judgment majority for defendant. The concludes that the trial doing so, court erred in but for the reasons follow, I respectfully dissent.

In my judgment, Bates, this court’s recent decision 803 N.E.2d is both on point supportive of the trial grant court’s of summary judgment. allegedly The defective issue Bates a Wrangler front-end loader from which employer decedent’s had operating removed a roll bar. While loader, decedent was killed in an parties agreed accident that the would not have occurred had the roll bar not been removed. Decedent’s (Bates) (Richland) widow and estate sued the loader’s seller under negligence theories of products liability, alleging strict loader dangerously design. defective its The trial court negligence dismissed the granted summary judgment counts and later in favor of Richland on the products-liability appeal, counts. On this court affirmed.

In Bates, we first duty product, addressed a seller’s to warn about a writing as follows: pain tort, “On liability buyer of strict a seller if must warn

(1) dangerous propensities, has has seller greater knowledge buyer than the harm the risk of from those knows, know, propensities, and the seller or should that unless risk, buyer buyer the seller warns the of that will suffer harm. Sollami, 219; 201 Ill. 2d at 772 N.E.2d at Woodillv. Parke Davis (1980). Co., & Unequal 79 Ill. 2d knowledge lami, qua duty of the risk is the sine non of a to warn. Sol *23 7, If, objective

201 Ill. 2d at at an point to an 772 N.E.2d 219. from view, obvious,’ danger apparent, ‘open of ordinary would be or Sollami,

person, duty the seller has no to warn of 201 Ill. it. 7, Bates, 232-33, Id. at App. 2d 772 N.E.2d at 219.” 346 Ill. 3d at 803 N.E.2d at 985-86. rejected

This court then argument Bates’ as to Richland’s failure warn, explaining as follows: “Objectively, ordinary an person would know that without some sturdy intervening horsepower structure between the driver and the engine, engine prevail. duty will Richland had no they warn if guy consumers that drove the loader toward a wire hanging level, any protective at chest without structure between wire, guy they get Everyone already them and the could hurt. knew that, warning and the pointless. would have been See Smith v. Corp., American Motors Sales 215 Ill. (1991).

146, Essentially, plaintiff impose [the asks us to duty against danger. dealer] a warn obvious We decline to do Sollami, 7, Bates, so. See 201 Ill. 2d at N.E.2d at 219.” 233, App. 3d at 803 N.E.2d at 986. case,

In my judgment, reasoning fully applies our in Bates to this only more strongly. namely, The at issue this the wet case— literally surface of a boat—could not be more simple. especially This true one compares complicated when it to a much more mechanism Yet, like the front-end loader at issue in Bates. this court Bates held that operating the loader without the roll bar was an obvious warning required; clearly, about which no was the same is true about the wet surface of a small boat out on the Mississippi River. majority’s response my

The characterization of the wet surface simple product” change of the motorboat as “a is to the focus of inquiry from the surface of the boat to the as a whole. This (for instance) appropriate plaintiffs broader would be if lawsuit focus were based on a claim that the boat’s motor malfunctioned due to However, faulty. improper design, steering mechanism was nothing portion when the claim—as here —is more than that a wet, slippery aspects boat’s surface when these other of the boat— view, be—are In the al- complicated though they may my irrelevant. complexity object of an need not—and should not—be considered leged (so product” purposes products the idea “simple as to defeat law) In of that is an issue. this liability aspect complexity unless some complex workings because none of the of the motorboat are at is- sue, considered, they should not be and this court’s focus should only remain on the instrumentality plaintiff alleges of the boat that anything injury: had to do with decedent’s the surface when wet. Bates,

In this court also claim that the plaintiffs addressed front-end loader was unreasonably dangerous because the roll bar was readily doing, supreme removable. so we first discussed our court’s Lamikin, 529, 457, decision 138 Ill. 2d at 563 N.E.2d at and then following: wrote the

“In Scoby, 3d at at we called method, above, the first passage quoted the ‘consumer-user contemplation test’ and ‘danger-utility the second method the test.’ We if dangerous held that propensity was obvi ous and the ‘mechanism simple, involved’was apply court should the consumer-user contemplation test rather than danger- 1151.q utility Scoby, test. 211 Ill. App. 3d at 569 N.E.2d at dangerous

The power obvious, of the loader was and the injury mechanism of the simple. Therefore, apply we will consumer-user contemplation test rather than danger-utility Scoby, test. See 211 App. Ill. Bates, 3d at N.E.2d 1151.” 346 App. 803 N.E.2d at 987.

This rejected court then portion plaintiffs of the products-liability claim, explaining as follows: case, “In plaintiff this essentially falls into fallacy the same as Smith-, plaintiffs Scoby complains she of the lack of a

safety device failing while recognize dangerous propensity product, device, without that safety was obvious. Scoby, In 211 App. 108, Ill. 1148-49, at 569 at argued deep-fatfryer, that a in which he had accidentallysubmerged arm, his was unreasonably dangerous in cover, that it lacked a merely which was ‘optional equipment.’ agreed We with trial dangerous court that ‘the open nature of the fryer containing hot oil’ plaintiff.’ was ‘obviousto the Scoby, App. 109, 211 Ill. 3d at N.E.2d at 1149. Smith,

In 953, App. 148-49, Ill. 3d at 576 N.E.2d at plaintiff argued Jeep that a with detachable side doors was unreasonably dangerous that, removed, with the driver’s door it (‘invited’) allowed him to leg drive with his left extended outside passenger compartment, on an step, making leg outside vulnerable when car struck the driver’s side. The First District held driving Jeep passenger one’s foot outside the compartment posed an ‘open danger,’ and obvious for which the manufacturer could not products liability. Smith, incur strict App. 3d at Similarly, present N.E.2d at 152. in the body might that the driver’s collide with low- hanging objects equally ordinary person driving to an obvious Bates, loader a roll bar.” 3d at without at 987-88. Bates, apply court did in should the consumer-user

As this we contemplation danger-utility test instead of the test to namely, issue in this the wet surface of the boat—because “the case— dangerous propensity was obvious and the ‘mechanism Bates, simple.” 803 N.E.2d at involved’ was 987. conclusion, I strongly disagree majority’s I with the decision. Bates, it this court’s recent decision in

believe that is inconsistent with court, Scoby, particularly inconsistent with earlier decisions of this may turmoil in law in If the fact products-liability cause Illinois. slippery that the of a boat becomes when wet becomes the surface claim, products-liability may dangerously for a then we be close basis where, law, point truly under Illinois manufacturers are the safety persons using products, absolute insurers of the their be, simple product may matter how and no matter how it is used. ILLINOIS, Plaintiff-Appellee, THE PEOPLE OF THE STATE OF NEWBOLDS, Defendant-Appellant. ANTHONY Fifth District No. 5 — 02—0526 August publish granted Opinion filed 2004. Motion September