NO. 5-05-0723
NOTICE
Decision filed 02/01/10. The text of
IN THE
this decision may be changed or
corrected prior to the filing of a
APPELLATE COURT OF ILLINOIS
Peti tion for Rehearing or th e
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
DORA M AE JABLONSKI and JOHN L. ) Appeal from the
JABLONSKI, JR., as Special Administrator
) Circuit Court of
and Personal Representative of the Estate of
) Madison County.
John L. Jablonski, Sr., )
)
Plaintiffs-Appellees, )
)
v. ) No. 03-L-2027
)
FORD MOTOR COMPANY, )
)
Defendant-Appellant, )
)
and )
)
NATALIE S. INGRAM, ) Honorable
) A. A. Matoesian,
Defendant. ) Judge, presiding.
________________________________________________________________________
JUSTICE STEWART delivered the opinion of the court:
The plaintiffs, Dora Mae Jablonski (Dora) and John L. Jablonski, Jr., as the special
administrator and personal representative of the estate of Dora's deceased husband, John L.
Jablonski, Sr. (John), brought this action against Ford Motor Company (Ford), alleging strict
product liability and negligence in the design of their 1993 Lincoln Town Car automobile
as a result of a collision in which John was killed and Dora was seriously injured.
Specifically, the plaintiffs alleged that the fuel tank system in the Lincoln Town Car was
defective, unreasonably dangerous, and negligently designed by Ford. The plaintiffs also
filed a negligence claim against Natalie S. Ingram, the driver of the vehicle that collided with
the Jablonskis' vehicle, but that claim was settled before the trial. Plaintiff Dora Jablonski
moved prior to the trial for leave to file a willful-and-wanton-conduct count and to seek
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punitive damages, and after a hearing, her motion was granted by the trial court. The
plaintiffs voluntarily dismissed their strict product liability claims at the close of all the
evidence, and the case against Ford was submitted to the jury on the negligent-design claims
and on the willful-and-wanton-conduct claims seeking punitive damages. The jury returned
a verdict against Ford, assessing the plaintiffs' total damages in excess of $43 million,
including $15 million in punitive damages, on which the circuit court of Madison County
entered a judgment. The circuit court denied Ford's motion for a judgment notwithstanding
the verdict or for a new trial. Ford timely appeals from the judgment.
Ford raises numerous claims of error, which we restate generally as follows: the trial
court erred (1) in submitting any of the plaintiffs' negligent-design claims to the jury, (2) in
making various evidentiary rulings, (3) in instructing the jury on the negligence claims, and
(4) in submitting Dora's punitive damages claim to the jury and instructing the jury on that
claim. Due to the nature and complexity of the many issues raised on appeal by Ford, we
must provide an extensive review of the evidence produced at the trial. Additional facts will
be provided where necessary. For the reasons set forth below, we affirm.
BACKGROUND
This case arose from a July 3, 2003, automobile accident in which Dora and John
were traveling in their 1993 Lincoln Town Car, which was the last car in a line of traffic
stopped at a construction site on Interstate 270, near its intersection with Illinois Route 203,
in Madison County, Illinois. Ingram, who was driving a 1995 Chevrolet Lumina, while
distracted and looking for her sunglasses, rear-ended the Jablonskis' vehicle. At the point of
the collision, she was traveling at least 56 miles per hour and by some estimates 65 miles per
hour. According to witnesses, Ingram did not brake or leave skid marks, and she struck the
rear of the Jablonski vehicle dead center. As a result of the collision, the fuel tank in the
Lincoln Town Car was crushed, a pipe wrench located in the trunk of the Jablonskis' car
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penetrated the fuel tank, and a fire immediately ensued. It is undisputed that gasoline leaking
from the damaged fuel tank caused the fire.
Both Dora and John were eventually able to exit their vehicle but were engulfed in
flames and suffered severe burn injuries. John suffered burns over 80% of his body and died
two days later as a result of his burn injuries. Dora suffered burns over 32% of her body,
including her face, and by the time of the trial, she had suffered through extensive burn
treatment, reconstructive surgery, and rehabilitation. She will need extensive care and
treatment for the remainder of her life. At the time of the accident, John was 74 and Dora
was 71. They had been married for more than 50 years and had raised four children. The
extent of the Jablonskis' injuries and the medical expenses associated with those injuries are
not disputed. Ford does not challenge the amount of the verdict and makes no claim that
either the compensatory damages or the punitive damages are excessive.
The plaintiffs' negligence claims were focused upon the design of the fuel tank system
in the 1993 Lincoln Town Car. Evidence presented by both parties revealed that the Lincoln
Town Car, the Mercury Grand Marquis, the Ford Crown Victoria, and the Ford Crown
Victoria Police Interceptor (Police Interceptor) are all "Panther platform" vehicles. Ford
developed the Panther platform and first introduced it in the 1979 model year. The
characteristics of Panther platform vehicles include a large, deep trunk, a solid axle, rear-
wheel drive, and body-on-frame construction. The fuel tank in Panther platform vehicles is
located forward of the trunk, behind the rear axle and between the rear wheels, a
configuration known as an "aft-of-axle" or "vertical-behind-the-axle" fuel tank. While aft-of-
axle fuel tanks were common when the Panther platform was developed in 1979, Ford has
placed the fuel tank forward of the axle in every new passenger car platform it has since
designed. By 1991, a majority of all the new automobiles manufactured had fuel tanks
forward of the axle. At the time of the trial, the Panther platform vehicles and the Mustang
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were the only types of vehicles Ford still manufactured with an aft-of-axle fuel tank.
The plaintiffs presented exhibits, including Ford records, and the testimony of Ford
employees which the plaintiffs argued revealed that Ford had long been aware of the
potential dangers associated with the aft-of-axle fuel tank design, including the danger of
objects in the trunk puncturing the fuel tank in a collision. In the late 1960s, Derwyn Severy,
a researcher at UCLA, conducted a series of automobile collision experiments, partially
funded by Ford, for the purpose of obtaining "information relating to the injury exposure for
high-speed rear-end collisions, including the lethal hazard of gasoline-fed post[]crash fires."
The Severy research resulted in an article in a publication of the Society of Automotive
Engineers, which was introduced into evidence. The article included this conclusion among
its findings:
"Initial findings indicate that much progress can be made in reducing the possibility
of crash fires by incorporation of relatively inexpensive design considerations relating
to fuel tanks and related fuel systems. *** Preliminary studies suggest that the area
cradled by the rear wheels, above the rear axle and below the rear window[,]
represents an improved location for the fuel tank. This location is least often
compromised from collisions of all types."
On October 3, 1969, Roger Daniel, a safety engineer at Ford, sent a handwritten
memo to his superiors at Ford entitled "Future Gas Tank Location." In the memo, Daniel
stated his understanding that the "future direction as to fuel tank location is to hang the tank
under the trunk," and he asserted that "for all vehicles except wagons and convertibles, the
best tank location by far appears to be directly above the axle." Daniel stated that an
advantage of this design was that it would be "almost impossible to crush the tank from the
rear." On January 23, 1970, Daniel prepared a typewritten memo, also signed by Robert
Fredericks, Ford's principal research engineer for safety engineering, which stated as follows:
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"We have examined possible fuel tank locations and determined that the safest place
for a fuel tank is directly above the rear axle and below the package tray. In
rear[-]end accidents, the tank is above and forward of vehicle components likely to
crush during the collision or deform it, while in lateral accidents, the tires, axle, and
wheelhouse structure provide extensive protection against rupture or even excessive
deformation."
The memo described the proposed tank location in detail and concluded that in that location
the tank "is high enough in the trunk to essentially preclude rupture from in-trunk articles
during an accident." On February 9, 1971, Ford prepared a "Cost Engineering Report" to
determine the potential cost of moving the fuel tank to the above-the-rear-axle location. The
report concluded that the cost of the design change at that time would have been $9.95 per
vehicle. This design change was not incorporated into the 1979 Panther platform.
The plaintiffs introduced excerpts of an evidence deposition of Kenneth K. Kohrs that
had been taken in another case on February 26, 1992, just prior to the production of the
Jablonskis' Lincoln Town Car. At that time, Kohrs was the vice president of car product
development for Ford, which he agreed meant that he was the person with "the highest direct
responsibility for the engineering design and development of private passenger automobiles
sold in North America." He testified that he understood he was testifying as a representative
of Ford and acknowledged that "it is Ford's position that the automotive industry should
incorporate in a new product the latest state of the art with regard to overall vehicle safety
that is feasible from a high volume production standpoint." Kohrs stated that Ford has
"always been aware of [its] responsibility to minimize the effect of post[]crash fires and the
need to continually reduce the incidence." He further acknowledged that Ford had produced
fuel system designs for the Fox platform vehicle which incorporated shields for the fuel tank.
He also admitted that Ford had produced the Capri for the European market in the 1970s and
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that the Capri had an above-the-rear-axle fuel tank. Kohrs acknowledged that the location
of the fuel tank in the Capri had been marketed by Ford as a safety feature and that the Capri
had passed a 30-mile-per-hour fixed-barrier crash test.
Brian Geraghty, a Ford employee for more than 40 years, who, at the time of the trial,
was the director of Ford's design analysis office, was called by the plaintiffs as an adverse
witness. Geraghty testified that before the Jablonskis' accident on July 3, 2003, Ford knew
that there had been police car collisions in which the fuel tank was punctured, resulting in
fires and the deaths of the occupants. Ford was aware that between 1983 and 2003, five
deaths and seven injuries resulted from collisions in which items in the trunk had punctured
the fuel tank. The police cars involved in these accidents were Police Interceptors that were
built on the Panther platform. Geraghty acknowledged that the state police agencies in both
Florida and Arizona had requested that Ford study the issue of fires caused by the puncture
of fuel tanks by items in the trunk as a result of rear-end collisions. Geraghty identified an
exhibit prepared by Dr. Michelle Vogler, at the request of Ford, for the Arizona Highway
Patrol, with statistics concerning the fire risk in various vehicles involved in fatal rear-end
collisions. The data in that exhibit indicated that Lincoln Town Cars were involved in fatal
rear-end collisions more than three times more often than Ford Escorts, a much smaller
vehicle designed with a forward-of-the-axle fuel tank. Geraghty also identified an exhibit
indicating that in the years 2002 to 2003, there were more than 15 million registered vehicles
in the United States that had their fuel tanks located behind the axle but that, at the time of
the trial, no vehicles on that list were still being manufactured or sold with a fuel tank in that
location, except Ford's Panther platform vehicles.
The plaintiffs introduced as admissions, and read to the jury, excerpts from a
deposition of Michael J. Harrigan, Sr., taken in another case on December 11, 2003.
Harrigan had worked in the design of fuel systems at Ford since 1977. In 1986, he became
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the chairman of the Fuel Systems Technical Standards Committee of the Society of
Automotive Engineers. The committee includes approximately 50 individuals employed by
various automobile manufacturers and automobile component part manufacturers. Its
purpose is to develop standards and recommended practices for the automotive industry in
the design of fuel systems. Harrigan also taught a class on fuel systems engineering to Ford
engineers beginning in 1991. Portions of the 2000 version of the class manual were
introduced into evidence. Harrigan agreed that he is an expert in "fuel system design
standards."
Harrigan acknowledged that since the introduction of the Escort in 1981, all the
passenger cars designed at Ford have been designed with the fuel tank forward of the axle.
He confirmed that Ford's preferred fuel tank location is forward of the axle, but he
acknowledged that the fuel tank design for Panther platform vehicles had not changed since
their introduction in 1979. Harrigan agreed that a part of the role of the engineer in
designing a fuel system for an automobile is to protect the customer. He testified that
engineering standards require that a fuel system be designed to avoid allowing anything to
penetrate or puncture the fuel tank in a crash. If a hazard is identified that the design cannot
prevent from occurring, Harrigan agreed that shielding should be employed. He
acknowledged that Ford had used high-density polyethylene shielding to shield fuel tanks
in some of its vehicles since the 1970s, and he agreed that the shielding was technically and
economically feasible to use.
The manual for the fuel systems engineering class that Harrigan used to teach Ford
engineers provides that it is the "engineer's role" to "eliminate potential hazards" in the
product. The manual then states that if the engineer cannot "design [a] hazard out of the
product," he should "design a guard or shield." As a "last resort" the engineer is taught to
"provide a clear warning" if the hazard cannot be designed out of the product and an
7
appropriate guard or shield cannot be designed. Finally, the manual provides that the
engineer should consider not releasing the product if a hazard still exists.
Cam Cope, an expert consultant who determines the cause and origin of vehicle fires,
testified for the plaintiffs that the major cause and the original source of the Jablonskis' fire
was the pipe wrench that was propelled through the trunk wall and into the fuel tank. He
also opined that the collision caused a smaller hole in the fuel tank and that the smaller hole
was another likely source of the fire.
Mark Arndt testified as an expert witness for the plaintiffs. He has a bachelor's degree
in mechanical engineering and specializes in automotive engineering. For approximately 20
years, he has provided consulting services regarding motor vehicle crashes, particularly those
involving postcrash fires, and in that capacity he has investigated thousands of crashes
involving fires. He is a member of the Society of Automotive Engineers and served on its
Fuel Containment Standards Committee, which is charged, in part, with the responsibility
for developing standards and recommended practices for the design of fuel systems in motor
vehicles. He has also published peer-reviewed articles on postcrash vehicle fires and on the
analysis of similar incidents to determine product safety.
In preparation for his testimony, Arndt and his staff examined and photographed the
Jablonskis' Lincoln Town Car, removed the fuel tank, and performed a detailed analysis of
this accident. He also performed an analysis of other similar incidents. Arndt compiled a
list of 44 accidents between 1981 and 2003 involving postcrash fires in rear-impact collisions
of Ford automobiles. Most of the vehicles involved were Panther platform automobiles, and
all of them were designed with a vertical-behind-the-axle fuel tank. Many of the occupants
of the vehicles suffered severe burn injuries or died of burn injuries. Arndt's list included
11 incidents, prior to the Jablonskis' accident, involving Police Interceptors where the fuel
tank was punctured by an item located in the trunk. Arndt had personally investigated
8
approximately 20 of the incidents on the list, and he relied upon the list of incidents in
forming his opinions. Arndt also prepared and relied upon a separate list of similar incidents
that had been compiled from an interrogatory answer filed by Ford in another case in 1992.
That list was also introduced into evidence and included 416 accidents involving Ford
vehicles with behind-the-axle fuel tanks in which the fuel tank was torn, punctured, or split
open, and it revealed 378 fatal burn injuries.
Arndt expressed the opinion that the pipe wrench located in the trunk of the
Jablonskis' vehicle penetrated the front and rear walls of the fuel tank, causing the two larger
holes in the fuel tank. He also noted that an additional, smaller hole in the fuel tank was
caused by the crushing of the low-fuel reservoir in the fuel tank. Arndt confirmed that the
low-fuel reservoir had also penetrated the fuel tank in one of the prior similar incidents
described in an exhibit.
From the standpoint of safety, Arndt opined that there are basic engineering standards
for the design of products. Once a hazard is identified, the engineer should attempt to design
the hazard out of the product. If the hazard cannot be eliminated in the design process, then
the engineer should design a guard or shield to protect the consumer from the hazard. If the
guard or shield does not eliminate the hazard, then the consumer should be provided with a
warning describing how to prevent the potential harm in the product.
In Arndt's opinion, the fuel containment system in the Jablonskis' 1993 Lincoln Town
Car was defective in that the fuel tank was located in the likely crush zone in a rear-end
collision and was vulnerable to being punctured by items in the trunk. At the time of the
manufacture of the Jablonskis' automobile, a safer and more practical location for the fuel
tank would have been forward of the axle. Further, if Ford did not change the location of
the fuel tank, it should have provided shields that protected it from being punctured by other
component parts of the vehicle or items in the trunk and a guard that enabled consumers to
9
align items in the trunk laterally so they would be less likely to puncture the tank. Finally,
Ford should have provided the consumer with a warning of the danger of objects in the trunk
puncturing the fuel tank.
The plaintiffs also introduced evidence regarding postcrash fires in rear-end collisions
involving Panther platform Police Interceptor vehicles subsequent to the sale of the
Jablonskis' 1993 Lincoln Town Car but before the 2003 accident. During this 10-year
period, law enforcement agencies became increasingly aware of high-speed rear-end
collisions in which police officers were injured or killed in postcrash fires in Police
Interceptors. Typically, these accidents occurred when the officers were stopped on the side
of major highways and were performing their duties. In some incidents, the fuel tank was
breached by being crushed against component parts of the vehicle, and in others it was
damaged by trunk contents. As a result of these incidents, police agencies began making
complaints to Ford and to the National Highway Traffic Safety Administration (NHTSA).
In 2001, as a result of these complaints, Ford issued a Technical Service Bulletin
(TSB), which was sent to all the Ford dealers. The TSB applied to 1992 to 2001 Crown
Victorias, 1992 to 2001 Lincoln Town Cars, and 1992 to 2001 Mercury Grand Marquis. It
noted that police agencies had reported postcrash fires in high-speed rear impacts, and it
provided a recommended service procedure for vehicles "exposed to extremely high-speed
rear impacts." Specifically, it instructed dealers to replace a hex-head bolt on a park-brake
cable with a round-head bolt and to grind down a metal tab that protruded from a "U" bracket
on the rear stabilizer bar axle attachment. These parts had been identified as having
breached the fuel tank in high-speed rear-end collisions. The issuance of the TSB prompted
the NHTSA, in October 2001, to open an investigation into postcrash fires in Ford's Panther
platform vehicles. That investigation was completed in October of 2002, and the NHTSA
required no action by Ford.
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During 2002, police agencies continued to complain about the danger of postcrash
fires, and government officials in both Florida and Arizona suggested that a moratorium
should be declared on future purchases of Panther platform vehicles for use by law
enforcement. In March of 2002, Janet Napolitano, then the Attorney General of Arizona,
wrote a letter to Ford expressing concern about the incidence of fuel-fed fires in Police
Interceptors. In June of 2002, Ford representatives met with Napolitano and then announced
the formation of a "Blue Ribbon Panel" of Ford and law enforcement representatives that
committed to a 90-day program to evaluate fuel system upgrades and police procedures as
a part of a "Police Officer Safety Action Plan."
In September of 2002, Ford and the Arizona Attorney General's office held a joint
press conference and announced the actions taken and to be taken as a result of the 90-day
program. First, Ford announced that it had developed a Police Interceptor package upgrade
kit (Upgrade Kit). The Upgrade Kit consisted of shields designed to protect the fuel tank
from being punctured by component parts identified as puncture hazards in high-speed rear-
end collisions. Ford had crash-tested the shields at 75 miles per hour and had found them
effective. Second, the Blue Ribbon Panel announced recommendations for improved police
safety procedures, including "Trunk Packing Considerations, 1" which advised officers on the
placement of items in the trunk to reduce the potential for the fuel tank being ruptured by
trunk contents. Third, Ford announced the development of an optional "Trunk Pack,"
consisting of a drop-in trunk liner made of high density polyethylene, which required the
user to place objects in the trunk laterally rather than longitudinally. A sticker located on the
1
The material developed by Ford refers to "Trunk Packing Considerations." However,
the jury instructions used the phrase "Trunk Pack Recommendations." The two phrases were
used interchangeably during the trial. We will use both phrases in this opinion and, to the
extent possible, as they appear in the record.
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Trunk Pack instructed the user to "align hard or sharp police equipment laterally." Finally,
Ford announced the creation of a Web site where the law enforcement community could find
information about the work of the Blue Ribbon Panel and updates on Ford's Police
Interceptor design-safety efforts.
In October of 2002, Ford notified, by first class mail, all the registered owners of
Police Interceptors and all the United States Ford, Lincoln, and Mercury dealers of the
availability of the Upgrade Kit. In March of 2003, Ford also notified its 32,000 government
fleet customers. The Trunk Packing Considerations were available through the Web site and
with the purchase of the optional Trunk Pack. Civilian owners of Panther platform vehicles,
including the Jablonskis, received no notice of the availability of the Upgrade Kit, Trunk
Pack, or Trunk Packing Considerations. The decision not to notify civilian users of Panther
platform vehicles was made by Sue Cischke, a vice president and officer of Ford and the
highest-ranking Ford employee responsible for vehicle safety. Cischke testified by
deposition that Ford chose not to notify civilian users because it was Ford's opinion that the
risk of fuel-fed, postcrash fires in high-speed rear-impact collisions is unique to police users
because police officers have significantly greater exposure to that type of collision.
Ford, in its defense, presented extensive documentary and testimonial evidence in
support of the safety of Panther platform vehicles. It defended the design of the 1993
Lincoln Town Car with the testimony of experts who opined that there was no defect in the
fuel system, that a change in the location of the fuel tank would reduce the effectiveness of
other desirable attributes of the Panther platform vehicles, and that, considering the overall
design of the Panther platform vehicles, the fuel tank is in the best location for that vehicle.
Ford also presented evidence that the Panther platform met and exceeded all United States
government safety standards for its fuel containment system. Further, Ford introduced the
NHTSA report on its investigation into the safety of the Panther platform fuel system in
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which the NHTSA neither recommended nor required any change in Ford's design. Ford
presented testimony that millions of Ford Panther platform vehicles had been driven for years
with a small incidence of postcrash fires, suggesting that the design of the fuel system was
reasonably safe. Finally, Ford presented evidence that the Jablonski accident was a unique
occurrence since it was the only crash known in a Panther platform vehicle other than a
Police Interceptor in which trunk contents punctured the fuel tank; therefore, Ford argued,
a design change based upon such an unlikely occurrence was not warranted.
Jack Ridenour, Jr., is a Ford employee in the design analysis department who heads
a team of engineers who analyze the performance of Ford vehicles in the field, investigate
crashes, and consult with engineers designing future vehicles. Among other duties, he
analyzes the performance of fuel systems on Ford vehicles in crashes. As a mechanical
engineer, Ridenour joined the fuel system design group at Ford in 1971 and worked in that
group until 1977, designing and developing fuel systems for Ford. He has taught the fuel
system engineering classes at Ford. Ridenour investigated the Jablonskis' accident and
offered opinions about the safety of the 1993 Lincoln Town Car and the design of Panther
platform vehicles.
Ridenour testified that when he began working at Ford in 1971, Ford was well aware
of the Severy research introduced by the plaintiffs. According to Ridenour, the Daniel
memos introduced by the plaintiffs represent further research Ford did in response to the
Severy article. Further, the document showing that Ford analyzed the cost of incorporating
the design changes advocated by Severy and Daniel at $9.95 per vehicle confirmed that Ford
was considering alternatives. Ridenour agreed that the over-the-axle design advocated by
Severy and Daniel was superior to the under-the-trunk location for the fuel tank which was
then being used, but he noted that those alternatives did not include the vertical-behind-the-
axle location ultimately adopted for the Panther platform. According to Ridenour, once Ford
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had fully tested the over-the-axle location, it was determined that it was not a workable
design.
Ridenour described the possible tank locations and explained the overall design
process. He opined that there is no optimum fuel tank location for all cars. The design of
the fuel system depends upon the design of the car, and the fuel system used by Ford in the
Panther platform vehicles was designed for that type of car. The Panther platform vehicle
is a large passenger automobile with a body-on-frame construction, rear-wheel drive, and a
spacious trunk. If the fuel tank were moved in the Panther platform vehicle to the forward-
of-the-axle location, the body-on-frame construction and rear-wheel drive would also have
to be eliminated, and it would be a totally different car. In his opinion, the vertical-behind-
the-axle fuel tank location was the best and safest design for the 1993 Lincoln Town Car and
provided the most protection for occupants from all types of crashes.
During his testimony, Ridenour identified, and Ford introduced into evidence, the
certification package for 1993 Panther platform vehicles, including the Town Car, in which
Ford certified that all of its Panther platform vehicles met federal motor vehicle safety
standards. Federal Motor Vehicle Safety Standard (FMVSS) 301 required that a vehicle
withstand, with minimum fuel leakage, a rear impact with a nondeformable 4,000-pound
barrier moving at 30 miles per hour. The 1993 Lincoln Town Car met this standard. In fact,
the certification package revealed that Ford performed the FMVSS 301 testing at 35 miles
per hour, and that the Town Car had passed. Ford also performed more rigorous internal
testing which required that the Lincoln Town Car withstand, with minimal fuel leakage, three
separate car-to-car fuel-system-integrity crash tests performed at 50 miles per hour, and the
1993 Town Car passed that testing as well. According to Ridenour, at the time of the
production of the 1993 Lincoln Town Car, only Ford and General Motors had internal
standards requiring testing at 50 miles per hour.
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Ridenour acknowledged the design standards in Ford's fuel system engineering
materials which require that an engineer design a hazard out of a product, guard against it,
or provide a warning, but he testified that, in his opinion, Ford met those standards in the
design of the Panther platform vehicles. He testified that Ford performed a thorough design
review and located the fuel tank in the safest place for Panther platform vehicles. He also
opined that Ford guarded against a penetration of the fuel tank by placing a steel trunk wall
between the rear of the vehicle and the fuel tank. Ridenour testified that no warning was
necessary, either in 1993 when the Jablonski vehicle was produced or thereafter, with regard
to the danger of trunk contents puncturing the fuel tank. In his opinion, it was not reasonably
foreseeable that a pipe wrench would puncture the fuel tank since Ford was unaware of any
such incidents by 1993 and, prior to the Jablonskis' accident had knowledge of trunk content
punctures in police vehicles only. Finally, Ridenour testified that, in his opinion, the Panther
platform vehicles, including the Jablonskis' 1993 Lincoln Town Car, are reasonably safe in
high-speed rear-end collisions.
Walter Newell is the president and the lead investigator of Newell Investigative
Services. He was hired by Ford to investigate the cause and origin of the Jablonski vehicle
fire. At the time of the trial, he had been a fire investigator for 23 years and had investigated
more than 3,000 vehicle fires. A majority of the postcollision vehicle fires he had
investigated involved vehicles with aft-of-axle fuel tanks. Newell agreed with the opinion
of the plaintiffs' expert, Cam Cope, that the primary cause of the Jablonski vehicle fire was
the leakage of fuel from the fuel tank as a result of the holes caused by the pipe wrench. He
disagreed with Cope's additional conclusion that the smaller hole caused by the crushing of
the low-fuel reservoir was a contributing cause of the fire.
Ford called Dr. John Habberstad, a mechanical engineer and an expert in accident
reconstruction, as an expert witness. Habberstad had been involved in accident
15
reconstruction for 35 years and had investigated more than 2,000 accidents. Based upon his
investigation of this accident, he testified that the speed of Ingram's vehicle at impact was
65 miles per hour. He further testified that he had been involved in the investigation of many
accidents in which a fuel tank was breached, and he stated that he had never observed a tank
punctured by an item in the trunk. Finally, in his opinion, if the Upgrade Kit shields
developed by Ford had been installed on the Jablonski vehicle, they would have had no effect
on this accident.
Mark Noble, a mechanical engineer and an expert in the analysis of auto accidents,
was called as an expert witness by Ford. Noble began his career as an engineer in the fuel
system department at Chrysler Corp. (Chrysler). Eventually, he supervised that department
and was responsible for the design of the fuel systems in Chrysler vehicles. In 1980, he left
Chrysler and has since worked as an expert in the analysis of auto accidents.
In Noble's opinion, the Jablonski accident was a unique occurrence that resulted from
a combination of factors not likely to be repeated. In his view, the speed of the Chevrolet
Lumina that struck the Jablonski Town Car, the configuration of the Lumina, the alignment
of the vehicles at impact, the location and alignment of the pipe wrench in the trunk, the type
of trailer hitch on the Town Car, and other factors all combined to cause the pipe wrench to
penetrate the fuel tank. Noble noted that, out of millions of Town Cars, this is the only
known accident in which the fuel tank has been breached by an item in the trunk. If all the
Panther platform vehicles are included, this is the only known incident in a non-police
vehicle. According to Noble, this type of incident is so rare that the risk of trunk contents
puncturing the fuel tank should be given little consideration in designing a fuel system.
Noble opined that there is no optimum fuel tank location for all cars but that there
may be an optimum location for a particular vehicle. In designing the location of a fuel tank,
the features of a particular vehicle should be taken into account. According to Noble, the
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Town Car has features that reduce the risk of fuel tank punctures, including a steel frame,
a steel floor pan, and a deformable steel tank, as well as the fact that the tank is 40 inches
from the rear bumper. In his opinion, the optimum location for the fuel tank in the 1993
Lincoln Town Car was the vertical-behind-the-axle location, as it was designed. Finally, it
was Noble's opinion that the 1993 Lincoln Town Car is a "very safe overall vehicle" with a
"very safe" fuel tank location.
Sue Cischke, called as a witness by Ford, reiterated and expanded her testimony
provided by deposition during the plaintiffs' case. As the highest-ranking safety officer at
Ford, she explained Ford's safety philosophy in the design of its products. First, Ford meets
all federal safety standards. Second, it makes voluntary agreements with other manufacturers
to improve product safety and then treats compliance with those agreements the same as
federal safety standards. Third, Ford has internal safety standards beyond the federal
standards that it monitors with extensive product testing. Fourth, it strives to meet public
domain guidelines such as those promoted by Consumer Reports. Finally, Ford continually
develops and offers enhanced safety features.
Cischke identified the NHTSA report of its investigation into postcrash fires resulting
from high-speed rear-end collisions in Panther platform vehicles, and the report was admitted
into evidence. The report required no action by Ford and, according to Cischke, supported
her decision not to notify nonpolice users of Panther platform vehicles of the danger of trunk
contents puncturing the fuel tank. Cischke confirmed her belief that any danger from trunk
contents was limited to police vehicles due to their increased exposure to high-speed rear-end
collisions. Since the Jablonski accident was the first such occurrence reported to Ford in a
non-police vehicle, Ford had no basis upon which to believe that a warning was necessary
for civilian users. Further, Cischke testified that, even if she had known of the Jablonski
accident, she would not have warned civilian users based upon a single occurrence.
17
Cischke agreed that engineering safety standards require a manufacturer to first
attempt to design a hazard out of a product and, if that is not possible, to shield or guard
against the hazard and, if the hazard cannot be shielded, to then warn the consumer about the
hazard. In her opinion, however, there was no foreseeable risk of trunk contents puncturing
the fuel tank in Panther platform civilian vehicles and no safety hazard that required design
consideration or warnings.
Ford called Dr. Paul Taylor as an expert witness. Taylor is a mechanical engineer
employed by Exponent Failure Analysis Associates, a nationwide firm involved in analyzing
accidents. He is experienced in investigating accidents and in statistical analysis. Taylor
disagreed with the similar-incident analysis of Mark Arndt and expressed the opinion that
nothing in Arndt's lists of prior similar incidents provides proof that the 1993 Lincoln Town
Car was unreasonably dangerous. Taylor analyzed the frequency of fatal rear-end collisions
involving postcrash fires by comparing the number of vehicles involved in those incidents
to the total number of vehicles of that type manufactured. Millions of 1993 Lincoln Town
Cars were sold. According to Taylor, the number of 1993 Lincoln Town Cars involved in
fatal rear-end collisions involving postcrash fires is only .0009% of the total number of those
vehicles sold. In other words, 99.9991% of 1993 Lincoln Town Cars were not involved in
that type of fatal collision. In Taylor's opinion, these statistics show that the 1993 Lincoln
Town Car is not an unreasonably dangerous vehicle.
Finally, Dr. Edward Caulfield, president of Packer Engineering, testified for Ford as
an expert witness. Caulfield is a consultant in accident investigation. At Ford's request, he
studied the strength of the frame on Panther platform vehicles, evaluated the cause of the
Jablonski accident, and considered whether a guard would have prevented the accident.
First, it was his opinion that the strength of the frame was appropriate, that placing the fuel
tank within the frame was a good design, and that the design of the tank location was safe.
18
Second, he concluded that the pipe wrench puncturing the fuel tank was such a rare, unique,
and unforeseeable event that a design engineer could not be expected to anticipate and design
against such an occurrence. Third, after extensive testing to determine whether adding
shields to the fuel tank would have prevented the postcrash fire in this case, it was his
conclusion that there is no feasible alternative guarding design which would have prevented
the pipe wrench from piercing the tank. Finally, in his opinion, the 1993 Lincoln Town Car
has a reasonably safe design and Ford's engineers were not negligent in adopting that design.
At the conclusion of all the evidence, the plaintiffs dismissed their claims for strict
product liability and proceeded only on their negligence and willful-and-wanton-conduct
counts. The trial court conducted a conference on jury instructions at which Ford objected
to various instructions that were given by the court and submitted instructions that were
refused. We will discuss those rulings in more detail below. After closing arguments, the
case was submitted to the jury, which rendered verdicts in excess of $5 million for the
injuries and death of John Jablonski, Sr., in excess of $23 million for the injuries of Dora
Jablonski, and $15 million in punitive damages for Dora Jablonski. Ford's posttrial motion
for a judgment notwithstanding the verdict or for a new trial was denied, and this appeal
followed.
ANALYSIS
We begin by recognizing that the plaintiffs' compensatory-damages claims were
submitted to the jury on a negligent-design theory. "Illinois cases considering a cause of
action for defective products liability sounding in negligence rather than strict liability are
rare, probably because it appears to plaintiffs that it is easier to prove the strict liability
count." Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 95, 828 N.E.2d 1128, 1141
(2005). Thus, we must first acknowledge the framework upon which the issues in this case
must be analyzed.
19
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." Calles, 224 Ill. 2d at 270, 864 N.E.2d at 263. A strict liability
claim is concerned only with the condition of the product, while "in a negligence claim, a
defendant's fault is at issue in addition to the condition of the product." Calles, 224 Ill. 2d
at 270, 864 N.E.2d at 263-64. Thus, in both types of cases alleging a product-design claim,
the plaintiff must prove the existence of a defective condition in the product at the time it left
the manufacturer's control. Carrizales v. Rheem Manufacturing Co., 226 Ill. App. 3d 20, 36,
589 N.E.2d 569, 580 (1991). In a negligent-product-design claim, the plaintiff must also
provide evidence of "a standard of care by which to measure a defendant's design and
establish a deviation from that standard." Blue, 215 Ill. 2d at 96, 828 N.E.2d at 1141.
"A manufacturer is held to the degree of knowledge and skill of experts" (Anderson
v. Hyster Co., 74 Ill. 2d 364, 368, 385 N.E.2d 690, 692 (1979)) and "has a nondelegable duty
to design reasonably safe products." Calles, 224 Ill. 2d at 270, 864 N.E.2d at 264. An
automobile manufacturer has a duty " 'to use reasonable care in the design and manufacture
of its product, bearing in mind that the intended and actual use of automobiles results in
collisions.' " Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 56, 669 N.E.2d 608, 612 (1996)
(quoting Buehler v. Whalen, 70 Ill. 2d 51, 61, 374 N.E.2d 460, 464-65 (1977)). "The crucial
question in a negligent-design case is whether the manufacturer exercised reasonable care
in the design of the product." Calles, 224 Ill. 2d at 270, 864 N.E.2d at 264. "In determining
whether the manufacturer's conduct was reasonable, the question is 'whether in the exercise
of ordinary care the manufacturer should have foreseen that the design would be hazardous
20
to someone.' " Calles, 224 Ill. 2d at 271, 864 N.E .2d at 264 (quoting American Law of
Products Liability 3d §28:48, at 28-66 (1997)). "To show that the manufacturer acted
unreasonably based on the foreseeability of harm, the plaintiff must show the manufacturer
knew or should have known of the risk posed by the product design at the time of
manufacture." Calles, 224 Ill. 2d at 271, 864 N.E.2d at 264.
A.
Negligence Claims
Ford first argues that the circuit court erred by not granting it a judgment
notwithstanding the verdict because the plaintiffs failed to present sufficient evidence to
justify submitting any of their negligence claims to the jury. Our review of the trial court's
decision on a motion for a judgment notwithstanding the verdict is de novo. McClure v.
Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720 N.E.2d 242, 257 (1999). A
judgment notwithstanding the verdict is not properly entered unless the evidence, when
viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the
movant that no contrary verdict could ever stand. Holton v. Memorial Hospital, 176 Ill. 2d
95, 109, 679 N.E.2d 1202, 1208 (1997). If "reasonable minds might differ as to inferences
or conclusions to be drawn from the facts presented," then a judgment notwithstanding the
verdict should not be entered. Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351,
654 N.E.2d 1365, 1374 (1995). Neither a trial court nor a court of review is allowed to
reweigh the evidence or "substitute its judgment on questions of fact fairly submitted, tried,
and determined from the evidence which did not greatly preponderate either way." Maple
v. Gustafson, 151 Ill. 2d 445, 452-53, 603 N.E.2d 508, 512 (1992).
In this case, the trial court submitted four claims of negligence for the jury's
consideration. The jury was instructed as follows:
"[The plaintiffs] claims *** that [Ford] was negligent in one or more of the following
21
respects:
Equipping the 1993 Lincoln Town Car with a vertical-behind-the-axle fuel
tank without adding shields or guards; or
Failing to locate the fuel tank above the axle or forward of the rear axle; or
Failing to warn of the risk of trunk contents puncturing the fuel tank; or
Failing to inform of the existence of the Trunk Pack and/or Trunk Pack
Recommendations."
The jury entered a general verdict for the plaintiffs. Neither party submitted special
interrogatories designed to determine upon which claim or claims of negligence the jury
based its verdict. W e will first examine Ford's argument that the first three claims of
negligence should not have been submitted to the jury. The fourth claim requires a separate
analysis.
1.
Claims of Negligent Location of Fuel Tank, Failure to Guard, and Failure to Warn
Ford first argues that the plaintiffs failed to establish that it breached any recognized
standard of care in the design of the fuel tank system in the 1993 Lincoln Town Car. As a
result, Ford concludes that the trial court erred in submitting the plaintiffs' claims that Ford
was negligent in locating the fuel tank, in failing to include guards, and in failing to warn that
the fuel tank could be breached by trunk contents. Ford argues that the plaintiffs "made no
attempt" to show that the location of the fuel tank behind and not above or forward of the
rear axle "violated any standard of care recognized in the industry or by any governmental
agency" and that the evidence was "uncontroverted that Ford complied with applicable
industry and governmental standards of care." In support of this argument, Ford cites Blue
v. Environmental Engineering, Inc., 215 Ill. 2d 78, 828 N.E.2d 1128 (2005).
In Blue, the plaintiff was injured when he used his foot to push a box into a
22
commercial trash compactor while it was running. Blue, 215 Ill. 2d at 83, 828 N.E.2d at
1134. A consulting engineer testified for the plaintiff that the machine could have been made
safe by incorporating certain safety features that were technologically available when the
machine was manufactured, but he offered no testimony about the industry standard. Blue,
215 Ill. 2d at 83-84, 828 N.E.2d at 1134. The majority opinion in Blue noted that a product
suffers from a design defect when it "conforms to the intended design but the intended design
itself, or its sale without adequate instructions or warnings, renders the product not
reasonably safe." Blue, 215 Ill. 2d at 89-90, 828 N.E.2d at 1137 (citing Restatement (Third)
of Torts: Products Liability §1, Comment a, at 6 (1998)). In Blue, the court cited with
approval the appellate court opinions in Baltus v. Weaver Division of Kidde & Co., 199 Ill.
App. 3d 821, 557 N.E.2d 580 (1990), and Carrizales v. Rheem Manufacturing Co., 226 Ill.
App. 3d 20, 589 N.E.2d 569 (1991), and stated as follows:
"[A] plaintiff raising a negligence claim must do more than simply allege a better
design for the product; he must plead and prove evidence of a standard of care by
which to measure a defendant's design and establish a deviation from that standard.
[Citations.] Thus, to establish a negligence claim for a defective design of a product,
a plaintiff must prove that either (1) the defendant deviated from the standard of care
that other manufacturers in the industry followed at the time the product was
designed[] or (2) that [sic] the defendant knew or should have known, in the exercise
of ordinary care, that the product was unreasonably dangerous and defendant failed
to warn of its dangerous propensity." Blue, 215 Ill. 2d at 96, 828 N.E.2d at 1141.
In dicta, the Blue majority opinion noted that since the plaintiff offered no evidence of an
industry standard or its breach, the plaintiff likely failed to prove his negligent-product-
design claim, although that issue was not raised by the defendant. Blue, 215 Ill. 2d at 100,
828 N.E.2d at 1143.
23
We note that the precedential effect of Blue has been called into question. The Blue
court described the issue before it as whether "the risk-utility analysis normally used in strict
products liability cases is applicable to defective product design cases involving only a
negligence theory of recovery." Blue, 215 Ill. 2d at 81, 828 N.E.2d at 1133. Based upon the
court's analysis of Baltus and Carrizales, that question was answered in the negative. Blue,
215 Ill. 2d at 97, 828 N.E.2d at 1142. In Calles, however, the supreme court found that the
appellate court erred in following the holding in Blue that the risk-utility test does not apply
to negligent-product-design claims. Calles, 224 Ill. 2d at 269-70, 864 N.E.2d at 263. As the
court noted:
"There was no majority opinion in Blue holding that the risk-utility test was
not applicable to negligent-product-design cases. Rather, as Justice Freeman pointed
out, only three Justices (Thomas, Garman, and Kilbride) concurred in this conclusion.
[Citation.] As such, the conclusion that the risk-utility test is not applicable in
negligent-product-design cases is not binding precedent. Accordingly, we conclude
that the appellate court erred in reversing summary judgment based on Blue and we
must review anew the trial court's order that Scripto owed no duty, nor breached any
duty owed." Calles, 224 Ill. 2d at 269-70, 864 N.E.2d at 263.
The court in Calles then proceeded to analyze the plaintiff's negligence claim without
reference to the Blue court's requirement that the plaintiff establish a standard of care in the
industry and a deviation from that standard. Rather, the court in Calles stated as follows:
"The crucial question in a negligent-design case is whether the manufacturer
exercised reasonable care in the design of the product. [Citations.]
In determining whether the manufacturer's conduct was reasonable, the
question is 'whether in the exercise of ordinary care the manufacturer should have
foreseen that the design would be hazardous to someone.' [Citations.] To show that
24
the manufacturer acted unreasonably based on the foreseeability of harm, the plaintiff
must show the manufacturer knew or should have known of the risk posed by the
product design at the time of manufacture." Calles, 224 Ill. 2d at 270-71, 864 N.E.2d
at 264.
Since we believe that the plaintiffs in this case produced sufficient evidence for this case to
be submitted to the jury under either Blue or Calles, the outcome in this case is not affected
by these differences.
In Baltus, a mechanic, who was injured when a transmission he was working on
slipped off a transmission jack and injured his hand, sued the manufacturer of the
transmission jack on a negligent-design theory. Baltus, 199 Ill. App. 3d at 824, 557 N.E.2d
at 582. The plaintiff in Baltus alleged generally that the manufacturer negligently failed to
design the transmission jack with appropriate safety guards and safety devices, but he had
no expert testimony to support his claims. Baltus, 199 Ill. App. 3d at 824-25, 557 N.E.2d
at 582. The manufacturer presented the testimony of a registered professional engineer that
the transmission jack was in a reasonably safe condition when it left the manufacturer's
control and that it was manufactured and designed in a reasonably safe manner. Baltus, 199
Ill. App. 3d at 825, 557 N.E.2d at 583. In affirming the circuit court's grant of a summary
judgment to the defendant, the Baltus court compared negligent-product-design cases to
medical malpractice cases and held that these cases generally require both expert testimony
and proof of a standard of care against which the manufacturer's design can be judged.
Baltus, 199 Ill. App. 3d at 836, 557 N.E.2d at 589. Because the plaintiff produced no
evidence of reasonable and feasible alternative designs in the industry and because his claim
of negligent design was based solely upon his opinion, the evidentiary basis of his claim was
insufficient to withstand a summary judgment. Baltus, 199 Ill. App. 3d at 829-30, 557
N.E.2d at 585.
25
In Carrizales, the plaintiff was injured "when flammable vapors from his gasoline-
soaked clothing were ignited by the flame of a gas-fired hot water heater." Carrizales, 226
Ill. App. 3d at 23, 589 N.E.2d at 571-72. The plaintiff's negligent-product-design claim was
dismissed by the trial court. Carrizales, 226 Ill. App. 3d at 23, 589 N.E.2d at 572. On
appeal, the court reversed the dismissal of the plaintiff's failure-to-warn claim, but it affirmed
the dismissal of the negligent-product-design claim, stating as follows:
"Plaintiff in this case failed to plead facts alleging that other manufacturers
designed heaters with any of the alternative safety features or designs that plaintiff set
out in his complaint. Because plaintiff does not establish a standard of care by which
to measure defendant's design, it cannot be determined by the pleadings whether
defendant negligently manufactured a defective product because it did not conform
to such a standard. In a complex products liability case such as this, we may not find
defendant negligently designed the heater by simply relying on plaintiff's opinion."
Carrizales, 226 Ill. App. 3d at 37, 589 N.E.2d at 581.
Ford asserts that plaintiffs failed to prove a standard of care and a deviation from that
standard. We disagree. This is not a case like Blue, Baltus, or Carrizales where the plaintiff
failed to present expert testimony or any evidence of feasible alternative designs used by
other manufacturers in the industry. Here, the plaintiffs presented ample evidence of a
standard of care to support their negligent-product-design claims.
The plaintiffs' expert, Mark Arndt, and virtually every engineer who testified for Ford
agreed to the general engineering standard of care in the design of complex products, and
each witness stated that standard in nearly identical terms. Once a design engineer identifies
a potential hazard in a product, he is obligated to attempt to design the hazard out of the
product. If he is unable to do so, he should design a shield or guard to eliminate the hazard.
If that is impossible, he should warn the consumer about the hazard. Not only did all the
26
engineers who testified on the subject agree that these are the obligations of the design
engineer but the evidence revealed that Ford specifically taught these principles to its own
design engineers. Proof of this general engineering standard alone has been held sufficient.
See Sobczak v. General Motors Corp., 373 Ill. App. 3d 910, 918, 924, 871 N.E.2d 82, 90,
94-95 (2007) (the appellate court reversed the finding of the trial court that the plaintiff had
failed to prove a standard of care, where the plaintiff's expert testified that the standard of
care within the engineering industry is that " 'when you identify a potential hazard that
affects the safety to the passengers, you need to guard against that hazard and prevent it from
causing some risk or danger to the occupants of the vehicle' ").
In this case, however, the plaintiffs' proof goes much further. The plaintiffs' expert,
Mark Arndt, testified that, at the time the 1993 Lincoln Town Car was manufactured, other
automobile manufacturers were producing automobiles with the fuel tank located forward
of the axle. Arndt expressed the opinion that Ford was negligent in the design of the 1993
Lincoln Town Car in that, at the time it was produced, a safer and more practical location
for the fuel tank would have been forward of the axle. Arndt further opined that if Ford
chose to locate the fuel tank aft of the axle, it should have designed guards or shields which
would have protected the tank from being punctured by component parts of the vehicle and
trunk contents and which would have required users of the vehicle to align trunk contents
laterally. Specifically, feasible shield designs suggested by Arndt included the very designs
Ford adopted in its Upgrade Kit and Trunk Pack in response to concerns by police agencies
that officers were being injured and killed when trunk contents punctured fuel tanks in
Panther platform police vehicles. Finally, it was Arndt's opinion that Ford should have
warned users of the danger of objects in the trunk puncturing the fuel tank. Thus, unlike
Blue, Baltus, or Carrizales, the plaintiffs in this case presented expert testimony that the
product was defective and evidence of an alternative product design in existence in the
27
industry.
Further, the plaintiffs proved that, as early as the 1960s, Ford's own engineers were
aware of the potential dangers of an aft-of-the-axle fuel tank location, including the danger
of trunk contents puncturing the tank in a collision. Ford's engineers recommended at that
time that future automobiles be designed with the tank located above the axle. Ford's
witnesses admitted that, beginning in 1981 w ith the design of the Ford Escort, every new
passenger car designed by Ford has been designed with the fuel tank located forward of the
axle. The plaintiffs presented evidence that by 1991 a majority of new passenger cars
manufactured had fuel tanks located forward of the axle, and that, at the time of the trial, the
Panther platform and the Mustang were the only types of vehicles Ford still manufactured
with an aft-of-the-axle fuel tank. Thus, the plaintiffs not only presented evidence of feasible
alternative designs existing in the industry but also presented evidence of a clear trend in the
industry, including at Ford, to eliminate the aft-of-the-axle fuel tank design.
Finally, we note that it was Ford's own instruction that was given to the jury on
negligence and the standard of care. That instruction provided as follows:
"When I use the word 'negligence' in these instructions, I mean the failure to
do something which a reasonably careful manufacturer would do, or the doing of
something which a reasonably careful manufacturer would not do, under
circumstances similar to those shown by the evidence. The law does not say how a
reasonably careful manufacturer would act under those circumstances. That is for
you to decide.
To establish a negligence claim for a defective design of a product, a plaintiff
must prove that the defendant deviated from its own standard or from the standard of
care in the industry when the product was designed. That means it was the duty of
the defendant to use ordinary care for the safety of plaintiffs with respect to the
28
design of the 1993 Lincoln Town Car.
When I use the words 'ordinary care', I mean the care a reasonably careful
manufacturer would use under circumstances similar to those shown by the evidence.
The law does not say how a reasonably careful manufacturer would act under those
circumstances. That is for you to decide." (Emphasis added.)
Thus, the jury was instructed, at Ford's request, that it is sufficient proof of negligence if the
defendant deviated from its own standard of care. The evidence was clear at the trial that
Ford's preferred design after 1981 was for the fuel tank to be located forward of the axle.
Ford can hardly complain if the jury was instructed, at its request, that it was sufficient for
the plaintiffs to prove that Ford deviated from its own standard of care in the design of the
1993 Lincoln Town Car.
We believe that the plaintiffs presented sufficient evidence on the standard of care to
justify the submission of their first three claims of negligence to the jury. By far, the primary
focus of the evidence in this case was upon the issue of the appropriate location of the fuel
tank. The plaintiffs presented extensive evidence of alternative fuel tank locations
recognized and used in the automobile industry, including at Ford. The evidence revealed
that Ford's engineers were well aware of the danger of an aft-of-the-axle fuel tank being
punctured in a rear-end collision, including by trunk contents, long before the manufacture
of the 1993 Lincoln Town Car. The plaintiffs alleged that Ford should have either moved
the fuel tank to a safer location or provided a guard or shield to prevent a puncture of the fuel
tank by component parts of the vehicle or trunk contents or warned consumers about the
danger of trunk contents puncturing the fuel tank. There was ample evidence on the standard
of care to justify the submission of these claims to the jury, and the trial court did not err in
denying Ford's motion for a judgment notwithstanding the verdict on that basis.
We note that Ford also argues that the plaintiffs failed to offer any evidence on the
29
issue of proximate cause with respect to the failure-to-guard and failure-to-warn claims. This
argument is without merit. Proximate cause is generally a fact question for the jury to
determine. Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 57, 669 N.E.2d 608, 612 (1996).
Evidence presented by the plaintiffs revealed that Ford conducted crash testing of Panther
vehicles at 75 miles per hour after the installation of the guards developed for police
vehicles, with no penetration of the fuel tank. This evidence alone is sufficient to create a
fact question on the issue of whether the failure to provide guards for the fuel tank
proximately caused the Jablonskis' injuries. Likewise, there was ample evidence that loading
tools and other items into the trunk in a lateral position reduces the likelihood of those items
puncturing the fuel tank in a high-speed rear-end collision. No warning to that effect was
given, and we believe a fact question existed about whether that failure to warn was a
proximate cause of the Jablonskis' injuries.
We have carefully reviewed the record in this case, and we believe that the plaintiffs'
claims of negligence based upon the location of the fuel tank, the failure to guard the fuel
tank, and the failure to warn of the danger of trunk contents penetrating the fuel tank were
properly submitted to the jury. The plaintiffs supported those claims with evidence from
which reasonable jurors could conclude that Ford was negligent. Likewise, Ford defended
those claims with the testimony of experts that the fuel system in the 1993 Lincoln Town Car
was not defective, that it was not negligently designed, and that it met all the industry and
government safety standards. The jury heard conflicting evidence and determined the facts
based upon that evidence.
2.
Failure to Inform of Trunk Pack and Trunk Pack Recommendations Claim
We next examine separately the plaintiffs' fourth claim of negligence that was
submitted to the jury. That claim alleged that Ford was negligent in "[f]ailing to inform of
30
the existence of the Trunk Pack and/or Trunk Pack Recommendations." Ford attacks the
submission of this claim to the jury on several fronts. First, Ford argues that there is no
postsale duty to warn in Illinois and that, since the evidence is clear that the Trunk Pack and
Trunk Pack Recommendations did not exist until long after the manufacture of the 1993
Lincoln Town Car, the trial court submitted a claim which is not recognized under Illinois
law. Second, Ford argues that no postsale-duty-to-warn claim was pleaded until after the
trial and that it was prejudiced by the allowance of late amendments to include this claim.
Finally, Ford argues that even if this claim was recognized under Illinois law, it should not
have been submitted to the jury because the plaintiffs failed to prove that Ford breached a
recognized standard of care or that the postsale failure to warn caused their injuries. Ford
asserts that the submission of this claim entitles it to a new trial.
The plaintiffs counter that any error in submitting this claim was cured by the entry
of a general verdict. The plaintiffs argue, however, that the submission of this claim was not
error in that, under Illinois law, a manufacturer who has a duty to warn at the time a product
leaves its control has a continuing duty to warn of that defect. The plaintiffs further assert
that Ford was well aware, in advance of the trial, of the plaintiffs' claims based upon Ford's
failure to warn consumers about the Trunk Pack and Trunk Pack Recommendations and
cannot claim surprise and prejudice in the submission of this claim. Finally, the plaintiffs
argue that sufficient evidence was presented for the submission of this claim to the jury.
a.
General Verdict
We begin our analysis of this issue by examining whether the return of a general
verdict cures any error in the submission of the fourth claim. The plaintiffs claim that
section 2-1201(d) of the Code of Civil Procedure (735 ILCS 5/2-1201(d) (West 2004))
governs this issue. That section provides as follows:
31
"(d) If several grounds of recovery are pleaded in support of the same claim,
whether in the same or different counts, an entire verdict rendered for that claim shall
not be set aside or reversed for the reason that any ground is defective, if one or more
of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or
reversed for the reason that the evidence in support of any ground is insufficient to
sustain a recovery thereon, unless before the case was submitted to the jury a motion
was made to withdraw that ground from the jury on account of insufficient evidence
and it appears that the denial of the motion was prejudicial." 735 ILCS 5/2-1201(d)
(West 2004).
The plaintiffs focus upon the first portion of the statute providing that a general verdict shall
not be set aside or reversed if any one of several grounds is sufficient to sustain the verdict.
The plaintiffs argue that their continuing-duty-to-warn claim was properly presented to the
jury but that even if the trial court erred in submitting that claim, any error was cured by the
entry of a general verdict, since the plaintiffs' other three claims of negligence were properly
submitted and it is impossible to determine upon which of the claims the jury based its
verdict. Ford focuses upon the latter part of the statute, points out that it did request that all
four claims of negligence be withdrawn from the jury, and argues that even if the other three
claims of negligence were properly submitted to the jury, the submission of the plaintiffs'
"unsupported, unpleaded[,] and unrecognized" postsale-duty-to-warn claim was prejudicial,
entitling Ford to a new trial. We agree with the plaintiffs.
It has long been the rule in Illinois that where there is a general verdict and several
claims are presented, the verdict will be upheld against a challenge that a claim is defective,
if there is sufficient evidence for any one or more claims, and the defendant cannot claim
prejudice if he failed to request separate verdicts or special interrogatories to determine upon
which claims the jury found for the plaintiff. Moore v. Jewel Tea Co., 46 Ill. 2d 288, 294,
32
263 N.E.2d 103, 106 (1970) ("It is settled law that where several causes of actions are
charged and a general verdict results, the verdict will be sustained if there are one or more
good causes of action or counts to support it," and the defendants, having failed "to ascertain
upon which count or counts the jury returned its verdicts *** by submitting a separate form
of verdict as to each count" "cannot complain or seek to take advantage of their failure");
Witherell v. Weimer, 118 Ill. 2d 321, 329, 515 N.E.2d 68, 72 (1987) ("When there is a
general verdict and more than one theory is presented, the verdict will be upheld if there was
sufficient evidence to sustain either theory, and the defendant, having failed to request
special interrogatories, cannot complain"); Dillon v. Evanston Hospital, 199 Ill. 2d 483, 492,
771 N.E.2d 357, 363 (2002) (in a medical malpractice action where the defendants claimed
prejudice in the untimely assertion of an additional claim of negligence that was submitted
to the jury, the supreme court refused to set aside a general verdict, which was supported by
sufficient evidence on other theories, where the defendants failed to request special
interrogatories and there was therefore "no way of knowing on what theory the jury found
defendants negligent").
The rule sustaining a general verdict if it is supported by one or more good theories
has been applied equally to defense verdicts. Krklus v. Stanley, 359 Ill. App. 3d 471, 479,
833 N.E.2d 952, 959-60 (2005) (in a medical malpractice action where the plaintiff
complained that the issue of contributory negligence should not have been submitted to the
jury, a general verdict for the defendants was sustained where the verdict could be based
either on a finding that the defendants were not negligent or on a finding that the plaintiff's
contributory negligence was more than 50% of the total fault and where the plaintiff failed
to submit special interrogatories to determine the basis of the jury's findings); Orzel v.
Szewczyk, 391 Ill. App. 3d 283, 290, 908 N.E.2d 569, 575 (2009) (in a legal malpractice
action, a general verdict for the defendants was sustained against a claim of prejudice in
33
submitting a claim of contributory negligence where the verdict could have been based upon
a finding that the plaintiff failed to prove negligence and where the plaintiff did not submit
special interrogatories).
The court in Foley v. Fletcher, 361 Ill. App. 3d 39, 836 N.E.2d 667 (2005), provided
an excellent explanation of the general-verdict rule. Foley was a medical malpractice case
in which the jury was instructed upon four possible theories of negligence. The jury returned
a general verdict for the plaintiffs, and neither side requested special interrogatories to
determine upon which theories the jury found the defendants negligent. The defendants
claimed prejudice in the submission of the fourth theory, arguing that it was based upon an
expert opinion allowed in violation of Supreme Court Rule 213 (210 Ill. 2d R. 213). Because
of its application to this case, we quote extensively from the Foley opinion:
"Plaintiffs claim there was enough evidence to support the jury's verdict under
theories, 'a,' 'b[,'] and 'c,' so even if theory 'd' was tainted by a Rule 213 violation,
reversal would not be necessary. Plaintiffs contend that one defective theory of
liability will not disturb a general verdict where there was sufficient evidence to
sustain the other theories. ***
***
Defendants contend section 2-1201(d) notwithstanding, the entire verdict must
be set aside here because the facts conform to an exception to the general rule that
one defective ground is not enough to defeat a verdict. Defendants focus on the
clause, 'unless before the case was submitted to the jury a motion was made to
withdraw that ground from the jury on account of insufficient evidence and it appears
that the denial of the motion was prejudicial.' [Citation.] Defendants allege that the
criteria in the exception were met because: (1) defendants moved to withdraw theory
'd' before the case was submitted to the jury; (2) their basis for the mo tion was [an
34
opinion witness's] improperly admitted and therefore insufficient evidence; (3) the
trial court then denied their motion; and (4) the denial resulted in prejudice to
defendants.
But defendants are unable to show prejudice because they cannot show that the
jury based its verdict on the instruction at issue. Neither side requested special
interrogatories under section 2-1108 of the Code. [Citation.] A defendant cannot
expect recourse where a plaintiff presents more than one theory of her case, the
defendant does not request special interrogatories[,] and the jury returns a general
verdict. [Citations.] Nor can it be presumed that reversal is warranted because the
jury was misled by the court's instruction unless there is some indication that the jury
was improperly influenced. [Citation.] Without the jury's answer to a special
interrogatory on theory 'd,' we could not conclude that defendants were prejudiced
even if [the opinion witness's] testimony was admitted in error." Foley, 361 Ill. App.
3d at 49-50, 836 N.E.2d at 676.
The pertinent facts in this case are almost identical to those in Foley. The plaintiffs
presented four theories of negligence. We have already determined that the first three
theories were properly submitted; therefore, only the fourth theory remains in question. Ford
moved to withdraw the fourth theory before the case was submitted to the jury, arguing that
the evidence supporting that theory was improperly admitted. The trial court denied Ford's
motion and submitted the fourth theory. Ford now claims prejudice resulting from the
submission of the fourth theory, entitling it to a new trial.
As in Foley, Ford cannot claim prejudice, because it failed to submit special
interrogatories from which the basis of the jury's finding of negligence could be determined. 2
2
Although Ford appeals the trial court's refusal to submit certain special interrogatories
that were tendered, and those arguments will be determined later in this opinion, those
35
Since Ford submitted no special interrogatories to determine whether the jury relied upon the
plaintiffs' fourth theory of negligence–"[f]ailing to inform of the existence of the Trunk Pack
and/or Trunk Pack Recommendations," we have no way of determining whether that theory
played any role in the jury's decision. On the record before us, the jury might have based its
decision entirely upon one or more of the plaintiffs' other claims of negligence, without
considering the fourth claim at all. Since Ford failed to submit special interrogatories to
determine this issue, it cannot now claim prejudice. Consequently, even if the plaintiffs'
fourth claim of negligence was improperly submitted and was based upon inadmissible
evidence, we must sustain the general verdict.
b.
Continuing Duty to W arn
Regardless of the foregoing, we find no error in the submission of the plaintiffs' fourth
claim of negligence. "The decision to give or deny an instruction is within the trial court's
discretion. The standard for determining an abuse of discretion is whether, taken as a whole,
the instructions are sufficiently clear so as not to mislead and whether they fairly and
correctly state the law." Dillon, 199 Ill. 2d at 505, 771 N.E.2d at 371. We do not believe
that the trial court abused its discretion in instructing the jury on the plaintiffs' fourth claim
of negligence.
The parties correctly discuss this issue under a failure-to-warn analysis. The
instruction in question only asserts that Ford was negligent in "[f]ailing to inform" about the
"Trunk Pack and/or Trunk Pack Recommendations." No claim is made that Ford had a duty
to retrofit the Jablonskis' 1993 Lincoln Town Car with the Trunk Pack. Ford argues that
there is no postsale duty to warn under Illinois law. Although the plaintiffs urge us to adopt
special interrogatories were not designed to determine upon which claims the jury based its
verdict.
36
that rule, they agree that Illinois law does not generally impose upon a manufacturer a
postsale duty to warn of hazards first discovered after a product has left its control. They
argue, however, that if a manufacturer knew or should have known of the hazard at the time
of manufacture, so that a duty to warn existed when the product left its control, that duty to
warn is continuous. Thus, the plaintiffs argue, if a manufacturer later develops safety
features or safety information for the purpose of protecting consumers from a hazard of
which it had knowledge at the time the product was originally sold, it has a duty to use
reasonable care to inform users of the product of the existence of those safety features and
information. We agree with the plaintiffs.
First, it is incorrect to state that no Illinois case has imposed a postsale duty to warn
of hazards discovered after a product is sold, because that duty has been clearly imposed for
pharmaceutical products. A drug manufacturer has a " 'continuous duty *** to warn
physicians of the dangers incident to prescribing the drug, to keep abreast of scientific
developments touching upon the manufacturer's product[,] and to notify the medical
profession of any additional side effects discovered from its use.' " (Emphasis in original.)
Proctor v. Davis, 291 Ill. App. 3d 265, 278, 682 N.E.2d 1203, 1211 (1997) (quoting
Schenebeck v. Sterling Drug, Inc., 423 F.2d 919, 922 (8th Cir. 1970)). The need to impose
a continuing duty to warn upon a pharmaceutical manufacturer is evident. Illinois cases
involving other products and analyzing whether a manufacturer has a postsale duty to warn
decline to impose that duty, unless the manufacturer knew or should have known of the
hazard at the time the product was manufactured.
Likewise, the cases cited by Ford decline to impose a postsale duty to warn of a
hazard discovered after manufacture but suggest that a continuous duty to warn exists if the
manufacturer knew or should have known of the hazard when the product left its control.
In Collins v. Hyster Co., 174 Ill. App. 3d 972, 529 N.E.2d 303 (1988), the plaintiff was
37
injured on a forklift. The trial court struck certain allegations of negligence based upon a
continuing duty to warn. The specific allegations are not detailed in the opinion. The court
stated as follows:
"[T]he trial court's ruling is correct in that we have not discovered any authority in
Illinois for extending the duty to warn beyond the time when the product left the
manufacturer's control unless Hyster knew or should have known at that time that the
product was defective. Here, there is no evidence that Hyster should have known the
product was defective at the time it left Hyster's control of which it would have had
a continuing duty to warn against in the event the hazard was discovered subsequent
to the time it left the manufacturer's control. Certainly the law does not contemplate
placing the onerous duty on manufacturers to subsequently warn all foreseeable users
of products based on increased design or manufacture expertise that was not present
at the time the product left its control." (Emphasis added.) Collins, 174 Ill. App. 3d
at 977, 529 N.E.2d at 306.
Thus, in Collins, the court declined to impose a postsale duty to warn, but that ruling was not
applied to circumstances in which the manufacturer knew that the product was defective
when it left its control.
In Kempes v. Dunlop Tire & Rubber Corp., 192 Ill. App. 3d 209, 548 N.E.2d 644
(1989), a child was injured when he cut into a golf ball and the paste center squirted into his
right eye. There was no evidence in the record from which it could be determined that the
manufacturer knew or should have known of the existence of that danger at the time the golf
ball was manufactured. The court stated, " '[T]o hold a manufacturer liable for failure to
know of a danger of which it would be impossible to know based on the present state of
human knowledge would make the manufacturer a virtual insurer of the product ***.' "
(Emphasis in original.) Kempes, 192 Ill. App. 3d at 218, 548 N.E.2d at 649 (quoting Woodill
38
v. Parke Davis & Co., 79 Ill. 2d 26, 37, 402 N.E.2d 194, 199 (1980)). Then the court simply
asserted that there is no duty to warn beyond the time a product leaves the manufacturer's
control " 'unless it knew or should have known at that time that the product was defective.' "
Kempes, 192 Ill. App. 3d at 218, 548 N.E.2d at 649 (quoting Collins, 174 Ill. App. 3d at 977,
529 N.E.2d at 306). Again, nothing in Kempes suggests that a postsale, continuing duty to
warn would not be imposed upon a manufacturer who knew or should have known of the
hazard when the product left its control.
Finally, in Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d
879, 707 N.E.2d 239 (1999), the plaintiff alleged that the plaintiff's decedent was injured and
died as a result of the negligent design of the seat assembly on a Farmall tractor
manufactured by the defendant. The plaintiff alleged, in part, that the defendant Navistar
International Transportation Corp. was negligent in failing to provide postsale warnings to
foreseeable users after learning of the hazard presented by the seat assembly and in failing
to retrofit the seat assembly postsale to eliminate the hazard. Those allegations were stricken
by the trial court, and a judgment was entered upon a jury verdict for the defendant.
The court in Modelski made a clear distinction between a duty to warn of hazards of
which the manufacturer had knowledge at the time the product was manufactured and those
of which there was no such knowledge. It is clear that it was the latter which was at issue
in Modelski, because the court described the claims of the parties as follows:
"In this case, Navistar argues that it was under no legally recognized duty to
warn foreseeable users of any dangers associated with the use of its Farmall Model
450 tractor of which it was not aware, nor should it have been, when the tractor left
its control. The plaintiff contends that the manufacturer of a product is under a
continuing duty to warn of hazards associated with the use of its products, even those
hazards discovered post[]sale." Modelski, 302 Ill. App. 3d at 887, 707 N.E.2d at 246.
39
On the precise question presented, the court declined to extend the duty to warn postsale to
hazards first discovered after the product left the manufacturer's control. With regard to
hazards of which the manufacturer knew or should have known at the time the product was
manufactured, however, the court held as follows:
"A manufacturer, reasonably aware of a dangerous propensity of its product, has a
duty to warn foreseeable users where there is unequal knowledge, actual or
constructive, and it knows or should know that harm might or could occur if no
warning is given. Failure to warn under such circumstances can expose the
manufacturer to liability for negligence. [Citation.] Manufacturers are charged with
the knowledge of experts. [Citation.] Given that presumed degree of knowledge, a
manufacturer's subjective understanding of the dangers associated with the use of its
products, while relevant, is not determinative of its obligation to warn. Rather, it is
sufficient to impose a duty to warn if an expert in the field would have known of the
product's dangerous propensity and foreseen injury in the absence of a warning.
Under such circumstance, the duty to warn may well be continuous." (Emphasis
added.) Modelski, 302 Ill. App. 3d at 887-88, 707 N.E.2d at 246.
As the above analysis indicates, the cases cited by Ford stand for the proposition that
a manufacturer has no duty in Illinois to provide a postsale warning when the manufacturer
had no reason to know of the hazard when the product left its control. The same cases,
however, impose a continuing duty to warn of hazards of which a manufacturer knew or
should have known at the time the product was manufactured. We believe that this is a
commonsense rule. It would make no sense for a duty to warn, which already exists, to
disappear after a hazardous product leaves the control of the manufacturer. Sound public
policy requires that a manufacturer be held to a continuing duty to warn of a hazard and to
notify consumers of its product if the hazard can be avoided. We hold that a manufacturer
40
has a continuing duty to warn of a hazard of which it had a duty to warn at the time the
product was manufactured, including using reasonable care to inform foreseeable users of
product developments designed to eliminate the hazard.
The plaintiffs urge us to go further and adopt a postsale duty to warn of hazards first
discovered after a product leaves the control of a manufacturer. We note the growing list of
jurisdictions which have recognized that duty.3 We are specifically urged to adopt section
10 of the Restatement (Third) of Torts: Products Liability (Restatement (Third) of Torts:
Products Liability §10 (1998)).4 However, in order to decide the issues in this case, we do
3
See, e.g., Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959);
Downing v. Overhead Door Corp., 707 P.2d 1027 (Colo. App. 1985); Hodder v. Goodyear
Tire & Rubber Co., 426 N.W.2d 826 (Minn. 1988); Smith v. Selco Products, Inc., 96 N.C.
App. 151, 385 S.E.2d 173 (1989); Patton v. Hutchinson Wil-Rich Manufacturing Co., 253
Kan. 741, 861 P.2d 1299 (1993); Dixon v. Jacobsen Manufacturing Co., 270 N.J. Super.
569, 637 A.2d 915 (1994); Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401
(N.D. 1994); United States Gypsum Co. v. Mayor & City Council of Baltimore, 336 Md. 145,
647 A.2d 405 (1994); Novak v. Navistar International Transportation Corp., 46 F.3d 844
(8th Cir. 1995); Liriano v. Hobart Corp., 92 N.Y.2d 232, 700 N.E.2d 303 (1998); Lovick v.
Wil-Rich, 588 N.W .2d 688 (Iowa 1999); Watkins v. Ford Motor Co., 190 F.3d 1213 (11th
Cir. 1999); Lewis v. Ariens Co., 434 Mass. 643, 751 N.E.2d 862 (2001); Couch v. Astec
Industries, Inc., 132 N.M. 631, 53 P.3d 398 (2002); Brown v. Crown Equipment Corp., 2008
ME 186, 960 A.2d 1188 (2008).
4
Section 10 of Restatement (Third) of Torts: Products Liability provides as follows:
"(a) One engaged in the business of selling or otherwise distributing products
is subject to liability for harm to persons or property caused by the seller's failure to
provide a warning after the time of sale or distribution of a product if a reasonable
41
not need to determine whether Illinois should adopt a postsale duty to warn of hazards not
discovered until after a product leaves the manufacturer's control. Therefore, we offer no
opinion on that issue.
Here, Ford was well aware of the danger of fuel tanks being punctured by trunk
contents in rear-end collisions long before the Jablonskis' 1993 Lincoln Town Car was
manufactured. The evidence disclosed that, as early as 1970, Ford's own design engineers
were considering the danger from trunk contents in determining the fuel tank location in its
automobiles. This hazard was not just foreseeable by Ford; it was, in fact, foreseen. In
addition to having actual knowledge of the hazard, Ford was aware that there were a
substantial number of accidents before the manufacture of the Jablonskis' automobile in
which the fuel tank was ruptured in Ford vehicles. The plaintiffs introduced into evidence
a list of 416 such accidents, compiled by Ford in 1992, which revealed 378 fatal burn
injuries. Thus, at the time the Jablonski vehicle left Ford's control, Ford knew that serious
person in the seller's position would provide such a warning.
(b) A reasonable person in the seller's position would provide a warning after
the time of sale if:
(1) the seller knows or reasonably should know that the product poses
a substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and
can reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those
to whom a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of
providing a warning." Restatement (Third) of Torts: Products Liability §10
(1998).
42
and fatal burn injuries were resulting from fuel tank ruptures in automobile collisions and
that the trunk's contents could potentially cause such a rupture. As we have already
determined, this evidence was sufficient to submit to the jury the issue of whether Ford was
negligent in "[f]ailing to warn of the risk of trunk contents puncturing the fuel tank."
Ford's obligation to warn of this hazard was a continuing duty, and after the
manufacture of the Jablonski automobile, Ford continued to gain information from which it
could reasonably conclude that a warning was necessary. Between 1993 and 2003 Ford
became aware of rear-end collisions involving Panther platform Police Interceptors in which
police officers were killed or seriously injured when the fuel tanks were punctured by trunk
contents or component parts of the automobile. Those accidents prompted complaints by
police agencies and an NHTSA investigation. As a consequence, in 2001, Ford issued a TSB
to all the Ford dealers to make modifications to Panther vehicles to avoid the puncture of the
fuel tanks by component parts. In 2002, as a result of negotiations with the Arizona Attorney
General, Ford developed an Upgrade Kit, consisting of shields to prevent punctures by
component parts, and a Trunk Pack, which was a drop-in trunk liner designed to prevent fuel
tank rupture by trunk contents, to be used in Panther platform Police Interceptor vehicles.
In addition, Trunk Packing Considerations were developed that instructed police officers on
ways to pack equipment in the trunk, with or without the Trunk Pack, in order to reduce the
danger of trunk contents rupturing the fuel tank in high-speed rear-end collisions. Ford
determined that the hazard of fuel tank ruptures required that it give postsale warnings to all
the registered owners of police vehicles, all the United States Ford, Lincoln and Mercury
dealers, and 32,000 government fleet customers.
We believe that the circumstances of this case warranted instructing the jury upon
Ford's continuing duty to warn of the danger of trunk contents puncturing the fuel tank.
Since Ford specifically developed the Trunk Pack and Trunk Packing Considerations for the
43
purpose of reducing or eliminating that danger, we believe that it was appropriate to allow
the jury to determine whether Ford was negligent in failing to inform the plaintiffs of their
existence. Further, the trial court did not abuse its discretion in the manner in which it
instructed the jury on this issue.
First, the trial court gave Ford's instructions on its duty to warn. Those instructions
stated as follows:
"To establish a negligence claim for a failure to warn, the plaintiff must prove
that the defendant knew or should have known, in the exercise of ordinary care, that
the product was unreasonably dangerous and defendant failed to warn of its
dangerous propensity."
"The manufacturer has a duty to adequately warn the consumer about the
dangers of its product of which it knew, or, in the exercise of ordinary care, should
have known, at the time the product left the manufacturer's control."
Ford's instructions accurately stated the law on Ford's duty to warn based upon what it knew
or should have known when the 1993 Lincoln Town Car left Ford's control, but they do not
limit the jury to warnings given at that time.
The trial court also gave two instructions submitted by the plaintiffs to guide the jury
in determining if Ford was negligent in failing to give a postsale warning. These instructions
must be read in conjunction with Ford's instructions on the duty to warn. The first
instruction was patterned after Section 10 of Restatement (Third) of Torts: Products
Liability, and it instructed the jury as follows:
"One engaged in the business of selling or otherwise distributing products is
subject to liability for harm to persons caused by the seller's failure to provide a
warning after the time of sale or distribution of a product if a reasonably careful
person in the seller's position would provide such a warning under the circumstances.
44
A reasonably careful person in the seller's position would provide a warning
after the time of sale if:
The seller knows or reasonably should know that the product poses a
substantial risk of harm to persons; and
Those to whom a warning might be provided can be identified and can
reasonably be assumed to be unaware of the risk of harm; and
A warning can be effectively communicated to and acted on by those
to whom a warning might be provided; and
The risk of harm is sufficiently great to justify the burden of providing
a warning.
Whether or not Ford Motor Company acted as a reasonably careful person
under the circumstances of this case is for you to decide."
The second instruction submitted by the plaintiffs was based upon a voluntary-undertaking
theory, and it stated as follows:
"A manufacturer who voluntarily undertakes to provide an after[-]the[-]sale
warning to some of its customers may be subject to liability if it does not warn other
customers.
Whether the manufacturer's conduct in warning some of its customers and not
others was reasonable under the circumstances is for you to decide."
None of the instructions given suggested that Ford was required to warn of hazards it should
not have discovered before the 1993 Lincoln Town Car left its control.
"In Illinois, the parties are entitled to have the jury instructed on the issues presented,
the principles of law to be applied, and the necessary facts to be proved to support its
verdict." Dillon, 199 Ill. 2d at 505, 771 N.E.2d at 371. There are no pattern jury instructions
describing the circumstances under which a manufacturer may be held liable for failing to
45
give a postsale warning. In situations where pattern instructions are inadequate and
additional instructions are appropriate, nonpattern instructions may be given so long as they
are "simple, brief, impartial, and nonargumentative." Magna Trust Co. v. Illinois Central
R.R. Co., 313 Ill. App. 3d 375, 388, 728 N.E.2d 797, 808 (2000); 177 Ill. 2d R. 239(a).
As we have already indicated, we believe that the evidence in this case was sufficient
to allow the jury to determine whether Ford was negligent in "[f]ailing to inform of the
existence of the Trunk Pack and/or Trunk Pack Recommendations." Under the facts in this
case, we believe that the instruction modeled after Section 10 of Restatement (Third) of
Torts: Products Liability, was appropriately given to guide the jury in making that
determination. Further, since the evidence revealed that Ford made a decision to give a
postsale warning to some of its customers, we believe that the voluntary-undertaking
instruction was appropriate, under the facts of this case, to guide the jury in determining
whether Ford was negligent in failing to warn its other customers. Taken as a whole, the
instructions were clear and fairly and accurately stated the law. Dillon, 199 Ill. 2d at 505,
771 N.E.2d at 371. Accordingly, we do not believe that the trial court erred in instructing
the jury on the issue of postsale warnings.
Ford also argues that it was prejudiced because the trial court allowed the plaintiffs
to plead their fourth allegation of negligence based upon a postsale failure to warn in an
amended complaint filed after the trial and for the purpose of conforming the pleadings to
the proof. Ford cannot claim surprise at the introduction of this evidence. The record
reflects that Ford was well aware of the evidence supporting the plaintiffs' postsale-warning
claim and filed pretrial motions seeking to exclude that evidence, which were denied. "A
pleading may be amended at any time, before or after judgment, to conform the pleadings
to the proofs ***." 735 ILCS 5/2-616(c) (West 2004). Section 2-616(c) of the Code of Civil
Procedure (735 ILCS 5/2-616(c) (West 2004)) should be liberally construed, and "[a]ny
46
doubt as to whether pleadings should be amended should be resolved in favor of the
amendment." Deming v. Montgomery, 180 Ill. App. 3d 527, 533, 536 N.E.2d 150, 154
(1989). We do not believe that the trial court abused its discretion in allowing the
amendment.
Finally, Ford argues that the evidence was insufficient to justify submitting the
plaintiffs' fourth claim of negligence to the jury. We see no reason to restate the evidence
in this regard. The Trunk Pack and Trunk Packing Considerations were specifically
developed by Ford to reduce the hazard of the trunk's contents puncturing the fuel tank in
Panther platform police vehicles. Ford makes no claim that the use of the Trunk Pack and
Trunk Packing Considerations would not perform the same function in other Panther
platform vehicles. Rather, Ford simply claims that police vehicles have a greater exposure
to the risk of high-speed rear-end collisions and that it was therefore not negligent for failing
to inform owners of civilian vehicles of the existence of the Trunk Pack and Trunk Packing
Considerations. After a careful review of the record in this case, we believe that the
questions of whether Ford was negligent in failing to warn of the danger of trunk contents
puncturing the fuel tank and whether it was negligent in failing to inform users of postsale
developments designed to reduce that hazard are questions peculiarly appropriate for a jury
to decide.
The plaintiffs and Ford were each allowed an adequate opportunity to present
evidence on the issues in this case. We find no error in the trial court's submission of the
plaintiffs' first three claims of negligence. Any one of those claims is sufficient to support
the general verdict in favor of the plaintiffs, and since Ford failed to submit special
interrogatories to determine upon which claims of negligence the jury's decision was based,
it cannot claim prejudice in the submission of the plaintiffs' fourth claim of negligence based
upon a continuing duty to warn. While we would sustain the general verdict even if the
47
continuing-duty-to-warn claim was submitted in error, under the peculiar facts of this case,
we find no error in the submission of that claim. Thus, the trial court did not err in denying
Ford's motion for a judgment notwithstanding the verdict or for a new trial based upon the
submission to the jury of the plaintiffs' four claims of negligence.
B.
Evidentiary Rulings
Ford raises three issues in which it claims that the trial court erred in ruling upon the
admission of evidence. Ford argues that it was error for the court to admit any evidence
about its preinjury, postsale design efforts to improve Panther platform Police Interceptors,
that it was error to admit the plaintiffs' exhibit listing 416 previous accidents as similar
incidents, and that the court erred in refusing to allow Ford to introduce evidence that the
1993 Lincoln Town Car complied with the version of FMVSS 301 scheduled to first apply
to 2006 model vehicles. "Evidentiary rulings are within the sound discretion of the trial
court and will be upheld absent an abuse of discretion that resulted in prejudice to the
objecting party." Stallings v. Black & Decker (U.S.), Inc., 342 Ill. App. 3d 676, 683, 796
N.E.2d 143, 149 (2003). "An abuse of discretion occurs when no reasonable person would
rule as the circuit court ruled." Aguirre v. City of Chicago, 382 Ill. App. 3d 89, 98, 887
N.E.2d 656, 663 (2008). With these principles in mind, we will consider each of Ford's
claims of error.
1.
Panther Platform Police Interceptor Evidence
Ford first challenges the trial court's rulings allowing testimony and exhibits
pertaining to its development of additional safety features for the Police Interceptor during
the 10-year period after the manufacture of the Jablonski vehicle, but before the accident.
Ford specifically argues that the court committed reversible error, requiring a new trial, by
48
allowing the introduction of evidence of the Upgrade Kit, the TSB that Ford sent to its
dealers, the Trunk Pack and Trunk Packing Considerations, and testimony about Ford's
activities to improve the safety of the Police Interceptor through the development of those
items. The basis of Ford's objection to this evidence is that it violates the rule against the
introduction of subsequent remedial measures.
As has been succinctly stated by the supreme court, "Evidence of post[]accident
remedial measures is not admissible to prove prior negligence." Herzog v. Lexington
Township, 167 Ill. 2d 288, 300, 657 N.E.2d 926, 932 (1995). The policy reasons for the rule
were described by the Herzog court as follows:
"Several considerations support this general rule. First, a strong public policy favors
encouraging improvements to enhance public safety. [Citation.] Second, subsequent
remedial measures are not considered sufficiently probative of prior negligence,
because later carefulness may simply be an attempt to exercise the highest standard
of care. [Citation.] Third is a general concern that a jury may view such conduct as
an admission of negligence." Herzog, 167 Ill. 2d at 300, 657 N.E.2d at 932.
However, the court further noted, "Although evidence of subsequent remedial measures is
not admissible to prove prior negligence, such evidence may be admissible for other
purposes." Herzog, 167 Ill. 2d at 300, 657 N.E.2d at 932. "Generally, evidence of
subsequent remedial measures is not admissible as proof of negligence, although it may be
introduced as to feasibility of design." Carrizales, 226 Ill. App. 3d at 40, 589 N.E.2d at 583.
"Evidence of the feasibility of an alternative design is relevant and material in an action
alleging an unreasonably dangerous product under both negligence and strict liability
theories." Stallings, 342 Ill. App. 3d at 684, 796 N.E.2d at 149.
Analyzing this issue as framed by Ford, we believe that the evidence to which Ford
objects falls within the alternative-feasible-design exception to the subsequent-remedial-
49
measures rule. It is clear from the evidence that the Upgrade Kit, the Trunk Pack, and the
Trunk Packing Considerations were developed by Ford for the purpose of reducing the risk
of the fuel tank being punctured by component parts and trunk contents in high-speed rear-
end collisions. This is the very hazard that the plaintiffs alleged was the cause of their
injuries. The plaintiffs' expert, Mark Arndt, testified that at the time the 1993 Lincoln Town
Car was manufactured, Ford should have located the fuel tank above or forward of the axle,
or it should have equipped the vehicle with shields like the Upgrade Kit and the Trunk Pack
and should have provided warnings similar to the Trunk Pack Considerations. Ford offered
no evidence that these designs were not feasible at the time the Jablonski vehicle left its
control. Further, the evidence revealed that, after the incorporation of these design changes,
the Police Interceptor passed a 75-mile-per-hour crash test. Thus, it seems clear that this
evidence was at least admissible to show that an alternative feasible design was available at
the time the 1993 Lincoln Town Car left Ford's control and that it could have prevented the
Jablonskis' injuries. On this basis alone, we believe that the trial court did not abuse its
discretion in allowing the introduction of this evidence. In order to complete our analysis
of the issue of Ford's continuing duty to warn, however, we will also consider the
admissibility of the evidence in support of that theory.
We first note that an analysis of the admissibility of the Police Interceptor evidence
does not fit squarely within the rule barring the admission of subsequent remedial measures.
That rule bars the admission of postaccident repairs or design changes that are often a direct
result of the accident at issue. Here, the design changes represented by the Upgrade Kit and
the Trunk Pack, and all the circumstances surrounding those changes, occurred before the
Jablonski accident.
The rule barring the admission of subsequent remedial measures is deeply embedded
in our jurisprudence. An examination of the historical basis of the rule is helpful to our
50
analysis. Early cases applying the rule barring the admission of subsequent remedial
measures simply held that the issue of negligence must be determined based upon what
occurred "before and at the time of the accident." Grubb v. Illinois Terminal Co., 366 Ill.
330, 341, 8 N.E.2d 934, 939 (1937) (in an action involving a railroad crossing accident
where the plaintiff sought to introduce evidence that the flasher signal was replaced after the
accident, the court held that "the question of negligence is to be determined only from what
occurred before and at the time of the accident, and evidence of repairs made after the
accident is not admissible"); Howe v. Medaris, 183 Ill. 288, 295, 55 N.E. 724, 727 (1899)
(in an action by an employee who was injured operating a machine at work who sought to
introduce evidence that the machine was repaired after the accident to show an implied
admission of negligence, the court held, "The rule in such cases is[,] that the question of
negligence should be determined only by what occurred before and at the time of the
accident, and evidence of repairs made after the accident is not admissible").
In Hodges v. Percival, 132 Ill. 53, 23 N.E. 423 (1890), the plaintiff was injured when
an elevator fell in a building owned by the defendant. The defendant claimed error in the
admission of testimony that an air-cushion was put in the elevator shaft after the accident.
The court found that the admission of this evidence was error, although it did not require a
reversal in that case. W e quote the supreme court's opinion at length, because its analysis
applies with equal force today:
"Evidence of precautions taken after an accident is apt to be interpreted by a
jury as an admission of negligence. The question of negligence should be determined
by what occurred before and at the time of the accident, and not by what is done after
it. New measures or new devices adopted after an accident do not necessarily imply
that all previous devices or measures were insufficient. A person operating a
passenger elevator is bound to avail himself of all new inventions and improvements
51
known to him, which will contribute materially to the safety of his passengers,
whenever the utility of such improvements has been thoroughly tested and
demonstrated, and their adoption is within his power, so as to be reasonably
practicable. For this reason it was proper to show that a valuable device for securing
safety was known to the defendant, and its use neglected by him, before the accident;
but it would seem unjust that he could not take additional precautions after the
accident without having his acts construed into an admission of prior negligence.
Persons[] to whose negligence accidents may be attributed[] will hesitate about
adopting such changes as will prevent the recurrence of similar accidents, if they are
thereby to be charged with an admission of their responsibility for the past. The
happening of an accident may inspire a party with greater diligence to prevent a
repetition of a similar occurrence, but the exercise of such increased diligence ought
not necessarily to be regarded as tantamount to a confession of past neglect."
Hodges, 132 Ill. at 56-57, 23 N.E. at 424.
Thus, the focus of concern is that a defendant not be punished for postaccident remedial
measures. The same concern does not apply to measures of which the defendant was aware
and could have implemented before the accident.
The precise issue before this court is not the admissibility of evidence of subsequent
remedial measures; rather, the issue is the admissibility of evidence of preinjury, postsale
design changes solely on the issue of a failure to warn of those changes. The only Illinois
negligent-product-design case to directly address this issue is Carrizales. In that case, the
plaintiff sought to introduce evidence, on the issue of negligence regarding warnings, that
after the manufacture of the water heater, but before the plaintiff's injury, the defendant
began putting warning labels on the heaters and developed an 18-inch stand as an option that
would allow purchasers to raise the pilot light above floor level. Carrizales, 226 Ill. App.
52
3d at 40, 589 N.E.2d at 583. The trial court granted the defendant's motion to exclude the
evidence, and the First District Appellate Court affirmed. The court analyzed the issue by
analogy to the rule barring evidence of subsequent remedial measures and held that the
policy reasons for barring postaccident remedial measures also applied to preinjury measures
to improve mass-produced items such as water heaters. In those cases, the court held,
"[A]llowing evidence of pre[]injury remedial measures would have a chilling effect on the
incentive to improve safety in such widely[]used products." Carrizales, 226 Ill. App. 3d at
41, 589 N.E.2d at 584. The reasoning of Carrizales has since been followed in strict product
liability cases in Smith v. Black & Decker (U.S.), Inc., 272 Ill. App. 3d 451, 457, 650 N.E.2d
1108, 1113 (1995), and Brown v. Ford Motor Co., 306 Ill. App. 3d 314, 318, 714 N.E.2d
556, 559 (1999). In each of those cases, the appellate court found that the trial court had not
abused its discretion in barring the admission of evidence of preinjury, postsale remedial
measures.
We do not believe that the trial court abused its discretion in admitting evidence of
Ford's preinjury, postsale safety improvements to the Panther platform Police Interceptor on
the issue of Ford's continuing duty to warn of a hazard that existed at the time of sale.
Accordingly, we decline to follow Carrizales and its progeny on this issue, because we do
not agree that the same policy considerations that bar the admission of postaccident remedial
measures apply equally to preinjury, postsale safety measures.
First, Hodges demonstrates that the rule barring postaccident remedial measures was
never intended to apply to preinjury remedial measures. As early as 1890, the supreme court
allowed evidence of what occurred "before and at the time of the accident," including "that
a valuable device for securing safety was known to the defendant, and its use neglected by
him, before the accident." Hodges, 132 Ill. at 56, 23 N.E. at 424. The admission of such
evidence was not believed to cause the same hesitation to adopt safety changes as the
53
admission of evidence of postaccident measures.
Second, while a manufacturer may be hesitant to adopt postaccident remedial
measures if those measures are admissible as evidence to prove negligence in the case
involving that accident, other policy considerations prevail preinjury. For example, when
a manufacturer develops postsale safety measures to remedy a defect which existed at the
time of sale, that manufacturer has a strong motivation to notify consumers of those measures
in order to avoid future tort liability. Further, consumer demand for safe products provides
an incentive for manufacturers to take steps to remedy defects.
Finally, if the policy goal is to promote the development of safer products, we believe
that policy is better advanced by requiring manufacturers to inform consumers of safety
measures which will remedy defects that already exist in products. In the context of product
liability law, the policy behind the exclusion of postaccident remedial measures to prove
negligence is to encourage manufacturers to develop safer products without a fear of liability
for past acts. The policy goal in requiring manufacturers to notify consumers of postsale,
preinjury remedial measures to correct existing hazards is to encourage manufacturers to
develop safety features in order to avoid future liability. In our view, manufacturers are more
likely to develop safer products if they are held accountable, on a continuing basis, for a
failure to warn of hazards that they knew or should have known existed at the time the
product was manufactured.
In this case, long before the design of the Panther platform vehicles, Ford's engineers
had considered the potential for trunk contents to puncture the fuel tank in determining where
the tank should be located. Despite notice of that hazard, and other hazards which could lead
to the puncture of the fuel tank, Ford opted to design the Panther platform vehicles with a
vertical-behind-the-axle fuel tank and to provide no warning of the hazard of trunk contents
puncturing the tank in a high-speed rear-end collision. After the manufacture of the
54
Jablonski vehicle, but before the accident, in response to consumer demand, Ford developed
shields and warnings for the purpose of protecting occupants of the Panther platform vehicles
from the very hazards that caused the injuries and death in this case. Prior to this accident,
Ford chose to warn police agencies, dealers, and government fleet owners of the
development of these safety features, but it provided no warnings to consumers. Under these
circumstances, we believe that the perpetuation of a rule which shields the manufacturer
from liability does little to promote safe products. Accordingly, we find that the trial court
did not abuse its discretion in allowing the introduction of the Panther platform Police
Interceptor evidence on the issue of Ford's failure to warn.
2.
Prior Similar Incidents
Ford next challenges the introduction into evidence of the plaintiffs' exhibit consisting
of a list of 416 alleged similar incidents involving postcollision fires in Ford vehicles. The
evidence reveals that this list was compiled from Ford's answer to an interrogatory in another
case in 1992 in which Ford was required to list all such accidents within its knowledge. The
plaintiffs' expert, Mark Arndt, modified the answer to the interrogatory, which was more
extensive, by making a separate list that included only those accidents involving Ford
vehicles with aft-of-the-axle fuel tanks. The list includes only accidents in which the
occupants were injured or killed in accidents in which postcollision fires occurred in rear-end
collisions. That reduced list is the exhibit to which Ford objects.
"It is well established in Illinois that evidence of prior accidents is competent to show
that the common cause of the accidents is a dangerous or unsafe thing or condition." Bass
v. Cincinnati, Inc., 180 Ill. App. 3d 1076, 1079, 536 N.E.2d 831, 832 (1989). In addition,
"[e]vidence of prior similar occurrences is admissible for the purpose of demonstrating that
a manufacturer possessed knowledge of a defect in a particular product prior to the accident
55
in the litigated case." Holmes v. Sahara Coal Co., 131 Ill. App. 3d 666, 672, 475 N.E.2d
1383, 1387 (1985). "Evidence of prior accidents is admissible to demonstrate that a vehicle
is dangerous if the proponent establishes that the accidents occurred in a substantially similar
manner." Davis v. International Harvester Co., 167 Ill. App. 3d 814, 825, 521 N.E.2d 1282,
1289 (1988). "It need not be shown that the accidents occurred in an identical manner.
Substantial similarity is all that is required." Rucker v. Norfolk & Western Ry. Co., 77 Ill.
2d 434, 441, 396 N.E.2d 534, 538 (1979). "The determination whether prior occurrences
or accidents are substantially similar to the one at issue lies within the trial court's sound
discretion." Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 786, 776 N.E.2d 262,
286 (2002).
The primary focus of the plaintiffs' claims in this case is that aft-of-the-axle fuel tanks
are defective because they tend to rupture in rear-end collisions, causing postcollision fires,
that Ford was aware of this defect, and that Ford was negligent in designing the Panther
platform with an aft-of-the-axle fuel tank. Thus, evidence of prior similar accidents was
relevant and admissible to prove that the design of the 1993 Lincoln Town Car was defective
and unsafe and that Ford knew of its unsafe condition prior to the manufacture of the
Jablonski vehicle. The list of 416 similar accidents only included rear-end collisions that
caused postcollision fires in Ford vehicles with aft-of-the-axle fuel tanks as a result of the
fuel tank being punctured in the accident. We find that the trial court did not abuse its
discretion in determining that the accidents submitted were substantially similar to the
accident in this case. Thus, the list of 416 similar incidents was properly admitted to prove
both negligence and notice.
3.
2006 Federal Safety Standards
At the time the Jablonski vehicle was manufactured, FMVSS 301 required that a
56
vehicle withstand, with minimal fuel leakage, a rear impact with a nondeformable 4,000-
pound barrier moving at 30 miles per hour. Ford was allowed to introduce evidence that the
1993 Lincoln Town Car met this standard, that Ford performed the certification testing, that
the Town Car passed at 35 miles per hour, and that Ford also conducted internal testing
which required that the vehicle pass three separate car-to-car fuel-system-integrity crashes
at 50 miles per hour. After the accident in this case, the NHTSA adopted a new standard for
FMVSS 301 which required that vehicles withstand a rear impact at 50 miles per hour, rather
than 30 miles per hour, with the new standard applicable to 2006 model vehicles. For
purposes of this litigation, Ford conducted crash testing under the new standard and
determined that the 1993 Lincoln Town Car met that standard. Ford sought to introduce into
evidence the crash testing it had performed and testimony that the Jablonski vehicle met the
new standard. The trial court, without objection, allowed the introduction of the crash test,
but it refused, as irrelevant, testimony that the 1993 Lincoln Town Car complied with the
new NHTSA safety standard. Ford argues that the trial court abused its discretion in refusing
evidence that the 1993 Lincoln Town Car met the version of FMVSS 301 first applicable to
2006 vehicles.
"[E]vidence of compliance with [f]ederal standards is relevant to the issue of whether
a product is defective [citation], as well as the issue of whether a defective condition is
unreasonably dangerous ***." Rucker, 77 Ill. 2d at 439, 396 N.E.2d at 536-37. Likewise,
"[e]vidence of standards promulgated by industry, trade, or regulatory groups or agencies
may be admissible to aid the trier of fact in determining the standard of care in a negligence
action." Ruffiner v. Material Service Corp., 116 Ill. 2d 53, 58, 506 N.E.2d 581, 584 (1987).
However, that evidence is not conclusive. "The finder of fact may conclude that a product
is in an unreasonably dangerous defective condition notwithstanding its conformity to
[f]ederal standards." Rucker, 77 Ill. 2d at 440, 396 N.E.2d at 537. "To be admissible,
57
standards must be relevant 'in terms of both time and conduct involved.' " Ruffiner, 116 Ill.
2d at 58, 506 N.E.2d at 584 (quoting Murphy v. Messerschmidt, 68 Ill. 2d 79, 84, 368 N.E.2d
1299, 1302 (1977)). Evidence of proposed safety standards that have not been adopted is
irrelevant and inadmissible. Kelley v. American Motors Corp., 130 Ill. App. 3d 662, 678,
474 N.E.2d 814, 825 (1985).
We fail to see the relevance of a version of FMVSS 301 that was not adopted until
after this accident occurred and was first applicable to 2006 vehicles. A federal motor
vehicle safety standard that is not applicable to the vehicle in question does not meet the
"time" requirement in order to be relevant. Here, the jury received evidence that the 1993
Lincoln Town Car passed the applicable version of FMVSS 301, and as will be discussed
later, the jury was properly instructed on the significance of that standard. Further, although
the 2006 standard was not admitted into evidence, Ford was allowed to introduce evidence
that the Jablonski vehicle exceeded the standard applicable to its model year and, in addition,
passed 50 mile-per-hour fuel-system-integrity testing. Under these circumstances, we do not
believe that the trial court abused its discretion in refusing the admission of evidence of the
2006 standards.
C.
Jury Instructions and Special Interrogatories
Ford argues that the trial court erred and abused its discretion in refusing various
instructions and special interrogatories it submitted at the jury instructions conference. W e
will review Ford's arguments pertaining to instructions on punitive damages later in this
opinion. Here, we will address the trial court's rejection of Ford's instructions on the
significance of federal motor vehicle safety standards, a verdict form allocating fault between
Ford and Natalie Ingram, and special interrogatories. We review the trial court's decisions
on the submission of jury instructions on an abuse-of-discretion standard. Dillon, 199 Ill.
58
2d at 505, 771 N.E.2d at 371.
1.
Instruction on Significance of Federal Motor Vehicle Safety Standards
Ford asserts that it was error for the trial court to refuse its nonpattern instruction
which it characterizes as explaining the "significance" of federal motor vehicle safety
standards. In that instruction, Ford sought to instruct the jury that NHTSA standards are
prescribed to "meet the need for motor vehicle safety" and defined "motor vehicle safety" as
the performance of a motor vehicle in a way that "protects the public against unreasonable
risk of accidents *** and against unreasonable risk of death or injury in an accident."
Although the trial court rejected this instruction, it gave another nonpattern instruction
submitted by Ford which stated that FMVSS 301 was adopted to reduce "deaths and injuries
occurring from fires that result from fuel spillage during and after motor vehicle crashes" and
that "[i]f you find that the 1993 Lincoln Town [C]ar met or surpassed the requirements of
this standard, that fact should be considered by you in deciding whether the vehicle was
reasonably safe, but it is not conclusive."
As we previously noted, government standards are admissible evidence in a negligent-
design case. Ruffiner, 116 Ill. 2d at 58, 506 N.E.2d at 584. However, compliance with
government standards alone is not conclusive regarding whether a product is defective.
Rucker, 77 Ill. 2d at 440, 396 N.E.2d at 537. Accordingly, we believe that the jury was
properly instructed on the significance of evidence of compliance with the government
standard. It is clear that the version of FMVSS 301 in effect when the Jablonski vehicle was
manufactured is the government standard applicable to the circumstances of this case. Ford
was allowed to introduce evidence that it met and surpassed that standard. The jury was
instructed that compliance with the standard, although not conclusive, could be considered
in determining whether the vehicle was reasonably safe. We believe that Ford's additional
59
instruction would have been confusing to the jury in that it instructed that compliance with
government standards eliminates any "unreasonable risk" of accidents or injuries. Thus, the
jury would have been instructed, on the one hand, that compliance with government
standards is not conclusive on whether a product is "reasonably safe," but it would also have
been instructed that the compliance is tantamount to eliminating any "unreasonable risk."
We find that the trial court did not abuse its discretion in rejecting this instruction.
2.
Verdict Forms Allocating Fault
At the jury instructions conference, Ford submitted proposed verdict forms that would
have required the jury to allocate fault between Ford and Natalie Ingram. Under the terms
of section 2-1117 of the Code of Civil Procedure, a joint tortfeasor who the jury determines
is less than 25% at fault is only severally liable for the damages remaining after the payment
of medical expenses. 735 ILCS 5/2-1117 (West 2004). Ford sought to have any negligence
assessed against it compared to the fault of Ingram and to argue that its portion of the total
fault was less than 25%. The trial court followed the controlling precedent in this district
and rejected Ford's proposed verdict forms. When this case was briefed and argued, there
was a conflict between this district and the Fourth District of the appellate court regarding
whether a defendant who settles before trial should be included in the jury's apportionment
of fault under section 2-1117. See Blake v. Hy Ho Restaurant, Inc., 273 Ill. App. 3d 372,
652 N.E.2d 807 (1995) (the Fifth District held that a settling tortfeasor should not be
included in the jury's apportionment of fault); Skaggs v. Senior Services of Central Illinois,
Inc., 355 Ill. App. 3d 1120, 823 N.E.2d 1021 (2005) (the Fourth District concluded that the
jury should be informed about a settling tortfeasor under section 2-1117).
The foregoing conflict has now been resolved by the Illinois Supreme Court. In
Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369, 905 N.E.2d 725 (2008), the court
60
held that settling tortfeasors should not be included in the apportionment of fault pursuant
to section 2-1117. Accordingly, the trial court did not abuse its discretion in refusing Ford's
proposed verdict forms.
3.
Special Interrogatories
Ford argues that it is entitled to a new trial because the trial court improperly refused
its four special interrogatories. The special interrogatories Ford tendered were as follows:
"Is the 1993 Lincoln Town Car reasonably safe for all reasonably intended
uses?" Ford's proposed instruction No. 26.
"Did Ford Motor Company fail to use ordinary care for the safety of Dora Mae
Jablonski?" Ford's proposed instruction No. 27.
"Did Ford Motor Company fail to use ordinary care for the safety of John L.
Jablonski, Sr.?" Ford's proposed instruction No. 28.
"Did Ford Motor Company act in a way which shows utter indifference to or
conscious disregard for the safety of Dora Mae Jablonski?" Ford's proposed
instruction No. 29.
Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure,
which provides as follows:
"Unless the nature of the case requires otherwise, the jury shall render a
general verdict. The jury may be required by the court, and must be required on
request of any party, to find specially upon any material question or questions of fact
submitted to the jury in writing. Special interrogatories shall be tendered, objected
to, ruled upon[,] and submitted to the jury as in the case of instructions. Submitting
or refusing to submit a question of fact to the jury may be reviewed on appeal, as a
ruling on a question of law. When the special finding of fact is inconsistent with the
61
general verdict, the former controls the latter and the court may enter judgment
accordingly." 735 ILCS 5/2-1108 (West 2004).
Ford argues that the court should have given all four of its special interrogatories
because they were all in proper form. The plaintiffs respond that the interrogatories were not
in proper form, failed to include critical and necessary elements of the cause of action, would
have confused or misled the jury, and could not have controlled the general verdict because
the answers, whether yes or no, would not have been inconsistent with a general verdict.
The general rules concerning special interrogatories are well-established. Special
interrogatories serve as the " 'guardian of the integrity of a general verdict in a civil jury
trial.' " Simmons v. Garces, 198 Ill. 2d 541, 555, 763 N.E.2d 720, 730 (2002) (quoting
O'Connell v. City of Chicago, 285 Ill. App. 3d 459, 460, 674 N.E.2d 105, 106 (1996)). The
purpose of a special interrogatory is that "[i]t tests the general verdict against the jury's
determination as to one or more specific issues of ultimate fact." Simmons, 198 Ill. 2d at
555, 763 N.E.2d at 730. "In determining whether answers to special interrogatories are
inconsistent with a general verdict, all reasonable presumptions are exercised in favor of the
general verdict." Simmons, 198 Ill. 2d at 556, 763 N.E.2d at 730.
"A special interrogatory is in proper form if (1) it relates to an ultimate issue of fact
upon which the rights of the parties depend[] and (2) an answer responsive thereto is
inconsistent with some general verdict that might be returned. [Citations.] Special
findings are inconsistent with a general verdict only where they are 'clearly and
absolutely irreconcilable with the general verdict.' [Citation.] If a special
interrogatory does not cover all the issues submitted to the jury and a 'reasonable
hypothesis' exists that allows the special finding to be construed consistently with the
general verdict, they are not 'absolutely irreconcilable' and the special finding will not
control. [Citation.]" Simmons, 198 Ill. 2d at 555-56, 763 N.E.2d at 730.
62
If a special interrogatory is in proper form, it must be given, but the failure to do so may be
harmless error. McGovern v. Kaneshiro, 337 Ill. App. 3d 24, 30, 785 N.E.2d 108, 114
(2003). Our review of a trial court's refusal to give a special interrogatory is de novo.
Hooper v. County of Cook, 366 Ill. App. 3d 1, 6, 851 N.E.2d 663, 668 (2006).
The statutory provisions requiring that a special interrogatory be given if in proper
form and that a special finding controls an inconsistent general verdict are merely
codifications of the common law. Albaugh v. Cooley, 87 Ill. 2d 241, 252, 429 N.E.2d 837,
842 (1981). The reason behind the rule is the belief "that a jury more clearly understands
a particularized special interrogatory than a composite of all of the questions in a case, and
therefore a special finding upon which a jury presumably has more intensively focused its
attention should prevail over an inconsistent general verdict." Borries v. Z. Frank, Inc., 37
Ill. 2d 263, 266, 226 N.E.2d 16, 19 (1967). However, as one court noted:
"The argument could be made that special interrogatories frequently do not
achieve their purpose and often disrupt a trial with a result not understood by the jury
and not expected by the court or the parties. The possibility of an unintended,
unreasoned result is made more likely by the fact that the court and counsel are
severely restricted in their discussion of a special interrogatory. *** In a jurisdiction
where no comment is allowed on the special interrogatory it is very important that the
special interrogatory be carefully worded." Blakey v. Gilbane Building Corp., 303
Ill. App. 3d 872, 880-81, 708 N.E.2d 1187, 1193-94 (1999).
Particular attention must be given to the wording of a special interrogatory seeking
to test a general verdict on the issue of negligence when the plaintiff has alleged multiple
theories of negligence. Northern Trust Co. v. University of Chicago Hospitals & Clinics,
355 Ill. App. 3d 230, 252, 821 N.E.2d 757, 777 (2004). In those cases, in order to be in
proper form, the interrogatory must consist of a single question that, standing alone, would
63
control the verdict on all the theories of negligence. Northern Trust Co., 355 Ill. App. 3d at
252, 821 N.E.2d at 776-77. If a special interrogatory covers only one of the plaintiff's two
theories of negligence, it is not in proper form since an answer contrary to a general verdict
would not be inconsistent with the remaining theory of negligence. Stach v. Sears, Roebuck
& Co., 102 Ill. App. 3d 397, 411, 429 N.E.2d 1242, 1252 (1981). Accordingly, if a
reasonable hypothesis exists that a special interrogatory seeking to test a general verdict on
the issue of negligence could be understood by the jury to include less than all the theories
of negligence asserted by the plaintiff, the interrogatory is not in proper form and should not
be given.
In this case, each of the special interrogatories submitted by Ford appears to be
designed to test the jury's verdict on either the issue of negligence or the issue of willful and
wanton conduct. The plaintiffs submitted multiple claims of negligence to be determined by
the jury. Those claims included allegations of both a negligent design and a failure to warn.
The same allegations of negligence were submitted as claims of willful and wanton conduct
for Dora's claim for punitive damages. The jury was instructed in the burden-of-proof
instructions that it should find for the plaintiffs if it determined that Ford was negligent or
guilty of willful and wanton conduct "in one of the ways" claimed by the plaintiffs. This was
a complicated product liability case in which the jury heard extensive testimony from expert
witnesses offering divergent opinions on the design of the fuel tank in the Jablonskis' 1993
Lincoln Town Car and the potential danger of items in the trunk puncturing the fuel tank in
a high-speed rear-end collision. Thus, the special interrogatories submitted required careful
scrutiny to be certain that the jury could not interpret an interrogatory to include less than
all the plaintiffs' claims so that an answer would be "absolutely irreconcilable" with a
contrary general verdict. Having carefully considered the special interrogatories submitted
by Ford in the context of the evidence and instructions in this case, we believe that the trial
64
court correctly refused to submit them to the jury.
In its proposed instruction No. 26, Ford sought to ask the jury as follows: "Is the 1993
Lincoln Town Car reasonably safe for all reasonably intended uses?" This interrogatory
could reasonably be understood to only address the negligent-design claims and not the
allegations of a failure to warn. The court gave the jury multiple instructions on the issue
of duty. At the request of the plaintiffs, the court gave plaintiffs instruction No. 25, which
stated that a manufacturer is "under a duty to make a product which is reasonably safe for
all reasonably intended uses." (Emphasis added.) The special interrogatory generally
tracked the language of that instruction. However, at the request of Ford, the court gave two
additional instructions on the issue of duty. Defendant's instruction No. 1 informed the jury
as follows: "[I]t was the duty of the defendant to use ordinary care for the safety of plaintiffs
with respect to the design of the 1993 Lincoln Town Car." Defendant's instruction No. 2
advised as follows: "To establish a negligence claim for a failure to warn, the plaintiff must
prove that the defendant knew or should have known, in the exercise of ordinary care, that
the product was unreasonably dangerous and defendant failed to warn of its dangerous
propensity." The jury could have easily interpreted these various instructions so that the
special interrogatory would be understood to only pertain to Ford's duty to "make a product"
to the exclusion of any duty to warn. Thus, under the instructions given by the court, if the
jury determined that Ford was negligent in failing to warn, but not in the design of the fuel
tank, a reasonable hypothesis exists that the jury could have answered the interrogatory "yes"
and still entered a general verdict for the plaintiffs. In those circumstances, the answer to the
special interrogatory would not be "absolutely irreconcilable" with the general verdict. For
these reasons, we believe that the foregoing special interrogatory submitted by Ford as
defendant's instruction No. 26 was confusing and ambiguous, and the trial court was correct
in refusing it.
65
We next examine the special interrogatories submitted as defendant's instruction Nos.
27 and 28, which are identical except for the name of the plaintiff. Each interrogatory asks,
"Did Ford Motor Company fail to use ordinary care for the safety of [Dora Mae Jablonski
or John L. Jablonski, Sr.]?" These interrogatories are too vague and ambiguous in that they
do not explicitly cover all the plaintiffs' allegations of negligence. For example, the question
that needed to be asked was, "Did Ford Motor Company fail to use ordinary care for the
safety of [Dora Mae Jablonski or John L. Jablonski, Sr.] in any of the ways claimed by [the
plaintiffs]?" If the jury answered this more specific question "no" and rendered a general
verdict for the plaintiffs, the answer would be absolutely irreconcilable with the verdict.
However, the jury could just as easily have interpreted the general interrogatories submitted
by Ford to ask, "Did Ford Motor Company fail to use ordinary care for the safety of [Dora
Mae Jablonski or John L. Jablonski, Sr.] in all of the ways claimed by [the plaintiffs]?" In
that case, the jury could have answered the question "no" even though it found that Ford was
negligent in one or more of the ways claimed by the plaintiffs and entered a general verdict
for the plaintiffs. The interrogatories, as submitted by Ford, are simply not sufficiently
specific in this case to cover all the allegations of negligence. Consequently, a reasonable
hypothesis exists that an answer to the interrogatories would not be inconsistent with a
general verdict. Accordingly, the trial court was correct in refusing Ford's special
interrogatories submitted as defendant's instruction Nos. 27 and 28.
Finally, we turn to Ford's fourth special interrogatory, submitted as defendant's
instruction No. 29, which asked as follows: "Did Ford Motor Company act in a way which
shows utter indifference to or conscious disregard for the safety of Dora Mae Jablonski?"
This interrogatory suffers from the same defect discussed in the preceding paragraph. It is
simply not sufficiently specific to cover all the allegations of willful and wanton conduct and
is therefore subject to an interpretation by the jury that would not result in an answer which
66
is absolutely irreconcilable with a general verdict. The trial court was correct in refusing the
special interrogatory submitted by Ford as defendant's Instruction No. 29.
We reiterate that our determination of whether the special interrogatories submitted
in this case were in proper form is based upon the context of the parties' claims and the
instructions given by the court. Special interrogatories are to be read in the context of the
court's other instructions, which set forth the claims of the parties, to determine how the
interrogatories might be interpreted by the jury and whether the jury might be confused.
Simmons, 198 Ill. 2d at 564, 763 N.E.2d at 735. In a complex case involving multiple
allegations of negligence and willful and wanton conduct, it is imperative that special
interrogatories designed to test the jury's verdict upon those issues be carefully worded so
that there is no question that an inconsistent answer is absolutely irreconcilable with a
general verdict. To do otherwise is to risk "[t]he possibility of an unintended, unreasoned
result." Blakey, 303 Ill. App. 3d at 881, 708 N.E.2d at 1193. We find that the trial court did
not err in refusing the special interrogatories submitted by Ford.
D.
Punitive Damages
We finally consider the issues raised by Ford in regard to the jury's award of $15
million in punitive damages to plaintiff Dora Jablonski. Ford first argues that the trial court
erred in submitting the punitive-damages claim to the jury because insufficient evidence was
introduced to support an award of punitive damages and that it is therefore entitled to the
entry of a judgment notwithstanding the verdict on that issue. Ford also claims that the
submission of the plaintiffs' willful-and-wanton-conduct claim on an allegation of a postsale
duty to warn was error entitling it to a new trial. In the alternative, Ford asserts that the trial
court erred in refusing certain nonpattern jury instructions it tendered on the issue of punitive
damages, entitling Ford to a new trial. Ford makes no claim that the amount of punitive
67
damages awarded was excessive.
Dora responds that there was ample evidence to justify the trial court's submission of
the punitive-damages claim to the jury. Further, Dora argues that it was proper for the trial
court to submit the postsale-duty-to-warn allegation but that, in any event, Ford cannot prove
prejudice in the submission of that allegation since it did not submit special interrogatories
to determine upon which allegations of willful and wanton conduct the jury found Ford liable
and Ford is therefore bound by the general verdict on punitive damages. As to the nonpattern
jury instructions submitted by Ford, Dora argues that the jury was properly instructed with
pattern instructions on willful and wanton conduct and punitive damages and that Ford's
proposed instructions were properly rejected. We examine each of Ford's claims in detail
below.
1.
The Trial Court's Submission of the Punitive Damages Claim
In Illinois, a plaintiff is not allowed to seek punitive damages without first obtaining
leave of court. The Code of Civil Procedure provides, in pertinent part, as follows:
"In all actions on account of bodily injury or physical damage to property,
based on negligence, or product liability based on any theory or doctrine, where
punitive damages are permitted no complaint shall be filed containing a prayer for
relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial
motion and after a hearing before the court, amend the complaint to include a prayer
for relief seeking punitive damages. The court shall allow the motion to amend the
complaint if the plaintiff establishes at such hearing a reasonable likelihood of
proving facts at trial sufficient to support an award of punitive damages." 735 ILCS
5/2-604.1 (West 2004).
In this case, Dora filed a pretrial motion, pursuant to the above statute, requesting that
68
she be allowed to pursue a claim for punitive damages based upon willful and wanton
conduct. The motion was supported by the affidavit of an expert which generally set forth
the same evidence that the plaintiffs ultimately produced at the trial. Ford countered the
motion with a written objection and the affidavit of its expert, Jack Ridenour, which
generally set forth the evidence Ford offered at the trial in defense of the plaintiffs' claims.
The court conducted a hearing upon the motion, at which oral arguments were heard, and
then granted the motion, allowing Dora to amend her pleadings to claim willful and wanton
conduct and to seek punitive damages. Ford does not claim error in this ruling, or even
discuss it in its brief. Rather, Ford argues that the trial court erred in "submitting" the
punitive-damages claim to the jury and in failing to grant Ford a judgment notwithstanding
the verdict on that claim.
"It has long been established in this [s]tate that punitive or exemplary damages may
be awarded when torts are committed with fraud, actual malice, deliberate violence[,] or
oppression[] or when the defendant acts willfully[] or with such gross negligence as to
indicate a wanton disregard of the rights of others." Kelsay v. Motorola, Inc., 74 Ill. 2d 172,
186, 384 N.E.2d 353, 359 (1978). Thus, it has long been recognized in Illinois product
liability cases that "where there is evidence of wilful and wanton conduct, punitive damages
may be allowed." Moore, 116 Ill. App. 2d 109, 135, 253 N.E.2d 636, 648 (1969), aff'd on
other grounds, 46 Ill. 2d 288, 263 N.E.2d 103 (1970) . Punitive damages are not favored in
the law, and are not awarded as compensation, but may be awarded in a proper case "to
punish the offender and to deter that party and others from committing similar acts of
wrongdoing in the future." Loitz v. Remington Arms Co., 138 Ill. 2d 404, 414, 563 N.E.2d
397, 401 (1990). "In a products liability case, the goal of awarding punitive damages is to
deter manufacturers from placing dangerously defective products into the stream of
commerce by making it unprofitable to an unpredictable degree." Baier v. Bostitch, 243 Ill.
69
App. 3d 195, 205, 611 N.E.2d 1103, 1110 (1993). In the context of a punitive-damages
claim, willful and wanton conduct " ' "approaches the degree of moral blame attached to
intentional harm, since the defendant deliberately inflicts a highly unreasonable risk of harm
upon others in conscious disregard of it." ' " Loitz, 138 Ill. 2d at 416, 563 N.E.2d at 402
(quoting Bresland v. Ideal Roller & Graphics Co., 150 Ill. App. 3d 445, 457, 501 N.E.2d
830, 839 (1986) (quoting Restatement (Second) of Torts §886A, Comment k (1979))). "The
essential elements of wilful and wanton conduct in a product liability case include
knowledge of the defect, knowledge or notice that the defect was likely to cause injury[,] and
failure to warn of or remedy a known defect or take some other affirmative action to avoid
the injury." Collins v. Interroyal Corp., 126 Ill. App. 3d 244, 256, 466 N.E.2d 1191, 1199
(1984).
"Appropriately enough, the initial decision whether punitive damages may be imposed
in a particular case in this [s]tate is a matter normally reserved to the trial judge." Loitz, 138
Ill. 2d at 414, 563 N.E.2d at 401. The determination of whether punitive damages are
available as a matter of law for the cause of action is reviewed de novo. Franz v. Calaco
Development Corp., 352 Ill. App. 3d 1129, 1138, 818 N.E.2d 357, 367 (2004).
"The trial court submits the issue of punitive damages to the jury when it determines
that, as a matter of law, the evidence will support an award of punitive damages.
[Citation.] In other words, the trial court may submit the issue of punitive damages
to the jury only if the plaintiff has made out a prima facie case for such damages.
[Citation.] This decision to submit the question to the jury is a matter reserved to the
trial court and will not be reversed absent abuse of discretion." Franz, 352 Ill. App.
3d at 1138, 818 N.E.2d at 367.
When faced with conflicting evidence, "the question of whether a defendant's conduct was
sufficiently willful or wanton to justify the imposition of punitive damages is for the jury to
70
decide." Cirrincione v. Johnson, 184 Ill. 2d 109, 116, 703 N.E.2d 67, 70 (1998). Thus, the
factual finding by the jury on the issue of whether the defendant has committed willful and
wanton conduct that would support a claim for punitive damages is reviewed under a
manifest-weight standard. Franz, 352 Ill. App. 3d at 1138, 818 N.E.2d at 367.
Here, we find no error in the trial court's initial decision to allow Dora to proceed with
a willful-and-wanton-conduct claim for punitive damages or its decision to submit the
punitive-damages claim to the jury. We see no need to restate all the evidence in support of
the punitive-damages claim, but we will summarize. The plaintiffs presented significant
evidence in support of their claim that Ford's Panther platform vehicles are defective in that
the aft-of-the-axle location of the unshielded fuel tank renders them susceptible to postcrash
fires in high-speed rear-end collisions because the fuel tank is crushed or breached, causing
gasoline to spill and ignite. Evidence of this claim was presented by expert testimony and
by the presentation of numerous substantially similar accidents that resulted in severe injuries
and deaths. The plaintiffs offered evidence of Ford's knowledge of the alleged defective
condition of the Panther platform vehicles through proof that Ford was aware of the many
prior similar occurrences and evidence that, long before the Panther platform was
manufactured, a researcher funded by Ford, as well as Ford's own engineers, had
recommended that a safer design was to place the fuel tank above the axle. Well before the
Jablonski accident, Ford adopted a policy of placing the fuel tank forward of the axle in all
new passenger automobile designs. Finally, the evidence offered by the plaintiffs revealed
that, prior to the Jablonski accident, Ford did nothing to warn civilian users of Panther
platform vehicles of the potential danger, did nothing to remedy the defect, and took no other
action to avoid injuries caused by the defect. In fact, the evidence reveals that it was not
until mounting complaints led to a NHTSA investigation, and the state police agencies of at
least two states demanded action, that Ford addressed the problem. Once Ford
71
acknowledged the need for corrective action, in less than a year it developed relatively
simple design modifications that resulted in the modified Panther platform vehicle passing
a 75-mile-per-hour rear-end crash test, but it took no action to warn or otherwise remedy the
danger for civilian users such as the Jablonskis.
Despite the foregoing evidence, Ford argues that under the analysis in Loitz, the
plaintiff in this case failed to present sufficient evidence of willful and wanton conduct to
justify an award of punitive damages. Loitz, 138 Ill. 2d 404, 563 N.E.2d 397. In Loitz, the
plaintiff, who was injured when the barrel of the shotgun he was using exploded, based his
claim that the defendant manufacturer had notice of a defect upon a relatively small number
of prior similar claims. The supreme court held, "Guns are inherently dangerous
instrumentalities, and the mere occurrence of other explosions does not, without more,
establish outrageous misconduct or some other basis sufficient to warrant the imposition of
punitive damages." Loitz, 138 Ill. 2d at 419, 563 N.E.2d at 404. The evidence in this case
is easily distinguishable from Loitz.
Here, although the evidence of Panther platform vehicles involved in prior similar
occurrences represented a small percentage of the total Panther platform vehicles
manufactured, additional evidence presented by the plaintiffs revealed that Panther platform
vehicles had a higher rate of postcollision fires when subjected to high-speed rear-end
collisions than vehicles designed with a forward-of-the-axle fuel tank. This evidence was
compiled by a Ford employee prior to the accident in this case. In addition, unlike Loitz,
Ford's own engineers had advised it not to use aft-of-the-axle fuel tanks in its vehicles long
before the Panther platform was manufactured, due to safety concerns related to postcrash
fires, including a concern that articles in the trunk could breach the fuel tank.
We believe that this evidence clearly supports the trial court's decision to submit
Dora's punitive-damages claim to the jury. Dora presented a prima facie case and the trial
72
court did not abuse its discretion in submitting the claim. Likewise, we do not believe that
the decision of the jury to award punitive damages is against the manifest weight of the
evidence. Certainly, Ford presented conflicting evidence to explain its actions and offered
the testimony of experts that Panther platform vehicles are not defective. In the end,
however, the jury resolved the conflicting evidence in favor of the plaintiff and awarded
punitive damages. We see no reason to grant Ford a judgment notwithstanding the verdict.
Viewing all the evidence in the light most favorable to the plaintiff, we conclude that the
decision of the jury to award punitive damages was well-justified.
2.
Willful and Wanton Postsale-Failure-to-W arn Claim
Next, Ford claims that it was error for the trial court to submit Dora's postsale-failure-
to-warn allegation on the willful-and-wanton-conduct claim and that it is therefore entitled
to a new trial on the issue of punitive damages. In addition to claiming that Ford was
negligent by "[f]ailing to inform of the existence of the Trunk Pack and/or Trunk Pack
Recommendations," Dora also alleged that the failure amounted to willful and wanton
conduct. Ford makes the same objection to the submission of this willful-and-wanton-
conduct claim to the jury as it did to the negligence claim. Both parties' arguments are
essentially the same.
We have already extensively analyzed this issue in this opinion and we see no need
for further discussion. As with the negligence claims, the willful-and-wanton-conduct claim
was submitted on four separate theories, and a general verdict was entered on that claim. W e
have held that the trial court did not err in submitting the willful-and-wanton-conduct claim
on at least some of the plaintiffs' theories. Since Ford did not submit special interrogatories
to determine upon which theories the jury decided that Ford had engaged in willful and
wanton conduct, it is unable to show prejudice from the submission of the alleged postsale-
73
duty-to-warn theory, even if the submission of that theory was error. See Witherell, 118 Ill.
2d at 329, 515 N.E.2d at 72 ("When there is a general verdict and more than one theory is
presented, the verdict will be upheld if there was sufficient evidence to sustain either theory,
and the defendant, having failed to request special interrogatories, cannot complain"). We
hold that Ford is not entitled to a new trial on punitive damages as a result of the submission
of the postsale-duty-to-warn claim.
3.
Ford's Nonpattern Instruction No. 20
Ford argues that the trial court erred and violated due process by refusing its proposed
instruction No. 20 on the issue of punitive damages. That instruction stated as follows:
"You may award punitive damages only if you find by clear and convincing
evidence that Ford Motor Company employees had no arguably legitimate reasons for
concluding that the 1993 Lincoln Town Car was reasonably safe. You may not award
punitive damages if reasonable people can disagree about whether the 1993 Lincoln
Town Car was reasonably safe."
In the trial court, Ford claimed that this instruction was modified from Illinois Pattern Jury
Instructions, Civil, No. 35.02 (2005) (IPI Civil 2005). We fail to see any similarity between
the proposed instruction and IPI Civil 35.02, which instructs juries that they cannot assess
punitive damages against a corporate defendant based upon the actions of its employees
unless one or more of certain conditions apply. Therefore, we find that it is a nonpattern
instruction and apply the rules accordingly.
The law is clear that if a pattern instruction is available in a civil case, it is to be used,
"giving due consideration to the facts and the prevailing law," unless the court determines
that it does not accurately state the law. 177 Ill. 2d R. 239(a). Regardless of which
instructions were given and which were refused, our task is essentially to discern whether
74
the jury was given an accurate statement of the law from which to decide the issues.
In the present case, the court gave the jury five pattern instructions submitted by Dora
on her claim for punitive damages. The jury was instructed (1) with IPI Civil (2005)
20.01.01, an issues instruction that defined the issues in the claim of willful and wanton
conduct, (2) with IPI Civil (2005) 21.02.02, a burden-of-proof instruction that detailed what
Dora was required to prove on the willful-and-wanton-conduct claim, (3) with IPI Civil
(2005) 14.04, a duty instruction that stated that it was Ford's duty "before and at the time of
the occurrence, to refrain from willful and wanton conduct which would endanger the safety
of Dora Jablonski," (4) with IPI Civil (2005) 14.01, a definition instruction that defined
"willful and wanton conduct" as "a course of action which shows an utter indifference to or
conscious disregard for the safety of others," and (5) with IPI Civil (2005) 35.01, which
advised the jury that if it found that Ford's conduct "was willful and wanton and proximately
caused" Dora's injury and that if the jury believed "that justice and the public good require
it," punitive damages "may" be awarded "to punish the Defendant Ford Motor Company and
to deter Ford Motor Company and others from similar conduct." In addition to the
foregoing, the trial court gave two nonpattern instructions on punitive damages submitted by
Ford: (1) an instruction advising the jury that the plaintiffs' burden of proof on punitive
damages was "by clear and convincing evidence" and (2) an instruction advising the jury that
in determining the proper amount of punitive damages, it could not consider Ford's "wealth
or size."
We find that the trial court did not abuse its discretion in refusing to give the jury
Ford's proposed instruction No. 20. It is a nonpattern instruction that does not accurately
state the law, and the jury was otherwise accurately instructed about punitive damages. By
submitting a nonpattern instruction that would have prohibited the jury from awarding
punitive damages if reasonable people could disagree about whether the 1993 Lincoln Town
75
Car was reasonably safe, Ford was attempting to create a new standard for punitive damages
that has never existed in Illinois law, a standard that would not allow punitive damages if a
defendant manufacturer could find an expert to claim that the product in question was
reasonably safe. That is, quite simply, not the law. In a previous section, we have reviewed
the law pertaining to the circumstances under which punitive damages may be awarded in
a products liability case, and we believe that the instructions given by the trial court
accurately instructed the jury.
Ford submitted a jury instruction which essentially advised the jury that it could not
find for the plaintiffs if the parties presented conflicting testimony from expert witnesses.
In this case, the jury was presented with conflicting evidence on the claim of willful and
wanton conduct. The jury was free to accept the evidence presented by Dora and reject the
evidence presented by Ford. We hold that Ford's proposed instruction No. 20 did not advise
the jury of the proper standard for awarding punitive damages, and the trial court did not
abuse its discretion in refusing it.
Based upon our ruling that Ford's proposed instruction No. 20 did not accurately state
the law and was, therefore, properly refused, we also reject Ford's related argument that it
was denied due process by the exclusion of this instruction. It is elementary that a party has
no due process right to instructions that do not accurately state the law. 177 Ill. 2d R. 239(a).
Ford argues that the trial court's refusal to give this proposed instruction "was not simply an
error under Illinois law[;] it also rendered the I.P.I. Civil standard for awarding punitive
damages unconstitutionally vague as applied to this case." (Emphasis in original.) We
disagree. Ford and other manufacturers should have known the standard for the imposition
of punitive damages for several decades. See Moore, 116 Ill. App. 2d at 135-36, 253 N.E.2d
at 648-49 ("It is well established in Illinois that where there is evidence of wilful and wanton
conduct, punitive damages may be allowed. *** The question of wilful and wanton conduct
76
is essentially whether the failure to exercise care is so gross that it shows a lack of regard for
the safety of others") aff'd on other grounds, 46 Ill. 2d 288, 263 N.E.2d 103 (1970); Collins,
126 Ill. App. 3d at 256, 466 N.E.2d at 1199 ("Punitive damages based on wilful and wanton
conduct are allowed in product liability actions where there is evidence of conscious
disregard for the safety of others"). Ford was not denied due process by the trial court's
rejection of its proposed instruction No. 20.
4.
Ford's Nonpattern Instruction Nos. 15 and 19
Ford's final argument is that it was denied due process by the trial court's rejection of
two nonpattern instructions Ford claims were required by decisions of the United States
Supreme Court. Ford's proposed instructions provided as follows:
"You may not award any punitive damages for the purpose of punishing Ford
Motor Company for the sale of vehicles in other states, for any injuries that may have
occurred in other states, or for the purpose of changing Ford M otor Company's
conduct outside the State of Illinois." Ford's proposed instruction No. 15.
"Any individuals other than the plaintiff who might claim to have been harmed
by the defendant have the right to bring their own lawsuit seeking compensatory and
punitive damages for the wrong, if any done to them. Therefore, if you decide to
impose punitive damages, you may not impose punitive damages for the purpose of
punishing the defendant for any wrong except the wrong done to the plaintiffs in this
case." Ford's proposed instruction No. 19.
In a series of recent decisions, the United States Supreme Court has provided
guidelines to aid state courts in preventing the imposition of excessive punitive-damage
awards. Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 113 L. Ed. 2d 1, 111 S.
Ct. 1032 (1991) (while an excessive punitive-damages award may violate the due process
77
clause, the common law method of assessing punitive damages is not per se
unconstitutional); TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 125 L.
Ed. 2d 366, 113 S. Ct. 2711 (1993) (although no mathematical bright-line test can be
formulated to determine whether a punitive-damages award is constitutionally excessive, a
general concern of "reasonableness," under the circumstances of a particular case, must be
considered); BMW of North America, Inc. v. Gore, 517 U.S. 559, 134 L. Ed. 2d 809, 116 S.
Ct. 1589 (1996) (while evidence of out-of-state transactions is relevant to the degree of
reprehensibility of the defendant's conduct, a state court may not sanction procedures that
punish a defendant in order to deter conduct which is lawful in other states); State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 155 L. Ed. 2d 585, 123 S. Ct.
1513 (2003) (due process does not allow a state to punish a defendant for out-of-state
conduct that is lawful where it occurred or to adjudicate other parties' hypothetical claims
under the guise of a reprehensibility analysis); Philip Morris USA v. Williams, 549 U.S. 346,
166 L. Ed. 2d 940, 127 S. Ct. 1057 (2007) (while a jury may be allowed to consider harm
to nonparties in determining the degree of the reprehensibility of the defendant's conduct, the
jury must be instructed, upon request, not to punish the defendant for harm to nonparties).
We see no need for an extensive analysis of the foregoing cases since this case is
clearly distinguishable. In each of the above cases, the defendant appealed the punitive-
damages award, arguing that it was excessive. The only issue in those cases concerned the
amount of the punitive damages awarded. The Supreme Court rulings cited by Ford did not
implicate in any way a defendant's liability for a punitive-damages award. The Supreme
Court promulgated guidelines for trial courts to follow to decrease the likelihood of an
excessive award, and for reviewing courts to follow, once a decision had been made that the
defendant was liable for punitive damages, to determine whether the amount awarded was
unconstitutionally excessive.
78
Here, Ford makes no claim that the amount of the punitive damages awarded is
excessive. Instead, Ford argues only that the foregoing decisions are equally applicable to
whether Ford is liable for punitive damages, and Ford requests a new trial on its liability for
punitive damages. In fact, Ford seeks to bootstrap its argument into a claim that it is entitled
to a new trial on all the issues. We disagree with Ford's argument. We believe that the
authorities upon which Ford relies are limited to claims of excessive punitive damages, and
we hold that, in the absence of such a claim, Ford has waived any error in the trial court's
failure to submit Ford's proposed jury instructions.
We find no authority for Ford's argument that the failure to give its proposed
instructions requires a new trial on its liability for punitive damages, much less a new trial
on all the issues. In fact, in each of the cases Ford cites as examples of decisions reversing
a punitive-damages award for a failure to give similar instructions, the defendant argued that
the award was excessive, and the court's remand of the case was limited to a new
determination of the amount of the award. See White v. Ford Motor Co., 500 F.3d 963 (9th
Cir. 2007) (the district court erred in failing to instruct the jury that it could not punish Ford
for harm to nonparties, and the cause was remanded for a new trial on the amount of punitive
damages); Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153 (Ky. 2004) (the failure to
instruct the jury that it could not punish defendant Ford for out-of-state conduct was error,
and the cause was remanded for a new trial limited to the amount of the punitive-damages
award); Estate of Schwarz v. Philip Morris Inc., 206 Or. App. 20, 135 P.3d 409 (2006) (the
failure to instruct the jury that it could not punish the defendant for the impact of its conduct
on individuals in other states was error, and the cause was remanded for a new trial limited
to a determination of the amount of punitive damages), appeal allowed, 346 Or. 213, 208
P.3d 963 (2009).
Indeed, there are good reasons that Ford has not claimed that the punitive-damages
79
award in this case is excessive or asked this court to remand for a new trial on the amount
of the award. In all of the cases discussed above, the jury awarded punitive damages that
were multiples of the compensatory damages awarded. In one case affirmed by the Supreme
Court, the punitive-damages award was 526 times the compensatory-damages award (TXO
Production Corp., 509 U.S. at 453, 125 L. Ed. 2d at 376, 113 S. Ct. at 2718), although the
Court has since expressed the view that a punitive-damages award more than a single-digit
multiple of compensatory damages may be suspect in a due process analysis (State Farm
Mutual Automobile Insurance Co., 538 U.S. at 425, 155 L. Ed. 2d at 605-06, 123 S. Ct. at
1524). Here, the punitive-damages award was less than the compensatory-damages award.
Thus, Ford finds itself in a difficult situation in its challenge to the punitive-damages
award. If it argues that the award is excessive and the award is reversed as a result of the
trial court's failure to give its proposed instructions, any new trial would be limited to the
amount of the punitive-damages award. However, Ford clearly does not want a new trial
limited to the amount of punitive damages because a new award may be higher. As a result,
Ford limits its argument on appeal to an attempt to extend the holdings of the Supreme Court
to allow a new trial on its liability for punitive damages or, in the alternative, on all the
issues. We have already held that the trial court did not err in submitting the issue of
punitive damages to the jury and that the jury's decision to render a punitive-damages award
is not against the manifest weight of the evidence. We decline to extend the Supreme Court's
due process analysis of excessive punitive-damage awards to the issue of liability for
punitive damages. By making no claim that the punitive-damages award is excessive or
requesting a new trial on the amount of punitive damages, Ford has waived any error in the
trial court's failure to give its proposed instructions.
CONCLUSION
W e have carefully reviewed the extensive record in this case and considered the
80
myriad issues raised by Ford. We firmly believe that the parties received a fair trial in this
case. The jury heard extensive evidence from both sides, and the contested issues were fully
and fairly presented. As one court succinctly noted in a similar case: "Both sides presented
lengthy and conflicting testimony from a long list of experts. The jury made its decision."
Carillo v. Ford Motor Co., 325 Ill. App. 3d 955, 966, 759 N.E.2d 99, 107 (2001).
We find no reversible error and therefore affirm the judgment in its entirety.
Affirmed.
DONOVAN and SPOMER, JJ., concur.
81
NO. 5-05-0723
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
DORA M AE JABLONSKI and JOHN L. ) Appeal from the
JABLONSKI, JR., as Special Administrator
) Circuit Court of
and Personal Representative of the Estate of
) Madison County.
John L. Jablonski, Sr., )
)
Plaintiffs-Appellees, )
)
v. ) No. 03-L-2027
)
FORD MOTOR COMPANY, )
)
Defendant-Appellant, )
)
and )
)
NATALIE S. INGRAM, ) Honorable
) A. A. Matoesian,
Defendant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: February 1, 2010
___________________________________________________________________________________
Justices: Honorable Bruce D. Stewart, J.,
Honorable James K. Donovan, J., and
Honorable Stephen L. Spomer, J.,
Concur
___________________________________________________________________________________
Attorneys Dan H. Ball, Elizabeth C. Carver, Alan J. Dixon, Peter W. Herzog III,
for Stephen G. Strauss, Thomas C. Walsh, Bryan Cave LLP, One Metropolitan Square,
Appellant 211 N. Broadway, Suite 3600, St. Louis, MO 63102
___________________________________________________________________________________
Attorneys Bradley M. Lakin, Charles W . Chapman, Gerald R. W alters, Gail G. Renshaw,
for The Lakin Law Firm, P.C., 300 Evans Avenue, P.O. Box 229, Wood River, IL
Appellees 62095
___________________________________________________________________________________