dissenting:
Plaintiff’s action against defendant GATX sounds in strict liability for a defective product design. Since I believe the majority applied an erroneous test for determining whether the railway tank car in question was unreasonably dangerous because of its defective design, and since I believe the majority erroneously sanctioned the trial court’s refusal to permit GATX to present to the jury in its defense the “state of the art” and its compliance with Federal standards and regulations, I respectfully dissent.
The confusion inherent in cases involving a determination of when a product is unreasonably dangerous because of defective design is embodied in the majority opinion. They relate that “GATX seeks to distinguish the rejection in Cunningham of ‘state of the art’ as a defense in strict products liability cases, arguing that the court in Cunningham was not confronted with a case involving product design, but rather a contaminated product.” To this argument the majority remarked, “We fail to see any practical distinction between the two types of cases.” (Emphasis added.) Thus, the majority sees no distinction between this case and the ordinary products liability case involving faulty manufacture. I believe the distinction is real and calls for a departure from the usual approach to the determination of liability.
Although my research has not disclosed any Illinois cases that have expressly considered the question, there is a growing awareness among legal commentators and courts that cases asserting strict liability for a product rendered unreasonably dangerous because of defective design cannot be handled in the same manner as the usual defectively manufactured product case.
The facts attending the case against GATX which we have under consideration present the “unreasonably dangerous because of defective design” issue squarely and squarely we should meet it. The result reached by the majority has imposed absolute liability upon the manufacturer, or, at best, has left the question of liability to the whim of the jury. The jury was given no standards whatsoever as a guide for their determination of the crucial issue in the case against GATX — was the tank car in question unreasonably dangerous because of a defective design?
The most basic distinction in products liability cases is that between those cases involving manufacturing flaws and those cases involving genetically dangerous products. Manufacturing flaws are imperfections that are bound to appear in some products as a result of the fallibility of the manufacturing process; some products simply do not measure up to the intended design. On the other hand, genetically dangerous products are dangerous because of the manner in which they are designed or marketed. Such products conform to the intended design.
Genetically dangerous products may be subdivided into products that are unusually dangerous because of the manufacturer’s design errors and products that are dangerous because of a conscious choice in the product’s design.
A designer of products may inadvertently fail to appreciate the various elements of design or to incorporate in his design the generally accepted techniques applicable to the particular process.
In contrast with products unreasonably dangerous because of inadvertent design errors are products that are dangerous as a result of conscious design choices. Such products are genetically dangerous and the danger may bear a direct relation to the function of the product and their makers are fully aware that they are designing and creating a dangerous product. With this category of unreasonably dangerous products courts have encountered considerable difficulty in determining liability and it is with this category that we are here concerned.
The railway car in question was the result of a conscious design choice and was constructed without flaw in the manufacturing process. That it was dangerous must now go without question. Likewise, it appears there is no question but that the accident and injury which occurred were foreseeable in the sense that it was objectively reasonable to expect. Winnett v. Winnett, 57 Ill. 2d 7, 310 N.E.2d 1.
But to say that the railway car in question was dangerous does not conclude the question of defendant’s liability. As our supreme court said in Rios v. Niagara Machine & Tool Works, 59 Ill. 2d 79, 83, 319 N.E.2d 232, 235: “* * ° [T]o establish liability in strict tort it is not sufficient that the plaintiff prove the product was dangerous; he must prove that it was unreasonably dangerous, or in other words not reasonably safe.”
Section 402A of the Restatement (Second) of the Law of Torts (1965) recognizes that the law must make some allowance for products that are genetically dangerous in order that liability for injuries from the use of such products not be absolute. Comment k of section 402A states:
‘7c. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. * * * The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”
In line with this comment from the Restatement, Illinois courts, along with the courts of every other jurisdiction, have consistently refused to adopt a rule of absolute liability for injury from defective products. For instance, there is no liability where the danger is open and readily apparent to all (Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465); where the injury is not foreseeable in the sense that it is not objectively reasonable to expect (Winnett v. Winnett); where the plaintiff has assumed the risk (Williams v. Brown Manufacturing Co., 45 Ill. 2d 418, 261 N.E.2d 305); or where the product is misused (Lewis v. Stran-Steel Corp., 6 Ill. App. 3d 142, 285 N.E.2d 631, revd on other grounds, 57 Ill. 2d 94).
Given that much social utility and benefit are derived from the use of genetically dangerous products, our society could not exist without them, and that absolute liability should not be imposed upon the manufacturers for injuries inflicted by such products, what are the standards by which liability is to be imposed?
Criticism of the practice of submitting for jury determination under the “manufacturing defect” format the question whether a product is unreasonably dangerous because of defective design is readily found together with suggestions for a rational approach to a proper submission of the issues.
Dean Page Keeton, an acknowledged authority in products liability law, states in Manufacturers Liability: The Meaning of “Defect” in the Manufacture and Design of Products, 20 Syracuse L. Rev. 559 (1969), that there is great confusion and uncertainty as to the extent of strict liability for defective design. He suggests that differences between design cases and manufacturing cases are found in terms of the policy of allocating risks. A miscarriage in the manufacturing process is a proper risk to be allocated to the maker but it is not at all clear that this concept is true in all design cases. He states also that nothing is so safe that it cannot be made safer, and extremely close questions are presented, especially when the danger involved in the design is open and obvious. Dean Keeton suggests that the negligent design inquiry is one which requires proof to support the following findings:
“(1) an appreciable danger from some condition, ingredient, or component of the product in fact existed; (2) actual or implied knowledge that harm could result from a condition or an ingredient of the product was present at the time of sale; (3) that the maker realized or should have realized in the exercise of ordinary care the dangers involved in the product’s use; and (4) that an ordinary man would have concluded that the magnitude of the discoverable danger outweighed the benefits of the product, at least in the absence of more satisfactory instructions or information.”
Professor Henderson, in Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Columbia L. Rev. 1531, 1558 (1973), warns:
“Assuming the validity of the hypothesis that adjudication is unsuited to answering the question of ‘How much design safety is enough?,’ it follows that a broad scale judicial commitment to the independent review of conscious design choices would bring with it a very real threat to the integrity of the judicial process. Confronted with the hopeless difficulties of trying to redesign products via adjudication, and presumably unable to resist the social pressures generally favoring injured plaintiffs, courts would inevitably resort to some form of judicial coin-flipping, i.e., they would begin to determine defendant’s liability on some arbitrary basis rather than on the purported basis of the reasonableness of the product designs brought before them. Efforts to establish meaningful design standards would be abandoned in favor of allowing juries to determine defendants’ liability upon no more substantial grounds than their own untutored ‘good judgment,’ or whim. The shift in the basis of manufacturers’ liability would be disguised, consciously or otherwise, by heavy reliance upon the unsupported opinions of experts relating to the ultimate issue of the reasonableness of defendants’ conscious design choices. The absence of any viable product safety standards with which to decide the cases, however, would be obvious even to the casual observer. In effect, the adjudicative process would largely become a sham. Although such tactics might render these cases manageable in the short run, they would do so at the cost of a serious erosion of confidence in the courts by those litigants who would correctly come to realize that they have been denied effective access to the adjudicative process by such subterfuge.”
Dean Wade, in On the Nature of Strict Tort Liability for Products, 44 Miss. L. J. 825 (1973), states that in design cases policy issues become very important and relevant factors must be collected and carefully weighed. He suggests a test which looks to the manufacturer’s “reasonably prudent” conduct, and which assumes that the manufacturer’s knowledge of the condition of the product existed. The test should ask whether under these circumstances it was unreasonable for such manufacturer to place the product on the market. The test is similar to that in an ordinary negligence case except that the element of scienter is presumed. The issue becomes, Dean Wade states, “whether the magnitude of the risk created by the dangerous condition of the product was outweighed by the social utility attained by putting it out in this [dangerous] fashion.”
Dean Prosser suggests that the consideration of a defective design rests primarily upon a departure from proper standards of care, so that the tort is essentially a matter of negligence which involves a duty to use reasonable care to design a product that is reasonably safe for its intended use, and for other uses which are foreseeably probable. Prosser on Torts §96.
Michael Hoenig, of the New York Bar, in Product Designs and Strict Tort Liability: Is there a Better Approach? 8 Sw. U. L. Rev. 109, 120 (1976), states:
“Design cases by their nature present the courts with difficult problems. To evaluate the design of an automobile, for example, the court must not only consider engineering factors but also must make value judgments about the extent to which the design may subordinate safety to considerations of price, style, and convenience. In design cases much more than the product is impugned. The designer’s conduct is impugned as well, for the allegations necessarily question the manufacturer’s balancing of the harm against the utility of the product in the light of industry standards.”
Examination of the full texts of the above-cited commentaries, and consideration of the analyses of relevant cases, leads to the inescapable conclusion that there is a means and manner for rationally determining, by the existing adjudicative process, when a product, dangerous as a result of a conscious design choice, is unreasonably dangerous and its maker subjected to strict products liability for resultant injuries.
In the case under consideration the trial court gave the jury Plaintiff’s Instruction No. 26A, a non-IPI instruction, over defendant’s strenuous objection:
“The manufacturer of a product is hable for damages proximately resulting from its reasonably foreseeable use, if, at the time it left its control, there existed in the product a condition which rendered it not reasonably safe for such use. It is not a defense that the condition could not have been discovered by the manufacturer, or that all possible care used in the manufacture of the product, or that the manufacturer adhered to all rules, regulations, specifications or state of the manufacturing art existing at the time the product was manufactured or left its control.”
In the case of an unreasonably dangerous product which is the result of a manufacturing defect or an inadvertent design error, this instruction would be proper. The first sentence of the instruction is apparently a derivative of IPI Civil No. 400.06 (Supp. 1977), which provides:
“When I use the expression ‘unreasonably dangerous’ in these instructions, I mean unsafe when put to a use that is reasonably foreseeable considering the nature and function of the [product].”
It can be readily seen that the effect of the foregoing instruction was to direct a verdict of absolute liability. No matter that the product was the ultimate in design, or that its design was compelled by legislative or administrative regulation, or that no other design was for any reason unavailable, or that it was the same design used by other manufacturers. There was no means or manner whatsoever in which GATX could show the design was not defective and that although the tank car was dangerous it was not unreasonably dangerous.
Other jurisdictions have considered the problem and developed workable formulas for submitting the issues in defective design cases for jury consideration.
In Barker v. Lull Engineering Co. (1978), 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 223, the Supreme Court of California considered an assertion by plaintiff that a highlift loader was unreasonably dangerous because of defective design. Plaintiff was the operator of the loader when it became unstable as an elevated load was being handled while the loader was on uneven ground; the loader tipped over and when plaintiff jumped from the cab he was struck and injured by a piece of lumber which had fallen from the load. The loader was designed so that its load could be kept level even when the loader was being operated on uneven terrain.
The court in Barker examined the basis of liability for defective products and concentrated in particular upon the meaning of defect in the context of a charge of improper design. They noted the distinctive approach required in a products liability case involving defective design:
“[T]he concept of defect raises considerably more difficulties in the design defect context than it does in the manufacturing or production defect context.” (20 Cal. 3d 413,429,573 P.2d 443,453-54, 143 Cal. Rptr. 223, 235.)
After a review of California cases the court found a two-pronged definition of design defect that California courts had followed without having expressly articulated them as such. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design, if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design. Commenting on the two-pronged test thus articulated the court stated:
“[W]e believe that the test for defective design set out above is appropriate in light of the rationale and limits of the strict liability doctrine, for it subjects a manufacturer to liability whenever there is something ‘wrong’ with its product’s design — either because the product fails to meet ordinary consumer expectations as to safety or because, on balance, the design is not as safe as it should be— while stopping short of making the manufacturer an insurer for all injuries which may result from the use of its product. This test, moreover, explicitly focuses the trier of fact’s attention on the adequacy of the product itself, rather than on the manufacturer’s conduct, and places the burden on the manufacturer, rather than the plaintiff, to establish that because of the complexity of, and tradeoffs implicit in, the design process, an injury-producing product should nevertheless not be found defective.
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000 [P]ast design defect decisions demonstrate that, as a practical matter, in many instances it is simply impossible to eliminate the balancing or weighing of competing considerations in determining whether a product is defectively designed or not.” 20 Cal. 3d 413, 432, 573 P.2d 443, 456, 143 Cal. Rptr. 223, 238.
The Barker court took care to cast the burden of proof in design cases on the manufacturer in the following manner:
“Because most of the evidentiary matters which may be relevant to the determination of the adequacy of a product’s design under the ‘risk-benefit’ standard — e.g., the feasibility and cost of alternative designs — are similar to issues typically presented in a negligent design case and involve technical matters peculiarly within the knowledge of the manufacturer, we conclude that once the plaintiff makes a prima facie showing that the injury was proximately caused by the product’s design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.” 20 Cal. 3d 413, 431, 573 P.2d 443, 455, 143 Cal. Rptr. 223, 237.
Other jurisdictions have adopted similar, though not identical, tests for use in determining when a product is unreasonably dangerous because of defective design. See, e.g., Henderson v. Ford Motor Co. (Tex. 1974), 519 S.W.2d 87; Welch v. Outboard Marine Corp. (5th Cir. 1973), 481 F.2d 252.
In Product Liability and the Meaning of Defect, 5 St. Mary’s L. J. 30 (1973), Dean Keeton proposes an intelligible and workable test for determining when a product is unreasonably dangerous because of defective design.
“A product is defective if it is unreasonably dangerous as marketed. It is unreasonably dangerous if a reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is proved to be at the time of trial outweighed the benefits of the way the product was so designed and marketed. Under the heading of benefits one would include anything that gives utility of some kind to the product; one would also include the infeasibility and additional cost of making a safer product. As the Court, of Appeals for the Fifth Circuit has said, ‘[DJemanding that the defect render the product unreasonably dangerous reflects a realization that many products have both utility and danger.’ ”
Thus, Dean Keeton sees the test as an equation: If a reasonable person would conclude that the danger in fact of the product designed outweighs the utility of the product, then it is defectively designed. Under this equation a product is not unreasonably dangerous because of its design if its social utility outweighs its danger; or, it is unreasonably dangerous because of its design if its danger outweighs its social utility.
This test, expressed in equation form, is easily framed into instructions for the jury and presents matters for resolution by them that are no more complicated than they would encounter in an ordinary negligence action. Once the plaintiff establishes a prima facie case of dangerous design the burden of proof that the benefits of the challenged design outweigh the risk of danger in such design should be on the defendant.
By “utility” is meant the social benefit derived from use of the product; whether there is a more feasible way of designing the product so as to make it safer; and are there alternative products that would give the same benefits without the danger.
In the suggested approach the plaintiff would attempt to show such matters as that others used a safety device which was missing or that an inexpensive part could have been used to prevent the accident. The defendant could then introduce such matters as cost, function, utility and other matters that served to narrow design choices. “State of the art” would be proper evidence as would any standards contained in legislation, or administrative regulations, and industry standards.
As expressed above, I believe evidence of the “state of the art” should be admissible in a defective design action. Whether or not it constitutes a defense is a matter for resolution by the jury. In this regard I disagree with the assertion by the majority that the Cunningham case is authority for the proposition that “state of the art” is never to be utilized as a defense in a products liability case. As I have discussed, a distinction must be made in the type of products liability that is being asserted, and that distinction needs no further discussion here. Suffice it to say that Cunningham was concerned with a defect that occurred during production, it did not involve an assertion of unreasonable danger because of a design defect. It accordingly is not authority for the statement by the majority that “state of the art” is never a defense.
The case of Gelsumino v. E. W. Bliss Co., 10 Ill. App. 3d 604, 295 N.E.2d 110, was a products liability case in which plaintiff alleged improper design. The core question in the appeal was whether the defendant should have been permitted to use evidence of the “state of the art.” In sole reliance upon the statement in Cunningham the court held that the “state of the art” was of no consequence in determining the liability of defendant. In the posture of the case thus cast, it permitted absolute liability of the defendant to be fixed upon the defendant at the whim of the jury.
The Gelsumino case was discussed and criticized, and the statement in Cunningham regarding the “state of the art” defense evaluated, in an article appearing in 41 Tenn. L. Rev. 357 (1974), Products Liability— Strict Liability — Elimination of the “State of the Art” Defense. The article concluded that:
“Therefore, the Cunningham rationale is appropriate where there is a problem in the fabrication of the product but the design is proper. But it should not have been applied where there is an allegation of improper design which has made the product unreasonably dangerous.” 41 Tenn. L. Rev. 357, 362.
For the foregoing reasons I would reverse and remand this case for a new trial with directions that the question whether the tank car was unreasonably dangerous because of defective design be submitted to the jury by an instruction framed in terms of the equation formula suggested by Dean Keeton, and that evidence be received as it may have a bearing upon the facets of that formula.