specially concurring in part and dissenting in part:
I agree with the following conclusions reached by the majority: (1) “the existence of an open and obvious danger is not a per se bar to finding that a product is unreasonably dangerous, based upon defective design, so as to subject a manufacturer to liability” (331 Ill. App. 3d at 912); and (2) there is a question of fact as to whether the risk here was open and obvious, and, therefore, defendant was not entitled to summary judgment under the consumer expectation test (331 Ill. App. 3d at 902). However, regarding the risk-utility test, I do not agree with the majority’s conclusion that “plaintiff here did present a factual basis that would arguably entitle her to a judgment.” (Emphasis in original.) 331 Ill. App. 3d at 900. On that basis, I respectfully dissent.
The defendant’s theory on summary judgment was that the risk of injury to plaintiff was open and obvious, and, therefore, the product could not be unreasonably dangerous and there was no duty to warn. The defendant’s summary judgment motion was based on a consumer expectation analysis, not a risk-utility analysis. In the context of risk utility, the record does not reflect evidence of how the design of the machine could have been altered to create a safer machine or any evidence of the form and feasibility of an alternative machine design. In the context of risk utility, no evidence was produced by plaintiff or defendant during the course of the summary judgment hearing that demonstrated: (1) the product is defective and unreasonably dangerous because a safer design for the product is practical and effective; (2) a safer design for the product can be provided at a reasonable cost; (3) the risk of danger inherent in the design outweighs the utility of the design; and (4) the design could be altered to create a safer product. See W. Keeton, Prosser & Keeton on Torts § 99(3) (5th ed. 1984); Lamkin v. Towner, 138 Ill. 2d at 530-31. This lack of evidence, however, is understandable since the issue of risk utility was not addressed by the defendant in the motion for summary judgment or by any evidence or argument offered by either party to the trial court. The defendant’s summary judgment motion relied only on a consumer expectation analysis.
Contrary to the majority’s interpretation of this dissent, I do not conclude that the defendant satisfied its initial burden of production regarding risk utility and, therefore, the burden shifted to the plaintiff. 331 Ill. App. 3d at 900. Rather, this record does not reflect that plaintiff intended to utilize the risk-utility analysis as an alternative method of proving design defect. Neither the defendant nor the plaintiff addressed risk utility. The risk-utility test was raised for the first time on appeal. In the context of risk utility, the plaintiff did not plead a feasible alternative design, nor is she necessarily required to do so in a products design case. Seward, 116 Ill. App. 3d at 766, citing Kerns v. Engelke, 76 Ill. 2d 154 (1979). Neither the defense nor the plaintiff developed a record based on the risk-utility test because it was not before the trial court by way of defendant’s summary judgment motion. The trial court neither considered nor applied the risk-utility test, but granted summary judgment based on the consumer expectation test. The trial court, plaintiff and defendant addressed only that test during the summary judgment proceeding. Nothing in this record would have alerted the defense to the fact that the plaintiff intended to prove design defect by utilizing risk utility as á method of proof. That fact is the source of the confusion in this record.
The consumer expectation test is not the exclusive method of proving design defect; Illinois permits a plaintiff an alternative method of proving design defect under the risk-utility test. Lamkin v. Towner, 138 Ill. 2d at 529. The Illinois Supreme Court in Lamkin provides the leading case in Illinois both defining and applying the risk-utility and consumer expectation theories. Lamkin addressed whether liability could be imposed under negligence or strict products liability for injury to a child who fell through a window screen. Lamkin defined the risk-utility and consumer expectation theories in the disjunctive, as alternative methods of proof, not as a two-pronged test as follows:
“A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product’s design proximately caused his injury and defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.” (Emphasis added.) Lamkin v. Towner, 138 Ill. 2d at 529.
Despite the fact that Lamkin clearly describes the risk-utility and consumer expectation tests as alternative methods of proof, appellate and federal cases add to the confusion in this area by referring to these tests as “integrative tests,” “dual tests,” and “two-pronged tests.” At least one unpublished opinion, apparently relied upon by the defendant, found the tests to be mutually exclusive, concluding “ ‘where the alleged danger is obvious, the risk utility test is not applicable.’ ” 331 Ill. App. 3d at 907. This area has not only generated confusion, but has increased the burden placed upon defendant at the summary judgment stage of the proceeding. See W. Viscusi, Wading Through The Muddle of Risk-Utility Analysis, 39 Am. U. L. Rev. 573 (1990). The majority wisely recognizes the increased burden placed upon defendant regarding summary judgment motions in design defect cases under the risk-utility analysis. “It has been noted by one commentator, and we agree, that the adoption of a risk-utility analysis by a court actually increases the defendant’s burden on summary judgment because the defendant must show that, by balancing the product’s risk against its utility, the lack of a defect is plain and indisputable. See Am. L. Prod. Liab. § 28:16 (3d rev. ed. 1997).” 331 Ill. App. 3d at 906. The risk-utility test has been recognized as more complex than the consumer expectation test since it “encompasses many more considerations than the relatively simple consumer-expectation test.” Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 456 (1991). As demonstrated by this case in the context of summary judgment, application of the risk-utility test can be particularly problematic.
Of particular concern is that, under the approach taken by the majority, the defendant in every design defect case where summary judgment is sought would be required to demonstrate that no material question of fact existed under both the consumer expectation and risk-utility tests in order to prevail on the summary judgment motion regardless of whether the plaintiff intended to utilize risk utility as a method of proof. Such a result is not only fundamentally unfair, but can be a waste of judicial time and resources. Where the plaintiffs method of proving design defect is based on the risk-utility test in the context of a feasible alternative design, disclosure of that fact will help eliminate confusion in resolving summary judgment and prevent wasted time and resources.
It is an oversimplification by the majority to characterize this dissent as standing for the proposition that plaintiff must present evidence of a feasible alternative design in order to survive summary judgment. 331 Ill. App. 3d at 911-12. The absence of a feasible alternative design does not prevent the finder of fact at trial from being persuaded by other evidence that the defect in design rendered the product unreasonably dangerous. Seward v. Griffin, 116 Ill. App. 3d 749, 766 (1983). Likewise, at the summary judgment stage of the proceeding, the absence of a feasible alternative design does not prevent the trial court from finding a question of fact based on other evidence as to whether the defect in design rendered the product unreasonably dangerous. What evidence a plaintiff must present in order to survive summary judgment depends upon the issues raised by the defendant’s summary judgment motion.
Contrary to the majority’s conclusion, it is not only Lamkin v. Towner, but a series of other cases, together with Lamkin, that provide the basis for my conclusion that the plaintiff, in the context of this case, should be required to disclose whether she is relying on risk utility as a method of proving design defect. I reach that conclusion based on the following: (1) the alternative nature of the risk-utility and consumer expectation tests as methods of proof (Lamkin, 138 Ill. 2d at 529); (2) in the context of risk utility, the lack of pleading requirements regarding a feasible alternative design (Kerns, 76 Ill. 2d at 163); (3) the confusion surrounding application of the risk-utility test, particularly at the summary judgment stage of the proceeding (331 Ill. App. 3d at 907); (4) the complexity of the risk-utility test (Harnischfeger, 223 Ill. App. 3d at 456); and (5) the increased burden placed on defendant at summary judgment by application of the risk-utility test (Am. L. Prod. Liab. § 28:16 (3d rev. ed. 1997)). Such disclosure would help eliminate the confusion demonstrated by this record. At this point the record is silent as to that question. If plaintiff intends to utilize that method of proof, then the defendant should be given the opportunity to move for summary judgment in the context of the risk-utility test.
In resolving such a defense motion for summary judgment based on the risk-utility test, the trial court would decide whether there is a genuine issue as to a material fact. Is there a question of fact as to whether there was a reasonable and safer alternative design at the time of the manufacture of the product? Restatement (Third) of Torts § 2(b) and Comment f (1998); G. Wilson, V. Moccio & O. Fallon, The Future of Products Liability in America, 27 Wm. Mitchell L. Rev. 85 (2000). The factors considered by the court in resolving that question could include, but not be limited to, the following: (1) evidence that “the magnitude of the danger outweighs the utility of the product”; (2) evidence the product was “defective in the kind of way that makes it ‘unreasonably dangerous’ if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product”; and (3) evidence that “harmful consequences in fact from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiffs injury outweighed the benefits in terms of wants, desires, and human needs served by the product.” W. Keeton, Prosser & Keeton on Torts § 99(3) (5th ed. 1984); see also Restatement (Second) of Torts §§ 291 through 293 (1965).