specially concurring:
I agree with the majority summary judgment was improper in this case because material questions of fact exist as to whether there was a feasible alternative design available and whether Scripto exercised reasonable care in the design and manufacture of the Aim N Flame. With respect to the strict liability claim, I also agree that no reasonable fact finder could conclude that the Aim N Flame was unreasonably dangerous under the consumer expectation test. Regarding the risk-utility test, however, I disagree with the reasoning behind the majority’s rejection of the simple-product exception. I would hold that whatever its merits, the exception has no application in this case because the Aim N Flame lighter is not a simple product. Consequently, the majority properly evaluates the plaintiffs claim under the risk-utility test.
In Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106 (1991), the plaintiff was working in a restaurant kitchen when he slipped and fell, submerging his arm in hot oil contained in an open deep-fat fryer. Scoby, 211 Ill. App. 3d at 112. The plaintiff sued the fryer manufacturer, who argued that because the danger in question was not “excessive,” the risk-utility test should not be utilized. Scoby, 211 Ill. App. 3d at 111-12. The Scoby court agreed, holding that where the danger at issue is open and obvious, and the mechanism in question is simple, the risk-utility test should not be used. Scoby, 211 Ill. App. 3d at 112-13.
The majority concludes that while Scoby used “simple” and “open and obvious” as separate components, the dangers associated with a “simple” product are, by their very nature, open and obvious. Consequently, the majority concludes that the simple-product exception set forth in Scoby is nothing more than the adoption of a general rule that a manufacturer will not be liable for open and obvious dangers, a position this court rejected in Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 103 (2005).
I am not persuaded by the majority’s reasoning. As the majority acknowledges, the Scoby court treated simplicity of the product and the openness and obviousness of the danger as separate elements. As envisioned by Scoby, the simple-product exception applies only when the product is simple and the dangers are open and obvious. In other words, under the simple-product exception, the openness and obviousness of a product’s dangers will not per se preclude liability unless the product is also a simple one. The majority’s view that the simple-product exception is nothing more than a general rule that a manufacturer will not be liable for open and obvious dangers essentially reads the “simple” component out of the simple-product exception. Consequently, the majority rejects the simple-product exception without ever addressing its merits.
Although I disagree with the majority’s rejection of the simple-product exception, I would hold that it does not preclude application of the risk-utility test in this case because the Aim N Flame is not a simple product. Applying that test, I agree with the majority that there was sufficient evidence to raise a genuine material issue of fact with respect to the question of whether a feasible alternative design was available. Consequently, summary judgement on the strict liability count was improper.