dissenting:
Froducts-liability law in Illinois is difficult and evolving, and I appreciate the majority’s scholarly efforts to appropriately review the trial court’s grant of summary judgment for defendant. The majority concludes that the trial court erred in doing so, but for the reasons that follow, I respectfully dissent.
In my judgment, this court’s recent decision in Bates, 346 Ill. App. 3d 223, 803 N.E.2d 977, is both on point and supportive of the trial court’s grant of summary judgment. The allegedly defective product at issue in Bates was a Wrangler front-end loader from which the decedent’s employer had removed a roll bar. While operating the loader, decedent was killed in an accident that the parties agreed would not have occurred had the roll bar not been removed. Decedent’s widow and estate (Bates) sued the loader’s seller (Richland) under theories of negligence and strict products liability, alleging that the loader was dangerously defective in its design. The trial court dismissed the negligence counts and later granted summary judgment in favor of Richland on the products-liability counts. On appeal, this court affirmed.
In Bates, we first addressed a seller’s duty to warn about a product, writing as follows:
“On pain of strict liability in tort, a seller must warn a buyer if (1) the product has dangerous propensities, (2) the seller has greater knowledge than the buyer of the risk of harm from those propensities, and (3) the seller knows, or should know, that unless the seller warns the buyer of that risk, the buyer will suffer harm. Sollami, 201 Ill. 2d at 7, 772 N.E.2d at 219; Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 29, 402 N.E.2d 194, 196 (1980). Unequal knowledge of the risk is the sine qua non of a duty to warn. Sollami, 201 Ill. 2d at 7, 772 N.E.2d at 219. If, from an objective point of view, the danger would be apparent, or ‘open and obvious,’ to an ordinary person, the seller has no duty to warn of it. Sollami, 201 Ill. Id. 2d at 7, 772 N.E.2d at 219.” Bates, 346 Ill. App. 3d at 232-33, 803 N.E.2d at 985-86.
This court then rejected Bates’ argument as to Richland’s failure to warn, explaining as follows:
“Objectively, an ordinary person would know that without some sturdy intervening structure between the driver and the horsepower of that engine, the engine will prevail. Richland had no duty to warn consumers that if they drove the loader toward a guy wire hanging at chest level, without any protective structure between them and the guy wire, they could get hurt. Everyone already knew that, and the warning would have been pointless. See Smith v. American Motors Sales Corp., 215 Ill. App. 3d 951, 957, 576 N.E.2d 146, 151 (1991). Essentially, plaintiff asks us to impose on [the dealer] a duty to warn against an obvious danger. We decline to do so. See Sollami, 201 Ill. 2d at 7, 772 N.E.2d at 219.” Bates, 346 Ill. App. 3d at 233, 803 N.E.2d at 986.
In my judgment, our reasoning in Bates fully applies to this case, only more strongly. The product at issue in this case — namely, the wet surface of a boat — could literally not be more simple. This is especially true when one compares it to a much more complicated mechanism like the front-end loader at issue in Bates. Yet, this court in Bates held that operating the loader without the roll bar was an obvious danger about which no warning was required; clearly, the same is true about the wet surface of a small boat out on the Mississippi River.
The majority’s response to my characterization of the wet surface of the motorboat as “a simple product” is to change the focus of inquiry from the surface of the boat to the boat as a whole. This broader focus would be appropriate if (for instance) plaintiffs lawsuit were based on a claim that (1) the boat’s motor malfunctioned due to improper design, or (2) the steering mechanism was faulty. However, when the claim — as here — is nothing more than that a portion of the boat’s surface was slippery when wet, these other aspects of the boat— complicated though they may be — are irrelevant. In my view, the alleged complexity of an object need not — and should not — be considered (so as to defeat the idea of a “simple product” for purposes of products liability law) unless some aspect of that complexity is an issue. In this case, because none of the complex workings of the motorboat are at issue, they should not be considered, and this court’s focus should remain on the only instrumentality of the boat that plaintiff alleges had anything to do with decedent’s injury: the surface when wet.
In Bates, this court also addressed the plaintiffs claim that the front-end loader was unreasonably dangerous because the roll bar was readily removable. In so doing, we first discussed our supreme court’s decision in Lamikin, 138 Ill. 2d at 529, 563 N.E.2d at 457, and then wrote the following:
“In Scoby, 211 Ill. App. 3d at 109, 569 N.E.2d at 1149, we called the first method, in the passage quoted above, the ‘consumer-user contemplation test’ and the second method the ‘danger-utility test.’ We held that if the dangerous propensity of the product was obvious and the ‘mechanism involved’ was simple, a court should apply the consumer-user contemplation test rather than the danger-utility test. Scoby, 211 Ill. App. 3d at 112, 569 N.E.2d at 1151.q
The dangerous power of the loader was obvious, and the mechanism of the injury was simple. Therefore, we will apply the consumer-user contemplation test rather than the danger-utility test. See Scoby, 211 Ill. App. 3d at 112, 569 N.E.2d at 1151.” Bates, 346 Ill. App. 3d at 234, 803 N.E.2d at 987.
This court then rejected that portion of the plaintiffs products-liability claim, explaining as follows:
“In this case, plaintiff falls into essentially the same fallacy as the plaintiffs in Scoby and Smith-, she complains of the lack of a safety device while failing to recognize that the dangerous propensity of the product, without that safety device, was obvious. In Scoby, 211 Ill. App. 3d at 108, 569 N.E.2d at 1148-49, the plaintiff argued that a deep-fat fryer, in which he had accidentally submerged his arm, was unreasonably dangerous in that it lacked a cover, which was merely ‘optional equipment.’ We agreed with the trial court that ‘the dangerous nature of the open fryer containing hot oil’ was ‘obvious to the plaintiff.’ Scoby, 211 Ill. App. 3d at 109, 569 N.E.2d at 1149.
In Smith, 215 Ill. App. 3d at 953, 576 N.E.2d at 148-49, the plaintiff argued that a Jeep with detachable side doors was unreasonably dangerous in that, with the driver’s door removed, it allowed (‘invited’) him to drive with his left leg extended outside the passenger compartment, on an outside step, making the leg vulnerable when a car struck the driver’s side. The First District held that driving the Jeep with one’s foot outside the passenger compartment posed an ‘open and obvious danger,’ for which the manufacturer could not incur strict products liability. Smith, 215 Ill. App. 3d at 959, 576 N.E.2d at 152. Similarly, in the present case, the danger that the driver’s body might collide with low-hanging objects is equally obvious to an ordinary person driving a loader without a roll bar.” Bates, 346 Ill. App. 3d at 235, 803 N.E.2d at 987-88.
As this court did in Bates, we should apply the consumer-user contemplation test instead of the danger-utility test to the product at issue in this case — namely, the wet surface of the boat — because “the dangerous propensity of the product was obvious and the ‘mechanism involved’ was simple.” Bates, 346 Ill. App. 3d at 234, 803 N.E.2d at 987.
In conclusion, I strongly disagree with the majority’s decision. I believe that it is inconsistent with this court’s recent decision in Bates, inconsistent with earlier decisions of this court, particularly Scoby, and may cause turmoil in products-liability law in Illinois. If the fact that the surface of a boat becomes slippery when wet becomes the basis for a products-liability claim, then we may be dangerously close to the point where, under Illinois law, manufacturers truly are the absolute insurers of the safety of persons using their products, no matter how simple the product may be, and no matter how it is used.