dissenting:
Because I disagree with both the analysis and conclusions of the majority in-this cause, I respectfully dissent from the opinion of my colleagues.
The decision of the majority affirming the circuit court’s dismissal of count II of the plaintiff’s complaint is premised upon two erroneous legal conclusions. The first is that because the guardrail was not completed and had not been accepted or approved by the State of Illinois at the time of the accident, it was not placed in the stream of commerce. As a consequence, the majority hold that the third element of a products liability claim under Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, was not met. In reaching this conclusion, the majority disregard important policy considerations which mandate a contrary result.
Among the important policy considerations underlying the imposition of strict products liability are “(1) that the public interest in human life and health requires protection of law, and (2) that the manufacturer solicits and invites use of the product, thereby representing to the public that it is safe and suitable for use.” (Domine v. Fulton Iron Works (1979), 76 Ill. App. 3d 253, 258, 395 N.E.2d 19, 23.) I believe these considerations compel extension of products liability analysis to the instant case. As the plaintiff alleges in count II of his complaint, the purpose of a guardrail is to protect users of the highway from serious injury by deflecting “oncoming automobiles foreseeably deviating from the pavement.” This purpose, however, is defeated by the absence of the offset guardrail. Without the offset guardrail to deflect errant vehicles, the guardrail does not serve to protect highway travelers, but instead becomes a hazard to all those who use the highway. The people of this State and of other States who use Illinois highways should not be exposed to such an unreasonable and unnecessary risk of harm. Accordingly, the law should offer foreseeable plaintiffs protection by imposing strict liability in tort upon all those responsible for creating such unreasonably dangerous conditions.
Further, even though the guardrail was in an unfinished state at the time of the collision, the defendant invited its use and represented to the public that it was safe and suitable for the use for which it was intended by installing it along the highway which was open to public travelers. In so doing, I believe the defendant has placed the product in the stream of commerce and thereby exposed itself to liability if the unreasonably dangerous defect in the product (i.e., the absence of the offset guardrail) caused injury to a highway traveler. The fact that the guardrail was in unfinished form should be of no concern. What is of importance in products liability cases is not whether the product is in finished form when it is offered for the public use, but whether the product contains a defect which is unreasonably dangerous when offered to the public for use. The defendant should have either refrained from placing this product, which is unreasonably dangerous in its unfinished state, into the stream of commerce prior to completion, or should have taken steps to prevent foreseeable injury as a result of its unfinished state. Concern for the safety of the public requires no less.
Alternatively, the majority hold that even if the guardrail had been completed at the time of plaintiffs collision with it, dismissal of count II of the plaintiff’s complaint still would have been proper because the guardrail is not a product for strict liability purposes. I disagree with this conclusion for two reasons. First, the courts of this State have given the term “product” a very broad interpretation. In Dubin v. Michael Reese Hospital (1979), 74 Ill. App. 3d 932, 393 N.E.2d 588, the First District Appellate Court, after discussing a number of Illinois cases in which the issue of what constitutes a product under section 402A of the Second Restatement of Torts (Restatement (Second) of Torts §402A (1965)) was addressed, defined a product for products liability purposes as follows:
“[A] ‘product’ with an unreasonably dangerous condition may subject those responsible for placing it in the stream of commerce to strict liability in tort may serve more than one purpose; may be unchanged from its natural state, viable, and not the result of a manufacturing process; must be of a fixed nature; and must be capable of being placed in the stream of commerce. Moreover, to satisfy the public policy reasons underlying the concept of strict liability in tort, we must also find that the ‘product’ is something that may endanger human life and health; something whose intended use has been solicited and thought to be safe and suitable; and something that has reaped a profit for those placing it in the stream of commerce. Finally, we must consider the defendant’s ability to distribute the risk of injury by passing the loss onto the public, and the injured party’s difficulty in proving that the source of his injury was the defendant’s negligence.” 74 Ill. App. 3d 932, 939, 393 N.E.2d 588, 593.
Given such a broad definition, I believe there can be no question that the guardrail in the instant case is a product for purposes of product liability analysis. Second, in Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368, the Illinois Supreme Court never questioned the classification of an object very similar to the guardrail in the instant case (i.e., a highway signpost) as a product for strict liability purposes. The majority attempt to distinguish Hunt by pointing out that there the signpost with which the plaintiff collided had been completed and accepted by the State some three years prior to the accident, and the eventual resolution of the Hunt litigation in favor of the defendant makes it unclear that the supreme court had accepted the plaintiff’s designation of a signpost as a product. Neither of these assertions, however, convinces me of the inapplicability of Hunt to the case at bar. As previously stated, I do not believe that the unfinished state of a product offered for the public use is to serve as a shield from liability when that unfinished state itself constitutes an unreasonably dangerous defect which causes injury to a foreseeable plaintiff. Similarly, the majority’s emphasis on the fact that the signpost in Hunt had been accepted by the State is misplaced. If a manufacturer invites public use of a product containing an unreasonably dangerous defect which causes injury to a foreseeable plaintiff, liability should attach notwithstanding the unfinished state of the product or the lack of requisite approval of the product by a designated party. Finally, although it is true that in Hunt the supreme court affirmed the circuit and appellate courts’ entry of summary judgment for the defendant, the supreme court’s action was based upon the failure of the plaintiff to allege in his complaint the existence of a legally cognizable defect in the signpost. Nowhere in the Hunt opinion is there any indication, express or otherwise, that the signpost was not a product. Indeed, a reading of Hunt suggests a contrary conclusion.
To recover in strict products liability, “the injury must result from a condition of the product, the condition must be unreasonably dangerous and the condition must have existed at the time the product left the manufacturer’s control.” (Hunt, 74 Ill. 2d 203, 210, 384 N.E.2d 368, 372.) Count II of the plaintiff’s complaint contains these allegations. For this reason as well as for the reasons I have heretofore stated, I would reverse the order of the circuit court of Tazewell County dismissing count II of the complaint, and remand for further proceedings.