In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3855
D ONALD M ALEN and
S HARON M ALEN,
Plaintiffs-Appellants,
v.
MTD P RODUCTS, INC. and
H OME D EPOT U.S.A., INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 6478—Charles R. Norgle, Sr., Judge.
A RGUED O CTOBER 27, 2009—D ECIDED N OVEMBER 19, 2010
Before EASTERBROOK, Chief Judge, and EVANS and
WILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Donald Malen slipped while
getting off his reconditioned riding lawn mower and
injured his foot on the rotating blade. He and his wife
sued the manufacturer and seller, claiming that the
mower was defective in design and construction. The
2 No. 08-3855
district court granted summary judgment for the defen-
dants because undisputed evidence established that
Malen’s own actions were the sole proximate cause
of his injury. But viewing the record in the light most
favorable to the plaintiffs and taking all inferences in
their favor, we conclude that a jury could find that the
mower was both defective and the proximate cause of
Malen’s injury. Therefore, we reverse the district court’s
grant of summary judgment in favor of the defendants
and remand for further proceedings.
I. BACKGROUND
Before his injury Malen had operated riding lawn
mowers for more than 40 years. In 2001 he purchased a
Yard-Man riding mower at Home Depot that was manu-
factured by MTD Products in 1998 and advertised as
“Reconditioned Power Equipment” with a “Full Manufac-
turer’s Warranty.” The mower was designed with a
safety interlock system. One component of that system
is the Operator Presence Control, or OPC, a device
which kills the engine if the operator rises from the
seat without first disengaging the cutting blade and
setting the parking brake. A second component is the
“no cut in reverse” switch, or NCR, which kills the
engine if the operator shifts into reverse without first
disengaging the blade. The American National Standards
Institute (“ANSI”) 1 did not make an NCR compulsory
1
ANSI is a voluntary organization that develops nationwide
consensus standards for a variety of devices and procedures.
(continued...)
No. 08-3855 3
until 2003, but by 1996 the organization had mandated
that riding mowers had to have an OPC that will stop
the engine and fully arrest the blade within five seconds
of being triggered. Before Malen purchased the mower,
he tested it under the supervision of a Home Depot
sales employee. During that test ride Malen never rose
from the seat with the engine running, but it is not dis-
puted that he operated the machine in reverse while
the blade was engaged.
A label on the mower in front of the seat warns the
operator to protect against death or serious injury:
DO NOT OPERATE THE UNIT WHERE IT
COULD SLIP OR TIP.
....
BE SURE BLADE(S) AND ENGINE ARE
STOPPED BEFORE PLACING HANDS OR
FEET NEAR BLADE(S).
....
BEFORE LEAVING THE OPERATOR’S POSI-
TION, DISENGAGE BLADE(S), PLACE THE
SHIFT LEVER IN NEUTRAL, ENGAGE THE
PARKING BRAKE, SHUT OFF AND REMOVE
KEY.
(...continued)
Adams v. N. Ill. Gas Co., 809 N.E.2d 1248, 1254 n.2 (Ill. 2004).
ANSI standards provide evidence of the custom or practice
within an industry. Leavitt v. Farwell Tower Ltd. P’ship, 625 N.E.2d
48, 53 (Ill. App. Ct. 1993).
4 No. 08-3855
Malen had read and understood these admonish-
ments, and over the next three years he operated the
mower 30 to 50 times without incident. But then in
October 2004 he was mulching leaves with the mower
and wedged the right front tire over a curb. He tried
without success to free the machine by rocking his
weight in the seat and shifting gears between forward
and reverse. At that point Malen raised the cutting
deck, removed his foot from the pedal which engages
the blade, and started to dismount. But he did not turn
off the engine or listen to confirm whether the blade
had stopped spinning. It had not. As Malen rose from
the seat and stepped off the mower, his left foot slipped
under the cutting deck and was struck by the rotating
blade. The lacerations to the sole of his foot were
severe, and he will not regain full use of his foot. It is
undisputed that neither the OPC nor the NCR func-
tioned when the accident occurred.
The Malens sued MTD Products and Home Depot in
the Circuit Court of Cook County, Illinois. Donald Malen
asserted common-law claims for strict products
liability and negligence, and his wife claimed loss of
consortium. The Malens contended that the lawn
mower manufactured by MTD Products and sold by
Home Depot was negligently manufactured and unrea-
sonably dangerous because its OPC was not connected
and thus inoperable. They also contended that the
mower was negligently designed because MTD Products
had shunned a “fail safe” system that would have
made the cutting blade unusable even without the OPC
connected. Finally, the plaintiffs claimed that the defen-
No. 08-3855 5
dants had failed to warn the operator about the defects
in the mower. The defendants removed the suit to
federal court under diversity jurisdiction. See 28
U.S.C. §§ 1332, 1441.
At his deposition Donald Malen gave the following
account of his accident. When the right front tire
dropped over the curb and became wedged against it, he
tried to free the mower by shifting between forward
and reverse and rocking in the seat with the engine run-
ning. When this effort was unsuccessful, Malen decided
to dismount and lift the front of the mower back atop
the curb. He lifted his foot from the pedal which
engages the cutting blade; that effort, Malen thought,
had stopped the blade, but he acknowledged the possi-
bility that the pedal had been locked into the “on” posi-
tion and that removing his foot from the pedal had not
unlocked it. It was not his practice, Malen added, to
dismount a riding mower with the blade spinning, but
the engine was still running so he could not hear
whether the blade was rotating. Malen, who did not
know that the mower was designed with an OPC or NCR,
then rose from his seat and put his left foot on the
ground while swinging his right leg across the mower
to the left. He slipped, and the blade caught his left
foot and pulled him to the ground. He testified
initially that the blade struck his boot and stopped for
two to six seconds before resuming its rotation and
cutting him when he tried pulling his foot away.
Later in the deposition, however, Malen said “no” when
specifically asked whether the blade had stopped on
first contact with his boot. This apparent inconsistency
6 No. 08-3855
was never clarified. According to Malen, the entire
ordeal—from the time he drove off the curb until his
foot was cut by the blade—lasted “between 10 and 20
seconds.” And, he said, it was a “very short time,” more
than the “clap of a hand” but probably only “a couple
of seconds,” between the time he rose from the seat
and when his foot was sliced by the blade.
The defendants dispute Malen’s testimony. They rely
on the treatment notes of Dr. Narendra Patel, the
emergency-room surgeon who repaired the lacerations
on the sole of Malen’s foot. In his notes Dr. Patel wrote
that Malen had tried to dislodge the mower by planting
his left foot on the ground, lifting the mower by the
steering wheel, and stepping on the speed control. Yet
at his deposition Dr. Patel could not recall the source
of this account. And he conceded that the scenario de-
scribed in his treatment notes would have resulted in
lacerations to the top, not the sole, of Malen’s foot.
Malen did not recall telling Dr. Patel how the
accident happened. And Donald Pacheco, a mechanical
engineer retained by Malen, rejected the chain of events
described by Dr. Patel. Pacheco opined that the riding
mower could not have been lifted by simultaneously
depressing the speed control (what MTD Products calls
the “go” pedal) and pulling on the steering wheel. The
opposing forces from these actions, Pacheco said,
would have canceled each other.
Pacheco’s initial inspection had verified that the mower
could be operated in forward, neutral, and reverse with
the cutting blade engaged and no weight in the seat.
No. 08-3855 7
Another inspection conducted jointly with personnel
from MTD Products reproduced this result, which, the
parties agree, could not have happened if the OPC
and NCR were functioning. Close examination disclosed
that the wiring for the OPC and NCR was not connected.
The contacts were grimy, so Pacheco knew that the
wires had not been connected for some time. And
after removing the dirt, he did not find scratches on any
of the contacts, so he concluded that neither of the
safety devices had been connected in the first place.
Moreover, Pacheco was certain that the NCR was not
connected when Home Depot sold the reconditioned
machine, since Malen had run the mower in reverse
with the blade engaged while testing it at the store.
During the joint inspection, the wires to the OPC and
the NCR were attached, and afterward both devices
functioned properly. The cutting blade came to a full
stop 2.6 seconds after the OPC was triggered, well
below the existing (and current) ANSI limit.
Based on his inspections and review of Malen’s deposi-
tion, Pacheco opined that the safety interlock system on
Malen’s reconditioned mower was defective. Pacheco
surmised that Malen had inadvertently depressed and
locked the pedal which engages the cutting blade. That
pedal, had it been unlocked, would have disengaged
the blade when Malen removed his foot. Still, Pacheco
insisted, the OPC and NCR should have protected
Malen against a blade that was locked in the “on” position.
A functioning OPC, he reasoned, would have killed the
engine as soon as Malen rose from the seat with the
blade engaged. The very purpose of an OPC, Pacheco
8 No. 08-3855
explained, is to safeguard an operator who neglects to
stop the blade before dismounting, e.g., when clearing
an obstacle from the path of the mower. Likewise,
Pacheco continued, a functioning NCR would have
shut down the engine as soon as Malen put the mower
in reverse without first disengaging the blade.
Pacheco also reported that a “fail safe” version of the
OPC was available for this Yard-Man model well before
Malen purchased his reconditioned unit. Pacheco ex-
plained that an OPC employs a switch to allow or
inhibit the flow of an electric current. The OPC utilized
when Malen’s mower was built in 1998 was configured
with a “normally closed” default: as long as the operator’s
weight remained in the seat, the OPC switch would stay
“open” and prevent current from passing. But if the
operator rose from the seat with the blade engaged, the
switch would revert to its “normally closed” position
and allow current to pass and activate a kill switch on
the engine. If an OPC of this design is not connected,
Pacheco continued, no current will ever reach and
trigger the kill switch, whether or not there is weight in
the seat. In effect, an unconnected OPC of this design is
no different than having an operator in the seat at all
times. By the time Malen’s mower was built, Pacheco
noted, MTD Products already had redesigned the OPC
to be “normally open.” The new version employed the
operator’s weight in the seat to close a switch and
allow current to pass; if the circuit was open—either
because the operator was not in the seat or the OPC was
unconnected—the engine could not run. In June 1999 a
service kit was developed to retrofit existing mowers
No. 08-3855 9
with the new design, and after December 1999 the new
design was incorporated into all newly manufactured
units. MTD Products did not issue a recall for the service
kit. Pacheco installed one on Malen’s mower and then
disconnected a wire to test whether the redesigned OPC
was “fail safe.” After the OPC was disconnected, the
engine died if the cutting blade was engaged. Pacheco
opined that Malen’s injury could not have occurred with
the new design because the cutting blade was unusable
unless the OPC was connected.
Pacheco’s assessment is corroborated by deposition
testimony from several employees of MTD Products.
Mark Holland, the company’s Manager of Standards
Compliance, tested Malen’s mower (before Pacheco
installed the service kit) and confirmed that its engine
and blade did not stop when he rose from the seat or
put the machine in reverse. According to Holland, if all
the systems were functioning correctly, the engine
should have shut down. Michael Miller, a vice president
of product development and safety, testified that the
OPC was redesigned to be “normally open” because
the “normally closed” version continued to draw cur-
rent and drain the battery if the operator inadvertently
left the key in the ignition. Gunter Plamper, the vice
president of safety, conceded that MTD Products knew
that the mower as originally designed would still
operate if its safety interlock system failed. He also ac-
knowledged that the riding mower purchased by Malen
was designed so that users could disconnect the OPC or
NCR and still use the mower, but he insisted that the
two devices could not accidentally become disconnected.
10 No. 08-3855
Plamper authenticated a management directive that
new consumer products be evaluated before production
with an eye toward “possible hazards related to the
use and/or misuse of the product.”
MTD Products and Home Depot moved for summary
judgment. The defendants argued that the Yard-Man sold
to Malen was not unreasonably dangerous because
the source of the danger—the rotating cutting blade,
according to the defendants—was open and obvious to
all users of the product. Malen knew the inherent risk,
the defendants insisted, because his normal practice
after 40 years of using riding lawn mowers was to disen-
gage the blade before dismounting. And the particular
mower was not defective, the defendants continued,
because its OPC—when it was connected after the
accident— functioned in compliance with ANSI
standards, and Malen’s evidence had not excluded the
possibility that a third party disconnected the safety
devices before Malen purchased the mower. The defen-
dants also insisted Malen’s own conduct, not a defect
in the mower, was the proximate cause of his injury.
Malen had testified that his foot slipped under the
cutting deck within “a very short period of time” of
touching the ground, and since the ANSI standard
allows five seconds for an OPC to arrest the blade, the
defendants reasoned that Malen would have been
injured even if the OPC had been connected.
The Malens countered that the unconnected OPC, not
the cutting blade, was the reason the reconditioned
mower was unreasonably dangerous. That danger was
No. 08-3855 11
concealed, the plaintiffs maintained, though they also
noted that Illinois does not shield against liability for
injuries caused by an “open and obvious” hazard unless
the nature of the risk outranks every other factor “to
be considered in weighing the inherent design risks
against the utility of the product as manufactured.” Blue
v. Envtl. Eng’g, Inc., 828 N.E.2d 1128, 1145 (Ill. 2005).
The plaintiffs insisted that the mower was defective
because its OPC did not work and was not designed to
be “fail safe,” but they no longer pressed their theory
that the defendants were liable for failing to warn
Donald Malen about the missing safety devices. The
plaintiffs further argued that factual questions remained
in dispute concerning the cause of Malen’s injury.
The district court granted the defendants’ motion.
Malen v. MTD Prods., Inc., No. 05 C 6478, 2008 WL 4610295,
at *9 (N.D. Ill. Oct. 10, 2008). The court accepted the de-
fendants’ premise that the cutting blade, not the uncon-
nected OPC, was the source of danger in the lawn
mower. Id. at *6. The court acknowledged, however, that
the defendants could not escape liability simply by as-
serting that all riding lawn mowers are inherently dan-
gerous. Id. Yet the court reasoned that summary judg-
ment was appropriate on the ground that Malen’s
conduct had been the sole cause of his accident.
According to the district court, the undisputed evidence
established that Malen “(1) drove the Mower off the curb,
(2) was aware of and understood the warning labels on
the Mower, and (3) ignored those labels by dismounting
the Mower with the cutting deck raised, the engine run-
ning, and the cutting blade engaged.” Id. at *8. This view
12 No. 08-3855
of the evidence, the court noted, was consistent with
Dr. Patel’s account of the accident. Id. at *7. And since
Malen was at fault, the court continued, it was unneces-
sary to decide whether the mower was defective. Id. at *6.
II. DISCUSSION
The Malens argue on appeal that the district court
erred in granting summary judgment for the defendants
on the basis that Donald Malen’s actions were the sole
proximate cause of his accident and injury. The Malens
insist that the reconditioned mower was negligently
manufactured and unreasonably dangerous because it
did not have a working OPC. The mower was also defec-
tive in design, the Malens contend, because the OPC used
by MTD Products was not “fail safe.” For their part, the
defendants finally acknowledge the Malens’ theory that
the mower was defective because of the design
and manufacture of its OPC, not because it has a cutting
blade like all lawn mowers. The defendants have
now abandoned their contention that the hazard was
open and obvious, but they still contend that the plain-
tiffs’ evidence would not establish that the mower was
defective or that its OPC was a “substantial” cause of
Malen’s injury. According to the defendants, the plain-
tiffs’ evidence does not exclude the possibility that a
third party tampered with the mower, nor does their
evidence establish that a properly functioning OPC
would have stopped the blade quickly enough to
prevent Malen’s injury. The district court was correct to
conclude, say the defendants, that Malen’s negligence
caused his injury.
No. 08-3855 13
We review the district court’s grant of summary judg-
ment de novo. Rao v. BP Prods. N. Am., Inc., 589 F.3d 389,
395 (7th Cir. 2009). We will affirm the decision only
if, viewing the facts in the light most favorable to the
Malens, and drawing all reasonable inferences in their
favor, we conclude that no material issue of fact is
disputed and that MTD Products and Home Depot are
entitled to judgment as a matter of law. See India
Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651, 658
(7th Cir. 2010). In applying this standard we draw all
reasonable inferences and resolve factual disputes in
favor of the nonmoving party; here, the Malens. Knight
v. Wiseman, 590 F.3d 458, 462 (7th Cir. 2009).
A federal court sitting in diversity applies state sub-
stantive law, Milwaukee Metro. Sewerage Dist. v. Am. Int’l
Specialty Lines Ins. Co., 598 F.3d 311, 316 (7th Cir. 2010);
Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005), and the parties agree that Illinois law governs here.
To prevail on a claim of strict products liability, the
plaintiffs would have to prove that Malen’s injury
resulted from a condition which is attributable to the
defendants and made the mower unreasonably dan-
gerous. See Kelso v. Bayer Corp., 398 F.3d 640, 642 (7th
Cir. 2005) (applying Illinois law); Mikolajczyk v. Ford
Motor Co., 901 N.E.2d 329, 335 (Ill. 2008); Hammond v.
N. Am. Asbestos Corp., 454 N.E.2d 210, 216-17 (Ill. 1983).
To prevail on their claim of negligence, the plaintiffs
would have to prove that the construction or design of
the mower breached a duty of care and was the
proximate cause of Malen’s injury. See Johnson v. Wal-Mart
Stores, Inc., 588 F.3d 439, 441 (7th Cir. 2009) (applying
14 No. 08-3855
Illinois law); Lewis v. CITGO Petroleum Corp., 561 F.3d
698, 702 (7th Cir.), cert. denied, 130 S. Ct. 1025 (2009) (ap-
plying Illinois law); Calles v. Scripto-Tokai Corp., 864
N.E.2d 249, 263 (Ill. 2007); Blue, 828 N.E.2d at 1141-42;
Jablonski v. Ford Motor Co., 923 N.E.2d 347, 366 (Ill. App.
Ct.), appeal allowed, 932 N.E.2d 1030 (2010). Proof of causa-
tion, the linchpin of the district court’s decision, is
essential to both theories of liability. See Suzik v. Sea-Land
Corp., 89 F.3d 345, 348 (7th Cir. 1996) (applying Illinois
law); Kleen v. Homak Mfg. Co., 749 N.E.2d 26, 29 (Ill. App.
Ct. 2001); Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320,
335 (Ill. App. Ct. 1991). We conclude that the district
court erred when it granted summary judgment for
MTD Products and Home Depot because a reasonable
jury could find that Malen’s lawn mower was defective
in construction and design, and was the proximate cause
of his injury.
A. A Jury Could Find that the Lawn Mower was
Defective.
The defendants argued on summary judgment that
Malen’s evidence would not sustain a jury finding that
his reconditioned Yard-Man was unreasonably dan-
gerous, or that it was negligently designed and assembled.
The district court did not reach this contention, but the
defendants are free to renew it and do. See Bivens v. Trent,
591 F.3d 555, 559 (7th Cir. 2010); Srail v. Vill. of Lisle, Ill.,
588 F.3d 940, 943 (7th Cir. 2009).
A jury could find that a riding lawn mower is
defective if the machine lacks an OPC to stop the blade
No. 08-3855 15
should the operator lose control or disembark with the
blade engaged. Hubbard v. McDonough Power Equip., Inc.,
404 N.E.2d 311, 315-17 (Ill. App. Ct. 1980); accord Norton
v. Snapper Power Equip., Div. of Fuqua Indus., 806 F.2d
1545, 1550 (11th Cir. 1987) (applying Florida law); Eyre
v. McDonough Power Equip., Inc., 755 F.2d 416, 420 (5th
Cir. 1985) (applying Louisiana law); see 33 A M . JUR. 2 D
Products Liability–Defective Design of Rotary Mower § 12
(1983 & Supp. 2005). MTD Products and Home Depot
have not questioned the plaintiffs’ premise that a riding
mower sold without a working OPC would fall short
of industry standards and be defective, nor have they
disputed that the reconditioned mower purchased by
Malen did not have a functioning OPC (or NCR) at the
time of his accident. Still, the defendants maintain, a
jury could not find that the mower was defective be-
cause it was designed with an OPC, the device func-
tioned within the ANSI parameter when connected
after the accident, and the plaintiffs did not exclude
the possibility that a third party disconnected the OPC
after the mower was built in 1998.
Manufacturers and sellers are strictly liable for injuries
caused by unreasonably dangerous products unless an
unforeseen alteration by a third party introduced the
unsafe condition. See Peterson v. Lou Bachrodt Chevrolet
Co., 329 N.E.2d 785, 786-87 (Ill. 1975); Brdar v. Cottrell, Inc.,
867 N.E.2d 1085, 1099 (Ill. App. Ct. 2007); Monreal v.
Waterbury-Farrel Foundry & Mach. Co., 646 N.E.2d 1337,
1340 (Ill. App. Ct. 1995); Wiedemann v. Indus. Erectors, Inc.,
483 N.E.2d 990, 997-98 (Ill. App. Ct. 1985). In this case
MTD Products and Home Depot speculate that at some
16 No. 08-3855
point after assembly a “nefarious” person—perhaps
even Malen—tampered with the mower and discon-
nected its OPC and NCR. And yet Malen testified that
he did not disconnect either safety device after buying
the mower, and the defendants produced no evidence
to the contrary. Nor did they suggest that an interloper
snuck into Malen’s storage shed and disconnected
these features. The principal inference the defendants
seek to create is that a prior owner altered the lawn
mower, but Donald Pacheco, Malen’s expert, testified at
his deposition that there were no scratches on the
contacts where the wiring for the OPC and NCR should
have been connected at the factory, a fact that led
Pacheco to surmise that these safety devices were never
connected before the accident.
The defendants did not submit much of their own
evidence to directly challenge Pacheco’s conclusion.
Daniel Martens, the manufacturer’s chief engineer
for product safety, testified at his deposition that post-
production quality assurance for this Yard-Man model
was outsourced to ABS Technical Services; only a small
number of units were shipped to company headquarters
for an internal “audit,” and Martens had not located
evidence suggesting that Malen’s mower was one of
them. Martens insisted that a written protocol gov-
erned inspections done by ABS, but he did not produce
a protocol and could not identify the purported docu-
ment by name or even describe its contents. ABS did
have a check-box form to document its inspections, but
Martens conceded that the form was not always used
and that MTD Products had not found a completed
No. 08-3855 17
form for the mower purchased by Malen. At his dep-
osition Martens authenticated a completed form cor-
responding to a similar mower that had “passed” inspec-
tion by ABS, but he could not explain why the
individual check box to verify testing of the OPC was
unmarked. Nor was an explanation supplied by Mark
Holland, who was responsible for standards compliance
at MTD Products. Holland speculated that ABS had
probably been unconcerned with the “little detail
stuff” and was focused on a “bottom line” determination
of whether the unit had passed or failed. And yet
Holland was certain, he said, that ABS would have
tested the OPC. The testimony from these witnesses
does not foreclose the likelihood that the mower left the
factory without a functioning safety interlock system.
See United States v. Warner, 498 F.3d 666, 692-93 (7th Cir.
2007) (excluded evidence of previous sporadic rate in-
creases was not type of regular response to specific,
repetitive situation that would allow finder of fact to
infer that increase initiated by defendants was routine);
Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994) (under
Federal Rule of Evidence 406 habit is established only
through evidence of practice sufficiently uniform and
regular that finder of fact could conclude that practice
was undertaken almost always); Simplex, Inc. v. Diversified
Energy Sys., Inc., 847 F.2d 1290, 1293-94 (7th Cir. 1988)
(district court properly refused to admit evidence of late
deliveries and defective performance on unrelated con-
tracts as evidence that company’s “habit” was to engage
in such practices). Neither witness was qualified to
say how ABS routinely conducted its testing, and their
18 No. 08-3855
speculation about the regularity or thoroughness of the
process would not preclude a jury from inferring that
Malen’s mower was never subjected to a comprehen-
sive inspection procedure that was uniformly applied to
all production. See Truhlar v. U.S. Postal Serv., 600 F.3d
888, 893 (7th Cir. 2010) (speculation about motive for
union representative’s conduct was insufficient to
resolve issue at summary judgment); Malawy v. Richards
Mfg. Co., 501 N.E.2d 376, 390-91 (Ill. App. Ct. 1986) (manu-
facturer of failed medical device could not overcome
summary judgment on claim for indemnity against hos-
pital by relying on expert’s speculation that unknown
hospital employee had mishandled device); Tardella v.
RJR Nabisco, Inc., 178 A.D.2d 737, 737-38 (N.Y. App.
Div. 1991) (summary judgment proper for candy manu-
facturer where company’s detailed evidence of quality-
assurance procedures would preclude jury from rea-
sonably finding that pin in plaintiff’s candy bar was
present when it left factory).
On this record, then, a jury reasonably could find that
Malen’s mower was shipped from the factory in 1998
with its OPC still unconnected. That defect would
make the mower unreasonably dangerous if the theory
is strict products liability. And the very nature of the
defect—a safety device that would have functioned
except that it was never wired during assembly—also
establishes a breach of the standard of care if the theory
is negligent manufacture. See Todd v. Societe Bic, S.A.,
21 F.3d 1402, 1412 (7th Cir. 1994) (en banc) (applying
Illinois law of negligent design); Phillips v. U.S. Waco
Corp., 516 N.E.2d 670, 674 (Ill. App. Ct. 1987) (same).
No. 08-3855 19
Significantly, though, the defendants have not
explained why it matters for strict liability whether the
OPC was connected during assembly. As noted, the
exclusion of liability for unsafe conditions created by
consumers does not hold for modifications that are fore-
seeable and easily accomplished. Brdar, 867 N.E.2d at
1099; Davis v. Pak-Mor Mfg. Co., 672 N.E.2d 771, 775 (Ill.
App. Ct. 1996); Woods v. Graham Eng’g Corp., 539 N.E.2d
316, 318-19 (Ill. App. Ct. 1989); Wiedemann, 483 N.E.2d at
997-98; DeArmond v. Hoover Ball & Bearing, Uniloy Div., 408
N.E.2d 771, 774 (Ill. App. Ct. 1980). During discovery
MTD Products disclosed that consumers easily could
override the OPC on the Yard-Man model owned by
Malen; apparently it was enough to yank a single
lead from its terminal. What’s more, the defendants
admitted that Malen’s lawn mower was designed to
permit continued operation if the OPC was uncon-
nected. According to Gunter Plamper, the vice president of
safety, MTD Products had expected that some
owners would dislike the OPC and try to override it;
the company had feared that greater damage and
further safety issues might arise if the process of de-
feating the OPC was made complicated. Perhaps this
testimony was intended to bolster the inference that the
OPC was disconnected after the lawn mower left the
factory in 1998.
The defendants also ignore another wrinkle. What if
MTD Products had not anticipated tampering or had
made the task of disconnecting the OPC difficult? With
strict liability, unforeseen defects introduced by prior
owners cannot be attributed to manufacturers or sellers
20 No. 08-3855
when used goods are marketed as-is. See Court v.
Grzelinksi, 379 N.E.2d 281, 282 (Ill. 1978); Peterson, 329
N.E.2d at 786-87; Timm v. Indian Springs Recreation Ass’n,
543 N.E.2d 538, 541-42 (Ill. App. Ct. 1989); Abel v. Gen.
Motors Corp., 507 N.E.2d 1369, 1376 (Ill. App. Ct.
1987). But Home Depot did not sell the mower to Malen
“as-is.” He bought a “reconditioned” unit backed by a
“full manufacturer’s warranty”; that much is beyond
dispute because the advertisement is in evidence. What’s
missing are details about the reconditioning. We cannot
tell from the record whether the defendants ever
complied with a discovery demand to identify who
reconditioned the mower; at summary judgment
MTD Products simply denied performing the work and
implied that it relies on “authorized dealers,” which
Home Depot was not. And yet the defendants have not
suggested that Home Depot’s ad was false or mis-
leading, or that Malen was told by the sales associate
that “reconditioned” really meant something less.
We have not found a controlling Illinois decision, but
the defendants do not contend that Illinois courts would
distinguish “reconditioned” products from those newly
manufactured. Reconditioning or remanufacturing a
product is different from servicing or repairing the
item. Reconditioning extends the useful life beyond what
was contemplated at the point of manufacture and effec-
tively creates a new product. This court and others have
recognized the distinction in assessing when a product is
“first” sold for purposes of a statute of limitations or
repose. See Richardson v. Gallo Equip. Co., 990 F.2d 330,
331 (7th Cir. 1993) (applying Indiana law); Arnold v.
No. 08-3855 21
Riddell, Inc., 882 F. Supp. 979, 987 (D. Kan. 1995)
(applying Kansas law); Divis v. Clarklift of Neb., Inc., 590
N.W.2d 696, 700-01 (Neb. 1999). The distinction was
also noted in Tidemann v. Nadler Golf Car Sales, Inc., 224
F.3d 719, 725 (7th Cir. 2000), a diversity action that in-
cluded a claim of strict products liability under Illinois
law. In that case the plaintiff had argued that recondi-
tioned products, unlike used goods marketed without
alteration, should be characterized as new rather than
used, in particular when advertised as “like new.” Id. We
passed on whether the Illinois courts would endorse
this position, id. at 726, but we recognized its acceptance
in the Restatement (Third) of Torts, which underscores
that consumers expect remanufactured or reconditioned
products to present no greater risk of defect than
if new, R ESTATEMENT (T HIRD ) OF T ORTS: P RODUCTS
L IABILITY § 8(c), cmt. I (1998); see also 63A A M . JUR. 2 D
Products Liability § 1302; A M . L AW OF P RODUCTS L IABILITY 3d
§ 37:8 (2010). The Restatement adopts the position
that strict products liability is appropriate for remanu-
factured products, R ESTATEMENT (T HIRD ) OF T ORTS : P ROD-
UCTS L IABILITY § 8(c) (1998), and the Illinois courts
typically endorse the Restatement position in the absence
of controlling authority, e.g., Eckburg v. Presbytery of
Blackhawk of Presbyterian Church (USA), 918 N.E.2d 1184,
1190 (Ill. App. Ct. 2009); Vena v. Vena, 899 N.E.2d 522, 526
(Ill. App. Ct. 2008); Randall v. Lemke, 726 N.E.2d 183, 185
(Ill. App. Ct. 2000); Pratt v. Kilborn Motors, Inc., 363 N.E.2d
452, 454 (Ill. App. Ct. 1977). Courts in other states
already have recognized that rebuilding or recondi-
tioning a used product is akin to first manufacture and
22 No. 08-3855
thus the commercial sale of a reconditioned product
can give rise to a claim of strict liability. Peterson v. Super.
Ct., 899 P.2d 905, 914 (Cal. 1995); Arriaga v. CitiCapital
Commercial Corp., 85 Cal. Rptr. 3d 143, 153 (Cal. Ct. App.
2008); Gaumer v. Rossville Truck & Tractor Co., Inc., 202 P.3d
81, 86-87 (Kan. Ct. App. 2009); Michalko v. Cooke Color &
Chem. Corp., 451 A.2d 179, 183 (N.J. 1982); Anderson v.
Olmstead Util. Equip., Inc., 573 N.E.2d 626, 629-30 (Ohio
1991); Crandell v. Larkin & Jones Appliance Co., 334
N.W.2d 31, 34 (S.D. 1983).
The plaintiffs have produced enough evidence to estab-
lish, by any of several means, that Malen’s mower
was unreasonably dangerous. And the evidence that
the OPC was never connected at the factory also
provides the foundation for the plaintiffs’ claim against
MTD Products for negligent manufacture. What’s left is
the plaintiffs’ contention that the mower was further
defective in design because its OPC was not “fail safe.” On
this question, too, there is sufficient evidence for a jury
to find for the plaintiffs.
To establish liability on a theory of negligent design,
a plaintiff must show duty, breach, proximate cause, and
damages. See, e.g., Calles, 864 N.E.2d at 263; Jablonski,
923 N.E.2d at 366. Although strict liability is concerned
only with the condition of the product, negligence
involves a defendant’s fault in addition to the product’s
condition. Calles, 864 N.E.2d at 263-64; Jablonski, 923
N.E.2d at 366; Henry v. Panasonic Factory Automation Co.,
917 N.E.2d 1086, 1091 (Ill. App. Ct. 2009). So in addition
to showing that the product was defective, the plaintiff
No. 08-3855 23
must show that the manufacturer knew (or should have
known) that the product was unsafe. Calles, 864 N.E.2d
at 264; Jablonski, 923 N.E.2d at 367; Sobczak v. Gen. Motors
Corp., 871 N.E.2d 82, 94 (Ill. App. Ct. 2007).
MTD Products insists that the design of the Yard-
Man could not have been negligent because the design
incorporated an OPC. But that contention misunder-
stands Malen’s claim. He does not contend that the
design was flawed because no provision was made for
an OPC; he claims instead that MTD Products should
have made the OPC “fail safe,” meaning that if (and in
Malen’s case, when) the OPC failed, the mower should
have been inoperable. A design defect is established by
evidence of a practical, cost-effective alternative that
was technologically feasible and would have prevented
Malen’s injury. See Hansen v. Baxter Healthcare Corp., 764
N.E.2d 35, 45 (Ill. 2002); Kerns v. Engelke, 390 N.E.2d
859, 863 (Ill. 1979); Stallings v. Black & Decker (U.S.), Inc., 796
N.E.2d 143, 149 (Ill. App. Ct. 2003). Malen’s expert,
Pacheco, identified the service kit issued in June 1999 as
a safer, readily available alternative. Under this “normally
open” design, if the safety interlock system failed, the
mower became inoperable. This revision, Pacheco
noted, was first contemplated in October 1997, before
Malen’s mower was constructed, and the service kit to
retrofit existing units was released before Malen’s mower
was reconditioned. That the revision was MTD Products’
very own design, was conceived before Malen’s mower
was built, and was incorporated into later models
is evidence from which a jury could find that the
original, “normally closed” design was defective.
24 No. 08-3855
See Jablonski, 923 N.E.2d at 370-71 (concluding that
whether manufacturer breached standard of care in
design of gas tank was jury question where plaintiff’s
expert stated that manufacturer’s upgrade kit evidenced
safe and feasible alternative); Sobczak, 871 N.E.2d at 94-95
(concluding that jury should decide if design of fuel-
management system was defective where manu-
facturer’s engineers had acknowledged that company
knew of safer alternative).
MTD Products countered that its redesign was not
“foolproof” and thus could not raise an inference that
the original design was defective. Again the company
misses the point. Though Pacheco acknowledged that
a consumer could conceivably bypass the new, “normally
open” design, he also testified that the design was “fail
safe”: If the redesigned OPC was left unconnected at the
factory or became disconnected without the consumer’s
knowledge, the mower would not run with the cutting
blade engaged. A determined consumer might have
been able to rewire the mower to bypass the OPC—i.e.,
the redesign was not foolproof—but it was undisputed
that Malen’s injury could not have occurred had he
been using a Yard-Man with the redesigned safety inter-
lock system. See Berrier v. Simplicity Mfg., Inc., 563 F.3d
38, 63-64 (3d Cir. 2009) (applying Pennsylvania law in
concluding that newly designed NCR, even though it
could be bypassed, could have lessened or eliminated
plaintiff’s injury and thus evidenced that original design
was defective); Eyre, 755 F.2d at 419-20 (applying
Louisiana law in concluding that district court erred
in setting aside verdict for plaintiff who proved that
No. 08-3855 25
feasible redesign of OPC would have prevented injuries
sustained when plaintiff fell from riding mower).
Based on what we have explained above, we
conclude that a reasonable jury could find that the
lawn mower was defective.
B. A Jury Could Conclude that the Mower Was the
Proximate Cause of the Injury.
The district court concluded, however, that Malen’s
evidence establishes that he was injured because of his
own negligence and not because of the defective
mower; the defendants press this contention on appeal.
Proximate cause encompasses two requirements: cause-in-
fact and legal cause. Young v. Bryco Arms, 821 N.E.2d
1078, 1085-86 (Ill. 2004); Lee v. Chi. Transit Auth., 605 N.E.2d
493, 502 (Ill. 1992). If multiple factors have combined
to cause an injury, Illinois law asks whether the defen-
dant’s conduct was a “substantial factor” in bringing
about the injury. Young, 821 N.E.2d at 1086; Coole v. Cent.
Area Recycling, 893 N.E.2d 303, 310 (Ill. App. Ct. 2008).
Drawing all inferences in favor of the plaintiffs, and
viewing the facts in the light most favorable to them,
we conclude that a trier of fact reasonably could find
that the defective condition of the mower was the proxi-
mate cause of Malen’s injury.
The defendants argue that no matter the theory of
liability (strict liability or negligence) or the mower
Malen would have been using (his own Yard-Man or one
like it with the “fail safe” safety interlock system), the
26 No. 08-3855
timing of the events leading to his injury makes the
existence of the OPC or safety interlock system irrele-
vant. According to the defendants, Malen was
injured too quickly for the OPC to have made any dif-
ference. If this contention had been established conclu-
sively by the evidence in the record, summary judg-
ment for the defendants would have been appropriate.
See Kirby v. Langston’s Furniture & Appliance, Inc., 631 So. 2d
1301, 1304 (La. Ct. App. 1994) (affirming judgment for
lawn mower manufacturer on products-liability claim
where plaintiff did not produce evidence that the
presence of OPC would have prevented injury); Gauthier
v. McDonough Power Equip., Inc., 608 So. 2d 1086, 1090-91
(La. Ct. App. 1992) (same); Wenzell v. MTD Prods., Inc., 336
N.E.2d 125, 132-33 (Ill. App. Ct. 1975) (affirming verdict
for manufacturer of lawn mower where plaintiff failed
to introduce evidence that mower’s allegedly defective
chain and sprocket caused injury). But the defendants
start their clock from the point when Malen rose from
the seat, and that is too late. The Yard-Man was
equipped with an NCR, and had it been connected the
motor would have died before Malen stood up. Malen
already had shifted into reverse while trying to rock the
mower free, so the NCR should have shut power to
the engine because the blade was still engaged. More
importantly, though, the time frame is subject to dispute.
Malen testified that the whole ordeal—from when he
tried to rock the mower free to when he cut his foot—lasted
between 10 and 20 seconds, well beyond even the 5-
second ANSI standard. And when the OPC was con-
nected after the accident, the blade fully stopped in 2.6
No. 08-3855 27
seconds, only a fraction of a second longer than Malen’s
guess about the shortest possible interval between when
he started to rise from the seat and when the blade
first struck his foot. Malen was wearing a boot and the
defendants submitted no evidence suggesting that a
blade about to come to a full stop would have injured
Malen’s foot to the same extent as a blade turning un-
abated at full power. The evidence must be viewed
from the perspective most favorable to the plaintiffs, but
even the scenario favoring the defendants would have
given the blade time to stop before Malen tried to
extract his foot from the cutting deck. In fact, however,
the cutting blade continued to spin.
The defendants’ principal argument though—and the
basis of the district court’s decision—is that Malen’s own
conduct and not the defective mower was the legal
cause of his injury. Legal cause is established if the de-
fendant’s conduct is so closely tied to the plaintiff’s
injury that the defendant should be held legally respon-
sible. Simmons v. Garces, 763 N.E.2d 720, 732 (Ill. 2002);
McCraw v. Cegielski, 680 N.E.2d 394, 396 (Ill. App. Ct.
1996). Legal cause involves an assessment of foresee-
ability, in which Illinois courts ask whether the injury is
of a type that a reasonable person would foresee as a
likely result of his conduct. Young, 821 N.E.2d at 1086; Lee,
605 N.E.2d at 503. The district court reasoned that
the defendants “could not have foreseen that any indi-
vidual would drive a riding mower off a curb and dis-
mount that mower with the cutting blades still engaged,
all the while ignoring clearly placed warning labels
cautioning the operator to turn off the engine and blades
before dismounting.” Malen, 2008 WL 4610295, at *8.
28 No. 08-3855
If Malen’s conduct is relevant at all, the fact that he
drove the mower off the curb is not. And neither is it
relevant that he tried to dislodge the machine by
shifting between forward and reverse while rocking the
mower. The defendants did not submit any evidence
that the mower’s position on the curb caused Malen to
slip or that the cutting deck was tilted in a way that
exposed the blade. That the mower was wedged on the
curb was Malen’s motive for dismounting but, as far as
this record shows, that is all. And when Malen dis-
mounted, he already had ceased rocking the machine, so
his unsuccessful use of this maneuver had no bearing
on his injury. The defendants have never contended that
while rocking the mower he lost his balance and fell
beneath the blade.
Malen’s disregard of a warning label directing him
to shut off the engine before dismounting at least has
superficial appeal, but this does not resolve the issue
here. The plaintiffs concede that Malen had read and
comprehended the printed warning label on the mower,
and if the plaintiffs were still pursuing a claim for
failure to warn about the unconnected OPC and NCR, the
defendants might be able to rely on the label in
defending that claim. See Werckenthein v. Bucher Petro-
chemical Co., 618 N.E.2d 902, 908-09 (Ill. App. Ct. 1993);
Taylor v. Gerry’s Ridgewood, Inc., 490 N.E.2d 987, 991-92
(Ill. App. Ct. 1986). But at summary judgment the plain-
tiffs abandoned their claim of a failure to warn, and
the warning label on the mower has no bearing on the
plaintiffs’ remaining claims. If the mower was defective
because of an unconnected or poorly designed safety
No. 08-3855 29
interlock system, warnings could not erase the defect or
make the machine safe. See Chapman v. Maytag Corp., 297
F.3d 682, 689 (7th Cir. 2002) (applying Indiana law);
Glover v. BIC Corp., 6 F.3d 1318, 1323 (9th Cir. 1993) (ap-
plying Oregon law); Needham v. White Labs., Inc., 639
F.2d 394, 400 (7th Cir. 1981) (applying Illinois law).
In any event, when warnings are relevant, a jury ordi-
narily must decide whether the failure to follow them
rendered a plaintiff’s conduct unforeseeable. See Wheeler
v. Sunbelt Tool Co., 537 N.E.2d 1332, 1343 (Ill. App. Ct.
1989); Thibault v. Sears, Roebuck & Co., 395 A.2d 843, 847
(N.H. 1978). And on this record nothing favors a
decision for the defendants. Pacheco, Malen’s expert,
testified at his deposition that the Yard-Man’s design
allowed an operator to leave the mower running,
dismount temporarily to move debris, and then resume
mowing. Removing debris from the mower’s path is a
routine precaution that any careful operator would be
expected to take, see Campbell v. Kovich, 731 N.W.2d 112,
115-16 (Mich. Ct. App. 2006); Gore v. Ohio Dep’t of
Transp., 774 N.E.2d 817, 820 (Ohio Ct. Cl. 2002), and
Pacheco opined that doing so without shutting off the
engine is an acceptable practice so long as the mower
is not left unattended. That ANSI standards mandate
equipping riding lawn mowers with an OPC—a device
intended to protect operators who dismount with the
engine running—confirms that dismounting temporarily
while leaving the engine running is common and
ordinary use of a riding mower. See Kirby, 631 So. 2d
at 1303.
30 No. 08-3855
Even if the defendants are correct that Malen was
himself negligent and that it mattered, accidents are
natural, foreseeable consequences of using certain prod-
ucts. See R ESTATEMENT (T HIRD ) OF T ORTS: P RODUCTS L IA-
BILITY § 16 cmt. a (1998); Buehler v. Whalen, 374
N.E.2d 460, 464-65 (Ill. 1977); Bean v. Volkswagenwerk
Aktiengesellschaft of Wolfsburg, Germany, 440 N.E.2d 426, 429
(Ill. App. Ct. 1982). This principle is known as the
crashworthiness doctrine (or the “enhanced injury” or
“second collision” doctrine), which Illinois has adopted.
Buehler, 374 N.E.2d at 464-65; see DePaepe v. Gen. Motors
Corp., 33 F.3d 737, 739 (7th Cir. 1994) (applying Illinois
law); Nanda v. Ford Motor Co., 509 F.2d 213, 217-18 (7th
Cir. 1974) (applying Illinois law); Mack v. Ford Motor Co.,
669 N.E.2d 608, 612 (Ill. App. Ct. 1996); Oakes v. Gen. Motors
Corp., 628 N.E.2d 341, 345 (Ill. App. Ct. 1994); Seward v.
Griffin, 452 N.E.2d 558, 568 (Ill. App. Ct. 1983); Bean, 440
N.E.2d at 429; Stahl v. Ford Motor Co., 381 N.E.2d 1211,
1214-15 (Ill. App. Ct. 1978). The doctrine applies to both
strict liability and negligence, and to every person involved
in the overall enterprise of a product, including distribu-
tors and retailers. See Abco Metals Corp. v. Equico Lessors,
Inc., 721 F.2d 583, 584 (7th Cir. 1983) (applying Illinois law);
Nanda, 509 F.2d at 219; Buehler, 374 N.E.2d at 465; Dunham
v. Vaughan & Bushnell Mfg. Co., 247 N.E.2d 401, 404 (Ill.
1969). The premise underlying the crashworthiness doc-
trine is that some products, although not made for certain
purposes—such as accidents—should nevertheless be rea-
sonably designed to minimize the injury-producing effect
of an accident. Bean, 440 N.E.2d at 429; see Tafoya v. Sears
Roebuck & Co., 884 F.2d 1330, 1337 (10th Cir. 1989), overruled
No. 08-3855 31
on other grounds, Mile Hi Concrete, Inc. v. Matz, 842 P.2d
198, 206 n.17 (Colo. 1992). A defect is not merely the
conclusion that the product failed and caused injury,
but that the product failed to provide the consumer
with reasonable protection under the circumstances sur-
rounding a particular accident. Whitted v. Gen. Motors Corp.,
58 F.3d 1200, 1205-06 (7th Cir. 1995) (applying Indiana
law). The crashworthiness doctrine is consistent with the
idea that although a defendant’s conduct is not a proxi-
mate cause if some intervening act supersedes the defen-
dant’s negligence, a reasonably foreseeable intervening
act, such as an accident, does not relieve the defendant
of liability. See Bentley v. Saunemin Twp., 413 N.E.2d
1242, 1245 (Ill. 1980); Mack, 669 N.E.2d at 613.
If the crashworthiness doctrine applies to riding
mowers, the defendants were required to foresee certain
accidents in the use of the mower—much like an auto
manufacturer must foresee that its cars will sometimes
be involved in accidents—and to provide consumers
with reasonable protections under the circumstances
surrounding particular accidents. Illinois has applied
the doctrine to automobiles, Buehler, 374 N.E.2d at 464;
Mack, 669 N.E.2d at 612; Oakes, 628 N.E.2d at 345;
Bean, 440 N.E.2d at 428-29, but its highest court has not
specifically addressed whether the crashworthiness doc-
trine applies to riding mowers.
The Restatement (Third) of Torts recognizes that the
crashworthiness doctrine applies outside the automobile
context. See R ESTATEMENT (T HIRD ) OF T ORTS: P RODUCTS
L IABILITY § 16 cmt. a (1998). Other jurisdictions have
32 No. 08-3855
extended the doctrine to motorcycles, Miller v. Todd, 551
N.E.2d 1139, 1142 (Ind. 1990); McDowell v. Kawasaki
Motors Corp. USA, 799 S.W.2d 854, 865-66 (Mo. Ct. App.
1990); airplanes, McGee v. Cessna Aircraft Co., 188 Cal. Rptr.
542, 551 (Cal. Ct. App. 1983); Duncan v. Cessna Aircraft Co.,
632 S.W.2d 375, 382-83 (Tex. App. 1982) (applying New
Mexico law), overruled on other grounds, 665 S.W.2d 414
(Tex. 1984); boat engines, Pree v. Brunswick Corp., 983 F.2d
863, 866 (8th Cir. 1993) (applying Missouri law); Rubin v.
Brutus Corp., 487 So. 2d 360, 363-64 (Fla. Dist. Ct. App.
1986); fork lifts, Weir v. Crown Equip. Corp., 217 F.3d 453,
460-61 (7th Cir. 2000) (applying Indiana law); Habecker v.
Clark Equip. Co., 942 F.2d 210, 214 (3d Cir. 1991) (applying
Pennsylvania law); snowmobiles, Smith v. Ariens Co., 377
N.E.2d 954, 957 (Mass. 1978); and tractors, Kutsugeras v.
AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992) (applying
Wisconsin law); Roe v. Deere & Co., 855 F.2d 151, 153 (3d
Cir. 1988) (applying Pennsylvania law). We have not
found an Illinois decision on point, but several states
have explicitly recognized the application of the doctrine
to riding mowers. Baker v. Outboard Marine Corp., 595
F.2d 176, 177 n.1 (3d Cir. 1979) (applying Pennsylvania
law); Tafoya, 884 F.2d at 1338-39 (applying Colorado
law); Young v. Deere & Co., 818 F. Supp. 1420, 1422 (D. Kan.
1992) (applying Kansas law); Harrison v. McDonough
Power Equip., Inc., 381 F. Supp. 926, 930 (S.D. Fla. 1974)
(applying Florida law).
We see no principled basis to conclude that Illinois
courts would require car manufacturers to foresee that
accidents occur with automobiles, while allowing manu-
No. 08-3855 33
facturers of riding mowers to pretend that accidents
involving riding mowers are uncommon. Accidents on
riding mowers are foreseeable just as accidents on our
roadways are. See C ONSUMER P RODUCT S AFETY C OMMIS-
SION , R IDING L AWN M OWERS , http://www.cpsc.gov/
cpscpub/pubs/588.html (last visited Nov. 15, 2010) (esti-
mating that 37,000 injuries related to riding-mower acci-
dents were treated annually in hospital emergency
rooms from 2003 through 2005); Vanessa Costilla & David
M. Bishai, Lawnmower Injuries in the United States: 1996 to
2004, 47 A NNALS OF E MERGENCY M EDICINE 567, 569-70
(2006) (finding that between 1996 and 2004 the primary
diagnosis was laceration for the 663,393 lawnmower
injuries treated in United States emergency rooms). And
the OPC is aimed at the precise circumstance in this
case: an extremity comes into contact with the cutting
blade while the operator is not fully in control of the
mower. See Klein v. Sears Roebuck & Co., 773 F.2d 1421,
1425 n.2 (4th Cir. 1985) (applying Maryland law);
Southland Mower Co. v. Consumer Prod. Safety Comm’n, 619
F.2d 499, 514 (5th Cir. 1980); Winters v. Country Home Prods.,
Inc., 654 F. Supp. 2d 1173, 1178 (D. Mont. 2009) (applying
Montana law). Given the number of accidents, and that
Illinois law recognizes that accidents are foreseeable
when using certain products, Malen’s injury here had to
have been anticipated. What Malen did with the
mower here may not have made him a model user, but
that is not dispositive for the purposes of the crash-
worthiness doctrine.
And so the district court’s conclusion that
Malen’s behavior broke the chain of causation when he
disregarded an explicit warning is not consistent with
34 No. 08-3855
the crashworthiness doctrine as adopted in Illinois. A
jury could still conclude that the mower was unrea-
sonably dangerous and that the absence of functional
safety mechanisms was the proximate cause of Malen’s
injury. See Black v. M & W Gear Co., 269 F.3d 1220, 1236
(10th Cir. 2001) (applying Oklahoma law in concluding
that evidence of plaintiff’s alcohol consumption was
irrelevant to show causation when plaintiff’s claim
that mower lacking roll-over-protection was not crash-
worthy); Pree, 983 F.2d at 866 n.3 (applying Missouri
law and stating that evidence of operator’s intoxication
is irrelevant in a strict tort liability action under
crashworthiness doctrine). Whether or not Malen
initiated a chain of events that ended with him being
injured—by wedging the mower on the curb, attempting
to rock it loose, and dismounting without cutting the
engine—the crashworthiness doctrine obligated the
defendants to foresee the potential for this type of acci-
dent. Thus, summary judgment for the defendants on
this ground was improper.2
2
MTD Products and Home Depot also assert that the absence
of the ineffectual safety interlock system could not have been
a substantial factor in causing Malen’s injury because Malen
did not know that the Yard-Man had an OPC or NCR and so
he could not have been expecting the devices to protect
him when he dismounted with the blade engaged. In the
defendants’ view, since Malen did not know that the mower
was (theoretically) equipped with an OPC, he “cannot say that
his actions would have been different had the OPC been
(continued...)
No. 08-3855 35
Lastly, even if Malen’s actions can be characterized
as negligent, this goes only to apportioning comparative
fault. Under Illinois law, whether a claim is based on
negligence or strict products liability, an injured party
is barred from recovering only if the trier of fact finds
that his conduct was more than 50% of the proximate
cause of the injury for which recovery is sought. 735 ILCS
5/2-1116; Tidemann, 224 F.3d at 725; Freislinger v. Emro
Propane Co., 99 F.3d 1412, 1417 (7th Cir. 1996) (applying
Illinois law); Williams v. Brown Mfg. Co., 261 N.E.2d 305,
310 (Ill. 1970). Comparative fault applies so that former
defenses such as contributory negligence, assumption of
risk, and misuse of the product are merely dam-
age-reducing factors. Byrne v. SCM Corp., 538 N.E.2d 796,
815 (Ill. App. Ct. 1989); Tennant v. Clark Equip. Co., 492
N.E.2d 632, 636 (Ill. App. Ct. 1986). So long as Malen’s
negligence (if there really was any at all) was not greater
than 50% of the cause of his injury, the plaintiffs are not
barred from recovering.
Based on the above, and drawing all inferences in
favor of the Malens and viewing the facts in the light
most favorable to them, we conclude that a jury rea-
sonably could find that the defective condition of the
mower was the proximate cause of Malen’s injury.
(...continued)
connected.” But when Malen dismounted he thought the
blade had stopped. He testified that he lifted his foot off
the blade engagement pedal and did not know that he had
inadvertently locked the pedal down.
36 No. 08-3855
III. CONCLUSION
The district court’s grant of summary judgment is
R EVERSED, and the case is R EMANDED for proceedings
consistent with this opinion.
11-19-10