How to Successfully Prove a Product Liability Claim in Illinois

Every year, people are injured by unsafe and defective products.  Product Liability Law concerns cases in which a person is injured by a defective product. What is product liability? See our previous blog HERE and our webpage HERE for a breakdown on the basics of product liability.

In Illinois, there are two main ways of proving a product liability case:

  1. Consumer-Expectation Test:

Under the consumer-expectation test, a plaintiff must establish what an ordinary consumer purchasing the product would expect about the product and its safety.  This standard applies the objective view of the normal, average expectations of a reasonable person. This test does not apply the subjective expectations of the actual purchasing consumer. Calles v. Scripto-Tokai Corp., 224 Ill.2d 247,254 (2007). The consumer-expectation test allows for easy application by the average juror. Each juror can determine what an ordinary person purchasing the product in question would expect of that product and its safety.

  1. Risk Utility Test:

Under the risk utility test, a plaintiff may prevail in a strict liability design-defect case if he or she demonstrates that the magnitude of the danger of the product outweighs the utility of the product, as designed. As discussed by the Illinois Trial Lawyers Association, the risk-utility is to be balanced based on a multitude of factors. The factors considered by the courts include: the foreseeable risks of harm, the instructions and warnings accompanying the product, and the nature and strength of consumer expectations regarding the product. These factors are then weighed against factors that include: expectations arising from product marketing, the likely effects of the alternative design on production costs, the effects of the alternative design on product longevity, maintenance, repair, and the range of consumer choice among products.

Under either test, the plaintiff has the burden to prove that the product that caused the injury was defective and unreasonably dangerous. Compared to the consumer-expectation test, the risk utility test creates a higher burden of proof for the plaintiff. The burden of proof for each test differs so significantly that a Florida court recently rejected the use of the risk utility test. Illinois courts allow for the plaintiff to use either the consumer-expectation test or the risk utility test. However, according to the American Association for Justice, if there is risk-utility evidence, an Illinois court must give a risk-utility jury instruction, even if the plaintiff prefers that the jury is instructed on the consumer-expectation test. It then becomes the jury’s job to apply the appropriate jury instruction. The need for a risk-utility jury instruction was initiated by Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516 (2008). Mikolajczyk did not expressly overrule prior Supreme Court decisions concerning the use of the two tests. Instead, the Illinois Pattern Jury Instructions were rewritten to account for the new application of jury instructions in product liability cases. Under the newly rewritten jury instructions, the Illinois Pattern Jury Instructions expressly do not list the factors for the risk-utility test. Instead, as Jablonski v. Ford Motor Co.,  pointed out, the factors exist for the court to initially balance factors it finds relevant to determine if the case is a proper one to submit to the jury. Jablonski v. Ford Motor Co., 2011 IL 110096, ¶ 87.

In Mikolajzcyk, James Mikolajczyk died after the Ford Escort he was driving was rear-ended by another vehicle. Upon impact, the driver’s seat collapsed, causing him to be propelled backward and strike his head on the rear seat of the car.  The jury found Ford Motor Company 40% liable due to the defective design of its seat-back. The jury awarded Mikolajczyk’s estate $27 million, including $25 million in non-economic damages.

Recently, product liability attorney John Malm at John J. Malm & Associates was involved in a case involving a vehicle defect and a manufacturer’s decision to withhold key safety features in its design. The complaint filed by Mr. Malm alleged that the vehicle manufacturer withheld important safety features such as dynamic stability control and traction control, and was designed with rear-hinged doors which prevented occupants from escaping in a crash.

A knowledgeable personal injury lawyer will know which product liability test to apply in a given product liability case.  If you or a loved one has been injured by an unsafe or defective product, contact product liability attorney John Malm at John J. Malm & Associates to learn more about how you may be entitled to receive compensation.


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