A product liability claim can survive a motion for summary judgment under three theories. For a plaintiff’s product liability negligence claim to proceed, the plaintiff must: (1) allege the product had a design defect, (2) allege there was a manufacturing defect, or (3) claim the product did not have proper warnings for consumers. When a plaintiff alleges a design defect, he or she must claim the product’s design made it unreasonably dangerous. If alleging a manufacturing defect, the plaintiff must claim the product manufactured was defective and different from the intended design.
In Salerno v. Innovative Surveillance Technology Inc. (“IST”), 402 Ill. App. 3d 490, 502, 932 N.E.2d 101 (2010), the plaintiff, who worked as an investigator for a narcotics technical department, sued a surveillance manufacturer after hitting his head on a non-padded part of a periscope. The plaintiff worked inside a van fully equipped with cameras, computers, and a periscope. On the date of the incident, he had been bent down inside the van. When he stood up, he hit his head on what he believed to be an unpadded portion of the periscope. Following the incident, the plaintiff had a cut on his head. He filed a product liability claim against the surveillance company, alleging strict liability. The plaintiff alleged the periscope had a design defect because it was unreasonably dangerous since there were portions of the periscope that were not padded. Plaintiff also alleged the periscope did not have any warning signs warning consumers that the periscope could cause an injury.
After the completion of discovery depositions, the surveillance company filed a Motion for Summary Judgment, alleging it did not have a duty to the plaintiff. It argued that the periscope was open and obvious, and a reasonable person would have seen the periscope and taken precautions when walking near it. (The open and obvious rule provides an exception to the defendant’s duty requirements in premises liability negligence cases.) The lower court granted IST’s motion for summary judgment and reasoned that the periscope was open and obvious.
After the lower court granted the summary judgment motion, the plaintiff filed an appeal, arguing that the lower court erred in granting the summary judgment motion under the open and obvious rule. He argued that since he was performing surveillance on a narcotic’s group, he was distracted; therefore, the open and obvious exception did not apply to him.
Oddly enough, while the Illinois Appellate Court affirmed the decision, it did not follow the reasoning the lower court provided in its decision. The appellate court stated that the lower court’s decision to grant IST’s motion for summary judgment was correct; however, the lower court had erred in the reasoning it used to grant the motion. The appellate court reasoned that the defendant asserted a defense that was not applicable in product liability cases. However, since the plaintiff did not argue against the defense and instead argued for an exception to the defense asserted by the plaintiff, the appellate court reviewed the arguments made by the parties. Ultimately, the appellate court found there was not enough evidence to affirm the grant of summary judgment, but since the review was de novo, it found plaintiff had waived any other product liability claims he could have asserted. Therefore, when preparing a motion for summary judgment (or its response), counsel should assert alternative defenses to avoid waiving them, even if those defenses were not the strongest claims.
