Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.
The Illinois Appellate Court recently reached a decision in the area of product liability regarding the issue of foreseeability.
In Perez v. Sunbelt Rentals, 2012 Ill. App. (2d) 110382, the plaintiff filed suit against JLG Industries after suffering severe injuries as a result of falling from a scissor lift, manufactured by JLG. The guard gate had been removed from the scissor lift by one of the plaintiff’s co-workers after it left the manufacturer’s control. The plaintiff’s complaint alleged that it was unreasonably dangerous when it left the manufacturer’s control because it was foreseeable that it would be altered.
There was no dispute between the parties regarding the caselaw, which holds that a manufacturer can be held liable for modifications made to a product that are foreseeable, or “objectively reasonable to expect.” Further, modifications to a product are considered objectively reasonable if the product is capable of being easily modified or if the operator has an incentive to modify it.
The plaintiff argued that the guard gate was both easily removable and that it had an incentive to do so. On the first argument, the plaintiff argued that the guard gate was capable of modification simply by the removal of a single bolt and two pins which only required a wrench and a screwdriver. On the second point, the plaintiff argued that the guard gate impeded the use of the gate.
The defendant argued that since tools were required to remove the gate, its removal was not foreseeable as a matter of law. However, the court looked to caselaw in the area, and in particular the 1996 decision in Davis v. Pak-Mor. 284 Ill. App. (3d) 214 (1996). In Davis, a truck driver modified a garbage truck by rewiring a safety switch for the purposes of allowing the garbage truck to be loaded while the truck was in gear. The evidence suggested that the rewiring procedure was very straightforward and could be accomplished by using a pliers and screwdriver which the average truck operator would probably have the knowledge to carry out.
The Illinois Appellate Court, relying on Davis, rejected JLG’s argument that the removal of the guard gate was not foreseeable as a matter of law and held that there was a genuine issue of material fact for the jury regarding the issue of foreseeability to be determined by the jury.
While the defendants sought to argue that the removal of the guard gate with tools was an unforeseeable modification, when we look to the caselaw and examine the facts of this case thoroughly, it simply involved the removal of a bolt and two pins. To adjudge the modification unreasonable as a matter of law, at the summary judgment stage, would be to deny the plaintiff a chance to present a genuine dispute of fact to the jury.