THIRD DIVISION May 23, 2007
No. 1-05-2154
KRZYSZTOF SOBCZAK, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) ) GENERAL MOTORS CORPORATION, ) Honorable ) Carol P. McCarthy, Defendant-Appellee. ) Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Plaintiff Krzysztof Sobczak (Sobczak) filed suit against defendant General
Motors Corporation (GM). His fourth amended complaint alleged five counts against
GM: strict product liability (count I), negligence (count II), res ipsa loquitur (count III),
breach of express warranty (count IV), and breach of implied warranty (count V). The
trial court directed verdicts for GM on counts II, III, IV and V. The trial court also
directed a verdict for GM with respect to part of Sobczak’s strict liability claim (count I),
but allowed a portion of that claim to reach the jury. After hearing all of the evidence,
the jury found in favor of GM. Sobczak now appeals. For the following reasons, we 1-05-2154
reverse and remand.
Sobczak filed a fourth amended complaint containing 31 counts against seven
defendants, GM, Rizza Chevrolet, Gemini Conversions, Inc., and four manufacturers of
automotive parts, for injuries he sustained as a result of a fire that ignited in his YF7
configured 1999 Chevy Astro M/L van. Prior to trial, Sobczak’s claims against six of the
defendants were either dismissed or settled. Sobczak proceeded to trial against GM
only.
At trial, Sobczak sought to prove that GM defectively designed the heat shields,
muffler and fuel management system for the YF7 configured M/L van and negligently
designed the van’s heat shields. At the conclusion of Sobczak’s case in chief, GM
presented a motion for a directed verdict and the trial court entered directed verdicts in
favor of GM and against Sobczak on Sobczak’s negligence, res ipsa loquitur, express
warranty and implied warranty counts. With regard to Sobczak’s strict liability claim,
the trial court directed a verdict for GM except with respect to the alleged design defect
concerning the fuel management system.
Following the presentation of the evidence by GM, the jury returned a verdict in
favor of GM and against Sobczak on the remaining count. This timely appeal followed.
BACKGROUND
At about 9 p.m., on August 28, 1999, Sobczak drove his father’s Chevrolet Astro
van (YF7 configured, M/L model) to pick up his cousin Arthur. Sobczak and Arthur
went to two nightclubs over the course of several hours. Sobczak consumed at least
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five beers in that time period. Sobczak and his cousin left at 2 a.m., and went back to
Sobczak’s house. At 4:30 a.m., Arthur woke Sobczak so that Sobczak could drive him
home.
After dropping off Arthur, Sobczak noticed that the van was sluggish and was
making noises. He turned onto 51st Street to avoid traffic on Archer Avenue. The car
stalled on 51st Street and Sobczak tried to start the car by putting the transmission into
neutral and turning the key. The car started but the motor sounded like it was “jumping
up and down.” Sobczak put his foot on the brake pedal and put the van in gear, but the
motor died. This occurred about 10 times in 10 minutes. Sobczak started the van once
more but smelled something coming from the back. He climbed over the seat and went
to the back bench seat. He knelt on the bench seat and started to check around when
the seat exploded into flames. His shirt and hair caught on fire. He felt his way back to
the driver’s seat and tried to open the door. The next thing Sobczak could recall was
waking up in the hospital one month after the accident. Sobczak could not recall how
he ended up in the passenger seat where firefighters found him nor whether he
attempted to unlock the van's doors.
Several residents saw the van on fire. Jan Wyka was getting ready for work
when he heard a bang. He went to the window and saw both smoke and flames
coming from beneath the van. Wyka’s daughter called 911 and Wyka attempted to put
out the fire using his garden hose but it was too short. As Wyka approached the van,
he heard a loud bang and glass breaking. He retreated because the flames became
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too intense.
Michael Dinkel was sleeping on the morning of August 28, 1999, but was
awakened about 6 a.m. by a loud noise. Dinkel went outside and saw the van on the
street. As he was looking at the van, the exhaust system began glowing red and the
van ignited. Firefighters arrived at the scene and Dinkel saw them break the passenger
side window, unlock the door and remove Sobczak.
David Atkocaitis, a lieutenant with the Central Stickney Fire Department,
responded to the fire involving Sobczak. Upon arriving at the scene, he was notified
that the driver was still inside the van. He approached the van to look inside and did
not see flames but felt a lot of heat and saw a lot of smoke. After the window of the van
was broken, Lieutenant Atkocaitis could see Sobczak on the front passenger seat of
the van. Sobczak was removed from the van and transported by ambulance to McNeal
Hospital.
Dr. Richard Gamelli, the director of Loyola Hospital’s burn center, treated
Sobczak after he was transferred from McNeal Hospital. Sobczak had burns over 40%
of his body, including severe burns to his face, neck, right arm and hand, left arm, back
and thighs. A toxicology screening done at Loyola at 7:24 a.m. on August 28, 1999,
showed Sobczak’s blood alcohol level to be .157.
John Orisini, the head of the fire and arson investigative unit for the Cook
County sheriff’s police, testified that he was assigned to investigate the Sobczak van
fire to determine the cause of the fire. Orisini determined that the fire started near the
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rear tire on the passenger side. He drew this conclusion based on the fact that the
metal in that area was exposed and whitening occurred. There was also evidence of
heavy burning in the area of the kickup and the rear wheel. The carpet padding in front
of the two rear seats was completely burned away. Normally, the carpet would not burn
away unless the heat was coming from underneath the padding or a flammable liquid
was used. Orisini found no evidence of a flammable liquid. Based on his investigation,
Orisini concluded that the fire started underneath the van either in or near the muffler
and the heat had conducted up through the flooring and traveled inside the van. Orisini
observed a hole in the muffler at the seam and saw that the aluminum heat shield had
melted off.
Dennis Himmler is a GM senior staff engineer who has investigated over 1,000
vehicle fires. Himmler inspected Sobczak’s van on two occasions prior to trial.
Based on his inspection, Himmler testified that overheating in the exhaust system in the
van could have only occurred gradually. The exhaust system could not have
overheated simply by starting the engine, allowing it to idle or revving it several times.
The only way the exhaust system could have overheated would be by repeated
acceleration of the engine to 5600 revolutions per minute (RPM), the level at which the
built-in rev limiter would have engaged and slowed the engine. This constant RPM
cycling would have overwhelmed the catalytic converter and the exhaust system would
have overheated and started transferring heat to other components within 10 minutes.
Himmler found evidence that the exhaust system overheated from RPM cycling:
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(1) the exhaust system components had “blued”; (2) the muffler had opened at the
seam; (3) the heat shield attached to the muffler had melted; and (4) there were carbon
deposits on the spark plugs. According to Himmler, Sobczak should have been alerted
to the overheating by the loud noises and the smoke that would have been emanating
from the van.
Charles Raber testified that he has been employed by GM since 1978 and is the
lead design engineer for the full-size truck platform fuel system. From 1996 to 1999, he
was a staff project engineer and worked on the M/L van fuel systems. Tests are
performed on GM vehicles to make sure that vehicles released to the public are safe.
One of the tests performed on a vehicle is an underbody temperature test. This type of
test provided information regarding the fuel system and other systems in the vehicle.
Temperature bogeys or overtemperatures are temperature levels that GM has set and
determined should not be exceeded during the underbody temperature test. If a
temperature bogey is exceeded, it is reviewed by GM engineers.
DIRECTED VERDICTS
Sobczak first argues that the trial court erred in directing verdicts in GM’s favor.
Specifically, Sobczak claims that the trial court erred in directing a verdict with respect
to his strict liability claim relating to the van’s heat shielding and with respect to his
negligence claim based on the van’s insufficient heat shielding.
During oral argument, GM argued that Sobczak raised the issue that GM’s YF7
configuration was defectively designed, in that GM removed the tailpipe and muffler
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heat shields and chose to insulate those areas with insulated carpet padding, for the
first time on appeal. Our review of the record in this case leads us to a contrary
conclusion that we will discuss at length in our discussion of Sobczak’s claims.
At trial, Sobczak pursued his claims for negligence and strict products liability
based on design defect. Sobczak’s theory of the case was that GM had (1) defectively
designed the van’s heat shields, muffler and fuel management system; and (2)
negligently designed the van’s heat shields. Specifically, Sobczak’s case rested on the
testimony of numerous GM employees, as well as two expert witnesses, Donald Rudny
and Charles Colver.
David Ukrop testified that from 1997 to 1999 he was an engineering group
manager at GM. He was responsible for three functions-design, validations and
release. In other words, he was responsible for the design of the muffler for the exhaust
system, testing of the design, and mainstreaming the design. If for some reason the
design did not pass a test, a report would be issued. That product would be retested
and would not be allowed to go into the stream of commerce until it passed.
One of the Astro van configurations, the YF7 configured M/L van, the same van
purchased by Sobczak’s father, was for recreational vehicle upfitters. These vehicles
were marketed to families. The YF7 configured van lacked two heat shields, the body-
attached muffler heat shield and the tailpipe heat shield, that were included on other
configurations of 1999 Astro van. Ukrop agreed that the absence of the tailpipe heat
shield and the body-attached muffler heat shield would expose those areas to greater
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heat than models that had those heat shields.
A design failure mode effects and analysis (DFMEA) is a process whereby GM
determines what would happen if certain parts of the exhaust system failed and what
hazards would be caused by the failure. Ukrop testified to a DFMEA that evaluated
the loss of the insulation capability of the muffler body-attached heat shield. GM
determined that the cause and effect would be underbody components overheating,
smoke, steam or fire and/or the components can deform, melt, boil, etc.
Kevin Horton testified in an evidence deposition that he worked for GM
developing the thermal aspects of products, including the M/L van. Horton initiated a
report in connection with thermal testing of the YF7 configuration of the M/L van
relating to the floorpan overtemperature condition. The thermal testing also showed
overtemperature limits for the bottom of the foam near the kickup and the surrounding
area. When Horton issued this report, he was aware that one of the paths of fire into
the passenger compartment is via heat transfer from metal structures, such as the
floorpan, to combustible materials in contact with the floorpan, such as foam carpet
padding. Horton was also aware that if an overtemperature condition occurred for the
foam padding for the carpet, a safety concern would exist that would need to be
addressed.
Horton received a response to this report that indicated the insulation mat
underneath the foam pad absorbed any heat being transferred from the metal floor to
the carpet. However, only portions of the floorpan were covered with the insulation
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material. Consequently, the response did not fully address the concern of
overtemperature conditions of the foam mat.
Horton also testified that he understood that the YF7 configuration of the M/L
van was missing the muffler heat shield and the tailpipe heat shield. Horton testified
that these heat shields were required to limit temperatures in the passenger
compartment of the van. GM was aware that there was a potential for overtemperature
conditions of the foam pad.
Antoinette Jablonski testified that she worked in the exhaust system area for GM
during 1997-98 and worked on M/L vans. During that time, warranty claims were being
lodged against GM for the YF7 upfitter configuration for a general rattle on the rear
heat shield. Jablonski had a conversation with her supervisor regarding the removal of
the tailpipe heat shield and the muffler heat shield from the M/L van based on requests
from conversion companies trying to accommodate certain seating options. Her
supervisor told her that he believed some of the converters were altering those shields
or removing them completely, which GM believed to be a safety hazard. If a heat
shield is lost or removed, there is a potential for ignition of a vehicle. Body-mounted
heat shields would deflect heat downward and would disburse it. GM instructed the
converters that they should not modify or alter the exhaust system, including by
removal or alteration of the heat shields, because the exhaust system could reach
extremely high temperatures under extreme operating conditions.
GM, however, decided to remove the tailpipe heat shield and the muffler heat
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shield and replace those shields with an insulated mat. The insulated mat was
intended to serve as an alternative to the design involving the two rear body-mounted
heat shields. Thermal testing of the YF7 configured M/L van showed floorpan
overtemperatures. In 1999, when Sobczak’s father purchased the M/L van, it was YF7
configured, meaning that it did not have the tailpipe or muffler heat shield.
Linda Kajma testified that she had been employed by GM since 1985. During
the period of 1996 to 1998, she was a design release engineer and was responsible for
the interior design of the floor coverings for the M/L vans. Although she was not
involved in the decision, she was aware that there was a proposal to remove two of the
heat shields on the YF7 configuration and use an insulated carpet pad. Upfitters were
made aware of the change through a document entitled “Document for Incomplete
Vehicle.”
At trial, Kajma denied that the carpet pad for the M/L van was made of low-
density polyethylene foam despite testifying to the contrary at her deposition. It was
designed to go under the carpet used by the upfitters. At her deposition, Kajma
testified that the insulation did not underlie the entire foam pad. Instead, there were
two squares of insulation; one located above the muffler and one located in the area of
the catalytic converter.
Kajma was involved in thermal testing of the YF7 configured design. The testing
was performed under different test conditions, including outdoor temperatures. The
results included overtemperatures measured at the bottom of the insulation pad at the
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muffler front center. In addition, while the vehicle was in idle, almost all the areas
where the foam pad was tested had an overtemperature condition. Kajma looked at the
foam pad following testing and noticed that it was shiny. Shininess can indicate a form
of melting.
Sobczak identified Donald Rudny as an expert witness and disclosed in his
answer to Rule 213(g) interrogatories (177 Ill. 2d R. 213(g)) that Rudny would testify
that the shielding provided in the muffler area was insufficient because it was made of
aluminum rather than ferritic stainless steel. The melting point of aluminum is 1220
degrees, making aluminum a poor choice of material for shielding, given that exhaust
gas temperatures exceeding that temperature are foreseeable and would melt an
aluminum shield. In addition, Rudny would testify that the insulation intended to
replace the removed tailpipe and muffler heat shield in the YF7 configuration were also
insufficient to guard against heat transfer to the floorpan.
Prior to Rudny's testimony at trial, GM filed a motion in limine to prevent him from
testifying that the van’s heat shielding was defective because it was made of aluminum
rather than stainless steel. Defendant argued that Rudny’s testimony should be
excluded because Rudny "failed to perform any testing to determine whether a ferritic
stainless steel muffler attached heat shield would have better prevented the transfer of
heat from the muffler." The trial court granted GM’s motion to prevent Rudny from
testifying in this regard.
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Also prior to Rudny's testimony at trial, the parties and the court had a
discussion regarding the remainder of his testimony. Sobczak argued that the motion
in limine did not prevent Rudny from testifying at trial, as he did in his deposition, that
the removal of two of the heat shields in the YF7 configured M/L van left the shielding
system insufficient to prevent the ignition of a combustible body, i.e., the foam padding.
GM argued that, during the deposition, Rudny never offered an opinion about the heat
shielding system other than to opine that it was insufficient because the shields were
made of aluminum rather than steel, an issue that the court ruled Rudny could not
testify to. The court took the matter under advisement and the parties agreed to revisit
the issue in connection with a motion for a directed verdict.
With respect to the heat shielding system, Rudny testified at trial that the
standard of care within the engineering industry is “when you indentify a potential
hazard that affects the safety to the passengers, you need to guard against that hazard
and prevent it from causing some risk or danger to the occupants of the vehicle.” He
also testified at length regarding a breach in the exhaust system of this particular model
where the exhaust gas temperature reached in excess of 1400 degrees. With respect
to the heat shields, Rudny testified that the heat shielding needs to be able to withstand
those temperatures. Rudny essentially testified that the heat shielding system was
defective in two respects. Rudny testified that the M/L van with the YF7 configuration,
i.e., the M/L van without all four heat shields, was insufficient because it was not able to
withstand the temperatures of the exhaust gas that would be expelling from a breach in
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the exhaust system. Because this shielding system was inadequate, the standard of
care was breached.
Rudny testified that he was aware that, in the 1999 model year, the heat
shielding for the upfitter configuration for the M/L van, the YF7 configuration, the
tailpipe and muffler body-attached heat shields were removed and replaced with
insulation. He further testified that removing the tailpipe and muffler body-attached
heat shields and replacing them with insulation decreased the guarding of the heat
shield system and would not eliminate the hazard created by the exhaust gas escape.
Concluding his testimony, Rudny stated that “the shielding” would have been a
proximate cause of Sobczak’s injuries.
On cross-examination, Rudny testified that the purpose of heat shielding is “to
reduce radiant and convective heat to components that may be subject to combustion
or excessive temperatures.” If the temperature is high enough, heat transfer can occur,
causing the ignition of materials that may lead to a fire. Rudny admitted that with
respect to heat management systems, he did not look at a design by another
manufacturer for the 1999 model year.
Following Rudny’s testimony, GM moved to have Rudny’s testimony stricken
from the record with respect to the heat shielding system because Rudny failed to
identify a standard of care in the automotive industry applicable to the 1999 model year
with respect to heat management systems. The court indicated that Rudny failed to
articulate a standard of care with regard to the shielding other than saying the shielding
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was defective because it did not prevent heat from being transferred. However, the
court did not rule on GM’s motion.
Plaintiff identified Charles Colver as an expert opinion witness in plaintiff’s
answers to Supreme Court Rule 213(g) interrogatories. Plaintiff disclosed Colver would
testify at trial regarding the standard of care; the defects in the van, including the
muffler design, heat shielding and air-fuel management system; GM’s failure to warn
conversion companies of the dangers of removing the heat shields and insulation
material; and the cause of the fire. Specifically, Colver would opine that the van’s
muffler seam was inadequate to withstand foreseeable pressures and should have
been welded instead of crimped. Furthermore, Colver would opine that a hole in the
muffler was foreseeable but that the YF7 configuration, which removed two heat shields
and replaced them with insufficient insulation material, did not provide sufficient
protection for the foreseeable high temperatures generated by a hole in the muffler.
During voir dire, Colver testified that he has a doctorate in chemical engineering
and has studied mathematics, general engineering and mechanical engineering.
Colver had published some articles that touched on the issues of combustion and heat
transfer and, therefore, had opinions in this case regarding the muffler. Colver went on
to explain that a muffler is a vessel which is fabricated to withstand certain conditions.
Parameters are established for the operation of the muffler, which is a pass-through
vessel. Colver had been involved in numerous cases that have involved vessels and
was familiar with the design process of spot welding, banding and supporting vessels.
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Colver also had an opinion regarding guarding which relates to fuel cutoff. Fuel
cutoff is simply a high temperature limit switch that senses temperature at a particular
point. This switch produces a voltage which can open or close the valve. In this case,
the fuel delivery system valve would be closed when a high temperature is reached.
Colver acknowledged that he was unaware of the horsepower of the van and did not
know if he had a fuel cutoff valve in his car. He also admitted that he had never
designed an exhaust system, had never designed a system for maintaining comfortable
floor temperatures in a vehicle, had never designed any vehicle system, had not tested
any of the components in this case and had not done any testing on any components in
the industry that would be generally relevant to the 1999 model year.
Following voir dire, the trial court found that Colver’s testimony was “barred on
the whole thing” because “[h]e doesn’t have competence to testify about this particular
At the close of Sobczak’s case in chief, the court directed a verdict in favor of
GM and against Sobczak with respect to Sobczak’s strict liability claim relating to the
heat shielding. The court ruled that Rudny’s conclusions that: (1) the shielding that
was taken off was insufficient; and (2) the shielding that was put on was insufficient,
were speculative without having conducted any tests. The court also entered directed
findings for GM with regard to Sobczaks' 1 negligence claims relating to the van’s fuel
1 A directed verdict was also entered with respect to Sobczak’s warranty claims
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management system and heat shielding. The court found that Rudny failed to identify a
standard of care within the industry.
A directed verdict should be granted only if all of the evidence, viewed in the
light most favorable to the nonmoving party, so overwhelmingly favors the movant that
no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510 (1967). We review the trial court’s order granting a directed verdict to defendant
de novo. Susnis v. Radfar, 317 Ill. App. 3d 817, 825-26 (2000).
1. Strict Liability
A plaintiff may establish a strict liability claim based on a design defect in one of
two ways; the consumer-expectation test or the risk-utility test. Calles v. Scripto-Tokai
Corp., 224 Ill. 2d 247, 255 (2007), citing Lamkin v. Towner, 138 Ill. 2d 510, 528 (1990).
The consumer-expectation test provides that a product is “unreasonably dangerous”
when it is “dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.” Restatement (Second) of Torts §402A, Comment i,
but Sobczak did not dispute the propriety of that ruling in the trial court, nor does he
raise that issue before this court. Similarly, Sobczak does not dispute the trial court’s
ruling directing a verdict for GM on his res ipsa count but states that the trial court
granted the motion on that count because it found that Sobczak could not prove simple
negligence.
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at 352 (1965).
Under the risk-utility test, a plaintiff must demonstrate that a design defect exists
by presenting evidence that the risk of danger inherent in the design of the product
outweighs the benefits of the design. Lamkin, 138 Ill. 2d at 529. In other words, “[t]he
utility of the design must therefore be weighed against the risk of harm created” and “[i]f
the likelihood and gravity of the harm outweigh the benefits and utilities of the product,
the product is unreasonably dangerous.” 63A Am. Jur. 2d Products Liability §978, at
146-47 (1997).
Sobczak claims that he sought to establish at trial that the van’s heat shields
were defective because the particular design configuration of the van, the YF7
configuration, eliminated two heat shields found on other GM models and because the
heat shields were made of aluminum rather than steel. Sobczak was prevented from
pursuing the latter theory because Rudny’s testimony on this issue was precluded by
the court’s granting of GM’s motion in limine.
a. Consumer-Expectation Test
Sobczak argues there was sufficient evidence presented to establish that his
injuries were the result of the unreasonably dangerous condition of the van at the time
the van left GM’s control. Sobczak asserts that admissions made by several of GM’s
engineers who were involved in the design of the YF7 configuration and the release of
that design to the public established that the van’s heat shielding was defective. GM
responds that Sobczak did not introduce any evidence to establish that the heat
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management system should have been able to withstand the extreme conditions
generated by abnormal use, i.e., Sobczak’s continued revving of the engine.
As previously stated, a plaintiff may prevail under the consumer-expectation test
if he or she can demonstrate that the product failed to perform as an ordinary consumer
would expect when used in an intended or reasonably foreseeable manner. Calles,
224 Ill. 2d at 256. There was some discussion at oral argument as to whether the
plaintiff must establish a design defect prior to the application of the consumer-
expectation test. A plain reading of the language in Calles leads us to find that the
plaintiff need not. Further support for our conclusion comes from Johnson v. Amerco,
87 Ill. App. 3d 827 (1980), wherein the court relied on the principal that “[a] prima facie
case that a product was defective and that the defect existed when it left the
manufacturer's control is made by proof that in the absence of abnormal use or
secondary causes the product failed to perform in the manner reasonably to be
expected in light of its nature and intended function." Johnson, 87 Ill. App. 3d at 829.
The purpose of the heat shielding system is to disburse and deflect any heat
created from the operation of the vehicle away from the vehicle. Numerous employees
of GM testified that the YF7 configuration of the M/L van had a different heat shielding
system than other models of the 1999 Astro van. While other models of the Astro van
had four heat shields, the YF7 configuration only had two. In place of the tailpipe and
muffler heat shield, GM chose to use insulated foam matting to be placed under the
carpet installed by the upfitters. This foam matting was designed and tested by GM.
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Upon application of high temperatures during thermal testing, the foam matting
exhibited signs of melting. Rudny testified that removing the tailpipe and muffler body-
attached heat shields and replacing them with insulation decreased the guarding of the
heat shield system and would not eliminate the hazard created by the exhaust gas
escape.
Clearly, an ordinary consumer purchasing an M/L van would give little or no
thought to the heat shielding system selected by GM, but would expect that little or no
heat would be transferred from underneath their YF7 configured M/L van into the
vehicle compartment.
The question is whether Sobczak used the M/L van, i.e., the heat management
system, in a reasonably foreseeable manner. That is, should GM have contemplated
and tested the safety of YF7 configuration to determine if it could withstand certain
temperatures created by foreseeable operations? Contrary to GM’s assertions, we
believe that the answer is yes. It is difficult to say that Sobczak’s use of the M/L van
was abnormal or unreasonable or unforeseeable. It is reasonably foreseeable that if
the M/L van stalled, an ordinary consumer would make numerous attempts to restart
the van without much thought as to whether the heat shielding system would withstand
the high temperatures that may be created by revving the engine. Specifically, an
ordinary consumer would expect his M/L van either to start or not to start, but would not
expect the interior of the van to ignite.
A directed verdict should be granted only if all of the evidence, viewed in the
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light most favorable to the nonmoving party, so overwhelmingly favors the movant that
no contrary verdict could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
510 (1967). We do not believe that the evidence presented on this issue so favored
GM as to preclude a verdict for Sobczak.
b. Risk-Utility Test
Sobczak argues that, in the alternative, he was required to show that the van’s
design proximately caused his injury and “ ‘on balance, the benefits of the challenged
design outweigh the risk of danger inherent in such designs.’ ” Blue v. Environmental
Engineering Inc., 345 Ill. App. 3d 455, 466 (2005), quoting Lamkin, 138 Ill. 2d at 529.
Sobczak asserts that he introduced extensive evidence from which the jury could have
concluded that the defective heat shielding was the proximate cause of his injury.
Because we have determined that the trial court improperly directed a verdict for
GM on the issue of strict liability relating to the van’s heat shielding, we need not
analyze Sobczak’s claim under the risk-utility test. However, in reading the portion of
the record containing the trial court’s findings on GM’s motion for a directed verdict, it is
clear that the trial court failed to ultimately consider that, in addition to his opinion that
the heat shields should have been made of ferritic steel rather than aluminum, Rudny
also opined that the heat management system, i.e., the YF7 configuration, was
insufficient to withstand the high temperatures that would be potentially created by the
failure of the exhaust system.
2. Negligence
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To establish a product liability action on a claim based on negligence, "a plaintiff
must establish the existence of a duty of care owed by the defendant, a breach of that
duty, an injury that was proximately caused by that breach, and damages." Calles, 224
Ill. 2d at 270. A product liability claim rooted in negligence is concerned with both
defendant’s fault and the condition of the product. Coney v. J. L. G. Industries, Inc., 97
Ill. 2d 104, 117 (1983).
"A manufacturer has a nondelegable duty to produce a product that is
reasonably safe for all intended uses." Hansen v. Baxter Heathcare Corp., 198 Ill. 2d,
420, 433 (2002). The crucial questions are whether the manufacturer exercised
reasonable care in the design of the product and “ ‘ whether in the exercise of ordinary
care the manufacturer should have foreseen that the design would be hazardous to
someone.’ ” Calles, 224 Ill. 2d at 271, quoting American Law of Products Liability 3d
§28:48, at 28-66 (1997). A plaintiff must show that the manufacturer knew or should
have known of the risk posed by the design at the time of the manufacture to establish
that the manufacturer acted unreasonably based on the foreseeability of harm. Calles,
224 Ill. 2d at 271.
As discussed in the strict liability section, there was enough evidence with
respect to whether the design of the heat management system of the M/L van was
defective to preclude a directed verdict. Similarly, there was enough evidence
presented with respect to foreseeability , i.e., GM’s knowledge of the potential risks
posed by the YF7 configured heat shielding system, that enough questions exist as to
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whether GM exercised reasonable care in the design and manufacture of the heat
shielding system of the YF7 configured M/L van to prevent the directing of a verdict in
GM’s favor.
Furthermore, we do not agree with the trial court’s finding that Sobczak’s expert,
Donald Rudny, failed to identify specific industry standards of care for the particular
defects he attempted to identify. David Ukrop, testified to a similar, if not identical,
standard of care in the engineering industry.
JURY’S VERDICT
Sobczak next claims, in less than one page, that the jury’s verdict was against
the manifest weight of the evidence. However, Sobczak’s conclusory and undeveloped
argument does not meet the requirements of Supreme Court Rule 341(e)(7) (188 Ill. 2d
R. 341(e)(7)). The lack of development leads to waiver of the issue. Tri-G, Inc. v.
Burke, Bosselman & Weaver, 353 Ill. App. 3d 197, 213 (2004).
EVIDENTIARY ISSUES
Sobczak claims that the trial court abused its discretion on several evidentiary
issues: (1) in refusing to exclude evidence of Sobczak’s intoxication; (2) in allowing GM
to refer to intoxication evidence during opening statements; (3) excluding the testimony
of Charles Colver; and (4) excluding portions of Donald Rudny’s testimony. We are
aware that resolution of these evidentiary issues may be irrelevant, given the fact that
we are remanding this case to the trial court on other issues, but resolve them
nonetheless.
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Plaintiff first argues that the court erred when it denied his motion in limine
seeking to bar Dr. Long’s testimony regarding Sobczak’s intoxication or referencing
blood alcohol levels.
"Evidence of a plaintiff's intoxication is relevant to the extent that it affects the
care that he takes for his own safety and is therefore admissible as a circumstance to
be weighed by the trier of fact in its determination of the issue of due care." Marshall v.
Osborn, 213 Ill. App. 3d 134, 140 (1991). Although highly probative, evidence of
alcohol consumption is also extremely prejudicial; therefore, "actual intoxication must
be established, indicating physical or mental capabilities." Sandburg-Schiller v.
Rosello, 119 Ill. App. 3d 318, 331 (1983); Bielaga v. Mozdzeniak, 328 Ill. App. 3d 291,
296 (2002). Intoxication is a question of fact for the jury to determine. Sandburg-
Schiller, 119 Ill. App. 3d at 331, 456 N.E.2d at 202. Where there is no evidence of
intoxication, evidence of consumption of alcohol is considered irrelevant but such
irrelevant evidence is not grounds for reversal unless it prejudiced the jury's verdict.
Bielaga, 328 Ill. App. 3d at 296. The admission of evidence is within the discretion of
the trial court and we will not reverse the trial court unless that discretion was clearly
abused. Gill v. Foster, 157 Ill. 2d 304, 312-13 (1993).
More than mere drinking was shown here. Dr. Christopher Long, a forensic
toxicologist, provided expert testimony based on blood alcohol level tests that Sobczak
was intoxicated at the time of the accident. Expert testimony and evidence from blood
alcohol tests are admissible to establish intoxication. Wade v. City of Chicago Heights,
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295 Ill. App. 3d 873, 886 (1998), following Marshall, 213 Ill. App. 3d at 141. Dr. Long
testified that Sobczak’s blood alcohol was tested at 7:24 a.m., approximately 90
minutes after the incident, at Loyola Hospital and showed that Sobczak had a blood
alcohol level of .157. At the time the testing was done, Sobczak was intoxicated.
Dr. Long was asked to conduct a retrograde analysis to determine what
Sobczak’s blood alcohol level would have been at 6 a.m. that same morning. To make
this determination, Dr. Long looked at the time of the blood draw, the blood
concentration, the time of the accident and what Sobczak stated in his deposition that
he was doing just prior to the incident. Based upon all of this information, Dr. Long
opined that at 6 a.m. that morning, Sobczak’s blood alcohol level would have been
.184.
A person with a blood alcohol level of .184 would be significantly impaired,
suffering conditions including mental confusion and loss of gross motor control, and
could become sedentary or sleepy. One could expect to find that level of blood alcohol
in a person who had consumed 12 to 18 beers over the course of the evening. Dr.
Long opined that Sobczak’s movements around the vehicle after he smelled something
burning, his position in the front passenger seat and his failure to exit the van prior to
the fire all demonstrate Sobczak’s mental confusion. Dr. Long concluded that
Sobczak’s failure to exit the van was due to the severity of his intoxication.
Dr. Long testified to a reasonable degree of medical certainty that Sobczak’s
blood alcohol level was .184 at the time of fire and this level of intoxication would have
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impaired his critical judgment and motor control. This information was highly relevant
to the issue of whether Sobczak’s injuries were caused by a condition of the van or by
Sobczak’s operation of the van while intoxicated. Consequently, we find that the trial
court did not abuse its discretion in denying Sobczak’s motion in limine to exclude such
evidence.
Plaintiff next contends that he was denied a fair trial when defense counsel
made improper comments during his opening statement that seriously prejudiced
plaintiff. Specifically, plaintiff states that defense counsel improperly remarked on the
number of beers that plaintiff consumed the evening of the incident. A review of the
record in this case shows that plaintiff failed to object to the comments made and
therefore has waived this issue. Hilgenberg v. Kazan, 305 Ill. App. 3d 197 (1999).
Sobczak next argues that the trial court erred in excluding the testimony of
Charles Colver and portions of the testimony of Donald Rudny. Sobczak claims that
the exclusion of Colver’s testimony was devastating to his case where he would have
established the existence of a design defect in the muffler and would have bolstered
and expanded upon Rudny’s opinions regarding the design defects in the van’s heat
shielding and fuel management systems. Further, Sobczak urges, Colver would have
established the proximate cause of the fire. Sobczak also argues that portions of
Donald Rudny’s testimony were improperly excluded where Rudny would have testified
that the van’s muffler-attached heat shield was defective because it was made of
aluminum and would have opined regarding an alternative design using ferritic steel. A
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lengthy recitation of Colver’s and Rudny’s testimony was included in the “directed
verdict” section.
Expert testimony is admissible if the expert is qualified as an expert by
knowledge, skill, experience, training, or education and the testimony will assist the
trier of fact in understanding the evidence. Turner v. Williams, 326 Ill. App. 3d 541, 552
(2001). A circuit court's ruling on the admissibility of expert testimony will not be
disturbed absent an abuse of discretion. Carlson v. City Construction Co., 239 Ill. App.
3d 211, 239 (1992). Following voir dire, the trial court found that Colver’s testimony
was “barred on the whole thing” because “[h]e doesn’t have competence to testify
about this particular vehicle.” The court further stated that in accordance with Volpe v.
Iko Industries, Ltd., 327 Ill. App. 3d 567 (2002), Colver would be barred from testifying
because, “[h]e doesn’t even know how big of an engine it is. He hasn’t done any
testing. He’s never designed any systems. He has an opinion about the muffler. The
muffler, he has never looked at.” In addition, the court excluded portions of Rudny’s
testimony finding that Rudny failed to articulate a standard of care in the industry.
Sobczak argues that the trial court misunderstood the holding in Volpe to stand for the
proposition that Colver’s and portions of Rudny’s testimony were inadmissible unless
they had personally performed tests as a basis for their opinions.
In Volpe, the plaintiff filed suit against the defendant alleging product liability
claims after the plaintiff was severely burned while at work when the top of an oxidizer
tank blew and hot asphalt spewed out of the ruptured openings and onto the plaintiff.
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Prior to trial, the defendant filed a motion to strike an expert's opinion testimony on the
basis that the expert was not qualified to render an opinion regarding the oxidizer
tank’s design. The defendant argued that the expert admitted that he had never
designed or seen an oxidizer tank or a deflector device. The defendant also argued
the expert’s testimony should be stricken because he was of the wrong professional
discipline and was not qualified to render an opinion regarding the oxidizer tank’s
design. The plaintiff responded and argued that the expert was qualified to render an
expert opinion regarding the oxidizer tank at issue given his experience with tanks and
vessels that hold chemicals. The plaintiff further argued that the expert should be
allowed to comment on the configuration of the piping because it could explain how the
rupture occurred.
The Volpe court found the trial court did not abuse its discretion in excluding the
expert testimony because the expert opined that the product was defective because it
lacked an alternate design without having built a prototype or conducted any tests.
Volpe, 327 Ill. App. 3d at 577. Furthermore, the court found that the expert admitted
that he had not designed a deflector device of the type he testified should have been
installed on the tank and had never seen such a device.
We find this case distinguishable from Volpe. In Volpe, the trial court excluded
the testimony of the expert because it was based solely on his opinion and not on any
conclusive testing. In the case at bar, both experts testified that, although they did not
conduct their own tests, their opinions were based on the review of the tests conducted
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by GM. Charles Colver disclosed in the interrogatories and during voir dire that he had
based his opinion on his experience and education, various treatises, testing
conducted by GM and GM’s publications. Similarly, Rudny testified that his opinions
were based on his training and expertise and on specific testing performed by GM. It is
both experts' reliance on the testing conducted by GM that allows us to conclude that
the trial court may have abused its discretion in excluding Colver’s testimony and
portions of Rudny’s testimony.
Under the circumstances presented here, if Sobczak attempts to introduce
Colver and Rudny as experts on remand, we instruct the trial court to reconsider its
ruling in regard to excluding their testimony under Volpe. However, we find that the
trial court correctly prevented Rudny from testifying as to his opinion that there was no
change to the condition of Sobczak’s vans’ air-fuel control system from the time it left
GM to the time of the accident. This conclusory opinion was unsubstantiated and
speculative because Rudny had no personal knowledge regarding the time period
between when the van left GM’s control and when the accident occurred.
CONTRIBUTORY NEGLIGENCE
Finally, Sobczak contends that the trial court erred in instructing the jury with
regard to his contributory negligence. Sobczak argues that the trial court improperly
instructed the jury to find GM not liable if it found that his contributory negligence
comprised “more than 50% of the total proximate cause of [his] injury or damage.”
It is within the trial court's discretion to determine which instruction shall be given to the
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jury and the exercise of that discretion will not be disturbed on review unless it has
been clearly abused. Sinclair v. Berlin, 325 Ill. App. 3d 458, 464 (2001). We see no
such abuse of discretion here.
Section 2-1116 of the Code of Civil Procedure provides:
“In all actions on account of bodily injury or death or physical damage to
property, based on negligence, or product liability based on strict tort liability, the
plaintiff shall be barred from recovering damages if the trier of fact finds that the
contributory fault on the part of the plaintiff is more than 50% of the proximate
cause of the injury or damage for which recovery is sought. The plaintiff shall not
be barred from recovering damages if the trier of fact finds that the contributory
fault on the part of the plaintiff is not more than 50% of the proximate cause of
the injury or damage for which recovery is sought, but any damages allowed
shall be diminished in the proportion to the amount of fault attributable to the
plaintiff.” 735 ILCS 5/2-1116 (West 1994).
In the instant case, the trial court instructed the jury in accordance with the plain
text of section 2-1116 and consequently permitted the jury to consider any and all
evidence of fault that may be attributable to Sobczak.
Based on the foregoing discussion, we reverse and remand this cause to the
trial court for proceedings consistent with this opinion.
Reversed and remanded.
THEIS, P.J., and CUNNINGHAM, J., concur.