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SIXTH DIVISION

MAY 24, 2002

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

Plaintiff, Lisa Wortel, appeals from the trial court's order granting summary judgmententered against her in favor of defendant, Somerset Industries. We reverse and remand. In thisopinion, we clarify that the existence of an open and obvious danger is not a per se bar to findingthat a product is unreasonably dangerous because of defective design so as to subject amanufacturer to liability.

Facts

On May 13, 1996, plaintiff was injured at work when her left hand became caught in therollers of a pizza dough rolling machine designed and manufactured by the defendant. On June6, 1997, plaintiff filed a two-count complaint against defendant.

In count I of her complaint, plaintiff alleged that defendant was negligent in one or moreof the following ways:

"a. Carelessly and negligently failed to provide a proper and adequatesafety system on said machine;

b. Carelessly and negligently failed to provide proper and adequatewarnings to notify users of various dangers associated with the machine; and,

c. Carelessly and negligently designed said machine in a manner so as toallow a machine user to cause her hand to come into contact with the machine'srollers while the machine is in operation."

In count II of her complaint, plaintiff alleged strict liability against defendant, claiming that thefollowing conditions rendered the pizza dough rolling machine unreasonably dangerous:

"a. It was designed, manufactured, sold or otherwise placed in the streamof commerce with an inadequate safety system;

b. It was designed, manufactured, sold or otherwise placed in the stream ofcommerce with inadequate warnings concerning the safe operation of themachine; and,

c. It was designed, manufactured, sold or otherwise placed in the stream ofcommerce in a manner which allowed the user of said machine to expose theuser's limb to the roller portions of the machine while the machine remained inoperation."

In moving for summary judgment, defendant argued that any claimed danger regarding itspizza dough rolling machine was open and obvious and, therefore, could not be deemedunreasonably dangerous or defective and there also was no need to warn of such an open andobvious danger. After full briefing by the parties, the trial court granted defendant's motion forsummary judgment.Standard of Review

Because the trial court, when deciding a motion for summary judgment, makes adetermination as a matter of law, the trial court's decision is entitled to no deference. Jarke v.Jackson Products, 258 Ill. App. 3d 718, 721, 631 N.E.2d 233, 236 (1994). Our review of thesummary judgment granted to defendant is de novo. Petrovich v. Share Health Plan of Illinois,Inc., 188 Ill. 2d 17, 30, 719 N.E.2d 756, 764 (1999). Although summary judgment can aid in theexpeditious disposition of a lawsuit, it is a drastic measure that should be allowed only "when theright of the moving party is clear and free from doubt." Purtill v. Hess, 111 Ill. 2d 229, 240, 489N.E.2d 867 (1986). Summary judgment is properly granted where the pleadings, depositions,admissions, affidavits and exhibits on file, when viewed in the light most favorable to thenonmoving party, show that there is no genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998); Petrovich,188 Ill. 2d at 30-31, 719 N.E.2d at 764. A triable issue of fact exists where there is a dispute asto a material fact or where, although the facts are not in dispute, reasonable minds might differ indrawing inferences from those undisputed facts. Petrovich, 188 Ill. 2d at 31, 719 N.E.2d at 764. At the summary judgment stage, a plaintiff is not required to establish his case as he would attrial, but he must present some factual basis that would arguably entitle him to a judgment. Westv. Deere & Co., 145 Ill. 2d 177, 182, 582 N.E.2d 685, 687 (1991).

"A defendant who moves for summary judgment may meet its initial burden ofproduction in at least two ways: (1) by affirmatively disproving the plaintiff's case by introducingevidence that, if uncontroverted, would entitle the movant to judgment as a matter of law(traditional test) [citation], or (2) by establishing that the nonmovant lacks sufficient evidence toprove an essential element of the cause of action (Celotex test) [citations]." Williams v. CovenantMedical Center, 316 Ill. App. 3d 682, 688-89, 737 N.E.2d 662 (2000).

The Williams court further explained that it is the movant who bears the burden ofpersuasion and the initial burden of production. Williams v. Covenant Medical Center, 316 Ill.App. 3d 682, 737 N.E.2d 662 (2000). Thus, where a defendant is the movant, it is only when thedefendant satisfies its initial burden of production that the burden shifts to the plaintiff to presentsome factual basis that would arguably entitle her to a judgment under the applicable law.Williams, 316 Ill. App. 3d at 689, 737 N.E.2d at 668. Here, because defendant failed to satisfy itsinitial burden, it was not entitled to summary judgment. Contrary to the dissent's view, noburden shifted to the plaintiff. Moreover, contrary to the dissent's statements, plaintiff here didpresent a factual basis that would arguably entitle her to a judgment. West v. Deere & Co., 145Ill. 2d 177, 182, 582 N.E.2d 685, 687 (1991); Williams v. Covenant Medical Center, 316 Ill.App. 3d 682, 737 N.E.2d 662 (2000).Strict Liability

The Illinois Supreme Court set forth the elements of an action sounding in strict liabilityin Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182 (1965). A plaintiff in a strictliability case must prove that a product was in an unreasonably dangerous condition, that thecondition existed at the time it left the manufacturer's control, and that the condition was aproximate cause of the plaintiff's injury. Suvada, 32 Ill. 2d at 623, 210 N.E.2d at 188.⁽¹⁾ Ordinarily, the determination of whether a product is defective, and therefore unreasonablydangerous, is a question of fact for the jury. Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344, 637 N.E.2d 1020, 1024 (1994); see also Doser v. Savage Manufacturing & Sales, Inc.,142 Ill. 2d 176, 196, 568 N.E.2d 814, 823 (1990) (noting that whether product is unreasonablydangerous for failure to incorporate safety devices is question of fact that jury should resolve).Consumer Expectation Test

In Hunt v. Blasius, 74 Ill. 2d 203, 212, 384 N.E.2d 368, 372 (1978), the Illinois SupremeCourt determined that an exit sign post without a "break-away" design contained no legallycognizable defect, as there were no facts indicating that the post subjected motorists to anyunexpected risks. In so doing, the court relied on section 402A of the Restatement (Second) ofTorts and pronounced that strict liability applies only when a product is " 'dangerous to an extentbeyond that which would be contemplated by the ordinary [person] * * *, with the ordinaryknowledge common to the community as to its characteristics.' "(Emphasis omitted.) Hunt v.Blasius, 74 Ill. 2d at 211-12, 384 N.E.2d at 372, quoting Restatement (Second) of Torts