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Docket No. 98034-Agenda 20-November 2004.

GLEN BLUE, Appellee, v. ENVIRONMENTAL ENGINEERING,
INC., et al. (Environmental Engineering, Inc., Appellant).

Opinion filed April 7, 2005.
 

JUSTICE THOMAS delivered the opinion of the court:

This case presents the questions of whether (1) the risk-utility analysis normally used in strict products liability cases is applicable to defective product design cases involving only a negligence theory of recovery; and (2) a special interrogatory, asking if the danger posed by the product was open and obvious, was properly read to the jury.

Plaintiff, Glen Blue, filed a complaint in the circuit court of Cook County against a number of defendants, including Environmental Engineering, Inc., a wholly owned subsidiary of Browning-Ferris Industries, Inc. (hereinafter defendant or Browning), alleging theories of strict liability and negligence in connection with injuries plaintiff sustained when he stuck his foot into a trash compactor. The strict liability counts were dismissed prior to trial because they were filed beyond the applicable limitations period and the statute of repose. 735 ILCS 5/13-213(b) (West 1994). The jury returned a general verdict against Browning and third-party defendant John M. Smyth Company (Smyth) on the negligence counts, but found plaintiff's contributory negligence to be 32%. The jury answered in the affirmative a special interrogatory submitted by Browning that asked if the risk of injury in sticking a foot into a moving compactor was open and obvious. The trial court found that the jury's verdict was inconsistent with its answer to the special interrogatory. It therefore vacated the jury's judgment for plaintiff and entered judgment on the special interrogatory for Browning. The appellate court reversed the judgment entered in favor of defendants and reinstated the jury's verdict, but remanded the cause for reconsideration of the parties' other posttrial motions. 345 Ill. App. 3d 455. We allowed Browning's petition for leave to appeal (177 Ill. 2d R. 315).
 

BACKGROUND

The evidence showed that in 1975, Browning sold a heavy duty trash compactor to Smyth. Browning installed the compacter in the Downers Grove, Illinois, warehouse of Smyth. The compactor was generally used by Smyth employees to compact cardboard boxes, furniture, and wooden skids. Browning would empty the compactor when full upon Smyth's requests. The machine consisted of a ram which slid back and forth to compact the items placed in the chamber. A user had the option of turning it on and off after each compaction or running it in a continuous mode. The control panel of the compactor contained a power switch and there was a pull cord hanging over the mouth of the compactor that could be used to stop the machine.

In 1991, Smyth installed a gate at the mouth of the compactor, which was designed to turn off the compactor when opened. The bars of the gate were covered by wire mesh, but the meshing was removed by Smyth employees because it was regularly knocked off by boxes as they were pushed back by the ram.

Plaintiff began working in Smyth's Downers Grove warehouse in 1990. He did not receive any training on the compactor, but had operated it a number of times and had watched others do so also. According to plaintiff, the compactor often jammed and it was the usual practice of employees, including the warehouse supervisor, Phillip Polizzi, to push refuse down into the compactor with a foot while the compactor was moving. Plaintiff acknowledged, however, that he had been told not to put his arms or legs into the moving machine. Polizzi and assistant warehouse supervisor Andrew Banda denied that they ever put their arms or legs into the moving compactor. They noted that if they had ever observed an employee doing so, they would issue that employee a written citation.

On the day of the accident, plaintiff was assigned to operate the trash compactor. Plaintiff testified that he informed Banda that the compactor was full and would not operate properly. Banda told him to continue operating the machine because the loading dock needed to be cleared of refuse. Banda, however, testified that plaintiff did not report that the compactor was full.

Plaintiff further testified that after he placed a large sofa box into the compactor, it stopped and would not crush the box. While the compactor was running in the continuous mode, plaintiff placed his leg through the bars of the closed gate and pushed the box down with his foot so that it would be grabbed by the ram. Plaintiff's foot became caught in the box and plaintiff was pulled into the compactor as the ram took hold of the box. He was subsequently hit by the ram approximately three times, breaking his pelvis, leg and foot.

Marvin Salzenstein, a consulting engineer specializing in machine design and safety, testified on behalf of plaintiff at trial. He stated that he was familiar with the compactor in question and how it functioned. He described its features and noted that this kind of compactor was being sold and manufactured in 1975. He did not testify as to whether or not the machine complied with industry standards at the time it was manufactured. Instead, he testified that the machine could have been made safe by incorporating certain safety features that would have been technologically available in 1975. He noted that the machine should have incorporated a sustained manual pressure control to ensure that a person is not loading while operating the machine, but is instead at the control panel of the compactor at the time of operation. The other alternative would have been to install an "interlock guard" over the point of operation so that no one could reach inside the compactor while it was running. Salzenstein criticized the machine's design for having a continuous operation mode and for not having an emergency shut-off device within easy reach of the operator. He noted that a gate was added to the compactor by Smyth, but this was not sufficient because it did not prevent a person from reaching through the gate into the compactor. Salzenstein opined that the machine was negligently designed.

Plaintiff"s complaint alleged strict liability and negligence theories. The strict liability count was dismissed, but count IV, a negligence count, was submitted to the jury. That count essentially alleged that Browning breached a duty to distribute a machine that was reasonably safe for its intended purpose, and that Browning's acts or omissions proximately caused plaintiff's injury. In response, Browning asserted various affirmative defenses, including that plaintiff assumed the risk of his injury by sticking his foot in the compactor, plaintiff misused the compactor thereby proximately causing his own injury, and that plaintiff was contributorily negligent.

The trial court instructed the jury that it could find defendant negligent if it found that plaintiff was injured and that the injury was proximately caused by the acts or omissions of defendant. The court further instructed that if plaintiff's own negligence contributed to his injury, then it must find that plaintiff was contributorily negligent and reduce any recovery accordingly. If the jury found plaintiff's contributory negligence to be more than 50% of the total proximate cause of the injury, plaintiff would be barred from any recovery. The jury was also given a special interrogatory, over plaintiff's objection, which asked, "Was the risk of injury by sticking a foot over or through a gate into a moving compactor open and obvious?" Although it answered this interrogatory in the affirmative, the jury returned a general verdict for plaintiff and against Browning and Smyth. It awarded plaintiff $1,120,588, attributing 33% of the negligence to Browning, 35% to Smyth and 32% to plaintiff, thereby reducing plaintiff's recovery to $762,000.

Browning filed two separate posttrial motions. The first was a motion for judgment on the special interrogatory, arguing that the jury's response to it controlled over the general verdict. The second posttrial motion was filed over two weeks later and sought the following relief: (1) a judgment n.o.v. on the basis that Smyth altered the machine subsequent to its sale by installing safety devices, which fully corrected the allegedly dangerous condition that may have existed at the time of sale; (2) a new trial, arguing that the jury's verdict was against the manifest weight of the evidence because plaintiff admitted that he knew "the compactor was used for crushing" and "therefore, was dangerous"; and (3) a new trial on the basis that the trial court erred in refusing to allow certain motionsin limine filed by Browning and that the trial court erred in refusing to admit two jury instructions tendered by Browning.

The trial court granted Browning's first posttrial motion and entered judgment in favor of defendants. In so doing, it found that the special interrogatory related to the ultimate issue of fact and that the jury's answer to it was inconsistent with the general verdict. The trial court also conditionally denied Browning's posttrial motion for judgment n.o.v. and for a new trial.

Plaintiff appealed, arguing that the interrogatory was improperly given, and that even if it was proper, the jury's response was not inconsistent with the general verdict. The appellate court agreed with both of plaintiff's assertions, reversed the judgment on the special interrogatory, and reinstated the jury's verdict. 345 Ill. App. 3d at 470. Specifically, it found that an affirmative answer to the question of whether a danger is open and obvious in a negligence action (not premised on a duty to warn) does not necessarily resolve the ultimate issue without consideration of how the doctrine compares to other matters in the case. Precedent is clear that where the danger is open and obvious, there is no duty to warn of that danger. 345 Ill. App. 3d at 464-65. However, where a plaintiff alleges that a product was negligently designed, the open and obvious nature of the risk does not serve as an absolute bar. 345 Ill. App. 3d at 464. The appellate court relied upon Wortel v. Sommerset Industries, Inc., 331 Ill. App. 3d 895 (2002), which held that the open and obvious nature of the risk is not a per se bar to recovery in a design defect case involving strict liability. The appellate court concluded that the rationale of Wortel should be extended to negligence cases involving design defects. 345 Ill. App. 3d at 466.

According to the appellate court, Wortel acknowledged that prior to 1990, the sole test used to determine the existence of a design defect was the "consumer expectation test." 345 Ill. App. 3d at 466. This test provides that " 'strict liability applies only when a product is " 'dangerous to an extent beyond that which would be contemplated by the ordinary [person] ***, with the ordinary knowledge common to the community as to its characteristics.' " ' " (Emphasis in original.) 345 Ill. App. 3d at 466, quotingWortel, 331 Ill. App. 3d at 901, quoting Hunt v. Blasius, 74 Ill. 2d 203, 211-12 (1978), quoting Restatement (Second) of Torts