224 Ill. 2d 247, 864 N.E.2d 249 (2007)
Susan Calles resided with her four daughters, including 11-year-old Amanda, 5-year-old Victoria, and 3-year-old twins Jenna and Jillian.1 In March 1998 she purchased an Aim N Flame utility lighter manufactured by Tokai Corporation and distributed by Scripto-Tokai Corporation at a Mobil gas station in the Chicago area.2 The lighter had a red body, black lever, and an ON/OFF switch that required the trigger to be pulled to produce a flame.3 It contained no child-resistant safety device.
On March 31, 1998, Calles left her home with Victoria to rent videos, leaving the twins in bed and Amanda watching television.4 She had stored the lighters on the top shelf of a kitchen cabinet.5 Upon her return she found fire trucks at the house.6 Fire investigator Robert Finn determined that Jenna had started a fire in the living room using the Aim N Flame.7 Jillian suffered smoke inhalation, was hospitalized, and died on April 21, 1998.8
Calles, individually and as administrator of Jillian's estate, filed suit in the circuit court of Cook County against Scripto-Tokai and Tokai.9 The complaint alleged strict liability and negligence claims based on defective design for lack of a child-resistant mechanism, along with failure-to-warn allegations.10 She also brought a medical malpractice action against Dr. Richard Fox and Loyola University Medical Center for treatment of Jillian after the fire.11 Scripto filed counterclaims against Calles and Loyola, and Loyola filed a contribution counterclaim against Scripto.12
Scripto moved for summary judgment, attaching Calles's deposition testimony that she knew the risks of lighters around children and had stored the Aim N Flame on a high shelf, and that the lighter had operated as intended.13 In opposition, Calles submitted affidavits from five experts, including engineers John Geremia, Tarald Kvålseth, and Richard Dahlquist, product safety manager William Kitzes, and engineering psychologist Carol Pollack-Nelson.14 The experts stated that a feasible, technologically and economically practical child-resistant design existed at the time of manufacture, that Scripto had known since at least 1994 of the technology and of the risk that children could operate the lighter, and that Scripto had been named in 25 similar lawsuits between 1996 and 2000.15
The trial court granted summary judgment to Scripto on all claims.16 The appellate court affirmed in part and reversed in part. It held that the lighter did not qualify as the kind of especially simple device for which risk-utility analysis was unnecessary. Material fact questions remained on the strict liability and negligent-design claims.17 The Illinois Supreme Court granted Scripto's petition for leave to appeal.18
Whether the open and obvious nature of a product's danger creates a per se bar to liability or precludes application of the risk-utility test in a strict product liability design-defect claim?19
In strict products liability cases, the open and obvious nature of the risk is just one factor to be considered in the range of considerations required by the risk-utility test.20 It will only serve to bar the liability of the manufacturer where it outweighs all other factors to be considered in weighing the inherent design risks against the utility of the product as manufactured.21
No. Applying this rule to the established facts, Calles stored the Aim N Flame on the top shelf of her kitchen cabinet because she knew the risks of lighters around children.22 Yet her five experts, including engineers John Geremia, Tarald Kvålseth, and Richard Dahlquist, product safety manager William Kitzes, and engineering psychologist Carol Pollack-Nelson, submitted affidavits establishing that a feasible child-resistant design existed at the time of manufacture.23 Scripto had known of the technology and child-operation risks since at least 1994.24 Scripto had been named in twenty-five similar lawsuits between 1996 and 2000.25
These concrete showings of alternative design feasibility and manufacturer knowledge create genuine issues of material fact that prevent the open and obvious danger from operating as a per se bar under the risk-utility test.26
The open and obvious nature of the danger does not create a per se bar to liability or preclude application of the risk-utility test.27
Related opinions on this issue
Justice Karmeier specially concurred on the ground that the Aim N Flame lighter is not a simple product.28 Therefore the simple-product exception recognized in Scoby has no application here regardless of whether that exception retains independent force.29 He agreed that material questions of fact exist as to feasible alternative design.30
Summary judgment was therefore improper.31
Whether the ordinary consumer of a utility lighter is an adult purchaser or a child user for purposes of the consumer-expectation test?32
For purposes of the consumer-expectation test, the ordinary consumer is the typical user and purchaser of the product, which for a utility lighter is an adult rather than a child.33
Yes. Applying this rule to the established facts, Calles purchased the Aim N Flame at a Mobil gas station for adult household use.34 The lighter operated exactly as an adult consumer would expect by producing a flame when the trigger was pulled after the ON/OFF switch was moved.35 Multiple jurisdictions have held that the ordinary consumer of a lighter is the adult purchaser.36
Therefore the consumer-expectation test is satisfied from the adult perspective even though a three-year-old child actually used the lighter.37
The ordinary consumer of a utility lighter is an adult purchaser for purposes of the consumer-expectation test.38
Whether genuine issues of material fact exist as to whether the risk of danger inherent in the Aim N Flame lighter's design outweighs its utility?39
Under the risk-utility test a product is unreasonably dangerous if the risk of danger inherent in the challenged design outweighs the benefits of that design.40 Summary judgment is improper when the record presents genuine issues of material fact on the Wade factors including feasibility of alternative designs, cost, and manufacturer knowledge of risk.41
Yes. Applying this rule to the established facts, Calles offered expert affidavits stating that child-resistant mechanisms were technologically and economically feasible at the time of manufacture with negligible added cost if incorporated originally.42 Scripto had known since 1994 both of the technology and that children could operate the lighter.43 Scripto had faced twenty-five similar suits.44
These showings on the safety-aspects and alternative-design factors, balanced against the lighter's utility as a multi-use fire source, create genuine issues of material fact on whether risk outweighs utility.45
Genuine issues of material fact exist as to whether the risk of danger inherent in the Aim N Flame lighter's design outweighs its utility.46
Whether genuine issues of material fact exist as to whether the manufacturer owed and breached a duty of reasonable care in the design of the lighter for purposes of a negligence claim?47
A manufacturer has a nondelegable duty to design reasonably safe products.48 Whether that duty was breached turns on whether the manufacturer exercised reasonable care in light of the foreseeable risks posed by the product's design.49 The open and obvious nature of danger constitutes only one factor in the analysis.50
Yes. Applying this rule to the established facts, the record contains conflicting evidentiary facts on foreseeability because Scripto knew children could operate the Aim N Flame and had been sued in twenty-five similar cases.51 Conflicting facts also exist on the reasonableness of the design because the same expert affidavits establish the availability of feasible child-resistant alternatives.52 These conflicts preclude a finding as a matter of law that Scripto exercised reasonable care.53
Genuine issues of material fact exist as to whether the manufacturer owed and breached a duty of reasonable care in the design of the lighter for purposes of a negligence claim.54