In December 1987, a subsequent owner (Judy Johnson of Villa Park, Illinois) sold the car to Eric Lange of Oak Park, Illinois. Johnston obtained the car in May 1989 from Eric Lange, in exchange for painting Lange's hallway. The car had not been used for a long period of time before Johnston started driving it. Johnston, an apprentice painter, traded painting work which he valued at approximately $ 550 for the car. At the time of trade, the car was in need of repairs: because of an earlier accident, the car had a bent fender, door, and hood; and the rubber bumper guards were also missing. In May 1989, Johnston replaced the brakes, shock absorbers, fender, hood, clutch, ground cable and ignition switch. Johnston personally helped a mechanic replace the two rear shock absorbers. Replacement of the shock absorbers was the only work performed on the suspension system. There is nothing in the record about maintenance except Johnston's statements.
Johnston never brought the car to a Subaru dealership. He experienced no problems with the car before the accident.
Fuji issued a recall notice on the car's suspension system because of suspension system corrosion problems in 1990. Johnston says he did not receive the notice.
To defeat a motion for summary judgment, the non-movant must marshal evidentiary facts sufficient to raise a genuine issue of material fact. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment shall be rendered where the pleadings, depositions, and admissions of record, together with any affidavits, demonstrate there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Under Rule 56(c), summary judgment is appropriate where a party has failed to establish an essential element of its case for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
Fuji asserts that it is entitled to summary judgment because Navarro cannot establish two essential elements of a prima facie negligent product design case. First, Fuji asserts that Navarro cannot demonstrate that her 1992 injuries resulted from a defective and unreasonably dangerous condition of the car which existed when it left Fuji's control in 1981. Second, Fuji states that Navarro cannot demonstrate that Fuji deviated from the applicable standard of care when it designed and manufactured the car.
Navarro has pleaded a theory of negligence rather than strict liability. Though, as here, where a plaintiff alleges a "defect in design rather than manufacture, there may be no difference." Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir. 1996) (citing Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 902 (7th Cir. 1994); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 467 (7th Cir. 1984)). In both strict liability and negligent design actions, plaintiffs must demonstrate that the product was defective when it left manufacturer's control. Carrizales v. Rheem Mfg. Co., Inc., 226 Ill. App. 3d 20, 35, 168 Ill. Dec. 169, 589 N.E.2d 569 (1st Dist. 1991). The threshold question for determining a defect is whether the product is dangerous because it fails to perform as reasonably expected considering its nature and intended function. Baltus v. Weaver Div. of Kidde & Co., Inc., 199 Ill. App. 3d 821, 830, 145 Ill. Dec. 810, 557 N.E.2d 580 (1st Dist. 1990).
Furthermore, plaintiffs in negligent design cases must show that the defect was the proximate cause of the injury. Korando v. Uniroyal Goodrich Tire Co., 159 Ill. 2d 335, 344, 202 Ill. Dec. 284, 637 N.E.2d 1020 (1994). Manufacturers will not be held liable for injuries which occur when a product simply wears out. See id. (holding that a tire manufacturer was not liable for injury allegedly caused by severely worn tires); Glass v. Allis-Chalmers Corp., 789 F.2d 612, 614 (8th Cir. 1986) (citation omitted).
To prevail against a product manufacturer under a negligent design theory, plaintiffs must also show that the manufacturer had a duty to design something safer. Carrizales, 226 Ill. App. 3d at 35. The duty to manufacture "reasonably" safe products demands neither the safest design possible nor a design incapable of causing injury. Baltus v. Weaver Div. of Kidde & Co., Inc., 199 Ill. App. 3d 821, 829, 145 Ill. Dec. 810, 557 N.E.2d 580 (1st Dist. 1990).
At a minimum, Navarro must be able to establish a prima facie case in order to withstand a motion for summary judgment. Gilty v. Village of Oak Park, 919 F.2d 1247, 1250 (7th Cir. 1990) (quoting Morgan v. Harris Trust & Savings Bank, 867 F.2d 1023, 1027-28 (7th Cir. 1989). Navarro must show that the car was defective when it left Fuji's control, that the defect caused her injuries, and that Fuji had a duty to design something safer. She has not done so.
When determining whether a plaintiff has established a prima facie case which withstands summary judgment, courts may consider only evidence which would be admissible at trial under the Federal Rules of Civil Procedure. Whitted v. General Motors Corp., 58 F.3d 1200, 1204 (7th Cir. 1995). In response to Fuji's motion, Navarro points to the following: Fuji's recall notice regarding the suspension system; an unverified report by Maurice Howes ("Howes"), a "metallurgical consultant"; an affidavit by Crispin Hales ("Hales"), an engineering expert; and a 1991 report by the American Iron and Steel Institute entitled Cracking Down on Corrosion ("AISI Report"). The court will discuss each of these documents separately.
First, although Fuji argues that the recall notice is irrelevant and should be excluded under Federal Rules of Evidence 401 and 402, the court finds that the notice would be admissible. However, it could only be used for the limited purpose of establishing that the car's suspension system was defective; created nine years after the car's manufacture, the notice would not be admissible to show that Fuji knew or should have known about the defect, or that it failed to use a reasonable standard of care at the time relevant to this lawsuit, the 1981 date of manufacture. See Carrizales, 226 Ill. App. 3d at 39 (stating that evidence of subsequent remedial measures may not be admissible as proof of negligence, though it may be introduced as to feasibility of design).
Second, the court finds that the Howes report would not be admissible at trial. The Howes report is unverified and fails to meet the admissibility requirements of Federal Rule of Civil Procedure 56. Rule 56(e) demands that a party opposing summary judgment respond "by affidavit or as otherwise provided in this rule." Fed. R. Civ. P. 56(e). Courts may consider documents not specified in the rule only if an attached affidavit meeting the requirements of Rule 56(e) authenticates the documents. Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 491 (7th Cir. 1988) (determining that courts may consider an edited videotape only if it is properly authenticated and otherwise reliable). Unsworn, the Howes report is not an affidavit, nor does it qualify as one of the materials enumerated in Rule 56(c), nor is it attached to or authenticated by an affidavit. Accordingly, the court must strike the Howes report.
Even if the Howes report were admissible, it would only establish that the system was defective, a fact not disputed by Fuji. The critical portion of the Howes report states:
[The car] was operated in the Chicago area, which is located in what is sometimes referred to as the "salt belt[.]" This area was classified as having a severe corrosive environment . . . [in the AISI Report] . . . . Vehicle[s] operated under these conditions must be designed to resist corrosions and be suitably protected. Examination of many vehicles by the writer suggests that the designers of early imported vehicles were not fully cognizant of conditions in this area of the United States which probably has the most corrosive road conditions in the World far beyond those experienced in most other countries. . . . When the thinned metal . . finally parted under stress, such as might be caused by cornering, the only thing holding the wheel to the car was the reinforcing plate . . ., thus allowing the wheel to move suddenly . . . thus making the car very difficult to control.