King Industries, Inc. ("Trail
King"), on theories of strict liability, negligence and breach of
warranties. Trail King has filed a motion for summary judgment. As
detailed below, Trail King's motion is denied in part and granted in
I. The Parties
Joe McDaniel resides in Illinois. (R. 106-1, Trail King Statement of
Undisputed Facts ¶ 7.) He began his career as a truck driver in the
early 1970s and started hauling municipal waste in 1992. (Id. ¶ 35,
38.) At the time of the incident, McDaniel was employed by Mr. Bult's,
Inc. as a driver that pulled tipper trailers*fn2 to haul municipal waste
(Id. ¶ 1, 44, 46.)
Trail King is a South Dakota corporation with its principal place of
business in that state. (R.106-1, Trail King Statement of Undisputed
Facts ¶ 8.) Trail King designs and manufactures tipper trailers for
waste hauling. (Id. ¶ 2.)
II. The Facts
A. The trailer
The Trail King tipper trailer (the "trailer") that was involved in the
incident is a little more than 13 feet high and is approximately 8 1/2
feet wide. (R 106-1, Trail King Statement of Undisputed Facts ¶ 29.)
The trailer is equipped with two ladders that were furnished by Defendant
Werner, Inc. (Id. ¶ 26,) One ladder is affixed to the front bulkhead
of the trailer. (Id.) The other is affixed to the rear of the trailer.
(Id.) The rear ladder is centered between the sides of the trailer. (Id.
¶ 27.) The top of the rear ladder is mounted just below the top of
the trailer. (Id.) The trailer does not have any hand rails on the
tailgate for the drivers to use while climbing on the rear ladder or
affixing a tarp. (R. 107-I, McDaniel Statement of Undisputed Facts
¶ 59.) The trailer also does not have a platform to walk on. Although
a two-inch channel or brace protrudes from the tailgate, it is an
insufficient surface on which to stand. (Id. ¶ 102)
B. The tarp
Mr. Bult's requires every trailer to be tarped prior to transporting
waste. (R. 107-1, McDaniel Statement of Undisputed Facts ¶ 42.)
Without a tarp, pieces of waste are able to fly out of the trailers.
(Id. ¶ 66.) The entire open area of the trailers must be covered by
the tarp in order to prevent the loss of any waste. (Id.) Although Mr.
Bult's purchased the manual tarp itself from Third-Party Defendant Wagner
Tarps, (R. 106-1, Trail King Statement of Undisputed Facts ¶ 31),
Trail King equipped the tipper trailers which it sold to Mr. Bult's with
manual tarping systems that utilized U-brackets to hold the tarp in
place, tarp hooks to strap the tarp down, and front and rear ladders.
(R., 107-1, McDaniel Statement of Undisputed Facts ¶ 50.)
C. The manual tarping process
The trailer's tarp is wrapped around a tube near the front of the
order to manually tarp the trailer, the driver must first
climb up the front ladder and enter the trailer. (R. 107-1. McDaniel
Statement of Undisputed Facts ¶ 68-71.) Once in the trailer, the
driver stands behind the tarp and rolls it and the tube toward the rear
of the trailer. (Id.) While inside the trailer to unroll the tarp, the
driver must walk on municipal waste. (Id. ¶ 73.) This waste does not
provide a flat and level surface on which to walk. (Id.) The footing has
holes, air pockets, and areas that are unstable due to the waste. (Id.
¶ 73, 75.) Further, as a result of walking on the waste, the
operator's footwear may become slippery. Id. ¶ 76.)
After unrolling the tarp to cover the trailer, the driver partially
descends the rear ladder. (R. 107-1 McDaniel Statement of Undisputed
Facts ¶ 68-71.) The ladder functions as not only a mechanism to
ascend and descend the trailer, but also as a work station. (Id. ¶
135-136.) While standing on the ladder, the driver pulls the tarp down
until he can place the tube into U-brackets. (Id. ¶ 91-93.) The
driver then folds over the corner piece of the tarp to a position where
it can be properly tied to the tarp hook. (Id. ¶ 96.) Next, the
driver completely descends the rear ladder and goes around to each side
of the trailer to attach the tarp to the trailer using bungee cords.
(Id. ¶ 68.)
During the unrolling process, the tarp may become caught on the rail of
the trailer or snagged on the municipal waste inside the trailer. (R.
107-1, McDaniel Statement of Undisputed Facts ¶ 81-83, 85.) These
problems can occur at any point, including just a few feet away from the
end of the trailer. (Id. ¶ 82.) Some drivers will correct problems
with snagging and slack by pulling on the tarp while standing on the rear
ladder. (Id. ¶ 183.)
D. The Incident
On September 16, 1998, the weather conditions were damp and misty. (R.
106-1, Trail King Statement of Undisputed Facts ¶ 52.) McDaniel
drove the trailer to the Shred-All transfer station in Burnham,
Illinois, where municipal waste was placed in his trailer. (Id. ¶
51.) This waste reached a foot below the top of the trailer. (R. 107-1,
McDaniel Statement of Undisputed Facts ¶ 171.) After he unrolled the
tarp the length of his trailer, he placed both feet on the third rang of
the rear ladder and faced forward. (R. 106-1, Trail King Statement of
Undisputed Facts ¶ 55, 56.) McDaniel then noticed that the tarp was
snagged on a burr about three feet in Front of him. (Id. ¶ 57.)
Because of the burr, McDaniel did not have enough slack in the tarp to
place the tube in the U-brackets. (R. 107-1, McDaniel Statement of
Undisputed Facts ¶ 176.)
Instead of re-entering the trailer to unsnag the tarp, McDaniel
attempted to fix the problem while standing on the rear ladder. (R.
106-1, Trail King Statement of Undisputed Facts at ¶ 59.) McDaniel
leaned to his left, took his left leg off the ladder, and tried to place
his left foot on a two-inch ledge on the tailgate of the trailer. (Id.
¶ 60.) McDaniel was holding the tarp with his left hand. (Id. ¶
61.) His right hand was on ladder's right side rail. (Id.) His right foot
was on the ladder. (Id.)
While in this position, McDaniel pulled on the tarp with his left
hand. (R. 107-1, McDaniel Statement of Undisputed Facts ¶ 174.)
McDaniel's foot slipped off the ledge and he fell off of the trailer.
(Id. ¶ 186.) As a result of the fall, McDaniel's leg had to be
amputated. (Id. 199.)
Trail King makes three arguments in support of its motion for summary
judgment. First, it claims that it cannot be held strictly liable or
negligent because the dangers associated with McDaniel's injuries were
open and obvious and the product is simple. Second, it claims that
Plaintiff cannot prove that Defendant is strictly liable or negligent
because he cannot prove that the product was unreasonable dangerous.
Third, Trail King claims it cannot be liable for breach of warranty
because it excluded implied warranties from its sale of the trailer.
I. Legal Standards
Under Federal Rule of Civil Procedure 56, summary judgment is proper
where "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c);
Celotex Corp. v. Carett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986). The Court's function is "not to weigh the evidence
but merely to determine if `there is a genuine issue for trial.'" Jackson
v. Illinois Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,
2511, 91 L.Ed.2d 202 (1986)). A genuine issue of material fact exists
only if a "fair-minded jury could return a verdict for the [non-moving
party] on the evidence presented." Anderson, 477 U.S. at 252.
In assessing whether a genuine issue of material fact exists in a
case, the Court must construe all facts in the light most favorable to
the non-moving party and draw all reasonable and justifiable inferences
in favor of that party. See id. at 255. 106 S.Ct. at 2516. If the
evidence is such that a reasonable fact-finder could find for the
nonmoving party, then a genuine issue of material fact exists. Id. at
248, 106 S.Ct. at 2510.
In the products liability context, a manufacturer has a duty to produce
a product that is reasonably safe for all intended uses. Hansen v. Baxter
Healthcare Corp., 764 N.E.2d 35, 43 (Ill. 2002). A plaintiff has the
burden of establishing that his injury resulted from an unreasonably
dangerous condition of the product and that this condition existed at the
time the product left the defendant's control. Doser v. Savage Mfg.
& Sales, Inc., 568 N.E.2d 814, 819 (Ill. 1990). A plaintiff may prove
that a product is unreasonably dangerous using either the consumer
expectation or the risk-utility test. Scaccianoce v. Hixon Mfg. &
Supply Co., 57 F.3d 582, 586 (7th Cir. 1995) (applying risk-utility test
under Illinois law).
II. Application of Both The Consumer Expectation Test And The
Risk-Utility Test Is Appropriate
There are certain exceptions to the consumer expectation test and the
risk-utility lest. First, if the danger is open and obvious it is
inappropriate to apply the consumer expectation test. Second, if the
danger is open and obvious and the product is simple the risk-utility
test cannot be applied. Trail King argues that both exceptions exist and
that neither test can be applied to show that the product was
A. The Danger McDaniel Faced was not Open and Obvious
A danger is deemed open and obvious if it is "derive[d] merely from
those inherent properties of a product which are obvious to all who come
in contact with the product," Hunt v. Blasius, 384 N.E.2d 368, 372 (Ill.
1978). The determination of whether a danger is open and obvious is a
question of fact. Harmon v. United
States, 8 F. Supp.2d 757, 761 (N.D.
Ill 1998) (citing Steinhauer v. Arnie Bauer Cadillac Co., 526 N.E.2d 577,
578 (Ill App. Ct. 1988) (reversing summary judgment entered in favor of
defendant where the plaintiff had hit her head on protruding ledge in
automobile dealership)). Only where there is no doubt as to whether the
alleged danger is open and obvious can a court decide the issue as a
matter of law. Klen v. Asahi Pool, Inc., 643 N.E.2d 1360, 1369 (Ill.App.
Ct. 1994) (citation omitted). Examples of open and obvious conditions are
fire, height, and bodies of water. Bucheleres v. Chicago Park Dist.,
665 N.E.2d 826, 832 (Ill. 1996).
Defendant states that the risk Plaintiff took was open and obvious
because the danger of falling off a ladder is open and obvious. McDaniel
argues that Trail King has taken an overly simplistic look at the chain
of events that led to the Plaintiff's injury. McDaniel claims that the
defective design of the trailer's manual tarping process caused his shoes
to become slippery from walking through municipal waste and forced him to
unsnag the tarp from a ladder, without handholds or platforms for
support, by pulling on the tarp.
The Court agrees with McDaniel. Indeed, were this Court to side with
Trail King's position, a defendant could never be liable when a plaintiff
falls from a ladder or a height, no matter what the cause. With good
reason, courts have instead looked at the specific risk that the
plaintiff encountered and whether that specific risk was open and
obvious. See, e.g., Brown v. Unichema Chemicals, Inc., 643 N.E.2d 1354,
1360 (Ill.App. Ct. 1994) (reversing trial court's decision that lack of
hooks in mortar to attach ladder was open and obvious danger where
plaintiff fell from ladder). It is undeniable that if a design flaw in a
product caused a person to fall off of a ladder, that injured person can
recover from the manufacturer of the unreasonably dangerous product.
Collins v. Montgomery Ward & Co., 315 N.E.2d 670, 672 (Ill.App. Ct.
1974) (manufacturer liable if plaintiff can prove that his fall was
caused by an unreasonably dangerous and defective design that existed at
the time the ladder left the control of the manufacturer).
Here, the uncontested facts do not show that the risk was open and
obvious. Trail King has failed to show that it was open and obvious that
McDaniel's shoes would have become slippery from walking through the
waste. Trail King has also failed to show that it was open and obvious
that McDaniel would lose his balance by pulling on the tarp in order to
remove the snag. Further, Trail King has failed to show that McDaniel was
injured because of the trailer's inherent properties. Thus, the question
of whether the danger was open and obvious is best left for a jury.
Without a finding that the danger was open and obvious, the consumer
expectation test applies, as discussed below.
B. The Trailer is not a "Simple" Product
Even if the Court were to find that the danger was open and obvious,
the Court would not find that the product was simple. There are Few
established criteria for distinguishing "simple" products from those not
so simple. Scaccianoce, 57 F.3d at 586. The best way to determine whether
a product is simple is by analogy. Among the products that have been
deemed simple are a cigarette lighter, Todd, 21 F.3d at 1412; a tampon,
Haddix v. Playtex Family Prods. Corp., 138 F.3d 681, 684 (7th Cir.
1998), and a deep-fat fryer, Scoby v. Vulcan-Hart Corp., 569 N.E.2d 1147,
(Ill.App. Ct. 1991). On the other hand, products that are not simple
include a surveyor's prism pole. Scaccianoce, 57 F.3d at 587; a hydraulic
lifting system, Fuller v. Rand Automated Compaction Sys., Inc., No. 92 C
1797, 1995 WL 107125 (N.D. Ill. Mar. 8, 1995); a cornpicker combine,
Besse v. Deere & Co., 604 N.E.2d 998, 1002 (Ill.App. Ct. 1992); a
pizza dough rolling machine, Wortel v. Somerset Indus., Inc.,
771 N.E.2d 1211, 1222 (Ill.App. Ct. 2002); and an IV catheter
connection. Hansen, 764 N.E.2d at 46.
The operation of the trailer and the tarping system is closer to the
products that are not simple than to the ones that are simple. The trailer
required a driver to climb a ladder, walk through waste while unrolling a
tarp, place the tarp's tube in a U-bracket while standing on a ladder,
and secure all sides of the tarp. This is not as simple as lighting a
flame, using a tampon, or working a deep fat fryer. The risk-utility test
is not applicable only if the product is simple and the risk is open and
obvious. Here, neither of these conditions are met. Accordingly, the
risk-utility test can be applied to this case.
III. Both The Consumer Expectation And The Risk-Utility Tests Show That
Summary Judgment Is Not Appropriate
Finding that the undisputed Facts do not show that the dangers are open
and obvious and the product is simple, the Court will now apply both the
consumer expectation and the risk-utility tests.