Appeal from the Circuit Court of Cook County Honorable Carol P. McCarthy, Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
Plaintiff Krzysztof Sobczak (Sobczak) filed suit against defendant General Motors Corporation (GM). His fourth amended complaint alleged five counts against GM: strict product liability (count I), negligence (count II), res ipsa loquitur (count III), breach of express warranty (count IV), and breach of implied warranty (count V). The trial court directed verdicts for GM on counts II, III, IV and V. The trial court also directed a verdict for GM with respect to part of Sobczak's strict liability claim (count I), but allowed a portion of that claim to reach the jury. After hearing all of the evidence, the jury found in favor of GM. Sobczak now appeals. For the following reasons, we reverse and remand.
Sobczak filed a fourth amended complaint containing 31 counts against seven defendants, GM, Rizza Chevrolet, Gemini Conversions, Inc., and four manufacturers of automotive parts, for injuries he sustained as a result of a fire that ignited in his YF7 configured 1999 Chevy Astro M/L van. Prior to trial, Sobczak's claims against six of the defendants were either dismissed or settled. Sobczak proceeded to trial against GM only.
At trial, Sobczak sought to prove that GM defectively designed the heat shields, muffler and fuel management system for the YF7 configured M/L van and negligently designed the van's heat shields. At the conclusion of Sobczak's case in chief, GM presented a motion for a directed verdict and the trial court entered directed verdicts in favor of GM and against Sobczak on Sobczak's negligence, res ipsa loquitur, express warranty and implied warranty counts. With regard to Sobczak's strict liability claim, the trial court directed a verdict for GM except with respect to the alleged design defect concerning the fuel management system.
Following the presentation of the evidence by GM, the jury returned a verdict in favor of GM and against Sobczak on the remaining count. This timely appeal followed.
At about 9 p.m., on August 28, 1999, Sobczak drove his father's Chevrolet Astro van (YF7 configured, M/L model) to pick up his cousin Arthur. Sobczak and Arthur went to two nightclubs over the course of several hours. Sobczak consumed at least five beers in that time period. Sobczak and his cousin left at 2 a.m., and went back to Sobczak's house. At 4:30 a.m., Arthur woke Sobczak so that Sobczak could drive him home.
After dropping off Arthur, Sobczak noticed that the van was sluggish and was making noises. He turned onto 51st Street to avoid traffic on Archer Avenue. The car stalled on 51st Street and Sobczak tried to start the car by putting the transmission into neutral and turning the key. The car started but the motor sounded like it was "jumping up and down." Sobczak put his foot on the brake pedal and put the van in gear, but the motor died. This occurred about 10 times in 10 minutes. Sobczak started the van once more but smelled something coming from the back. He climbed over the seat and went to the back bench seat. He knelt on the bench seat and started to check around when the seat exploded into flames. His shirt and hair caught on fire. He felt his way back to the driver's seat and tried to open the door. The next thing Sobczak could recall was waking up in the hospital one month after the accident. Sobczak could not recall how he ended up in the passenger seat where firefighters found him nor whether he attempted to unlock the van's doors.
Several residents saw the van on fire. Jan Wyka was getting ready for work when he heard a bang. He went to the window and saw both smoke and flames coming from beneath the van. Wyka's daughter called 911 and Wyka attempted to put out the fire using his garden hose but it was too short. As Wyka approached the van, he heard a loud bang and glass breaking. He retreated because the flames became too intense.
Michael Dinkel was sleeping on the morning of August 28, 1999, but was awakened about 6 a.m. by a loud noise. Dinkel went outside and saw the van on the street. As he was looking at the van, the exhaust system began glowing red and the van ignited. Firefighters arrived at the scene and Dinkel saw them break the passenger side window, unlock the door and remove Sobczak.
David Atkocaitis, a lieutenant with the Central Stickney Fire Department, responded to the fire involving Sobczak. Upon arriving at the scene, he was notified that the driver was still inside the van. He approached the van to look inside and did not see flames but felt a lot of heat and saw a lot of smoke. After the window of the van was broken, Lieutenant Atkocaitis could see Sobczak on the front passenger seat of the van. Sobczak was removed from the van and transported by ambulance to McNeal Hospital.
Dr. Richard Gamelli, the director of Loyola Hospital's burn center, treated Sobczak after he was transferred from McNeal Hospital. Sobczak had burns over 40% of his body, including severe burns to his face, neck, right arm and hand, left arm, back and thighs. A toxicology screening done at Loyola at 7:24 a.m. on August 28, 1999, showed Sobczak's blood alcohol level to be .157.
John Orisini, the head of the fire and arson investigative unit for the Cook County sheriff's police, testified that he was assigned to investigate the Sobczak van fire to determine the cause of the fire. Orisini determined that the fire started near the rear tire on the passenger side. He drew this conclusion based on the fact that the metal in that area was exposed and whitening occurred. There was also evidence of heavy burning in the area of the kickup and the rear wheel. The carpet padding in front of the two rear seats was completely burned away. Normally, the carpet would not burn away unless the heat was coming from underneath the padding or a flammable liquid was used. Orisini found no evidence of a flammable liquid. Based on his investigation, Orisini concluded that the fire started underneath the van either in or near the muffler and the heat had conducted up through the flooring and traveled inside the van. Orisini observed a hole in the muffler at the seam and saw that the aluminum heat shield had melted off.
Dennis Himmler is a GM senior staff engineer who has investigated over 1,000 vehicle fires. Himmler inspected Sobczak's van on two occasions prior to trial. Based on his inspection, Himmler testified that overheating in the exhaust system in the van could have only occurred gradually. The exhaust system could not have overheated simply by starting the engine, allowing it to idle or revving it several times. The only way the exhaust system could have overheated would be by repeated acceleration of the engine to 5600 revolutions per minute (RPM), the level at which the built-in rev limiter would have engaged and slowed the engine. This constant RPM cycling would have overwhelmed the catalytic converter and the exhaust system would have overheated and started transferring heat to other components within 10 minutes.
Himmler found evidence that the exhaust system overheated from RPM cycling:
(1) the exhaust system components had "blued"; (2) the muffler had opened at the seam; (3) the heat shield attached to the muffler had melted; and (4) there were carbon deposits on the spark plugs. According to Himmler, Sobczak should have been alerted to the overheating by the loud noises and the smoke that would have been emanating from the van.
Charles Raber testified that he has been employed by GM since 1978 and is the lead design engineer for the full-size truck platform fuel system. From 1996 to 1999, he was a staff project engineer and worked on the M/L van fuel systems. Tests are performed on GM vehicles to make sure that vehicles released to the public are safe. One of the tests performed on a vehicle is an underbody temperature test. This type of test provided information regarding the fuel system and other systems in the vehicle. Temperature bogeys or overtemperatures are temperature levels that GM has set and determined should not be exceeded during the underbody temperature test. If a temperature bogey is exceeded, it is reviewed by GM engineers.
Sobczak first argues that the trial court erred in directing verdicts in GM's favor. Specifically, Sobczak claims that the trial court erred in directing a verdict with respect to his strict liability claim relating to the van's heat shielding and with respect to his negligence claim based on the van's insufficient heat shielding.
During oral argument, GM argued that Sobczak raised the issue that GM's YF7 configuration was defectively designed, in that GM removed the tailpipe and muffler heat shields and chose to insulate those areas with insulated carpet padding, for the first time on appeal. Our review of the record in this case leads us to a contrary conclusion that we will discuss at length in our discussion of Sobczak's claims.
At trial, Sobczak pursued his claims for negligence and strict products liability based on design defect. Sobczak's theory of the case was that GM had (1) defectively designed the van's heat shields, muffler and fuel management system; and (2) negligently designed the van's heat shields. Specifically, Sobczak's case rested on the testimony of numerous GM employees, as well as two expert witnesses, Donald Rudny and Charles Colver.
David Ukrop testified that from 1997 to 1999 he was an engineering group manager at GM. He was responsible for three functions-design, validations and release. In other words, he was responsible for the design of the muffler for the exhaust system, testing of the design, and mainstreaming the design. If for some reason the design did not pass a test, a report would be issued. That product would be retested and would not be allowed to go into the stream of commerce until it passed.
One of the Astro van configurations, the YF7 configured M/L van, the same van purchased by Sobczak's father, was for recreational vehicle upfitters. These vehicles were marketed to families. The YF7 configured van lacked two heat shields, the body-attached muffler heat shield and the tailpipe heat shield, that were included on other configurations of 1999 Astro van. Ukrop agreed that the absence of the tailpipe heat shield and the body-attached muffler heat shield would expose those areas to greater heat than models that had those heat shields.
A design failure mode effects and analysis (DFMEA) is a process whereby GM determines what would happen if certain parts of the exhaust system failed and what hazards would be caused by the failure. Ukrop testified to a DFMEA that evaluated the loss of the insulation capability of the muffler body-attached heat shield. GM determined that the cause and effect would be underbody components overheating, smoke, steam or fire and/or the components can deform, melt, boil, etc.
Kevin Horton testified in an evidence deposition that he worked for GM developing the thermal aspects of products, including the M/L van. Horton initiated a report in connection with thermal testing of the YF7 configuration of the M/L van relating to the floorpan overtemperature condition. The thermal testing also showed overtemperature limits for the bottom of the foam near the kickup and the surrounding area. When Horton issued this report, he was aware that one of the paths of fire into the passenger compartment is via heat transfer from metal structures, such as the floorpan, to combustible materials in contact with the floorpan, such as foam carpet padding. Horton was also aware that if an overtemperature condition occurred for the foam padding for the carpet, a safety concern would exist that would need to be addressed.
Horton received a response to this report that indicated the insulation mat underneath the foam pad absorbed any heat being transferred from the metal floor to the carpet. However, only portions of the floorpan were covered with the insulation material. Consequently, the response did ...