The opinion of the court was delivered by: Justice Theis
JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion.
Chief Justice Kilbride and Justice Thomas took no part in the decision.
¶ 1 In this appeal, we are asked to clarify the duty analysis in a negligent-product-design case. Plaintiffs, Dora Mae and John L. Jablonski, Jr., as the special administrator and personal representative of the estate of John L. Jablonski, Sr., brought this action in the circuit court of Madison County against Ford Motor Company, alleging, inter alia, negligent design of the 1993 Lincoln Town Car's fuel tank and willful and wanton conduct, seeking punitive damages. The jury returned a general verdict in the Jablonskis' favor and awarded a total of $28 million in compensatory damages and $15 million in punitive damages. The appellate court affirmed the circuit court judgment. 398 Ill. App. 3d 222. This court allowed Ford's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010). For the reasons that follow, we reverse the judgments below.
¶ 3 On July 7, 2003, John and Dora Jablonski were traveling home in their 1993 Lincoln Town Car on I-270 in Madison County, Illinois, when they came to a complete stop in a construction zone. A Chevrolet Lumina driven by Natalie Ingram slammed into the Jablonskis' Town Car at a high rate of speed with no evidence of braking. According to experts, the Lumina struck the Town Car at between 55 and 65 miles per hour. As a result of the crash, a large pipe wrench in the trunk of the Town Car penetrated the trunk and punctured the back of the vehicle's fuel tank. The vehicle burst into flames, causing John's death and Dora's severe burns and permanent disfigurement.
¶ 4 Plaintiffs filed their original nine-count complaint against Ford and Ingram. After settling with Ingram, the case proceeded against Ford. Throughout the litigation, plaintiffs' theories of recovery continually evolved. By the time of trial, in their third amended complaint, plaintiffs alleged that at the time the 1993 Lincoln Town Car was designed and manufactured and "thereafter," Ford was under a legal duty to use ordinary care to ensure the 1993 Lincoln Town Car was not unreasonably dangerous and defective. Plaintiffs further alleged that at the time that Ford designed and manufactured the 1993 Lincoln Town Car, it was negligent and strictly liable in one or more of the following ways: (1) equipping the 1993 Lincoln Town Car with a vertical-behind-the-axle fuel tank; (2) failing to shield the vertical-behind-the-axle tank; and (3) failing to warn consumers of the risk of trunk contents puncturing the fuel tank.
¶ 5 Plaintiffs additionally alleged that these negligent acts constituted willful and wanton conduct. Plaintiffs specifically pleaded that at the time the 1993 Town Car was designed and manufactured Ford had knowledge of multiple deaths and/or serious injuries that were the result of its placement of its fuel tank behind the axle on certain of its vehicles, namely the Crown Victoria, the Mercury Grand Marquis and the Lincoln Town Car. Further, plaintiffs pleaded that Ford had knowledge that these particular models had an increased danger of fire-related injuries and that shielding and other devices were necessary to protect against fuel leakage and ignition.
¶ 6 The 11-day trial in this complex product design case included testimony from numerous lay and expert witnesses, encompassing over 3,000 pages of transcripts and hundreds of exhibits. After the close of the evidence, plaintiffs ultimately abandoned their strict liability claims, and the case was presented to the jury on several theories of negligent design and willful and wanton conduct: (1) failing to locate the fuel tank over the axle or forward of the rear axle; (2) failing to shield the fuel tank to prevent punctures by contents in the trunk; and (3) failing to warn of the risk of trunk contents puncturing the fuel tank. The jury was additionally instructed on a fourth theory never before pleaded, which was failing to inform the Jablonskis of certain remedial measures taken by Ford after the manufacture of the vehicle, but prior to the Jablonskis' accident. The following evidence was introduced to support those four theories.
¶ 7 Historically, in the sixties and seventies, most fuel tanks in passenger vehicles were located behind the rear axle, or "aft of axle," situated horizontally under the trunk of the vehicle, inches from the rear bumper. Research in 1968 indicated that this particular under-the-trunk location was susceptible to fuel-fed fires in rear-end collisions. At that time, a safer alternative location was proposed to place the fuel tank over the rear axle.
¶ 8 In 1979, Ford introduced the "Panther platform" design, which ultimately served as the basis for several large civilian and law enforcement four-door sedan models, including the Mercury Grand Marquis, the Ford Crown Victoria, the Ford Crown Victoria Police Interceptor, and the Lincoln Town Car. In these models, including the 1993 Lincoln Town Car, Ford chose a different fuel tank configuration, referred to at trial as a "vertical-behind-the-axle" tank. The tank was located aft of the axle, but between the two rear wheels, about 40 inches from the rear bumper and in front of the trunk.
¶ 9 Much of the trial centered around whether this location was a reasonably safe location for the fuel tank. By 1981, Ford began designing various new passenger car models with front-wheel drive and the fuel tank located forward of the axle. By 1991, the majority of new Ford models were being manufactured with fuel tanks forward of the axle. The Panther platform and the Mustang were the only two types of vehicles Ford still manufactured with an aft-of-axle fuel tank. Other manufacturers, including Audi, BMW, Chrysler, General Motors, and Volvo, continued to manufacture vehicles with an aft-of-axle fuel tank.
¶ 10 I. Plaintiffs' Evidence
¶ 11 A. Negligent Fuel Tank Location
¶ 12 Plaintiffs' expert Mark Arndt was critical of the fuel system in all aft-of-axle tanks, including both the "under the trunk" and "vertical-behind-the-axle" locations because they failed to maintain fuel system integrity during a crash. Specifically, he stated that the aft-of-axle tank was defective because it was located in the "crush zone" in rear-impact collisions and was vulnerable to being punctured by trunk contents and vulnerable to being pushed into sharp objects in front of the tank. It was his opinion that trunk contents puncturing the tank was a well-recognized problem. He testified that the safest location for the fuel tank "for a fair amount of time" was forward of the axle. Alternatively, locating the tank over the axle would significantly reduce the crush from a rear-end collision.
¶ 13 In forming his opinions, Arndt relied on several factors including basic engineering design concepts with regard to designing products generally. He testified that design safety involves considerations to design-out a problem by eliminating the hazard. If the hazard cannot be completely eliminated, then the product should be shielded to minimize the hazard, and if shielding or guarding is not effective, then warnings should be provided about the nature of the danger or potential harm that could occur. Ford taught these basic engineering principles in its own class on fuel systems engineering and these principles were outlined in its class manual beginning in 1991.
¶ 14 1. The Severy Research
¶ 15 Arndt maintained that Ford had long been aware of the dangers associated with aft-of-axle fuel tanks, including the danger of objects in the trunk puncturing the fuel tank in a rear-end collision. In support of this opinion, Arndt relied upon research done by Derwyn Severy, a researcher at UCLA, who conducted a series of automobile crash tests, partly funded by Ford. The Severy research was published as an article in 1968 in a publication of the Society of Automotive Engineers, a peer-reviewed journal. The article was introduced into evidence at trial. With respect to fuel tank integrity and suggested design revisions, the article provided that:
"Several factors operate to determine the degree of attention given to an automobile safety oriented design problem. Prominent among these are the frequency with which the problem manifests itself, the degree of seriousness of the consequence when such problems arise, and the complexity or cost of solution of the problem."
¶ 16 After evaluating crash tests of vehicles with fuel tanks located under the trunk inches from the rear bumper, the article provided the following conclusions:
"1. *** Initial findings indicate that much progress can be made in reducing the possibility of crash fires by incorporation of relatively inexpensive design considerations relating to fuel tanks and related fuel systems.
2. Design revisions that provide for better containment of fuel *** which position the tank in locations least likely to sustain significant structural collapse, and which reduce the likelihood of fuel tank rupture, even when moderately crushed, typify improvements that would greatly curtail crash-released fuel.
3. Fuel tanks should not be located directly adjacent to the rear bumper or behind the rear wheels directly adjacent to the fender sheet-metal as this location exposes them to rupture at very low speeds of impact ***.
4. Preliminary studies suggest that the area cradled by the rear wheels, above the rear axle and below the rear window represents an improved location for the fuel tank ***."
The article further explained as follows:
"This location is least often compromised from collisions of all types. The rear wheels, axle, and suspension provide an excellent structure to resist collapse; it is sufficiently remote from the rear end to be relatively free from rear-end collapse forces and can be protected from the passenger compartment by a fire wall, which has already been shown to be required behind the rear seat back for other reasons."
In conclusion, the article indicated that "[c]ollision studies to date tend to support relocation of fuel tanks to the [over-the-axle] area, but further research is needed before this location can be recommended."
¶ 17 None of the vehicles tested in the Severy research had a tank located vertical-behind-the-axle and none involved testing for trunk contents puncturing the fuel tank. With respect to the under-the-trunk tanks Severy had researched, Arndt explained that "if the tank is under the trunk, given that the force is usually moving forward, very, veryunlikely that you're going to get an object in the trunk puncturing [the tank]."
¶ 18 In 1969, Ford's engineers investigated the proposed new over-the-axle tank location in relation to the under-the-trunk location. Roger Daniel, a Ford safety engineer, drafted a handwritten memo to his superiors at Ford regarding "Future Gas Tank Location." In the memo, he stated his understanding that the future direction with respect to fuel tank location was to "hang the tank under the trunk."
¶ 19 Although he indicated that there were advantages and disadvantages to this location, he stated that the under-the-trunk location was vulnerable to rear-end impacts. He recommended that "for all vehicles except wagons and convertibles, the best tank location by far appears to be [over] the axle." The advantage of this design, according to Daniel, was that it would be "[a]lmost impossible to crush the tank from the rear."
¶ 20 Thereafter, in 1970, the engineering staff at Ford prepared a typewritten memo which provided the following analysis:
"We have examined possible fuel tank locations and determined that the safest place for a fuel tank is [over] the rear axle and below the package tray. In rear[-]end accidents, the tank is above and forward of vehicle components likely to crush during the collision or deform it, while in lateral accidents, the tires, axle, and wheel-house structure provide extensive protection against rupture or even excessive deformation."
The memo indicated that in the proposed over-the-axle tank location, the tank would be "high enough in the trunk to essentially preclude rupture from in-trunk articles during an accident. However, should such an unlikely rupture occur, the gasoline would be confined to the trunk."
¶ 21 The concern about rupture from in-trunk articles did not refer to the vertical-behind-the-axle tank location later chosen by Ford.
¶ 22 Thereafter, in a "Cost Engineering Report" to determine the potential cost of moving the fuel tank to the over-the-axle location, Ford's engineers concluded that the cost of that design change would have been $9.95 per vehicle. Ford chose not to incorporate that design change into the 1979 Panther platform vehicle.
¶ 24 As additional support for its theory that the location of the tank was dangerous and that Ford knew of the risk of danger, plaintiffs introduced a list of 44 rear-end collisions between 1981 and 2003 (exhibit 1). The list revealed seven accidents that occurred prior to the sale of the 1993 Lincoln Town Car involving Panther platform vehicles with vertical-behind-the-axle tanks where there was a fuelfed fire due to tank rupture. None of those accidents involved trunk contents puncturing the tank.
¶ 25 In conjunction with that list, plaintiffs additionally introduced, and Arndt relied upon, over objection, a list of 50 accidents involving fuel-fed fires in Panther platform vehicles, which specifically described the cause of each fire (exhibit 96). Exhibit 96 has no dates listed on it. However, when cross-referenced with exhibit 1, it reveals that after the sale of the 1993 Town Car, between 1997 and 2003, there were 11 incidents prior to the Jablonski accident where Crown Victoria Police Interceptors had trunk contents puncture the tank in high-speed rear-end collisions involving police officers.
¶ 26 Arndt additionally prepared and relied upon, over objection, a separate list of 416 incidents involving a very diverse set of Ford model vehicles manufactured over a wide range of years, from the mid-sixties to the early nineties, prior to the manufacture of the 1993 Lincoln Town Car. The list was compiled by Arndt from a larger list of incidents Ford had disclosed in answers to an interrogatory in another case from 1992 which also included some forward-of-the-axle tanks.
¶ 27 All of the 416 vehicles on the edited list had aft-of-axle tanks. A few were vehicles with a vertical-behind-the-axle tank, but none were Lincoln Town Cars or other Panther platform models and most were vehicles with tanks located under the trunk inches from the bumper. All of the 416 incidents involved either a puncture, split, or tear of the fuel tank, resulting in 364 burn injuries and 378 deaths. However, there was no evidence that any of these accidents were caused by trunk contents puncturing the tank.
¶ 28 On cross-examination, Arndt acknowledged that he did not know the speed of any of the 416 incidents and could not say how a 1993 Lincoln Town Car would have reacted under the same conditions of those incidents. He also agreed that the vast majority of the cars on the list were designed in the sixties and seventies and were not tested under the 1993 federal government standards for fuel system integrity. He acknowledged that some of the vehicles he removed from the accident list had forward-of-the-axle fuel tanks, but he could not say how many.
¶ 29 Arndt also agreed that as of 1991, most cars on the road had an aft-of-axle fuel tank. Therefore, it would be reasonable to believe that if asked about fires involving products on the road as of that date, most manufacturers would identify vehicles with aft-of-axle fuel tank fires because that is how most vehicles were designed. Arndt also acknowledged that he could not tell how the 416 incidents compared to any other manufacturer during the same time period. He also could not tell how the 416 compared to the total number of accidents actually reported and collected during that time period.
¶ 30 Plaintiffs also introduced an exhibit entitled "Fire Risk in Fatal
Rear Collision Accidents." This list was compiled by Ford in 2002. The statistics indicate that between 1985 and 1997, the Lincoln Town Car had a fatal collision with fire rate per 100,000 registered vehicle years of 0.107, which Arndt agreed meant that there was one fatal collision with fire for every one million registered vehicle years of driving. Between 1985 and 1990 the Ford Escort, a small front-wheel-drive car with a forward-of-the-axle tank had a fatal collision with fire rate of 0.030 which meant that there was only a 0.3 fatal collision with fire for every one million registered vehicle years of driving. There was no evidence of the cause of any of these fires or evidence of what the rate would have been in 1993 at the time the Lincoln Town Car was manufactured.
¶ 31 3. Alternative Feasible Design
¶ 32 Arndt testified that at the time Ford manufactured the Lincoln
Town Car, a safer, more practical location for the fuel tank would have been forward of the axle. As evidence of an alternative feasible location for the fuel tank, Arndt performed two different crash tests in 2004 on a 1992 Ford Thunderbird with a forward-of-the-axle tank at 54 and 75 miles per hour. The trunk was packed with various items to simulate those items located in the Jablonski trunk at the time of the accident. The crash tests revealed no punctures to the fuel tank and no indication that any components punctured the tank.
¶ 33 On cross-examination, Arndt acknowledged that an automobile designer cannot merely design for rear impacts, but must also consider impacts from other angles. Arndt did not crash test the Thunderbird in a side-impact scenario and did not compare how the Lincoln Town Car would do in a side-impact or front-impact crash. He agreed that a Town Car has advantages in a side-impact collision because the tank is protected between the two rear wheels and the rear frame. Arndt also acknowledged that the Thunderbird and the Town Car are distinct vehicles. The Thunderbird is a two-door coupe and the Town Car is a four-door sedan. The Town Car is also considerably larger and weighs more. Arndt ...