Rehearing denied March 23, 2018
from the Circuit Court of Kankakee County, No. 12-L-180; the
Hon. Adrienne W. Albrecht, Judge, presiding.
E. Ocasek, of Cooney & Conway, of Chicago, for appellant.
J. Bullaro Jr. and Scott R. Sinson, of Bullaro & Carton,
P.C., of Chicago, for appellees.
JUSTICE SCHMIDT delivered the judgment of the court, with
opinion. Justices McDade and Wright concurred in the judgment
1 Plaintiff, Karrie Pommier, filed this lawsuit after she
allegedly injured her right shoulder while operating an
electric pallet jack at work on October 29, 2009. Her
complaint alleged strict products liability and negligence
claims against Jungheinrich Lift Truck Corporation (JLT),
Multiton Mic Corporation (MMC), and Calumet Lift Truck
Service Company, Inc. (Calumet). The trial court granted
Calumet summary judgment on the strict liability claim but
denied Calumet summary judgment on the negligence claim. The
court later granted JLT and MMC (defendants) summary judgment
on all claims. Plaintiff appeals this judgment. We affirm.
3 On September 29, 2011, plaintiff filed her complaint in
Cook County. In October 2012, the court transferred the case
to Kankakee County pursuant to Illinois Supreme Court Rule
187 (eff. Aug. 1, 1986). The complaint alleged that plaintiff
worked as a manufacturing operator at EMD Millipore
Corporation (Millipore). On October 29, 2009, she injured her
right shoulder while operating a Multiton ELE 45 electric
pallet jack for Millipore.
4 The complaint alleged negligence and strict products
liability claims against defendants. Count I alleged that
defendants "carelessly and negligently developed,
designed, manufactured, distributed, and sold [the jack] such
that it could suddenly stop functioning; *** without
conducting or obtaining adequate research that the control
circuitry and machine was generally recognized as safe; [and]
*** when it knew or should have known that the particular
product may cause injury to its operators." Count II
alleged that the jack "was in a defective condition,
unreasonably dangerous for its intended use" because
"the device spontaneously malfunctioned without warning;
there were inadequate power controls for movement of the
device; the controls permitted unexpected, sudden application
of the brakes during movement; [and] the emergency stopping
protocol engaged in unplanned or unexpected situations."
5 I. The Pallet Jack's Alleged Defect
6 When they examined the jack, experts for both sides found
that someone previously inverted the jack's brake cam.
Neither expert found any other defect. The jack's braking
system employs three primary parts: the tiller handle, the
cam, and the roller switch. Operators use the tiller handle
to steer and drive the jack. The cam is mounted at the base
of the tiller. It rotates over the fixed roller switch as the
operator raises or lowers the tiller. Contact between the cam
and the roller switch activates the brakes.
7 The cam is designed to contact the roller switch when the
tiller reaches certain angles. Based on the jack's
design, an operator cannot physically position the tiller in
any range between 0 degrees (parallel to the ground) and 15
degrees. The designed lower braking range is between 15
degrees and 34 degrees-when an operator lowers the tiller to
angles in this range, the cam should contact the roller
switch and activate the brakes. The designed upper braking
range is between 80 degrees and 90 degrees. The "F
arc" should be between 34 degrees and 80 degrees. When
an operator positions the tiller within the "F
arc," the brakes should not activate.
8 The cam screws onto a stud affixed to the tiller. A nut in
the center of the cam holds it in place. If someone tightens
the nut without holding the cam in place, the cam may rotate
with the nut as it is secured. Properly installed, the cam
should sit horizontally while the tiller rests at a 39-degree
9 During her deposition, plaintiff testified that she
operated the jack on October 29, 2009. She walked in front of
the jack and held onto the tiller handle with her right hand.
Her right arm extended behind her; her hand and the tiller
handle were positioned just above her waist. As plaintiff
continued to move forward, the jack stopped and caused
"a pulling in her shoulder." She stated: "If
you would walk it would-it would automatically stop on you.
You could be walking and it would just-it would just stop and
it would jerk you."
10 Plaintiff's expert, Daniel Pacheco, opined that the
inverted cam caused plaintiff's injury "and similar
[prior] incidents" that plaintiff's coworkers
reported. He opined that defendants negligently designed the
jack's brake system by failing to preclude the
possibility of someone inverting the cam. He offered a
"technologically and economically feasible"
alternative lock nut design that would require a key to
adjust the cam. He also opined that defendants ...