No. 1-17-2549 Third Division August 7, 2019 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

DALE GILLESPIE and CHRISTINE ) Appeal from the GILLESPIE, ) Circuit Court of ) Cook County. Plaintiff-Appellants, ) ) No. 13 L 8261 v. ) ) Honorable ROBERT EDMIER, THOMAS EDMIER, ) John H. Ehrlich, TRAIL QUEST, INC., and EAST ) Judge, presiding. MANUFACTURING CORPORATION, ) ) Defendants (East Manufacturing ) Corporation, Defendant-Appellee). ) ______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

OPINION

¶1 Dale and Christine Gillespie appeal the trial court’s grant of summary judgment in favor

of defendant East Manufacturing Corporation (East Manufacturing). The Gillespies’ action

against Robert Edmier, Thomas Edmier, Trail Quest, Inc. (Trail Quest), and East

Manufacturing alleged that they were strictly liable for Dale Gillespie’s injury and that East

Manufacturing’s negligence caused Dale Gillespie’s injury. East Manufacturing sought and

was granted summary judgment. For the following reasons, we reverse and remand. ¶2 I. BACKGROUND

¶3 The Gillespies’ third amended complaint contains four counts against the Edmiers and

Trail Quest and another four counts against East Manufacturing. The Gillespies alleged that

the Edmiers and Trail Quest are strictly liable for, and acted negligently in, failing to provide

safe access, in the form of additional safety measures, to and from the dump trailer on which

he was injured. The Gillespies further alleged that East Manufacturing is strictly liable for,

and acted negligently in, designing, manufacturing, and selling a defective and unreasonably

dangerous product that lacked adequate safety features, failed to warn or instruct consumers

about foreseeable dangers from unsafe modifications, and did not undergo product testing for

safety. The remaining counts include claims for loss of consortium in relation to the previous

counts. The relevant facts from the pleadings and depositions are as follows.

¶4 A. The Dump Trailer Contract

¶5 East Manufacturing has been in the business of selling dump trailers for over 40 years

averaging sales of 1200 dump trailers each year. The trailer industry is composed of

approximately 50 competing companies. The dump trailer at issue is the Genesis II frameless

model, 1 which features four cast iron steps on the trailer’s front side leading to the top of the

trailer in line with the industry standard. The dump trailer also has back side steps.

Purchasers have the option of equipping the trailer with a ladder instead of the cast iron steps

or a grab handle that would be placed at the top of the trailer. The aluminum rung style

ladder would be welded on to the front of the trailer.

¶6 Trail Quest is a leasing company dealing in tractors and trailers that has contracts with

Barge Terminal Trucking (Barge Terminal). Barge Terminal is a company that transports

1 References to the dump trailer throughout will be to the Genesis II frameless model unless otherwise specified. landscaping materials and other products in bulk. Both companies are family-owned and

operated by Robert, Thomas, and John Edmier.

¶7 Robert, acting as the president of Trail Quest, negotiated an order for a dump trailer from

Jim Rohr of Ken’s Truck Repair. Robert and Rohr discussed the desired features for the

trailer, including installation of a tarp that would cover the top of the trailer. Ken’s Truck

Repair prepared and sent a “specification sheet” to Robert reflecting the agreed upon features

of the trailer. Ken’s Truck Repair ordered the dump trailer from East Manufacturing and a

tarp cover featuring an aluminum cap from another vendor. Ken’s Truck Repair installed the

tarp cover and the aluminum tarp cap on the dump trailer and delivered it to Trail Quest,

which in turn leased the dump trailer to Barge Terminal.

¶8 B. The Accident

¶9 Gillespie had worked for Barge Terminal since 1998 as a truck driver. On February 14,

2012, he was working on the dump trailer leased from Trail Quest. He recalled that the

weather was unseasonably warm. The dump trailer had been loaded with mulch for a

delivery. Using the front side steps, Gillespie climbed on top of the dump trailer and lowered

himself into the trailer in order to rake and level the mulch. On his way up, he noticed that

the steps were not dry and that the top surface of the trailer was wet.

¶ 10 After leveling the mulch, he turned to climb down the trailer using the steps. Gillespie

crawled to the front of the trailer, positioned his right knee on the aluminum cap, placed his

left foot down on the first cast iron step, and attempted to place his right foot on the second

step. At this point, his hands slipped off the top of the trailer, and his left foot slipped,

causing him to fall off the cast iron stairs. He landed on his feet and felt a sharp pain in his

back. He immediately reported his injury to his supervisor, Thomas Edmier, before returning

to work. With the assistance of a coworker, Gillespie placed a tarp over the trailer and drove to Plainfield, Illinois. After they completed unloading the mulch, they returned the trailer to

Barge Terminal’s office in Ottawa, Illinois. Gillespie preloaded the mulch for the next

morning’s delivery. He testified that he used the dump trailer’s stairs once more with no

issues before placing a tarp on the trailer and leaving for the day. However, he did not return

to work the next day or any day thereafter and instead initiated the present lawsuit.

¶ 11 Robert Edmier testified that Barge Terminal teaches its truck drivers to maintain three-

point contact when climbing in and out of trailers as a safety rule. However, he

acknowledged that a truck driver has nothing to hold on to when climbing down the steps

besides the tarp or the corner of the dump trailer. He further admitted that if a driver holds on

to the tarp while climbing down the steps, that driver would not be compliant with the three-

point contact safety rule. Robert believed that installing a grab handle at the top of the dump

trailer to offer another point of contact when climbing the steps would cost around $100.

¶ 12 C. Plaintiff’s Expert Deposition Testimony

¶ 13 Gary Hutter, the Gillespies’ expert witness, opined that the steps on the dump trailer did

not comply with the recommended practices of the Occupational Safety and Health

Administration (OSHA), the American National Standards Institute (ANSI), the Federal

Motor Carrier Safety Regulations (FMCSR), and the Truck Trailer Manufacturers

Association (TTMA). Although Hutter acknowledged that OSHA had not issued a final rule

regarding ladders on motor vehicles such as dump trailers, Hutter believed that OSHA

standards were applicable to East Manufacturing’s duty of providing a safe access way to the

dump trailer. He also believed that it was foreseeable that workers would have to climb on

top of the dump trailer. Hutter opined that the cast iron steps on the trailer had no platform

and were not the proper width. He further opined that the steps did not have the proper

distance, did not have side rails, and the spacing between the steps was too large. Additionally, he noted that a truck driver had no convenient place to hold when climbing up

and down the steps. Hutter testified that he was aware of East Manufacturing installing full

ladders on their waste trailers, and that a full ladder could be installed on the front of their

dump trailers.

¶ 14 D. East Manufacturing Deposition Testimony

¶ 15 Ed Coffman, the principal design engineer for East Manufacturing, testified that the

purpose of the steps on the dump trailer was for drivers to climb up and down the trailer “to

inspect the load.” He believed it was foreseeable that a driver might use the steps to climb

into the dump trailer. He further testified that he was aware that the dump trailers are built to

Federal Motor Vehicle Safety Standards, which applies to brakes and lights but he was not

aware of any safety standards for ladders. He noted that East Manufacturing was a member

of the TTMA. He was not aware of ANSI or OSHA applying to steps or ladders of dump

trailers. He did not believe there were any manuals that involved the Genesis II dump trailer.

He further testified that he had never seen any of East Manufacturing’s dump trailers with a

grab handle. He described that East Manufacturing refers to the “bulkhead ladder” as steps

and stated that Trail Quest requested a “bulkhead ladder” and did not request a rung style

ladder. He stated he did not know how much the rung style ladders cost.

¶ 16 He further testified that East Manufacturing did not have a testing department for the

quality of the trailers. He acknowledged that prior to the manufacturing of the trailer at issue

that there was an engineering change. The change no longer allowed for a final step any

closer than 19 inches to the top of the trailer. He noted that the change was made because

“[t]he tarp mechanisms that [East Manufacturing] used, sometimes the tarp overlaps 18

inches down the side, so if [East Manufacturing puts] a step, obviously it’s up under the tarp,

and then this was to keep it down out of the way. Specifically, on the front, a fabric nose of cap on a tarp comes down over the front of the trailer approximately 18 inches. So if you

have a step there, you can’t fasten the tarp.”

¶ 17 He testified that the tarp installed on the dump trailer at issue modified the design of the

frameless trailer. Because of the location of the tarp the dump trailer lost its three points of

contact. Ultimately, the aluminum cap that is placed on the front of the trailer to help seal the

tarp removes any means of being able to grab the top edge of the bulkhead. He testified that

he had seen that style of aluminum cap installed on East Manufacturing’s other trailers prior

to the installation of the cap on the subject trailer. East Manufacturing did not provide any

information in terms of representations or other documentation to the customer or dealer

identifying that if such a tarp were installed, that there would be a change to the body of the

trailer.

¶ 18 Charlie Wells, East Manufacturing’s vice president of sales and marketing, testified that

it is foreseeable that customers may place tarps on a dump trailer after East Manufacturing

sells it. Wells further testified that there are different manufacturers of tarps with different

configurations so that some tarps have no end caps on the front of the trailer and some end

caps vary in shape and form. He was aware of six different manufacturers of tarps.

¶ 19 Andy Grow, one of East Manufacturing’s engineers, testified that cast iron steps placed

on Genesis II dump trailers had a standard design. He stated that there is no regulation for

cast iron steps on dump trailers. He further testified that he has never reviewed the design of

the steps or tested the design of the steps to make sure the steps were safe for use. He

testified that East Manufacturing has no formal accident review procedure or an investigation

procedure, and he was not aware of anyone that has fallen off the steps of East

Manufacturing’s dump trailers. He stated that East Manufacturing could not speculate on all

the different tarp configurations and everything that could happen. ¶ 20 E. The Trial Court’s Ruling

¶ 21 East Manufacturing moved for summary judgment. First, it argued that it was not strictly

liable for Dale Gillespie’s fall because the dump trailer had no design defect. At the time the

trailer left East Manufacturing, there was a rounded edge at the steps that was made for

someone to grab when climbing in and out the of trailer. It asserted that the addition of the

tarp after it was sold to Trail Quest changed the design of the trailer by removing the top part

of the steps that was designed to be used as a grab handle. Second, it argued that it was not

negligent because it specifically followed the contract that Ken’s Truck Repair ordered from

its facilities and its duties cannot extend beyond those in its contract.

¶ 22 In response, the Gillespies argued that East Manufacturing was strictly liable because the

cast iron steps were defectively designed as they were too far apart, too narrow, the top

clearance was inadequate, and the steps offered nothing to grab on to once an individual

reaches the top of the stairs, thus making it difficult and dangerous to transition between

steps. The Gillespies proffered evidence that the steps did not conform to design standards

and criteria set forth by OHSA, FMCSR, ANSI, and TTMA. The Gillespies further posited

that they had presented evidence of a feasible alternative design of a ladder that East

Manufacturer had installed on other trailer models. Additionally, the Gillespies argued that

the addition of a tarp was a foreseeable modification to the trailer. Next, they contended that

East Manufacturing failed to provide instructions, directions, or warnings to purchasers that

grab handles were needed if a tarp was installed onto the dump trailer. Lastly, they argued

under a negligence theory that East Manufacturing had a nondelegable duty to provide a safe

product for all intended users. 2

2 On appeal, the Gillespies did not challenge the trial court’s granting of summary judgment in favor of East Manufacturing on the negligence counts. ¶ 23 The circuit court granted East Manufacturing’s motion for summary judgment rejecting

the Gillespies’ contention that it could have or should have added other safety features based

on OSHA requirements or trade group standards. The court ruled that OSHA does not apply

to trailers and that industry standards are not mandatory. The court also found that East

Manufacturing’s trailer met the industry custom and practice because East Manufacturing

built the trailer pursuant to the specifications of the purchaser and that the purchaser had the

trailer modified by a third party who added the tarp cover and cap. The court further found

that the third-party modifications demonstrated that the trailer was not unreasonably

dangerous when it left East Manufacturing’s control. This appeal followed. Additional

pertinent facts will be discussed in the context of the issues raised on appeal.

¶ 24 II. ANALYSIS

¶ 25 On appeal, the Gillespies recite a litany of contentions including (1) the tarp cover

modifications did not affect the design deficiencies in the trailer steps, (2) a jury could find

that a condition other than the aluminum tarp cap contributed to cause Dale Gillespie’s fall,

(3) East Manufacturing had a readily available safer alternative, (4) the trailer was not

custom designed because East Manufacturing selected the steps on the trailer, (5) the postsale

modifications to the trailer were foreseeable, (6) the Gillespies established that East

Manufacturing owed them a duty under both the consumer-expectation test and the risk-

utility test for product liability, and (7) East Manufacturing failed to warn the purchaser that

placing a tarp cover over the trailer would render the trailer unreasonably dangerous.

¶ 26 We can summarize the Gillespie’s contentions into three main arguments. First, under the

theory of strict liability, the steps of the dump trailer were defective and unreasonably

dangerous. Second, it was reasonably foreseeable that purchasers of the dump trailer would

place tarps over the top of the trailer and therefore East Manufacturing should have installed a grab handle on the trailer to prevent injury when using the defective and unreasonably

dangerous steps. Lastly, East Manufacturing failed to warn of the dangers of placing a tarp

over the top of the dump trailer. In light of these claims, the Gillespies argue that the trial

court erred when it granted summary judgment because whether the dump trailer was

defective and unreasonably dangerous were issues of material fact that precluded summary

judgment.

¶ 27 Summary judgment is proper only where “the pleadings, depositions, 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.” 735 ILCS 5/2-

1005(c) (West 2012). When determining whether a genuine issue of material fact exists, this

court must construe the pleadings, depositions, admissions, and affidavits strictly against the

movant. Adams v. Northern Illinois Gas Co.,

(2004). We review the circuit

court’s entry of summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual

Insurance Co.,

(1992).

¶ 28 A. Judicial Admissions

¶ 29 Here on appeal, East Manufacturing argues that a judicial admission made by the

Gillespies in response to its amended motion to dismiss, standing alone, entitles it to

summary judgment. Noting that the trial court made no mention of the alleged admission as

the basis for its grant of summary judgment, East Manufacturing entreats this court to affirm

summary judgment on the basis of the Gillespies’ alleged judicial admission. We decline.

¶ 30 In support of its argument, East Manufacturing recites the following, which it

characterizes as the Gillespies’ judicial admission:

“[T]o be clear, plaintiff’s negligence counts against East, just like the strict tort

counts, pertain to the defective and dangerous condition of the trailer at the time it left East Manufacturing. All of plaintiff’s charging allegations in paragraphs 6 to

9 of both the strict tort counts and negligence counts, respectively, pertain to the

conditions and defects of the trailer at the time it was sold by East. (e.g. failure to

have a rung ladder, failure to provide warnings, failure to have grab handles,

failure to have adequate steps, etc.; these are all conditions that existed when the

trailer was sold by East.).”

East Manufacturing argues that the above quoted language limited the Gillespies’ allegations

against it as to the condition of the trailer at the time it left East Manufacturing. It maintains

that “because of this judicial admission, the trailer with its grab bar and steps at the front are

safe.”

¶ 31 Judicial admissions are defined as deliberate, clear, unequivocal statements by a party

about a concrete fact within that party’s knowledge. In re Estate of Rennick,

(1998). The subject statement must not be an inference or unclear summary. Serrano v.

Rotman,

(2011). What constitutes a judicial admission must be

decided under the circumstances in each case.

In addition, before a statement can be held

to be an admission, it must be given a meaning consistent with the context in which it is

found, and it must be considered in relation to the other testimony and evidence presented.

¶ 32 In order to determine whether East Manufacturing’s argument has merit, we must first

consider the alleged judicial admission in its proper context. For that purpose, we sought

review, not only of the Gillespies’ response to East Manufacturing’s motion to dismiss, but

also the motion itself. Despite our best efforts, we have been unable to locate East

Manufacturing’s motion to dismiss in the record. We have, however, reviewed the

Gillespies’ amended response to the motion, as well as East Manufacturing’s amended reply. Based on our review, it appears that East Manufacturing’s motion sought dismissal of the

Gillespies’ added negligence claim, alleged against East Manufacturing for the first time in

its second amended complaint, as time-barred. In response, the Gillespies argued that the

negligence count was not time barred and that, in fact, the count related back to the originally

filed “strict counts” against East Manufacturing.

¶ 33 Taken in context, the Gillespies’ statements in its response to the motion to dismiss

related not the condition of the steps at the time it left East Manufacturing but rather the

viability of their negligence claim under the relation back doctrine. We express no opinion

with respect to whether the added negligence claim in fact relates back. That issue is not

before us. We conclude, however, that the statements to which East Manufacturing point fall

far short of being a judicial admission.

¶ 34 B. Strict Liability: Design Defect

¶ 35 The Gillespies first argue that the dump trailer had design defects such as a lack of a grab

handle on the top of the trailer, a lack of a rung style ladder, and inadequate steps in the front

of the trailer. East Manufacturing responds that Dale Gillespie’s conduct of crawling across

the tarp cap to climb down the front side steps of the dump trailer instead of using the back

steps should be considered misuse.

¶ 36 To establish a design defect claim for strict products liability, a plaintiff must prove (1)

the product had an unreasonably dangerous condition, (2) the dangerous condition existed

when the product left the manufacturer’s control, and (3) the condition injured the plaintiff.

Mikolajczyk v. Ford Motor Co.,

(2008). We note that with respect to the

third factor, East Manufacturing does not contest that Dale Gillespie was injured. As such,

we address the remaining two factors of the Gillespies’ design defect claim.

¶ 37 1. Unreasonably Dangerous Condition ¶ 38 The Gillespies contend that East Manufacturing’s cast iron steps installed on the dump

trailer were defective and unreasonably dangerous under both the risk-utility and consumer-

expectation test.

¶ 39 The determination of whether a product is defective and unreasonably dangerous is

ordinarily a question a fact for the jury to consider. Korando v. Uniroyal Goodrich Tire Co.,

(1994). When a plaintiff’s claim is based on an alleged design defect, the

“unreasonably dangerous” element can be proven under the risk-utility test or the consumer-

expectation test (Mikolajczyk,

), the requirements of each which we

define more particularly in our analysis going forward.

¶ 40 a. Risk-Utility Test

¶ 41 The Gillespies argue that they proffered evidence of alternative designs that would have

prevented injury and were feasible in terms of cost, practicality, and technological feasibility

that demonstrates that East Manufacturing’s trailer was unreasonably dangerous due to a

design defect.

¶ 42 Under the risk-utility test, we must determine whether, “on balance[,] the benefits of the

challenged design outweigh the risk of danger inherent in such designs.” (Internal quotation

marks omitted.) Blue v. Environmental Engineering, Inc.,

(2005).

Although the risk-utility analysis is ultimately a question of fact, courts must determine as a

preliminary matter whether the case is appropriate to submit to a jury. See Calles v. Scripto-

Tokai Corp.,

(2007) (setting forth a nonexhaustive list of factors for

the court to consider in a risk-utility analysis). In making this determination, courts may

consider (1) the product’s utility to the public, (2) the likelihood and the probability of

foreseeable injury to the consumer, (3) the manufacturer’s ability to eliminate unsafe

characteristics without impairing its usefulness or making it too expensive to maintain its utility, (4) availability and feasibility of alternate designs, and (5) conformity with any

applicable industry standards and governmental regulations. Jablonski v. Ford Motor Co.,

. In this case, only three of these factors are contested: (1) the dump

trailer’s conformity with government regulations, (2) conformity with the applicable industry

standards, and (3) the availability and feasibility of alternate designs. We focus our analysis

on these three.

¶ 43 The Gillespies assert that the trial court erred in granting summary judgment because

their expert explained that steps of the dump trailer did not comply with the recommended

practices under OSHA, ANSI, FMCSR, and TTMA. East Manufacturing argues that

evidence of compliance with OSHA regulations is inapplicable in a product liability action

against a manufacturer. East Manufacturing relies heavily on a decision rendered by the Sixth

Circuit Court of Appeals, Minichello v. U.S. Industries, Inc.,

(6th Cir. 1985), to

support its contention. In Minchello, the court prohibited the use of evidence of compliance

with OSHA regulations in a product liability action.

.

¶ 44 This court is not bound by federal appellate or district court decisions. SK Handtool

Corp. v. Dresser Industries, Inc.,

(1993). We find instructive our

supreme court decision in Rucker v. Norfolk & Western Ry. Co.,

(1979). In

Rucker, the court held that evidence of a product’s compliance with government safety

standards is relevant and admissible in a product liability case to determine whether the

product is defective and whether a defect in the product is reasonable.

; see also

Moehle v. Chrysler Motors Corp.,

(1982) (applying the rule established in

Rucker). In light of Rucker, we find that OSHA is a relevant standard in this case.

¶ 45 Hutter’s testimony that the steps’ spacing, width, distance, and lack of side rails conflict

with the OSHA protocol is intended to support his expert opinion that East Manufacturing designed steps that were defective and unreasonably dangerous. His testimony provides

sufficient evidence that a fact finder could consider when determining whether the steps were

unreasonably dangerous. Having determined that OSHA is a relevant standard for the jury to

consider, we further find that ANSI, FMCSR, and TTMA standards are also relevant for the

jury’s consideration. See also Schultz v. Northeast Illinois Regional Commuter R.R. Corp.,

(2002) (allowing OSHA, ANSI, and other standards and regulations to

be admitted into evidence at trial even though the regulations are not binding on the

defendant).

¶ 46 With respect to the second factor, we note that East Manufacturing complied with

industry standards. Coffman testified that cast iron steps on dump trailers are standard in the

industry and has been the standard since he first joined the trailer industry in 1972.

¶ 47 Even so, we find persuasive the Gillespies’ contention that safer alternatives to the cast

iron steps existed. Hutter’s testimony indicates that a ladder was available for other models

and was also available upon request for the dump trailer. Thus, it was a reasonable alternative

to the standard cast iron stairs. Hutter’s testimony was corroborated by Coffman and Wells

who also testified that East Manufacturing did in fact offer a ladder option, but that it was not

the standard.

¶ 48 On balance, the risk-utility test weighs in favor of the Gillespies. When viewed in a light

most favorable to the Gillespies, the deposition testimony of Dale Gillespie, Wells, Grow,

Coffman, and Hutter is sufficient to create a genuine issue of material fact as to whether the

trailer was unreasonably dangerous.

¶ 49 b. Consumer-Expectation Test ¶ 50 The Gillespies contend that the fact finder could conclude that a truck driver would

reasonably expect steps to be constructed with proper spacing and with side rails. East

Manufacturing argues that the trailer was built to the safety specifications of the industry.

¶ 51 Under the consumer-expectation test, a plaintiff may prevail if he shows that the product

failed to perform as an ordinary consumer would expect when used in an intended or

reasonably foreseeable manner. Calles,

. This standard is objective and

based on the average, normal, or ordinary expectations of the reasonable person and thus is

not dependent upon the subjective expectation of a particular consumer or user.

at 254

(citing American Law of Products Liability 3d § 17:24, at 17-44 (rev. 1997)).

¶ 52 Here, the purpose of the cast iron steps on the front end of the dump trailer is to allow

drivers to climb in and out of the dump trailer. Coffman, East Manufacturing’s design

engineer, testified that the steps met the industry standards for dump trailers. However the

testimony of another East Manufacturing engineer, Andy Grow, revealed that East

Manufacturing never tested the design of the steps to make sure the steps were safe. In

addition, East Manufacturing had no formal accident review procedure or an investigation

procedure for incidents. The mere fact that East Manufacturing’s trailer complied with

industry standards, where there are no regulations or guidelines that specifically govern the

dump trailer industry, is not persuasive enough to overcome the consumer’s expectations.

¶ 53 A reasonable truck driver, like Dale Gillespie, would expect that the steps would be

properly spaced. The Gillespies’ expert opined that the steps did not have the proper toe

distance, did not have side rails, and the spacing between the steps was not proper according

to the fixed ladder criteria of OSHA and ANSI. As we discussed in the risk-utility test

analysis above, we find that OSHA and ANSI standards are relevant for the purposes of

determining whether the cast iron steps were defective and unreasonably dangerous. Accordingly, genuine issues of material fact remain as to whether the cast iron steps were

defective and unreasonably dangerous under the consumer-expectation test.

¶ 54 2. Condition Existed When the Product Left the Manufacturer’s Control

¶ 55 Having determined that an issue of material fact exists as to whether the cast iron steps

were defective and unreasonably dangerous, we next address the Gillespies’ contention that

East Manufacturing knew that purchasers would install tarp covers and a tarp cap at the front

of the trailer. Specifically, they assert that Trail Quest’s need to add a tarp cover and a tarp

cap to the dump trailer was reasonably foreseeable and that a truck driver would lose three

points of contact once the tarp cover and cap was installed. Given that, they argue that a grab

handle should have been installed on the dump trailer before leaving East Manufacturing to

give a truck driver the ability to hold on to an apparatus while climbing up and down the

front of the dump trailer.

¶ 56 Where an unreasonably dangerous condition is caused by a modification to the product

after it leaves the manufacturer’s control, the manufacturer is not liable unless the

modification was reasonably foreseeable. Davis v. Pak-Mor Manufacturing Co.,

(1996). “Foreseeability means that which it is objectively reasonable to expect,

not merely what might conceivably occur.” (Emphasis omitted.) Winnett v. Winnett,

(1974).

“If a product is capable of easily being modified by its operator, and if the operator

has a known incentive to effect the modification, then it is objectively reasonable for a

manufacturer to anticipate the modification. [Citations.] Conversely, if the alteration of

the product requires special expertise, or otherwise is not accomplished easily, then it is

not objectively reasonable for a defendant to foresee the modification.” Pak-Mor

Manufacturing Co.,

. Questions of foreseeability are usually resolved by the jury, but in certain instances, these

questions may be decided as a matter of law where the facts establish that the plaintiff would

never be entitled to recovery. Perez v. Sunbelt Rentals, Inc.,

(citing DeArmond v. Hoover Ball & Bearing, Uniloy Division,

(1980)). Here, the question is properly one for the jury.

¶ 57 Coffman testified that he had seen the same style of aluminum cap installed on East

Manufacturing’s other trailers prior to the installation of the cap on the subject trailer. This

confirmed that East Manufacturing was aware that dump trailers are modified in this manner.

Additionally, Wells’s and Grow’s testimony acknowledged that it was common in the

industry for a tarp and tarp caps to be placed upon dump trailers. Although there may be

uncertainty as to which style of tarp and tarp caps might be placed on to the dump trailers,

there was no dispute that they were often placed on dump trailers similar to East

Manufacturing’s dump trailer. See Pak-Mor Manufacturing Co.,

(noting that the existence of an industry-wide phenomenon factored into whether a genuine

issue of material fact existed about the foreseeability of truck operators altering a control

switch on garbage trucks).

¶ 58 Further, Coffman testified that once the tarp was installed, the dump trailer lost its three

points of contact, which reduced a truck driver’s ability to grab the top edge of the front of

the trailer. Given Coffman’s testimony, it follows that Dale Gillespie may have struggled

maintaining three points of contact after placing the tarp on top of the front of the trailer.

¶ 59 In construing all reasonable inferences from Coffman, Grow, and Wells’ deposition

testimony in the light most favorable to the Gillespies, we find that a genuine issue of

material fact remains as to whether it was foreseeable that purchasers would install tarp

covers and caps and whether the presence of a grab handle would be necessary to maintain three points of contact. Therefore, we find that summary judgment should not have been

granted.

¶ 60 C. Strict Liability: Failure to Warn

¶ 61 The Gillespies further contend that East Manufacturing failed to warn that a grab handle

was necessary if a consumer installed a tarp cover. They argue that the lack of a grab handle

rendered the trailer unreasonably dangerous and thus East Manufacturing is strictly liable for

its failure to warn of that danger.

¶ 62 Under a failure to warn theory, a plaintiff must show that the manufacturer did not

disclose an unreasonably dangerous condition or instruct on the proper use of the product as

to which the average consumer would not be aware. Sollami v. Eaton,

(2002).

“A manufacturer has a duty to warn where the product possesses dangerous propensities and

there is unequal knowledge with respect to the risk of harm, and the manufacturer, possessed

of such knowledge, knows or should know that harm may occur absent a warning.”

¶ 63 However, there is no duty to warn where the product is not defectively designed or

manufactured and where the possibility of injury results from a common propensity of the

product that is obvious to the user. Genaust v. Illinois Power Co.,

(1976)

(citing Restatement (Second) of Torts § 402A cmt. j, at 353 (1965) (noting that a product

may be prevented from being considered unreasonably dangerous if it is accompanied by

directions or warnings about its proper use; a product that bears an adequate warning “is not

in [a] defective condition, nor is it unreasonably dangerous”)). The determination of whether

a product was in an unreasonably dangerous or defective condition because of the failure to

give adequate warnings is ordinarily a question for the jury. Collins v. Sunnyside Corp.,

(1986) (citing Ebbert v. Vulcan Iron Works, Inc.,

(1980)). ¶ 64 Here, as discussed above, East Manufacturing was aware of the practice of maintaining

three-point contact in the truck driving industry when working on a trailer. East

Manufacturing acknowledged that by placing a tarp over the front top of the dump trailer, the

consumer would not be able to maintain the three-point contact necessary for the consumer’s

safety. As East Manufacturing was well aware that this problem could occur but did not warn

of the potential danger to consumers, we find that summary judgment was improperly

granted.

¶ 65 Finally, East Manufacturing claims that this court should affirm summary judgment

because Dale Gillespie’s conduct in crawling across the tarp cap to climb down the front side

steps of the dump trailer instead of using the back steps constitutes misuse. Misuse of a

product occurs when it is used for a purpose neither intended nor reasonably foreseeable by

the defendant based on an objective standard. Arellano v. SGL Abrasives,

(1993). In the present case, Coffman testified that the purpose of the steps on the

dump trailer was for drivers in climbing up and down the trailer “to inspect the load.” He

further stated that it was foreseeable that a driver might use the steps to climb the dump

trailer. Coffman’s testimony indicates that Dale Gillespie used the stairs for its intended

purpose and that it was reasonably foreseeable for him to climb down the front stairs.

Therefore, we reject East Manufacturing’s contention of misuse as a basis for affirming

summary judgment.

¶ 66 III. CONCLUSION

¶ 67 For the reasons stated, we reverse the trial court’s grant of East Manufacturing’s motion

for summary judgment as to the strict liability count and remand for further proceedings.

¶ 68 Reversed and remanded. No. 1-17-2549

Cite as: Gillespie v. Edmier,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-L-8261; the Hon. John H. Ehrlich, Judge, presiding.

Attorneys Michael W. Rathsack, Nicholas J. Faklis, and Michael C. Mead, for of Chicago, for appellants. Appellant:

Attorneys Thomas E. Sarikas, of Bryce Downey & Lenkov LLC, of for Chicago, for appellee. Appellee: