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                                                                                Date: 2018.07.24
                                    Appellate Court                             09:40:18 -05'00'




             Pommier v. Jungheinrich Lift Trick Corp., 2018 IL App (3d) 170116



Appellate Court         KARRIE POMMIER, Plaintiff-Appellant, v. JUNGHEINRICH LIFT
Caption                 TRUCK CORPORATION, MULTITON MIC CORPORATION, and
                        CALUMET LIFT TRUCK CORPORATION, Defendants
                        (Jungheinrich Lift Truck Corporation and Multiton Mic Corporation,
                        Defendants-Appellees, EMD Millipore Corporation, Third-Party
                        Defendant).


District & No.          Third District
                        Docket No. 3-17-0116



Filed                   February 28, 2018
Rehearing denied        March 23, 2018



Decision Under          Appeal from the Circuit Court of Kankakee County, No. 12-L-180;
Review                  the Hon. Adrienne W. Albrecht, Judge, presiding.



Judgment                Affirmed.


Counsel on              James E. Ocasek, of Cooney & Conway, of Chicago, for appellant.
Appeal
                        John J. Bullaro Jr. and Scott R. Sinson, of Bullaro & Carton, P.C., of
                        Chicago, for appellees.



Panel                   JUSTICE SCHMIDT delivered the judgment of the court, with
                        opinion.
                        Justices McDade and Wright concurred in the judgment and opinion.
                                              OPINION

¶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.

¶2                                        BACKGROUND
¶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.



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¶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 angle.
¶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 should
       have included on-machine instructions with embedded warnings that explained how to
       properly position the cam.
¶ 11        Pacheco concluded that the cam’s inverted position “had the effect of causing the brake to
       be applied when the steering tiller was higher in the lower braking range than it should have
       been.” However, his findings from examining the jack refuted this conclusion. Pacheco found
       that the tiller’s travel arc—the total range in which an operator could physically position the
       tiller—totaled 74.2 degrees (i.e., any range between 15 to 15.8 degrees and 89.2 to 90 degrees).
       He also found that the lower brake arc totaled 10 degrees. Because an operator cannot
       physically position the tiller below a 15-degree angle, Pacheco’s lower brake arc ranged from
       15 degrees to 25 degrees. Finally, Pacheco concluded that the upper brake arc totaled just 1.5
       degrees (approximately 88 to 90 degrees). According to Pacheco’s findings, the inverted cam
       could not activate the brakes unless plaintiff positioned the tiller below 25 or above 88
       degrees—well past the threshold for each designed brake range (34 degrees and 80 degrees,
       respectively). In other words, the inverted cam made the brakes less likely to activate.

¶ 12                                   II. The Pallet Jack’s History
¶ 13       The manufacturer, which is not a party to this lawsuit, produced the jack in 1999.
       Millipore, plaintiff’s employer, bought it new the same year. Defendants are the
       manufacturer’s wholly owned subsidiaries and distributors. Millipore hired Calumet to
       periodically maintain the jack. During discovery, Millipore and Calumet failed to produce any
       service records from 1999 through most of 2008. The record lacks any evidence indicating
       what service or alterations Millipore and Calumet performed for nearly a decade after
       Millipore purchased the jack.
¶ 14       The jack came with two manuals, an operating manual and a service manual. The operating
       manual specifically prohibits operators from repairing or modifying the jack: “Without
       specific training and express authorization the driver is not allowed to perform any repairs or
       modifications on the [jack]. Under no circumstances must the driver change the setting of
       switches or safety installations, or render them ineffective.” The operating manual also states
       that only “expert personnel of the manufacturer” may perform maintenance on the jack. The
       maintenance personnel may not modify it in any way. They also must “recommission” the jack

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       after performing maintenance. Before “recommissioning” the jack, maintenance personnel
       must “check the brake for correct function.”
¶ 15       Plaintiff claims that defendants failed to produce the correct service manual during
       discovery. Joern Soukup, a Jungheinrich employee, testified about the service manual’s
       contents. He stated that the manual “provides expert personnel with the specific manner in
       which the tiller handle must be positioned for correct function.” The manual indicates that the
       upper braking range requires the operator to position the tiller between 80 and 90 degrees; the
       lower braking range requires the operator to position the tiller between 15 and 34 degrees.
¶ 16       Soukup also testified that the manufacturer employed several processes to ensure the brake
       system operated properly before shipment. First, the manufacturer used special equipment to
       secure the tiller at a 39-degree angle. Then, an employee used a 24-millimeter wrench to
       correctly position the cam while tightening the nut. A 24-millimeter wrench cannot fit around
       the cam if it is not positioned properly. Next, the manufacturer performed a “lamp test” where
       it wired an electronic device into the brake switch to ensure the brake operated within the
       proper ranges. Finally, the manufacturer tested each jack’s brakes at least three times before
       shipment: on the assembly line, after assembly, and during a documented final inspection
       before shipment.
¶ 17       Defendants’ expert, Michael Rogers, opined that the manufacturer correctly positioned the
       cam, and it remained properly positioned when the jack left defendants’ control. He based his
       opinion on Soukup’s description of the manufacturer’s procedures. He also observed that using
       a 24-millimeter wrench made it impossible to invert or misalign the cam. Rogers and Pacheco
       agreed that patterns of uneven wear and tear on the roller switch and cam (“witness marks”)
       suggested that the cam was previously properly positioned.

¶ 18                                       III. Procedural History
¶ 19       On September 20, 2016, defendants filed a combined motion for summary judgment.
       Despite her lack of evidence indicating that defendants inverted the cam, plaintiff maintained
       that the brake system design was defective because it did not prevent operators and other third
       parties from inverting the cam. Plaintiff also claimed that defendants should have foreseen that
       someone could and would invert the cam. On January 11, 2017, the trial court granted
       defendants’ motion. The court determined that plaintiff failed to show that defendants could
       reasonably foresee the cam modification when they designed the jack. The court also
       determined that plaintiff failed to provide any evidence that the inverted cam caused plaintiff’s
       injury. We agree with the trial court’s judgment.

¶ 20                                            ANALYSIS
¶ 21       We review trial courts’ orders granting summary judgment de novo. Horwitz v. Holabird &
       Root, 212 Ill. 2d 1, 8 (2004). Summary judgment is appropriate 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 2016). Parties opposing summary judgment must
       present evidence sufficient to establish a genuine issue of material fact or that the moving party
       is not entitled to judgment as a matter of law. Performance Food Group Co. v. ARBA Care
       Center of Bloomington, LLC, 2017 IL App (3d) 160348, ¶ 18. We review the trial court’s


                                                   -4-
       judgment, not its reasoning, and we may affirm on any basis supported by the record. Hope v.
       Hope, 398 Ill. App. 3d 216, 220 (2010).
¶ 22       Plaintiff appears to abandon her negligence claims on appeal. Plaintiffs who raise
       negligence claims “must do more than simply allege a better design for the product; [they]
       must plead and prove evidence of a standard of care by which to measure a defendant’s design
       and establish a deviation from that standard.” Blue v. Environmental Engineering, Inc., 215 Ill.
       2d 78, 96 (2005). Plaintiff’s brief fails to mention such a standard of care or reference evidence
       tending to show that defendants deviated from it. Instead, plaintiff focuses on a single
       defective condition (the inverted cam) and defendants’ liability for its existence. This is a strict
       products liability argument.
¶ 23       Under Illinois law, a plaintiff bringing a strict products liability action must prove the
       following elements: (1) an unreasonably dangerous product condition that resulted from
       manufacturing or its design, (2) the existence of the condition when the product left the
       defendant’s control, and (3) the condition having proximately caused plaintiff’s injuries.
       Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 543 (2008).
¶ 24       In the trial court proceedings, plaintiff presented no evidence that defendants inverted the
       cam before selling the jack to Millipore in 1999. In fact, no party has disclosed evidence
       regarding the cam’s positioning or the jack’s maintenance prior to 2008. The trial court
       determined that plaintiff failed to prove that defendants could reasonably foresee the defect or
       that it proximately caused plaintiff’s injury. On appeal, plaintiff argues that the record
       sufficiently establishes that the jack’s design was defective and proximately caused her
       injuries. We address her arguments below.

¶ 25                                       I. Defective Design
¶ 26       Plaintiff advances two arguments in support of her design defect claim. First, she claims
       that inverting the cam did not substantially modify the jack’s design; the defective design
       existed before the jack left defendants’ control. Alternatively, plaintiff argues that defendants
       should have foreseen operators’ modifications and other third parties’ negligent acts or
       omissions. She claims that defendants remain liable for such foreseeable events. We reject
       both arguments.

¶ 27                                          A. Modification
¶ 28       Plaintiff argues that a person “modifies” a product only if he or she removes, adds, or
       substitutes the product’s parts or alters how operators use it. Based on this definition, plaintiff
       argues that the inverted brake cam cannot constitute a “modification” that absolves
       defendants’ liability. No evidence indicated that someone removed, added, or substituted the
       jack’s parts. Nor did any evidence indicate that the inverted cam required plaintiff to operate
       the jack differently than its design intended.
¶ 29       We reject plaintiff’s definition because “alteration, modification or change” is already
       defined by statute as “an alteration, modification or change that was made in the original
       makeup characteristics, function or design of a product or in the original recommendations,
       instructions and warnings given with respect to a product including the failure properly to
       maintain and care for the product.” 735 ILCS 5/13-213(a)(1) (West 2016). Courts have
       characterized alterations that do not add, remove, or substitute parts as modifications in


                                                    -5-
       products cases. See Masters v. Hesston Corp., 291 F.3d 985, 989-90 (7th Cir. 2002)
       (misaligning a twine tube while rewelding it to a hay baler); Davis v. Pak-Mor Manufacturing
       Co., 284 Ill. App. 3d 214, 217-18 (1996) (rewiring a garbage truck’s switch); Gowler v.
       Ferrell-Ross Co., 206 Ill. App. 3d 194, 200 (1990) (disabling a lever); Kempes v. Dunlop Tire
       & Rubber Corp., 192 Ill. App. 3d 209, 215 (1989) (cutting into a golf ball). The statutory
       definition clearly contemplates all unintended changes to a product’s original components and
       all deviations from the manufacturer’s recommended maintenance.
¶ 30        Section 13-213(a)(1)’s definition coincides with the well-settled principle that
       manufacturers are not insurers. Hunt v. Blasius, 74 Ill. 2d 203, 211 (1978). Because
       manufacturers are not insurers, the law does not automatically attribute defects caused by
       unintended alterations to the product’s design or manufacturing. For example, an automobile’s
       wheel might become unreasonably dangerous if the driver loosens the lug nuts. Although the
       driver did not add, substitute, or remove parts, or alter the way in which he or she drove the
       automobile, the manufacturer never intended for the wheel to function with loosened lug nuts.
       On the other hand, if the driver pushes a button or operates a lever to adjust the driver’s seat or
       steering wheel, no modification occurs; the manufacturer clearly intended the seat and steering
       wheel to adjust based on the driver’s physical stature. See, e.g., Stehl v. Brown’s Sporting
       Goods, Inc., 236 Ill. App. 3d 976 (1992).
¶ 31        In lockstep with the statutory definition and principles of products liability law, we find
       that the inverted brake cam constituted a modification in this case. We now must determine
       whether defendants could reasonably foresee this modification.

¶ 32                                         B. Foreseeability
¶ 33       Plaintiff argues that defendants remain liable because they could reasonably foresee, as a
       matter of law, that operators could and would modify the jack’s braking system, including the
       cam. Plaintiff also argues that a question of facts exists as to whether defendants could foresee
       Calumet’s or some other nonoperator’s negligence. It is important to note that plaintiff
       presented no evidence showing who inverted the brake cam—an operator or other Millipore
       employee, a Calumet agent, or some other third party.
¶ 34       We summarily reject plaintiff’s argument that defendants remain liable if Calumet or
       another nonoperator third party negligently inverted the brake cam. Plaintiff cites no law
       supporting this proposition. Whether defendants could foresee that some professional might
       negligently service the jack or alter its original design is irrelevant. In retrospect, almost
       anything is foreseeable. Majumdar v. Lurie, 274 Ill. App. 3d 267, 271 (1995) (citing Mieher v.
       Brown, 54 Ill. 2d 539, 544 (1973)). We reiterate that “[p]roducts liability does not make the
       manufacturer an insurer of all foreseeable accidents which involve its product.” Hunt, 74 Ill. 2d
       at 211. It is conceivable that expert maintenance personnel or service companies like Calumet
       might negligently maintain a product or alter its functionality. However, the law does not deem
       manufacturers forever liable for such negligence beyond their control. See Kirby v. General
       Motors Corp., 10 Ill. App. 3d 92, 96 (1973). Manufacturers have no duty to design foolproof
       products immune from all possible accidents. Flaugher v. Sears, Roebuck & Co., 61 Ill. App.
       3d 671, 676 (1978).
¶ 35       In some cases, however, manufacturers must anticipate modifications that operators can
       easily effect. DeArmond v. Hoover Ball & Bearing, 86 Ill. App. 3d 1066, 1071 (1980). The two
       factors relevant to this analysis are whether operators could easily modify the product and

                                                    -6-
       whether the manufacturer should reasonably anticipate that operators would modify the
       product for some particular reason. See id.; Woods v. Graham Engineering Corp., 183 Ill. App.
       3d 337, 342 (1989); Foster v. Devilbiss Co., 174 Ill. App. 3d 359, 363 (1988).
¶ 36       Plaintiff argues that defendants could reasonably foresee that operators could modify the
       brake cam; an operator without any specific expertise could access the cam by using common
       tools such as screwdrivers and wrenches. Plaintiff also claims that an operator would
       foreseeably maintain the jack’s brake system as the operating manual requires.
¶ 37       Plaintiff’s argument lacks a necessary ingredient—proof that an operator inverted the cam.
       Unlike in DeArmond and Foster, plaintiff presented no evidence that an operator modified the
       product. Whether defendants should have reasonably foreseen that an operator could and
       would invert the cam is irrelevant if an operator did not invert the cam.
¶ 38       Even if we assume, arguendo, that an operator inverted the cam, plaintiff’s argument still
       fails. Although we agree that operators can use common tools such as screwdrivers and
       wrenches to access the cam, plaintiff presents no evidence that operators typically understand
       the interacting functions of the tiller handle, cam, and switch roller. Nor does plaintiff provide
       any evidence that operators’ regular job duties include adjusting or maintaining the jack’s
       braking system.
¶ 39       In fact, the operating manual specifically prohibits operators from performing maintenance
       on the jack. The manual states: “Without specific training and express authorization the driver
       is not allowed to perform any repairs or modifications on the jack. Under no circumstances
       must the driver change the setting of switches or safety installations, or render them
       ineffective.” Clearly, defendants intended to prohibit operators from maintaining or modifying
       the jack’s braking system. Defendants could not reasonably foresee that operators would
       ignore this express and unambiguous direction.
¶ 40       The trial court correctly determined that plaintiff failed to present sufficient evidence to
       survive summary judgment. Plaintiff cannot prove that defendants inverted the brake cam or
       that they should have reasonably foreseen that someone would later invert the cam during a
       repair, thus rendering the design defective. We agree with the trial court’s determination.

¶ 41                                       II. Proximate Cause
¶ 42       Although our holding above is sufficient to affirm summary judgment, we briefly address
       plaintiff’s proximate cause argument. Although proximate cause is typically a question of fact,
       a court may determine the issue as a matter of law if the evidence shows that plaintiff “would
       never be entitled to recover.” Abrams v. City of Chicago, 211 Ill. 2d 251, 257-58 (2004).
       Proximate cause incorporates two elements—cause in fact and legal cause. Id. at 258.
¶ 43       Plaintiff argues that her deposition testimony provided sufficient evidence to survive
       summary judgment. She testified that the jack “would automatically stop” and “jerk”
       operators. On the date of her injury, plaintiff pulled the machine behind her with her right arm.
       She positioned her right hand and the tiller handle just above her waist. As she walked forward,
       the jack “suddenly stopped” and pulled her shoulder. In her brief, plaintiff contends that her
       injury “occurred as a result of the [jack] stopping suddenly when plaintiff operated the
       machine for its intended purpose; pulling it behind her within the proper ‘F’ range.” She claims
       that her testimony sufficiently shows that the allegedly defective design, which permitted the
       inverted cam, caused the jack to brake erratically or suddenly stop.


                                                   -7-
¶ 44       Plaintiff’s testimony fails to satisfy the “cause in fact” element. Her own expert shoots this
       argument out of the water. Her expert’s findings do not indicate that the inverted cam caused
       the jack to stop erratically; instead, they revealed that the inverted cam decreased the upper
       and lower braking ranges. This means that the alleged defect increased the “F” range within
       which operators could freely move the jack. Although plaintiff testified that the jack suddenly
       stopped, no factual findings or even expert opinions support plaintiff’s argument that the
       alleged defect caused the sudden stop. “The existence of proximate cause cannot be
       established by speculation, surmise, or conjecture.” Majetich v. P.T. Ferro Construction Co.,
       389 Ill. App. 3d 220, 224 (2009).
¶ 45       Plaintiff also failed to present sufficient evidence that she positioned the tiller within the
       “F” range when she sustained her injury. She testified that she pulled the jack behind her and
       positioned her right hand and the tiller handle just above her waist. The jack’s braking system
       engages based on the tiller’s angle, not its height. Plaintiff failed to present evidence
       demonstrating the angle at which she positioned the tiller handle when she sustained her
       injury. Without demonstrating that she, in fact, positioned the tiller within the “F” range, rather
       than the lower braking range, plaintiff cannot recover in this case.
¶ 46       We agree with the trial court that plaintiff failed to present sufficient evidence
       demonstrating that the inverted cam caused her injuries. We affirm the trial court’s judgment.

¶ 47                                       CONCLUSION
¶ 48      For the foregoing reasons, we affirm the judgment of the Kankakee County circuit court.

¶ 49      Affirmed.




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