                                       2019 IL App (1st) 172549
                                             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., 211 Ill. 2d 32, 43 (2004). We review the circuit

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

       Insurance Co., 154 Ill. 2d 90, 102 (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, 181 Ill. 2d 395,

       406 (1998). The subject statement must not be an inference or unclear summary. Serrano v.

       Rotman, 406 Ill. App. 3d 900, 907 (2011). What constitutes a judicial admission must be

       decided under the circumstances in each case. Id. 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.

       Id.

¶ 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., 231 Ill. 2d 516, 525 (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.,

       159 Ill. 2d 335, 344 (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, 231 Ill. 2d at 526-27), 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., 215 Ill. 2d 78, 92-93 (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., 224 Ill. 2d 247, 263-66 (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.,

       2011 IL 110096, ¶ 85. 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., 756 F.2d 26 (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. Id. at 29.

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

       Corp. v. Dresser Industries, Inc., 246 Ill. App. 3d 979, 986 (1993). We find instructive our

       supreme court decision in Rucker v. Norfolk & Western Ry. Co., 77 Ill. 2d 434 (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. Id. at 439; see also

       Moehle v. Chrysler Motors Corp., 93 Ill. 2d 299 (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.,

       201 Ill. 2d 260, 298 (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, 224 Ill. 2d at 256. 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. Id. 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., 284 Ill. App.

       3d 214, 220 (1996). “Foreseeability means that which it is objectively reasonable to expect,

       not merely what might conceivably occur.” (Emphasis omitted.) Winnett v. Winnett, 57 Ill. 2d

       7, 12-13 (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., 284 Ill. App. 3d at 220.
       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., 2012 IL App (2d) 110382, ¶ 8

       (citing DeArmond v. Hoover Ball & Bearing, Uniloy Division, 86 Ill. App. 3d 1066, 1071

       (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., 284 Ill. App. 3d at 221

          (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, 201 Ill. 2d 1, 7 (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.” Id.

¶ 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., 62 Ill. 2d 456, 467 (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., 146

       Ill. App. 3d 78, 80-81 (1986) (citing Ebbert v. Vulcan Iron Works, Inc., 87 Ill. App. 3d 74, 76

       (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, 246 Ill. App. 3d

       1002, 1010 (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, 2019 IL App (1st) 172549


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:
