Opinion
00 C 2184.
March 18, 2002
Savannah May, a four year old child, allegedly severed the tip of her left pinky finger in a pinch-point on a Century Fold-n-Go playard. Defendants have moved for summary judgment. Discovery is not yet closed in this case, thus defendants have limited their motion to the issue of whether Ms. May's alleged misuse of the playard defeats the "unreasonably dangerous condition" element of plaintiffs' prima facie case.
Although plaintiffs rightly state that courts apply federal procedural law and state substantive law in diversity actions, they mistakenly asse rt that summ ary judgment is a substantive rather than p rocedural issue of law and d irect me to apply the Illinois standard for su mmary judgm ent. Because summa ry judgment is a p rocedural issue, I must apply federal law. According to Rule 56 of the Fede ral Rules of Civil Procedure, summary judgm ent is proper if "the pleadings, depositions, answers to interrogatories, 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 judgment as a matter of law." After considering the facts of this case in the light most favorable to plaintiffs, I find that summary judgment is inappropriate because a material issue of fact exists regarding the foreseeability of Ms. May's misuse of the product.
Under Illinois substantive law, to prevail on a products strict liability action, "a plaintiff must establish that (1) the defendant was engaged in the business of selling the product; (2) th e plaintiff was injured by a product that was in an unreasona bly dangerous condition; and (3) that the condition existed at the time the product left the manufacturer's control." Romero v. Cincinnati, Inc., 171 F.3d 1091, 1094 (7th Cir. 1999). "The misuse of a product wh ich will constitute a bar to an action predicated upon strict liability in tort has been ob jectively defined a s a use for a purpose neithe r intended n or reasonably foreseeable by the manufacturer." Gallee v. Sears, Roebuck Co., 58 Ill. App.3d 501, 503 (1st Dist. 1978). Misuse of a product is an accepted defense to a strict liability action-it is not, as plaintiffs contend, "only one issue that is relevant to the issue of proving an unreasonably dangerous condition," nor is its absence "part of plaintiff's proof of an unreasonably dangerous condition," as defendants allege. While plaintiffs correctly iden tify the question of mis use as a question of fact, it is (contrary to plaintiffs' assertions) appropriate for summary jud gment if no gen uine issue exists. In this case, the od ds are that M s. May did misuse the product. However, there is a material issue of fact with respect to the foreseeability of that misuse.
Defendants argue that Ms. May misused the playard by using it with a sagging side rail in contravention of the enclosed instructions and warnings not to do so. Ms. May does not appear to dispute that the warnings in question were clear and unambiguous, or that she read and understood these warnings. The instructions and warnings tell users of the playard that the product should not be used unless all side rails were fully erected and locked. Also included in these warnings is a pictogram that shows the playard with one side rail sagging in a circle with a "do n ot" line through it, and the side rail indicates that failure to follow warnings or instructions may lead to serious injury or death. However, Ms. May argues that she did not misuse the product and contend s that while the dangers of using the playard with a sagging sid e rail are clear, the warnings failed to alert her to the possibility that a sagging sid e rail may appe ar to be locked. Hence, she d id not realize how closely she nee ded to inspect all of the side rails before placing her child in it. Ms. May alleges that when the injury occurred, all four side latches appeared to be fully erect. She presents testimony from her e xpert that "for this particular play yard, it is very difficult to ensure that all four latches are fully engaged and locked" and that the playard "has the characteristic that three of the latches will lock into plac e while th e fouth [sic] member may give the fals e appearance of appea ring to be locked in place when in fact it is not."
This argument would be compelling were it not for Ms. May's testimony that she had used the playard with a clearly sagging side rail prior to an d on the day of the accident. In her deposition, M s. May testified that she used the playard with the side rails unlocked because sh e thought that the danger prese nted in the warnings was that he r child might "flip out" of the playard, "[n]ot that it would amputate my daughter's finger." Ms. May's testimony indicates that she was aware that placing her child in the playard with a sagging side rail did pose a risk of harm to Savannah and that she nonetheless decided to use the product against its enclosed, clearly stated warnings. At her deposition, Ms. May identified an original color photo of the May's playard with a clearly sagging side rail as representative of its condition on the day the injury occurred. Thus, I find a reasonable trier of fact could only conc lude that M s. May did misu se the produ ct. The question remains whether this m isuse was rea sonably foreseeable by defendants. Specifically, the issue is whether it was reasonably foreseeable to defendants that a user of the playard would inte rpret the enclose d instructions an d warnin gs in such a way that she wou ld not be alerted to the possibility of a pinch hazard and would decide to use the product with a side rail sagging, believing the primary risks incurred would be related to the child flipping or falling out. This issue of foreseeability, "as a part of the overall question of m isuse, is for the jury to determine." McCormick v. Bucyrus-Erie Co., 81 Ill. App.3d 154, 162 (3rd Dist. 1980).
For this reason, defendants' motion for summ ary judgment is denied. Accordingly, I am assuming that de fendants will co mply with plaintiffs' agreed request for production unless defendants indicate otherwise.