THIRD DIV ISION May 23, 2007

No. 1-05-2154

KRZYSZTO F SOBCZAK,

Plaintiff-Appellant,
v. GENERAL MOTORS CORP ORATION,

Defendant-Appellee. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Hon ora ble Carol P. McCarthy, Judge Presiding.

JUSTICE KARNE ZIS delivered the opinion of the court: Plaintiff Krzysztof Sobc zak (Sobczak ) filed suit against defendant General Motors Corporati on (GM). His fourth amended complain t alle ged five coun ts against GM: strict product liabil ity (count I), negligence (count II), res ipsa loqui tur (count III), breach of ex press warrant y (count IV), and breach of im plied warranty (count V). The trial court dire cted verdict s for GM on counts II, III, IV and V. The tri al court al so directed averdict f

or GM with respect

to part of So bczak ’s st rict liability claim (count I), but allowed a portion of that claim to reach the j ury. After hearing all of the evidence, th e ju ry fo un d i n f av or of GM. Sob cza k no w ap pe al s. Fo r t he fo ll owi ng re as on s, we1-05-2154

2

reverse and rem and. Sobczak filed a fourth am ended com plaint containing 31 counts against seven defendants, GM , Rizza Chevrolet, Gem ini Conversions, Inc., and four m anufacturers of autom otive parts, for inj uries he s ustained as a res ult of a f ire that ignite d in his YF7 configured 1999 Chevy A stro M/L van . Prior to trial, Sobczak’s claims against six of the defendants were either dismissed or sett led. Sobczak proceeded to trial against GM only. At trial, Sobczak sought to prove tha t GM defectively d esigned the heat shiel ds,
m uff ler a nd f uel m ana gem ent

sy ste m for

theYF7con figu red M/ L va n an d ne glige ntly designed the van’s heat s hields. At the conclusion of Sobcz ak’s case in chief, GM pre sen ted a m otio n fo r a d irec ted ver dict and thetria l cou rt e nte red dire cte d ve rdic ts i n favor of GM and against Sobczak o n Sobczak’s negligence, res ipsa loqui tur , express wa rr an ty an d i mpl i ed war ra nt y c ou nt s. W i th re ga rd to So bc za k’ s s tr i ct l i ab i l i ty cl ai m, the trial court dire cted a verdict for GM except with respect to the all eged desig n defect concerning the fuel m anagem ent system

. Follo w ing t he p res ent atio n of theevid enc e by

GM , th e j ury

ret urn ed aver

dict in favor of GM and against Sobczak o n the rem aining count. This timely appeal followed. BACKGROUND At abo ut 9 p.m ., on A ugust 2 8, 1999, Sobc zak dro ve his fa ther’sChevro let Ast ro van (YF7 configured, M /L m odel) to pick up his cousin Arthur. Sobc zak and Arthur went to two nightclubs over th e course of several hours. Sobczak consumed at least1-05-2154

3

five beers in that time period. Sobczak and his cous in left at 2 a.m. , and went back to So bcz ak’ s ho use . A

t 4: 30 a .m ., A rth ur w

okeSo bcz ak s o th at S obc zak cou ld dr ive h im home. After dropping off Arthur, Sobczak noticed that the van was sluggish and was mak ing noises. He turned onto 51st Street to avoid traffic on A rcher Avenue. The car stalled on 51st Street and S obczak tried to start the car by putting the transm ission into neutral and turning the key. The car started but the m otor sounded like it was “j umping up and down. ” Sobczak put his foot on the brake pedal and put t he van in gear, but the motor died. This occu rred about 10 times in 10 minutes. Sobczak started the van o nce more b ut sm elled something com ing from the back. He clim bed over the seat and w ent to the back bench seat. He knelt on th e bench seat and started to check around w hen the seat ex ploded into flames. His sh irt and hair caught on fire. He felt his way back to the driver’s seat and tried to open t he door. The nex t thing Sobczak cou ld recall was waking up in the hospital one m onth after the accident. S obczak could not recall how he ended up in the passenger seat where firefighters found himnor whether h e attem pted to unlock the van's doors

. Sever al residentssaw

the va n on fire. Jan Wyka was gett ing ready f or work when he heard a bang. He w ent to the w indow and saw both sm oke and flam es com ing from beneat h the van. Wyka’s daughter called 911 and Wyka attempted to put out the fire using his garden hose but it was too short. A s W yka approached the va n, he he ar d a l ou d b an g a nd gl as s b re ak i ng . H e r et re at ed be ca us e t he fl ame s b ec ame1-05-2154

4

too intense. Michael Dinkel was sleeping on the m orning of August 28, 1999, but was awakened a bout 6 a.m . by a loud noise. Dinkel went outside and saw the van on the street. As hewas looking at the van, the ex haust system began glowing red and the van ignited. Firefighters arrived at the scene and Dinkel saw them break the passenger side window, unlock the door and rem ove Sobczak. David Atkocaitis, a lieutenant with the C entral Stickney Fire Departm ent, responded to the fire involving Sobczak. U pon arriving at the scene, he w as notified tha t th e dr iver

w as s till in sidethevan . H e ap pro ach ed t he van to loo k ins ide a nd d id not see flam es but felt a lot of heat and saw a lot of sm oke. After the window of the van was broke n, Lieutenant Atkocaitis could see S obczak on the front passenger seat of the van. Sobc

zak wa s rem oved from the van and transported by am bulance to McNeal Hospital. Dr. Richard Gam elli, the director of Loyola Hospital’s burn center, treated Sobczak after he was t ransferred from McNeal Hospital. So bczak had burns ove r 40% of his body, i ncludi ng severe burns to his face, neck, ri ght arm and hand, left arm, back and thighs. A tox icology screening done at Loyola at 7:24 a.m . on August 28, 1999, showed S obczak’s blood alcohol level to be .157. John Orisini, the head of the fire and arson investigative unit for the Cook County sheriff’s police, testified that he w as assigned to investigate the Sobc zak van fire to determine the cause of the fire. Orisini determined that t he fire started near the1-05-2154

5

rear tire on the passenger side. He drew this conclusion based on the fact t hat the metal in that area was ex posed and w hitening occurred. There was also ev idence of heavy burning in the area of the kickup and t he rear wheel. The carpet padding in front of the t wo r ear seats was com pletely burn ed away. N orm ally, the carpet w ould not b urn away u nles s th e he at w as com ing f

romund ern eat h th e pa ddin g or a fl am m ableliquid
was us ed. Orisini found no evidence of a flam mable liquid. Based on his investigation, Orisini concluded that the fire started underneath the van either in or near the m uffler and the heat had conduc ted up through the flooring and traveled inside the van. Orisini observed a hole in the m uffler at the seam and saw that the alum inum heat s hield had melted off. Dennis Himm ler is a GM senior staff engineer w ho has investigated over 1,000 vehicle fires. Himm ler inspected Sobczak’s van on two occasions prior to trial. Based on his inspection, Him mler testified that overheat ing in the exhaust sys tem in the van could have only occurr ed gradual ly. The exhaust system could not have overheated sim ply by starting the engine, allowing it to idle or revving it several times. The only way the exhaust s ystem could have overheated w ould be by repeated acceleration of the engine to 5600 revolutions per m inute (RPM), the level at which the buil t-i n rev l imiter would ha ve enga ged an d slo wed the eng ine. This constan t RPM cyc ling w

ould hav e overw helm ed t he cata lyti c c onv ert er a nd t he e xh aus t sy ste m w ould have overheated and sta rted transferring heat to other com ponents w ithin 10 minutes. Himm ler found evidence that the ex haust system overheated fromRPM cycling:1-05-2154

6

(1) the exhaus t systemcom ponents had “blued”; (2) the m uffler had opened at the
seam ; (3) the heat shield attached to the muf fler had melted; and (4) t here were carbon deposits on the spark plugs. A ccording to Himm ler, Sobczak should have been alerted to the overheating by the loud noises and thesm oke that w ould have been em anating from the van. Charles Raber testified that he has been e mployed by GM since 1978 and is the lead design engineer for the full-size truck platform fuel system . From 1996 to 1999, he
wasa staf

f proj ect eng ineer and w orked on the M /L van fuel sys tem s. Test s are performed on GM vehicles to m ake sure that vehicles released to the public are safe. One of the tests performed on a vehicle is an underbody tem perature test. This type of test provided informa tion regarding the fuel system and other system s in the vehicle. Temperature bogeys or overtem peratures are tem perature levels that GM has s et and determ ined should not be exceeded during the underbody tem perature test. If a temperature bogey is exceeded, i t is revi ewed by GM engineers. DIRE CTED VER DICTS Sobczak first argues that the trial court erred in directing verdicts in GM’s favor. Specifica lly, Sobczak cl aims that the trial court erred i n directi ng a verdict with r espect to h is s tric

t liab ility clai m rela ting to t he v an’ s he at s hield ing a nd w ith r esp ect to h is negligence claim based on the van ’s insufficient heat shielding. During ora l argum ent, GM argued t hat So bczak raised th e issue t hat GM ’s Y F7 configuration was defect ively designed, in that GM rem oved the tailpipe and muffler1-05-2154

7

heat shields and chose to insulate those areas w ith insulated carpet padding, for the first tim e on app eal. Our re view of the r ecord in t his caseleads usto a co ntrary conclusi on that we will di scuss at length i n our discussi on of Sobczak’s clai ms. At trial, Sobczak pursued his claims for negligence and strict products liabil ity bas ed o n de sign def

ect . S obc

zak ’s the ory

of t he casew as t hat

GM had (1)def

ect ively designed the van’s heat s hields, muffler and fuel m anagem ent system ; and (2) negligently designed the van’s heat shields. Specifically, Sobczak’scase rested on the testimony

of num erous GM em ployees, as well as two ex pert witnesses, Donald Rudny and Cha rles Colver

. David Ukrop testified that from1997 to 1999 he w as an engineering group manag er at GM. H e was res ponsible for three functions-design, validations and release. In other words, he was responsibl e for the desi gn of the muffler for the exhaust system , testing of the design, and m ainstreaming the des ign. If for som e reason the design did not pass a test, a report would be issued. That p roduct would be retes ted and would not be allowed to go into the streamof com merce until it passed. One of the Ast ro van configurations, the YF7 conf igured M/L van, the s ame van purchased by Sobc

zak’s father, w

as for recreational vehicle upfitters. These vehicles
were m arketed to famili es. The YF7 confi gured van l acked two heat shiel ds, the bodyattached m uffler heat shield and the tailpipe heat shield, that were included on other configurations of 1999 Astro van. Ukrop agreed that th e absence of the tailpipe heat shield and the body-attached m uffler heat shield would expos e those areas to greater1-05-2154

8

heat than m odels that had those heat s hields. A design failure mode ef fects and analysis (DFMEA) is a process w hereby GM determ ines what w

ould happen if certain parts of the ex haust system failed and what hazards would be caused by the failure. Ukrop tes tified to a DFMEA that evaluated the loss of the insulation capability of the muff ler body-attached heat shield. GM determ ined that the cause and effe ct would be underbody com ponents overheating,
sm oke, steamor fire and/or the com ponents can deform , m elt, boil, etc. Kevin Horton testified in an evidence deposition that he w orked for GM developing the thermal aspec ts of products, including the M/ L van. Horton initiated a report in connection with therm al testing of the YF7 configuration of the M /L van relating to the floorpan overtempe rature condition. The therm al testing also showed overtem perature limits for the bottom of the foamnear the kickup and the su rrounding area. When Horton issued this report, he was aw are that one of the paths of fire into the passenger com partme nt is via heat transfer fromme tal structures, such as the floorpan, to com bustible materials in contact w ith the floorpan, such as foamcarpet padding. Horton was also aware tha t if an overtem perature condition occurred for the foam padding for the carpet, a safet y concern w

ould exist that w

ould need to be addressed. Horton received a response to this report that indicated the insulation mat underneath the foampad absorbed any heat be ing transferred from the m etal floor to the carpet. How

ever, only portions of the floorpan were covered w ith the insulation1-05-2154

9

material. Consequently, the response did not fully address the co ncern of overtem perature conditions of the foamma t. Horton also testified that he understood tha t the YF7 configuration of the M /L
van wasmissing the m uffler heat shield and the tailpipe heat shield. Horton testified that these heat shields w ere required to limit tem peratures in the passenger
com partm ent of t he van. GM w as aw are that there w as a potential for overtem perature conditions of the foam pad. Antoinette Jablonski testified that she w orked in the exhaus t systemarea for GM during 1997-98 and worked o n M/L vans. During that tim e, warranty claims w ere being lodged against GM for the Y F7 upfitter configuration for a general rattle on the rear heat shield. Jablonski had a conversation w ith her supervisor regarding the removal of the tailpipe heat shield and the muffler heat shield from the M/L va n based on requests from conversion com panies trying to accom modate certain seating options. Her supervisor told her that he believed som e of the converters w ere altering those shields
or remov ing them completely, w hich GM believed to be a safety hazard. If a heat shield is lost or removed, there is a potential for igniti on of a vehicle. Body-m ounted heat shields would deflect heat dow nward and w ould disburse it. GM instructed the converters that they

should not m odify or alter the exhaust system , including by removal or alter ation of the heat shiel ds, because the exhaust system could reach extrem ely high temperatures under extrem e operating conditions. GM, how ever, decided to rem ove the tailpipe heat shield and the muff ler heat1-05-2154

10

shield and replace those shields with an insulated m at. The insulated m at was intended to serve as an alternative to the des ign involving the two rear body-m ounted heat shields. Thermal test ing of the YF7 configured M/ L van showed floorpan overtem perature s. In 1 999, w hen So bczak ’s fat her purc hased t he M/ L van, it was YF7 configured, m eaning that it did not have the tailpipe or muffler heat shield. Linda Kajm a testified that she had been em ployed by GM since 1985. During the period of 1996 to 1998, she w as a design release engineer and wasresponsible for the interior design of the floor coverings for the M/L vans. Although she w as not involved in the decision, she was aw are that there was a proposal to rem ove two of the heat sh ields on theYF7 co nfiguration and usean insulate d carpet pad. U pfitters were made aware of th e change through a docum ent entitled “Docum ent for Incom plete Vehicle.” At t ri al , Ka jma de ni ed th at th e ca rp et pa d f or th e M/ L va n wa s mad e o f l owdensity polyethylene foam despite testifying to the contrary at h er deposition. It was de si gn ed to go un de r t he ca rp et us ed by th e u pf i tt er s. At he r d ep os i ti on , K aj ma testified t hat theinsulation did n ot under lie the entire f oam pad. I nstead , there were two squa res of insulation; one located above the m uffler and one located in the area of the catalytic con verter. Kajm a was involved in therm al testing of the YF7 configured design. The test ing was perform ed under different test conditions, including outdoor tem peratures. The results included overtemperatu res m easured at the bottom of the insulation pad at the1-05-2154

11

muf fler front center. In addition, wh ile the vehicle was in idle, almost all the areas where the f

oam pad was tested had an overtem perature condition. Kaj ma looked at the foampad follow ing testing and not iced that it wa s shiny. Shininess can indicate a form of m elting. So bcz ak id ent ified Don ald R udn y as an e xp ert

w itne ss and disc lose d in h is answer to Rule 213(g) interrogatories (177 Ill. 2d R. 213(g)) that Rudny w ould testify that the shielding provided in the muffler area w as insufficient because it was made of aluminum rather than ferritic stainless steel. The m elting point of aluminum is 1220 degrees, making al uminum a poor choice of material for shield ing, gi ven that exhaust gas tem peratures exceeding that tem perature are foreseeable and would melt an aluminum shield. In addition, Rudny would test ify that the insulation intended to replace th e removed tailpi pe and muffler heat shi eld in the YF7 configu ration were al so insufficient to guard against heat transfer to the floorpan. Prior to Rudny's testim ony at trial, GM filed a m otion in li mine to prevent him from testifying that the van’s he at shielding was defective becauseit was m ade of aluminum rather than stainless steel. Defendant argue d that Rudny’stestimon y should be
exclud ed b eca useRud ny " faile d toper for m any tes ting to d ete rm ine w het her a fe rrit ic stainless steel muff

ler attached heat shield would have bette r prevented the transfer of heat from the m uffler." The trial court granted GM’s m otion to prevent Rudny from testifying in this regard.1-05-2154

12

Also prior to Rudny's testim ony at trial, the parties and the court had a discussion regarding the remainder of his tes timony. Sobczak argued t hat the m otion in li mine did not prevent Rudny from testifying at trial, as he did in his deposition, that the rem oval of two of

the heat shields in the YF7 configured M/ L van left the shielding system insufficient to prevent the ignition of a com bustible body, i.e. , the foam padding. GM argued that, during the deposition, Rudny never offered an opinion about the heat shielding sys tem other t han to o pine that it was insufficient

becaus e the s hields were made of aluminumrather than steel, an issue that th e court ruled Rudny could not tes tify to. The cou rt took

them atter u nde r ad vis em ent and thepar

tiesagr eed to r evis it the issue in connection with a m otion for a directed verdict. W ith respect to the heat shielding system , Rudny testified at trial that the standard of care w ithin the engineering industry is “when you indentify a potential hazard t hat aff

ects t he safe ty to t he pass engers, you nee d to gua rd against that ha zard and prevent i t from causing some risk or danger to th e occupants of the vehi cle.” He also testified at length regarding a breach in the exhaust s ystem of this particular model where the exhaust gas temperature reached i n excess of 1400 degrees. W ith respect to the heat shields, Rudny tes tified that the heat shielding needs to be able to withstand those tem peratures. Rudny es sentially testified that the heat shielding system w as defective in two respec ts. Rudny tes tified that the M/L van w ith the YF7 configuration, i.e. , the M/L van without all four heat shields, was insufficient because it was not able to
w iths tan d th e te m per

atu resof t he e xh aus t ga s th at w ould be e xp elling fro m a br eac h in1-05-2154

13

the exhaus t system . Because th is shielding system w as inadequate, the standard of
care was breached. Rudny testified that he w as aware t hat, in the 1999 m odel year, the heat shielding for the upfitter configuration for the M/L van, the Y F7 configuration, the tailpipe and muffler body-attached heat shields were rem oved and replaced w ith insulation. He further testified that rem oving the tailpipe and muffler body-attached heat shields and replacing them w ith insulation decreased the guarding of the heat shield system and would not elim inate the hazard created by the exhaust ga s escape. Concluding his testimony, R udny stated that “theshielding” would have been a proxim ate cause of S obczak’s inj uries. On cross-examination, Rudny testified that the purpose of heat s hielding i s “to reduce radiant and convective heat to com ponents that m ay be subj ect to com bustion
or excessivetem perature s.” If the tem peratureis high enou gh, heat transf er can o ccur, causing the ignition of materials that m ay lead to a fire. Rudny adm itted that with respect to heat m anagem ent system s, he did not look at a design by another manuf acturer for the 1999 m odel year. Following Rudny’s testim ony, GM m oved to have Rudny ’s testim ony stricken from the record w ith respect to the heat shielding systembecause Rudny f ailed to identify a standard of care in the autom otive industry applicable to the 1999 mode l year with respect toheat m anagem ent system s. The court indicated that Rudny failed to articulate a standard of care w ith regard to the shielding other than saying the shielding1-05-2154

14

was defe ctive because it did not prevent heat from being transferred. How ever, the court did not rule on GM’s mot ion. Plainti ff identi fied Charl es Colver as an expert opi nion witness i n plai ntiff’s
answ ersto S upr

em e Co urt

Rul e 21 3(g ) interr

oga tor ies. Pla intif

f dis clos ed C olve r would testify at trial regarding the standard of care; the defe cts in the van, including the
m uffler des ign, heat shielding and a ir-fuel m anagem ent system ; GM ’s failure to wa rn conversion com panies of the dangers of rem oving the heat shields and insulation material; and the cause of the fir e. Specifica lly, Col ver would opin e that the van’s muffler seam w

as inadequ ate to withstand forese eable pr essures and shoul d have been welded instead of c rimped. Furtherm ore, Colver would opine that a hole in the muf fler was foreseeable but t hat the YF7 configuration, w hich removed two heat shields and replaced them with insufficient insulation material, did not provide sufficient protection for the foreseeable high tem peratures generated by a hole in the m uffler. During voir di

re, Colver testified that he has a doctorate in chemical engineering and has studied m athem atics, general engineering and mechanical engineering. Colver had published some articles that touched on the issues of com bustion and heat transfer and, therefore, had o pinions in this case regarding the muffler. Colver w ent on to explain that a m uffler is a vessel which is fabricated to w ithstand certain conditions. Param eters are established for the operation of the m uffler, which is a pass-through vessel. Colver had been involved in num erous cases that ha ve involved vessels and was fam iliar with the design process of spot w elding, banding and supporting vessels.1-05-2154

1 A d i re ct ed ve rd i ct was al so en te re d wi th re sp ec t t o S ob cz ak ’s war ra nt y c l ai ms 15 Colver also had an opinion regarding guarding which relates to fuel cutoff. Fuel cutoff is sim ply a high temperature limit switch that senses tem perature at a particular point. This switch produces avoltage which can ope n or close the valve. In this case , the fuel delivery system valve would be closed w hen a high tem perature is reached. Colver acknow ledged that he was unaware of the horsepower of the van and did not know if he had afuel cutoff valve in his car. He also adm itted that he had never des igne d an ex hau st s ystem , ha d ne ver des igne d a s ystem for m aintainin g co m for

tab le floor temperatures

in a vehicle, had never designed any vehicle system , had not tested any of t he com pon ents in thiscas e an d ha d no t do ne a ny test ing o n an y c om pon ents in the industry that w

ould be generally relevant to the 1999 m odel year. Following voi

r di re , the trial court found that Colver’s testimony was “barred on the whole thing” because “[h ]e doesn’t have competence to testify about th is particular vehicle.” At the close of S obczak’s cas e in chief, the court directed a verdict in favor of GM and against S obczak w ith respect to Sobcz ak’s strict liability clai m relating to the heat shielding. The court ruled that Rudny’s conc lusions that: (1) the shielding that was taken off was insufficient; and (2) the shielding that was put on was insufficient, were spec ulative without having conducted any tests. The court a lso entered directed findi ngs for GM with regard to Sobczaks' 1 negligence claims relating to the van’s fue l1-05-2154

but Sobczak d id not dispute the propriety of that ruling in the trial court, nor does he raise that issue before this court. Si milarly, Sobczak doe s not dispute th e trial court’s ruli ng directi ng a verdict fo r GM on his res ipsa count but sta tes tha t the t rial court gra nte d th e m otio n on tha t co unt becaus e it fou nd t hat

So bcz ak could not

pro ve s im ple negligence. 16 managem ent system and heat shield ing. The cou rt found that Rudny fa iled to identi fy a standard of care within the i ndustry. A directed verdict should be granted only if all of the evidence, viewed in the light most favo rable to the nonm oving party, so overw helmingly favors the m ovant that no contrary verdict could stand. Pedric k v. Peori

a & Eastern R.R. Co. , 37 Ill. 2d 494, 510 (1967). We review the trial court’s order granting a directed verdict to defendant de novo

. Susni

s v. Radfar

, 317 Ill. App. 3d 817, 825-26 (2000).

1. Stri ct Liabi lity A plaintiff may es tablish a strict liabil ity claim based on a de sign defect in one of two w ays; the consum er-expectation test or the risk-utility test. Calles v. Scri pto-Tokai Corp. , 224 Ill. 2d 247, 255 (2007), citing Lamkin v. Towner , 138 Ill. 2d 510, 528 (1990). The consumer-expectation test provides tha t a product is “ unreasonabl y dangerous” when it is “dangerous to an extent beyond that w hich would be contem plated by the ordinary consum er who purchas es it, with the ordinary know ledge comm on to the
com munity as

to its characteristics.” Restatem ent (Second) of Torts § 402A, Com ment i ,1-05-2154

17

at 352 (1965). Under the risk-utility test, a plaintiff must dem onstrate that a design defect exists by presenti ng evidence that the risk of d anger in herent in the design of th e product outweighs the bene fits of the design. La mkin , 138 Ill. 2d at 529. In other w ords, “[t]he utility of the design must t herefore be weighed against the risk of harm created” and “[i]f the likelihood and gravity of the harm outw eigh the benefits and utilities of the product, the product is unreasonably dangerous.” 63A Am . Jur. 2d Products Li abili ty §978, at 146-47 (1997). Sobczak claim s that he sought to establish at trial that the van’s heat shields
weredefect ive becau se the particular de sign conf iguration of

the va n, the Y F7 configuration, eliminated two he at shields found on other GM models and because the heat shields were m ade of aluminumrather than steel. Sobc zak wa s prevented from pursuing the latter theory because Rudn y’s testim ony on this issue was precluded by the court’s granting of GM ’s m otion in li mine

. a. Consumer-Expectation Test So bcz ak a rgu es t her

e was s uff

icien t ev iden ce p res ent ed to es tab lish tha t his i nj ur i es wer e t he re su l t o f t he un re as on ab l y d an ge ro us co nd i ti on of th e v an at th e t i me the van left GM’s control . Sobczak asserts that admissions made by several of GM’s engineers who w

ere involved in the design of the YF7 configuration and the release of that design to the public established that the van’s heat shielding was defective. GM responds that Sobc

zak did not introduce any evidence to es tablish that the heat1-05-2154

18

manag ement

systemshould have been able to w ithstand the ext reme conditions generated by abnorm al use, i.e. , Sobczak’ s continued revving of the engine. As previousl y stated, a plai ntiff may prevail under the consumer-expectatio n test if he or she can dem onstrate that the produc t failed to perform as

an ordinary consum er would ex pect whe n used in an intended or reasonably foreseeable m anner. Calles , 224 Ill. 2d at 256. There was som e discussion at oral argume nt as to w hether the plaintiff m ust es tablish a de sign defe ct prior to the ap plication of t he cons um erexpectation test . A plain reading of the language in Calles leads us to find that the pl ai nt i ff ne ed no t. Fu rt he r s up po rt fo r o ur co nc l us i on co mes fr om Johnson v. Amerco , 87 Ill. App. 3d 827 (1980), w herein the court relied on the principal that “[a] pr ima fa cie case that a product was defe ctive and that the defect existed w hen it left the manuf acturer's control is m ade by proof that in the absence of abnorm al use or secondary causes the product failed to perform in the man ner reasonably to be expected in light of its nature and intended func tion." Johnson , 87 Ill. App. 3d at 829. The purpose of the heat sh ielding system is to disburse and def lect any heat created from the operation of the vehicle awa y from the vehicle. Num erous em ployees of GM test ified that the YF7 configuration of the M/ L van had a different heat shielding system than other m odels of the 1999 Astro van. Whi le other models of t he Astro van had four heat shields, the YF7 conf iguration only had two. In place of th e tailpipe and muf fler heat shield, GM chose to us e insulated foam m atting to be placed under the carpet installed by the upfitters. This foam ma tting was designed and tested by GM

.1-05-2154

19

Upon application of high temperaturesduring thermal testing, the foam ma tting exhibited si gns of melting. Rudny testi fied that re moving the tail pipe and muffler bo dyattached heat shields and replacing them with insulation decreased the guarding of the heat shield system and would not elim inate the hazard created by the exhaust ga s escape. Clearly, an ordinary consum er purchasing an M/L va n would give little or no thought to the heat s hielding system selected by GM, but w

ould expect that little or no heat would be transferred from underneath their YF7 configured M/ L van into the vehicle compartm ent. The question is whether S obczak used the M /L van, i.e. , the heat m anagem ent system , in a reasonably foreseeable m anner. That is, should GM have contem plated and tes ted thesaf

ety of Y F7 configur

atio n todeterm ine if

it c ould w iths tan d ce rta in te mper at ur es cr ea te d b y fo re se ea bl e o pe ra ti on s? Con tr ar y to GM’ s as se rt io ns , we believe that the answer is ye s. It is difficult to say that S obczak’s use of the M/L van
w as a bno rm al or

unr eas ona ble o r un for

ese eab le. It is

rea son ably

for ese eab le th at if the M /L van stalled, an ordinary consum er would m ake num erous at tem pts to restart the van w ithout muc h thought as to w hether the heat shielding system would w ithstand the high tem peratures that m ay be created by revv ing the engine. Specifically, an ordinary consum er would ex pect his M/L van either to start or not to start, but would not expect t he interior of the van to ignite. A directed verdict should be granted only if all of the evidence, viewed in the1-05-2154

20

light most favo rable to the nonm oving party, so overw helmingly favors the m ovant that no contrary verdict could stand. Pedric k v. Peori

a & Eastern R.R. Co. , 37 Ill. 2d 494, 510 (1967). We do not beli eve that the evidence presented on this issue so favored GM as to prec lude a verdict for Sobczak. b. Risk-Utili

ty Test Sobczak argues that, i n the alter native, he was requi red to show that the van’s design proxim ately caused his injury and “ ‘on balance, the benefits of the challenged design out

weigh the risk of dange r inherent in such d esigns.’ ” Blue v. E nvironmental Engin eering Inc ., 345 Ill. App. 3d 455, 466 (2005), quoting La mkin , 138 Ill. 2d at 529. Sobczak asserts that he i ntroduced extensi ve evidence fr om w hich the jury coul d have concluded that the defecti ve heat shiel ding was the proximate cause of his i njury. Because w

e have determ ined that the trial court improperly directed a verdict for GM on the issue of

strict liabil ity relating to the van’s heat shielding, we need n ot analyze Sobczak’s

claim under the risk-utility test. How ever, in reading the portion of therecord con tain ing t he t rial cour t’s find ingson G M’ s m otio n fo r a d irec ted ver dict , it is clear that the trial court failed to ultimately consider that, in addition to his opinion that the heat shields should have been m ade of ferritic steel rather than aluminum , Rudny al so op i ne d t ha t t he he at man ag eme nt sy st em, i.e. , the YF7 configuration, was insufficient to withstand the high tem peratures that w ould be potentially created by the failure of the exhaust sy stem

. 2. Negligence1-05-2154

21

To establish a product liabili ty action on a claim based on negligence, "a plaintiff
mus t establish the existence of a duty of care ow

ed by the defendant, abreach of that duty, an injury that was proxim ately caused by that breac h, and dam ages." Calles , 224 Ill. 2d at 270. A product liability claim rooted in negligence is concerned with both defendant’s fault and the condition of the product. Coney v. J. L. G. Industri es, Inc ., 97 Ill. 2d 104, 117 (1983). "A m anu fac

tur er h as anon dele gab le du ty to pr odu ce apro duc

t th at is reasonably safe for all intended uses." Hansen v. B axter Heat hcare Corp. , 198 Ill. 2d, 420, 433 (2002). The crucial questions are w hether the m anufacturer exercised
reasona ble care in t he design of the p roduct and “ ‘ whe ther in theexe rcise of o rdinary care the m anufacturer should have foreseen t hat the design w ould be hazardous to
som eone.’ ” Calles , 224 Ill. 2d at 271, quoting Am erican Law of P roducts Liability 3d §28 :48 , at

28- 66 ( 199 7). A p laint iff m ust show tha t th e m anu fac

tur er k new or s hou ld have known of the risk posed by the design at the time of the manufacture to establi sh that the m anufacturer acted unreasonably bas ed on the foreseeability of harm

. Calles, 224 Ill. 2d at 271. As discussed in the strict liability section, there was enoug h evidence with respect to w hether the design of the heat m anagem ent systemof the M/L van was defective to p reclude a directed ver dict. Similar ly, there was enough evi dence presented w ith respect to foreseeability , i.e. , GM’s knowledge of the potenti al ri sks posed by the YF7 configured heat shielding system, that enough questions ex ist as to1-05-2154

22

whether GM exercised reasonable care in the des ign and manuf acture of the heat shie lding sy ste m of t he Y F7 configur ed M /L van to pr

eve nt t he d irec

ting of aver

dict in GM’s favor. Furthermore, we do not agree with the trial court’s finding that S obczak’s ex pert, Donald Rudny, failed to identify specific industry standards of care fo r the particular def ects heattem pte d toiden tify . D avid Uk rop , te stif ied to a s im ilar, if n ot id ent ical, standard of care in the engineering industry. JURY’S VERDICT Sobczak next claims, in less tha n one page, that the jury’s verdict was against the m anifest weight of the evidence. However, Sobczak’ s conclusory and undeveloped argument

does not m eet the requireme nts of Suprem e Court Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7)). The lack of developm ent leads to waiver of the issue. Tri-G, Inc. v. Burke, Bosselman & Weaver , 353 Ill. App. 3d 197, 213 (2004). EVIDENTIARY ISSUES Sobcz ak claim s that the trial co urt abus ed its disc retion on s everal ev identiary issues: (1) in refusing to exclude evidence of Sobczak’sintoxication; (2) in allowing GM to refer to intoxication evidence during opening statem ents; (3) excluding the testimony of Char les Colver; and (4) e xclud ing portionsof Don ald Rudny ’s tes tim ony. We are aware that resolution of these evidentiary issues m ay be irrelevant, given the fact that
we are rem anding this case to the trial court on other issues, but resolve them nonetheless.1-05-2154

23

Plaintiff first argues that the court erred w hen it denied his motion in li mine seeking to bar Dr. Long’s testimony regarding Sobczak’s intox ication or referencing blood alcohol levels. "Evidence of a plaintiff's intoxication is relevant to the ex tent that it affects t he care that he takes for his own saf ety and is therefore adm issible as a circumstance to be weighed by the trier of fact in its determ ination of the issue of due care." Marshall v. Osborn , 213 Ill. App. 3d 134, 140 (1991). Although highly probative, evidence of alcohol consumption is al so extremely prejudicial ; therefore, "a ctual i ntoxication must be established, indicating physical or mental capabilities." Sandburg-Schiller v. Rosello , 119 Ill. App. 3d 318, 331 (1983); Biel aga v. Moz

dz eniak , 328 Ill. App. 3d 291, 296 (2002). Intox ication is a question of fact for the j ury to determ ine. SandburgSchi ller , 119 Ill. App. 3d at 331, 456 N.E.2d at 202. W here there is no evidence of intoxicati on, evidence of consumption of alcoho l is consi dered ir relevant but such irrelevant evidence is not grounds for reversal unless it prejudiced the j ury's verdict. Biel aga , 328 Ill. App. 3d at 296. The ad mission of evidence is w ithin the discretion of thetria l cou rt a nd w

e w ill not rev ers e th e tr ial c our

t un lesstha t dis cre tion w as c lear ly abused. Gill

v. Foster

, 157 Ill. 2d 304, 312-13 (1993). Mo re t han m ere drin king w as s how n he re. Dr. Chr isto phe r Lo ng, a fo ren sic toxicologist, provided expert testimony based on blood alcohol level tests that Sobczak was intox icated at the tim e of the accident. E xpert test imony and e vidence from blood alcohol tests are adm issible to establish intoxication. Wade v. Cit y of Chi cago Hei ghts ,1-05-2154

24

295 Ill. App. 3d 873, 886 (1998), following Marshall , 213 Ill. App. 3d at 141. D r. Long testified that Sobczak’ s blood alcohol was tested a t 7:24 a.m ., approxim ately 90 minutes af

ter the incident, at Loyola Hospital and showed that Sobczak had a blood alcohol level of .157. At the tim e the testing was done, Sobcz ak wasintoxicated. Dr. Long was asked to conduc t a retrograde analysis to determ ine what Sobczak’s blood al cohol l evel would have be en at 6 a.m. that same m orning. To make this determination, Dr. Lon g looked at the tim e of the blood draw, the blood concentration, the tim e of the accident and w hat Sobczak s tated in his deposition that he was d oing just prior to the incident. B ased upon all of this information, Dr. Lo ng opined that at 6 a.m . that m orning, Sobczak’s blood alcohol level would have been .184. A person w ith a blood alcohol level of .184 would be significantly impaired, suffering conditions including mental confusion and loss of gross m otor control, and could becom e sedentary or sleepy. One could expect to find that level of blood alcohol in a person whohad con sum ed 12 to18 beers over th e cours e of theevening. Dr. Long opined that Sobczak ’s m ovem ents around the vehicle after he sm elled something burning, his position in the front passenger seat and his failure to exit the va n prior to the fire all demonstrate S obczak’s m ental confusion. Dr. Long conc luded that Sobczak’sfailure to exit the van w as due to the seve rity of his intoxication. Dr. Long testi fied to a rea sonable de gree of medical cer tainty that Sobczak’s blood al cohol l evel was .184 at the ti me of fire and this l evel of i ntoxication would have1-05-2154

25

impaired his critical judgm ent and m otor control. This information w as highly relevant to the issue of w hether Sobczak’ s injuries were caused by a condition of the van or by Sobczak’soperation of the van w hile intoxicated. Consequently, we find that the trial court did not abuse its discretion in denying Sobczak’s mo tion in limi

ne to exclude such evidence. Plaintiff next contends t hat he was denied a fair trial when defense counsel made improper com ment s during his opening statem ent that seriously prejudiced plaintiff. Specificall y, plaintiff states that defense cou nsel improperly rem arked on the numbe r of beers that plaintiff consum ed the evening of the incident. A rev iew of the record in this case show s that plaintiff failed to object to the comm ents m ade and therefore has waived this issue. Hilgenberg v. Kaz an , 305 Ill. App. 3d 197 (1999). Sobczak nex

t argues that the trial court erred in excluding the testimony of Charles Colver and portions of the testim ony of Donald Rudny. Sobczak claim s that the exclusion ofColver’s testi mony w as devastatin g to his case where he would have established the existence of a design defect in the m uffler and would have bolstered and expanded u pon Rudny’s opinions regarding the design defects in the van’s heat shiel ding and fu el management system s. Further, Sobczak ur ges, Colver would have established the proxim ate cause of the f ire. Sobczak also argues that portions of Donald Rudny’s test imony w ere improperly excluded where Rudny would have tes tified that the van’s m uffler-attached heat shield was de fective because it was m ade of aluminum and would have op ined regarding an alternative design using ferriti c steel. A1-05-2154

26

lengthy recitation of Colver’s and Rudny’s testimon y was included in the “directed verdict” section. Expert testimony

is admissible if the exp ert is qualified as an expert by knowledge, skill, experience, training, or education and the testimony will assist the trier of fa ct in underst anding the evidence . Turner v. Wi lli ams , 326 Ill. App. 3d 541, 552 (2001). A circuit court's ruling on the adm issibili ty of ex pert testim ony will not be disturbed absent an abuse of discretion. Carlson v. Ci ty Constructi

on Co. , 239 Ill. App. 3d 211, 239 (1992). Following voi r di re , the trial court found that Colver’s testimony was “barred on the whole thing” because “[h ]e doesn’t have competence to testify about this particular vehicle.” The court further stated that in accordance with Volpe v. Iko Industri

es, Ltd. , 327 Ill. App. 3d 567 (2002), Colver w ould be barred from testifying because, “[h]e doesn’ t even know how big of an eng ine it is. He hasn’t done any testing. He’s never designed any system s. He has an op inion about the muff ler. The muffler, he has never l ooked at.” In addi tion, the cou rt excluded porti ons of Rudny’s testimony findi ng that Rudny fai led to arti culate a stand ard of care i n the industr y. Sobczak argues that the trial court m isunderstood the holding in Volpeto stand for the proposit ion that Col ver’s and porti ons of Rudny’s testimony were inadmissibl e unless they had personally perform ed tests as a bas is for their opinions. In Volpe , the plaintiff filed suit against the defendant alleging product li ability claims after the plaintiff was severely burned w hile at work w hen the top of an ox idizer tank blew and hot

asphalt spewed out of the ruptured openings and onto the plaintiff.1-05-2154

27

Prior to trial, the defendant filed a motion to s trike an expert's opinion testim ony on the basis that the ex pert was not qualified to render an opinion regarding the oxidizer tank’s design. The defendant argued that the ex pert adm itted that he had never designed or seen an ox idizer tank or a deflector device. The defendant also argued the expert’ s testim ony should be stricken because hewas of the wrong professional discip line and was not qualif ied to rend er an opin ion rega rding the oxidizer tank’s design. The plaintiff responded and argued that the ex pert was qualified to render an expert opinion regarding the oxidizer tank at issue given his experience w ith tanks and vessels that hold chem icals. The plaintiff further argued that the expert sh ould be allowed to com ment

on the configuration of the piping because it could explain how the rupture occurred. The Volpecourt found the trial court did not abuse its discretion in exc luding the
ex per t te stim ony

becaus e th e ex per

t op ined tha t th e pr

odu ct w as d efe ctive be cau se it lacked an alternate design without having built a prototype or co nducted any tests

. Volpe , 327 Ill. App. 3d at 577. Furtherm ore, the court found that the expert admitted that he had not designed a deflector dev ice of the type he testified should have been installed on the tank and had never seen suc h a device. W e f i nd th i s c as e d i st i ng ui sh ab l e f ro m Volpe . In Volpe, the trial court excluded the testim ony of the ex pert because it was based solely on his opinion and not on any conclusive testing. In the case a t bar, both ex perts testified that, although they did not conduct their own tests, their opinions were bas ed on the review of the tests conduc

ted1-05-2154

28

by GM. C harles Colver disclosed in the interrogatories and during voi r di re that he had based his opinion on his experience and education, various treatises, testing conducted by GM and GM’spublications. Similarly, Rudny testified that his opinions
w ere bas ed o n histra ining and ex per tiseand on s pec ific

tes ting per

for m ed b y GM . I t is both experts ' reliance on the testing conducted by GM that allows us to conclude that the trial court may

have abused its discretion in excluding Colver’s tes timony and portions of Rudny’s tes timony. Under the cir cumstances presented here, i f Sobczak attempts to introduce Colver and Rudny as ex perts on rem and, we instruct the trial court to reconsider its ruling in regard to excluding their testim ony und er Volpe . However, we find that the trial court correctly prevented Rudny fromtestifying as to his opinion that there wa s no change to the condition of Sobc zak’s vans’ air-fuel control system f rom t he time it left GM to the t ime of the accident. This conclusory opinion was uns ubstantiated and speculative because Rudny had no personal knowledge regarding the tim e period between w hen the van left GM ’s control and w hen the accident occurred. CONTRIBUTORY NEGLIGENCE Finally, Sobczak contends that the trial court erred in instructing the jury w ith reg ard to h is c ont ribu tor y ne glige nce . S obc

zak arg uestha t th e tr ial c our t im pro per ly instructed the jury to find GM not li able i f it found that his contri butory negl igence
com prised “m ore than 50% o f the total prox imate causeof [his] injur y or dam age.” It is within the trial court's discretion to determ ine which instruction shall be given to the1-05-2154

29

jury and t he exercise of th at discretion will not be disturbed on review unless it has been clearly abused. Sinc la ir v . Be rl in , 325 Ill. App. 3d 458, 464 (2001). W e see no such abuse of discretion here. S ection 2-1116 of the Code of Civil Procedure provides:

“In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liabili ty, the plaintiff shall be barred from recovering dam ages if the trier of fact finds that the contributory fault on the part of the plaintiff is m ore than 50% of th e proxim ate cause of the inj ury or dam age for which recovery is sought. The plaintiff shall not be barred fromrecove ring dam ages if t he trier of fact f inds that the co ntributory fault on the part of the plaintiff is not m ore than 50% of th e proxim ate cause of the injury or dam age for which recovery is sought, but any dam ages allowed shall be diminished in the proportion to the am ount of fault attributable to the plaintiff.” 73 5 ILCS5/2-111 6 (West 1994). In the instant case, thetrial court instructed the jury in accordance with the plain tex t of sec tion 2-1 116 and con seq uen tly per m itte d th e j ury to cons ider

any and all evidence of fa ult that may be attribu table to Sobczak. Based on the foregoing discuss ion, we reverse and remand this cause to the trial court for proceedings consistent w ith this opinion. Reversed and rem anded. THEIS , P.J ., and C UNNI NGHA M, J ., conc ur.