FIRST DIVISION

										December 31, 2003

No. 1-02-1647

GLEN BLUE,						)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellant,				)	Cook County.

								)

v.								)	

										)	

ENVIRONMENTAL ENGINEERING, INC., a 		)	

wholly owned subsidiary of BROWNING-FERRIS		)	No. 01 L 4314

INDUSTRIES, INC., a Delaware corporation,		)	

								)	

		Defendant-Appellee and 			)

		Third-Party Plaintiff-Appellantee1		)	

								)	

(John M. Smyth Company,					)	Honorable

								)	Barbara J. Disko,

		Third-Party Defendant-Appellee).		)	Judge Presiding.

	JUSTICE GORDON delivered the opinion of the court:

	On February 11, 2002, a jury returned a general verdict for plaintiff Glen Blue and against defendant Browning-Ferris Industries, Inc., and third-party defendant John M. Smyth Co., finding

defendants guilty of negligence.  At the close of the evidence, the jury also answered a special

interrogatory submitted by defendant Browning in the affirmative.  Finding that there was a fatal

inconsistency between the general verdict and the response to the special interrogatory, the trial

court granted Browning's motion for a judgment on the special interrogatory.  Judgment was thereafter entered for defendants.  Plaintiff now appeals the trial court's judgment on the special interrogatory and we reverse and remand for the following reasons.

BACKGROUND

	The evidence presented at trial established that in 1975, defendant Browning-Ferris

Industries, Inc. (Browning), sold to and installed a heavy duty trash compactor in the Downers

Grove, Illinois, warehouse of third-party defendant John M. Smyth Co. (Smyth).  The compactor

was generally used by Smyth employees to compact cardboard boxes, furniture and wooden

skids, and was emptied by Browning upon request.  The compactor consisted of a ram which slid

back and forth to compact the refuse put into the chamber.  It could be turned on and off after

each compaction or could run in a continuous mode.  The control panel of the compactor

contained a power switch and there was a pull cord hanging over the mouth of the compactor

which would stop the machine.

	In 1991, as the result of a safety audit conducted by the State of Illinois, Smyth installed a

gate at the mouth of the compactor, which was designed to turn off the compactor when opened. 

The bars of the gate were covered by wire mesh, which was subsequently removed by Smyth

employees because it was regularly knocked off by boxes as they were pushed back by the ram.

	In 1988, plaintiff began working part-time in Smyth's Northbrook, Illinois, warehouse,

taking customer orders, retrieving furniture, accepting deliveries and operating the trash

compactor at that facility.  In 1990, he was transferred to the Downers Grove warehouse where,

he stated, his duties were similar to those he performed in Northbrook.  Plaintiff testified that he

never received training on the Downers Grove trash compactor, but had operated it a number of times and watched other employees use the compactor.  Plaintiff stated at trial that the compactor

often jammed and it was the usual practice of the employees, including the warehouse supervisor,

Phillip Polizzi, to push refuse down into the compactor with one's foot while it was moving.  He

did state, however, that he had been told not put his arms or legs into the moving compactor. 

Polizzi and assistant warehouse supervisor Andrew Banda denied that they ever put their arms or

legs into the moving compactor.  They stated that if they had ever observed an employee doing

so, he would have received a written citation.

	On November 5, 1996, plaintiff was assigned to operate the trash compactor.  He testified

that he informed Banda a number of times that the compactor was full and would not operate

properly.  He stated Banda told him to continue operating the compactor as the loading dock

needed to be cleared of refuse.  At trial, Banda denied that plaintiff reported the compactor was

full.  Plaintiff stated that after he placed a large sofa box into the compactor, the compactor

stopped and would not crush the box.  While the compactor was running in a continuous mode,

plaintiff placed his leg through the bars of the closed gate and pushed the box down with his foot

so that it would be grabbed by the ram.  However, plaintiff's foot became caught in the box and

plaintiff was pulled into the compactor as the ram took hold of the box.  Plaintiff stated he could

not reach the pull cord to stop the compactor as it was several feet above his head when he was in

the compactor.  He was thereafter hit by the ram approximately three times, resulting in a broken

pelvis, leg and foot.

	On May 5, 1994, plaintiff filed a complaint against a number of defendants including

Browning.  Count I of the complaint was based in strict liability and alleged that at the time the trash compactor left Browning's control it was unreasonably dangerous for one or more of four

listed reasons.  Count I was subsequently dismissed for being filed after the applicable statute of

repose had expired.  Count IV of the complaint, based in negligence, alleged that it was

defendant's duty to distribute a machine that was reasonably safe for its intended purpose and that

one or more of the following acts or omissions by Browning proximately caused plaintiff's

injuries:

		"(a) Carelessly and negligently distributed a compactor machine

with inadequate safety guards and devices to protect the operator.

		(b)  Carelessly and negligently failed to provide a gate with a latch

and safety switch; thereby creating an extra hazardous condition for

operators using the same.

		(c)  Carelessly and negligently failed to provide a Dead Man's

switch near or at the site of the compactor's ram so that an operator

could immediately stop the machine if his body was sucked into the

same.

		(d)  Carelessly and negligently failed to give employee adequate

instruction and training in the use of an exceptionally and

reasonably [sic] dangerous compacting device.

		(e)  Carelessly and negligently failed to post adequate signs and

failed to warn the operator that his body could be sucked into the

machine because there were no safety devices located at or near the machine."

In response to plaintiff's complaint, defendant asserted various affirmative defenses, including that

plaintiff assumed the risk of his injury by sticking his foot into the compactor, that plaintiff

misused the compactor thereby proximately causing his own injury, and that plaintiff was

contributorily negligent.

	Following the presentation of the evidence summarized above, the jury was instructed that

it could find defendant guilty of negligence if it found that plaintiff was injured and that the injury

was proximately caused by the acts or omissions of defendant.  The jury was further instructed

that if plaintiff's own negligence contributed to his injury, then it must find plaintiff was

contributorily negligent and reduce any recovery accordingly; however, if it found plaintiff's

contributory negligence to be more than 50% of the total proximate cause of his injury, plaintiff

would be barred from any recovery.  The jury was also provided with a special interrogatory, over

plaintiff's objection, which asked, "Was the risk of injury by sticking a foot over or through a gate

into a moving compactor open and obvious?"  During the course of deliberations, the jury sent a

question to the trial judge asking, "On the special interrogatory question, by answering yes, does

it mean that the plaintiff was more than 50 percent negligent?"  The court responded, "Jurors,

please answer the special interrogatory based on the evidence presented to you by all parties. 

Also please review all of the instructions on the law that were given to you."

	The jury then returned a general verdict for plaintiff and against defendant Browning and

third-party defendant Smyth.  It awarded plaintiff $1,120,588, attributing 33% of the negligence

to Browning, 35% to Smyth and 32% to plaintiff, thereby reducing plaintiff's recovery to $762,000.  However, the jury also answered Browning's special interrogatory in the affirmative. 

Thereafter, Browning filed a motion for a judgment on the special interrogatory, arguing that the

jury's response to the special interrogatory controlled over the general verdict and judgment

should be entered in favor of defendants.  In granting the motion, the court stated: 

	"I do find that the special interrogatory did relate to an ultimate issue of fact, and

that it was inconsistent with the jury's finding for the plaintiff in assessing him only

32 percent contributorily negligent.

		I appreciate the plaintiff's argument that the special interrogatory was not

inconsistent with the jury's finding; but in reviewing his cases, they all made

reference to the plaintiff being distracted or the defendant anticipating harm despite

the obvious danger.  And I'm not convinced from his argument that it's consistent.

		There is a finding that the jury's answer of yes to the special interrogatory

is inconsistent; therefore, I am going to vacate the judgment of the jury and enter a

judgment on the special interrogatory for the defense."

In its written order, the trial court further indicated that Browning's motion for judgment

notwithstanding the verdict and for a new trial were "conditionally" denied, and Smyth's motion

for reduction of verdict was "conditionally" granted.  According to the record, the motions were

not considered on their merits and the trial judge entered the "conditional" decisions based solely

on her entry of the judgment on the special interrogatory.  Plaintiff now appeals the trial court's

judgment on the special interrogatory, contending that the special interrogatory should never have

been submitted to the jury, as it was improper.  He further argues that even if the special interrogatory was proper, the jury's response was not inconsistent with the general verdict.  We

reverse the judgment on the special interrogatory and reinstate the jury verdict.

ANALYSIS

	The purpose of a special interrogatory is to guard " 'the integrity of a general verdict in a

civil jury trial.' "  Simmons v. Garces, 198 Ill. 2d 541, 555, 763 N.E. 2d 720, 730 (2002), quoting O'Connell v. City of Chicago, 285 Ill. App. 3d 459, 460, 674 N.E. 2d 105, 106 (1996).  To do so, the special interrogatory tests the general verdict against the jury's determination regarding an

ultimate question of fact.  Simmons, 198 Ill. 2d at 555, 763 N.E. 2d at 730.  Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure, which provides:

		"Unless the nature of the case requires otherwise, the jury shall render a

general verdict.  The jury may be required by the court, and must be required on

request of any party, to find specially upon any material question or questions of

fact submitted to the jury in writing.  Special interrogatories shall be tendered,

objected to, ruled upon and submitted to the jury as in the case of instructions. 

Submitting or refusing to submit a question of fact to the jury may be reviewed on

appeal, as a ruling on a question of law.  When the special finding of fact is

inconsistent with the general verdict, the former controls the latter and the court

may enter judgment accordingly."  735 ILCS 5/2-1108 (West 2002).

	Plaintiff here contends that the trial court erred in submitting the special interrogatory to

the jury because it was in an improper form and it was confusing.  A special interrogatory is in

proper form if it meets the following criteria: "(1) it relates to an ultimate issue of fact upon which the rights of the parties depend, and (2) an answer responsive thereto is inconsistent with some

general verdict that might be returned."  Simmons, 198 Ill. 2d at 563, 763 N.E. 2d at 734.  Furthermore, it should be a single question, the terms of which are simple, unambiguous, and

understandable to the jury; it must not be repetitive, confusing or misleading.  Simmons, 198 Ill. 2d at 563, 763 N.E. 2d at 735.

	In this regard, plaintiff specifically argues that the special interrogatory was not in proper

form as the question of whether a danger is open and obvious in a negligence action does not

relate to an ultimate issue of fact upon which the rights of the parties depend, nor would an

answer responsive thereto be inconsistent with any general verdict that might be returned. 

Defendant responds that the special interrogatory was properly submitted because where a danger

is open and obvious, a product cannot be found to be unreasonably dangerous and therefore it is

not actionable.  The central question we must consider then is whether the open and obvious

doctrine served to bar the instant cause of action, thereby raising it to the level of an ultimate

question of fact, the answer to which might be inconsistent with a general verdict against

defendant.

	Prior to addressing this question, however, we must resolve the parties' apparent

disagreement regarding the theory of liability upon which this case was tried.  Defendant refers to

this case as one based in product liability and thereafter analyzes it primarily under a theory of

strict liability.  Plaintiff asserts that by doing so defendant misapplies Illinois law, as the cause of

action was based in common law negligence.

	Under the Restatement (Second) of Torts and existing case law, an action may be brought against the manufacturer of a product based on a theory of strict liability or common law

negligence or both.  See Restatement (Second) of Torts §§395, 398, 402A (1965); see generally

Carrizales v. Rheem Manufacturing Co., 226 Ill. App. 3d 20, 589 N.E. 2d 569 (1991); Flaugher v. Sears, Roebuck & Co. 61 Ill. App. 3d 671, 378 N.E. 2d 337 (1978).  According to the complaint filed in this case, plaintiff alleged defendant was liable to him under theories of strict liability

(count I ) and negligence (count IV).  However, defendant subsequently moved to dismiss count I

of plaintiff's complaint due to the running of the statute of repose.  The motion was granted by the

trial court on the grounds that a strict liability action must be filed within 12 years of the first date

of sale of the product to its initial user.  See 735 ILCS 5/13-213(b) (West 1992).  Therefore,

recovery here was ultimately grounded in the remaining count -- negligence.  As a result, although

this action seeks recovery of damages for a defective product, defendant's liability was considered

under common law negligence principles.2  Accordingly, we narrow our consideration to the determination of whether the open and obvious doctrine might have barred recovery in this

negligence action.  For the following reasons, we conclude that it did not and that consequently

the trial court erred in presenting the special interrogatory to the jury.

	A product liability action asserting a claim based in negligence, such as negligent design,

falls within the framework of common law negligence and is governed by principles of negligence

law.  Flaugher, 61 Ill. App. 3d at 675, 378 N.E. 2d at 340.  To succeed in a general negligence action, a plaintiff must establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, an injury that proximately resulted from the breach, and damages. 

Carrizales, 226 Ill. App. 3d at 24, 589 N.E. 2d at 572.  Regarding the duty requirement, in an action against a manufacturer for the negligent design of a product, it is generally the duty of the

manufacturer "to design a product so that it will be reasonably safe for its intended use and for

any reasonably foreseeable use." Flaugher, 61 Ill. App. at 675, 378 N.E. 2d at 340.  The plaintiff must show then that the manufacturer breached his duty to design something safer for the user

because the quality of the product in question was insufficient.  Rotzoll v. Overhead Door Corp, 289 Ill. App. 3d 410, 419, 681 N.E. 2d 156, 162 (1997).

	In this case, defendant argues that the open and obvious nature of the dangerous condition

of the trash compactor negated any duty on the part of defendant to correct its unsafe design. 

Although the impact of the open and obvious doctrine in cases addressing a duty to warn and in

premises liability cases is clearly resolved in the Restatement and under general case law, there is

little to guide us on this question with respect to product liability cases which are grounded in

negligence.

	Precedent is clear that where a danger is open and obvious, there is no duty to warn a consumer of that danger.  Restatement (Second) of Torts §388, Comment k (1965); Ford v. Nairn, 307 Ill. App. 3d 296, 300, 717 N.E. 2d 525, 528 (1999); Klen v. Asahi Pool, Inc., 268 Ill. App. 3d 1031, 1038, 643 N.E. 2d 1360, 1365 (1994).  The underlying rationale for this rule is

cogent and logical in that nothing of value is gained by a warning regarding a dangerous condition

that is already obvious to the average consumer and is generally appreciated.  Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 901, 770 N.E. 2d 1211, 1216 (2002).  Therefore, where the duty of care owed by a defendant is fully satisfied by providing a warning, the open and obvious

doctrine may serve as an absolute bar to any recovery, as the open and obvious nature of the

danger is the equivalent of such a warning.3

	Where, however, the duty of care owed by the defendant extends beyond the giving of a

warning, the open and obvious nature of the risk can no longer serve as an absolute bar.  The best

example of this is found in premises liability cases, which provide for two exceptions to the open

and obvious doctrine, which are discussed below.  There are also some examples of the extension

of a defendant's duty of care beyond a duty to warn in product liability cases.  See Wortel, 331 Ill. App. 3d at 902, 770 N.E. 2d at 1216 ("the open and obvious nature of the risk is not a per se bar to recovery in a design defect case"); Osborn v. Mission Ready Mix, 224 Cal. App. 3d 104, 122, 273 Cal. Rptr. 457, 468 (1990) (although the obviousness of a danger may obviate the duty to

warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is

obvious, there may be a duty to remedy the danger). 

	In premises liability cases, the open and obvious nature of a condition generally affects

whether the resulting harm was foreseeable (Newby v. Lake Zurich Community Unit, District 95, 136 Ill. App. 3d 92, 98-99, 482 N.E. 2d 1061, 1066-67 (1985)), which, in turn, is relevant in

determining whether a duty and proximate cause exist (see LaFever v. Kemlite Co., 185 Ill. 2d 380, 389, 706 N.E. 2d 441, 446 (1998); Preze v. Borden Chemical, Inc., 336 Ill. App. 3d 52, 57, 782 N.E. 2d 710, 714 (2002)).  In these cases, the open and obvious nature of a dangerous

condition may preclude recovery, unless one of various exceptions is present.  See Sollami v. Eaton, 201 Ill. 2d 1, 15, 772 N.E. 2d 215, 223 (2002).  These exceptions are provided in the Restatement itself and have been throughly discussed by the courts.  They include: (1) the

distraction exception -- where the possessor of the property has reason to expect that an invitee's

attention may be distracted and therefore he will not notice the danger; and (2) the deliberate

encounter exception -- where "the possessor has reason to expect that the invitee will proceed to

encounter the known or obvious danger because to a reasonable man in his position the

advantages of doing so would outweigh the apparent risk."  Restatement (Second) of Torts

§343A, Comment f (1965); Sollami, 201 Ill. 2d at 15, 772 N.E. 2d at 223; Wreglesworth v. Arctco, Inc., 317 Ill. App. 3d 628, 639, 740 N.E. 2d 444, 453 (2000).

	The parties to this action have not cited any case law specifically applying the open and

obvious doctrine to product liability actions based in negligence, other than the above-mentioned

failure to warn cases.4  In addressing such a negligence action, we note that the Restatement clearly recognizes that a danger known to the user may be a basis for contributory negligence.  In

fact, comment b to section 398 of the Restatement provides:

			"If the dangerous character of the plan or design is known

to the user of the chattel, he may be in contributory fault if the risk

involved in using it is unreasonably great or if he fails to take those special precautions which the known dangerous character of the

chattel requires."  Restatement (Second) of Torts §398, Comment b (1965).

However, the Restatement does not purport to address whether, in a product liability action, an

open and obvious danger would absolve the manufacturer from owing any further duty of care

with respect to the challenged instrumentality.  This failure has been interpreted by some courts as

an indication that the Restatement does not take the view that an open and obvious risk in a

product liability case based in negligence would completely bar recovery, even where recovery is

premised on the negligent failure to warn, but would instead be an incremental factor to be

considered with respect to the defense of contributory negligence.  See Franchetti v. Intercole Automation, Inc., 529 F. Supp. 533, 538 (Del. 1982) (noting that the issue is "not without doubt," the United States District Court in Delaware found that the "elevation of obviousness to a

complete bar would be inconsistent with *** the Restatement sections relied on, none of which

except obviously unreasonably dangerous products from their coverage").

	Nevertheless, we are persuaded that the analysis which applies in strict liability cases as

well as premises liability cases should equally apply to negligent design cases in that where a risk

is open and obvious, there is no efficacy to be achieved by any warning.  Under that rationale,

there would be no reason to differentiate between strict liability or negligence, whether based on

premises liability or negligent design.  This position was taken by this court in its recent decision

in Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 770 N.E. 2d 1211 (2002), which held that the open and obvious doctrine applies to all product liability actions, whether based in negligence or in strict liability.  Wortel, 331 Ill. App. 3d at 900 n. 1, 770 N.E. 2d at 1215 n. 1 ("the 'open and obvious' doctrine has been applied in both negligence claims and strict liability

claims").

	However, as in Wortel, we recognize that in a product liability action, whether premised on negligence or strict liability, the open and obvious nature of a condition would not per se bar recovery at least with respect to actions such as this one, which are predicated on allegations of

defective design and not merely on a failure to warn.  The Wortel court acknowledged that prior to 1990, the sole test used to determine the existence of a design defect was the "consumer

expectation test."  The consumer expectation test provided that "strict liability applies only when a product is 'dangerous to an extent beyond that which would be contemplated by the ordinary

[person] ***, with the ordinary knowledge common to the community as to its characteristics.' " 

(Emphasis in original and omitted.)  Wortel, 331 Ill. App. 3d at 901, 770 N.E. 2d at 1215, quoting Hunt v. Blasius, 74 Ill. 2d 203, 211-12, 384 N.E. 2d 368, 372 (1978), quoting Restatement (Second) of Torts §402A, Comment i (1965).  Under that test, the open and obvious nature of a danger would bar recovery where the injury was the result of inherent properties of the

product, which were obvious to anyone who came into contact with it.  Wortel, 331 Ill. App. 3d at 901, 770 N.E. 2d at 1215.

	However, in 1990, the Illinois Supreme Court declared in Lamkin v. Towner, 138 Ill. 2d 510, 529, 563 N.E. 2d 449, 457 (1990), that a plaintiff may prove a manufacturer's liability for

defective design by an alternate method, known as the risk-utility test.  The supreme court stated

that a plaintiff may demonstrate a product is defective in design by introducing evidence that the product design proximately caused his injury.  Lamkin, 138 Ill. 2d at 529, 563 N.E. 2d at 457.  The burden then shifts to the defendant, who must "prove that on balance the benefits of the

challenged design outweigh the risk of danger inherent in such designs."  Lamkin, 138 Ill. 2d at 529, 563 N.E. 2d at 457.  In determining the adequacy of a product's design under this test, the

jury may consider the gravity of the danger posed by the challenged design, the likelihood that the

danger would occur, the mechanical feasibility of a safer alternative design, and the adverse

consequences to the product and to the consumer that would result from an alternative design. 

Wortel, 331 Ill. App. 3d at 904, 770 N. E. 2d at 1218, quoting Barker v. Lull Engineering Co., 20 Cal. 3d 413, 431, 573 P.2d 443, 455, 143 Cal. Rptr. 225, 237 (1978).  Pursuant to Lamkin, the Wortel court concluded that, under the risk-utility test, the open and obvious nature of the risk is just one factor to be considered within this range of considerations and it will only serve to bar the liability of the manufacturer where it outweighs all other factors to be considered in weighing the

inherent design risks against the utility of the product as manufactured.  See Wortel, 331 Ill. App. 3d at 907, 770 N.E. 2d at 1220.  We see no reason why the application of the risk-utility test to

the open and obvious danger doctrine should not be applied in negligence cases just as it is

applied in strict liability cases.  See Wortel, 331 Ill. App. 3d at 900 n. 1, 770 N.E. 2d at 1215 n. 1 (the open and obvious doctrine is applied in both negligence and strict liability cases);

Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill. App. 3d 444, 455, 585 N.E. 2d 166, 173 (1991), quoting J. Wade, On The Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837 (1973) (" '[t]here are *** innate similarities between the actions in negligence and in

strict liability, and changing the terminology does not alter this' "); 2 D. Dobbs, Law of Torts, ch. 24, at 984 (2001) (most courts have "rejected any automatic application of the open and obvious

danger rule").

	Our courts have recognized that the policy considerations employed to determine whether

a duty exists in a negligence case are very similar to those employed in the strict liability risk-

utility analysis.  See Harnischfeger Corp., 223 Ill. App. 3d at 455-56, 585 N.E. 2d at 173-74.  To determine the existence of a duty in a negligence action, the court will consider: (1) foreseeability,

(2) likelihood of injury, (3) magnitude of the burden on the defendant to guard against the injury,

and (4) consequences of placing a burden on the defendant.  Preze, 336 Ill. App. 3d at 57.  The risk-utility test employs the following considerations: (1) the gravity of the danger posed by the

challenged design, (2) the likelihood that such danger would occur, (3) the mechanical feasibility

of a safer alternative design, and (4) the adverse consequences to the product and to the consumer

that would result from an alternative design.  Wortel, 331 Ill. App. 3d at 904, 770 N.E. 2d at 1218.  As previously noted, the similarities between the considerations employed by these tests

cannot be negated by simply changing the terminology.  See Wright v. Brooke Group Ltd., 652 N.W.2d 159, 165 (Iowa 2002) ("the risk/benefit analysis employed in a strict liability design

defect case is the same weighing process as that used in a negligence case").  "Whether the

doctrine of negligence or strict liability is being used to impose liability the same process is going on in each instance, i.e., weighing the utility of the article against the risk of its use."  (Emphasis in original.)  Wright, 652 N.W.2d at 165.  Accordingly, as in a strict liability action, the open and obvious nature of a dangerous condition is but one factor to be considered in a negligence action

against a manufacturer.  It is a factor to be considered in determining the existence of a legal duty (Harnischfeger Corp., 223 Ill. App. 3d at 459, 585 N.E. 2d at 175), and, as in Wortel, will only serve to bar recovery where the magnitude of the risk is so small and the utility of a safer design

so negligible that no duty to provide a safer product should be imposed.  See, e.g., Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86, 90 (Fla. 2000) (Florida Supreme Court determined in common law negligence case that the issue of the victim's knowledge of the

dangerousness of condition should be considered when determining breach of duty and proximate

cause, and in attributing proportional fault); Soler v. Castmaster, Division of H.P.M. Corp., 98 N.J. 137, 146, 484 A.2d 1225, 1230 (1984) (New Jersey Supreme Court determined that, as

designed, the risk of danger inherent in machine in question outweighed its usefulness where the

evidence showed "a demonstrable risk of harm to a foreseeble [sic] user of the machine in the absence of a safety gate and interlock" and where "the evidence revealed that the technology for

incorporating these safety devices was known to the industry at the time the machine was

manufactured and *** such devices were available and could have been incorporated into the

machine without appreciable cost and without impairing its function").

	As a result, we conclude that the special interrogatory in this case was in improper form

and should not have been submitted to the jury.  As previously stated, a special interrogatory is in

proper form if it relates to an ultimate issue of fact upon which the rights of the parties depend

and an answer responsive thereto is inconsistent with some general verdict that might be returned. 

The issue of whether a danger is open and obvious does not ultimately decide the rights of the

parties in a negligence action without further consideration of how the open and obvious nature of

the danger compares and balances against the likelihood and seriousness of injury, the foreseeability of injury on the part of defendant, the feasibility of placing the burden of correcting the dangerous condition on the defendant and the consequences thereof.  The jury in this case was

asked whether the danger of putting a foot through a gate into a moving trash compactor was

open and obvious.  It was not asked whether the apparent risk outweighed the utility of the

machine used, whether there were reasonable safety devices available to prevent the harm caused

or whether defendant's duty to produce and implement a safer design was outweighed by the

obvious nature of the danger.  Since this interrogatory left open all of these other considerations,

it did not present an ultimate question of fact nor did it determine the rights of the parties; it

merely addressed one consideration of many that must be balanced in a product liability

negligence claim.  See Bruske v. Arnold, 44 Ill. 2d 132, 136, 254 N.E. 2d 453, 456 (1969) (Illinois Supreme Court found that a special interrogatory was properly refused in a contributory

negligence case where it asked only if the plaintiff exercised due care and did not include the

element of whether his own negligence contributed to his injuries); Ross v. Aryan International, Inc., 219 Ill. App. 3d 634, 651, 580 N.E. 2d 937, 947-48 (1991) (the trial court properly rejected the defendant's special interrogatory regarding the defendant's actual or constructive knowledge of a dangerous condition because, although its knowledge was a material fact that bore on the

negligence element, it did not by itself address proximate cause or injury, two other essential

elements of negligence).

	Correspondingly, even if the focus were not on the formal sufficiency of the special interrogatory, the jury's answer thereto was not inconsistent with its general verdict.  "Where the

special interrogatory does not cover all of the issues submitted to the jury and a reasonable hypothesis exists to permit the general verdict to be construed consistently with the special

interrogatory, they cannot be said to be absolutely irreconcilable and the special finding will not

control."  LaPook v. City of Chicago, 211 Ill. App. 3d 856, 865, 570 N.E. 2d 708, 713 (1991); Cohen v. Sager, 2 Ill. App. 3d 1018, 1020, 278 N.E. 2d 453, 456 (1971) (in order for the verdict to be inconsistent, the answer to the special interrogatory must exclude every reasonable

hypothesis consistent with the general verdict).

	This conclusion is consistent with the evidence presented in this case.  There is little

question here that plaintiff presented sufficient evidence to raise a risk-utility issue.  This evidence

included the testimony of Marvin Salzenstein, a consulting engineer, with a specialty in machine

design and safety, who testified in plaintiff's case in chief.  Salzenstein testified that the trash

compactor was negligently designed because it should have incorporated one or more safety

features which were available at the time Smyth bought the compactor: (1) "a sustained manual

pressure control," so that the machine would automatically stop when the on button was released;

(2) "an interlock guard over the point of operation," which would prevent reaching into the

machine while the ram was in motion, and an automatic shut-off when the guard was opened; 

(3) eradication of the machine's continuous mode so that it would automatically stop after each

cycle; or (4) an emergency stop device within the convenient reach of the operator.  Salzenstein

stated that the gate added to the compactor by Smyth did not operate as a sufficient guard

because it did not prevent a person from reaching into the machine, and therefore, the machine

was still unreasonably dangerous.  Furthermore, plaintiff testified that the machine did not actually

stop as it was supposed to when the gate was opened.  Regarding the severity of the possible injury, Salzenstein stated that if the compactor had not been full at the time of the accident,

plaintiff might have been pulled further into the machine and actually severed by the ram.

	Under the risk-utility test, the burden then shifted to defendant to show that, on balance,

the benefits of the challenged design outweighed the risk of danger inherent in the design.  Lamkin, 138 Ill. 2d at 529, 563 N.E. 2d at 457.  We find no indication in the record that defendant presented such evidence.  There was no testimony that the utility of the machine would

have been hampered by such precautions, that the cost of further precautions were prohibitive, or

that the danger involved was not serious or likely to occur.  Even if defendant did present such

evidence, it would have been up to the jury's discretion which witnesses to believe and a

determination that plaintiff's witnesses were more believable still would have provided a

reasonable hypothesis for its holdings.

	As a result, given the testimony presented, a reasonable hypothesis exists to construe the

jury's finding that the danger was open and obvious as consistent with its general verdict for

plaintiff.  The jury was free to weigh the factors discussed above and determine that the open and

obvious nature of the danger did not outweigh defendant's obligation to manufacture a safer

product.  Instead, the jury may have appropriately attributed the open and obvious nature of the

risk taken by plaintiff to its finding that he was contributorily negligent and the resulting reduction

in damages.  Therefore, the trial court erred in finding the answer to the interrogatory was fatally

inconsistent with the general verdict.

	In accordance with the above, we reverse the judgment entered on the special

interrogatory and reinstate the jury's verdict.  We further remand the cause to the trial court for reconsideration of the parties' posttrial motions, two of which the trial court conditionally denied

and one which it conditionally granted based solely on its entry of judgment on the special

interrogatory.

	Reversed and remanded.

	McNULTY, J. and McBRIDE, J. concur.