In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 15‐3602

JUAN SUAREZ and BILLIE SUAREZ,

Plaintiffs‐Appellants,

v.

W.M. BARR & COMPANY, INC.,

Defendant‐Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 CV 4569 — Matthew F. Kennelly, Judge.

____________________

ARGUED APRIL 12, 2016 — DECIDED NOVEMBER 22, 2016

____________________

Before WOOD, Chief Judge, and FLAUM and WILLIAMS, Cir‐

cuit Judges.

WILLIAMS, Circuit Judge. Juan Suarez used Goof Off, an

extremely flammable product made by W.M. Barr, to re‐

move paint from a basement floor. While doing so, a fire

erupted in the basement and severely burned him. Juan and

his wife sued Barr, alleging failure to warn and defective de‐
2 No. 15‐3602

sign under Illinois law. The Suarezes appeal the district

judge’s grant of summary judgment in Barr’s favor.

We conclude that the district judge appropriately rejected

the Suarezes’ failure‐to‐warn claim. The warning label on

the Goof Off can adequately identified the product’s princi‐

pal hazards, as well as the precautionary measures to be tak‐

en while using the product. However, we reverse and re‐

mand the district judge’s rejection of the Suarezes’ design

defect claims under both strict liability and negligence. The

Suarezes have adequately shown that the fire may have been

caused by static sparks created when Juan agitated Goof Off

with a brush as the warning label instructed. So a genuine

factual issue exists as to whether an ordinary consumer

would expect a fire to erupt under these circumstances,

whether this risk outweighs the benefits associated with

Goof Off, and whether Barr should have known that agitat‐

ing Goof Off could have created static sparks sufficient for

ignition.  

I. BACKGROUND

A. Fire Erupts While Using Barr’s Product

In April 2012, Juan Suarez (Juan) purchased a one‐gallon

can of Professional Strength Goof Off to help remove paint

from the concrete basement floor of a building he owned.

Goof Off is produced by Defendant W.M. Barr & Company,

and is advertised as being effective at removing dried latex

paint and other materials from various surfaces such as met‐

al, glass, brick, wood, and concrete. The primary active in‐

gredient in Goof Off is acetone, which is extremely flamma‐

ble and evaporates quickly at room temperature. The can
No. 15‐3602 3

Juan purchased contained various warnings in both English

and Spanish. For example, the side of the can stated,

DANGER! EXTREMELY FLAMMABLE.

KEEP AWAY FROM HEAT, SPARKS,

FLAME AND ALL OTHER SOURCES OF

IGNITION. VAPORS MAY CAUSE FLASH

FIRE OR IGNITE EXPLOSIVELY. Extinguish

all flames and pilot lights and turn off all

stoves, heaters, electric motors and all other

sources of ignition during use and until all va‐

pors are gone. USE ONLY WITH ADEQUATE

VENTILATION TO PREVENT BUILDUP OF

VAPORS. Do not use in areas where vapors

can accumulate and concentrate such as base‐

ments, bathrooms and small enclosed areas. If

using indoors, open all windows and doors

and maintain cross ventilation of moving fresh

air across the work area.... IF THE WORK

AREA IS NOT WELL VENTILATED, DO

NOT USE THIS PRODUCT.

(emphasis in original). The can also instructed users who

wanted to remove stains from concrete to “[a]pply directly.

Agitate with brush.”  

Juan claims that before using the Goof Off, he read at

least most of the warnings on the label and opened at least

one window in the basement and two doors that separated

the basement from the outside. It is unclear, however,

whether he turned off the pilot lights connected to two water

heaters and a furnace located in a utility room in a separate

portion of the basement. Juan then poured some of the Goof

Off onto paint patches on the basement floor, and after let‐
4 No. 15‐3602

ting the product stand for a period of time, he spread it out

initially with his foot and then with a kitchen broom. While

Juan was using the broom, a fire erupted and severely

burned his face, head, neck, and hands.  

B. Legal Proceedings

Juan and his wife Billie sued Barr, alleging failure to

warn and defective design (under both strict liability and

negligence theories). The Suarezes argued that Goof Off is

unreasonably dangerous, even when used in a foreseeable

manner, and that Barr did not provide adequate warnings

regarding Goof Off’s dangers. They also claimed that the fire

was caused by static sparks created while Juan was using the

broom to spread the Goof Off,1 and retained two experts to

bolster this theory. Benjamin Miller, an electrical engineer,

opined that Juan’s broom was capable of producing a static

charge when brushed against his body, clothing, or sur‐

roundings, and that such a charge could migrate to the floor

and cause sparks. Steve Chasteen, a certified fire investiga‐

tor, concluded that a static spark was the most probable igni‐

tion source, and that the fire likely was not caused by the

heaters and the furnace in the utility room.  

Barr moved in limine to exclude Miller and Chasteen

from testifying at trial, and for summary judgment on all of

the Suarezes’ claims. The district judge declined to rule on

Barr’s motion in limine but granted its motion for summary

                                                 

1 It is unclear whether the Suarezes are alleging that spark occurred

as the result of the broom rubbing against Goof Off itself, or against

something else (such as Juan’s clothing or shoes). But we need not ad‐

dress the issue further, since the resolution of the Suarezes’ appeal does

not turn on it.
No. 15‐3602 5

judgment, concluding that: (i) Barr had complied with the

requisite labeling requirements; (ii) Goof Off was not unrea‐

sonably dangerous because ordinary consumers would ex‐

pect that exposing it to sparks or flames could cause a fire;

and (iii) there was insufficient evidence concerning Goof

Off’s risks and benefits to the public, its conformity (or lack

thereof) with industry standards, or any feasible alterna‐

tives. The Suarezes appeal this decision.

II. ANALYSIS

We review the district judge’s grant of summary judg‐

ment de novo and construe the facts in the light most favor‐

able to the Suarezes as the non‐moving party. Stephens v. Er‐

ickson, 569 F.3d 779, 786 (7th Cir. 2009). Summary judgment

is appropriate where “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” FED. R. CIV. P. 56(a).

A. Failure‐To‐Warn Claim Properly Rejected

Although the parties agree that Goof Off is a hazardous

substance under the Federal Hazardous Substances Act and

must therefore comply with the Act’s labeling requirements,

we must nevertheless confirm that this agreement accurately

reflects the law. The Act tells us that a “hazardous sub‐

stance” includes “[a]ny substance or mixture of substances

which ... is flammable or combustible ... during or as a

proximate result of any customary or reasonably foreseeable

handling or use,” as defined by the Consumer Product Safe‐

ty Commission. 15 U.S.C. §§ 1261(f)(1)(A)–(B). Commission

regulations currently instruct that a substance is “flamma‐

ble” if its flashpoint—i.e., the lowest temperature at which a

compound emits ignitable vapors—is between 20° and 100°
6 No. 15‐3602

Fahrenheit. 16 C.F.R. § 1500.3(c)(6)(ii). Goof Off’s flashpoint

is 0° Fahrenheit, well beyond the threshold for flammability.2

So Goof Off is a hazardous substance under the Act, and as

such, it must be accompanied with a label that conspicuous‐

ly displays “an affirmative statement of the principal hazard

or hazards, such as ‘Flammable.’” 15 U.S.C. § 1261(p)(1)(E).

The label must also identify “precautionary measures de‐

scribing the action to be followed or avoided.” Id.

§ 1261(p)(1)(F).  

Critically, the Act also preempts any claim “based on a

state‐law theory that the product’s label should have includ‐

ed particular warnings not required” by the Act and corre‐

sponding regulations. Mwesigwa v. DAP, Inc., 637 F.3d 884,

887 (8th Cir. 2011); see also Kirstein v. Parks Corp., 159 F.3d

1065, 1067 (7th Cir. 1998) (observing in passing that the Act

preempted plaintiffs’ state law claim); accord Richards v. Home

Depot, Inc., 456 F.3d 76, 78 (2d Cir. 2006); Comeaux v. Nat’l Tea

Co., 81 F.3d 42, 44 (5th Cir. 1996) (per curiam); Moss v. Parks

Corp., 985 F.2d 736, 739 (4th Cir. 1993).

1. Failure‐to‐Warn Claim Not Forfeited

The Suarezes argue that the Goof Off label violated the

Act by failing to identify certain principal hazards and pre‐

cautionary measures. Before addressing the substance of this

argument, we begin with Barr’s contention that the Suarezes

forfeited the issue. Specifically, Barr argues that the amended

complaint “does not claim that the Goof Off label was in vio‐

lation of the [Act] or its implementing regulations in any re‐

spect.” This, however, ignores the amended complaint’s ref‐

                                                 

2 In fact, Goof Off is “extremely flammable,” since its flashpoint is

below 20° Fahrenheit. See 16 C.F.R. § 1500.3(c)(6)(i).
No. 15‐3602 7

erence to § 1261(p)(1)(F) where it states, “Defendant had an

obligation to provide plaintiff, Juan Suarez, with adequate

relevant information and data and warnings regarding the

proper use and risks associated with the use of Goof Off.” Am.

Compl. ¶ 16 (emphasis added). Although the amended

complaint does not cite § 1261, it provided Barr with ade‐

quate notice of the Suarezes’ failure‐to‐warn claim, as evi‐

denced by the content of Barr’s motion for summary judg‐

ment, in which it argued, among other things, that Goof

Off’s label adequately warned about the product’s flamma‐

bility hazard. Cf. Bartholet v. Reishauer A.G. (Zurich), 953 F.2d

1073, 1078 (7th Cir. 1992) (noting that Federal Rule of Civil

Procedure 8 does not require a complaint to point to the ex‐

act statute that entitles a plaintiff to relief); Townsend v. Ben‐

jamin Enters., Inc., 679 F.3d 41, 57 (2d Cir. 2012) (“The failure

in a complaint to cite a statute, or to cite the correct one, in

no way affects the merits of the claim. Factual allegations

alone are what matters.” (citation omitted)).  

Barr also faults the Suarezes for failing to raise the pre‐

cautionary measures issue in response to Barr’s motion for

summary judgment. But this criticism is based on a misun‐

derstanding of the parties’ burdens at summary judgment.

As the moving party, Barr had the burden to show that it

was entitled to judgment under established principles. In at‐

tacking the Suarezes’ failure‐to‐warn claim, Barr discussed

only the label’s references to principal hazards, neglecting to

mention precautionary measures. So Barr failed to meet its

burden as to the latter issue. See, e.g., Pourghoraishi v. Flying J,

Inc., 449 F.3d 751, 765 (7th Cir. 2006) (“The party opposing

summary judgment has no obligation to address grounds

not raised in a motion for summary judgment.” (citation

omitted)).
8 No. 15‐3602

In any case, the district judge reached the issue, finding

that the label contained “a list of precautionary measures

that a user should take to prevent the harms associated with

the product’s extreme flammability.” So we, too, can address

the issue, despite the fact that the parties did not adequately

brief it at summary judgment. Cf. Health Servs. Mgmt. Corp. v.

Hughes, 975 F.2d 1253, 1259 (7th Cir. 1992) (undertaking a

“more substantive review” of an issue addressed by the dis‐

trict court due to the “failure of both parties to address rele‐

vant case law and controlling rules in their briefing of the

case before the district court”).

2. Label Adequately Identified Principal Hazards

and Precautionary Measures

The Suarezes attack the warning label on two grounds.

First, they claim that the label should have included a warn‐

ing about static sparks, such as “beware of static electricity

that may be generated by synthetic clothing or other

sources.” But as the text of the Act makes clear, a label need

not identify every conceivable way in which a predicate

condition for a principal hazard can occur. Rather, the label

only needs to identify the principal hazard itself—here,

flammability. See, e.g., Mwesigwa, 637 F.3d at 888–89 (holding

that “an additional warning indicating the magnified risk of

flash fire” in certain circumstances was not required, since

the label already identified flammability as the principal

hazard to avoid); Moss, 985 F.2d at 742 (holding that a label

containing the warning “combustible” in large capitalized

letters adequately identified the product’s principal hazard

and did not need to warn against using the product near an

open flame). Holding otherwise would not only ignore the

plain meaning of the Act, but also result in excessively long
No. 15‐3602 9

warning labels that would unnecessarily burden companies

and consumers alike.

Here, the label stated in bolded and capitalized letters,

“Danger! Extremely flammable. Keep away from heat,

sparks, flame and all other sources of ignition. Vapors may

cause flash fire or ignite explosively.” That was enough to

satisfy § 1261(p)(1)(E).  

Second, the Suarezes claim that the warning label did not

adequately identify the requisite precautionary measures in

violation of § 1261(p)(1)(F), since it instructed consumers to

do the very thing that the Suarezes contend caused the fire—

agitating Goof Off with a brush. A hazardous substance is

misbranded under the Act “if its packaging or labeling fails

to bear a label warning of ... precautionary measures describ‐

ing the action to be followed or avoided.” Mwesigwa, 637

F.3d at 889 (emphasis added) (citation and internal quotation

marks omitted). Here, however, there is no genuine dispute

that the label identified multiple precautionary measures for

consumers to take in order to avoid a fire: “keep away from

heat, sparks, flame and all other sources of ignition”; put out

“all flames and pilot lights”; “turn off all stoves, heaters,

electric motors, and all other sources of ignition”; “use only

with adequate ventilation”; and “open all windows and

doors,” to name a few. Compare with Mattis v. Carlon Elec.

Prods., 295 F.3d 856, 862 (8th Cir. 2002) (holding that factual

issue for jury existed as to compliance with the Act since la‐

bel failed to note that inhalation of product’s vapors was

harmful or to specify any precautionary measures regarding

vapor inhalation); Milanese v. Rust‐Oleum Corp., 244 F.3d 104,

112–13 (2d Cir. 2001) (vacating grant of summary judgment

in defendant’s favor where plaintiff had alleged that label
10 No. 15‐3602

did not list any precautionary measures related to product’s

principal hazard).  

Moreover, the label’s brush‐agitation language is better

described as a “direction for use” rather than as a “precau‐

tionary measure,” since agitation is not an action meant to

prevent something problematic from happening. Indeed, we

understand the core of the Suarezes’ argument to be that

Juan suffered significant harm while complying with Goof

Off’s instructions—in other words, while using Goof Off as

Barr intended the product to be used. That relates to Goof

Off’s alleged design defect, which we address below.  

B. Genuine Factual Dispute Regarding Alleged Defec‐

tive Design Under Strict Liability

In order to establish strict products liability under Illinois

law, a plaintiff must prove: (i) the product had an unreason‐

ably dangerous condition, (ii) the condition existed when the

product left the manufacturer’s control, and (iii) the condi‐

tion injured the plaintiff. Mikolajczyk v. Ford Motor Co., 901

N.E.2d 329, 345 (Ill. 2008). When the plaintiff’s claim is based

on an alleged design defect, the “unreasonably dangerous”

element can be proved in one of two ways. The consumer‐

expectation test provides for liability if “the product failed to

perform as safely as an ordinary consumer would expect

when used in an intended or reasonably foreseeable man‐

ner.” Lamkin v. Towner, 563 N.E.2d 449, 457 (Ill. 1990). The

risk‐utility test asks if “on balance the benefits of the chal‐

lenged design outweigh the risk of danger inherent in such

designs.” Id. “Where the two tests yield conflicting results,

... the risk‐utility test ‘trumps,’ and the product is deemed

not unreasonably dangerous (notwithstanding consumers’

expectations that the product would be safer).” Ferraro v.
No. 15‐3602 11

Hewlett‐Packard Co., 721 F.3d 842, 848 (7th Cir. 2013) (citing

Mikolajczyk, 901 N.E.2d at 352). The Suarezes invoke both

tests here.

1. Consumer‐Expectation Test Satisfied

The crux of the Suarezes’ consumer‐expectations argu‐

ment is that an ordinary consumer would not assume that

agitating Goof Off with a brush—as the product’s label in‐

structed—would cause the product’s vapors to ignite. In

support, the Suarezes rely on the electrical engineer they re‐

tained, who opined that the broom Juan used could have

caused a static spark if it had brushed against Juan’s body,

clothing, or surroundings, and on the fire investigator they

retained, who concluded that a static spark is the likeliest

source of ignition. This was enough to create a genuine issue

of material fact as to consumer expectations.  

Barr attacks the Suarezes’ position on a number of

grounds. First, it claims that the Suarezes forfeited their con‐

tention that Goof Off was defective because agitating it with

a brush as instructed could result in a fire. We disagree.

Generally, a party has forfeited an issue on appeal if it has

failed to adequately present the issue to the district judge.

E.g., Kunz v. DeFelice, 538 F.3d 667, 681 (7th Cir. 2008). The

Suarezes allege in their amended complaint that Juan used

Goof Off “as directed” and “in a foreseeable manner,” and

the parties do not dispute that Juan “agitated” the Goof Off

with a broom as the label directs. At summary judgment, the

Suarezes repeatedly insisted that an ordinary consumer

would not be aware that a static spark could ignite Goof Off

vapors. Barr appears to believe that in pressing this point,

the Suarezes were not concerned with consumer expecta‐

tions about the source of sparks. But this ignores the fact that
12 No. 15‐3602

the Suarezes were not focused on sparks in an abstract

sense—i.e., sparks that could be created by myriad objects or

actions. Rather, as the parties’ summary‐judgment and mo‐

tion‐in‐limine briefing demonstrates, the Suarezes were con‐

cerned only with sparks caused by agitating Goof Off with a

brush in accordance with the warning label. So the Suarezes

adequately claimed that their design defect claim was prem‐

ised on the idea that Juan had suffered harm from agitating

Goof Off as directed.  

Second, Barr argues that Juan failed to act like an ordi‐

nary consumer when he ignored the warning label’s instruc‐

tion to extinguish all nearby pilot lights before applying

Goof Off. To support its position, Barr points to a medical

examination report indicating that Juan told medical treat‐

ment personnel that “[t]he pilot light in another room start‐

ed, it then sparked and started the floor on fire.” But there is

reason to doubt the accuracy of this treatment record. Juan

appears to have a poor command of English, and the treat‐

ment record does not indicate whether Juan was speaking

English, or whether the physical therapist or someone else

was translating. Moreover, at his deposition, Juan did not

recall making this statement, nor could he recall whether he

had turned off the pilot lights on the furnace or the two wa‐

ter heaters. So there is a genuine factual dispute about the

source of ignition.

Third, Barr faults Juan for using the Goof Off in his

basement, despite the label’s warning to not use Goof Off “in

areas where vapors can accumulate and concentrate such as

basements.” Cf. Taylor v. Gerry’s Ridgewood, Inc., 490 N.E.2d

987, 992 (Ill. App. Ct. 1986) (“Where a warning has been

communicated, a manufacturer is entitled to assume that the
No. 15‐3602 13

user will read and follow the furnished instructions.”); accord

Haddix v. Playtex Family Prods. Corp., 138 F.3d 681, 686 (7th

Cir. 1998). However, a genuine factual issue exists as to

whether Juan’s basement qualifies as such an area. For one,

it is unclear whether Juan’s basement was poorly ventilated,

since he claims that before using the Goof Off, he opened not

only a window in the basement but also two doors that sep‐

arated the basement from the outside. In addition, we do not

know how long Juan waited between applying Goof Off on

the floor and spreading it with his foot and broom. If this

duration was short—as Juan said it was during one point in

his deposition—it may be irrelevant that the product was

used in his basement (and not another, better‐ventilated

space).  

Finally, Barr maintains that the Suarezes have not sup‐

plied sufficient evidence indicating that static electricity ac‐

tually ignited the Goof Off vapors. Recognizing that the

Suarezes’ causation theory relies on the opinions of the

Suarezes’ electrical engineering and fire investigation ex‐

perts, Barr attacks the methodologies employed by both in‐

dividuals under Federal Rule of Evidence 702 and Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Barr criti‐

cizes Miller, the electrical engineer, for not “test[ing] the

broom’s propensity to produce or discharge an electric

charge in the circumstances presented in [Juan]’s basement.”

According to Barr, Miller should have used or agitated Goof

Off with a broom; “measure[d] the amount of electric

charge, if any, produced by agitation of Goof Off on a

grounded concrete floor”; and determined “what quantity of

static electricity, if any, would be required to ignite Goof Off

vapors.” Barr also attacks the methodology used by

Chasteen, the fire investigator, on the ground that it failed to
14 No. 15‐3602

comport with the National Fire Protection Association’s

guide for fire and explosion investigation in several vital

ways.  

Barr presented these arguments to the district judge via

two motions in limine. But the judge declined to rule on the

motions, concluding that they were rendered moot by his

decision to grant Barr’s motion for summary judgment.

Since we have concluded that the grant of summary judg‐

ment was improper, we need not resolve the issue now,

though the district judge will likely have to consider the par‐

ties’ Daubert arguments on remand. Cf. United States v. Funds

in the Amount of One Hundred Thousand One Hundred & Twen‐

ty Dollars ($100,120), 730 F.3d 711, 721 n.13 (7th Cir. 2013)

(reversing grant of summary judgment, and remanding with

recommendation that district judge consider Rule

702/Daubert arguments that were raised but not resolved at

summary judgment).

2. Risk‐Utility Test Satisfied

When applying the risk‐utility test, Illinois courts consid‐

er a numbers of factors, including: (i) the product’s utility to

the public, (ii) the likelihood and probability of foreseeable

injury to consumers, (iii) any instructions and warnings ac‐

companying the product, (iv) the nature and strength of con‐

sumer expectations, (v) the manufacturer’s ability to elimi‐

nate unsafe characteristics without excessively affecting use‐

fulness or price, (vi) the availability and feasibility of alter‐

nate designs, and (vii) conformity with any applicable indus‐

try standards and governmental regulations. Jablonski v. Ford

Motor Co., 955 N.E.2d 1138, 1154 (Ill. 2011); Mikolajczyk, 901

N.E.2d at 352.  
No. 15‐3602 15

The Suarezes have adequately shown that Goof Off does

not pass muster under the risk‐utility test. As discussed

above, the testimony from the Suarezes’ experts indicates

that using Goof Off in accordance with its warning label

poses a serious risk of injury to consumers. And this risk

very possibly exceeds the product’s utility to the public—

particularly given the fact that there exists a water‐based

version of Goof Off that is not flammable and that has been

marketed as a paint remover.  

The district judge found there to be an absence of “any

affirmative evidence” that water‐based Goof Off was a feasi‐

ble alternative to acetone‐based Goof Off for removing paint.

We conclude, however, that the Suarezes have adequately

shown that a genuine factual dispute exists as to whether

water‐based Goof Off is a cost‐effective, practical, and tech‐

nologically feasible alternative that would have prevented

Juan’s accident. Blue v. Envtl. Eng’g, Inc., 828 N.E.2d 1128,

1142–43 (Ill. 2005).

Water‐based Goof Off was clearly cost‐effective, since it

was being manufactured and distributed widely. Indeed,

Dennis Shireman, Barr’s senior director of research and de‐

velopment, testified that water‐based Goof Off is neither ex‐

tremely flammable nor flammable under “ordinary circum‐

stances,” is generally intended for consumer use, is generally

available in various sizes, and had been marketed as an ef‐

fective remover of tough spots and stains.  

The Suarezes also produced enough evidence suggesting

that water‐based Goof Off was a practical and technological‐

ly feasible alternative. One of Barr’s experts, Steven Arndt,

testified that water‐based Goof Off was one of several prod‐

ucts that Barr marketed for spot removal and would be “ap‐
16 No. 15‐3602

propriate” to use to remove paint. Moreover, it appears that

Timothy Whelan, Barr’s former senior brand manager for

Goof Off, also testified that water‐based Goof Off can serve

as a paint remover, though he noted that the acetone‐based

version removes latex‐based paint at a faster rate. In addi‐

tion, Shireman testified that Barr sells non‐flammable paint

strippers (though he did not expressly identify water‐based

Goof Off by name), and that he was unaware if Barr had in‐

dicated to consumers when it would be appropriate to use

acetone‐based Goof Off rather than the water‐based version.

In sum, we find that the Suarezes have marshalled

enough facts indicating that the risk‐utility test weighs in

their favor to survive summary judgment. See, e.g., Malen v.

MTD Prods., Inc., 628 F.3d 296, 308 (7th Cir. 2010) (conclud‐

ing that a jury could find that the design was defective

where the alternative was the defendant’s very own design,

was conceived before the product that caused the plaintiff’s

injuries was built, and was incorporated into later product

models); Hansen v. Baxter Healthcare Corp., 764 N.E.2d 35, 45–

46 (Ill. 2002) (finding that evidence supported the jury’s ver‐

dict in favor of the plaintiff’s estate where the defendant

made a different product that was designed to prevent the

harm at issue at the cost of several cents per unit).

C. Genuine Factual Dispute Regarding Alleged Defec‐

tive Design Under Negligence  

A product liability claim based on negligent design re‐

quires a plaintiff to satisfy the quintessential common law

negligence framework of duty, breach, causation, and dam‐

ages. Calles v. Scripto‐Tokai Corp., 864 N.E.2d 249, 263 (Ill.

2007). As with strict liability, a negligent design claim re‐

quires proof of an unreasonably dangerous condition, but
No. 15‐3602 17

with the added ingredient of fault on the defendant’s part.

Id. at 263–64. Fault can exist when the defendant “knew or

should have known of the risk posed by the product design

at the time of manufacture.” Id. at 264.  

We conclude that a genuine factual issue exists as to

whether Goof Off was negligently designed. As explained

above, the Suarezes have identified an unreasonably dan‐

gerous condition—the possibility that Goof Off can ignite

during the brush‐agitation process. They have also provided

sufficient evidence that Barr failed to adequately test its

product, insofar as Barr’s senior director of research and de‐

velopment acknowledged that he was unaware of any test‐

ing or internal discussions within Barr regarding static elec‐

tricity being able to ignite Goof Off. In addition, the fact that

the risk‐utility test may favor the Suarezes also supports a

finding that Barr’s conduct was unreasonable. See Jablonski,

955 N.E.2d at 1154–55 (observing that the Illinois Supreme

Court and numerous commentators have concluded that

“risk‐utility balancing remains operative in determining

whether a defendant’s conduct is reasonable in a negligent‐

design case”).

Barr faults the Suarezes for not alleging in their amended

complaint that Barr had failed to test whether Goof Off va‐

pors could be ignited by static electricity. We disagree. As a

threshold matter, a complaint need not contain every fact

necessary to survive a motion for summary judgment. See

Bennett v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998) (“Litigants

are entitled to discovery before being put to their proof, and

treating the allegations of the complaint as a statement of the

party’s proof leads to windy complaints and defeats the func‐

tion of Rule 8.”); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
18 No. 15‐3602

555 (2007) (observing that a complaint need only include “a

short and plain statement of the claim” and not “detailed

factual allegations” (citation and internal quotation marks

omitted)).  

In addition, the Suarezes clearly discussed the senior di‐

rector’s testimony in their opposition to Barr’s motion for

summary judgment. And the district judge, in granting

Barr’s motion for summary judgment, concluded that the

Suarezes had not shown that Barr had failed to test its prod‐

uct. In doing so, he did not limit his finding to any particular

type of testing. So we can reach the issue, despite the fact

that the parties may not have thoroughly briefed the issue at

summary judgment. See Hughes, 975 F.2d at 1259.

III. CONCLUSION

The judgment of the district court is AFFIRMED in part

and REVERSED in part, and the case is REMANDED for proceed‐

ings consistent with this opinion.