In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3855

DONALD MALEN and

SHARON MALEN,

Plaintiffs-Appellants,

v.

MTD PRODUCTS, INC. and

HOME DEPOT U.S.A., INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division. 

No. 05 C 6478—Charles R. Norgle, Sr., Judge.

ARGUED OCTOBER 27, 2009—DECIDED NOVEMBER 19, 2010

Before EASTERBROOK, Chief Judge, and EVANS and

WILLIAMS, Circuit Judges. 

WILLIAMS, Circuit Judge. Donald Malen slipped while

getting off his reconditioned riding lawn mower and

injured his foot on the rotating blade. He and his wife

sued the manufacturer and seller, claiming that the

mower was defective in design and construction. The
2 No. 08-3855

ANSI is a voluntary organization that develops nationwide 1

consensus standards for a variety of devices and procedures.

(continued...)

district court granted summary judgment for the defendants because undisputed evidence established that

Malen’s own actions were the sole proximate cause

of his injury. But viewing the record in the light most

favorable to the plaintiffs and taking all inferences in

their favor, we conclude that a jury could find that the

mower was both defective and the proximate cause of

Malen’s injury. Therefore, we reverse the district court’s

grant of summary judgment in favor of the defendants

and remand for further proceedings.

I. BACKGROUND

Before his injury Malen had operated riding lawn

mowers for more than 40 years. In 2001 he purchased a

Yard-Man riding mower at Home Depot that was manufactured by MTD Products in 1998 and advertised as

“Reconditioned Power Equipment” with a “Full Manufacturer’s Warranty.” The mower was designed with a

safety interlock system. One component of that system

is the Operator Presence Control, or OPC, a device

which kills the engine if the operator rises from the

seat without first disengaging the cutting blade and

setting the parking brake. A second component is the

“no cut in reverse” switch, or NCR, which kills the

engine if the operator shifts into reverse without first

disengaging the blade. The American National Standards

Institute (“ANSI”) did not make an NCR compulsory 1
No. 08-3855 3

(...continued)

Adams v. N. Ill. Gas Co., 809 N.E.2d 1248, 1254 n.2 (Ill. 2004).

ANSI standards provide evidence of the custom or practice

within an industry. Leavitt v. Farwell Tower Ltd. P’ship, 625 N.E.2d

48, 53 (Ill. App. Ct. 1993). 

until 2003, but by 1996 the organization had mandated

that riding mowers had to have an OPC that will stop

the engine and fully arrest the blade within five seconds

of being triggered. Before Malen purchased the mower,

he tested it under the supervision of a Home Depot

sales employee. During that test ride Malen never rose

from the seat with the engine running, but it is not disputed that he operated the machine in reverse while

the blade was engaged.

A label on the mower in front of the seat warns the

operator to protect against death or serious injury: 

DO NOT OPERATE THE UNIT WHERE IT

COULD SLIP OR TIP.

. . . .

BE SURE BLADE(S) AND ENGINE ARE

STOPPED BEFORE PLACING HANDS OR

FEET NEAR BLADE(S).

. . . .

BEFORE LEAVING THE OPERATOR’S POSITION, DISENGAGE BLADE(S), PLACE THE

SHIFT LEVER IN NEUTRAL, ENGAGE THE

PARKING BRAKE, SHUT OFF AND REMOVE

KEY.
4 No. 08-3855

Malen had read and understood these admonishments, and over the next three years he operated the

mower 30 to 50 times without incident. But then in

October 2004 he was mulching leaves with the mower

and wedged the right front tire over a curb. He tried

without success to free the machine by rocking his

weight in the seat and shifting gears between forward

and reverse. At that point Malen raised the cutting

deck, removed his foot from the pedal which engages

the blade, and started to dismount. But he did not turn

off the engine or listen to confirm whether the blade

had stopped spinning. It had not. As Malen rose from

the seat and stepped off the mower, his left foot slipped

under the cutting deck and was struck by the rotating

blade. The lacerations to the sole of his foot were

severe, and he will not regain full use of his foot. It is

undisputed that neither the OPC nor the NCR functioned when the accident occurred.

The Malens sued MTD Products and Home Depot in

the Circuit Court of Cook County, Illinois. Donald Malen

asserted common-law claims for strict products

liability and negligence, and his wife claimed loss of

consortium. The Malens contended that the lawn

mower manufactured by MTD Products and sold by

Home Depot was negligently manufactured and unreasonably dangerous because its OPC was not connected

and thus inoperable. They also contended that the

mower was negligently designed because MTD Products

had shunned a “fail safe” system that would have

made the cutting blade unusable even without the OPC

connected. Finally, the plaintiffs claimed that the defen-
No. 08-3855 5

dants had failed to warn the operator about the defects

in the mower. The defendants removed the suit to

federal court under diversity jurisdiction. See 28

U.S.C. §§ 1332, 1441.

At his deposition Donald Malen gave the following

account of his accident. When the right front tire

dropped over the curb and became wedged against it, he

tried to free the mower by shifting between forward

and reverse and rocking in the seat with the engine running. When this effort was unsuccessful, Malen decided

to dismount and lift the front of the mower back atop

the curb. He lifted his foot from the pedal which

engages the cutting blade; that effort, Malen thought,

had stopped the blade, but he acknowledged the possibility that the pedal had been locked into the “on” position and that removing his foot from the pedal had not

unlocked it. It was not his practice, Malen added, to

dismount a riding mower with the blade spinning, but

the engine was still running so he could not hear

whether the blade was rotating. Malen, who did not

know that the mower was designed with an OPC or NCR,

then rose from his seat and put his left foot on the

ground while swinging his right leg across the mower

to the left. He slipped, and the blade caught his left

foot and pulled him to the ground. He testified

initially that the blade struck his boot and stopped for

two to six seconds before resuming its rotation and

cutting him when he tried pulling his foot away.

Later in the deposition, however, Malen said “no” when

specifically asked whether the blade had stopped on

first contact with his boot. This apparent inconsistency
6 No. 08-3855

was never clarified. According to Malen, the entire

ordeal—from the time he drove off the curb until his

foot was cut by the blade—lasted “between 10 and 20

seconds.” And, he said, it was a “very short time,” more

than the “clap of a hand” but probably only “a couple

of seconds,” between the time he rose from the seat

and when his foot was sliced by the blade.

The defendants dispute Malen’s testimony. They rely

on the treatment notes of Dr. Narendra Patel, the

emergency-room surgeon who repaired the lacerations

on the sole of Malen’s foot. In his notes Dr. Patel wrote

that Malen had tried to dislodge the mower by planting

his left foot on the ground, lifting the mower by the

steering wheel, and stepping on the speed control. Yet

at his deposition Dr. Patel could not recall the source

of this account. And he conceded that the scenario described in his treatment notes would have resulted in

lacerations to the top, not the sole, of Malen’s foot.

Malen did not recall telling Dr. Patel how the

accident happened. And Donald Pacheco, a mechanical

engineer retained by Malen, rejected the chain of events

described by Dr. Patel. Pacheco opined that the riding

mower could not have been lifted by simultaneously

depressing the speed control (what MTD Products calls

the “go” pedal) and pulling on the steering wheel. The

opposing forces from these actions, Pacheco said,

would have canceled each other.

Pacheco’s initial inspection had verified that the mower

could be operated in forward, neutral, and reverse with

the cutting blade engaged and no weight in the seat.
No. 08-3855 7

Another inspection conducted jointly with personnel

from MTD Products reproduced this result, which, the

parties agree, could not have happened if the OPC

and NCR were functioning. Close examination disclosed

that the wiring for the OPC and NCR was not connected.

The contacts were grimy, so Pacheco knew that the

wires had not been connected for some time. And

after removing the dirt, he did not find scratches on any

of the contacts, so he concluded that neither of the

safety devices had been connected in the first place.

Moreover, Pacheco was certain that the NCR was not

connected when Home Depot sold the reconditioned

machine, since Malen had run the mower in reverse

with the blade engaged while testing it at the store.

During the joint inspection, the wires to the OPC and

the NCR were attached, and afterward both devices

functioned properly. The cutting blade came to a full

stop 2.6 seconds after the OPC was triggered, well

below the existing (and current) ANSI limit.

Based on his inspections and review of Malen’s deposition, Pacheco opined that the safety interlock system on

Malen’s reconditioned mower was defective. Pacheco

surmised that Malen had inadvertently depressed and

locked the pedal which engages the cutting blade. That

pedal, had it been unlocked, would have disengaged

the blade when Malen removed his foot. Still, Pacheco

insisted, the OPC and NCR should have protected

Malen against a blade that was locked in the “on” position.

A functioning OPC, he reasoned, would have killed the

engine as soon as Malen rose from the seat with the

blade engaged. The very purpose of an OPC, Pacheco
8 No. 08-3855

explained, is to safeguard an operator who neglects to

stop the blade before dismounting, e.g., when clearing

an obstacle from the path of the mower. Likewise,

Pacheco continued, a functioning NCR would have

shut down the engine as soon as Malen put the mower

in reverse without first disengaging the blade.

Pacheco also reported that a “fail safe” version of the

OPC was available for this Yard-Man model well before

Malen purchased his reconditioned unit. Pacheco explained that an OPC employs a switch to allow or

inhibit the flow of an electric current. The OPC utilized

when Malen’s mower was built in 1998 was configured

with a “normally closed” default: as long as the operator’s

weight remained in the seat, the OPC switch would stay

“open” and prevent current from passing. But if the

operator rose from the seat with the blade engaged, the

switch would revert to its “normally closed” position

and allow current to pass and activate a kill switch on

the engine. If an OPC of this design is not connected,

Pacheco continued, no current will ever reach and

trigger the kill switch, whether or not there is weight in

the seat. In effect, an unconnected OPC of this design is

no different than having an operator in the seat at all

times. By the time Malen’s mower was built, Pacheco

noted, MTD Products already had redesigned the OPC

to be “normally open.” The new version employed the

operator’s weight in the seat to close a switch and

allow current to pass; if the circuit was open—either

because the operator was not in the seat or the OPC was

unconnected—the engine could not run. In June 1999 a

service kit was developed to retrofit existing mowers
No. 08-3855 9

with the new design, and after December 1999 the new

design was incorporated into all newly manufactured

units. MTD Products did not issue a recall for the service

kit. Pacheco installed one on Malen’s mower and then

disconnected a wire to test whether the redesigned OPC

was “fail safe.” After the OPC was disconnected, the

engine died if the cutting blade was engaged. Pacheco

opined that Malen’s injury could not have occurred with

the new design because the cutting blade was unusable

unless the OPC was connected.

Pacheco’s assessment is corroborated by deposition

testimony from several employees of MTD Products.

Mark Holland, the company’s Manager of Standards

Compliance, tested Malen’s mower (before Pacheco

installed the service kit) and confirmed that its engine

and blade did not stop when he rose from the seat or

put the machine in reverse. According to Holland, if all

the systems were functioning correctly, the engine

should have shut down. Michael Miller, a vice president

of product development and safety, testified that the

OPC was redesigned to be “normally open” because

the “normally closed” version continued to draw current and drain the battery if the operator inadvertently

left the key in the ignition. Gunter Plamper, the vice

president of safety, conceded that MTD Products knew

that the mower as originally designed would still

operate if its safety interlock system failed. He also acknowledged that the riding mower purchased by Malen

was designed so that users could disconnect the OPC or

NCR and still use the mower, but he insisted that the

two devices could not accidentally become disconnected.
10 No. 08-3855

Plamper authenticated a management directive that

new consumer products be evaluated before production

with an eye toward “possible hazards related to the

use and/or misuse of the product.”

MTD Products and Home Depot moved for summary

judgment. The defendants argued that the Yard-Man sold

to Malen was not unreasonably dangerous because

the source of the danger—the rotating cutting blade,

according to the defendants—was open and obvious to

all users of the product. Malen knew the inherent risk,

the defendants insisted, because his normal practice

after 40 years of using riding lawn mowers was to disengage the blade before dismounting. And the particular

mower was not defective, the defendants continued,

because its OPC—when it was connected after the

accident—functioned in compliance with ANSI

standards, and Malen’s evidence had not excluded the

possibility that a third party disconnected the safety

devices before Malen purchased the mower. The defendants also insisted Malen’s own conduct, not a defect

in the mower, was the proximate cause of his injury.

Malen had testified that his foot slipped under the

cutting deck within “a very short period of time” of

touching the ground, and since the ANSI standard

allows five seconds for an OPC to arrest the blade, the

defendants reasoned that Malen would have been

injured even if the OPC had been connected.

The Malens countered that the unconnected OPC, not

the cutting blade, was the reason the reconditioned

mower was unreasonably dangerous. That danger was
No. 08-3855 11

concealed, the plaintiffs maintained, though they also

noted that Illinois does not shield against liability for

injuries caused by an “open and obvious” hazard unless

the nature of the risk outranks every other factor “to

be considered in weighing the inherent design risks

against the utility of the product as manufactured.” Blue

v. Envtl. Eng’g, Inc., 828 N.E.2d 1128, 1145 (Ill. 2005).

The plaintiffs insisted that the mower was defective

because its OPC did not work and was not designed to

be “fail safe,” but they no longer pressed their theory

that the defendants were liable for failing to warn

Donald Malen about the missing safety devices. The

plaintiffs further argued that factual questions remained

in dispute concerning the cause of Malen’s injury.

The district court granted the defendants’ motion.

Malen v. MTD Prods., Inc., No. 05 C 6478, 2008 WL 4610295,

at *9 (N.D. Ill. Oct. 10, 2008). The court accepted the defendants’ premise that the cutting blade, not the unconnected OPC, was the source of danger in the lawn

mower. Id. at *6. The court acknowledged, however, that

the defendants could not escape liability simply by asserting that all riding lawn mowers are inherently dangerous. Id. Yet the court reasoned that summary judgment was appropriate on the ground that Malen’s

conduct had been the sole cause of his accident.

According to the district court, the undisputed evidence

established that Malen “(1) drove the Mower off the curb,

(2) was aware of and understood the warning labels on

the Mower, and (3) ignored those labels by dismounting

the Mower with the cutting deck raised, the engine running, and the cutting blade engaged.” Id. at *8. This view
12 No. 08-3855

of the evidence, the court noted, was consistent with

Dr. Patel’s account of the accident. Id. at *7. And since

Malen was at fault, the court continued, it was unnecessary to decide whether the mower was defective. Id. at *6.

II. DISCUSSION

The Malens argue on appeal that the district court

erred in granting summary judgment for the defendants

on the basis that Donald Malen’s actions were the sole

proximate cause of his accident and injury. The Malens

insist that the reconditioned mower was negligently

manufactured and unreasonably dangerous because it

did not have a working OPC. The mower was also defective in design, the Malens contend, because the OPC used

by MTD Products was not “fail safe.” For their part, the

defendants finally acknowledge the Malens’ theory that

the mower was defective because of the design

and manufacture of its OPC, not because it has a cutting

blade like all lawn mowers. The defendants have

now abandoned their contention that the hazard was

open and obvious, but they still contend that the plaintiffs’ evidence would not establish that the mower was

defective or that its OPC was a “substantial” cause of

Malen’s injury. According to the defendants, the plaintiffs’ evidence does not exclude the possibility that a

third party tampered with the mower, nor does their

evidence establish that a properly functioning OPC

would have stopped the blade quickly enough to

prevent Malen’s injury. The district court was correct to

conclude, say the defendants, that Malen’s negligence

caused his injury.
No. 08-3855 13

We review the district court’s grant of summary judgment de novo. Rao v. BP Prods. N. Am., Inc., 589 F.3d 389,

395 (7th Cir. 2009). We will affirm the decision only

if, viewing the facts in the light most favorable to the

Malens, and drawing all reasonable inferences in their

favor, we conclude that no material issue of fact is

disputed and that MTD Products and Home Depot are

entitled to judgment as a matter of law. See India

Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651, 658

(7th Cir. 2010). In applying this standard we draw all

reasonable inferences and resolve factual disputes in

favor of the nonmoving party; here, the Malens. Knight

v. Wiseman, 590 F.3d 458, 462 (7th Cir. 2009).

A federal court sitting in diversity applies state substantive law, Milwaukee Metro. Sewerage Dist. v. Am. Int’l

Specialty Lines Ins. Co., 598 F.3d 311, 316 (7th Cir. 2010);

Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.

2005), and the parties agree that Illinois law governs here.

To prevail on a claim of strict products liability, the

plaintiffs would have to prove that Malen’s injury

resulted from a condition which is attributable to the

defendants and made the mower unreasonably dangerous. See Kelso v. Bayer Corp., 398 F.3d 640, 642 (7th

Cir. 2005) (applying Illinois law); Mikolajczyk v. Ford

Motor Co., 901 N.E.2d 329, 335 (Ill. 2008); Hammond v.

N. Am. Asbestos Corp., 454 N.E.2d 210, 216-17 (Ill. 1983).

To prevail on their claim of negligence, the plaintiffs

would have to prove that the construction or design of

the mower breached a duty of care and was the

proximate cause of Malen’s injury. See Johnson v. Wal-Mart

Stores, Inc., 588 F.3d 439, 441 (7th Cir. 2009) (applying
14 No. 08-3855

Illinois law); Lewis v. CITGO Petroleum Corp., 561 F.3d

698, 702 (7th Cir.), cert. denied, 130 S. Ct. 1025 (2009) (applying Illinois law); Calles v. Scripto-Tokai Corp., 864

N.E.2d 249, 263 (Ill. 2007); Blue, 828 N.E.2d at 1141-42;

Jablonski v. Ford Motor Co., 923 N.E.2d 347, 366 (Ill. App.

Ct.), appeal allowed, 932 N.E.2d 1030 (2010). Proof of causation, the linchpin of the district court’s decision, is

essential to both theories of liability. See Suzik v. Sea-Land

Corp., 89 F.3d 345, 348 (7th Cir. 1996) (applying Illinois

law); Kleen v. Homak Mfg. Co., 749 N.E.2d 26, 29 (Ill. App.

Ct. 2001); Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320,

335 (Ill. App. Ct. 1991). We conclude that the district

court erred when it granted summary judgment for

MTD Products and Home Depot because a reasonable

jury could find that Malen’s lawn mower was defective

in construction and design, and was the proximate cause

of his injury.

A. A Jury Could Find that the Lawn Mower was

Defective.

The defendants argued on summary judgment that

Malen’s evidence would not sustain a jury finding that

his reconditioned Yard-Man was unreasonably dangerous, or that it was negligently designed and assembled.

The district court did not reach this contention, but the

defendants are free to renew it and do. See Bivens v. Trent,

591 F.3d 555, 559 (7th Cir. 2010); Srail v. Vill. of Lisle, Ill.,

588 F.3d 940, 943 (7th Cir. 2009).

A jury could find that a riding lawn mower is

defective if the machine lacks an OPC to stop the blade
No. 08-3855 15

should the operator lose control or disembark with the

blade engaged. Hubbard v. McDonough Power Equip., Inc.,

404 N.E.2d 311, 315-17 (Ill. App. Ct. 1980); accord Norton

v. Snapper Power Equip., Div. of Fuqua Indus., 806 F.2d

1545, 1550 (11th Cir. 1987) (applying Florida law); Eyre

v. McDonough Power Equip., Inc., 755 F.2d 416, 420 (5th

Cir. 1985) (applying Louisiana law); see 33 AM. JUR. 2D

Products Liability–Defective Design of Rotary Mower § 12

(1983 & Supp. 2005). MTD Products and Home Depot

have not questioned the plaintiffs’ premise that a riding

mower sold without a working OPC would fall short

of industry standards and be defective, nor have they

disputed that the reconditioned mower purchased by

Malen did not have a functioning OPC (or NCR) at the

time of his accident. Still, the defendants maintain, a

jury could not find that the mower was defective because it was designed with an OPC, the device functioned within the ANSI parameter when connected

after the accident, and the plaintiffs did not exclude

the possibility that a third party disconnected the OPC

after the mower was built in 1998.

Manufacturers and sellers are strictly liable for injuries

caused by unreasonably dangerous products unless an

unforeseen alteration by a third party introduced the

unsafe condition. See Peterson v. Lou Bachrodt Chevrolet

Co., 329 N.E.2d 785, 786-87 (Ill. 1975); Brdar v. Cottrell, Inc.,

867 N.E.2d 1085, 1099 (Ill. App. Ct. 2007); Monreal v.

Waterbury-Farrel Foundry & Mach. Co., 646 N.E.2d 1337,

1340 (Ill. App. Ct. 1995); Wiedemann v. Indus. Erectors, Inc.,

483 N.E.2d 990, 997-98 (Ill. App. Ct. 1985). In this case

MTD Products and Home Depot speculate that at some
16 No. 08-3855

point after assembly a “nefarious” person—perhaps

even Malen—tampered with the mower and disconnected its OPC and NCR. And yet Malen testified that

he did not disconnect either safety device after buying

the mower, and the defendants produced no evidence

to the contrary. Nor did they suggest that an interloper

snuck into Malen’s storage shed and disconnected

these features. The principal inference the defendants

seek to create is that a prior owner altered the lawn

mower, but Donald Pacheco, Malen’s expert, testified at

his deposition that there were no scratches on the

contacts where the wiring for the OPC and NCR should

have been connected at the factory, a fact that led

Pacheco to surmise that these safety devices were never

connected before the accident.

The defendants did not submit much of their own

evidence to directly challenge Pacheco’s conclusion.

Daniel Martens, the manufacturer’s chief engineer

for product safety, testified at his deposition that postproduction quality assurance for this Yard-Man model

was outsourced to ABS Technical Services; only a small

number of units were shipped to company headquarters

for an internal “audit,” and Martens had not located

evidence suggesting that Malen’s mower was one of

them. Martens insisted that a written protocol governed inspections done by ABS, but he did not produce

a protocol and could not identify the purported document by name or even describe its contents. ABS did

have a check-box form to document its inspections, but

Martens conceded that the form was not always used

and that MTD Products had not found a completed
No. 08-3855 17

form for the mower purchased by Malen. At his deposition Martens authenticated a completed form corresponding to a similar mower that had “passed” inspection by ABS, but he could not explain why the

individual check box to verify testing of the OPC was

unmarked. Nor was an explanation supplied by Mark

Holland, who was responsible for standards compliance

at MTD Products. Holland speculated that ABS had

probably been unconcerned with the “little detail

stuff” and was focused on a “bottom line” determination

of whether the unit had passed or failed. And yet

Holland was certain, he said, that ABS would have

tested the OPC. The testimony from these witnesses

does not foreclose the likelihood that the mower left the

factory without a functioning safety interlock system.

See United States v. Warner, 498 F.3d 666, 692-93 (7th Cir.

2007) (excluded evidence of previous sporadic rate increases was not type of regular response to specific,

repetitive situation that would allow finder of fact to

infer that increase initiated by defendants was routine);

Thompson v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994) (under

Federal Rule of Evidence 406 habit is established only

through evidence of practice sufficiently uniform and

regular that finder of fact could conclude that practice

was undertaken almost always); Simplex, Inc. v. Diversified

Energy Sys., Inc., 847 F.2d 1290, 1293-94 (7th Cir. 1988)

(district court properly refused to admit evidence of late

deliveries and defective performance on unrelated contracts as evidence that company’s “habit” was to engage

in such practices). Neither witness was qualified to

say how ABS routinely conducted its testing, and their
18 No. 08-3855

speculation about the regularity or thoroughness of the

process would not preclude a jury from inferring that

Malen’s mower was never subjected to a comprehensive inspection procedure that was uniformly applied to

all production. See Truhlar v. U.S. Postal Serv., 600 F.3d

888, 893 (7th Cir. 2010) (speculation about motive for

union representative’s conduct was insufficient to

resolve issue at summary judgment); Malawy v. Richards

Mfg. Co., 501 N.E.2d 376, 390-91 (Ill. App. Ct. 1986) (manufacturer of failed medical device could not overcome

summary judgment on claim for indemnity against hospital by relying on expert’s speculation that unknown

hospital employee had mishandled device); Tardella v.

RJR Nabisco, Inc., 178 A.D.2d 737, 737-38 (N.Y. App.

Div. 1991) (summary judgment proper for candy manufacturer where company’s detailed evidence of qualityassurance procedures would preclude jury from reasonably finding that pin in plaintiff’s candy bar was

present when it left factory).

On this record, then, a jury reasonably could find that

Malen’s mower was shipped from the factory in 1998

with its OPC still unconnected. That defect would

make the mower unreasonably dangerous if the theory

is strict products liability. And the very nature of the

defect—a safety device that would have functioned

except that it was never wired during assembly—also

establishes a breach of the standard of care if the theory

is negligent manufacture. See Todd v. Societe Bic, S.A.,

21 F.3d 1402, 1412 (7th Cir. 1994) (en banc) (applying

Illinois law of negligent design); Phillips v. U.S. Waco

Corp., 516 N.E.2d 670, 674 (Ill. App. Ct. 1987) (same).
No. 08-3855 19

Significantly, though, the defendants have not

explained why it matters for strict liability whether the

OPC was connected during assembly. As noted, the

exclusion of liability for unsafe conditions created by

consumers does not hold for modifications that are foreseeable and easily accomplished. Brdar, 867 N.E.2d at

1099; Davis v. Pak-Mor Mfg. Co., 672 N.E.2d 771, 775 (Ill.

App. Ct. 1996); Woods v. Graham Eng’g Corp., 539 N.E.2d

316, 318-19 (Ill. App. Ct. 1989); Wiedemann, 483 N.E.2d at

997-98; DeArmond v. Hoover Ball & Bearing, Uniloy Div., 408

N.E.2d 771, 774 (Ill. App. Ct. 1980). During discovery

MTD Products disclosed that consumers easily could

override the OPC on the Yard-Man model owned by

Malen; apparently it was enough to yank a single

lead from its terminal. What’s more, the defendants

admitted that Malen’s lawn mower was designed to

permit continued operation if the OPC was unconnected. According to Gunter Plamper, the vice president of

safety, MTD Products had expected that some

owners would dislike the OPC and try to override it;

the company had feared that greater damage and

further safety issues might arise if the process of defeating the OPC was made complicated. Perhaps this

testimony was intended to bolster the inference that the

OPC was disconnected after the lawn mower left the

factory in 1998.

The defendants also ignore another wrinkle. What if

MTD Products had not anticipated tampering or had

made the task of disconnecting the OPC difficult? With

strict liability, unforeseen defects introduced by prior

owners cannot be attributed to manufacturers or sellers
20 No. 08-3855

when used goods are marketed as-is. See Court v.

Grzelinksi, 379 N.E.2d 281, 282 (Ill. 1978); Peterson, 329

N.E.2d at 786-87; Timm v. Indian Springs Recreation Ass’n,

543 N.E.2d 538, 541-42 (Ill. App. Ct. 1989); Abel v. Gen.

Motors Corp., 507 N.E.2d 1369, 1376 (Ill. App. Ct.

1987). But Home Depot did not sell the mower to Malen

“as-is.” He bought a “reconditioned” unit backed by a

“full manufacturer’s warranty”; that much is beyond

dispute because the advertisement is in evidence. What’s

missing are details about the reconditioning. We cannot

tell from the record whether the defendants ever

complied with a discovery demand to identify who

reconditioned the mower; at summary judgment

MTD Products simply denied performing the work and

implied that it relies on “authorized dealers,” which

Home Depot was not. And yet the defendants have not

suggested that Home Depot’s ad was false or misleading, or that Malen was told by the sales associate

that “reconditioned” really meant something less.

We have not found a controlling Illinois decision, but

the defendants do not contend that Illinois courts would

distinguish “reconditioned” products from those newly

manufactured. Reconditioning or remanufacturing a

product is different from servicing or repairing the

item. Reconditioning extends the useful life beyond what

was contemplated at the point of manufacture and effectively creates a new product. This court and others have

recognized the distinction in assessing when a product is

“first” sold for purposes of a statute of limitations or

repose. See Richardson v. Gallo Equip. Co., 990 F.2d 330,

331 (7th Cir. 1993) (applying Indiana law); Arnold v.
No. 08-3855 21

Riddell, Inc., 882 F. Supp. 979, 987 (D. Kan. 1995)

(applying Kansas law); Divis v. Clarklift of Neb., Inc., 590

N.W.2d 696, 700-01 (Neb. 1999). The distinction was

also noted in Tidemann v. Nadler Golf Car Sales, Inc., 224

F.3d 719, 725 (7th Cir. 2000), a diversity action that included a claim of strict products liability under Illinois

law. In that case the plaintiff had argued that reconditioned products, unlike used goods marketed without

alteration, should be characterized as new rather than

used, in particular when advertised as “like new.” Id. We

passed on whether the Illinois courts would endorse

this position, id. at 726, but we recognized its acceptance

in the Restatement (Third) of Torts, which underscores

that consumers expect remanufactured or reconditioned

products to present no greater risk of defect than

if new, RESTATEMENT (THIRD) OF TORTS: PRODUCTS

LIABILITY § 8(c), cmt. I (1998); see also 63A AM. JUR. 2D

Products Liability § 1302; AM.LAW OF PRODUCTS LIABILITY 3d

§ 37:8 (2010). The Restatement adopts the position

that strict products liability is appropriate for remanufactured products, RESTATEMENT (THIRD) OF TORTS : PRODUCTS LIABILITY § 8(c) (1998), and the Illinois courts

typically endorse the Restatement position in the absence

of controlling authority, e.g., Eckburg v. Presbytery of

Blackhawk of Presbyterian Church (USA), 918 N.E.2d 1184,

1190 (Ill. App. Ct. 2009); Vena v. Vena, 899 N.E.2d 522, 526

(Ill. App. Ct. 2008); Randall v. Lemke, 726 N.E.2d 183, 185

(Ill. App. Ct. 2000); Pratt v. Kilborn Motors, Inc., 363 N.E.2d

452, 454 (Ill. App. Ct. 1977). Courts in other states

already have recognized that rebuilding or reconditioning a used product is akin to first manufacture and
22 No. 08-3855

thus the commercial sale of a reconditioned product

can give rise to a claim of strict liability. Peterson v. Super.

Ct., 899 P.2d 905, 914 (Cal. 1995); Arriaga v. CitiCapital

Commercial Corp., 85 Cal. Rptr. 3d 143, 153 (Cal. Ct. App.

2008); Gaumer v. Rossville Truck & Tractor Co., Inc., 202 P.3d

81, 86-87 (Kan. Ct. App. 2009); Michalko v. Cooke Color &

Chem. Corp., 451 A.2d 179, 183 (N.J. 1982); Anderson v.

Olmstead Util. Equip., Inc., 573 N.E.2d 626, 629-30 (Ohio

1991); Crandell v. Larkin & Jones Appliance Co., 334

N.W.2d 31, 34 (S.D. 1983).

The plaintiffs have produced enough evidence to establish, by any of several means, that Malen’s mower

was unreasonably dangerous. And the evidence that

the OPC was never connected at the factory also

provides the foundation for the plaintiffs’ claim against

MTD Products for negligent manufacture. What’s left is

the plaintiffs’ contention that the mower was further

defective in design because its OPC was not “fail safe.” On

this question, too, there is sufficient evidence for a jury

to find for the plaintiffs.

To establish liability on a theory of negligent design,

a plaintiff must show duty, breach, proximate cause, and

damages. See, e.g., Calles, 864 N.E.2d at 263; Jablonski,

923 N.E.2d at 366. Although strict liability is concerned

only with the condition of the product, negligence

involves a defendant’s fault in addition to the product’s

condition. Calles, 864 N.E.2d at 263-64; Jablonski, 923

N.E.2d at 366; Henry v. Panasonic Factory Automation Co.,

917 N.E.2d 1086, 1091 (Ill. App. Ct. 2009). So in addition

to showing that the product was defective, the plaintiff
No. 08-3855 23

must show that the manufacturer knew (or should have

known) that the product was unsafe. Calles, 864 N.E.2d

at 264; Jablonski, 923 N.E.2d at 367; Sobczak v. Gen. Motors

Corp., 871 N.E.2d 82, 94 (Ill. App. Ct. 2007).

MTD Products insists that the design of the YardMan could not have been negligent because the design

incorporated an OPC. But that contention misunderstands Malen’s claim. He does not contend that the

design was flawed because no provision was made for

an OPC; he claims instead that MTD Products should

have made the OPC “fail safe,” meaning that if (and in

Malen’s case, when) the OPC failed, the mower should

have been inoperable. A design defect is established by

evidence of a practical, cost-effective alternative that

was technologically feasible and would have prevented

Malen’s injury. See Hansen v. Baxter Healthcare Corp., 764

N.E.2d 35, 45 (Ill. 2002); Kerns v. Engelke, 390 N.E.2d

859, 863 (Ill. 1979); Stallings v. Black & Decker (U.S.), Inc., 796

N.E.2d 143, 149 (Ill. App. Ct. 2003). Malen’s expert,

Pacheco, identified the service kit issued in June 1999 as

a safer, readily available alternative. Under this “normally

open” design, if the safety interlock system failed, the

mower became inoperable. This revision, Pacheco

noted, was first contemplated in October 1997, before

Malen’s mower was constructed, and the service kit to

retrofit existing units was released before Malen’s mower

was reconditioned. That the revision was MTD Products’

very own design, was conceived before Malen’s mower

was built, and was incorporated into later models

is evidence from which a jury could find that the

original, “normally closed” design was defective.
24 No. 08-3855

See Jablonski, 923 N.E.2d at 370-71 (concluding that

whether manufacturer breached standard of care in

design of gas tank was jury question where plaintiff’s

expert stated that manufacturer’s upgrade kit evidenced

safe and feasible alternative); Sobczak, 871 N.E.2d at 94-95

(concluding that jury should decide if design of fuelmanagement system was defective where manufacturer’s engineers had acknowledged that company

knew of safer alternative).

MTD Products countered that its redesign was not

“foolproof” and thus could not raise an inference that

the original design was defective. Again the company

misses the point. Though Pacheco acknowledged that

a consumer could conceivably bypass the new, “normally

open” design, he also testified that the design was “fail

safe”: If the redesigned OPC was left unconnected at the

factory or became disconnected without the consumer’s

knowledge, the mower would not run with the cutting

blade engaged. A determined consumer might have

been able to rewire the mower to bypass the OPC—i.e.,

the redesign was not foolproof—but it was undisputed

that Malen’s injury could not have occurred had he

been using a Yard-Man with the redesigned safety interlock system. See Berrier v. Simplicity Mfg., Inc., 563 F.3d

38, 63-64 (3d Cir. 2009) (applying Pennsylvania law in

concluding that newly designed NCR, even though it

could be bypassed, could have lessened or eliminated

plaintiff’s injury and thus evidenced that original design

was defective); Eyre, 755 F.2d at 419-20 (applying

Louisiana law in concluding that district court erred

in setting aside verdict for plaintiff who proved that
No. 08-3855 25

feasible redesign of OPC would have prevented injuries

sustained when plaintiff fell from riding mower).

Based on what we have explained above, we

conclude that a reasonable jury could find that the

lawn mower was defective.

B. A Jury Could Conclude that the Mower Was the

Proximate Cause of the Injury.

The district court concluded, however, that Malen’s

evidence establishes that he was injured because of his

own negligence and not because of the defective

mower; the defendants press this contention on appeal.

Proximate cause encompasses two requirements: cause-infact and legal cause. Young v. Bryco Arms, 821 N.E.2d

1078, 1085-86 (Ill. 2004); Lee v. Chi. Transit Auth., 605 N.E.2d

493, 502 (Ill. 1992). If multiple factors have combined

to cause an injury, Illinois law asks whether the defendant’s conduct was a “substantial factor” in bringing

about the injury. Young, 821 N.E.2d at 1086; Coole v. Cent.

Area Recycling, 893 N.E.2d 303, 310 (Ill. App. Ct. 2008).

Drawing all inferences in favor of the plaintiffs, and

viewing the facts in the light most favorable to them,

we conclude that a trier of fact reasonably could find

that the defective condition of the mower was the proximate cause of Malen’s injury.

The defendants argue that no matter the theory of

liability (strict liability or negligence) or the mower

Malen would have been using (his own Yard-Man or one

like it with the “fail safe” safety interlock system), the
26 No. 08-3855

timing of the events leading to his injury makes the

existence of the OPC or safety interlock system irrelevant. According to the defendants, Malen was

injured too quickly for the OPC to have made any difference. If this contention had been established conclusively by the evidence in the record, summary judgment for the defendants would have been appropriate.

See Kirby v. Langston’s Furniture & Appliance, Inc., 631 So. 2d

1301, 1304 (La. Ct. App. 1994) (affirming judgment for

lawn mower manufacturer on products-liability claim

where plaintiff did not produce evidence that the

presence of OPC would have prevented injury); Gauthier

v. McDonough Power Equip., Inc., 608 So. 2d 1086, 1090-91

(La. Ct. App. 1992) (same); Wenzell v. MTD Prods., Inc., 336

N.E.2d 125, 132-33 (Ill. App. Ct. 1975) (affirming verdict

for manufacturer of lawn mower where plaintiff failed

to introduce evidence that mower’s allegedly defective

chain and sprocket caused injury). But the defendants

start their clock from the point when Malen rose from

the seat, and that is too late. The Yard-Man was

equipped with an NCR, and had it been connected the

motor would have died before Malen stood up. Malen

already had shifted into reverse while trying to rock the

mower free, so the NCR should have shut power to

the engine because the blade was still engaged. More

importantly, though, the time frame is subject to dispute.

Malen testified that the whole ordeal—from when he

tried to rock the mower free to when he cut his foot—lasted

between 10 and 20 seconds, well beyond even the 5-

second ANSI standard. And when the OPC was connected after the accident, the blade fully stopped in 2.6
No. 08-3855 27

seconds, only a fraction of a second longer than Malen’s

guess about the shortest possible interval between when

he started to rise from the seat and when the blade

first struck his foot. Malen was wearing a boot and the

defendants submitted no evidence suggesting that a

blade about to come to a full stop would have injured

Malen’s foot to the same extent as a blade turning unabated at full power. The evidence must be viewed

from the perspective most favorable to the plaintiffs, but

even the scenario favoring the defendants would have

given the blade time to stop before Malen tried to

extract his foot from the cutting deck. In fact, however,

the cutting blade continued to spin.

The defendants’ principal argument though—and the

basis of the district court’s decision—is that Malen’s own

conduct and not the defective mower was the legal

cause of his injury. Legal cause is established if the defendant’s conduct is so closely tied to the plaintiff’s

injury that the defendant should be held legally responsible. Simmons v. Garces, 763 N.E.2d 720, 732 (Ill. 2002);

McCraw v. Cegielski, 680 N.E.2d 394, 396 (Ill. App. Ct.

1996). Legal cause involves an assessment of foreseeability, in which Illinois courts ask whether the injury is

of a type that a reasonable person would foresee as a

likely result of his conduct. Young, 821 N.E.2d at 1086; Lee,

605 N.E.2d at 503. The district court reasoned that

the defendants “could not have foreseen that any individual would drive a riding mower off a curb and dismount that mower with the cutting blades still engaged,

all the while ignoring clearly placed warning labels

cautioning the operator to turn off the engine and blades

before dismounting.” Malen, 2008 WL 4610295, at *8.
28 No. 08-3855

If Malen’s conduct is relevant at all, the fact that he

drove the mower off the curb is not. And neither is it

relevant that he tried to dislodge the machine by

shifting between forward and reverse while rocking the

mower. The defendants did not submit any evidence

that the mower’s position on the curb caused Malen to

slip or that the cutting deck was tilted in a way that

exposed the blade. That the mower was wedged on the

curb was Malen’s motive for dismounting but, as far as

this record shows, that is all. And when Malen dismounted, he already had ceased rocking the machine, so

his unsuccessful use of this maneuver had no bearing

on his injury. The defendants have never contended that

while rocking the mower he lost his balance and fell

beneath the blade.

Malen’s disregard of a warning label directing him

to shut off the engine before dismounting at least has

superficial appeal, but this does not resolve the issue

here. The plaintiffs concede that Malen had read and

comprehended the printed warning label on the mower,

and if the plaintiffs were still pursuing a claim for

failure to warn about the unconnected OPC and NCR, the

defendants might be able to rely on the label in

defending that claim. See Werckenthein v. Bucher Petrochemical Co., 618 N.E.2d 902, 908-09 (Ill. App. Ct. 1993);

Taylor v. Gerry’s Ridgewood, Inc., 490 N.E.2d 987, 991-92

(Ill. App. Ct. 1986). But at summary judgment the plaintiffs abandoned their claim of a failure to warn, and

the warning label on the mower has no bearing on the

plaintiffs’ remaining claims. If the mower was defective

because of an unconnected or poorly designed safety
No. 08-3855 29

interlock system, warnings could not erase the defect or

make the machine safe. See Chapman v. Maytag Corp., 297

F.3d 682, 689 (7th Cir. 2002) (applying Indiana law);

Glover v. BIC Corp., 6 F.3d 1318, 1323 (9th Cir. 1993) (applying Oregon law); Needham v. White Labs., Inc., 639

F.2d 394, 400 (7th Cir. 1981) (applying Illinois law).

In any event, when warnings are relevant, a jury ordinarily must decide whether the failure to follow them

rendered a plaintiff’s conduct unforeseeable. See Wheeler

v. Sunbelt Tool Co., 537 N.E.2d 1332, 1343 (Ill. App. Ct.

1989); Thibault v. Sears, Roebuck & Co., 395 A.2d 843, 847

(N.H. 1978). And on this record nothing favors a

decision for the defendants. Pacheco, Malen’s expert,

testified at his deposition that the Yard-Man’s design

allowed an operator to leave the mower running,

dismount temporarily to move debris, and then resume

mowing. Removing debris from the mower’s path is a

routine precaution that any careful operator would be

expected to take, see Campbell v. Kovich, 731 N.W.2d 112,

115-16 (Mich. Ct. App. 2006); Gore v. Ohio Dep’t of

Transp., 774 N.E.2d 817, 820 (Ohio Ct. Cl. 2002), and

Pacheco opined that doing so without shutting off the

engine is an acceptable practice so long as the mower

is not left unattended. That ANSI standards mandate

equipping riding lawn mowers with an OPC—a device

intended to protect operators who dismount with the

engine running—confirms that dismounting temporarily

while leaving the engine running is common and

ordinary use of a riding mower. See Kirby, 631 So. 2d

at 1303.
30 No. 08-3855

Even if the defendants are correct that Malen was

himself negligent and that it mattered, accidents are

natural, foreseeable consequences of using certain products. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 16 cmt. a (1998); Buehler v. Whalen, 374

N.E.2d 460, 464-65 (Ill. 1977); Bean v. Volkswagenwerk

Aktiengesellschaft of Wolfsburg, Germany, 440 N.E.2d 426, 429

(Ill. App. Ct. 1982). This principle is known as the

crashworthiness doctrine (or the “enhanced injury” or

“second collision” doctrine), which Illinois has adopted.

Buehler, 374 N.E.2d at 464-65; see DePaepe v. Gen. Motors

Corp., 33 F.3d 737, 739 (7th Cir. 1994) (applying Illinois

law); Nanda v. Ford Motor Co., 509 F.2d 213, 217-18 (7th

Cir. 1974) (applying Illinois law); Mack v. Ford Motor Co.,

669 N.E.2d 608, 612 (Ill. App. Ct. 1996); Oakes v. Gen. Motors

Corp., 628 N.E.2d 341, 345 (Ill. App. Ct. 1994); Seward v.

Griffin, 452 N.E.2d 558, 568 (Ill. App. Ct. 1983); Bean, 440

N.E.2d at 429; Stahl v. Ford Motor Co., 381 N.E.2d 1211,

1214-15 (Ill. App. Ct. 1978). The doctrine applies to both

strict liability and negligence, and to every person involved

in the overall enterprise of a product, including distributors and retailers. See Abco Metals Corp. v. Equico Lessors,

Inc., 721 F.2d 583, 584 (7th Cir. 1983) (applying Illinois law);

Nanda, 509 F.2d at 219; Buehler, 374 N.E.2d at 465; Dunham

v. Vaughan & Bushnell Mfg. Co., 247 N.E.2d 401, 404 (Ill.

1969). The premise underlying the crashworthiness doctrine is that some products, although not made for certain

purposes—such as accidents—should nevertheless be reasonably designed to minimize the injury-producing effect

of an accident. Bean, 440 N.E.2d at 429; see Tafoya v. Sears

Roebuck & Co., 884 F.2d 1330, 1337 (10th Cir. 1989), overruled
No. 08-3855 31

on other grounds, Mile Hi Concrete, Inc. v. Matz, 842 P.2d

198, 206 n.17 (Colo. 1992). A defect is not merely the

conclusion that the product failed and caused injury,

but that the product failed to provide the consumer

with reasonable protection under the circumstances surrounding a particular accident. Whitted v. Gen. Motors Corp.,

58 F.3d 1200, 1205-06 (7th Cir. 1995) (applying Indiana

law). The crashworthiness doctrine is consistent with the

idea that although a defendant’s conduct is not a proximate cause if some intervening act supersedes the defendant’s negligence, a reasonably foreseeable intervening

act, such as an accident, does not relieve the defendant

of liability. See Bentley v. Saunemin Twp., 413 N.E.2d

1242, 1245 (Ill. 1980); Mack, 669 N.E.2d at 613.

If the crashworthiness doctrine applies to riding

mowers, the defendants were required to foresee certain

accidents in the use of the mower—much like an auto

manufacturer must foresee that its cars will sometimes

be involved in accidents—and to provide consumers

with reasonable protections under the circumstances

surrounding particular accidents. Illinois has applied

the doctrine to automobiles, Buehler, 374 N.E.2d at 464;

Mack, 669 N.E.2d at 612; Oakes, 628 N.E.2d at 345;

Bean, 440 N.E.2d at 428-29, but its highest court has not

specifically addressed whether the crashworthiness doctrine applies to riding mowers.

The Restatement (Third) of Torts recognizes that the

crashworthiness doctrine applies outside the automobile

context. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS

LIABILITY § 16 cmt. a (1998). Other jurisdictions have
32 No. 08-3855

extended the doctrine to motorcycles, Miller v. Todd, 551

N.E.2d 1139, 1142 (Ind. 1990); McDowell v. Kawasaki

Motors Corp. USA, 799 S.W.2d 854, 865-66 (Mo. Ct. App.

1990); airplanes, McGee v. Cessna Aircraft Co., 188 Cal. Rptr.

542, 551 (Cal. Ct. App. 1983); Duncan v. Cessna Aircraft Co.,

632 S.W.2d 375, 382-83 (Tex. App. 1982) (applying New

Mexico law), overruled on other grounds, 665 S.W.2d 414

(Tex. 1984); boat engines, Pree v. Brunswick Corp., 983 F.2d

863, 866 (8th Cir. 1993) (applying Missouri law); Rubin v.

Brutus Corp., 487 So. 2d 360, 363-64 (Fla. Dist. Ct. App.

1986); fork lifts, Weir v. Crown Equip. Corp., 217 F.3d 453,

460-61 (7th Cir. 2000) (applying Indiana law); Habecker v.

Clark Equip. Co., 942 F.2d 210, 214 (3d Cir. 1991) (applying

Pennsylvania law); snowmobiles, Smith v. Ariens Co., 377

N.E.2d 954, 957 (Mass. 1978); and tractors, Kutsugeras v.

AVCO Corp., 973 F.2d 1341, 1346 (7th Cir. 1992) (applying

Wisconsin law); Roe v. Deere & Co., 855 F.2d 151, 153 (3d

Cir. 1988) (applying Pennsylvania law). We have not

found an Illinois decision on point, but several states

have explicitly recognized the application of the doctrine

to riding mowers. Baker v. Outboard Marine Corp., 595

F.2d 176, 177 n.1 (3d Cir. 1979) (applying Pennsylvania

law); Tafoya, 884 F.2d at 1338-39 (applying Colorado

law); Young v. Deere & Co., 818 F. Supp. 1420, 1422 (D. Kan.

1992) (applying Kansas law); Harrison v. McDonough

Power Equip., Inc., 381 F. Supp. 926, 930 (S.D. Fla. 1974)

(applying Florida law).

We see no principled basis to conclude that Illinois

courts would require car manufacturers to foresee that

accidents occur with automobiles, while allowing manu-
No. 08-3855 33

facturers of riding mowers to pretend that accidents

involving riding mowers are uncommon. Accidents on

riding mowers are foreseeable just as accidents on our

roadways are. See CONSUMER PRODUCT SAFETY COMMISSION, RIDING LAWN MOWERS, http://www.cpsc.gov/

cpscpub/pubs/588.html (last visited Nov. 15, 2010) (estimating that 37,000 injuries related to riding-mower accidents were treated annually in hospital emergency

rooms from 2003 through 2005); Vanessa Costilla & David

M. Bishai, Lawnmower Injuries in the United States: 1996 to

2004, 47 ANNALS OF EMERGENCY MEDICINE 567, 569-70

(2006) (finding that between 1996 and 2004 the primary

diagnosis was laceration for the 663,393 lawnmower

injuries treated in United States emergency rooms). And

the OPC is aimed at the precise circumstance in this

case: an extremity comes into contact with the cutting

blade while the operator is not fully in control of the

mower. See Klein v. Sears Roebuck & Co., 773 F.2d 1421,

1425 n.2 (4th Cir. 1985) (applying Maryland law);

Southland Mower Co. v. Consumer Prod. Safety Comm’n, 619

F.2d 499, 514 (5th Cir. 1980); Winters v. Country Home Prods.,

Inc., 654 F. Supp. 2d 1173, 1178 (D. Mont. 2009) (applying

Montana law). Given the number of accidents, and that

Illinois law recognizes that accidents are foreseeable

when using certain products, Malen’s injury here had to

have been anticipated. What Malen did with the

mower here may not have made him a model user, but

that is not dispositive for the purposes of the crashworthiness doctrine.

And so the district court’s conclusion that

Malen’s behavior broke the chain of causation when he

disregarded an explicit warning is not consistent with
34 No. 08-3855

MTD Products and Home Depot also assert that the absence 2

of the ineffectual safety interlock system could not have been

a substantial factor in causing Malen’s injury because Malen

did not know that the Yard-Man had an OPC or NCR and so

he could not have been expecting the devices to protect

him when he dismounted with the blade engaged. In the

defendants’ view, since Malen did not know that the mower

was (theoretically) equipped with an OPC, he “cannot say that

his actions would have been different had the OPC been

(continued...)

the crashworthiness doctrine as adopted in Illinois. A

jury could still conclude that the mower was unreasonably dangerous and that the absence of functional

safety mechanisms was the proximate cause of Malen’s

injury. See Black v. M & W Gear Co., 269 F.3d 1220, 1236

(10th Cir. 2001) (applying Oklahoma law in concluding

that evidence of plaintiff’s alcohol consumption was

irrelevant to show causation when plaintiff’s claim

that mower lacking roll-over-protection was not crashworthy); Pree, 983 F.2d at 866 n.3 (applying Missouri

law and stating that evidence of operator’s intoxication

is irrelevant in a strict tort liability action under

crashworthiness doctrine). Whether or not Malen

initiated a chain of events that ended with him being

injured—by wedging the mower on the curb, attempting

to rock it loose, and dismounting without cutting the

engine—the crashworthiness doctrine obligated the

defendants to foresee the potential for this type of accident. Thus, summary judgment for the defendants on

this ground was improper.2
No. 08-3855 35

(...continued)

connected.” But when Malen dismounted he thought the

blade had stopped. He testified that he lifted his foot off

the blade engagement pedal and did not know that he had

inadvertently locked the pedal down. 

Lastly, even if Malen’s actions can be characterized

as negligent, this goes only to apportioning comparative

fault. Under Illinois law, whether a claim is based on

negligence or strict products liability, an injured party

is barred from recovering only if the trier of fact finds

that his conduct was more than 50% of the proximate

cause of the injury for which recovery is sought. 735 ILCS

5/2-1116; Tidemann, 224 F.3d at 725; Freislinger v. Emro

Propane Co., 99 F.3d 1412, 1417 (7th Cir. 1996) (applying

Illinois law); Williams v. Brown Mfg. Co., 261 N.E.2d 305,

310 (Ill. 1970). Comparative fault applies so that former

defenses such as contributory negligence, assumption of

risk, and misuse of the product are merely damage-reducing factors. Byrne v. SCM Corp., 538 N.E.2d 796,

815 (Ill. App. Ct. 1989); Tennant v. Clark Equip. Co., 492

N.E.2d 632, 636 (Ill. App. Ct. 1986). So long as Malen’s

negligence (if there really was any at all) was not greater

than 50% of the cause of his injury, the plaintiffs are not

barred from recovering.

Based on the above, and drawing all inferences in

favor of the Malens and viewing the facts in the light

most favorable to them, we conclude that a jury reasonably could find that the defective condition of the

mower was the proximate cause of Malen’s injury.
36 No. 08-3855

III. CONCLUSION

The district court’s grant of summary judgment is

REVERSED, and the case is REMANDED for proceedings

consistent with this opinion.

11-19-10