The Honorable Sarah Evans Barker, Judge of the United 

States District Court for the Southern District of Indiana, sitting

by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2616

PATRICIA FERRARO,

Plaintiff-Appellant,

v.

HEWLETT-PACKARD COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 08 C 3638—Edmund E. Chang, Judge.

ARGUED JANUARY 24, 2013—DECIDED JULY 3, 2013

Before MANION and WOOD, Circuit Judges, and BARKER,

District Judge.



WOOD, Circuit Judge. Patricia Ferraro suffered serious

burns on her arm after falling asleep next to the power

adapter of her newly purchased Hewlett-Packard (HP)
2 No. 12-2616

laptop computer. She filed a product liability suit against

HP, alleging that her injury resulted from a design defect

that allowed the power adapter to overheat. She also

claimed that HP failed to include adequate warnings

about the power adapter’s propensity to overheat and

that HP breached an implied warranty of merchantability.

At the close of discovery, HP moved for summary judgment, which the district court granted in full.

The court concluded that Ferraro would be unable

to show that the power adapter was “unreasonably dangerous,” a required element of her design defect claim.

Under Illinois law, there are two alternative methods

of establishing that element: the “consumer-expectations

test” or the “risk-utility test.” The district court found

Ferraro’s evidence insufficient to meet her burden under

either one of them. On appeal, Ferraro argues that the

district court erred only in concluding that she would be

unable to prove unreasonable dangerousness under the

consumer-expectations test. She has not challenged the

district court’s determination that HP was entitled to

summary judgment under the risk-utility test, nor has she

appealed the district court’s dismissal of her defective

warning and implied warranty claims. This puts her in

an impossible bind. Under Illinois law, the risk-utility

test “trumps” in design defect cases if the two methods

of establishing unreasonable dangerousness yield conflicting results. Because the district court’s finding that

she could not succeed under the risk-utility test

furnished an independent and unchallenged ground

for the decision, we affirm.
No. 12-2616 3

I

In May 2006, Ferraro purchased a new HP DV800

Notebook laptop from a local Best Buy store. One week

later, while sitting on her sofa and using her laptop, she

noticed that the battery was running low. Ferraro shut

down the laptop, placed it on a nearby coffee table, and

plugged the laptop’s power cord into the wall. Midway

along the cord is the power adapter, a brick-shaped

plastic device housing a transformer, which converts AC

electricity from the outlet into DC electricity used by

the laptop. Ferraro propped the power adapter on the

arm of her sofa, began reading a book, and fell asleep

around 10:00 p.m.

At some point during the night, the power adapter

slipped from the sofa’s arm, falling between the cushions.

As Ferraro slept, the exposed skin of her right forearm

came to rest against one of the adapter’s surfaces. It is

unclear how long Ferraro’s skin was in direct contact

with the adapter, but she eventually awoke with painful

blisters at the point of contact. Ferraro treated the

burn with cold water and wrapped her arm with gauze,

but she was unable to fall back asleep because of the

pain. Ferraro, a Chicago police officer, reported to work

early the next morning. She received some medical attention at a fire station while patrolling her beat and

went to an emergency room at 3:00 p.m. once her shift

ended. Doctors diagnosed her with second- and thirddegree burns.

Ferraro filed suit against HP (and against Best Buy,

which is no longer part of this dispute) in 2008, asserting
4 No. 12-2616

claims based on strict product liability and implied warranty of merchantability. For purposes of her strict

product liability theory, she alleged that the laptop was

defectively designed because it “overheat[ed] during

normal and foreseeable use” and that it lacked “adequate

or sufficient warnings.” During discovery, each side

presented three expert witnesses, whose proffered testimony we now summarize.

Ferraro’s first expert was Peter Poczynok, a mechanical

engineer and litigation consultant. After reviewing the

power adapter, HP manuals, and deposition transcripts,

Poczynok concluded that HP should have included

additional warnings with the laptop or the adapter and

that HP should have designed the adapter differently to

reduce the amount of heat it generated. He suggested

that the transformer could have been housed inside the

laptop itself, as opposed to inside the external power

adapter; that the adapter could have included a built-in

fan to help vent heat; that the adapter could have been

manufactured with a “heat shield”; and that the box

housing the adapter could have been larger to allow

for greater air circulation.

Nathaniel Johnson, an electrical engineer who measured the heat generated by the power adapter under

various conditions, was Ferraro’s second expert. Johnson

first took the power adapter’s temperature when it

was operating on a flat tabletop surface; the adapter

reached a temperature of 58.5 degrees Celsius (137.3

degrees Fahrenheit) after 90 minutes. Johnson then

covered the top of the adapter with a cotton towel, and the
No. 12-2616 5

temperature rose to 77.2 /C (170.96 °F). Johnson opined

that these temperatures posed severe burn risks, particularly since it is common practice for consumers to

use laptop computers in bed or on a couch, where

airflow around the power adapter might be restricted.

He suggested that the six-foot power cord connecting

the power adapter to the wall outlet could have been

shortened (and that the segment linking the power

adapter to the computer could have been lengthened

by a corresponding amount), reducing the likelihood

that a user would come into contact with the power

adapter.

Finally, Dr. Robert Cucin, a doctor with board certifications in general surgery and plastic surgery, testified

about burn injuries. Cucin explained that skin will burn

after 50 minutes of direct contact with a surface that is

50 /C (122 °F). He also said that people sometimes incorporate “pain into their dreams and may not wake up

from it right away,” citing examples of persons burned

by sleeping pads.

HP’s three experts challenged many of these conclusions. Dr. Raphael Lee, a board-certified surgeon specializing in plastic surgery and burn care, testified that skin

temperature of 46 /C (114.8 °F) is associated with severe

pain and 52 /C (125.6 °F) is associated with seconddegree burns. He concluded that, “under normal physiological conditions,” an individual whose skin is

in contact with a power adapter like the one at issue

here would feel severe pain within minutes and that

“normal involuntary spinal reflexes would cause with-
6 No. 12-2616

drawal of the skin from the source of the pain in a

matter of seconds.” Don Galler, an electrical engineer,

testified that the HP power adapter was compliant with

the relevant “international standard for safety,” which

dictates a “maximum allowable temperature” of 95 /C

(203 °F). Galler inferred, based on this relatively high

temperature, that the industry standard does not contemplate continuous contact between the product and a

consumer’s skin. Finally, Raina Shah, a human factors

engineer and consultant, testified that HP was not

required to provide users with additional warnings,

given the international standard and the absence of

similar warnings on the power adapters of most other

manufacturers’ laptops. She explained that the device

was designed to be placed on a flat surface (i.e., the floor

or a desk); that an ordinary user would cease contact

before suffering any burns in the event of inadvertent

contact; and that there was no history of severe burns

associated with the HP laptop power adapter.

At the close of discovery, HP moved for summary

judgment on all claims. To defeat the motion on her

design defect claim, Ferraro needed to introduce evidence that would have supported a finding (among

other things) that the power adapter was “unreasonably

dangerous.” She could do so through one of two approaches: the consumer-expectations test or the risk-utility

test. Under the consumer-expectations test, a plaintiff

may show unreasonable dangerousness by demonstrating that the product “failed to perform as safely as

an ordinary consumer would expect when used in an

intended or reasonably foreseeable manner.” Lamkin v.
No. 12-2616 7

Towner, 563 N.E.2d 449, 457 (Ill. 1990). The district court

concluded that no reasonable jury could find “unreasonable dangerousness” under this approach, since “fall[ing]

asleep while using the computer . . . is not the intended

use of a power adapter (powering the laptop and charging

its battery), nor a use that is foreseeably similar to its

intended use.” The court allowed the possibility that

Ferraro was making “the more limited argument that

an ordinary consumer would expect that the power

adapter would not get so hot that it would instantaneously

cause a burn,” but it explained that there was no evidence that this is what happened. Accordingly, the

court concluded that “HP is entitled to summary judgment on the consumer-expectations liability-theory

because no reasonable jury could find that the power

adapter was unreasonably dangerous for its intended

(or foreseeably similar) use.”

In the alternative, the district court rejected Ferraro’s

argument that her evidence could establish “unreasonable

dangerousness” under the risk-utility test. The risk-utility

test requires a plaintiff to show that “the risk of danger

inherent in the design of the product outweighs the

benefits of the design.” Sobczak v. General Motors Corp., 871

N.E.2d 82, 92 (Ill. App. Ct. 2007); Calles v. Scripto-Tokai

Corp., 864 N.E.2d 249, 257-63 (Ill. 2007). Illinois courts

consider a broad range of factors in their risk-utility

analysis, including the magnitude and probability of the

foreseeable risks of harm; the instructions and warnings

accompanying the product; the nature and strength of

consumer expectations regarding the product, including

expectations arising from product portrayal and market-
8 No. 12-2616

ing; the likely effects of any alternative designs on production costs; and conformity with industry standards,

voluntary organization guidelines, and government

regulation. See Mikolajczyk v. Ford Motor Co., 901 N.E.2d

329, 335 (Ill. 2008); Jablonski v. Ford Motor Co., 955 N.E.2d

1138, 1154 (Ill. 2011). The district court considered

several of these factors, concluded that none tipped

in Ferraro’s favor, and held that “no reasonable jury

could find for Ferraro (who bears the burden of proof)

under the risk-utility test.”

Finally, the district court rejected Ferraro’s arguments

that the power adapter was defective because it lacked

adequate warnings and that HP breached an implied

warranty of merchantability. Ferraro’s failure-to-warn

theory was unavailing, the district court reasoned,

because there was no evidence that HP had special knowledge of the adapter’s propensity to burn consumers or

that the burn danger was non-obvious. See Sollami v.

Eaton, 722 N.E.2d 215, 219 (Ill. 2002). The implied-warranty

claim failed because it “require[d] a showing that the

goods were . . . unfit for the ordinary purposes for which

the goods are used,” see Maldonado v. Creative Woodworking Concepts, Inc., 342 Ill. App. 3d 1028, 1034 (Ill. App.

Ct. 2003), and the court thought that Ferraro “d[id] not

allege, let alone provide evidence, that HP’s power

adapter was unfit in fulfilling [its] purposes [of]

provid[ing] power to the laptop and . . . charg[ing] the

laptop battery.” Accordingly, the court granted HP’s

motion for summary judgment and dismissed the case.
No. 12-2616 9

II

In reviewing the grant of a motion for summary judgment, we construe the facts and draw all reasonable

inferences in favor of the nonmoving party. Sojka v. Bovis

Lend Lease, Inc., 686 F.3d 394, 397 (7th Cir. 2012). Summary

judgment is appropriate if there is no genuine dispute

of material fact, and the movant is entitled to judgment

as a matter of law. Id. Importantly, before this court

Ferraro argues only that the district court erred in concluding that HP was entitled to summary judgment under

the consumer-expectations test. She does not contest the

district court’s holding that no reasonable jury could find

for her under the risk-utility test, nor does she assert

that the district court erred in granting summary judgment on her failure-to-warn and implied warranty of

merchantability claims.

It is unfortunate for Ferraro that we must leave the riskutility analysis untouched. This is so because it

would have taken center stage, given our inclination to

agree with Ferraro’s challenge to the district court’s

consumer-expectations analysis. The latter test asks

whether a product is “unreasonably dangerous” in the

sense that it was “unsafe when put to a use that is reasonably foreseeable considering its nature and function.”

Mikolajczyk, 901 N.E.2d at 352; IPI Civil (2006) No. 400.06.

The district court believed that Ferraro would be unable

to prevail under this standard, since “fall[ing] asleep

while using the computer . . . is not the intended use of a

power adapter.” But we find this focus to be unduly

narrow. It overlooks the fact that laptops are designed
10 No. 12-2616

precisely to be used in comfortable places, including

sofas, beds, La-Z-Boys, or other places where people may

nod off. By taking such a restricted view of the precise

manner in which Ferraro’s harm materialized, the court

sidestepped the undisputed fact that, at the time of her

injury, Ferraro was using the power adapter to do just

what it was designed to do: charge her laptop. Ferraro

is not arguing that the power adapter overheated when

she tried to use it to heat her blanket, or that it made for

a poor drink coaster or paperweight; rather, she asserts

that it was unreasonably dangerous when used for its

intended purpose. Cf. Calles, 864 N.E.2d at 256 (“We

now consider whether the Aim N Flame meets the

consumer-expectation test. The purpose of a lighter,

such as the Aim N Flame, is to produce a flame.”). 

HP may be correct that Ferraro was not using the product in the precise manner intended by the manufacturer,

insofar as the power adapter was designed to rest on a

flat surface with ample ventilation, but this is beside the

point. The appropriate inquiry for the consumer-expectations test is whether the product performed as safely

as an ordinary consumer would expect when used in

“an intended or reasonably foreseeable manner.” Lamkin,

563 N.E.2d at 457 (emphasis added). The great virtue of

a laptop is that it can be used on one’s lap, while sitting

on a sofa, or perhaps while in bed. Indeed, we note that

the Facebook page for “Using the laptop in bed” (Mission:

“Public awareness of the usage of laptops in bed”) has

nearly one million “Likes. ”See https://www.facebook.com/

pages/Using-the-laptop-in-bed/95445955714?fref=ts (last

visited June 28, 2013). Our analysis would be no
No. 12-2616 11

different if the power adapter had started a fire in the

sofa while Ferraro was in the next room; in either case, the

consumer’s use of the product would be the same. A

jury could conclude that Ferraro was using the power

adapter in a “reasonably foreseeable” manner when

the relevant harm occurred.

This is not to say that the district court’s concerns

about the manner in which Ferraro was injured are irrelevant under the consumer-expectations test: even

if she were to succeed in showing “unreasonable dangerousness” under this approach, to prevail at trial

Ferraro still would need to prove that the defective

design proximately caused her injuries. See Gilbertson v.

Rolscreen Co., 501 N.E.2d 954, 957 (Ill. Ct. App. 1986) (“Even

if we were to accept the plaintiff’s argument that [the]

‘product’ was unreasonably dangerous, we would still

be compelled to find for the defendants here, for the

defendants have not been shown to be the legal cause

of plaintiff’s injury.”); Kleen v. Homak Mfg. Co., Inc., 749

N.E.2d 26, 31 (Ill. Ct. App. 2001) (“A plaintiff must prove

that the alleged defect in the product was an actual [proximate] cause of the injuries rather than a mere condition.”).

This is a separate inquiry under Illinois law, focused

on whether the power adapter’s defective design was a

cause that “in natural or probable sequence, produced

the injury complained of.” IPI Civil (2006) No. 400.04

(Strict Liability—Proximate Cause—Definition). A jury

might conclude that it was “natural or probable” for a

dangerously hot power adapter to start a fire, but not

“natural or probable” for it to burn a consumer who, for
12 No. 12-2616

whatever reason, failed to react when her skin came

into direct contact with the hot surface. Liability might

depend on how the jury resolved competing expert

testimony regarding the incorporation of pain into one’s

dreams, or the jury’s opinion of how unusual it is

for consumers to use laptops “under [ab]normal physiological conditions” (e.g., under the influence of alcohol,

prescription drugs, or sleeping aids). Proximate cause,

however, “is generally a question of fact” to be resolved

by the jury, not the court. Young v. Bryco Arms, 821 N.E.2d

1078, 1086 (Ill. 2004).

Whatever the merits of her arguments under the

consumer-expectations test, however, Ferraro’s failure to

challenge the district court’s risk-utility determination

is fatal to her appeal. As we noted at the outset, there

are two methods of proving unreasonable dangerousness

under Illinois law, and a plaintiff may prevail under

either the consumer-expectations test or the risk-utility

test. As the Supreme Court of Illinois recently explained

in Mikolajczyk, however, the existence of two tests raises

the possibility that a “product could be found unreasonably dangerous under the consumer-expectation

test, but risk-utility analysis could reveal that an alternative is not available, or that available alternatives are

not feasible, or that the benefits of the design outweigh

its inherent risks.” 901 N.E.2d at 349. Where the two tests

yield conflicting results, the Mikolajczyk court held, the

risk-utility test “trumps,” and the product is deemed not

unreasonably dangerous (notwithstanding consumers’

expectations that the product would be safer). Id. at 352.

Unless “both parties’ theories of the case are framed
No. 12-2616 13

entirely in terms of consumer expectations” (and Ferraro

conceded at oral argument that this is not the case here),

this “broader [risk-utility] test . . . is to be applied by

the finder of fact.” Id.; IPI Civil (2006) No. 400.06A,

Notes on Use.

The district court considered whether Ferraro could

prevail under the risk-utility test and determined that

“none of the risk-utility factors weigh in Ferraro’s favor.” As part of this analysis, the court acknowledged

that two of Ferraro’s experts offered opinions regarding other potential designs for the power adapter,

but it emphasized that neither expert “present[ed] any

evidence discussing the feasibility of any of these alternatives.” The court also weighed “the magnitude

and probability of the foreseeable risks of harm,” noted

HP’s evidence of compliance with relevant regulatory

standards, and highlighted the absence of any “history

of severe burns associated with the HP power adapter.”

This was enough for the district court to conclude that

no reasonable jury could find for Ferraro under the riskutility test.

As we said, we express no opinion on this part of the

district court’s analysis. Ferraro’s “failure to advance

on appeal any arguments with respect to this alternate

ground means that any challenge to that ground is

waived.” Senese v. Chi. Area Int’l Bhd. of Teamsters Pension

Fund, 237 F.3d 819, 823 (7th Cir. 2001); cf. Hess v. Reg-Ellen

Mach. Tool Corp., 423 F.3d 653, 664-65 (7th Cir. 2005).

Absent some argument to the contrary, we must accept

that no reasonable jury could find for Ferraro under the
14 No. 12-2616

risk-utility test, which is the approach upon which HP

would be entitled to insist at trial. HP thus remains

entitled to summary judgment.

Because there is a sufficient and unchallenged ground

of the district court’s decision, we AFFIRM the judgment

of the district court in favor of HP. 

MANION, Circuit Judge, concurring. The district court

ruled that the power adapter was not “unreasonably

dangerous” under the risk-utility test, and as the court

correctly concludes, the risk-utility test “trumps” the

consumer-expectation test when the two tests yield

conflicting results. See Mikolajczyk v. Ford Motor Co., 901

N.E.2d 329, 349-53 (Ill. 2008). Because Ferraro did not

appeal the district court’s ruling on the risk-utility test,

I agree with the court that we should affirm.

While I agree with the court’s decision to affirm, I am not

inclined to join with the court’s discussion of the

consumer-expectation test. Rather, I think that the

district court correctly analyzed this issue. Under the

consumer-expectation test, we examine whether the

product “failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Lamkin v. Towner, 563 N.E.2d
No. 12-2616 15

449, 457 (Ill. 1990). Ordinary consumers know that

power adapters can become hot (including when

laptops are used in beds and other comfortable places).

Indeed, this common knowledge was demonstrated by

Ferraro’s daughter, who testified that her mother knew

that power adapters can become hot. If HP’s power

adapter could become so hot that it would quickly cause

a user to react and withdraw, a jury would likely be

entitled to decide whether the power adapter is “unreasonably dangerous.” But the power adapter in this case

merely “performs as safely as an ordinary consumer

would expect.” Therefore, given the unusual circumstances that caused the injury in this case, a reasonable

jury could not find that the power adapter is “unreasonably dangerous.”

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