Product Liability / Open and Obvious Defense
In the case of Salerno v Innovative Surveillance Technology Inc., the plaintiff, an investigator in the narcotics technical field operations unit of the Cook County state's attorney office, filed suit against the manufacturer of the van in which the plaintiff was working. The van contained a variety of surveillance equipment, to include a video periscope system. The plaintiff tried to stand up in the van andd struck his head on the periscope. The defendant file a motion for summary judgment arguing the persicope was open and obvious. The trial court agreed and granted the motion.
The Appeals Court said that the trial court erred in dismissing the case solely on the open and obvious doctrine. The plaintiff argued that the ruling was incorrect because of the of the "distraction" and "deliberate encounter" exceptions. The court dismissed this argument as the Supreme Court had previously ruled that these exceptions only applied to premises liability cases and had "no basis whatsoever" in products liability cases. The appeals court explained that Illinois courts have expressly rejected the notion that a products's open and obvious risk of harm is an absolute defense to a defective design theory of strict liability.
The Appeals Court further explained that the plaintiff waived his negligent design defect claim on appeal when in his reply brief when he conceded "there [is] nothing to criticize in [IST's] design [of the IST-6000 van]." This constituted a waiver of his negligence claim just as it did with respect to his strict liability claim. As there was no evidence to support his negligence claim, summary judgment was proper.
