South-Western Legal Studies in Business

Consumer-Expectation Test Is from Perspective of User for Strict Liability in Illinois

Illinois high court held that in a strict liability claim for design defect, the consumer-expectation test would apply from the perspective of the purchaser, not a child who may happen to grab the product. The jury may also employ the risk-utility test.

Topic Torts
Key Words

Product Liability; Design Defect; Risk-Utility Test; Consumer-Expectation Test

C A S E   S U M M A R Y

Calles lived with her four young daughters. One night, she ran an errand to the store, leaving the girls alone. A three-year old started a fire using an “Aim-N-Flame” lighter (the kind about a foot long with a handle and a trigger to start a flame). One child died in the fire. Calles sued Scripto, the distributor of the lighter for defective design in that it did not contain a child-resistant device to reduce the risk. Scripto defended that the product is for adults, so it does not have a duty to make it child proof and the dangers were open and obvious. After complicated proceedings, the matter went to the Illinois high court.


Illinois uses both the consumer-expectation test and the risk-utility test in design defect cases. The consumer-expectation test is from the point of view of the adult mother as a purchaser, not from the viewpoint of a three-year-old child. Hence, it is not the basis of strict liability for design defect. There are unresolved questions about the risk-utility test that should be resolved at trial. The factors to be considered in that test include: 1) its utility to a user, 2) safety aspects, 3) substitutes that could meet the need and not be as unsafe, 4) ability to reduce unsafe characteristics without reducing usefulness or making too expensive, 5) users ability to avoid danger by using care, 6) users likely awareness of dangers inherent in the product, and 7) feasibility for the maker to spread losses by having a price that could cover liability insurance. The jury will consider such factors when considering the sensibility of a child-resistant design.


Calles v. Scripto-Tokai Corp., ---N.E.2d--- (2007 WL 495315, Sup. Ct., Ill., 2007)

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