Statutes of Limitations (ILLINOIS)


Personal Injury - 2 yrs. [735 ILCS 5/13-202]

Wrongful Death - 2 yrs. (from date of death) [735 ILCS 180/2]

Property Damage - 5 yrs. [735 ILCS 5/13-205]

Written Contracts - 10 yrs. [735 ILCS 5/13-206]

Oral Contracts - 5 yrs. [735 ILCS 5/13-205]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [810 ILCS 5/2-725]


Under the “discovery rule,” a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused [Clay v. Kuhl, 727 N.E.2d 217 (Ill. 2000)].









Statute of Repose (Products) (ILLINOIS)

12 yrs. from date of sale to retailer or 10 yrs. from date of sale to consumer, whichever comes first [735 ILCS 5/13-213].  NOTE: the statute of repose, most likely, applies to strict liability actions only (and does not apply to negligence and breach-of-warranty actions) because the law that included negligence and breach-of-warranty causes of action in the statute of repose was declared unconstitutional (on unrelated grounds).


Admissibility of Expert Testimony (ILLINOIS)


Under the rule of Frye, scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. Further, the Frye test is necessary only if the scientific principle, technique or test offered by the expert to support his or her conclusion is “new” or “novel” [People v. McKown, 924 N.E.2d 941 (Ill. 2010)].


Causes of Action (ILLINOIS)

Four theories of recovery available: express warranty, implied warranty, negligence, and strict liability [Werckenthein v. Bucher Petrochemical Co., 618 N.E.2d 902 (Ill. App. 1993)].


Strict Liability – Illinois has adopted Rest. (2nd) of Torts, 402A [Calles v. Scripto-Tokai Corp., 864 N.E.2d 249 (Ill. 2007)].  One who sells any product in a defective condition unreasonably dangerous to the user is subject to liability if: (1) Seller is engaged in the business of selling such a product, and (2) the product is expected to reach the user or consumer in the condition in which it is sold [Suvada v. White Motor Co., 210 N.E.2d 182 (Ill. 1965)].


Negligence – The key distinction between a negligence claim and a strict liability claim lies in the concept of fault. In a strict liability claim, the focus is on the condition of the product. However, in a negligence claim, a defendant's fault is at issue in addition to the condition of the product [Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (Ill. 2007)].



Breach of Warranty – Illinois has adopted the standard UCC express warranty [810 ILCS 5/2-313]; implied warranty of merchantability [810 ILCS 5/2-314]; implied warranty of fitness for particular purpose [810 ILCS 5/2-315].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [810 ILCS 5/2-318].




Definition of “Defect” (ILLINOIS)

A product’s design may be found to be unreasonably dangerous and, thus, defective under either the consumer-expectation test or the risk-utility test [Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329 (Ill. 2008)].  “Unreasonably dangerous” means unsafe when put to a use that is reasonably foreseeable considering the nature and function of the product [IPI Civil (2006) No. 400.06].

Also, see discussion below re: "design defects."






Liability of Sellers (ILLINOIS)

In a products liability action, all persons in the distributive chain are liable for injuries resulting from a defective product, including suppliers, distributors, wholesalers, retailers, and lessors. [Hammond v. North American Asbestos Corp., 454 N.E.2d 210 (Ill. 1983); Timm v. Indian Springs Recreation Asso., 543 N.E.2d 538 (Ill. App. 1989)].


NOTE: In any product liability action based on strict liability against a defendant other than the manufacturer, that party may file an affidavit certifying the correct identity of the manufacturer.  Once Plaintiff has filed a complaint against the manufacturer the, court must order the dismissal of a strict liability claim against the certifying defendant (with some exceptions) [735 ILCS 5/2-621].



Defenses (ILLINOIS)     

Comparative Negligence – Illinois follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [735 ILCS 5/2-1116].  Comparative negligence does not apply to strict liability cases [Coney v. J.L.G. Industries, Inc., 454 N.E.2d 197 (Ill. 1983)].


Product Misuse – Complete defense to strict liability [Coney v. J.L.G. Industries, Inc., 454 N.E.2d 197 (Ill. 1983)].


Assumption of Risk – Complete defense to strict liability [Coney v. J.L.G. Industries, Inc., 454 N.E.2d 197 (Ill. 1983)].


Product Alteration/Modification – Where an unreasonably dangerous condition is caused by a modification to the product after it leaves Manufacturer’s control, Manufacturer is not liable unless the modification was reasonably foreseeable (foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur) [Davis v. Pak-Mor Mfg. Co., 672 N.E.2d 771 (Ill. App. 1996)].






Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (ILLINOIS)


A products liability plaintiff cannot recover solely economic loss under the tort theories of strict liability, negligence, and innocent misrepresentation.  Two possible exceptions: (1) intentional misrepresentation; and (2) where Plaintiff’s damages were caused by negligent misrepresentation by Defendant in the business of supplying information for the guidance of others in their business transactions [In re Chicago Flood Litigation, 680 N.E.2d 265 (Ill. 1997)].


Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (ILLINOIS)

A prima facie case that a product was defective and that the defect existed when it left Manufacturer’s control is made by proof that, in the absence of abnormal use or reasonable secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function [Tweedy v. Wright Ford Sales, Inc., 357 N.E.2d 449 (Ill. 1976)].


Design Defects (ILLINOIS)                                                                                               

When a strict liability claim is based on a design defect, the product may be proven to be unreasonably dangerous by evidence of the availability and feasibility of alternate designs at the time of its manufacture, or that the design used did not conform with the design standards of the industry, design guidelines provided by an authoritative voluntary association, or design criteria set by legislation or governmental regulation.  In a strict product liability action, a claim of defective design may be proven in either of two ways: (1) Plaintiff may introduce evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (consumer-expectation test); or (2) Plaintiff may introduce evidence that product’s design proximately caused his injury and, if Defendant then fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs, Plaintiff will prevail (the risk-utility or risk-benefit test).  The existence of a feasible alternative design and the balancing of risks and benefits are relevant considerations in a strict product liability design defect case, but they are not elements of the claim that Plaintiff is required to plead and prove in every case [Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329 (Ill. 2008)].


Evidence of compliance with federal standards is relevant to the issue of whether a product is defective, as well as the issue of whether a defective condition is unreasonably dangerous. If the product is in compliance with federal standards, the finder of fact may conclude that the product is not defective, thus ending the inquiry into strict liability. If a finding is entered that the product is defective, evidence of compliance becomes additionally relevant to the issue of whether the defective condition is unreasonably dangerous. The fact of compliance may indicate to the finder of fact that the defect is not unreasonably dangerous [Rucker v. Norfolk & W. R. Co., 33 Ill. Dec. 145 (Ill. 1979)].


The mere fact that Manufacturer adhered to all relevant industry standards does not require judgment as a matter of law.  Conformance to industry standards is relevant, but not dispositive on the issue of negligence. Evidence of a violation of industry standards is considered probative of, but not conclusive on, the question of negligent design.  The standard remains whether the conduct was reasonable under the circumstances [Jablonski v. Ford Motor Co., 955 N.E.2d 1138 (Ill. 2011)].


Failure to Warn (ILLINOIS)

The failure to warn of a product’s dangerous propensities may serve as the basis for holding the manufacturer or seller strictly liable in tort.  A product with inherent dangers may be found defective and unreasonably dangerous if Defendant fails to adequately warn of the potential risks or hazards associated with its use. [Hammond v. North American Asbestos Corp., 454 N.E.2d 210 (Ill. 1983)]. 


The duty to warn is determined by an objective analysis (the awareness of an ordinary person; the determination of whether a duty to warn exists is a question of law.  No duty to warn exists where the danger is apparent or open and obvious [Sollami v. Eaton, 772 N.E.2d 215 (Ill. 2002)].

The issue of a "heeding presumption" has not been clearly addressed by Illinois Supreme Court.  But Illinois Appeals Court (applying Texas law) offered some guidance, stating that where the presumption applies, a court presumes that warnings, if given, will be heeded and followed [Rutz v. Novartis Pharms. Corp., 2012 U.S. Dist. LEXIS 177779 (S.D. Ill. 2012)].





Independent Cause of Action for Evidence Spoliation (ILLINOIS)


Illinois Supreme Court has declined to recognize spoliation of evidence as an independent tort.  At the same time, the court held that a spoliation claim can be stated under existing negligence principles. [Dardeen v. Kuehling, 821 N.E.2d 227 (Ill. 2004)].