Chapter 1: Introduction to American Law

Introduction to an Introduction
This book’s agenda is to introduce readers to the settlement in the global village that is American law.
Because American law is as much a process as it is a bundle of institutions and rules, our mandate is not
merely to provide a sketch of jurisdictions and legal principles. To be sure, the reader will encounter legal
rules. He or she will learn “diversity of citizenship” coupled with $75,000 in controversy triggers federal
jurisdiction. Likewise, we will discuss whether a contract is binding without consideration. These
snippets of procedural and substantive law are of use to a lawyer, albeit limited. What lawyers, American
or foreign, must learn is the reasoning that underpins a rule of law: to determine what diversity of
citizenship means in a specific context; or how courts have defined consideration so that one may
measure doctrine against the facts at hand.
Thus, this does not aim to be a compendium of laws, but rather, it proposes to introduce its reader to the
foundations of American jurisprudence; how the American system of law approaches the making of legal
rules, and how it engages in both dispute prevention and resolution. It strives to reveal American law’s
subtext, the shared understanding about the law that American lawyers have digested. Upon assimilating
this background, lawyers in America can find, understand, use, and argue law. The latter lesson is well-
learned because, above all, the law in American society is rarely fixed, and it is usually in the process of
dialogue and disputation. Once the code that is American legal discourse is cracked, assimilated, and the
rudiments of American law understood, the determination of individual principles can be discerned quite
easily, and a foreign lawyer can be invited into the seemingly endless dialogue.
Alas, though rewarding, ours is an arduous journey. All this learning generally requires the average
American college graduate three years of serious study. After four years of immersion in most any of the
liberal arts or other field, the graduate is deemed prepared to be thrust into law school: three years to learn
the law, to take the bar exam of a particular state, and then begin to practice as an attorney in that lone
jurisdiction. Why not allow our newly-minted lawyer to practice all over the country? The answer is
simple: though non-Americans generally view the United States as an undifferentiated political mass,
most of its law is enacted in state legislatures and decided and enforced in state courts. National law,
though relevant and important, is limited to defined areas. One’s birth, marriage, and death are registered
according to state law.
American Law: Rife with Contradiction
American law, like America itself, is riddled with contradictions and paradoxes. Professor John Reid has
argued that American society was, before the twentieth century, “law minded.” In his study of law on the
Oregon Trail, there was very little evidence of violent crime against persons and property. Americans
beyond the law were largely self-regulating, “law-minded.”
Much time can be devoted to discussing the nature and reliability of his evidence, but assume that Reid is
correct: what does law-minded mean? Social and economic relations can and should operate without law
enforcers. It could operate upon those within reach of the law, as well as beyond the law. The law should
be understood and observed intuitively. Just as complex ideas of government were reduced to a few
words in the Constitution, private and public law should be redacted into a simple set of uncomplicated
principles.
Of course, neither American private law (nor the public law) turned out that way: hence the contradiction.
Why not? The response is a relatively easy one: the lawyers. No society disdains lawyers as much as does

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
Americans. Though disdained, the law, and the lawyers that create and distort it, those who have
fashioned the contradiction have become a national obsession. This ambivalence is another part of our
national character. Switch on the hundreds of channels of cable television in an American hotel room (or
log on to Netflix or another streaming service), and you will probably land on a dramatic depiction of
lawyers and the law. “Lawyer shows” abound. Americans are obsessed with the law and the legal system
that they purport to hate.
American Law: Complexity
Presumably, this law, which Americans may desire to be intuitively discerned, should be simple.
Regrettably, the contrary is the case; modern American law is hopelessly complex. Again, the
contradiction emerges. From a law that could and should be followed intuitively, American lawyers have
imposed a legal order that is hopelessly complicated.
Modern American constitutional law inhabits a world of its own. No discipline of the law is more
contradictory than constitutional law; no analytical framework is more arcane. Indeed, analysis requires
the assimilation of a large body of vocabulary specific to constitutional analysis and one that is absurdly
nuanced. For example, in determining whether a statute violates a provision of the United States
Constitution, courts use the following varying standards of review depending upon the constitutional
provision in question: strict scrutiny, heightened scrutiny, intermediate scrutiny, loose scrutiny, rational-
basis scrutiny, and so on. The differences among them are frighteningly arcane. Likewise, only specialist
constitutional lawyers can aspire to understand with precision the structure of the debate over federalism,
separation of powers, and individual rights, let alone the nuances of constitutional interpretation.
Likewise, much of the same can be said about a variety of areas of private law. Oliver Cromwell, the
revolutionary who led the British Isles as Lord Protector from 1653 to 1659, referred to the common law
of England in the seventeenth century as an “ungodly jumble.” It still is, and American law, though no
longer strictly governed by the common law, remains at the very least complicated. I defy one to try to
explain the difference between the following two future interests in land developed by the “common
law”: a vested remainder subject to open and to divestment and a contingent remainder. Similarly,
American statute law is complex, and for law students and citizens alike, unreadable. And there is a lot of
it: state and federal. When you have a moment, browse the United States Tax Code. If American law
began with the notion that it should be a law “of the people,” it is now a law for lawyers and specialty
lawyers at that.
American Law: The Moral Dimension
Like the thirteenth colonies, American law began its journey, above all, following a moral or cultural
design. Our settlement was to be (largely) “a city built on a hill.” American law strives to fulfill the moral
imperative that governs the legal relation of those who dwell on this now quite large and far more
densely-populated mountain range. But the idea that there is good law, just law, and bad law, unjust law
out there remains. America’s goal must be for its legal order to strive to find the righteous path. Just like
America believes that its foreign policy is driven by moral rectitude, so too it is believed that its legal
order should be so governed. That others might not perceive it precisely that way may be interesting but
beside the point. The goal of American law, then, must be “to dream the impossible dream,” an ever-
striving process of discovering what is the right law, the moral imperative of law, what the law in a given
circumstance should be. Of course, just as lawyers led us down this path from law-minded to law-hating,
they may have diverted us from a morally just law. Their interest in law is as a businessperson and not as
a moral theologian.

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
And Finally, American Law: Diversity
A final stab at oversimplification is the much-won term: diversity. In America, one is never at a loss for
law and lawgivers. Countless levels of government are constantly churning out the law. American law
students are subject to a myriad of law: the “law” of Tulane Law School; the “law” of Tulane University;
that of the city of New Orleans; of Orleans Parish; of the state of Louisiana; and, of course, of the law of
the United States. There is enough law in America for the conscientious foreign lawyer to spend many
years in active, painstaking, and detailed study. And from time to time each lawmaking sovereign seems
to have a different idea about what the law should be. Recently, the legislature of the state of Louisiana
believed that it was within its power to limit doctors who provide abortion services within its borders to
have admitting rights in hospitals within a 30-mile radius of their clinic. The United States Supreme Court
thought otherwise. So, America, like all federal states, has a hierarchy of law, and one not easy to
delineate, which we shall try to come to understand.
American society, then, is marked by ambivalence towards law; the belief in law as a moral exercise, and
disdain, or at the very least, suspicion of and for formal law. The latter has led Americans over the course
of the half-century (if not longer) to find “alternatives” to law, and in particular, to the courts. Alternative
dispute resolution is frequently on the minds of commercial actors and their lawyers, though it also was
current in the reign of William III when colonial “Americans” were British subjects. The contemporary
preference has seemingly turned from litigation in the courts to arbitration, mediation, negotiation,
neighborhood courts that are not courts, and the like. Though procedures are streamed-lined and law a bit
less arcane, lawyers are as omnipresent in the process of alternative dispute resolution as they are in the
courtroom.
A Page of History
An introduction to an introduction, like this one, cannot conclude without addressing American law’s
glorious past. If American law reflects the spirit of the American people, some understanding of our
history must be required. Once again, there is a need to be concise. That’s what “Nutshells” are about!
America’s history and its legal history can and do fill the pages of learned monographs. Our incursion
will be brief.
Of legal history, Oliver Wendell Holmes, perhaps America’s most erudite jurist, once remarked that “a
page of history is worth a volume of logic.” Though he dabbled in the discipline, he also wrote that “there
must be better reasons for adopting a rule other than that it was law in the reign of Henry IV.” A
contradiction? American lawyers ascribe to both. History can and does shed light on the meaning of the
law; but history ought neither to direct nor should it mandate its present guise. Before moving on, then,
with apologies to Mr. Justice Holmes, a page or so of history.
Once upon a time, there were many laws. European settlers came to a continent that had some notion of
law; Native American tribes were not lawless. Foremost amongst the foreign law transplanted was
English law; royal law, the statutes, and the common law. Royal law was both a legal system and an
amorphous body of principles of substantive law, and to the extent it was applicable, it governed a very
different economic and social order. It crossed the Atlantic with the colonists, though likely in its most
rudimentary form. But there were in England other forums and other laws, church courts, borough courts,
and local courts. America continued to function “in English ways” for lack of viable alternatives. English
law in the colonial period, both the common law and statute, was perhaps less complex than in the mother
country, and it became deeply imbued with both religious and secular morality to varying extents in
different colonies. Likewise, diversity with respect to forum and substantive law applied has always been
a part of the English legal system.
Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
Recall also, however, that other European settlers pillaged the North American continent. They brought
with them Dutch and Spanish, and of course, French law. Successive colonization, therefore, added
further layers: more diversity to a diverse law. And colonial law reflected this mix. As British rule was
ensconced in the North American colonies, the law therein became diverse: the law of Anglican Georgia
was the Anglican gloss on English law. Maryland, the Catholic, Massachusetts, the Puritan.
But, how long could these European legal principles and procedures continue unaltered in this virgin
territory? The colonies had their own economic orders, and therefore, forged their own wrinkles and
glosses on this polyglot that is called the English common law. Each settlement, then each colony, had its
own courts and its own law. Supervision from across the pond, from England, was minimal. The colonists
had little use for lawyers, and what little English law they knew was derived haphazardly from the few
texts that crossed the Atlantic. In the latter years of colonization, the most popular was Sir William
Blackstone’s Commentary on the Laws of England, an admirable volume, but one written for a different
audience than colonial lawyers, and with a different agenda: to acquaint the ruling elite of the mother
country of the basic tenets of English law and its innate superiority to the law of other European nations.
The work was originally published by the Clarendon Press at Oxford, 1765-1770. It is divided into four
volumes, on the rights of persons, the rights of things, of private wrongs and of public wrongs. An
American edition published in Philadelphia between 1771-72 sold out its first printing of 1,400 and a
second edition immediately appeared. Nevertheless, Blackstone was neither compiled to educate lawyers
nor was it intended to serve as a codification of the English legal system. But it served as the colonists’
guide thereto.
Diversity and naivete were, therefore, terms that might aptly characterize the American legal order during
the colonial period. The Revolution, of course, had a great impact on American law. In one area of the
law, constitutional law, new ground was surely broken. In the area of private law, change was
incremental. At first, the English common law was received into the decisional law of the newly-forged
states en masse to the extent that it was not contrary to the federal and state constitutions. Because the
economic and social environment of the republic differed so fundamentally from that of the mother
country, the common law had to be Americanized. That speedily occurred in the early nineteenth century.
What does “Americanization” mean? For much of the nineteenth century, America was a frontier society.
A new continent had to be settled; huge amounts of land were given away to encourage that process;
enterprise had to be fostered to tame the wilderness. Land law had to conform; it had to protect the rights
of occupiers of land who put the soil to productive use, rather than to others who might claim title.
Likewise, industrial development had to be promoted, and the law could assist, or at the very least not
impede it. Like American economy and society, American law could not be static; rather, it had to be
dynamic. Thus, the law of nuisance first encouraged industrial enterprise by continuing to allow the first
use to which land was put (and therefore, ultimately, protecting existing use) even if it was noxious and
conflicted with a more benign use to which neighboring newcomers wished to put their land. As industrial
and commercial land exploration burgeoned, a different balance had to be struck between protecting
enterprise and promoting competition and one that would bring about more investment in growth.
Likewise, with respect to the railroads, the key to both the geographical and economic expansion of the
new nation, tort law was initially hostile towards finding the railroads liable for negligence to encourage
investment in the “iron houses.” Later, as the population grew and the need for expansion was less
critical, tort standards became more favorable to passengers and to bystanders injured in railroad
accidents.

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
In addition to economic expansion, much of the nineteenth century in America was devoted to the debate
over slavery, the American Civil War, and the ensuing Reconstruction. Because it supported the slave
system, law, both federal and state, was very much involved. The debate over slavery, and the extent to
which it should be contained to existing states as the country expanded, was also an economic, political
and moral discourse. Perhaps the most interesting single case to read is the much-debated Dred Scott v.
Sandford, 60 U.S. 393 (1856). Although the viability of slave state economies is a continuing controversy
amongst historians, southern states in the antebellum period had little doubt that their “peculiar
institution” was at risk if further expansion occasioned admission of a greater number of free states (one
in which slavery was not permitted). The Civil War devastated a generation, and after two decades of
federal involvement in “Reconstruction” of the former Confederacy, interest was lost in improving the
economic and political conditions of the former slaves, leading to more than a century of second-class
citizenship for the descendants of slaves.
The experience of the Civil War and Reconstruction seems to have left America with little taste for
national, as opposed to state, government. The half-century after Reconstruction witnessed cycles of
economic boom followed by a bust. It would take the Great Depression and the two World Wars to create
the enormous social and economic problems that cried out for national solutions. President Franklin
Delano Roosevelt’s New Deal, a plan to combat the most serious economic downturn that the nation has
ever suffered, brought the federal government into the forefront of American economic life and witnessed
the beginning of the federal regulatory state, the institution of what has been termed the “alphabet soup”
of federal agencies, the SEC (Securities and Exchange Commission), the SSA (Social Security
Administration), the FCC (Federal Communications Commission), the FTC (Federal Trade Commission),
and the like. Thereafter, the role of the federal government was further strengthened; the Second World
War and the Cold War required an active well-armed military which placed enormous demands on the
public purse. Likewise, the civil rights movement brought the federal government into the forefront of the
struggle for racial equality, a work-in-progress, and to fashion an American versionof the social and
economic safety net that modern governments provide.
Thereafter, for many Americans, history blends with current events. A county united at war, hot or cold,
became divided by the variety of social and economic issues that separate so-called “conservatives” and
“liberals.” The liberal Democratic decade of Kennedy-Johnson administrations gave way to a
conservative Republican reign of Presidents Nixon-Reagan-Bush (with a brief Carter interregnum), which
passed on to Democratic President Clinton and then back again to another President Bush. He was
followed by the Democratic, President Obama, the first African-American President. President Trump
followed in his wake. Americans seem undecided as the proper ideological bent it desires for occupants of
the White House.
Exactly what ideological forces actually drive the political divisions in the United States is a matter for
debate. Although conservatives claim to be driven by a nation of lean government, freedom from
governmental interference, and fiscal restraint, there is little evidence that the nearly two dozen years of
conservative rule has actually furthered that aspect of their articulated political agenda. The conservative
President Trump is said to preside over the largest number of federal employees in history if government
contractors are included. Much the same can be said for the liberals, who though they espoused greater
economic intervention by government, and in particular, a kinder, gentler approach to social programs for
the poor, delivered a reform of the welfare system in the 1990s, which eviscerated the partial successes of
President Johnson’s War on Poverty of the mid-sixties and that seems to have eliminated almost everyone
from the welfare rolls. Likewise, the division is said to be directed by a different view of the role of law,
and particularly the function of the federal courts in interpreting individual liberties in the United States

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
Constitution’s Bill of Rights. Though conservatives decry judicial activism and liberal espouse the
evolution of protection consistent with contemporary values, the position of judges, conservative or
liberal, often seems to be driven by outcome rather than a conception of the proper role of an unelected
judiciary in a democracy.
Conclusion
Reducing the first principles of American law to a very few, as we have done here, is fraught with risk.
One navigates between the Scylla of confusion and the Charybdis of oversimplification. The relationship
between law and society and the economy is critical in trying to make sense of where we are and where
we have come from in the American journey. This conundrum does not make it any more straightforward
to explain American law to the non-American lawyer. Suffice it to say that complex society, one rife with
inner contradictions, has produced a multi-faceted law that we are about to describe.

Chapter 2 - The Sources of Law and Common Law Reasoning

Introduction
A wild fox is running across a public beach, chased by a hunter. As the huntsman is about to catch him,
another, an interloper, grabs the fox and carries it away. Believing himself wronged, the huntsman seeks
your legal counsel. How would you advise him? To what sources of law in your own legal system would
you have recourse?
Nearly two centuries ago, another huntsman called Post entered his lawyer’s office to complain that a
fellow called Pierson behaved exactly as did the above interloper. That the case went to the highest court
in the state of New York may seem remarkable given the value in controversy, that of a fox pelt, but then
and now, Americans are by disposition litigious. That the case is still studied is perhaps even more
extraordinary. No American law student gets his or her J.D. degree without coming to terms with (or not,
as the case may be) the case of Pierson v. Post.
The Legal Saga: Framing the Issue
Neither the progress of the action nor indeed its outcome is in itself remarkable. The huntsman Post sued
the interloper Pierson for the fox (or, more specifically, its value since it had probably long since been
made into a hat or stole) on the grounds that Pierson had appropriated his property. Stated simply, Post’s
counsel alleged that the fox was his client’s property and that Pierson had wrongfully carried it away. The
response from Pierson’s counsel was equally straightforward: “No, it wasn’t your property.” The trial
court awarded the value of the fox to the huntsman Post, but the Supreme Court of New York reversed,
and oddly enough in a split decision, the majority held for the interloper Pierson, though Justice
Tompkins, who wrote for the majority, duly noted that Pierson’s conduct was discourteous.
Lawyers, of course, are required to phrase disputes at law in abstract legal terms. They are paid to
translate transactions and disputes into legal parlance. So, the huntsman’s lawyer did not merely march
into court, tell the judge the sad tale, and demand justice for his client. Rather, he sued out a writ of
trespass on the case, a common-law writ in use in New York in the nineteenth century, though its origins
hark back to medieval England, one that joined a single legal issue between the two parties, huntsman and
interloper. Writs at common law were essentially entry tickets into court; today, they are called
“complaints,” at least in Federal court. One began a cause of action at law by issuing a writ that
summoned the defendant to court to answer to the formulaic allegations in the writ. Writs were specific to

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
a particular cause of action. They outlined the elements of a particular claim. To prevail on action in
trespass on the case, the plaintiff, huntsman Post, had to allege and prove that another, here the
defendant, the interloper Pierson, had interfered with his property. Because the huntsman Post never had
the poor reynard in hand, he must have claimed that he acquired his property right by merely chasing it to
the point at which interloper Pierson intervened in order to claim the property in the fox. Counsel for
Pierson, on the other hand, argued that Post could have acquired no such right by merely chasing the fox,
and that the clever beast remained “unowned” until Pierson reduced it to his physical possession and
carried it away.
So, the judges were rightly presented with what one of the learned judges, Justice Livingston, called a
“knotty problem:” when does a person acquire property in a wild animal? Or to phrase the issue in more
abstract and cosmic terms: how and when does society allocate property rights over things to individuals?
A knotty problem, indeed, and not one confined to eighteenth-century jurisprudence. Are not similar
questions of acquisition really the essence of intellectual property law? When does an idea floating out
there (or running) in the minds of authors and inventors become copyrightable or patentable?
The Search for Law
Contrary to the views of American law students judges, past and present, just do not make up the law as
they go along. Post is a good chap; Pierson a scoundrel; verdict for Post. While that analysis might
explain the verdict in the trial court, the justices of the Supreme Court of New York in the case did what
judges in modern America do: they looked for controlling law that would dictate the outcome. The
American legal system has sources of law, and judges must ferret them out and apply them. The highest
source of law in the United States, proclaimed in Article VI, is the Constitution of the United States itself,
as well as laws and treaties of the United States adopted pursuant to the processes set out in the
Constitution for enactment and ratification; they are proclaimed to be the supreme law of the land.
Unhappily for the justices in Pierson v. Post, the founders and early American legislators were occupied
with other more trying issues. Federal law, though admittedly supreme, was decidedly silent on the issue
before the court: the acquisition of rights of property in wild animals. And indeed, since the ambit of
federal law is limited by the Constitution to particular subject matters, and property in wild animals was
not one of them, Congress probably would have had no business allocating rights in property in foxes on
public beaches in the state of New York anyway. The American system of law, which we shall refer to as
“our federalism,” allows the states to make law in most areas of property rights. So, the focus of the
justices shifted down a jurisdictional notch. New York law should resolve the knotty problem. But
unhappily, neither the Constitution nor the legislature of the state of New York had turned its attention to
the issue. And municipal law was likewise silent; ownership of the fox was a lacuna in the relevant law.
So, was the search for law at its end?
Enter the Common Law
Not yet. New York is, and indeed all states, save Louisiana, are (and even judicial reasoning in Louisiana
follows the American model), of course, common law jurisdictions. We must now confront this awkward
term, mentioned in the first chapter, but where definition was studiously avoided, and at least try to
explain its meaning. The common law Is both a set of legal rules and system of analysis. It was forged in
the English royal courts in what is often referred to as the Middle Ages, where it began as a dialogue
between judges and lawyers, the judges themselves generally drawn from the elite of the legal profession.
The substantive common law was seen as a basket of principles that could be applied to resolve actual
disputes between the kingdom’s subjects. Just what these principles were and how they were found is
difficult to divine. Reason, natural law, logic, customs, and previous decisions, as well as the

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
interpretation of statutes, were all used by litigants to argue their cases in the royal courts, and therefore
could be said to be components of the common law. Cases correctly decided added to the body of
common law; they were precedent, and though possibly not binding, they would be used to resolve
similar disputes, newly-decided cases grafted on to this existing, yet amorphous, body of common law.
Although largely principles of private law (contract, tort, and property), the common law also came to
embody certain constitutional principles, and in particular, the notion that monarchical power in England
was not absolute. Just as certain principles of common law govern private rights, there were certain
principles that limited the sovereign hand in dealing with its subjects. The clash between royal power and
notions of its limits arose most frequently in the area of taxation, where consent of Parliament came to be
required to levy charges on the people, and in disciplining rebellious subjects, where imprisonment
without trial was precluded in the Great Charter of 1215, the much-revered Magna Carta. These two
limitations on sovereign power very much informed discussion between the American colonists and their
sovereign, George III, and led finally to the American Revolution. Ultimately, the United States
Constitution addressed many of the issues of sovereign power that had so vexed and troubled the
colonists until they rebelled.
Having operated largely under the common law before the Revolution, the newly created states received it
into their private law to the extent that it was not inconsistent with newly-created state constitutions and
statutes adopted pursuant thereto. In the course of the following century, the common law was
“Americanized,” that is to say, the same dynamic processes of legal reasoning that were employed to
create and then to elaborate upon the common law in England continued to refine law in America. The
arguments of lawyers and judges, in cases between parties, transformed the received common law into a
body of principles more consistent with economic and social conditions and aspirations of the young
nation. Because private law was state law, the several states might adopt rules of decision that varied,
again due to the very different economic and social realities of the several states. Likewise, the nineteenth
century witnessed the rise of a nascent regulatory state; legislatures began to enact statutes, which could
and did vary from state to state. It was not until the close of the nineteenth and the beginning of the
twentieth century that a movement began to rationalize and make uniform the private law of the American
states, a goal which has yet to be achieved fully.
But the common law system also embodies a process. Return to our fox. After constitutions and statutes
were consulted, recourse would then shift to decisional law. Had the courts of the state of New York
addressed the issue of wild foxes on public beaches? Apparently not. And those of the sister states,
likewise. And on the other side of the pond: what saith the English common law? But there was no
English precedent either. Suppose there was? Would the case have been resolved by reference to
precedent? Perhaps, even probably, but not necessarily. The use of the term raises questions about
whether previously-decided cases, precedent, would necessarily control the outcome of our tangle
between the huntsman and the interloper. Now, if a case that had exactly the same facts had been decided
one way or the other, say in favor of an interloper, Post’s counsel would have had a tough row to hoe.
Yet, if the case that touched upon the same issue was factually similar, but not precisely the same, all
might not be lost for Post. Common law reasoning allows a lawyer to attempt to distinguish the case at
bar from a previously decided case. One side might argue that precedent controlled, and the other might
try to distinguish the facts and circumstances from the case in litigation and argue that it did not.
Happily, the court did not have to consider whether the outcome was directed by another case, and if so,
whether the court was bound to follow it, or since the court was the highest in New York, repudiate the
existing rule and articulate another, to revise the common law. The court could not ignore the constitution
or statute law, but it could (and this is done rarely) have decided not to apply its own judge-made law. It
Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
could have found certain critical facts and circumstances sufficiently different to warrant a different
outcome. For example, suppose the other case cited as precedent involved hunting elephants on private
land. Is the hunted creature (non-indigenous rather than indigenous) or the venue (on private rather than
public land) significantly different from the case at bar to warrant a different outcome?
Or the court could have decided that it was time to change the law because times have changed. The
underlying logic of the previously decided case sometimes no longer fits contemporary conditions. After
all, precedent binds, as Sir Edward Coke, the great champion of the common law in the late sixteenth and
early seventeenth-century England, noted, not because it is simply there, but because the judges in the
past had confronted the same issue and proclaimed a reasoned opinion. It is the logic within the past case
that binds, not merely the fact that it was decided one way or the other. A wrongly reasoned case was not
precedent, any more than a statute that had not been adopted in accordance with the legislative process
was law. A case decided in the past may no longer serve societal interests and should be overturned.
Because the common law should guide individual actions to the same extent as the Constitution and
statute law, modifications or reversals of the common law are not undertaken freely and without due
regard to the rights of the individual parties to the suit. Yet, the common law is not static. Indeed,
sometimes the judges will enforce the “old” law in the case at bar but announce that the court is inclined
to follow different law for the future.
But there were no cases anywhere! Pierson v. Post was a case of first impression. Rights in wild animals
as they were being pursued had not been allocated at common law. It was up to the court to find the law
elsewhere. And in Pierson v. Post, the court ranged far and wide. The majority pondered many learned
souls and adopted the view of Barbeyrac: ownership in wild animals occurs when they are “wounded,
circumvented or ensnared . . . so as to deprive them of their natural liberty.” A reasonable rule; but why
did they select that one? Was it because they revered Barbeyrac? Did they feel bound by his wisdom, or
was something else controlling the agenda?
Policy Concerns
The genius of judge-made law is directly related to the wisdom of the judges. Both the majority and the
dissent in Pierson v. Post probably looked to logic in order to decide the case. The judges applied
predispositions, perhaps differing ones since one judge dissented, about what goals the law should
accomplish. In his dissent, Justice Livingston was persuaded that economic efficiency mandated a
judgment for Pierson. While law and economics is a formal area of study in the legal academy, the
common law has probably considered the effects, economic and otherwise, of a judgment and a rule
before instructed to so by modern law professors, Justice Livingston’s logic went like this: foxes are
noxious beasts; they disturb farming, a noble and necessary occupation in our state; who would hunt,
expend labor (not to mention keep numerous hounds to assist in the chase to rid the country of these
noxious animals if the fruits of such effort could be whisked away by another? Allowing the huntsman his
property right in the fox after having chased him for a good long time until upon the verge of reducing the
beast to possession, would provide the required incentive. More broadly phrased, the law should
encourage investment and enterprise. Justice Livingston’s position was calculated to reward the person
whose labor has brought the property into the stream of commerce.
Justice Livingston raised a further issue. Why, he queried, did the case come to the courts; would it not
have been better to have referred the controversy to a cabal of sportsmen, who, he mused, would know
precisely to whom the pelt should be awarded? There is a certain prescience to his comment; it surely has
a modern ring. Avoid litigation; submit the dispute to ADR (alternative dispute resolution); arbitrate,
mediate, or negotiate. And note that his preferred decision-makers are gendered sportsmen. The

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
evaluations of huntswomen are not welcomed here; modern feminist jurisprudence scholars would remind
us that the prevailing legal order sought (consciously or otherwise) to create a law made by men to protect
the interests of men.
The majority valued something else. Justice Tompkins wrote that rules ought to be made in such a way
that they are easily enforced. Modern legal academics call such rules “administratively efficient.” If the
rule of the dissent had been adopted, that pursuit with a reasonable chance of physical appropriation
would accord property rights in the animal to the huntsman, how would a person know when his or her
chase was sufficiently far enough along to be certain that property rights would be allocated to him or
her? And how could an interloper like Pierson know when the chase was too far along for him to
intercede? The standard of “depriving the wild animal of its natural liberty” is a bright-line rule. It is easy
to apply, it is “administratively efficient.”
Of course, there was a moral dimension to the case. Did not Pierson’s conduct run counter to prevailing
ideas of morality? Wasn’t he really a thief? American law is also comprised of a philosophy that
incorporates societal as well as economic values. So both legal theory and jurisprudence are a staple of
American legal reasoning and the American legal education.
Old Wine in New Bottles – of Baseballs and Foxes
Why bother to read old cases? Because modern decisions are woven from them. The logic of past cases
may direct controversies that subsequently come before the court. Old wine in new bottles. The discourse
which follows is an interesting and amusing example of how a modern court “plays” with precedent.
On October 7, 201, Barry Bonds hit his record-setting 73rd home run of the 2001 Major League Baseball
season. You may be asking yourself: “How could a baseball possibly be related to a fox?” Allow me to
explain. During the lead-up to the game, it was widely anticipated that if Barry Bonds did indeed hit a
new record-setting home run, the ball could be worth over $1 million. As you can imagine, the prospect
of catching this baseball brought many fans into the stadium that day. Alex Popov being one of them:
Patrick Hayashi being another. Well, Barry Bonds did hit that record-setting home run, and the ball
soared through the sky and landed directly into Popov’s glove. However, as the ball entered his glove, he
was immediately attacked by a large group of fans also trying to obtain the flying fortune. This caused
Popov to drop the ball, allowing it to roll into the hands of Hayashi, who had also been knocked down by
the group. Popov, believing himself to be the rightful owner of baseball, decided to sue Hayashi for
conversion, essentially demanding the return of the baseball or its value. Sound familiar?
The court was once again tasked with deciding at what point possession and ownership are obtained. To
that end, the court began by identifying some fundamental principles of possession. The court looked ot
the perspectives of various legal professors with expertise in the area. Hayashi, following the argument of
Professor Gray, suggested that in order to establish possession, “the actor must regain control of the ball
after incidental contact with people and things.” Popov retorted, citing the logic of Professors Finkelman
and Bernhardt, that possession occurs “by stopping the forward momentum of the ball whether or not
complete control is achieved.” In other words, possession occurs when the ball is “wounded,
circumvented or ensnared . . . so as to deprive [it] of [its] natural liberty.” In fact, Popov specifically
pointed the attention of the court towards Pierson v. Post in order to support his contention.
However, the court disagreed with Popov and adopted the conception of possession proffered by
Professor Gray (Gray’s Rule). They reasoned that the principles argued by Popov, that possession is
obtained even before absolute dominion and control, were in response to the unique circumstances of the
conduct they attempt to regulate. That the reason they are relevant in those contexts (capturing a
Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
harpooned whale, fleeing fox, or sunken ship) is because absolute dominion and control is impossible.
Such is not the case of a baseball hit into the stadium stands. So, Popov loses, right? Not quite.
The inquiry did not stop there. Now that the court had decided on their definition of possession, it was
time to apply it. Gray’s Rule, as stated earlier, was that “the actor must retain control of the ball after
incidental contact with people and things.” Popov lost control of the ball. It was once again “wild” and
subject to capture by another. However, his loss of control of the ball was not due to incidental contact; it
was the result of a collective assault. The court then reasoned that Popov should have had the opportunity
to complete his catch unimpeded, “to hold otherwise would be to allow the result, in this case, to be
dictated by violence. That will not happen.” The court, as a matter of equity and fundamental fairness,
adopted a new rule which bestowed upon Popov a pre-possessory interest in the ball which constituted a
qualified right to possession. So, Popov wins? Not necessarily.
While Popov had a pre-possessory interest in the ball, Hayashi had initially attained unequivocal
dominion and control. Hayashi was not a wrongdoer and was also a victim of the violent group. Both
Popov and Hayashi had a legitimate possessory interest in the ball unencumbered by the other. So, the
court, relying on the concept of equitable division, did the only thing that seemed “fair.” They declared
that both parties had an equal and undivided interest in the ball and that the ball must be sold, with the
proceeds divided equally between them.
While Pierson v. Post took place almost 200 years before Popov v. Hayashi, the process that transpired in
the court and the principles relied upon are fundamentally the same. In both cases, the court looked for
guiding legal principles from learned experts, considered the righteousness of each party’s actions, and
inquired into the policy effects their respective decisions would have. Although the Popov court did not
follow the principles relied on by the Post court, they only did so after distinguishing their unique set of
facts and context. The Popov court had the advantage of knowing the reasoning used by the Post court,
leading them to a decision which uniquely addressed the issue at hand. Every relevant court decision will
help guide the next court in reasoning their way to resolving the case before them.
Conclusion
All these issues clash in many cases that have come before American courts and continue to grace the
halls of justice. But of course, not all cases are decided by recourse to Barbeyrac, or even the various
strands of logic that support the common law. Today most cases allocating rights in property probably
would be decided by statute. Much common law has been reduced to legislation, and they are drafted with
reasonable specificity, though perhaps not quite like a code. But statutory interpretation also can be
influenced by the sort of policy concerns that were in play in Pierson v. Post. Legislatures ponder some of
the same issues in drafting laws. These multifarious concerns render the study of American law a very
complicated but very interesting intellectual exercise.

Excerpts from American Law and the American Legal System in a Nutshell, 2nd ed, by Lloyd Bonfield (West
Academic, 2021). For Summer 2021 Best Cases course.
 GUTTERMAN v. TARGET CORP. 695
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

[15] Here, none of the exceptions ap-

plies. First, Illinois has adopted a ‘‘rule of Donald and Jodi GUTTERMAN, Individ-
tolling,’’ which provides that if an action ‘‘is ually and as Parents and Next Friends
dismissed by a United States District of Madison Gutterman, Plaintiffs,
Court for lack of jurisdiction, * * * then,
v.
whether or not the time limitation for
bringing such action expires during the TARGET CORPORATION and
pendency of such action, the plaintiff * * * Bravo Sports, Defendants.
may commence a new action [in state
15 C 5714
court] within one year or within the re-
maining period of limitation, whichever is United States District Court,
greater, after * * * the action is dismissed N.D. Illinois, Eastern Division.
by a United States District Court for lack
of jurisdiction.’’ 735 ILCS 5/13–217; see Signed 03/17/2017
also Davis, 534 F.3d at 654; White v. City Background: Minor customer brought
of Chicago, 149 F.Supp.3d 974, 983–84 negligence and products liability action
(N.D. Ill. 2016). Second, this Court has not against retail store and skateboard manu-
yet committed ‘‘substantial judicial re- facturer, seeking to recover for injuries
sources’’ to considering the merits of sustained when she fell off of skateboard
Plaintiff’s state law claims. See Davis, 534 she was riding in store. Defendants moved
F.3d at 654 (‘‘the district court disposed of for summary judgment.
the federal claims on summary judgment,
Holdings: The District Court, John Z.
and so ‘substantial judicial resources’ have
Lee, J., held that:
not yet been committed to the case’’).
Third, it is not clearly apparent how the (1) riding a skateboard in retail store pre-
state law claims would be decided. In these sented an open and obvious danger,
circumstances, the usual rule applies and and thus store was not liable for negli-
dictates dismissal without prejudice of gence;
Plaintiff’s state law claims in Count I, II, (2) skateboard manufacturer did not owe
and VII. duty of care to minor customer, and
thus was not liable for negligent de-
IV. Conclusion
sign;
For the reasons stated above, the Court
(3) skateboard’s box packaging did not
grants Defendant’s motion for summary
render it unreasonably dangerous, for
judgment [111] and denies Plaintiff’s cross-
purposes of strict products liability
motion for summary judgment [129] as to
claim; and
Plaintiff’s federal claims in Count I
(ADEA discrimination), Count II (ADA (4) plastic shrink wrap covering skate-
discrimination), Count III (Rehabilitation board did not render it unreasonably
Act violation), and Count IV (FMLA inter- dangerous, for purposes of strict prod-
ference). Plaintiff’s remaining state law ucts liability claim.
claims in Counts I, II and VII are dis- Motions granted.
missed without prejudice. The Court will
enter a final judgment and close the case.
1. Negligence O1022

, Products Liability O124, 264

Riding skateboard in retail store pre-
sented an open and obvious danger to a
696 242 FEDERAL SUPPLEMENT, 3d SERIES

reasonable 12-year-old in minor customer’s obvious, condition in both negligence and

position, such that injury was not reason- premises liability actions.
ably foreseeable to store, precluding impo- See publication Words and Phrases
sition of negligence liability under Illinois for other judicial constructions and
definitions.
law in personal injury action brought by
customer after she fell off skateboard 7. Negligence O1706
while riding it in store; reasonable 12-year- Under Illinois law, whether a danger-
old would have recognized that skateboard ous condition is open and obvious may
was a precarious device that rolled on present a question of fact, but if there is
wheels and invited the user to fall, and no dispute as to the physical nature of a
store could reasonably have expected cus- condition, whether it is open or obvious is
tomer to avoid the open and obvious dan- a question of law.
ger presented by the skateboard, making
it likely that customer would avoid injury. 8. Negligence O1012
Under Illinois law, a finding that a
2. Negligence O202 condition is open and obvious does not of
To succeed on a claim of negligence itself preclude the existence of a duty.
under Illinois law, the plaintiff must plead
and prove the existence of a duty owed by 9. Negligence O1012, 1014
the defendant to the plaintiff, a breach of In carrying out a traditional duty
that duty, and injury proximately resulting analysis under Illinois law, courts use the
from the breach. open and obvious rule in evaluating the
first two factors of the duty inquiry: the
3. Negligence O1692
foreseeability and likelihood of injury.
Under Illinois law, the existence of a
duty is a question of law. 10. Negligence O1014
Under Illinois law, in regard to fore-
4. Negligence O214
seeability, the open and obvious nature of
In determining the existence of a
a condition reduces the reasonable foresee-
duty, Illinois courts ask whether defendant
ability of injury, because it is reasonable
and plaintiff stood in such a relationship to
for a defendant to expect that a plaintiff
one another that the law imposed upon
will avoid an open and obvious danger.
defendant an obligation of reasonable con-
duct for the benefit of plaintiff. 11. Products Liability O127, 150, 264
Under Illinois law, purported design
5. Negligence O210, 213
defect in skateboard packaging, namely,
Four factors are relevant to analysis
that skateboard’s packaging could be easi-
of duty under Illinois law: (1) the reason-
ly removed and skateboard used in store,
able foreseeability of the injury, (2) the
was open and obvious dangerous condition,
likelihood of the injury, (3) the magnitude
and thus skateboard manufacturer did not
of the burden of guarding against the inju-
owe duty of care to minor customer who
ry, and (4) the consequences of placing
was injured when she fell off of skateboard
that burden on the defendant.
that she was riding in retail store; injury
6. Negligence O212, 1012 resulting from purported defect was not
Under Illinois law, the ‘‘open and ob- reasonably foreseeable because it was rea-
vious rule’’ is a common law construct that sonable for manufacturer to expect that
mitigates a party’s duty to protect another customer would not ride skateboard in
from a potentially dangerous, yet open and store.
 GUTTERMAN v. TARGET CORP. 697
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

12. Products Liability O127 18. Products Liability O406

Under Illinois law, a plaintiff can Under Illinois products liability law,
bring a claim that a product is defectively application of the consumer-expectation
designed through causes of action in both test to determine whether a product is
negligence and strict products liability. unreasonably dangerous under design de-
fect theory is typically a task for the jury,
13. Products Liability O113, 114
but it can be decided as a matter of law
Under Illinois law, a negligence-based where no reasonable jury could find that a
theory of products liability focuses on the product performed other than how an ordi-
defendant’s conduct, whereas a strict prod- nary consumer would expect.
ucts liability–based theory focuses on the
product at issue. 19. Products Liability O129
Under Illinois products liability law,
14. Products Liability O127 the ‘‘risk-utility test’’ to determine whether
Under Illinois law, the crucial ques- a product is unreasonably dangerous re-
tion in a negligent-design products liability quires that a plaintiff demonstrate that the
case is whether the manufacturer exer- magnitude of the danger outweighs the
cised reasonable care in the design of the utility of the product, as designed.
product. See publication Words and Phrases
for other judicial constructions and
15. Products Liability O127 definitions.
Under Illinois products liability law,
whether the danger presented by a pur- 20. Products Liability O129
ported design defect is open and obvious In weighing risk versus utility in a
bears on whether the defendant owes a products liability action, Illinois courts look
duty to the plaintiff. to a wide variety of factors, which include
the magnitude and probability of the fore-
16. Products Liability O127 seeable risks of harm; the instructions and
Under Illinois law, to prove a strict warnings accompanying the product; the
products liability claim based on a design nature and strength of consumer expecta-
defect, a plaintiff must demonstrate that tions regarding the product, including ex-
the product’s design renders it unreason- pectations arising from product portrayal
ably dangerous. and marketing; the likely effects of any
17. Products Liability O130 alternative designs on production costs;
Under Illinois law, the ‘‘consumer-ex- and conformity with industry standards,
pectation test’’ to determine whether a voluntary organization guidelines, and gov-
product is unreasonably dangerous under ernment regulation.
design defect theory asks whether a prod- 21. Products Liability O129
uct failed to perform as an ordinary con- Under Illinois law, where the consum-
sumer would expect when used in an in- er-expectation and risk-utility tests pro-
tended or reasonably foreseeable manner, duce different results in a products liability
and requires that a plaintiff establish what action, the risk-utility test prevails.
an ordinary consumer purchasing the
22. Products Liability O130, 264
product would expect about the product
Under Illinois law, skateboard’s box
and its safety.
packaging functioned as ordinary consum-
See publication Words and Phrases
for other judicial constructions and er would expect and did not render skate-
definitions. board unreasonably dangerous, and thus
698 242 FEDERAL SUPPLEMENT, 3d SERIES

skateboard manufacturer was not liable on MEMORANDUM OPINION

claim for strict products liability based on AND ORDER
design defect brought by minor customer
of retail store who was injured when she John Z. Lee, United States District
fell off of skateboard that she was riding in Judge
store; although customer asserted that This case arises from injuries that Madi-
packaging was too easily removed, permit- son Gutterman (‘‘Madison’’) suffered while
ting individuals to take it off and ride the riding a skateboard within a Target store
skateboard, skateboard was equipped with in Vernon Hills, Illinois. Her parents, Don-
a warning that cautioned against use with- ald and Jodi Gutterman (‘‘Plaintiffs’’),
out proper protective wear. brought suit on her behalf against Target
23. Products Liability O129, 151, 264 and Bravo Sports (‘‘Bravo’’), which manu-
Plastic shrink wrap on surface of factured and distributed the skateboard at
skateboard which covered skateboard’s issue. Target and Bravo have separately
grip tape did not render skateboard unrea- moved for summary judgment. For the
sonably dangerous, and thus manufacturer reasons that follow, both motions [61] [73]
of skateboard was not liable under Illinois are granted.
law on claim for strict products liability
Background 1
based on design defect brought by minor
customer of retail store who was injured On May 26, 2013, Donald, Jodi, and
when she fell off of skateboard that she Madison visited Target’s store in Vernon
was riding in store, where it was not rea- Hills. Target’s LR 56.1(a)(3) Stmt. ¶ 10,
sonably foreseeable that an ordinary ECF No. 62. Madison, age eleven, was one
skateboard user would use skateboard in a month away from her twelfth birthday. Id.
store without removing obvious packaging ¶ 14. While they were shopping, Madison
or purchasing it, and utility of protecting asked Donald and Jodi if she could go off
skateboard’s appearance for sale out- by herself to a different section of the
weighed need to eliminate the open and store, and Donald and Jodi agreed. Id.
obvious risk presented by riding skate- ¶¶ 15–16.
board with the plastic wrap on.
Madison went to a section of the store
where skateboards were on display. Id.
¶ 24. She took a skateboard off the shelf,
placed it on the floor, and rode it down an
Kenneth C. Apicella, Drost, Gilbert, An- aisle. Id. ¶ 27. The aisle was clean, clear,
drew & Apicella, LLC, Palatine, IL, for and dry, and there were no obstructions on
Plaintiffs.
the floor. Id. ¶ 29. Despite this, the parties
Jodi Gutterman, pro se. agree that the floor was hard, slick, and
Robert Michael Burke, Helena Maria unfit for skateboarding. See Pls.’ LR
Jorgensen, Michael Joseph Linneman, 56.1(b)(3)(C) Stmt. (Target) ¶ 76, ECF No.
Johnson & Bell, Ltd., Donald J. O’Meara, 89. After riding the skateboard for a short
Jr., Pretzel & Stouffer, Chtd., Chicago, IL, period of time, Madison fell off and sus-
for Defendants. tained injuries that spurred the action be-

1. The following facts are undisputed except understanding, the Court primarily cites the
where noted. The parties’ statements of facts statements and responses dealing with Tar-
and responses regarding the two separate mo- get’s motion.
tions are largely duplicative. Thus, for ease of
 GUTTERMAN v. TARGET CORP. 699
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

fore this Court. Target’s LR 56.1(a)(3) been removed at some point prior. Id. ¶ 55;
Stmt. ¶¶ 21–22. Pls.’ LR 56.1(b)(3)(C) Stmt. (Bravo) ¶ 57,
The skateboard at issue was manufac- ECF No. 91.2
tured and distributed to Target by Bravo. Additionally, at the time Madison rode
Pls.’ LR 56.1(b)(3)(C) Stmt. (Target) ¶ 72. the skateboard, its surface was covered in
Bravo placed ‘‘deterrent devices’’ on all plainly visible plastic shrink wrap meant to
skateboards it distributed to Target, in- protect the board’s surface during manu-
cluding those that arrived at the Vernon facturing and distribution. Target’s LR
Hills store prior to May 26, 2013. Id. ¶¶ 73, 56.1(a)(3) Stmt. ¶¶ 43, 45; id., Ex. G, ECF
75. ‘‘Truck boxes’’ are the only deterrent No. 62–8. The plastic wrap covers ‘‘grip
device Bravo used with the type of skate- tape’’ that provides traction on the board’s
board at issue. Id. ¶ 75. A truck box is ‘‘a surface; thus, the board is unsuitable for
cardboard box that covers the rear axle riding before the wrap is removed. Id.
and wheels of the skateboard.’’ Target’s ¶ 45. The parties agree that the fact that
LR 56.1(a)(3) Stmt. ¶ 39. The box is affixed the board’s surface remained wrapped con-
to the skateboard with hot glue or packag- tributed to Madison’s fall. Pls.’ LR
ing tape. Id. ¶ 41. It can be removed quick- 56.1(b)(3)(C) Stmt. (Target) ¶ 76. Bravo
ly and easily by simply pulling it off. Id. placed a warning sticker on top of the
¶ 42. The purpose of the box is twofold: to plastic wrap that reads as follows:
protect the skateboard from damage pre- ‘‘WARNING! Reduce the risk of serious
sale, and to protect customers by deterring injury and only use this skateboard while
them from riding skateboards in stores. wearing full protective gear—Helmet,
See id. ¶ 40. Here, however, the parties Knee Pads, Elbow Pads, Wrist Guards,
agree that no truck box was affixed to the and Flat Soled Shoes[.] Max Rider Weight
skateboard at issue when Madison rode it 110 lbs[.]’’ Target’s LR 56.1(a)(3) Stmt.
and that the truck box thus must have ¶¶ 46–47, 49.3 Madison wore flip flops, and

2. Plaintiffs at times take the position that the truck box. Additionally, testimony from a
skateboard at issue was not shipped with a store employee that she ‘‘did not recall ever
deterrent device. E.g., Pls.’ Resp. Opp’n Bra- seeing a skateboard for sale at Target with its
vo’s Mot. Summ. J. 6, ECF No. 90. But this wheels boxed in,’’ id. ¶ 76, may indicate truck
position is belied by Plaintiffs’ own statement boxes were frequently removed, but such tes-
of facts, which asserts that ‘‘Bravo placed timony is not evidence from which a reason-
deterrent devices on all of the skateboards it able juror could conclude Bravo failed to de-
distributed to massmarket retailers such as liver the skateboard at issue with a truck box
Target,’’ Pls.’ LR 56.1(b)(3)(C) Stmt. (Bravo) attached.
¶ 40, and that prior to the date of the incident,
‘‘skateboards arrived at the Vernon Hills store 3. Plaintiffs (at least in regard to Target’s mo-
from the distribution center with deterrent tion) seem to dispute the fact that the warning
devices attached.’’ Id. ¶ 42. Moreover, Plain- sticker was attached to the skateboard when
tiffs advance nothing more than speculation Madison took it off the shelf, pointing out that
that the skateboard at issue was distributed Madison’s testimony does not establish that it
without a truck box, which is insufficient to was affixed. Pls.’ LR 56.1(b)(3)(B) Stmt. (Tar-
create a genuine issue of fact on summary get) ¶ 49, ECF No. 89. But they agree in the
judgment. Dorsey v. Morgan Stanley, 507 F.3d next paragraph that the skateboard was in the
624, 627 (7th Cir. 2007). It is irrelevant condition depicted in Target’s photograph of
whether the type of skateboard at issue did the skateboard at issue, which clearly displays
not have a design specification for a deterrent the sticker affixed to the board. Id. ¶ 50; Tar-
device, Pls.’ LR 56.1(b)(3)(C) Stmt. (Bravo) get’s LR 56.1(a)(3) Stmt., Ex. G. (In response
¶ 58, because it is undisputed that Bravo dis- to Bravo’s motion, they simply admit the
tributed the type of skateboard at issue with a warning sticker was attached. Pls.’ LR
700 242 FEDERAL SUPPLEMENT, 3d SERIES

no other protective gear, while riding the shita Elec. Indus. Co. v. Zenith Radio
board. See id. ¶¶ 13, 28. The parties dis- Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
pute whether wearing flip flops contribut- L.Ed.2d 538 (1986), and instead must ‘‘es-
ed to Madison’s injury and what impact tablish some genuine issue for trial such
wearing protective gear would have had. that a reasonable jury could return a ver-
Target’s Resp. Pls.’ LR 56.1(b)(3)(C) Stmt. dict in her favor.’’ Gordon v. FedEx
¶ 76, ECF No. 96. Freight, Inc., 674 F.3d 769, 772–73 (7th
Madison had experience riding skate- Cir. 2012). In reviewing a motion for sum-
boards; ‘‘she knew how to ride the skate- mary judgment, courts ‘‘must construe all
board she took off the shelf in the store facts and reasonable inferences in favor of
that day, and there was nothing new, dif- the nonmoving party.’’ Dorsey, 507 F.3d at
ferent, or unusual about this skateboard as 627. But ‘‘[i]nferences that are supported
compared to other skateboards she had by only speculation or conjecture will not
previously ridden.’’ Target’s LR 56.1(a)(3) defeat a summary judgment motion.’’ Id.
Stmt. ¶ 30. At a more basic level, she knew (quoting McDonald v. Vill. of Winnetka,
‘‘that a skateboard has wheels, that it rolls 371 F.3d 992, 1001 (7th Cir. 2004)) (inter-
on those wheels, that she could fall off of nal quotation marks omitted).
it, and that if she were to fall off of it, she
Analysis
could get hurt.’’ Id. ¶ 33. Moreover, while
the parties dispute the precise guidance I. Claims Against Target
Donald and Jodi had given her about using [1] Plaintiffs first seek to recover
skateboards in a store, riding with flip
against Target on theories of common law
flops, and riding without protective gear,
negligence and violation of the Illinois
there is no dispute that they generally
Premises Liability Act. Target has moved
advised her against these activities. Tar-
for summary judgment on the grounds
get’s LR 56.1(a)(3) Stmt. ¶¶ 17–18; id., Ex.
that the skateboard by which Madison suf-
B, at 38:20–40:1, ECF No. 62–3; id., Ex.
fered her injuries was an open and obvious
C, at 20:17–21:7, 25:2–14, ECF No. 62–4;
danger, and that Target owed Madison no
Bravo’s LR 56.1(a)(3) Stmt. ¶¶ 13–15, ECF
No. 75; Target’s Resp. Pls.’ LR duty of care.
56.1(b)(3)(C) Stmt. ¶ 110. [2, 3] In this diversity action, the Court
Legal Standard applies Illinois law. Lane v. Hardee’s Food
‘‘The court shall grant summary judg- Sys., Inc., 184 F.3d 705, 707 (7th Cir.
ment if the movant shows that there is no 1999). To succeed in a claim of negligence,
genuine dispute as to any material fact and ‘‘the plaintiff must plead and prove the
the movant is entitled to judgment as a existence of a duty owed by the defendant
matter of law.’’ Fed. R. Civ. P. 56(a); see to the plaintiff, a breach of that duty, and
also Shell v. Smith, 789 F.3d 715, 717 (7th injury proximately resulting from the
Cir. 2015). To survive summary judgment, breach.’’ Bruns v. City of Centralia, 386
the nonmoving party must ‘‘do more than Ill.Dec. 765, 21 N.E.3d 684, 688–89 (2014).
simply show that there is some metaphysi- The existence of a duty is a question of
cal doubt as to the material facts,’’ Matsu- law. Id., 386 Ill.Dec. 765, 21 N.E.3d at 689.

56.1(b)(3)(B) Stmt. (Bravo) ¶ 38, ECF No. 91.) ing sticker. In any case, Madison’s testimony
Thus, even though Madison did not testify states that she did not recall reading the stick-
that the sticker was affixed or that she read it, er, not that it was not affixed to the skate-
Plaintiffs do not raise a genuine dispute about board. Target’s LR 56.1(a)(3) Stmt., Ex. D, at
whether the skateboard at issue had a warn- 19:13–16, ECF No. 62–5.
 GUTTERMAN v. TARGET CORP. 701
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

[4, 5] In determining the existence of a [8–10] Importantly, a finding that a

duty, Illinois courts ask ‘‘ ‘whether defen- condition is open and obvious does not of
dant and plaintiff stood in such a relation- itself preclude the existence of a duty.
ship to one another that the law imposed Bruns, 386 Ill.Dec. 765, 21 N.E.3d at 690.
upon defendant an obligation of reasonable Rather, in carrying out a traditional duty
conduct for the benefit of plaintiff.’ ’’ analysis, courts use the open and obvious
Bruns, 386 Ill.Dec. 765, 21 N.E.3d at 689 rule in evaluating the first two factors of
(quoting Ward v. K Mart Corp., 136 Ill.2d the duty inquiry: the foreseeability and
132, 143 Ill.Dec. 288, 554 N.E.2d 223, 227 likelihood of injury. Id. In regard to fore-
(1990)). Four factors are relevant to this seeability, the open and obvious nature of
analysis: ‘‘(1) the reasonable foreseeability a condition reduces the reasonable foresee-
of the injury, (2) the likelihood of the ability of injury, because it is reasonable
injury, (3) the magnitude of the burden of for a defendant to expect that a plaintiff
guarding against the injury, and (4) the will avoid an open and obvious danger. Id.,
consequences of placing that burden on the 386 Ill.Dec. 765, 21 N.E.3d at 694. Similar-
defendant.’’ Id. ly, the likelihood that a plaintiff will avoid
an open and obvious danger reduces the
[6, 7] The ‘‘open and obvious rule’’ is a likelihood of injury under the second fac-
common law construct that mitigates a tor. Id., 386 Ill.Dec. 765, 21 N.E.3d at 695.
party’s duty to protect another from a After incorporating the open and obvious
potentially dangerous, yet open and obvi- rule in this manner, courts proceed as
ous, condition. Id. The open and obvious usual to consider the magnitude and conse-
rule applies in both negligence and premis- quences of placing a burden on the defen-
es liability actions. Id., 386 Ill.Dec. 765, 21 dant. Id.
N.E.3d at 689–90; Ward, 143 Ill.Dec. 288, The open and obvious rule applies just
554 N.E.2d at 229–30. ‘‘ ‘Obvious’ means the same when children are involved. Cor-
that ‘both the condition and the risk are coran v. Vill. of Libertyville, 73 Ill.2d 316,
apparent to and would be recognized by a 22 Ill.Dec. 701, 383 N.E.2d 177, 180 (1978)
reasonable man, in the position of the visi- (stating that ‘‘[e]ven if an owner or occupi-
tor, exercising ordinary perception, intelli- er knows that children frequent his prem-
gence, and judgment.’ ’’ Bruns, 386 Ill.Dec. ises, he is not required to protect against
765, 21 N.E.3d at 690 (quoting Restate- the ever-present possibility that children
ment (Second) of Torts § 343A cmt. b will injure themselves on obvious or com-
(1965)). ‘‘Whether a dangerous condition is mon conditions’’). As the Supreme Court of
open and obvious may present a question Illinois has explained, ‘‘ ‘[i]t is always un-
of fact,’’ but if there is no dispute as to the fortunate when a child gets injured while
‘‘physical nature’’ of a condition, as is the playing, but a person who is merely in
case here, whether it is open or obvious is possession and control of the property can-
a question of law. Id.4 not be required to indemnify against every

4. Plaintiffs’ citation to Qureshi v. Ahmed, 394 is an Illinois appellate court decision that
Ill.App.3d 883, 334 Ill.Dec. 265, 916 N.E.2d precedes Bruns. In any event, Qureshi in-
1153 (2009), for the proposition that the issue volved disputed facts as to the nature of the
of whether a dangerous condition is open and product at issue (there, a treadmill) and the
obvious is typically a question of fact, Pls.’ danger it presented, 334 Ill.Dec. 265, 916
Resp. Opp’n Target’s Mot. Summ. J. 8, ECF N.E.2d at 1159, whereas here, the parties do
No. 88 (citing Qureshi, 334 Ill.Dec. 265, 916 not dispute the skateboard’s physical qualities
N.E.2d at 1158), misstates the law. The case or the danger it presented.
702 242 FEDERAL SUPPLEMENT, 3d SERIES

possibility of injury thereon. The responsi- 154 Ill.App.3d 482, 107 Ill.Dec. 355, 507
bility for a child’s safety lies primarily with N.E.2d 19, 21–23 (1987)); see Young by
its parents, whose duty it is to see that his Young v. Chi. Hous. Auth., 162 Ill.App.3d
behavior does not involve danger to him- 53, 113 Ill.Dec. 794, 515 N.E.2d 779, 782
self.’ ’’ Id. (quoting Driscoll v. Rasmussen (1987) (‘‘A 5-year-old child knows that if he
Corp., 35 Ill.2d 74, 219 N.E.2d 483, 486 or she falls from a height onto concrete
(1966)). To that end, ‘‘ ‘[t]here are many while, e.g., playing on monkey bars, he or
dangers, such as those of fire and water, she probably will get hurt.’’); see also
or of falling from a height, which under Wreglesworth ex rel. Wreglesworth v. Arct-
ordinary conditions may reasonably be ex- co, Inc., 317 Ill.App.3d 628, 251 Ill.Dec.
pected to be understood and appreciated
363, 740 N.E.2d 444, 451 (2000) (concluding
by any child of an age to be allowed at
that colliding with a pier presented an
large.’ ’’ Id. (quoting Restatement (Second)
open and obvious danger to a minor riding
of Torts § 339 cmt. j (1965)). And ‘‘a pos-
a jet ski).
sessor of land is free to rely upon the
assumption that any child old enough to be Here, riding a skateboard in a Target
allowed at large by his parents will appre- store presents an open and obvious danger
ciate certain obvious dangers or at least little different from the facts in the above
make his own intelligent and responsible cases. A reasonable near-twelve-year-old
choice concerning them.’’ Mount Zion in Madison’s position would recognize, just
State Bank & Trust v. Consol. Commc’ns, as Madison admittedly did, that a skate-
Inc., 169 Ill.2d 110, 214 Ill.Dec. 156, 660 board is a precarious device that rolls on
N.E.2d 863, 868 (1995). wheels and invites the user to fall. Target’s
Illinois courts have had various opportu- Rule 56.1(a)(3) Stmt. ¶¶ 30, 33; see
nities to determine whether particular con- Williams v. Toys ‘‘R’’ Us, 138 Fed.Appx.
ditions are analogous to fire, water, and 798, 801 (6th Cir. 2005) (internal citation
heights such that they are openly and obvi- omitted) (‘‘ ‘A skateboard is an object of
ously dangerous. While no Illinois court considerable size. These devices are ubiq-
(or, by the Court’s research, any court) has uitous, and their propensity to roll easily
reached the issue of whether riding a under the weight of a human body is pat-
skateboard in circumstances similar to this ent.’ TTT [A]n ordinary person would be
case constitutes an openly and obviously aware that stepping onto [a] skateboard
dangerous condition, two applications of could cause that person to slip and fall.’’).
the open and obvious rule provide some The height of such a fall may be less than
guidance. The first involves recreational that from a trampoline, but the speed of a
trampolines, which Illinois courts have in- skateboard’s movement presents its own,
variably determined are an openly and ob- additional hazard. Thus, there is no reason
viously dangerous condition when children
why jumping on a trampoline or using
jump on them. Qureshi, 334 Ill.Dec. 265,
playground equipment can constitute an
916 N.E.2d at 1158 (collecting cases). The
openly and obviously dangerous condition,
cases highlight the risk of falling from a
while using a skateboard would not.
height that trampolines present. Id. Simi-
larly, Illinois courts also recognize that The particular circumstances of this case
‘‘even a child is expected to comprehend only buttress this conclusion. Madison rode
the danger of falling from a slide.’’ Cole- the skateboard while wearing flip flops,
man v. Ramada Hotel Operating Co., 933 Pls.’ LR 56.1(b)(3)(C) Stmt. (Target) ¶ 44,
F.2d 470, 474 (7th Cir. 1991) (citing Alop which a reasonable near-twelve-year-old
by Alop v. Edgewood Valley Cmty. Ass’n, would know provide inferior support while
 GUTTERMAN v. TARGET CORP. 703
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

playing or engaging in athletic activity. understand the warning and appreciate the
Madison’s parents told her as much. Tar- consequences of ignoring it.
get’s LR 56.1(a)(3) Stmt. ¶ 17; id., Ex. B, For the foregoing reasons, the Court
at 38:20–40:1; id., Ex. C, at 20:17–21:7, concludes that the dangers presented by
25:2–14; Target’s Resp. Pls.’ LR riding the skateboard in the circumstances
56.1(b)(3)(C) Stmt. ¶ 110. Additionally, the that existed here would be open and obvi-
skateboard was still wrapped in clearly ous to a reasonable near-twelve-year-old in
visible plastic packaging that covered the Madison’s position at the time of the acci-
skateboard’s grip tape and made the dent.6 As such, Madison’s injury was not
skateboard’s surface slippery. Target’s LR
reasonably foreseeable to Target, because
56.1(a)(3) Stmt. ¶ 44; id., Ex. G. A reason-
it could reasonably have expected Madison
able near-twelve-year-old familiar with
to avoid the open and obvious danger pre-
skateboards, as Madison was, id. ¶¶ 30, 33,
sented by the skateboard. Similarly, be-
would know that riding a skateboard with
cause the open and obvious nature of the
plastic wrap covering its surface would
danger presented by the skateboard made
only increase the risks already present.
it likely Madison would avoid any injury,
Reasonably prudent judgment would influ-
Madison’s injury was not likely to occur.
ence not only refraining from using the
skateboard in the store, but at the very This leaves only the magnitude of the
least, removing the plastic wrap. Further- burden that placing a duty on Target in
more, a reasonable near-twelve-year old this case would create and the conse-
with experience riding skateboards would quences of imposing such a burden. The
know that a hard, slick retail store floor, magnitude of a burden reflects financial
Pls.’ LR 56.1(b)(3)(C) Stmt. (Target) ¶ 76, considerations relative to the specific con-
is a particularly precarious surface on dition at issue, whereas the consequences
which to ride a skateboard. Finally, a of a burden reflect broader, systemic con-
warning sticker was attached to the skate- cerns. See Bruns, 386 Ill.Dec. 765, 21
board that noted the serious risk of injury N.E.3d at 695; Bucheleres v. Chi. Park
and advised proper equipment to use when Dist., 171 Ill.2d 435, 216 Ill.Dec. 568, 665
skateboarding.5 Target’s LR 56.1(a)(3) N.E.2d 826, 836–37 (1996). Here, requiring
Stmt. ¶¶ 46–47, 49. A reasonable near- Target to prevent accidents like this from
twelve-year-old would be able to read and happening would likely entail significant

5. Plaintiffs argue that there is question of fact 6. This analysis demonstrates how Cruzen ex
about whether flip flops constitute flat-soled rel. Cruzen v. Sports Authority, 369 F.Supp.2d
shoes—which the skateboard’s warning stated 1003 (S.D. Ill. 2005), is inapposite. There, the
should be used when riding—and whether a court declined to conclude as a matter of law
reasonable near-twelve-year-old would believe that an unsecured pogo stick left out in the
as much. Pls.’ Resp. (Target) at 10. This argu- front of a sporting goods store was an openly
ment misses the mark in two respects. First, it and obviously dangerous condition from the
misunderstands the nature of the open and perspective of a fifteen-year-old that injured
obvious inquiry, which is generally for the himself using the stick. Id. at 1007. Unlike
court to conduct unless there is a dispute here, the pogo stick had been removed from a
about the physical quality of the condition at box that displayed various warnings, includ-
issue. Second, even if flip flops are not flat- ing a weight limit exceeded by the plaintiff.
soled shoes, the warning sticker cautioned Id. at 1004, 1007. This characteristic was not
that riding a skateboard can cause serious obvious from the stick itself. Id. at 1007. Addi-
injury and went on to list several more items tionally, the defendants misunderstood the
of protective gear that should be worn, all of scope of the open and obvious rule, preclud-
which point to the open and obvious danger ing the court from concluding that a duty was
of the condition in this case. not owed. See id. at 1006.
704 242 FEDERAL SUPPLEMENT, 3d SERIES

cost. Target would need to assign person- signed because Bravo should have
nel to ensure at frequent intervals that equipped it with a better deterrent device.
deterrent devices remained attached to Pls.’ Resp. (Bravo) at 5. Their theory ap-
skateboards and regularly monitor the ar- pears to be that, because the truck box on
eas in which skateboards were kept to Bravo’s skateboards can be so easily re-
prevent them from being ridden in its moved, Bravo’s skateboards can be too
stores. These costs are unjustified given easily ridden in retail stores, making them
the open and obvious danger that riding a unreasonably dangerous.
skateboard in these circumstances pres-
[12–14] Under Illinois law, a plaintiff
ents. The consequences of such a burden
can bring a claim that a product is defec-
could be even broader, as Target’s inability
tively designed through causes of action in
to adequately police skateboard displays
both negligence and strict products liabili-
could require it to completely alter the
manner in which it sells skateboards. Addi- ty. Blue v. Envtl. Eng’g, Inc., 215 Ill.2d 78,
tionally, imposing a burden in this case 293 Ill.Dec. 630, 828 N.E.2d 1128, 1141
might serve as a basis for imposing similar (2005) (plurality opinion). A negligence-
burdens regarding any manner of items in based theory focuses on the defendant’s
a Target store that could cause harm if conduct, whereas a strict products liabili-
used improperly by customers while ty–based theory focuses on the product at
browsing. Cf. Blackford v. Wal–Mart issue. Id. To prove a product is defectively
Stores, Inc., No. CIV. 07-437-GPM, 2008 designed under a negligence theory, the
WL 905912, at *2 (S.D. Ill. Apr. 2, 2008) same common law framework applies as
(remarking, in a related context, that ‘‘[f]or outside the products liability context.
a landowner such as [Target], the cost of Calles v. Scripto–Tokai Corp., 224 Ill.2d
securing the entire store is simply too high 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 270
to offset the small chance that parent- (2007). Thus, a plaintiff must prove that (1)
supervised children will find a way to in- the defendant owed a duty to the plaintiff;
jure themselves’’). (2) the defendant breached that duty; (3)
On balance, the Court concludes that the breach proximately caused the plain-
these factors weigh in favor of not impos- tiff’s injury; and (4) the plaintiff suffered
ing a duty of care upon Target in this case. damages. Id. (citing Ward, 143 Ill.Dec.
Thus, Plaintiffs cannot make out their pri- 288, 554 N.E.2d at 226). Moreover, ‘‘[t]he
ma facie case under their theories of negli- crucial question in a negligent-design case
gence or premises liability, and summary is whether the manufacturer exercised rea-
judgment for Target is granted.7 sonable care in the design of the product.’’
Id.
II. Claims Against Bravo
[15] Bravo, like Target, argues that it
A. Negligent Design is entitled to summary judgment on Plain-
[11] As against Bravo, Plaintiffs seek tiffs’ negligence claim because of the open
to recover under theories of negligence and obvious rule. In defective design
and strict products liability. In support of claims premised on negligence, the open
their negligence theory, Plaintiffs assert and obvious rule applies in much the same
that the skateboard was defectively de- fashion as described above. Just as with a

7. Because the Court grants summary judg- suffered, or that Target had no actual or con-
ment on this basis, it need not consider Tar- structive notice of the dangerous condition
get’s additional arguments that Madison im- presented by the skateboard.
pliedly assumed the risk of the injuries she
 GUTTERMAN v. TARGET CORP. 705
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

premises liability–based claim, whether the open and obvious danger of riding a skate-
danger presented by a purported design board in a retail store.
defect is open and obvious bears on wheth- For these reasons, the Court finds that
er the defendant owes a duty to the plain- Bravo did not owe Madison a duty of care
tiff. Blue, 293 Ill.Dec. 630, 828 N.E.2d at and therefore grants Bravo summary
1145–46. As before, this is a question of judgment on Plaintiffs’ negligent-design
law for the Court to decide. Id. claim.
Here, the danger presented by the
skateboard’s purported design defect— B. Strict Products Liability
that the truck box could be removed and Plaintiffs’ strict products liability claim
the skateboard used in a store—appears to is premised on the notion that (1) Bravo
be no different than the danger presented failed to warn of the danger its use pre-
by the skateboard itself. Accordingly, for sented, and (2) the skateboard at issue had
the same reasons as discussed above, the two design defects: an inadequate deter-
Court concludes that the skateboard’s pur- rent device and plastic wrapping. Pls.’
ported design defect presents an openly Resp. (Bravo) at 9–10.
and obviously dangerous condition. On that Little need be said about Plaintiffs’ fail-
basis, Madison’s injury resulting from the ure to warn theory. To succeed under a
purported defect was not reasonably fore- failure to warn theory, Plaintiffs would
seeable, because it was reasonable for Bra- need to show that Bravo’s skateboard
vo to expect that she would not have rid- ‘‘possesses dangerous propensities and
den the skateboard in the Target store. there is unequal knowledge with respect to
Similarly, because the open and obvious the risk of harm,’’ and that Bravo, ‘‘pos-
nature of the danger made it likely Madi- sessed of such knowledge, knows or should
son would avoid the injuries she suffered, know that harm may occur absent a warn-
her injuries were not likely to occur for the ing.’’ Sollami v. Eaton, 201 Ill.2d 1, 265
purposes of this analysis. Ill.Dec. 177, 772 N.E.2d 215, 219 (2002).
Moreover, the magnitude of the burden The problem facing Plaintiffs in making
and consequences of imposing a burden on this showing, however, is that ‘‘[n]o duty to
Bravo in this case would be significant. warn exists where the danger is apparent
Bravo would not only have to conduct re- or open and obvious.’’ Id. And as explained
search to determine an appropriate deter- above, the risks presented by Bravo’s
rent device that is impenetrable within a skateboard were open and obvious. Plain-
retail store, but would have to outfit all of tiffs’ failure to warn theory therefore fails.
its skateboards with that device, no doubt [16–18] Plaintiffs’ design defect theory
at great expense. Granted, Bravo has oth- requires lengthier consideration. To prove
er deterrent devices at its disposal, but a strict products liability claim based on a
Plaintiffs have not indicated that substitut- design defect, a plaintiff must demonstrate
ing one of these devices would remedy that the product’s design renders it unrea-
incidents like that involving Madison in a sonably dangerous. Calles, 309 Ill.Dec. 383,
cost-effective manner. In addition to imple- 864 N.E.2d at 254. To determine whether a
menting a new deterrent device, Bravo product is unreasonably dangerous, Illinois
would then need to monitor the effective- courts apply both the consumer-expecta-
ness of its device in retail stores across the tion test and the risk-utility test. Id., 309
country to guard against its circumvention. Ill.Dec. 383, 864 N.E.2d at 255. The con-
This imposition is unjustifiable given the sumer-expectation test asks whether a
706 242 FEDERAL SUPPLEMENT, 3d SERIES

product ‘‘failed to perform as an ordinary duction costs; and conformity with indus-
consumer would expect when used in an try standards, voluntary organization
intended or reasonably foreseeable man- guidelines, and government regulation.’’
ner.’’ Id., 309 Ill.Dec. 383, 864 N.E.2d at Ferraro v. Hewlett–Packard Co., 721 F.3d
256. To that end, the consumer-expectation 842, 846 (7th Cir. 2013) (citing Mikolajc-
test requires that a plaintiff ‘‘establish zyk, 327 Ill.Dec. 1, 901 N.E.2d at 335). On
what an ordinary consumer purchasing the summary judgment, ‘‘the court must bal-
product would expect about the product ance factors it finds relevant to determine
and its safety.’’ Id., 309 Ill.Dec. 383, 864 if the case is a proper one to submit to the
N.E.2d at 254. The ‘‘ordinary consumer’’ is
jury.’’ Calles, 309 Ill.Dec. 383, 864 N.E.2d
an objective persona that represents the
at 261 (citing Restatement (Third) of
typical user and purchaser of the product
Torts: Products Liability § 2, Reporters’
at issue. Id., 309 Ill.Dec. 383, 864 N.E.2d
Notes, cmt. e (1988)). Then, if the case is
at 256. Typically, application of the con-
submitted to the jury, the jury must deter-
sumer-expectation test is a task for the
jury, Mikolajczyk v. Ford Motor Co., 231 mine what factors are relevant and what
Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d 329, weight to give them. Id.; Salerno v. Inno-
353 (2008), but it can be decided as a vative Surveillance Tech., Inc., 402 Ill.
matter of law where no reasonable jury App.3d 490, 342 Ill.Dec. 210, 932 N.E.2d
could find that a product performed other 101, 109 (2010).
than how an ordinary consumer would ex-
pect, Calles, 309 Ill.Dec. 383, 864 N.E.2d at [21] Where the consumer-expectation
257; see also Hadrys v. Biberach, No. 1- and risk-utility tests produce different re-
09-0075, 2011 WL 9673575, at *6 (Ill. App. sults, the risk-utility test prevails. Miko-
Ct. Dec. 23, 2011). lajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 352;
see also Ferraro, 721 F.3d at 846. In such
[19, 20] The risk-utility test requires
cases, it is more helpful to consider the
that a plaintiff ‘‘demonstrate[ ] that the
tests in an integrated manner, with con-
magnitude of the danger outweighs the
utility of the product, as designed.’’ Calles, sumer expectations serving as one factor
309 Ill.Dec. 383, 864 N.E.2d at 257. In to weigh in the risk-utility calculus. See
weighing risk versus utility, Illinois courts Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at
look to a wide variety of factors, which 352–53. Moreover, while an open and obvi-
include ‘‘the magnitude and probability of ous danger automatically obviates any
the foreseeable risks of harm; the instruc- duty to warn, not so where a design defect
tions and warnings accompanying the is concerned. Calles, 309 Ill.Dec. 383,864
product; the nature and strength of con- N.E.2d at 259–60. Rather, whether a de-
sumer expectations regarding the product, sign defect presents an open and obvious
including expectations arising from prod- danger is just one additional factor to con-
uct portrayal and marketing; the likely sider among the myriad others in the risk-
effects of any alternative designs on pro- utility calculus.8 Calles, 309 Ill.Dec. 383,

8. It is unclear how, under Illinois law, the ‘‘[i]njuries are not compensable in products
open and obvious rule impacts application of liability if they derive merely from those in-
the consumer-expectation test. Early deci- herent properties of a product which are obvi-
sions suggest that an openly and obviously ous to all who come in contact with the
dangerous defect can never constitute a de- product,’’ and applying this rule in the con-
sign defect under the consumer expectation text of the consumer-expectation test). This
test. Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. issue, however, is of limited importance given
574, 384 N.E.2d 368, 372 (1978) (holding that the determinative status of the risk-utility test.
 GUTTERMAN v. TARGET CORP. 707
Cite as 242 F.Supp.3d 695 (N.D.Ill. 2017)

864 N.E.2d at 260; Blue, 293 Ill.Dec. 630, ported defect again weighs in Bravo’s fa-
828 N.E.2d at 1145. vor. It also reduces the magnitude and
possibility of harm, as explained above,
1. Truck Box pointing another factor in Bravo’s favor.
[22] Plaintiffs’ first asserted design de- The parties acknowledge that the skate-
fect is the skateboard’s truck box. In sup- board was equipped with a warning acces-
port of their argument that this feature sible to a reader in Madison’s position that
rendered the skateboard unreasonably cautioned against use without proper pro-
dangerous, Plaintiffs point only to the rea- tective wear. Finally, there is no evidence
son they think the truck box renders the in the record from which the Court can
skateboard defective: it is too easily re- evaluate the cost and utility of alternative
moved, permitting individuals in Madison’s designs for equipping Bravo’s skateboards
position to take it off and ride the skate- with deterrent devices, nor is there any
board. Plaintiffs offer no evidence as to the indication that Bravo did not comply with
expectations of ordinary consumers, nor do industry standards, voluntary organization
they argue that the risk presented by the guidelines, or government regulations. On
truck box outweighs its utility relative to balance, therefore, the relevant factors un-
other potential deterrent devices. Because der the risk-utility test weigh entirely in
Plaintiffs have offered no meaningful argu- Bravo’s favor regarding the skateboard’s
ment in line with either test for determin- truck box, and Plaintiff’s claim is unfit to
ing liability for a design defect, Bravo is submit to a jury.
entitled to summary judgment. Winters v.
2. Plastic Wrap
Fru–Con Inc., 498 F.3d 734, 744–45 (7th
Cir. 2007) (affirming award of summary [23] Plaintiffs’ argument that the
judgment on design defect claim where skateboard’s plastic wrap is a design de-
plaintiff did not offer any evidence of con- fect fares no better. The plastic wrap is a
sumer expectations or comparative analy- design defect, Plaintiffs explain, because it
sis of alternative designs); see also Assaf covers the skateboard’s grip tape, render-
v. Cottrell, Inc., No. 10 C 85, 2012 WL ing the skateboard unsafe to ride with the
4177274, at *3 (N.D. Ill. Sept. 19, 2012). wrap in place. Of course, this purported
In any case, Plaintiffs could not estab- defect is in some tension with Plaintiff’s
lish a design defect regarding the skate- initial position. Plaintiffs initially maintain
board and its truck box under either test, that the skateboard is defective because
making their claim unfit to submit to a the truck box fails to prevent it from being
jury. Plaintiffs have offered no evidence ridden in retail stores, while their second
from which a reasonable jury could find theory assumes such riding should occur
that the skateboard or the truck box did and must therefore be made safer. This is
not function as an ordinary consumer an odd position for Plaintiffs to take.
would expect. Even if the truck box can be Nevertheless, as Plaintiffs point out, ‘‘[a]
easily circumvented, an ordinary consumer strict product liability action may be based
would expect that riding a skateboard in a on an injury resulting from defective pack-
retail store would create a risk of falling aging.’’ Pls.’ Resp. (Bravo) at 9 (citing
down from its use. Thus, Plaintiffs cannot Perez v. Fid. Container Corp., 289 Ill.
succeed under the consumer expectation App.3d 924, 225 Ill.Dec. 73, 682 N.E.2d
test. 1150, 1153 (1997)). But Perez does not deal
Under the risk-utility test, the open and with a case where a product user failed to
obvious nature of the skateboard’s pur- remove obvious packaging material prior
708 242 FEDERAL SUPPLEMENT, 3d SERIES

to using the product in a store without

purchasing it, nor have Plaintiffs provided Oleg KOSTOVETSKY, individually and
any authority holding as much.9 Plaintiffs on behalf of all others similarly
have not provided any further analysis or situated, Plaintiff,
support for their theory concerning the v.
plastic wrap under either the consumer-
AMBIT ENERGY HOLDINGS, LLC,
expectation or the risk-utility test, which
Ambit Midwest, LLC, Ambit Texas,
again requires summary judgment in Bra-
LLC, Ambit Northeast, LLC, Ambit
vo’s favor. Winters, 498 F.3d at 744–45.
New York, LLC, Ambit Marketing,
Moreover, it is not reasonably foreseeable
LLC, Ambit Illinois, LLC, Ambit Cali-
that an ordinary skateboard user would
fornia, LLC, Ambit Holdings, LLC,
ride a skateboard without first removing
Ambit New Jersey, LLC, Ambit Man-
the plastic wrap, and if a skateboard user
agement, Inc., Ambit Group, L.P., Am-
did so, he or she would reasonably expect
bit Systems, Inc., Jere Thompson, Jr.,
to fall, negating any finding of defect un-
Chris Chambless, and John Does 1–
der the consumer-expectation test. Finally,
100, Defendants.
the utility of protecting a skateboard’s ap-
pearance for sale outweighs the need to 15 C 2553
eliminate the open and obvious risk pre- United States District Court,
sented by riding the skateboard with the N.D. Illinois, Eastern Division.
plastic wrap on. Accordingly, Plaintiffs’ de-
sign defect theory based on the skate- Signed March 10, 2017
board’s plastic wrap also fails. Background: Natural gas customer
For these reasons, the Court concludes brought putative class action alleging that
that no reasonable jury could find that natural gas limited liability company
Bravo’s skateboard suffered from a design (LLC), along with 100 consultants, perpe-
defect and the Court therefore grants trated a scheme to defraud him and thou-
summary judgment to Bravo on Plaintiffs’ sands of other natural gas customers in
strict products liability claim. violation of Racketeer Influenced and Cor-
rupt Organizations Act (RICO) and state
Conclusion
unjust enrichment law. The United States
For the foregoing reasons, Target’s mo- District Court for the Northern District of
tion for summary judgment [61] and Bra- Illinois, Gary Feinerman, J., 2016 WL
vo’s motion for summary judgment [73] 105980, denied LLC’s motion to dismiss.
are granted. Civil case terminated. The LLC moved for summary judgment
IT IS SO ORDERED. and to strike arguments in customer’s
summary judgment response. New York

, customer who was putative class member

in New York state court action against the
LLC moved to intervene as plaintiff, and

9. Plaintiffs seek to draw on Miller v. Rinker viduals from slipping on it when wet, which
Boat Co., 352 Ill.App.3d 648, 287 Ill.Dec. 416, was an intended and reasonably foreseeable
815 N.E.2d 1219 (2004), by analogy. In Mil- circumstance in using the boat. Id., 287 Ill.
ler, the plaintiff alleged various design defects Dec. 416, 815 N.E.2d at 1235–36. But unlike
related to anti-skid paint applied (and in some using a boat in water, riding a skateboard
areas, not applied) to the surface of a boat, covered in plastic wrap in a retail store is not
including that the paint failed to prevent indi- an intended or reasonably foreseeable use.