Is a Manufacturer Liable If He Is Not Aware of the Danger a Product May Cause After Leaving Its Control ?

In Kempes v. Dunlop Tire & Rubber Corp., 192 Ill. App. 3d 209, 548 N.E.2d 644, 139 Ill. Dec. 259 (1989), a child was injured when he cut into a golf ball and the paste center squirted into his right eye. There was no evidence in the record from which it could be determined that the manufacturer knew or should have known of the existence of that danger at the time the golf ball was manufactured. The court stated, "'To hold a manufacturer liable for failure to know of a danger of which it would be impossible to know based on the present state of human knowledge would make the manufacturer a virtual insurer of the product.' " Kempes, 192 Ill. App. 3d at 218, 548 N.E. 2d at 649 (quoting Woodill v. Parke Davis & Co., 79 Ill. 2d 26, 37, 402 N.E.2d 194, 199, 37 Ill. Dec. 304 (1980)). Then the court simply asserted that there is no duty to warn beyond the time a product leaves the manufacturer's control "'unless it knew or should have known at that time that the product was defective.'" Kempes, 192 Ill. App. 3d at 218, 548 N.E.2d at 649 (quoting Collins, 174 Ill. App. 3d at 977, 529 N.E.2d at 306). Again, nothing in Kempes suggests that a postsale, continuing duty to warn would not be imposed upon a manufacturer who knew or should have known of the hazard when the product left its control. In Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879, 707 N.E.2d 239, 236 Ill. Dec. 394 (1999), the plaintiff alleged that the plaintiff's decedent was injured and died as a result of the negligent design of the seat assembly on a Farmall tractor manufactured by the defendant. The plaintiff alleged, in part, that the defendant Navistar International Transportation Corp. was negligent in failing to provide postsale warnings to foreseeable users after learning of the hazard presented by the seat assembly and in failing to retrofit the seat assembly postsale to eliminate the hazard. Those allegations were stricken by the trial court, and a judgment was entered upon a jury verdict for the defendant.