ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Lane C Siesky Daniel

Document Sample
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE Lane C Siesky Daniel Powered By Docstoc
					ATTORNEY FOR APPELLANTS                                    ATTORNEY FOR APPELLEE
Lane C. Siesky                                             Daniel L. Siewers
Barber & Shoulders                                         Hart Bell Cummings Ewing & Stuckey
Evansville, Indiana                                        Vincennes, Indiana

______________________________________________________________________________

                                             In the
                              Indiana Supreme Court
                            _________________________________

                                     No. 42S01-0301-CV-24

WAYNE A. PETERS AND HELEN PETERS,
                                                           Appellants (Plaintiffs below),

                                                v.

DONALD FORSTER,
                                                      Appellee (Defendant below).
                            _________________________________

                 Appeal from the Knox Superior Court II, No. 42D02-0005-CT-117
                              The Honorable Jim R. Osborne, Judge
                            _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 42A01-0109-CV-350
                           _________________________________

                                         March 11, 2004

Rucker, Justice.

                                         Case Summary


        Sustaining injury after slipping on a ramp attached to a home that he was visiting, Wayne
Peters sued the contractor who installed the ramp. The trial court granted summary judgment in
the contractor’s favor on grounds that the “acceptance rule” precluded liability. On review the
Court of Appeals reversed relying on an exception to the rule. Today we grant transfer and join
those jurisdictions that have abandoned what has been described as an outmoded relic. In so
doing we reverse the judgment of the trial court.
                                 Facts and Procedural History


       Earl and Avonda Hamm owned a home in Vincennes, Indiana. Because Mr. Hamm was
bedridden and because Mrs. Hamm’s own ability to climb steps was declining, the Hamms
decided to install a ramp on the front of their residence. A neighbor of the Hamms’ daughter had
constructed a ramp for his handicapped wife who had since passed away. Having no further use
for the ramp, he sold it to the Hamms for less than a hundred dollars.


       Donald Forster owned several rental properties and was the landlord of the Hamms’
daughter. He also engaged in construction work as an independent contractor. By agreement
with the Hamms, Forster transported the ramp from its original location to the Hamm residence
where he and a few of his employees attached it to the front of the house with “a couple of
screws.” Appellants’ App. at 35. Forster was aware the ramp did not meet building code
requirements for a wheelchair ramp, but he was unaware of code requirements for other types of
ramps. After installation, the Hamms’ daughter attached carpeting to the ramp.


       On March 15, 1999, Wayne Peters delivered a meal to the Hamm residence. Using the
ramp to enter the house Peters apparently encountered no difficulty. Upon leaving however,
Peters slipped and fell sustaining serious injury. Thereafter, he filed a complaint for damages
against the Hamms for negligence in maintaining the ramp. Peters’ wife joined in the complaint
on a loss of consortium claim. The complaint was later amended to include Forster as a party
defendant.1 Thereafter Forster moved for summary judgment which the trial court granted on
grounds that as a matter of law Forster owed no duty to Peters because the Hamms “accepted and
paid for” the work Forster performed. Appellants’ App. at 1. On review, the Court of Appeals
reversed relying on an exception to the general rule of nonliability where an owner accepts a
contractor’s work. Peters v. Forster, 770 N.E.2d 414, 419 (Ind. Ct. App. 2002). We grant
transfer and abandon the rule.




1
  Subsequently Peters and the Hamms entered an agreed settlement. As a result the Hamms are not par-
ties to this appeal.


                                                 2
                                           Discussion


       In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty
owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an
injury to the plaintiff proximately caused by the breach. Benton v. City of Oakland City, 721
N.E.2d 224, 232 (Ind. 1999). Duty is a question of law for the court to decide. Absent a duty,
there can be no breach of duty and thus no negligence or liability based upon the breach. Wilson
v. Haimbaugh, 482 N.E.2d 486, 487 (Ind. Ct. App. 1985).


       Generally, Indiana has followed the rule that “contractors do not owe a duty of care to
third parties after the owner has accepted the work.” Blake v. Calumet Constr. Corp., 674
N.E.2d 167, 170 (Ind. 1996); Citizens Gas & Coke Util. v. Am. Econ. Ins. Co., 486 N.E.2d 998,
1000 (Ind. 1985). This rule, commonly referred to as the “acceptance rule” or the “completed
and accepted rule,” has its origins in English common law under which “architects and builders
were immune from civil liability to third persons who were injured as a result of their negligence
in design or construction.” George Anthony Smith, Recent Statutory Developments Concerning
the Limitations of Actions Against Architects, Engineers, and Builders, 60 Ky. L.J. 462, 463
(1972). Immunity was based on privity of contract. “Without this relationship one could not
sue.” Id. The authority most often cited for injecting a privity requirement into what was
otherwise a negligence claim is Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842). In that
case, a party entered into a contract with the Postmaster General to keep the mail coach in good
repair. A mail coach driver was injured when the coach collapsed and he sought damages from
the party charged with maintaining the vehicle. Denying relief and articulating the sentiment of
the members of the Court of Exchequer, Lord Abinger declared in pertinent part:

               There is no privity of contract between these parties; and if the
               plaintiff can sue, every passenger, or even any person passing
               along the road, who was injured by the upsetting of the coach,
               might bring a similar action. Unless we confine the operation of
               such contracts as this to the parties who entered into them, the
               most absurd and outrageous consequences, to which I can see no
               limit, would ensue . . . .




                                                3
Id. at 405. Early American common law mirrored the English common law rule requiring privity
of contract. Accordingly, although a contractor was held liable for injury that resulted from his
negligence before his work was completed, “his responsibility was terminated, and he was not
liable to any third person once the structure was completed and accepted by the owner.” W.
Page Keeton et al., Prosser & Keeton on the Law of Torts § 104A, at 722 (5th ed. 1984).


       The acceptance rule first appeared on Indiana’s legal landscape with this Court’s opinion
in Daugherty v. Herzog, 145 Ind. 255, 44 N.E. 457 (1896). In that case the appellant’s daughter
was fatally injured when the wall of a building collapsed, striking her. Seeking recovery for the
loss of his daughter’s services, the father filed an action in negligence against the contractor who
had reconstructed the building. Affirming the trial court’s grant of a demurrer, this Court
determined that the father had no cause of action against the contractor. The Court reasoned that
the contractor was liable only to the party to whom he owed a duty. In that case it was the
person with whom he was in privity, namely the owner with whom the contractor had contracted.
This Court also noted that “[t]he repairs had been completed and accepted long before
appellant’s daughter was injured.”     Id. at 457.    Continuing, the Court gave the following
examples and explanation for its ruling:

               There must be causal connection between the negligence and the
               hurt; and such causal connection is interrupted by the interposition,
               between the negligence and the hurt of any independent human
               agency. . . . Thus, a contractor is employed by a city to build a
               bridge in a workmanlike manner; and after he has finished his
               work, and it has been accepted by the city, a traveler is hurt when
               passing over it by a defect caused by the contractor’s negligence.
               Now the contractor may be liable to the city for his negligence, but
               he is not liable in an action on the case for damages. The reason
               sometimes given to sustain such conclusion is, that otherwise there
               would be no end to suits. But a better ground is that there is, no
               causal connection, as we have seen, between the traveler’s hurt and
               the contractor’s negligence . . . [B]etween the contractor and the
               traveler intervened the city, an independent responsible agent,
               breaking the causal connection.


Id. at 457–58 (quotations omitted). Relying on Daugherty and its progeny, our courts have
articulated two primary reasons supporting the acceptance rule: (1) the application of the



                                                 4
doctrine of privity to cases involving negligence;2 and (2) the owner’s control of the entity when
the injury occurred.3


        The privity of contract requirement in the law of negligence has largely eroded. In a
watershed decision Judge Cardozo, speaking for a majority on the New York court of last resort,
ruled that a manufacturer of automobiles could be held liable in negligence to the ultimate
purchaser of the vehicle, not just the immediate purchaser—the retail dealer. MacPherson v.
Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916).                    In essence, at least in the area of
manufacturer’s liability, MacPherson stripped the privity requirement of Winterbottom from its
lofty position. Our courts have done likewise. See, e.g., Perdue Farms, Inc. v. Pryor, 683
N.E.2d 239, 241 (Ind. 1997) (“Privity of contract is no longer required if a personal injury action
for a defective product sounds in tort.”); Coca Cola Bottling Works of Evansville v. Williams,
111 Ind. App. 502, 37 N.E.2d 702, 706 (1941) (citing MacPherson with approval and declaring
that “the rule now in the best reasoned cases is that the manufacturer of foods or bottled goods
sold for human consumption may be held liable to the ultimate consumer for injuries caused by
foreign deleterious substances in such goods regardless of whether or not there was privity of
contract between them”). Still, the privity of contract requirement in the area of contractors and




2
  See, e.g., Citizens Gas & Coke Util. v. Am. Econ. Ins. Co., 486 N.E.2d 998, 1000 (Ind. 1985) (articulat-
ing the general rule announced in Daugherty); Travis v. Rochester Bridge Co., 188 Ind. 79, 122 N.E. 1, 2
(1919) (citing Winterbottom and declaring “[i]t may be stated as a general rule that the manufacturer of
products . . . rests under no duty to exercise care in their manufacture for the safety of persons with whom
he has no privity of contract.”); Computer Co., Inc. v. Davidson Indus., Inc. 623 N.E.2d 1075, 1079 (Ind.
Ct. App. 1993) (criticizing Winterbottom and Daugherty but declaring “Indiana law currently favors lim-
ited liability in this area. The intricacies of an elimination of the privity requirement in a case such as this
are not for us, as we may not overrule our supreme court’s precedent.”).
3
  See, e.g., Blake, 674 N.E.2d at 171 (noting that in the one hundred years since adoption of the ac-
ceptance rule, this Court has not spoken on the rule’s underlying rationale or how the rule should be ap-
plied; however “[i]n evaluating ‘acceptance’ for these purposes, the focus is on whether the owner was
better able than the contractor to prevent injury to third parties at the time the harm occurred”); Snider v.
Bob Heinlin Concrete Constr. Co., 506 N.E.2d 77, 82 (Ind. Ct. App. 1987) (“Any danger which may have
presented itself was within the sole control of . . . the manager of the pool. We have noted that one who
lacks possession and control of property . . . should not be held liable for injuries he is no longer in a posi-
tion to prevent.”), trans. denied; cf. Hill v. Rieth-Riley Constr. Co., 670 N.E.2d 940, 944 (Ind. Ct. App.
1996) (“The rationale behind [the acceptance rule] is that the owner or general contractor has greater
knowledge concerning the construction than the independent contractor.”).


                                                       5
builders has lingered in Indiana and apparently in several other jurisdictions as well.4 However
even for contactors and builders, privity as an absolute defense is subject to numerous
exceptions. For example, even absent privity of contract, a contractor remains liable where (i)
the contractor turns over work “in a condition that was dangerously defective, inherently
dangerous or imminently dangerous such that it created a risk of imminent personal injury”,
Citizens Gas, 486 N.E.2d at 1000, or where (ii) “the thing sold or constructed be not imminently
dangerous to human life, but may become such by reason of some concealed defect [and the]
vendor or constructor . . . knew of the defect and fraudulently concealed it.” Holland Furnace
Co. v. Nauracaj, 105 Ind. App. 574, 14 N.E.2d 339, 342 (1938). 5


        The declining role of privity in the area of manufacturer’s liability, along with the
growing list of exceptions to the privity requirement, has contributed to the increasing number of
jurisdictions that have abandoned the acceptance rule. See, e.g., Strakos v. Gehring, 360 S.W.2d
787, 791 (Tex. 1962) (characterizing the rule as an “oft-repudiated and emasculated doctrine”
that has become “enveloped by complex exceptions to cover such situations as nuisance, hidden
danger, and inherently dangerous conditions”); Lynch v. Norton Constr., Inc., 861 P.2d 1095,
1099 (Wyo. 1993) (observing “the rule of nonliability with its many exceptions is more
cumbersome than traditional negligence analysis, while leading us to the same conclusion in
most cases”). In addition, the “control” rationale in support of the acceptance rule has also
waned in importance as an exculpatory factor. As one court explained:


4
  See, e.g., Mendendez v. Paddock Pool Constr., 836 P.2d 968 (Ariz. Ct. App. 1991); Sanchez v.
Swinerton & Walberg Co., 55 Cal. Rptr. 2d 415, 418-20 (Cal. Ct. App. 1996); Ray’s Plumbing Contrac-
tors, Inc. v. Trujillo Constr., Inc., 847 So. 2d 1086, 1088 (Fla. Dist. Ct. App. 2003); Flager Co. v. Savage,
368 S.E.2d 504 (Ga. 1988); Griffin v. Int’l Ins. Co., 727 So. 2d 485, 491 (La. Ct. App. 1998); Couch v.
City of D’Iberville, 656 So. 2d 146 (Miss. 1995); Gast v. Shell Oil Co., 819 S.W.2d 367 (Mo. 1991);
Dvorak v. Bunge Corp., 590 N.W.2d 682, 687 (Neb. 1999); Thrift v. Food Lion, Inc., 442 S.E.2d 504
(N.C. 1994); Schlender v. Andy Jansen Co., 380 P.2d 523 (Okla. 1962); Bromaghim v. Furney, 808 A.2d
615, 617 (R.I. 2002); First Church of Christ Scientist v. City of Seattle, 964 P.2d 374, 377 (Wash. Ct.
App. 1998); Roush v. Johnson, 80 S.E.2d 857, 873-74 (W. Va. 1954); Wolfe v. Oliver Constr. Co., 114
N.W.2d 441 (Wis. 1962).
5
  Although Indiana has had occasion to address only two exceptions to the rule, other exceptions include:
(1) the contractor creates a situation which he or she knows or should know is inherently dangerous, (2)
the contractor’s conduct may be regarded as an implied invitation to third persons to come in contact with
defective work, and (3) the finished work constitutes a nuisance per se. See 41 Am. Jur. 2d Independent
Contractors § 74 (1995) (compiling cases from other jurisdictions).


                                                     6
               [The acceptance rule] has the undesirable effect of shifting
               responsibility for negligent acts or omissions from the negligent
               party to an innocent person who paid for the negligent party’s
               services. Furthermore, the shifting of responsibility is based on the
               legal fiction that by accepting a contractor’s work, the owner of the
               property fully appreciates the nature of any defect or dangerous
               condition and assumes responsibility for it. In reality, the opposite
               is usually true. Contractors, whether they be building contractors,
               or architects, are hired for their expertise and knowledge. The
               reason they are paid for their services is that the average property
               owner does not have sufficient knowledge or expertise to design or
               construct real property improvements safely and soundly. . . . How
               then can we logically conclude that simply because the
               professional has completed his or her services and the contractee
               has paid for those services, liability for the contractor’s negligence
               should shift to the innocent and uninformed contractee? We
               cannot.

Pierce v. ALSC Architects, P.S., 890 P.2d 1254, 1262 (Mont. 1995). Consistent with this
reasoning a number of jurisdictions have abandoned the acceptance rule in favor of what has
been described as the so-called “modern rule” or “foreseeability doctrine.”6
       As Professor Prosser observes:

               It is now the almost universal rule that the contractor is liable to all
               those who may foreseeably be injured by the structure, not only
               when he fails to disclose dangerous conditions known to him, but
               also when the work is negligently done. This applies not only to
               contractors doing original work, but also to those who make

6
 See McFadden v. Ten-T Corp., 529 So. 2d 192, 200 (Ala. 1988); Brent v. Unicol, Inc., 969 P.2d 627,
630 (Alaska 1998); Suneson v. Holloway Constr. Co., 992 S.W.2d 79, 85 (Ark. 1999); Wright v. Creative
Corp., 498 P.2d 1179, 1181 (Col. Ct. App. 1972); Minton v. Krish, 642 A.2d 18, 21 (Conn. App. Ct.
1994); Virden v. Betts & Beer Constr. Co., Inc., 656 N.W.2d 805, 807 (Iowa 2003); Talley v. Skelly Oil
Co., 433 P.2d 425, 432, 434 (Kan. 1967); Gilbert v. Murray Paving Co., Inc., 2003 WL 22519537, __
S.W.3d ___ (Ky. Ct. App. 2003); Carven v. Hickman, 763 A.2d 1207, 1211-13 (Md. Ct. Spec. App.
2000); McDonough v. Whalen, 313 N.E.2d 435, 439 (Mass. 1974); Feaster v. Hous, 359 N.W.2d 219,
223 (Mich. Ct. App. 1984); Pierce, 890 P.2d at 1262; Russell v. Arthur Whitcomb, Inc., 121 A.2d 781,
782 (N.H. 1956); Juliano v. Gaston, 455 A.2d 523, 525 (N.J. Super. Ct. App. Div. 1982); Tipton v.
Clower, 356 P.2d 46, 49 (N.M 1960); Colonno v. Executive I Assocs., 644 N.Y.S.2d 105, 107 (N.Y. App.
Div. 1996); Dinger ex rel. Dinger v. Strata Corp., 607 N.W.2d 886, 891 (N.D. 2000); Sumner v. Lambert,
121 N.E.2d 189, 195-96 (Ohio Ct. App. 1953); Thompson v. Coats, 547 P.2d 92, 95 (Or. 1976);
Masciangelo v. Dolente, 295 A.2d 98, 99-100 (Pa. Super. Ct. 1972); Stanley v. B.L. Montague Co., Inc.,
382 S.E.2d 246, 249 (S.C. Ct. App. 1989); McMacken v. South Dakota, 320 N.W.2d 131, 133 (S.D.
1982), overruled on other grounds; Johnson v. Oman Constr. Co., Inc., 519 S.W.2d 782, 788 (Tenn.
1975); Strakos, 360 S.W.2d at 791; Tallman v. City of Hurricane, 985 P.2d 892, 894 (Utah 1999); Lynch,
861 P.2d at 1099.


                                                  7
                repairs, or install parts, as well as supervising architects and
                engineers. There may be liability for negligent design, as well as
                for negligent construction.

Keeton et al., supra, § 104A, at 723. This trend also is reflected in the Restatement (Second) of
Torts:

                One who on behalf of the possessor of land erects a structure or
                creates any other condition thereon is subject to liability to others
                upon or outside of the land for physical harm caused to them by
                the dangerous character of the structure or condition after his work
                has been accepted by the possessor, under the same rules as those
                determining the liability of one who as manufacturer or
                independent contractor makes a chattel for the use of others.

Restatement (Second) of Torts § 385 (1965).


         In essence instead of applying the non-liability rule, a number of courts have embraced
the rule that a contractor is liable for injuries or death of third persons after acceptance by the
owner where the work is reasonably certain to endanger third parties if negligently completed.
See id. This view adopts the rationale that there are insufficient grounds to differentiate between
liability of a manufacturer of goods and that of a building contractor. See id. We think this is
the better view and today we endorse it as well. A rule that provides that a builder or contractor
is liable for injury or damage to a third person as a result of the condition of the work, even after
completion of the work and acceptance by the owner, where it was reasonably foreseeable that a
third party would be injured by such work due to the contractor’s negligence, is consistent with
traditional principles of negligence upon which Indiana’s scheme of negligence law is based.


         We hasten to add that a contractor’s liability under this reasoning is not absolute, but
predicated upon negligence, that is, duty, breach of duty, and injury proximately caused by the
breach. Thus for example, there is no breach of duty and consequently no negligence where a
contractor merely follows the plans or specifications given him by the owner so long as they are
not so obviously dangerous or defective that no reasonable contractor would follow them.
Keeton et al., supra, § 104A, at 723-24; see also Ross v. State, 704 N.E.2d 141, 145 (Ind. Ct.
App. 1998) (noting that where a contractor is not following his or her own plans, but those




                                                 8
provided by the owner, “liability is imposed only where the plans are so obviously defective that
no reasonable contractor would follow them”).


          In this case Peters alleged among other things that Forster installed the ramp in violation
of applicable building codes. The trial court granted summary judgment in favor of Forster on
grounds that he owed Peters no duty as a matter of law based on the acceptance rule. Because
we have abandoned the rule, Forster’s liability must be evaluated under traditional principles of
negligence.


          In general a contractor has a duty to use reasonable care both in his or her work and in the
course of performance of the work. See Computer Co., 623 N.E.2d at 1076. However, “[t]he
duty of reasonable care is not, of course, owed to the world at large, but rather to those who
might reasonably be foreseen as being subject to injury by the breach of the duty.” Thiele v.
Faygo Beverage, Inc., 489 N.E.2d 562, 574 n.4 (Ind. Ct. App. 1986). Thus, Forster contends that
even if the acceptance rule is abandoned, the judgment of the trial court nonetheless should be
affirmed. Forster points out that even under the so-called modern rule a contractor is still not
liable unless it is reasonably foreseeable that a third person would be injured by the contractor’s
action. According to Forster the chain of causation in this case was broken between his action
and Peters’ injury thus rendering the injury unforeseeable. In support Forster asserts: (i) the
Hamms controlled the ramp at the time Peters fell; (ii) the Hamms’ daughter altered the ramp by
installing carpet on it; and (iii) there was no evidence presented that the ramp was likely to cause
injury.


          We view Forster’s claim as an argument that his alleged conduct was not the proximate
cause of Peters’ injury. Although a rigorous definition is elusive, proximate cause has been
defined as “that cause which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the result complained of and without which the result would not
have occurred.” Orville Milk Co. v. Beller, 486 N.E.2d 555, 559 (Ind. Ct. App. 1985). The
foreseeability of an intervening cause and, thus, whether the defendant’s conduct is the
proximate cause of the plaintiff’s injuries, is generally a question of fact for the jury to decide.
Nat’l R.R. Passenger Corp. v. Everton by Everton, 655 N.E.2d 360, 366-67 (Ind. Ct. App. 1995),



                                                   9
trans. denied; see also Conder v. Hull Lift Truck, Inc., 435 N.E.2d 10, 15 (Ind. 1982) (“[T]he
question concerning foreseeability of intervening third party misconduct is most often held to be
a question of fact for the jury’s determination.”). Only in plain and indisputable cases, where
only a single inference or conclusion can be drawn, are the questions of proximate cause and
intervening cause matters of law to be determined by the court. Crull v. Platt, 471 N.E.2d 1211,
1215 (Ind. Ct. App. 1984). The facts of this case do not lead us to the conclusion that the
foreseeability of the intervening causes Forster articulates is a question for the court to decide.
Rather, this is a question for the jury.


                                           Conclusion


        The trial court entered summary judgment in favor of Forster on grounds he owed no
duty to Peters based on the acceptance rule. Today we abandon the rule in favor of traditional
principles of negligence. As such we conclude Forster owed Peters a duty of reasonable care.
Because in this case neither breach of duty nor proximate cause can be determined as a matter of
law, summary disposition is inappropriate. We therefore reverse the judgment of the trial court.


Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.




                                                10
 For this instruction to have been proper, it was thus
necessary that there be evidence not only that the plaintiff misused the product, but also that such
misuse was not reasonably expected by Ford Motor Company at the time it sold the 1984 Ford
Escort.


          There was absolutely no evidence at trial to establish that Ford Motor Company reasona-
bly expected every rear seat passenger to always wear a seat belt. Such contention defies com-
mon sense. Not only in 1984, but even today, it is common knowledge that significant numbers
of automobile passengers fail to wear their seat belts. The Indiana statute requiring the use of
seat belts was not enacted until 1985 and it applied then, and today still applies, only to front seat
occupants. Indiana Code § 9-19-10-2. It is preposterous to claim that Ford Motor Company did
not reasonably expect some rear seat passengers in Ford automobiles occasionally to ride without
buckling their seat belts. Because of the total lack of evidence establishing that the failure to
wear rear seat belts was unforeseeable to Ford, the trial court clearly erred in giving the misuse
instruction.


          The erroneous giving of an instruction that is not based on the evidence is reversible error
unless it clearly appears that no harm resulted. Summers, 141 Ind. App. at 180, 226 N.E.2d at



                                                    12
907. As noted in Justice Rucker's dissent, throughout the trial, Ford focused on the plaintiff's
failure to wear a seatbelt. Given the jury's verdict favoring Ford, it cannot reasonably be claimed
that no harm resulted from the erroneous misuse instruction. I would reverse the judgment of the
trial court.




                                                13
Rucker, Justice, dissenting.

        I respectfully dissent from that portion of the majority opinion declaring the trial court
properly gave to the jury a product misuse instruction. “Misuse” is considered an “unforeseeable
intervening cause” that relieves a manufacturer of liability. Indianapolis Athletic Club, Inc. v.
Alco Standard Corp., 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999), trans. denied. It is a defense
when a consumer’s decisions and conduct are not “reasonably expected” from the standpoint of
the manufacturer at the time of sale. Ind. Code § 34-20-6-4;6 Underly v. Advance Mach. Co.,
605 N.E.2d 1186, 1189 (Ind. Ct. App. 1993), trans. denied.


        I agree that whether a consumer’s conduct is reasonably foreseeable or expected falls
“peculiarly within the province of the jury.” Short v. Estwing Mfg. Corp., 634 N.E.2d 798, 801
(Ind. Ct. App. 1994), trans. denied. However, that is not the end of the matter. Rather, the bur-
den is on the manufacturer to introduce evidence in support of its defense. See, e.g., Marshall v.
Clark Equip. Co., 680 N.E.2d 1102, 1108-09 (Ind. Ct. App. 1997) (noting that the manufactur-
er’s product safety director testified that plaintiff operated machinery “in an unforeseeable man-
ner”), trans. denied. As applied to the facts here, Ford had the burden of proving that it did not
reasonably expect or reasonably foresee that Morgen, or any other back seat passenger for that
matter, would fail to wear a seat belt in Ford’s 1984 Escort wagon.


        Tacitly acknowledging that it introduced no evidence on this point, Ford cites Leon v.
Caterpillar Indus., Inc., 69 F.3d 1326 (7th Cir. 1995) for the proposition that “a person who dis-
regards manufacturer safety devices raises an issue of misuse and, further, that evidence of such
is sufficient to justify an inference of misuse.” Id. at 1344. Ford’s apparent position is that be-
cause there was testimony introduced at trial that Morgen was not wearing a seat belt at the time
of the collision that alone was enough to raise a jury question on the issue of misuse.


        In Leon, a disabling switch on a forklift malfunctioned and did not put the machine in
neutral when the operator rose from his seat. After stepping down from the forklift and standing

6
  Specifically the statute provides:
It is a defense to an action under this article (or I.C. § 33-1-1.5 before its repeal) that a cause of the physi-
cal harm is a misuse of the product by the claimant or any other person not reasonably expected by the
seller at the time the seller sold or otherwise conveyed the product to another party.


                                                       14
in close proximity thereto, the operator was severely injured when the forklift suddenly lunged
forward striking him. The operator filed suit against the forklift manufacturer under theories of
strict products liability, negligence, and breach of express and implied warranties. Ultimately the
case went to the jury on the products liability claim only. The jury returned a verdict for the
manufacturer and the operator appealed. Among other things he alleged trial court error in giv-
ing a jury instruction on misuse of the equipment. According to the forklift operator, “the jury
should have been instructed that, as a matter of law, there was no evidence of product misuse,
because one of [the manufacturer’s] representatives . . . testified that [the forklift operator] was
using the forklift for an intended and appropriate purpose at the time of the accident . . . .” Id. at
1341-42.


       Disagreeing with this argument and affirming the judgment of the District Court, the
Seventh Circuit recounted the “ample evidence” introduced at trial to support giving the instruc-
tion, which included the operator’s violation of “four independent safety violations.” Id. at
1342-43. The Court continued: “[I]f [the forklift operator] had followed any one of the precau-
tions listed above, he would not have been injured. We refuse to hold [the manufacturer] to a
standard of liability that results in it being held responsible for the kind of gross carelessness and
disregard for the safety rules and regulations exhibited by [the forklift operator].” Id. at 1343-44.
It was in this context the Court went on to say:


               Our holding that there was sufficient evidence of product misuse to
               support a jury instruction and finding on the issue also finds sup-
               port in this court’s holding that a person who disregards manufac-
               turer safety devices raises an issue of misuse and, further, that evi-
               dence of such is sufficient to justify an inference of misuse.

Id. at 1344. The case before us is readily distinguishable. The only “evidence” introduced at
trial on the question of alleged misuse was testimony that Morgen was not wearing a seat belt at
the time of the collision. This is insufficient to show Ford reasonably expected that Morgen
would do otherwise. Ford contends that over the last twenty years or so state and federal gov-
ernments, traffic safety organizations, as well as car manufacturers, have been “trumpeting the
necessity of wearing seat belts.” Ford’s Pet. for Trans. at 5. Ford may be correct. However, this
does not answer the question of whether in the early stages of the campaign, in particular in 1983


                                                   15
when Ford placed its 1984 Escort wagon on the market, Ford expected that drivers or their pas-
sengers would necessarily heed the advice to wear seat belts. In fact the record shows Ford abso-
lutely did not expect the vast majority of people to wear seat belts. In documents submitted to
the National Highway Traffic Safety Administration (NHTSA) during the period Ford was sell-
ing first generation Escorts to the public, Ford commented on seat belt use of automobile occu-
pants. More specifically, in one document a Ford senior executive referred to the “low rear safe-
ty belt usage rates of about 10 percent versus 38 percent for front seats.” See Ford’s July 1987
comments to Docket 87-08, Notice 1, R. at 473. Although this document was not part of the evi-
dence presented to the jury,7 it nonetheless belies the inference now made on appeal that Ford
reasonably expected occupants of its automobiles to wear seat belts. The record is clear that
when Ford sold the 1984 Escort wagon, Ford knew that 90% of rear seat occupants would not
utilize seat belts.

        Again, misuse is a defense when a consumer’s decisions and conduct are not reasonably
expected from the manufacturer’s perspective at the time the product was sold. Here, there was
simply no evidence introduced at trial from which the jury could infer Ford’s reasonable expecta-
tion either at the time of sale or at any other time.


        An instruction given to the jury must be a correct statement of the law and be supported
                                                                                            .
by evidence adduced at trial. Elmer Buchta, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind. 2001).
Because Ford introduced no evidence at trial on whether it reasonably expected Morgen to wear
a seat belt, the trial court erred in giving a product misuse instruction.


        An erroneous instruction requires reversal if it could have formed the basis for the jury’s
verdict. This court will assume the erroneous instruction influenced the jury’s verdict unless the
evidence of record shows the verdict could not have differed even with a proper instruction.
Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990). The record shows that at various
7
  Prior to trial Ford filed a motion in limine to exclude as evidence any reference to this and other docu-
ments submitted to the NHTSA. According to Ford these documents represented comments on proposed
federal regulatory changes. Thus, Ford argued, introducing them into evidence would infringe upon its
exercise of a First Amendment right to express views to public officials regarding the passage or en-
forcement of law and regulations. R. at 832. The trial court granted the motion. R. at 1074-78. And
Morgen did not challenge the ruling on appeal. Although not presented to the jury, the documents remain
a part of the record before us and cannot be ignored.


                                                    16
points throughout the trial Ford focused on Morgen’s failure to wear a seat belt. For example,
during opening statements counsel for Ford declared, “[y]ou will also hear Dr. Roberts among
others say very candidly to you they cannot tell you with engineering certainty that had this
young man been wearing his seat belt at the time[,] this injury would have been avoided. Dr.
Roberts will tell you that had this young man been wearing his lap belt he may have avoided this
injury or certainly reduced the potential for the injury.” R. at 2781-82. Dr. Roberts elaborated
on this point during direct examination.8 When questioning one of its design engineer witnesses,
Thomas Tiede, Ford brought home the point of the importance of wearing a seat belt. 9 The rec-
ord also shows that through both direct and cross-examination of witnesses, Ford reminded the
jury that Morgen was not wearing a seat belt at the time of the accident. See id. at 3258 (cross-
examination of Janet Snyder, the driver of the car in which Morgen was passenger), 3351 (cross-
examination of Morgen), 3837 (re-direct examination of Patrolman Daniel Huffman, first law
enforcement officer to arrive at the scene of the accident).


        This case was vigorously contested. Among other things the parties offered conflicting
expert testimony to explain how Morgen was injured as well as conflicting expert testimony on

8
  [Counsel for Ford]: Now, as far as seat belts are concerned. Do you have an opinion based on a reason-
able degree of mechanic engineering certainty as to whether the use by Mr. Morgen of his seat belt would
have prevented his injuries?
[Dr. Roberts]: I do.
[Counsel for Ford]: And what is your opinion, sir?
[Dr. Roberts]: I couldn’t say it would have prevented them. I think it would have modified and moderat-
ed them. You should always have [the] belt. Particularly when you are being pushed from the rear by the
seat back. That belt is going to help. To say he would have had no injury, I couldn’t do that. But I think
the belts help. They do help. You ought to wear them. I think they have some effect but complete elimi-
nation I couldn’t say that. R. at 4209A-10.
9
  [Counsel for Ford]: From a design engineering standpoint what is it we know about or what is it you
know, I should say, about kinematics in the rear?
[Mr. Tiede]: For rear seats we know that the – and I’m talking rear seats like in a wagon or rear seats in a
passenger car where it’s got – where it’s more rigid, where you have a bulk head there, our early testing
showed that – that’s where we really decided early on our lap belts were kind of important for rears too
especially in that case. I run rear tests for front seat occupants where I’ve conducted them for litigation
purposes to show lap belt helps there to [sic].
[Counsel for Ford]: Specifically in the rears - -
[Mr. Tiede]: But for the rears we know that package back there because of the stiffness of the back and
because of the configuration that what happens in the back is you are sitting lower, your knees come up
higher so in that configuration that lap belt becomes even more important because of the way your kine-
matics, as you load into the seat and as you ramp up the back the lap belt is helpful in that scenario.” Id.
at 3489-90.


                                                    17
whether the Escort was improperly designed. Given the emphasis Ford placed on Morgen’s fail-
ure to wear a seat belt, coupled with the trial court’s instruction on a point about which there was
no evidence, I cannot share the majority’s conclusion that “the instruction was not erroneous, and
even if it were, it did not affect the jury’s verdict.” Slip op. at 2. To the contrary, I am com-
pelled to assume the erroneous instruction did indeed influence the jury’s verdict. Canfield, 563
N.E.2d at 1282. I therefore dissent. The judgment of the trial court should be reversed and this
cause remanded for a new trial.

Dickson, J., concurs.




                                                18

				
DOCUMENT INFO
Categories:
Tags:
Stats:
views:1
posted:5/27/2012
language:
pages:10