Baker v. Midland-Ross Corp.

• Decision Date: 27 May 1987
• Docket Number: MIDLAND-ROSS,No. 1-885-A-206,1-885-A-206
• Citation: 508 N.E.2d 32
• Parties: Monte BAKER and Lora Baker, Plaintiffs-Appellants, v.CORPORATION, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 32

508 N.E.2d 32

Monte BAKER and Lora Baker, Plaintiffs-Appellants, v. MIDLAND-ROSS CORPORATION, Defendants-Appellees.

No. 1-885-A-206.

Court of Appeals of Indiana First District.

May 27, 1987.

Rehearing Denied July 10, 1987.

Lawrence McTurnan, McTurnan & Meyer, Indianapolis, Melvin N. Fredbeck, LaGrange, Fredbeck & Deppe, Franklin, for plaintiffs-appellants.

James E. Rocap, Jr., James D. Witchger, Rocap, Reese & Dowling, Indianapolis, Stephen L. Huddleston, Franklin, for defendants-appellees.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Monte and Lora Baker appeal a negative judgment in favor of Midland-Ross on a personal injury action. We reverse.

FACTS

Monte Baker was involved in an explosion which occurred on February 5, 1979. Monte was on his first day of work at the General Motors Delco Remy Plant Number 3 in Anderson, Indiana. The "Allcase" furnace which exploded was manufactured and sold by Surface Combustion, a division of Midland-Ross Corp., to Delco Remy in 1963. The furnace involved in the accident was one of six furnaces designed and initially installed pursuant to blueprints and recommendations of Midland-Ross. On the morning of the accident, Monte Baker and other supervisory personnel of General Motors were inspecting a line of electric heat treating furnaces, numbered one through six. When they were near furnace number four, a steam explosion occurred, burning Monte so severely as to render him totally and permanently disabled. At the time of the accident, Monte was thirty-nine (39) years old, earning over $31,000 per year The steam explosion occurred as a result of a water jacket bursting inside the furnace which was heated to 1700 degrees Fahrenheit. The water jacket contained three gallons of water. When the water and steam spewed into the furnace's interior, it contacted the 1700 degree coils, furnace walls, and parts which were being heat treated. This caused steam, fire and smoke to belch forth from the furnace, loosening the furnace door, and engulfing Monte in the steam and flames.

exclusive of benefits. Monte was married to Lora Baker. At the time of the incident, Monte was in a place where he had a right to be and was carrying out the duties of his employment.

Immediately after the explosion, Delco Remy employees discovered that the inlet and outlet valves which regulated the flow of water into and out of the water jacket were closed. These valves were closed prior to the accident when Delco employees and other independent contractors shut down furnace number four for repairs. The furnace was relit on a Thursday; the furnace exploded on the following Monday. During that time, the water in the jacket apparently was never emptied. The 1700 degree heat from the furnace heated the water in the jacket, causing it to expand and burst the water jacket's walls.

The Allcase furnace was designed by Midland-Ross to heat treat metal parts. Heat treating requires a furnace which produces very high temperatures. For proper operation, a fan must circulate the gaseous air in the furnace's inner chamber. The fan has its propellers within the heat chamber. The fan's shaft extends into a water fan jacket which is suspended from the top of the furnace. The water jacket was designed to cool the fan bearings by the unrestricted flow of water through the jacket. Water would enter the jacket, circulate through the internal chambers of the fan jacket, and exit at the top of the water jacket through unrestricted piping for discharge into an open drain.

Midland-Ross' operating instructions for the furnace indicated that the operator should look for the unrestricted water flow through the "open-sight" drain on the outlet side of the water jacket before lighting the furnace. The instructions called for the operator to see that there were three gallons of water per minute flowing through the system during heat treatment.

Prior to the accident, the furnace's outlet drain was modified so that the water could be recirculated to save money. A valve was installed on this line to shut it off when necessary for repairs. The exact timing of this modification is unclear from the testimony. However, it is clear that Delco Remy employees made the modifications. Delco claimed that the change would not have been made without approval of the defendant's employees. Conversely, Midland-Ross claimed that the modification was made without consultation or notification to them. After the accident, Delco Remy removed the outlet valve and put back into operation the original unrestricted water flow system with the "open-sight" drain. As a result, Delco has had no explosions since.

Midland-Ross designed the "Allcase" furnace in the early 1950's. The furnace which exploded was sold to Delco Remy in 1963. The water jacket which actually burst was a replacement which Midland-Ross sold to Delco Remy in November of 1976.

It was undisputed that this water jacket was not designed as a pressure vessel. Midland-Ross designed and intended it to be used with an unrestricted flow of water through an "open-sight" drain which would relieve all pressure. Midland-Ross complied with safety standards of the industry and of the National Fire Protection Association by providing an "open-sight" drain.

The plaintiffs contended that Midland-Ross should have designed the water jacket to include a fail safe device such as a blow plug or relief valve which would have released built-up steam or pressure trapped in the jacket. They presented evidence that the cost of a blow plug would have been only a few dollars. Relief valves have been widely used ever since the advent of the steam engine in the 18th Century.

Midland-Ross disputed this claim, alleging that a relief valve was not needed for an "open-sight" cooling system. They presented evidence that there had been no steam explosions on any of the 1,000 Midland-Ross furnaces sold from 1950 through the date of the trial other than Delco Remy's furnace which had been modified. Also, it was uncontradicted that other furnace manufacturers similarly utilized water cooling systems without any pressure relief devices other than the "open-sight" drain. This was true even at the time of trial. Midland-Ross also claimed that a flow-through cooling system with an "open-sight" drain was the most reliable type of pressure relief since it used the least amount of mechanical parts.

Midland-Ross occasionally provided consulting services for the "Allcase" furnaces at Delco Remy's request. Delco would call Midland-Ross to their plant for a specific trouble call or repair. This was only after the Delco employees attempted in vain to internally solve the problem. While at Delco's plant, the Midland-Ross personnel were not allowed to perform any work themselves. They merely made recommendations to Delco employees who would implement those suggestions. Delco claimed, "Nothing was ever done unless it was approved by [Midland-Ross]." Appellants' Brief at 10. However, the defendant claimed that Delco made the last decision as to whether to follow the recommendations. Midland-Ross never had a maintenance contract with Delco.

Monte Baker and his wife Lora, filed suit against Midland-Ross on May 29, 1980, in the Marion County Superior Court for injuries and total permanent disability. The case thereafter was venued to the Johnson County Circuit Court. The complaint proceeded upon theories of strict liability and negligence. The jury trial commenced on February 2, 1985. Five days later, the jury found in favor of Midland-Ross.

ISSUE

Although the Bakers raise numerous issues for our review, the following issue is dispositive:

Whether the trial court erred when it refused the plaintiffs' tendered instruction on the issue of negligence after negligence was tried by consent of the parties.

DISCUSSION AND DECISION

The Bakers allege that the trial court's refusal to give one of their tendered jury instructions completely thwarted their effort to proceed upon the theory of negligence. The plaintiffs tendered the following instruction:

"Aside from the Instructions I have read or will read to you concerning the law respecting strict liability, the Plaintiffs may recover in this case under the theory of ordinary negligence if they establish, by a preponderance of the evidence, the following:

"1. That the Defendant provided repair, installation and consulting services to Plaintiff's employer, Delco Remy.

"2. Defendant, by and through its employees, knew in such capacity, or should have known, of a dangerous condition existing with respect to one of its products, and further knew or should have known that Plaintiff's employer, Delco Remy, relied upon it to point out any unreasonable dangers respecting said product in its capacity as a consultant and, it failed to warn or point out such unreasonably dangerous condition respecting its product to said customer.

"3. As a proximate result thereof, the Plaintiff, Monte Baker, was injured."

Record at 324. The plaintiffs allege that this instruction is a correct statement of the law based upon case law and Restatement (Second) of Torts Sec. 324A (1965). ¹ The Bakers allege that the trial court should have given their instruction because of the defendant's repair or consultation visits at the Delco plant. The plaintiffs allege that Midland-Ross should have seen that the furnace was modified and should have warned Delco of the resulting dangers. Thus, instead of attempting to prove a defect at the time of sale as required for liability under strict liability, this jury instruction was premised upon the defendant's post-sale negligence in servicing the furnaces and failure to warn of the dangerous modification.

The defendant claims that the trial court's refusal to give the negligence instruction was proper. Midland-Ross directs our attention to the trial court's preliminary instruction. Although the instruction was in very general terms, it apparently dealt only with the...