Beird v. Figg & Muller Engineers, Inc., 37A03-8604-CV-117

Citation516 N.E.2d 1114
Decision Date30 December 1987
Docket NumberNo. 37A03-8604-CV-117,37A03-8604-CV-117
CourtCourt of Appeals of Indiana
PartiesProd.Liab.Rep. (CCH) P 11,626 Delores J. BEIRD, Personal Representative and Administratrix of the Estate of Michael Charles Beird, Appellant (Plaintiff Below), v. FIGG & MULLER ENGINEERS, INC., Anthes Industries, Ltd., Chicago Contractors Supply, Inc., BVN/STS, Inc., Appellees (Defendants Below).

Robert Randle, Randle & Shelmon, Renssalaer, Leonard M. Ring, William J. Jovan, Chicago, Ill., for Delores J. Beird.

Richard A. Mayer, Jon F. Schmoll, Gregory J. Tonner, Spangler, Jennings, Spangler & Dougherty, Merrillville, for Anthes Industries, Ltd.

John W. Barce, Barce, Vann & Ryan, Fowler, Donald J. O'Meara, Ronald J. Kammer, Nancy G. Lischer, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., for Chicago Contractors Supply, Inc.

Peter C. Bomberger, Friedrich, Bomberger, Tweedle & Blackmun, Highland, James T. Ferrini, Stephen D. Marcus, Henry R. Daar, Clausen Miller Gorman Caffrey & Witous, Chicago, Ill., for Figg and Muller Engineers, Inc.

STATON, Judge.

Michael C. Beird was killed when a portion of a bridge under construction in East Chicago, Indiana, collapsed on April 15, 1982. Delores J. Beird, his widow and the personal representative of his estate, brought suit against, among others, Figg & Muller Engineers, Inc., designer of the bridge; BVN/STS, Inc., review designer of the bridge; 1 Anthes Industries, Ltd., seller of certain component parts used in constructing the bridge; and Chicago Contractors Supply, Inc., manufacturer of those component parts. As Plaintiff, Delores J. Beird, alleged that all four of these Defendants had been negligent, and their negligence resulted in her husband's death. She further alleged that Anthes and Chicago were strictly liable for her husband's death.

Before trial, the Plaintiff entered into a Covenant Not to Sue and a settlement agreement with Superior Construction Company, the general contractor on the project. She also entered into settlement agreements with three other former parties.

A jury found for the Defendants and awarded the Plaintiff nothing in damages. A judgment was entered on the verdict by the trial court. From this negative judgment, Plaintiff appeals, raising three issues for our review. Restated, they are:

1. Whether the trial court erred by refusing Plaintiff's four tendered instructions and by giving nine other instructions.

2. Whether the court erred by allowing the Defendants to present evidence of the Plaintiff's settlements with former parties and, further, by allowing the Defendants to base their defenses on the culpability of others rather than on the lack of their own wrongdoing.

3. Whether the Plaintiff was denied a fair trial as a result of the court's many discovery rulings--rulings which the Plaintiff contends forced her to trial without knowing the Defendants' experts or their opinions despite the fact her experts had been fully deposed before trial.

Reversed as to Defendants Anthes and Chicago; affirmed as to Defendants Figg and BVN/STS.

I.

Instructions

A. Anthes & Chicago

As to Defendants Anthes and Chicago, the following issue is dipositive: Did the trial court err in refusing to give Plaintiff's Tendered Instruction Number 5(C)? 2

The relevant portion of the Plaintiff's Tendered Instruction Number 5(C) states:

... It is a defense that a cause of the physical harm is a nonforseeable [sic] misuse of a product by the claimant or any other person. Where the physical harm to the claimant is caused jointly by a defect in the product which made it unreasonably dangerous when it left the seller's hands and the misuse of the product by one other than the claimant, then the concurrent acts of the third party do not bar recovery by the claimant for the physical harm.

Record at p. 1094, Volume 5.

In reviewing the denial of a tendered instruction, we must consider: (1) whether the tendered instruction correctly states the law; (2) whether the evidence supports the instruction; and (3) whether other instructions have adequately covered the substance of the tendered instruction. Flowers v. State (1985), Ind., 481 N.E.2d 100, 103. Further, the Plaintiff must show that the refusal to give the tendered instruction resulted in prejudice. City of Lake Station v. Rogers (1986), Ind.App., 500 N.E.2d 235, 240. Only upon an affirmative showing on all the above points will the refusal constitute reversible error. Id.

Here, the denial of the Plaintiff's tendered instruction was error. First, the tendered instruction correctly states the law in that I.C. 33-1-1.5-4(b)(2) (1978 version) states:

It is a defense that a cause of the physical harm is a nonforeseeable misuse of the product by the claimant or any other person. Where the physical harm to the claimant is caused jointly by a defect in the product which made it unreasonably dangerous when it left the seller's hands and the misuse of the product by one other than the claimant, then the concurrent acts of the third party do not bar recovery by the claimant for the physical harm, but shall bar any rights of the third party, either as a claimant or as a subrogee.

Second, the evidence supports the instruction. There was evidence at trial from which the jury could have concluded (1) that Michael Beird's death was caused by a defect in the product 3 which made it unreasonably dangerous when it left the seller's hands and (2) that Michael Beird's death was jointly caused by the misuse of the product by Superior ("one other than the claimant"). 4

Evidence supporting a conclusion that a defect in the product caused the collapse included testimony by one of the Plaintiff's experts that the collapse resulted from the failure of diagonal braces which were a part of the falsework system (Record at pgs. 2021-22, 2041-2042, Volume 9) and that each tower in the system should have been able to hold one million pounds, yet each one only held seven hundred thousand pounds (Record at p. 2027-28, Volume 9).

Evidence supporting a conclusion that Superior's misuse of the product caused the collapse included testimony by Defendants' experts that, among other things, Superior deviated from approved plans (Record at p. 1814, Volume 8); that vital support wedges were either not used or not used properly (Record at pgs. 3118-19, 3151, Volume 13); that sandboxes used to support tower legs were not built as designed (Record at p. 2897, Volume 12); and that Superior did not follow good construction practices (Record at p. 3268, Volume 14).

Third, no other instruction given by the court covered the substance of the Plaintiff's instruction 5(C).

Finally, the court's refusal to give the tendered instruction was prejudicial to the Plaintiff. In Instruction Number 23, the court correctly stated that the Plaintiff would not meet her burden of proof if it was equally likely that the product was defective or that the product was misused. Yet, jury members were not told how to proceed if they concluded that both the defectiveness of the product and the misuse of the product jointly caused the collapse. Jury members knew that if the product was defective, they were to find for the Plaintiff. They knew that if the product was misused, they were to find for the Defendants. They also knew that if both were equally likely, they were to find for the Defendants. But they did not know that they had a fourth alternative--namely, that if both a defective condition and a misuse of the product existed, they could find for the Plaintiff. It is possible that jury members concluded that both existed, but mistakenly thought that such a situation barred recovery by the Plaintiff. I.C. 33-1-1.5-4(b)(2) states differently and should have been read to the jury.

B.

All Defendants

As to all Defendants, the Plaintiff contends that the court erred in refusing to give her concurrent cause instruction. She also contends that ten of the court's instructions suggested a defense verdict.

The Plaintiff's tendered concurrent cause instruction states:

Where an injury is proximately caused by the concurrent negligence of two or more parties, the injured person may recover from any or all of such parties, provided that there was no contributory negligence on the part of the injured person; and none of the parties concurring in such negligence may interpose as a defense the fact that the negligence of the other contributed to the injury.

Appellant's Brief at p. 48.

While the Plaintiff has not shown that this instruction was ever tendered (it is not found in the record), we will, nonetheless, address her argument.

The refusal of the court to give the instruction was not error since the substance of the instruction was adequately covered in other instructions. Flowers, supra. Indeed, the court instructed the jury: (1) to give separate and fair consideration to each defendant (Instruction 2); (2) that it could find for only some or for all of the defendants (Instruction 41 and 42); (3) that there were sixteen possible verdicts (Instruction 44); and (4) what constituted the Plaintiff's burden of proof in negligence against each defendant (Instructions 7 to 10).

Further, the Plaintiff's contention that the court's instructions, taken as a whole, suggested a defense verdict is without merit. Each instruction correctly stated the law and was supported by the evidence. The court's reference to Superior in Instruction 28--which the Plaintiff contends was prejudicial--was necessary in light of the Defendants' theory that Superior's misuse of the product was the sole proximate cause of the bridge collapse. 5

II.

Evidence Re: Other Parties

A. Settlements

The Plaintiff contends that the court erred in allowing the Defendants to present evidence--both during voir dire and during trial--of its settlements with other parties.

1. Voir Dire

Before empaneling the jury, the trial judge ruled that he would...

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