Bemis Co., Inc. v. Rubush

• Citation: 401 N.E.2d 48
• Decision Date: 04 March 1980
• Docket Number: No. 1-877A164,1-877A164
• Parties: BEMIS COMPANY, INC. and Wabash Products, Division of Bemis Company Co., Inc., Defendants-Appellants, v. Gerald G. RUBUSH and Phyllis C. Rubush, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 48

401 N.E.2d 48

BEMIS COMPANY, INC. and Wabash Products, Division of Bemis Company Co., Inc., Defendants-Appellants, v. Gerald G. RUBUSH and Phyllis C. Rubush, Plaintiffs-Appellees.

No. 1-877A164.

Court of Appeals of Indiana, First District.

March 4, 1980.

Rehearing Denied April 16, 1980.

Arthur P. Kalleres, David L. Gray, Ice Miller Donadio & Ryan, Indianapolis, C. Thomas Cone, Williams, Cone & Billings, Greenfield, for defendants-appellants.

Howard J. DeTrude, Jr., Peter G. Tamulonis, Kightlinger Young Gray & DeTrude, C. Warren Holland, John M. Choplin, II, James L. Brand, Wilson, Tabor & Holland, Indianapolis, for plaintiffs-appellees.

NEAL, Judge.

On October 19, 1971, Gerald G. Rubush (Gary) was working as a bagger on a fiberglass insulation batt packing machine for Johns-Manville Corporation. The batt packing machine was designed by Bemis Company, Inc. and Wabash Products, Division of Bemis Co., Inc. (both hereinafter referred to as Bemis). While performing his work as a bagger on the batt packer, and in the course of the batt packer's operation, Gary was struck in the head by a moving part of the machine. This moving part was called a shroud, and it was a visible moving part of the batt packing machine. The blow to the head caused Gary to suffer serious injuries to his skull and brain.

As a result of the injury, Gary and his wife, Phyllis C. Rubush (Phyllis), filed suit against Bemis for personal injuries sustained by Gary, and for loss of services sustained by Phyllis, on a theory of strict liability in tort under § 402A of the Restatement (Second) of Torts (1965). The jury returned a verdict for Gary for $750,000 and for Phyllis for $25,000, and thereafter, the trial court entered judgment on the verdict. Bemis then filed a timely motion to correct errors, which was denied. This appeal results.

We affirm in part and reverse in part.

In its motion to correct errors, Bemis presents the following issues for our review:

I. Whether the trial court erred when it precluded Bemis from ascertaining during voir dire whether prospective jurors would follow a rule of strict liability that a manufacturer is not liable for injuries that result from open and obvious dangers.

II. Whether the trial court erred when it stated before the jury that a manufacturer cannot, as a matter of law, evade liability in strict liability for injuries caused by open and obvious dangers in product design.

A. Whether the trial court erred in refusing Bemis' Tendered Instructions Nos. 4 and 5, stating that the Indiana rule of strict liability precludes liability when the danger is open and obvious.

B. Whether the trial court erred by giving its Instructions Nos. 7 and 8 which instructed the jury that the open and obvious nature of the danger was not a defense in strict liability and that Bemis could be found liable in strict liability even though the danger was open and obvious.

III. Whether the instructions to the jury, considered as a whole, fairly and adequately instructed the jury on the applicable law without substantial prejudice to Bemis, particularly:

A. Whether the trial court erred in refusing to define "unreasonably dangerous" under the strict liability theory pursuant to Bemis' Tendered Instruction No. 3, or by so instructing the jury sua sponte as required by Ind. Rules of Procedure, Trial Rule 51(B).

B. Whether the trial court erred by giving its Instruction No. 10 which stated that Bemis would be liable for failure to warn of any design danger, and not merely those which would be "unreasonable" in the absence of a warning.

C. Whether the trial court erred in giving Instruction No. 8 which assumed that it was proper for Gary to be in the path of the batt packer's moving part which injured him when, in fact, such issue was contested, and, allegedly, an issue for the jury.

D. Whether the trial court erred by giving its Instruction No. 14 which stated that to find for Bemis, the batt packer must have been found to be E. Whether the trial court erred in refusing to give Bemis' Tendered Instruction No. 7 which stated that Bemis could prevail despite a finding that the batt packer was "defective and unreasonably dangerous" if there was some intervening cause in the causal chain of events leading up to Gary's injury.

neither defective nor unreasonably dangerous at the time of the accident.

F. Whether the trial court erred in giving its Instruction No. 12 which stated that Gary's voluntary encounter with a known danger would not be a defense where the ordinarily prudent person would take the risk if ordered to do so by his employer.

IV. Whether the trial court erred in its rulings on evidentiary matters, or whether such rulings were within the court's discretion and were consistent with substantial justice, specifically:

A. Whether the trial court erred by refusing to allow the impeachment of one Gary Mackey, either by prior inconsistent statements or by contradicting his in-court statements, and by refusing to allow the impeachment of one Virgil Mahoney by use of prior inconsistent statements.

B. Whether the trial court erred in allowing Virgil Mahoney to testify concerning the annual wages of different job classifications of Johns-Manville employees when the best evidence of such wages would have been actual payroll records.

C. Whether the trial court erred in admitting expert testimony which was speculative, without foundation in fact, was based on assumed facts not in evidence, and was irrelevant.

V. Whether the verdict was supported by sufficient evidence.

VI. Whether Phyllis was entitled to recover damages for loss of consortium and damage to her marriage.

A. Whether the trial court erred in refusing to give Bemis' Tendered Instruction No. 10.

B. Whether the trial court erred in giving its own Instructions Nos. 21 and 31 which allowed Phyllis damages for loss of consortium for periods subsequent to Gary and Phyllis' divorce.

VII. Whether the damages awarded to Gary and Phyllis are so excessive as to shock the conscience of the court and are not supported by the evidence.

STATEMENT OF THE FACTS

The facts most favorable to the support of the verdict are as follows: On October 19, 1971, at 3:30 p. m., Gary, age 26, whose job classification was a "bagger," was operating a machine called a batt packer which was designed, manufactured and sold by Bemis to Johns-Manville Corporation in 1969. Gary had only worked ten minutes on his shift when the accident happened.

The ultimate function of the batt packer is to pack batts of insulation into heavy paper bags. This is accomplished in two phases. The first phase is a compression phase during which batts are vertically compressed into the compression chamber of the packer to the approximate size of the open end of the bag into which the batts are to be moved horizontally out of the compression chamber. The second phase is the bagging phase during which the bag is filled with compressed batts which have been horizontally pushed from the compression chamber to the shroud assembly area through a square opening in the base of the wall of the compression chamber called a "bag spout." The bagger places the open end of the bag around the mouth of the bag spout and the bag is secured to the mouth of the metal bag spout by a bag clamp. The bag clamp is activated by a push button by the bagger after he places the bag over the mouth of the bag spout. Activation of the bag clamp also activates a seven foot long metal shroud which is located about seven feet directly in front of the bag spout. The shroud is hinged on its bottom end on the frame of the batt packer at the level of the top of the bag spout. Upon activation, the shroud, under power, descends in an arc to a horizontal position above the bag and the very end of the The machine had dual push-button controls, each set consisting of the activating button and an emergency stop button, a set of controls being situated on each side of the machine within reach of the bagger as he placed the bag over the bag spout. In typical operation the bagger would place the open end of the bag over the mouth of the bag spout. This would necessitate his being within the arc of the shroud at that time. He would then punch the push-button which would activate the bag clamp which would set instantly to hold the bag in place. The shroud, being activated at the same time, would commence its descent to a horizontal position, which descent would take four or five seconds.

shroud slightly overlaps the bag spout. The function of the shroud is to hold and to furnish support to the paper bag as it is being filled with batts, to prevent the bag from being torn or ripped. Sometimes it was necessary to hold the bag on the bag spout with the hand until the bag clamp set.

There was evidence from which the jury could conclude that at the time of the injury Gary had somehow got his hand caught under the bag clamp and was unable to extricate himself to avoid the descending shroud. The shroud caught Gary's head between its end and the bag spout causing severe injuries.

There was evidence that no instructions had been provided by Bemis regarding the specific speed of the shroud's descent, nor warnings regarding the dual controls. There was evidence that no warning was given by Bemis regarding the dangers incident to the shroud's activation. There was evidence that there existed at the time of the manufacture and sale of the machine, feasible and economic safeguards. There was available a two-button control, one for the bag clamp, and a second one for the shroud descent. There were various guards available, and also a single activating button which would be positioned out of the reach of the bagger while he was under the shroud.

As a result of Gary's being struck by the descending shroud, his head was punctured, driving skull fragments into his brain and causing an open wound from which brain matter extruded. Puncture wounds were inflicted in the left...