Bemis Co., Inc. v. Rubush, 1181S319

• Citation: 427 N.E.2d 1058
• Decision Date: 12 November 1981
• Docket Number: No. 1181S319,1181S319
• Parties: BEMIS COMPANY, INC., and Wabash Products, Division of Bemis Co., Inc., Appellants, v. Gerald G. RUBUSH and Phyllis C. Rubush, Appellees.
• Court: Supreme Court of Indiana

Page 1058

427 N.E.2d 1058

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

No. 1181S319.

Supreme Court of Indiana.

Nov. 12, 1981.

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

Howard J. DeTrude, Jr., Peter G. Tamulonis, C. Warren Holland, Kightlinger, Young, Gray & DeTrude, Holland & Tabor, Indianapolis, for appellees.

PIVARNIK, Justice.

This cause comes to us on a Petition to Transfer from the First District Court of Appeals, brought by Defendants-Appellants, Bemis Company, Inc., and Wabash Products, Division of Bemis Company, Inc. A judgment of seven hundred seventy-five thousand dollars ($775,000) was entered against petitioner. Seven hundred fifty thousand dollars ($750,000) in damages was awarded to Gerald Rubush and twenty-five thousand dollars ($25,000) was awarded to Phyllis Rubush. Petitioner appealed from this judgment and the Court of Appeals affirmed the judgment in favor of Gerald C. Rubush and reversed the judgment in favor of Phyllis C. Rubush and remanded her cause of action for loss of consortium for a new trial on damages only. Bemis Co., Inc., v. Rubush, (1980) 401 N.E.2d 48. Petitioner now seeks transfer of this cause.

The cause was tried in the trial court on the theory of strict liability in tort under § 402A of the Restatement (Second) of Torts (1965). The Court of Appeals affirmed the trial court in its application of § 402A which permitted Bemis to be found liable in strict liability even though the danger was open and obvious. We find the Court of Appeals and the trial court to be in error in their interpretation of strict liability in tort under § 402A and accordingly grant transfer and vacate the opinion of the Court of Appeals.

Gerald G. Rubush was employed as a bagger on a fiber glass insulation batt packing machine for Johns-Manville Corporation. The evidence was that Rubush was an experienced bagger although he had been working on the particular job for only about ten minutes when he was injured on October 19, 1971. The batt packing machine was designed by Bemis Company, Inc., and Wabash Products Co., Division of Bemis Co., Inc., (both hereinafter referred to as Bemis). While working as a bagger on the batt packer and during the course of the batt packer's operation, Rubush 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. Rubush sustained serious injuries to his skull and brain.

The 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 in which batts are vertically compressed into the compression chamber of the packer to the approximate size of the open end of the bag. The batts are then 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 a bag around the mouth of the bag spout, the top of which is about 23 inches from the ground, 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 which is located at chest or shoulder height and is one of three buttons on a panel. The bag clamp button is pushed 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 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. When the bagger pushes the bag clamp button the bag is clamped and the shroud descends under power in an arc to a horizontal position above the bag. The end of the shroud slightly overlaps the bag spout. The function of the shroud is to furnish support to the paper bag as it is being filled with batts, to prevent the bag from being torn. The batt packer had two sets of push button controls, each set consisting of the activating bag clamp button, a bag release button and an emergency stop button. A set of controls was situated on each side of the machine.

In a 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 push the bag clamp button which is located at chest level and be turning away from the machine. The bag clamp 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. The shroud would descend at a rate of one to one and one-half feet per second and would have the basic pushing force which would come from an air cylinder rather than that which would come from a sudden impact. There was evidence that the timing of the descent of the shroud could be adjusted and that it was adjusted in the Johns-Manville plant after some study and investigation at a rate that would allow the slowest worker to move back after the bag clamp was secured and before the shroud came down to the spout.

There was evidence that Rubush may have caught his hand under the bag clamp and was unable to extricate himself to avoid the descending shroud. There was testimony that it was sometimes necessary to hold the bag on the bag spout with the hand until the bag clamp set, but not where a hand would be clamped. One witness testified that when injured, Rubush appeared to have his hand caught, then fell away from the machine. There was evidence that one could place a hand under the clamp if the fingers were extended, but that it was not necessary to do so and that it would be unreasonable and unlikely that anyone would do so. It would be difficult for one to get his hands in such a position that the bag clamp would clamp down on the hands, and there would be no need for a bagger to have his hands in that area at any time during the operation. If one's hands were under the clamp when it set, they would have been subjected to 1400 pounds of pressure. It would have been nearly impossible to have removed them without releasing the clamp. Releasing the clamp would cause the shroud to retract and prevent descent. Medical witnesses testified that there was no demonstration of trauma on Rubush's hand which might be expected if it had been clamped. Rubush was operating two machines simultaneously by loading one and then turning to load the other one. The typical operation was for one bagger to load one machine. In short, there existed a situation where no one testified he actually knew how the accident happened. Rubush was unable to recall the occurrence, and attempts to explain or reconstruct the incident were fraught with inconsistencies.

There was no evidence that the machine had malfunctioned or that there was a defect in its operation. Similar batt packers had been used during a 10-year period from 1961-1971 without any reports of workers having gotten hands caught in bag clamps. In 1969, BP 18 and BP 19 were purchased and had been used before and after Rubush's injury without any other injuries having been reported. No modifications were made after the accident and the machine was tested for malfunctions by examination of mechanics, pipe fitters and electricians, and reviewed by an accident review committee. It was determined that there was nothing wrong with the machine involved, either mechanically or electrically. The same batt packer was used after the accident without changes, additions, guarding apparatus or alterations.

Appellees admit that the descent of the shroud was an open and obvious danger which was well known to the operators of the machines and which would be obvious to anyone observing the machine. They contend that the danger in the machine was the fact that the machine could operate so that the shroud could descend with any object, or anyone within the path of the shroud which they have designated as a "zone of danger." Their claim is that the machine should have been made so that it was impossible for the shroud to descend, or that there should have been some kind of automatic device which would have prevented its descent if anything were in its path. They claim the failure to so design the machine is a defect.

Bemis' main contention is that it cannot be held liable in strict liability under § 402A since any dangers in the descending shroud were open and obvious rather than latent or hidden defects that required a warning to the user. The evidence was without conflict both by oral testimony of witnesses and by demonstrative evidence in the form of drawings, diagrams, and movies of the batt packer machine showing that the descent of the shroud in the operation of the batt packing procedure was open, obvious, and apparent to anyone using it. The descent was caused when the batt packer pushed the button. The evidence was that personnel of Johns-Manville trained batt packers and taught them proper use of the machine and all were aware of the operation of the machine and the dangers of the descending shroud. They presented evidence that types of guards such as photo electric cells, sweeps or other devices were considered and rejected as not being effective, necessary, or economically feasible. Similar evidence was heard with regard to the placement of more remote control buttons with arguments made that they would make the machine more dangerous and open to being activated by persons other than the bagger himself.

The basic premise for the...