Cole v. Lantis Corp.

• Citation: 714 N.E.2d 194
• Decision Date: 28 June 1999
• Docket Number: No. 49A02-9809-CV-766.,49A02-9809-CV-766.
• Parties: Sean COLE, Appellant-Plaintiff, v. The LANTIS CORPORATION, Appellee-Defendant.
• Court: Court of Appeals of Indiana

714 N.E.2d 194

Sean COLE, Appellant-Plaintiff, v. The LANTIS CORPORATION, Appellee-Defendant.

No. 49A02-9809-CV-766.

Court of Appeals of Indiana.

June 28, 1999.

Lee C. Christie, Angela J. Herod, Cline Farrell Christie & Lee, Indianapolis, Indiana, Attorneys for Appellant.

Steven E. Springer, Eric D. Johnson, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Plaintiff Sean Cole ("Cole") appeals the summary judgment entered against him in his products liability/negligence lawsuit against Appellee-Defendant Lantis Corporation ("Lantis"), the manufacturer of a "K-Loader" from which Cole fell. We reverse.

Issues¹

Cole raises three issues which we restate and consolidate into two as follows:

I. Whether a genuine issue of material fact exists regarding whether Lantis' K-Loader was defective and unreasonably dangerous; or stated alternatively: whether Cole's claim is barred by application of the open and obvious rule.

II. Whether Cole's claim is barred by the affirmative defense of incurred risk.

Facts

The facts in the light most favorable to the nonmovant Cole reveal that his employment duties included loading large cargo containers onto aircrafts. (R. 217-18). In order to access the cargo bays of aircrafts, Cole was required to work upon a "K-Loader," an elevated platform which stood several feet off the ground. (R. 236). When positioned for loading, there was a gap of approximately eighteen inches between the edge of the K-Loader's platform and the edge of an aircraft's cargo bay. (R. 206-07). A gap of some width was necessary because K-Loaders cannot come into contact with an aircraft's fuselage because of the possibility of damage. (R. 201, 306). Cole slipped through the gap between a K-Loader and an aircraft, fell approximately fifteen feet, landed on his head, and suffered serious personal injuries. (R. 236, 359-60). Lantis manufactured the particular K-Loader from which Cole fell. (R. 9-10).

Cole presented the affidavit of an engineer recognized as an expert on the safety design of industrial machinery.² (R. 465-66). Cole's engineer opined that the Lantis K-Loader from which Cole fell was negligently designed and unreasonably dangerous due to several defects including 1) that the gap was too wide, 2) that the handrail was inadequate, 3) that there was insufficient work space on the platform, 4) that the instructions in the operating manual were inadequate, and 5) that there was no warning regarding the requirement that a bumper be near the aircraft to provide adequate protection against falling. (R. 421, 464-68).

When Cole had worked for a previous employer, he had used other Lantis K-Loaders which utilized wider platforms and different guard rails than the one from which Cole fell. (R. 237). Cole stated that the other K-Loaders had "rails and platforms to stand and/or grab along the left and the right side from front to back of the bridge." (R. 237). Cole stated further that the K-Loader from which he fell was not as safe as the other K-Loaders because "there wasn't much of a rail or a platform to stand onto." (R. 237). Cole had observed the gap and had appreciated the danger posed thereby from his first day on the job with the employer in question. (R. 238-39). Cole expressed his concerns regarding the danger posed by the K-Loader to his supervisors, but no action was taken to alleviate the danger. (R. 238-39). Before the fall, Cole had worked on this type of K-Loader for more than a year without incident. (R. 238). With respect to the danger posed by the gap, Cole explained that "[t]here wasn't . . . much we could do I guess. . . I had to work." (R. 239).

Lantis obtained summary judgment. This appeal ensued.

Discussion and Decision

Lantis points out that Cole was fully aware of the dangers posed by the gap between the K-Loader and the aircrafts being loaded. Thus, Lantis argues that the K-Loader was not unreasonably dangerous under the open and obvious rule. Similarly, Lantis argues that because Cole had actual knowledge of, understood, and appreciated the specific risk posed by the gap, his claim is barred by the affirmative defense of incurred risk. See generally, FMC Corporation v. Brown, 551 N.E.2d 444, 446 (Ind.1990) (evidence that a danger or defect of a product is readily observable is relevant and material to both the issues of 1) whether the product was defective and unreasonably dangerous, and 2) whether the plaintiff's claim is barred by the affirmative defense of incurred risk).

Standard of Review—Summary Judgment in a Products Liability/Negligence Action

As stated in Wolfe v. Stork RMS-Protecon, Inc., 683 N.E.2d 264 (Ind.Ct.App. 1997):

In reviewing a motion for summary judgment, this court applies the same standard as the trial court. We must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court. Summary judgment is appropriate only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Neither the trial court, nor the reviewing court, may look beyond the evidence specifically designated to the trial court. Once the movant for summary judgment has established that no genuine issue of material fact exists by submission of materials contemplated by T.R. 56, the nonmovant may not rest on his pleadings but must set forth specific facts, using supporting materials contemplated under the rule, which show the existence of a genuine issue for trial. A trial court's grant of summary judgment is clothed with a presumption of validity, and the appellant bears the burden of demonstrating that the trial court erred.

When a defendant manufacturer in a negligence/products liability case moves for summary judgment, it has the burden to show the uncontroverted nonexistence of at least one of the elements essential to plaintiff's case. The reviewing court will affirm the grant of summary judgment on any legal basis supported by the designated evidentiary material.

Id. at 267 (quotations and citations omitted). Additionally, summary judgment is appropriately entered in favor of a defendant manufacturer on the affirmative defense of incurred risk where the evidence is without conflict and the sole inference to be drawn is that the plaintiff knew and appreciated the risk, but nevertheless accepted it voluntarily. See Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379, 1381 (Ind.Ct.App. 1990), trans. denied.

I. Defective and Unreasonably Dangerous—Open and Obvious Danger Rule

Under the Indiana Product Liability Act, IND.CODE § 33-1-1.5-1 through -5,³ the plaintiff must prove that the product was in a defective condition which rendered it unreasonably dangerous. Welch v. Scripto-Tokai Corporation, 651 N.E.2d 810, 814 (Ind. Ct.App.1995). "The requirement that the product be in a defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer." Id. "`[U]nreasonably dangerous' " has been defined as "`dangerous to an extent beyond that which would be contemplated by the ordinary consumer . . . with the ordinary knowledge common to the community as to its characteristics.'" FMC Corporation v. Brown, 526 N.E.2d 719, 728 (Ind. Ct.App.1988) (citing Bemis Co., Inc. v. Rubush, 427 N.E.2d 1058, 1061 (Ind.1981),cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61), opinion adopted,551 N.E.2d 444.

Technically, the open and obvious rule does not apply to strict liability claims under the Indiana Product Liability Act. See FMC, 551 N.E.2d at 446. Nevertheless, to be unreasonably dangerous, a defective condition must be hidden or concealed. FMC, 526 N.E.2d at 728. Thus, whether a danger is open and obvious and whether the danger is hidden are two sides of the same coin. McDonald v. Sandvik Process Systems, Inc., 870 F.2d 389, 393 (7th Cir.1989) (citing Bridgewater v. Economy Engineering Co., 486 N.E.2d 484, 488 (Ind.1985)). Accordingly:

[e]vidence of the open and obvious nature of the danger serves . . . to negate a necessary element of the plaintiff's prima facie case that the defect was hidden.

FMC, 526 N.E.2d at 728-29; McDonald, 870 F.2d at 393.

The question of whether a particular plaintiff's claim is barred under the open and obvious rule cannot always be resolved by the court as a matter of law. Bridgewater, 486 N.E.2d at 488; Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, 939 (Ind.Ct.App. 1994). When the facts or the reasonable inferences to be drawn therefrom are in conflict, the open and obvious nature of the danger is a question of fact for the jury. FMC, 526 N.E.2d at 724.

Moreover, as stated in Kroger Company Sav-On Store v. Presnell, 515 N.E.2d 538, 544 (Ind.Ct.App.1987), trans. denied:

`[w]hether a danger is open and obvious depends not just on what people can see with their eyes but also on what they know and believe about what they see. In particular, if people generally believe that there is a danger associated with the use of a product, but that there is a safe way to use it, any danger there may be in using the product in the way generally believed to be safe is not open and obvious.'

(citing Corbin v. Coleco Industries, Inc., 748 F.2d 411, 417 (7th Cir.1984)); see also Schooley, 631 N.E.2d at 939 (although the danger of moving a large steel plate without safety chains was obvious, whether the rule would apply to bar plaintiff's recovery was a question of fact for the jury where moving the plate was part of employee's job and the plate had been moved safely on many other occasions); FMC, 526 N.E.2d at 725 (even though the danger of electrocution posed by a power line was obvious to the operators of a crane, whether the open and obvious rule would apply to preclude recovery was a factual question for the jury where the operators often performed repairs near power lines and could have reasonably...