Conder v. Hull Lift Truck, Inc.

• Decision Date: 05 June 1980
• Docket Number: No. 3-377A71,3-377A71
• Citation: 405 N.E.2d 538
• Parties: Raymond CONDER and Wanda Conder, Appellants-Plaintiffs, v. HULL LIFT TRUCK, INC. and Allis-Chalmers Corporation, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 538

405 N.E.2d 538

Raymond CONDER and Wanda Conder, Appellants-Plaintiffs, v. HULL LIFT TRUCK, INC. and Allis-Chalmers Corporation Appellees-Defendants.

No. 3-377A71.

Court of Appeals of Indiana, Fourth District.

June 5, 1980.

Alexander Lysohir, Thomas H. Singer, Lysohir & Singer, South Bend, Gene R. Duffin, Goshen, for appellants-plaintiffs.

Roland Obenchain, R. Kent Rowe and Lewis C. Laderer, Rowe, Sweeney, Simeri & Laderer, South Bend, for appellees-defendants.

CHIPMAN, Judge.

This appeal involves a product liability action brought by appellants Raymond and Wanda Conder for injuries sustained by Raymond when a forklift truck he was riding overturned. The jury's verdict was in favor of the leasing agent, Hull Lift Truck, Inc., and the manufacturer, Allis-Chalmers Corp. The Conders appeal, raising the following issues for our review:

1. Was the verdict in favor of Hull Lift Truck, Inc. contrary to law,

2. Did the trial court err in giving the following instructions offered by Allis-Chalmers:

a. Instruction No. 4, which said a manufacturer is not required to foresee that its product will be substantially changed,

b. Instruction No. 5 which told the jury that under the law of strict liability, Allis-Chalmers was not a guarantor in regard to the quality of its product.

c. Instruction No. 7, which said if the sole proximate cause of the plaintiff's injury was the plaintiff's own conduct, the verdict should be in favor of Allis-Chalmers,

d. Instruction No. 8 on superseding cause, and e. Instruction No. 10 which said Allis-Chalmers was not required to warn of dangers resulting from misuse or substantial change of its product;

3. Whether the trial court erred in refusing to give the following jury instructions offered by Conders:

a. Instruction No. 9 on willful and/or wanton misconduct, and

b. Instruction No. 19 defining "substantial change" as that term relates to strict products liability law.

Affirmed in part, reversed and remanded in part.

FACTS

On August 24, 1972, Raymond Conder was operating a forklift truck which his employer, Globemaster Mobile Homes, had leased from defendant Hull Lift Truck, Inc. (Hull). The forklift was manufactured by the defendant Allis-Chalmers Corporation. As Conder was driving outside the Globemaster factory, he approached a rough area in the road where rain water had created a small washout. Although Conder took his foot off the accelerator pedal in order to decelerate, it did not release. His first reaction was to attempt to use his right foot to "unstick" the peddle, but his efforts failed. Traveling at approximately seven (7) miles per hour, (the vehicle's top speed in low gear) the forklift entered the washed-out area of the road and tipped over, landing on Conder and pinning him to the ground. The resulting injuries caused the plaintiff to be a paraplegic.

On September 11, 1972, Joseph Bokon, a mechanic, examined the forklift truck to determine whether there had been a mechanical failure or whether Conder's accident had been caused by human error. His examination disclosed that the linkage between the truck's governor and carburetor, specifically the part of the linkage referred to throughout the record as the "adjustable governor control arm", had been misadjusted. It was this misadjustment in the governor linkage which allowed the governor to work just the opposite of its intended function, i. e., instead of slowing the vehicle down, the governor caused the forklift's carburetor to run "wide open," resulting in acceleration to maximum R.P.M. Bokon also found a torsion spring on the carburetor was broken; this spring would have prevented the governor malfunction had it not been in the state of disrepair, notwithstanding the maladjusted governor control arm.

Other evidence showed the forklift in question was leased by Hull to Globemaster on August 17, 1972, eight days before Conder's accident. No maintenance was performed, nor were any adjustments made by Globemaster on the forklift during this period. According to the Globemaster-Hull lease agreement, all maintenance, when necessary, was to be performed by Hull.

Conder used the forklift on the 17th, and had no trouble with the accelerator pedal. Between August 17 and August 24, Conder did not hear of any other Globemaster employee having problems with the forklift's accelerator pedal; however, unbeknownst to Conder, two other employees had in fact experienced the very same uncontrolled acceleration problem between the 17th and the 24th. Unfortunately, no one communicated this fact to Conder.

Conders brought this action based upon theories of strict liability, negligence and willful and/or wanton misconduct. As against Allis-Chalmers, Conders claimed the forklift's design was defective and unreasonably dangerous in two respects: 1) a foreseeable misadjustment of the governor linkage resulted in uncontrolled acceleration, and 2) no warnings were issued to advise of this potential hazard. Conders also alleged Allis-Chalmers was negligent in its design of the forklift and in its failure to warn of the hazards of linkage misadjustment. In a third count, plaintiffs accused Allis-Chalmers of willful and wanton misconduct for failure to warn of the hazard in question.

As against Hull Lift Truck, Conders claimed the forklift truck was defective and unreasonably dangerous in that the torsion spring on the carburetor was either defective The case was tried by a jury, which returned a verdict in favor of both defendants. Conders' Motion to Correct Errors was overruled on December 27, 1976, and this appeal follows.

and/or broken when delivered to Globemaster, and the carburetor-governor linkage was grossly out of adjustment. Plaintiffs also alleged Hull negligently maintained the forklift, and negligently trained its mechanics.

I. VERDICT FOR HULL LIFT TRUCK, INC.

Conders argue the verdict rendered in favor of Hull is contrary to law for the reason that uncontradicted evidence shows Hull was strictly liable for injuries caused by the defective and unreasonably dangerous condition of the forklift. As this is an appeal from a negative verdict, this court cannot reverse as to Hull unless the evidence is without conflict and leads to only one conclusion, the trial court reached a contrary conclusion, and reasonable men could not have found as the trial court did. Clarke Realty, Inc. v. Clarke, (1976) Ind.App., 354 N.E.2d 779; Columbia Realty Co. v. Harrelson, (1973) 155 Ind.App. 604, 293 N.E.2d 804. We find there was a question of fact for the jury which precludes our reversal.

Conders argue each of the following elements of strict liability were established by the evidence as a matter of law:

1. Defendant Hull was in the business of leasing forklift trucks and did lease a forklift truck which was expected to and did reach the plaintiff Raymond Conder in substantially the same condition as it was leased to his employer.

2. Conder was the user of the forklift.

3. The forklift was in a defective condition and unreasonably dangerous when it left the possession of Hull.

4. The damages Conder claimed were proximately caused by the product's defective condition.

We agree there was overwhelming, uncontradicted evidence to prove the forklift's governor-carburetor linkage was misadjusted at the time the machine was leased to Globemaster. Therefore, the forklift was clearly defective and unreasonably dangerous. The evidence also shows the maladjustment was a cause in fact of the plaintiff's accident. However, we find there was a question of fact which remained for the jury concerning the issue of proximate cause.

Most courts have held the normal proximate cause rules limiting liability to the foreseeable consequences of an action operate in the products liability area as in tort law generally. See, e. g., Bemis Company, Inc. v. Rubush, (1980) Ind.App., 401 N.E.2d 48; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App. 217, 279 N.E.2d 266; see generally 1 L. Frumer and M. Friedman, Products Liability § 11.02 (1976). Proximate cause is established if the injury caused by the defendant is a natural and probable consequence which was, or should have been, reasonably foreseen or anticipated in light of attendant circumstances. P.H. and F.M. Roots Co. v. Meeker, (1905) 165 Ind. 132, 73 N.E. 253; Lake Erie and W.R. Co. v. Charman, (1903) 161 Ind. 95, 67 N.E. 923. Accordingly, an intervening cause, e. g., the act or omission of a third party, will not operate to defeat a recovery from the defendant if the intervening cause would necessarily, or might reasonably, have been foreseen by the defendant. Shanks v. A.F.E. Industries, Inc., (Ind.App. 1980), 403 N.E.2d 849; Dudley, supra; Zahora v. Harnischfeger Corp., 404 F.2d 172 (7th Cir. 1968). However, in some instances, the unforeseeable intervening negligent acts of a third party constitute a superseding cause which relieves the defendant of responsibility for the plaintiff's injuries. See, e. g., General Motors v. Jenkins, (1966) 114 Ga.App. 873, 152 S.E.2d 796; Ford Motor Co. v. Wagoner, (1946) 183 Tenn. 392, 192 S.W.2d 840. The case of Balido v. Improved Machinery, Inc., (1973) 29 Cal.App.3d 633, 105 Cal.Rptr. 890, is representative of the problem which arises when the issue of intervening causation surfaces in a strict products liability action.

In Balido, the plaintiff, an employee of the Olympic Plastics Company, was injured when a defective molding press closed on her hand. The press had been manufactured by Improved Machinery fourteen years prior to the accident. Before the accident occurred, however, Improved notified Olympic that operators of similar presses were being injured and offered to install safety devices to prevent such injuries. Unfortunately, Olympic chose not to pursue the matter; had the safety equipment been installed, plaintiff Balido would not have been injured. Reversing the decision of the trial court, which directed a verdict in favor of...