Conder v. Hull Lift Truck, Inc.

• Decision Date: 13 May 1982
• Docket Number: No. 582S186,582S186
• Citation: 435 N.E.2d 10
• Parties: Raymond CONDER and Wanda Conder, Appellants, v. HULL LIFT TRUCK, INC., and Allis-Chalmers Corporation, Appellees.
• Court: Indiana Supreme Court

Page 10

435 N.E.2d 10

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

No. 582S186.

Supreme Court of Indiana.

May 13, 1982.

Alexander Lysohir, Thomas H. Singer, Lysohir & Singer, South Bend, for appellants.

Roland Obenchain, South Bend, for Hull Lift Truck, Inc.

R. Kent Rowe, Rowe & Lederer, South Bend, for Allis-Chalmers Corp.

PIVARNIK, Justice.

This cause comes to us on Allis-Chalmers Corporation's petition to transfer from the Court of Appeals Fourth District. Appellants Raymond and Wanda Conder sued Allis-Chalmers and Hull Lift Truck, Inc., in Elkhart Circuit Court for injuries sustained by Raymond when a forklift truck he was operating overturned. Raymond was riding the forklift truck in connection with his employment by Globemaster Mobile Homes. The lift truck had been leased from Hull Lift Truck and was manufactured by Allis-Chalmers Corporation. The jury's verdict was in favor of both defendants, Hull Lift Truck and Allis-Chalmers. The Court of Appeals affirmed the judgment in favor of Hull Lift Truck but reversed the judgment in favor of Allis-Chalmers because of allegedly improper instructions given by the trial court. Conder v. Hull Lift Truck, Inc., (1980) Ind.App., 405 N.E.2d 538. We find that the trial court was correct in all respects; accordingly we grant transfer and vacate the opinion of the Court of Appeals.

The facts and circumstances of this cause were well enumerated in the Court of Appeals opinion and we adopt that portion of the opinion and incorporate it herein as follows:

"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, (sic) 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. Unfortunatley, 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 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."

Further evidence showed that Robert L. Hull, General Manager of Hull Lift Truck, Inc., as a witness for the plaintiffs, testified that sometime around August, 1970, the forklift truck in question was converted by Hull Lift Truck from a gasoline powered engine to a liquid propane gas (L. P. gas) engine. Hull Lift Truck originally rented out the forklift truck on December 1, 1970. The conversion kit which was used by Hull to convert this unit from a gasoline fuel system to an L. P. gas fuel system was obtained either from Allis-Chalmers Parts Central or L. P. Gas Equipment Co., in Franklin Park, Illinois. Hull had purchased conversion kits from both sources and Mr. Hull had no way of knowing which one supplied the conversion kit in question. He testified that his company did take these carburetors apart, which would include taking the letters off the carburetors. The springs that are placed on these carburetors are not purchased from Allis-Chalmers but instead from L. P. Gas Equipment Co.

I.

We agree with the Court of Appeals in its analysis of the trial court judgment in favor of Hull and adopt its language and make it part of this opinion as follows:

"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) 171 Ind.App. 46, 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 mis-adjusted 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, (rev'd on other grounds, 427 N.E.2d 1058); 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, rev'd on other grounds, 416 N.E.2d 833); 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.3rd 633, 105 Cal.Rptr. 890, is representative of the problem which arises when the issue of intervening causation surfaces in a strict...