Cornette v. Searjeant Metal Products, Inc., 1168

Docket NºNo. 1168
Citation258 N.E.2d 652, 147 Ind.App. 46
Case DateMay 26, 1970
CourtCourt of Appeals of Indiana

Alan H. Lobley, Indianapolis, Ice, Miller, Donadio & Ryan, Indianapolis, of counsel, for appellant.

James J. Stewart, Indianapolis, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, of counsel, for appellee.

HOFFMAN, Presiding Justice.

This appeal arose from the entry of a judgment in favor of defendant-appellee on its motion for a finding in its favor at the close of plaintiff's evidence. Thus, the only evidence before the trial court was that introduced by plaintiff-appellant.

The controversy at issue developed out of the following circumstances:

In 1957, appellant's employer, Harper J. Ransburg Company, Inc., purchased a used punch press which had originally been manufactured by the E. W. Bliss Co. of Brooklyn, New York. Prior to placing the press in operation, the Ransburg Company hired the Cain Safety Service to inspect the unit and recommend a safe control system for its operation. Cain Safety Service recommended a Searjeant electro-pneumatic two-hand control system, manufactured by appellee. The catalog accompanying the unit described the machine as having an air filter, but at the time of the accident in issue there was no air filter on the machine.

On January 10, 1964, appellant was operating the press. Her work required her to reach into the press to remove metal 'blanks.' On the occasion in question she reached into the press when the press 'ram' was in the 'up' position, but for an unexplained reason, the press 'double-tripped', the 'ram' descended, seriously injuring three of appellant's fingers on her left hand. The fingers were subsequently amputated. Appellant testified that the 'ram' had 'double-tripped' before, and that she was aware of the possibility and danger of a press double-tripping.

Following the accident, at the request of the Ransburg Company, William A. SerVaas, a consulting engineer, tested the unit several hundred times and inspected it thoroughly. It did not malfunction again.

Appellant's complaint alleged, inter alia, essentially, that the unit '* * * contained a defect that made it unreasonably dangerous * * *.'

At the trial of the cause, appellant introduced the testimony of an expert witness to the effect that '* * * a transient situation existed which was caused by dirt in the air system which caused the solenoid valve to function in such a manner as to cause the press to trip a second time.'

This situation was precipitated, in the expert's opinion, because there was no air filter.

A second expert testified that, in his opinion, such a unit without an air filter would be substandard.

At the close of plaintiff-appellant's evidence, the court sustained defendant-appellee's motion for a finding in its favor. Thereafter, the trial court entered extensive findings of fact and conclusions of law.

The trial court entered conclusions of law which, in pertinent part, are as follows:

'The court concludes that the law is with the defendant.

'1. There is no special liability of seller of a product for physical harm to the user unless it is established that the product was defective when sold, and that at the time of the accident the product was in substantially the same condition as when sold.

'2. It is the responsibility of the plaintiff to establish by credible evidence that the alleged defect in the defendant's product proximately caused the injury to the plaintiff. This must be done by something more than surmise or conjecture.

'3. Finally, the court concludes that plaintiff assumed the risk of her injury as a matter of law. Plaintiff admitted she knew of the danger of double tripping.'

Appellant's sole assignment of error is the overruling of her motion for a new trial. She specifies as a basis for her motion for a new trial that the trial court erred in sustaining appellee's motion for a finding.

The basic theory of appellant's argument is that giving every favorable intendment to the facts presented by her at the trial, a prima facie case for holding the manufacturer liable on a theory of strict liability had been established by the evidence.

As appellant concedes on page 23 of her brief, '(t)he question with respect to the law of strict liability has never been squarely presented to an Indiana Court.'

In J. I. Case Co. v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964), our Supreme Court for the first time accepted, in part, the basic premise that a manufacturer may be liable to third party consumers for negligence in the construction or manufacture of goods, notwithstanding the lack of privity between these parties. In Sandefur the Supreme Court adopted the position, which had gained wide acceptance at that time, espoused in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916).

More recently, this court in Hobson v. Beck Welding & Mfg. Inc., Ind.App., 245 N.E.2d 344, 16 Ind.Dec. 717 (1969) (Transfer denied), reversed a lower court decision for failing to properly apply the theory adopted in Sanderfur. 1

While the essential doctrine of negligent liability for manufacturer products has been fully accepted in Indiana, there has been no effort, direct or indirect, to adopt the doctrine of 'strict liability' by this court, or our Supreme Court.

The essential theory of 'strict liability' is embodied in 2 Restatement of Torts, 2d, § 402A, at 347 (1964), which reads as follows:

'Special Liability of Seller of Product for Physical Harm to User or Consumer

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

While the Sandefur theory is founded in negligence as a tort action, 'strict liability' under § 402A, supra, has a different and somewhat unique basis. In Dagley v. Armstrong Rubber Company, 344 F.2d 245, at 253, (1965), Chief Judge Hastings, speaking for the United States Court of Appeals, 7th Circuit, spelled out this distinction in theories:

'As a result of this new policy there has developed a new concept of warranty. * * * The traditional concept of warranty is that the seller of a product expressly and impliedly warrants certain things concerning the product to the buyer. This warranty is a part of the contract between seller and buyer and thus has its basis in contract law. (As noted previously, however, most courts hold that warranty may also state a cause of action in tort.) This traditional concept is not being superseded by the new concept and still requires privity of contract to be enforced.

'The new concept of warranty bases liability on strict liability in tort. This warranty 'is a very different kind of warranty from those usually found in the sale of goods, and * * * it is not subject to the various contract rules which have grown up to surround such sales." (Quoting 2 Restatement of Torts, 2d, Explanatory Notes § 402A, Comment c, at 349.) (Emphasis supplied.)

Our Supreme Court has accepted such a definition of 'warranty', as expressed by Judge Hastings, in Wright-Bachman, Inc. v. Hodnett et al., 235 Ind. 307, at 313, 133 N.E.2d 713, at 716 (1956), wherein it stated:

'It is well settled that an action of breach of warranty may be either a contract action or a tort action, depending on the allegations of the complaint.'

It should be pointed out, however, that strict liability under § 402A, supra, is not the same as liability for breach of the warranty of fitness or merchantability. 'Warranty' as used by Judge Hastings and in this opinion is intended in the broad sense of the word and is intended only to identify by analogy the conceptual basis of liability. It should not be confused in this context with the express and implied contract warranties as they may relate to products liability.

It is apparent that negligence, per Sandefur, and 'strict liability' are distinct and independent bases for a cause of action: the former based on negligent manufacture, inspection, assembly or repair, and the latter on the § 402A, supra, protection against any defect rendering a product unreasonably dangerous regardless of fault.

However, the fundamental policy on which both concepts rest is the same: protection of the consumer from physical harm caused by a product. The application of Sandefur in Indiana was a response to the problem of the 'privity' barrier; and 'strict liability' per § 402A, supra, was a response to the problem of the 'proof' barrier.

We think these principles are sound and we expressly adopt § 402A, supra, as the law of this State. 2

The legal continuum encompassing 'strict liability' has proven extremely flexible and adaptable. Beginning with common-law trespass to the person, tort concepts of injury to the person have evolved through stages of negligence, res ipsa loquitur, and strict liability for dangerous instrumentalities, i.e., dynamite. The warranty in tort concept of § 402A, however, has proven to be a difficult step to take, in many instances, because it moves so severely away from traditional concepts of 'fault' and 'negligence.'

Comment c under § 402A, supra, provides the following rationale for imposition of the doctrine:

'On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has...

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