Dias v. Daisy-Heddon

• Decision Date: 30 May 1979
• Docket Number: DAISY-HEDDON,No. 3-676A150,3-676A150
• Parties: Terry DIAS and Antoinette Dias, Plaintiffs-Appellants, v., a Division of Victor Comptometer Corporation, Wayne J. and Viola M. Odiorne, Thomas Buraczewski, and David Hanson, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 222

390 N.E.2d 222

180 Ind.App. 657

Terry DIAS and Antoinette Dias, Plaintiffs-Appellants, v. DAISY-HEDDON, a Division of Victor Comptometer Corporation Wayne J. and Viola M. Odiorne, Thomas Buraczewski and David Hanson, Defendants-Appellees.

No. 3-676A150.

Court of Appeals of Indiana, Third District.

May 30, 1979.

Robert F. Gonderman, South Bend, for plaintiffs-appellants.

James H. Pankow, South Bend, for defendants-appellees.

HOFFMAN, Judge.

Plaintiffs-appellants Terry Dias and Antoinette Dias (Diases) appeal from a judgment rendered on the jury's verdict finding for defendant-appellee Daisy-Heddon on the Diases complaint which alleged that a BB gun manufactured by Daisy-Heddon was defective and unreasonably dangerous.

The evidence most favorable to the appellee Daisy-Heddon is as follows:

In December of 1970 defendant Thomas Buraczewski purchased a 30/30 BB gun, manufactured by co-defendant Daisy-Heddon, at Michiana Wholesale, Inc. as a Christmas present for his nine-year-old stepbrother, David Hanson. Buraczewski took sole responsibility for teaching David to use the BB gun and to supervise his use of the gun. Neither of David's parents, Viola and Wayne Odiorne, were familiar with the operation of the BB gun.

The evidence further shows that neither Buraczewski nor David remembered reading the unloading instructions or warnings, that Buraczewski never attempted to unload the gun or teach David to do so and that the gun was usually put away in a loaded condition if all the BBs had not been fired. Buraczewski and both of David's parents told David to always treat the gun as if it were loaded and to never point the gun at any person or living thing.

On August 17, 1971, David was playing cops and robbers with the neighborhood children when he was asked to go home and get his BB gun. He returned home and his mother reluctantly permitted him to take the gun provided he unload it. David testified that he attempted to unload it, though he had not read the unloading instructions, and that he shot it into the ground two or three times. The next morning he took the gun out again to play with his friends. The evidence most favorable to the appellee shows that the BB gun was cocked by a friend of David's in David's presence and that David may have also cocked the gun.

David aimed and fired the BB gun hitting Terry Dias in the eye, which injury necessitated the removal of the eye.

The Diases filed a complaint against David Hanson, Wayne and Viola Odiorne, Thomas Buraczewski, Daisy-Heddon and Michiana Wholesale, Inc. Michiana Wholesale was dismissed as a party before trial. Also prior to trial, on October 16, 1974, the Diases entered into a loan receipt agreement with David Hanson, his father and mother, and Thomas Buraczewski which agreement provided to the Diases a "loan" of $21,000 which was repayable to the agreeing defendants if the recovery from Daisy-Heddon was more than said amount. The agreement limited the liability of the agreeing defendants to $21,000. If the judgment obtained was less than $21,000, the Diases agreed to execute against Daisy-Heddon and pay 50% Of the amount collected to the agreeing defendants.

At trial, the agreeing defendants remained party to the lawsuit, participating in opening statements, instructions offered to the court, cross-examination of witnesses and closing argument. The jury's verdict found against David Hanson and Viola Odiorne upon the Diases' complaint which alleged that said parties were negligent, but the jury awarded zero damages to the Diases. The jury's verdict found for Daisy-Heddon upon the Diases' complaint which alleged that Daisy-Heddon, under the theory of strict liability, was liable for the injuries sustained by Terry Dias because the BB gun was in a defective condition and unreasonably dangerous when the gun left Daisy-Heddon's possession.

The appellants argue the following issues in this appeal:

(1) that the court erred in refusing to admit into evidence the plaintiffs' exhibits consisting of another BB gun and the instructions thereto for the purpose of showing that an alternative design was safer and easier to unload;

(2) that Daisy-Heddon's instruction given by the court was an incorrect statement of the law and that it took the essential issue of the case away from the jury; and

(3) that the court erred in refusing to allow the plaintiffs to introduce the entire loan receipt agreement into evidence.

I.

The doctrine of strict liability, as set forth in Section 402A of the Restatement of Torts (2d) has been adopted as the law in Indiana. Ayr-Way Stores, Inc. et al. v. Chitwood (1973), 261 Ind. 86, 300 N.E.2d 335; Perfection Paint v. Konduris (1970), 147 Ind.App. 106, 258 N.E.2d 681; Cornette v. Searjeant Metal Prdcts. (1970), 147 Ind.App. 46, 258 N.E.2d 652. Section 402A imposes liability upon "(o)ne who sells any product in a defective condition unreasonably dangerous to the user. . . ."

A product may be defective because of manufacturing flaws, defective design, or failure to discharge a duty to warn or instruct with respect to potential dangers in the use of the product. Nissen Trampoline Co. v. Terre Haute First Nat. Bk. (1975), Ind.App., 332 N.E.2d 820; Burton v. L. O. Smith Foundry Products Co. (7th Cir., 1976), 529 F.2d 108. In the case at bar it is argued that the model 30/30 BB gun was defectively designed in that its unloading mechanism was inadequate and unreasonably dangerous, and it is also alleged that the instructions for the gun failed to adequately warn of the dangers associated therewith.

Guy Braugher, the designer of the model 30/30 testified that the gun had been manufactured by Daisy since 1961. The 30/30 model was patterned after the 1894 Winchester rifle; it was a side-loading BB gun as opposed to being barrel-loading. The evidence shows that a yellow sticker attached to the cocking lever read as follows:

"IMPORTANT NOTICE

"The literature enclosed in the package with this Daisy product contains important information. Read it carefully before using your Daisy gun. . . ."

The instructions entitled, "OPERATION MANUAL Be safe read before loading or shooting," contained this warning in bold print, "Always handle a gun as if it were loaded." The instructions further advised that the gun should not be pointed toward any living thing and that the gun was only to be cocked in anticipation of firing the gun. At two different places the instructions warn that "(y)ou can't tell by looking if your gun is loaded so always treat it as if it were loaded." The unloading instructions read as follows:

"TO UNLOAD, make certain your gun is not cocked by firing in a safe direction.

"Slide the feed arm forward with the muzzle up and shake B Bs back into the reserve magazine. Then open the loading gate and shake B Bs from the reserve magazine. To make certain the gun is empty, fire it 10 or 15 times in a safe direction.

"IMPORTANT: Since it is impossible to actually see into the mechanism of this gun to be certain it is unloaded, always treat it as though it IS LOADED."

The evidence was conflicting as to whether all the BBs could be removed by opening the loading gate and shaking the BBs from the reserve magazine. But the testimony of all parties was that if all the steps of the instructions for unloading were followed, i. e., if the gun was fired 10 or 15 times in a safe direction, then the gun would definitely be unloaded.

Under the doctrine of strict liability an essential element of proof is that the defective condition of the product causes plaintiff's harm. Ayr-Way Stores, Inc. et al. v. Chitwood, supra ; Nissen Trampoline Co. v. Terre Haute First Nat. Bk., supra. That the product was defective or unreasonably dangerous is a prerequisite to proximate cause under the strict liability rule. See : Procter & Gamble Manufacturing Co. v. Langley (Tex.Civ.App.1967), 422 S.W.2d 773, at 779. In Gilbert v. Stone City Const. Co., Inc. (1976), Ind.App., 357 N.E.2d 738, the court cites Section 402A, Comment i to define the standard:

" '. . . The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. . . . The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. . . .' " Cited in Gilbert, supra, at 743.

Proximate cause is commonly defined as "that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred." Johnson v. Bender (1977), Ind.App., 369 N.E.2d 936, at 939.

A plaintiff may be defeated in his claim by showing that (1) the injuries were caused Solely by his own conduct, in whatever form, (2) he voluntarily and unreasonably proceeded to encounter a known risk arising out of the defect (assumed or incurred risk) or (3) he misused the product in question. Gregory v. White Truck and Equipment Co., Inc. (1975), 163 Ind.App. 240, at 253, 323 N.E.2d 280, at 287-288.

And Section 402A, Comment j provides in pertinent part:

"Directions or warnings. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warnings, on the container, as to its use. . . .

"Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous."

In Indiana the law supplies a presumption that an adequate warning would have been read and heeded. Ortho Pharmaceutical Corp. v. Chapman (1979), Ind.App., 388 N.E.2d 541; Nissen Trampoline Co. v. Terre Haute First Nat. Bk., supra ; Gregory v. White Truck and Equipment Co., Inc., supra.

The question as to whether the BB gun was...