Dutchmen Mfg., Inc. v. Reynolds, No. 20A03-0711-CV-510.

• Citation: 891 N.E.2d 1074
• Decision Date: 11 August 2008
• Docket Number: No. 20A03-0711-CV-510.
• Parties: DUTCHMEN MANUFACTURING, INC., Appellant-Defendant, v. Chad REYNOLDS, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

891 N.E.2d 1074

DUTCHMEN MANUFACTURING, INC., Appellant-Defendant, v. Chad REYNOLDS, Appellee-Plaintiff.

No. 20A03-0711-CV-510.

Court of Appeals of Indiana.

August 11, 2008.

Tracy D. Knox, D. Michael Anderson, Barnes & Thornburg LLP, South Bend, IN, Attorneys for Appellant.

Michael F. DeBoni, John D. Ulmer, Yoder, Ainlay, Ulmer & Buckingham, Patrick F. O'Leary, Goshen, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-defendant Dutchmen Manufacturing, Inc. (Dutchmen), appeals the $6 million jury verdict entered against it in favor of appellee-plaintiff Chad Reynolds as the result of injuries that Reynolds sustained while working near some scaffolding that Dutchmen personnel had installed. Specifically, Dutchmen argues that: (1) the trial court erred in denying its motion for a judgment on the evidence; (2) the jury was improperly instructed; (3) the trial court erred in denying its motion for a mistrial because of opposing counsel's allegedly improper comments; and (4) the jury's damage award was excessive. Concluding that the trial court properly denied Dutchmen's motion for judgment on the evidence and finding no other error, we affirm.

FACTS¹

Dutchmen was a tenant in a recreational vehicle (RV) manufacturing facility in Goshen, which was known as the Maple City Plant. While Dutchmen was leasing the facility, which was owned by Chapman Realty, it constructed some scaffolding and installed several work platforms for use in the manufacturing process. Specifically, in 1992, Dutchmen delegated the task of constructing the scaffolds to Rick Mosher, who worked in the company's maintenance department. Prior to erecting the scaffolds at the Maple City Plant, the only fixtures that Mosher had built for Dutchmen from "scratch" were metal storage shelves. Appellant's App. p. 23. Dutchmen representatives knew that Mosher chose plumbing pipe for the scaffolding, which is a poor weight-bearing steel material.

After Mosher completed the first scaffold, he delegated construction of the other platforms to Alan Pfeiffer, a welder. Like Mosher, Pfeiffer had no prior experience in designing or fabricating scaffolds or work platforms. The scaffolds were mechanical platforms that hung from the ceiling and could be raised and lowered. The scaffolds were typically set at a working height of six feet but could be raised to a height of nine feet to permit the workers to pass directly underneath them. Dutchmen personnel did not inspect or maintain the scaffolding after the units were built.

Although Mosher claimed that the scaffolds were designed to hold two workers, there were occasions where he and other employees saw three or four workers on them at once. Mosher and others also observed workers jumping approximately five feet from the top of the trailers onto the deck of the platform. The impact from the jumping caused the building to shake, and Mosher often heard the vibrations over the production noise of the plant. Mosher reported this activity to his supervisor, and Dutchmen's managers issued an order prohibiting the jumping.

In early 1999, Dutchmen planned to vacate the Maple City Plant at the expiration of its lease. Chapman Realty informed Pfeiffer, the current plant manager, that pursuant to the terms of the lease, Dutchmen either had to remove the scaffolds or reimburse Chapman Realty for the expense of removing them. Chapman had initially told Dutchmen to remove the scaffolding or pay for its removal, which was estimated at a cost of $4200. However, to avoid the removal expenses, Pfeiffer initially attempted to sell the scaffolds to Keystone RV (Keystone), a company that expressed an interest in occupying the premises. However, when Keystone and Dutchmen could not agree about the price of the platforms, Dutchmen ultimately agreed to give the scaffolds to Keystone.

Sometime in February 1999, Dutchmen terminated its lease and vacated the Maple City Plant, and left the work platforms at the facility. Thereafter, Keystone moved in and used the platforms in its manufacturing process beginning May 3, 1999.

On December 14, 1999, Reynolds was working in the bay of the electrical department at the back end of a trailer. As Reynolds bent down to install a taillight on the trailer, the inner support pipe of a nearby scaffold suddenly broke, causing it to fall and strike Reynolds on the head. As a result of the fall, Reynolds sustained a severe spinal cord injury.

According to Keystone's employee injury report, a weld in the scaffolding had failed, causing the scaffold to fall to the floor. More specifically, the report indicated that "a pipe inside the support tube for the center arm of the scaffold broke." Appellant's App. p. 424. Keystone's engineers determined that the inner tube fractured due to "improper welding procedure." Id. at 373. It was also established that Keystone personnel could not have discerned that the primary support components of the scaffolding were not the type that should have been used to construct the platforms. Moreover, it was determined that a weld was made at the intersection of the inboard side of the inner pipe and vertical arm. As a result, the scaffolding was weakened, and the defective weld was completely concealed from view by the outer tube and an end cap at the time the unit was assembled.

In November 2000, Reynolds filed a complaint against Chapman Realty and Dutchmen, alleging that Dutchmen was liable for his injuries because it had constructed and installed defective scaffolding on the premises. Thereafter, Reynolds filed a two-count amended complaint against Dutchmen on July 5, 2001, which advanced claims for negligence and negligence per se. Subsequently, Dutchmen moved for summary judgment, arguing that it did not owe Reynolds any duty and was not negligent per se. In response, Reynolds filed a memorandum of law alleging that Dutchmen was liable for his injuries as a supplier of a defective chattel in accordance with Section 388 of the Restatement (Second) of Torts (Section 388). Section 388, which is discussed in greater detail below, essentially provides that one who provides a chattel to a third person is subject to liability for physical harm caused by the use of the chattel if the supplier knew it was likely to be dangerous and had no reason to believe the other party would realize it was dangerous.

Following a summary judgment hearing on December 11, 2002, the trial court granted Dutchmen's motion with regard to all of Reynolds's negligence claims. Specifically, the trial court's order provided that

7. Plaintiffs advance various theories of liability with respect to their negligence claim against Dutchmen. First, Plaintiffs contend that Dutchmen is liable under the theory of premises liability.... It is undisputed that Dutchmen relinquished absolute possession and control of the premises and the scaffolding when its lease with Chapman Realty expired. Therefore, Dutchmen had neither possession nor control of the premises or the scaffolding at the time of Chad Reynolds's accident. There is no evidence that would suggest otherwise. Thus, Dutchmen was in no position to discover, repair or prevent any unsafe condition of the scaffolding. Once Dutchmen relinquished possession and control of the premises, including the scaffolding, it had no duty to the entrants or employees on those premises. Accordingly, Plaintiffs' premises liability claim fails.

8. Dutchmen was not a vendor of land or a seller of real estate. Further, it is undisputed that Dutchmen made no representations to Keystone regarding the condition of the scaffolding. Finally, when Keystone leased the premises, including the scaffolding from Chapman Realty, it was offered the opportunity to examine and expressly accepted the property "AS IS." Dutchmen did not have a duty as vendor of land to disclose to Keystone the condition of the scaffolding.

9. Further, Plaintiffs contend that Dutchmen is strictly liable in tort under the Indiana Product Liability Act ... as a seller or manufacturer of a product in a defective and/or unreasonably dangerous condition.... Based on the lack of any evidence to the contrary, the Court concludes that Dutchmen is not engaged in the business of constructing and/or selling the scaffolding which is the subject of this litigation, for resale, use or consumption. The incident in this case was an isolated dealing and Dutchmen is not a seller or manufacturer of a product which would invoke the Indiana Product Liability Act.

10. As a final component of their general negligence claim, Plaintiffs assert that Dutchmen remained liable because the scaffolding Dutchmen constructed was "inherently dangerous." Plaintiffs' designated evidence ... reveals that the scaffolding in this case was defective. If the scaffolding was defective, as a matter of law, it cannot be "inherently dangerous." Unless the instrumentality or work is deemed inherently dangerous, a duty is not owed under § 385 after the owner accepts the work. By analogy, after Keystone accepted the scaffolding from Dutchmen, Dutchmen owed no duty to the Plaintiffs under this theory.

11. Plaintiffs advance the theory that Dutchmen is liable for negligence under the Restatement (Second) of Torts § 388, which imposes liability on a supplier of goods known to be dangerous for an intended use when it does not use reasonable care to inform the consumer of the facts that make the chattel dangerous.... The evidence designated supports the Court's conclusion that the scaffolding in this case is a chattel.... Plaintiffs' claim under § 388 is broader than a claim for strict liability imposed on sellers and manufacturers under the Indiana Product Liability Act. Under § 388, a supplier is any person who for any purpose or in any manner gives possession of a chattel for another's use, or who permits another to use or occupy it while it is in his own possession or control, without disclosing his knowledge that the chattel is...