Ferguson v. Modern Farm Systems, Inc., 12A02-8702-CV-52

Citation555 N.E.2d 1379
Case DateJuly 11, 1990
CourtCourt of Appeals of Indiana

George N. Craig, Jeffrey A. Boyll, Craig, Craig & Boyll PLC, Brazil, James T. Robison, Robison, Robison, Bergum & Johnson, Frankfort, for appellants.

Robert F. Wagner, Jane Magnus D'Alesandro, Lewis, Bowman, St. Clair & Wagner, Indianapolis, for Modern Farm Systems, Inc.

Robert H. Johnson, Bruce L. Kamplain, Norris, Choplin & Johnson, Indianapolis, for Kern, Kirtley and Herr Co.

Peter G. Tamulonis, Richard A. Young, John B. Drummy, Kightlinger & Gray, Indianapolis, for David Riggs d/b/a Riggs Const. Co.



Appellants-plaintiffs Clayton L. Ferguson (Clayton) and Brenda Ferguson (Brenda) [hereinafter collectively referred to as the Fergusons] appeal the trial court's grant of summary judgment for appellees-defendants Modern Farm Systems, Inc. (MFS), Kern, Kirtley, and Herr Company (Kern), and David Riggs, d/b/a Riggs Construction Company (Riggs), claiming that the trial court erred in determining that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law.

We affirm.


On October 27, 1984, Clayton was injured when he fell off a ladder which was affixed to the side of a grain storage bin. Clayton climbed the ladder carrying a conduit to be used for unclogging a drain spout. Clayton used his right hand to hold the conduit and climbed the ladder using the other hand. As he climbed, his left had slipped off a rung and he fell to the ground.

Before his fall, Clayton had climbed the same ladder on approximately twenty other occasions. On the day of this accident, he had climbed the same ladder five times. At his first deposition, Clayton said he knew the ladder was uncaged, and that he was aware there was a risk of falling any time one climbs a ladder, whether using one or two hands. He also stated he accepted the chance off falling off a ladder as part of his job.

Kern was the owner and operator of the grain operator complex where the grain bin was located. MFS manufactured the grain bin's components and Riggs, an MFS dealer, constructed the grain bin. All of the component parts for the bin were received at the construction site on September 4, 1974. The parties dispute whether the construction was complete in September or December of 1974.

The Fergusons filed their complaint on March 12, 1985. The Fergusons claimed the MFS, Riggs, and Kern negligently failed to provide a protective cage around the ladder or a rest platform. They also sued MFS and Riggs under a product liability theory, alleging that the grain bin was defective and unreasonably dangerous. Brenda sought damages for the loss of her husband's companionship (consortium). The trial court granted summary judgment in favor of MFS, Riggs and Kern. 1


Two issues are dispositive in this appeal:

1. Did Clayton incur the risk of his injuries as a matter of law, thereby precluding a claim of negligence?

2. Were the Fergusons' product liability claims against MFS and Riggs barred by the applicable statute of limitations period?

ISSUE ONE--Did Clayton incur the risk of his injures as a matter of law, thereby precluding a claim of negligence?

PARTIES' CONTENTIONS--The Fergusons contend the specific risk which Clayton would have had to incur should be defined as the increased risk of falling when climbing an uncaged ladder one-handed. Consequently, they assert a question of fact existed because he did not perceive a greater risk of falling by climbing one-handed.

MFS, Riggs, and Kern respond that Clayton's own admissions that he knew he could fall off the ladder, whether climbing with one or two hands, shows as a matter of law that he incurred the risk of falling.

CONCLUSION--Clayton incurred the risk of his injuries as a matter of law.

Incurred risk can be found as a matter of law only if the evidence is without conflict and the sole inference to be drawn is that the plaintiff knew and appreciated the danger caused by the defendant's negligence, but nevertheless accepted it voluntarily. Get-N-Go, Inc. v. Markins (1989), Ind., 544 N.E.2d 484; Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552; Moore v. Federal Pac. Elec. Co. (1980), Ind.App., 402 N.E.2d 1291, trans. denied; Kroger Co. v. Haun (1978), 177 Ind.App. 403, 379 N.E.2d 1004, trans. dismissed. The injured party must have been more than generally aware of the potential for mishap, but must have had actual knowledge of the specific risk. Beckett, supra; Stainko v. Tri-State Coach Lines, Inc. (1987), Ind.App., 508 N.E.2d 1362, trans. denied; Borton v. Lavenduskey (1985), Ind.App., 486 N.E.2d 639, trans. denied; Power v. Brodie (1984), Ind.App., 460 N.E.2d 1241, trans. denied; see also Phillips v. United Eng'rs and Constructors, Inc. (1986), Ind.App., 500 N.E.2d 1265. However, a specific risk involves only the ordinary and usual risks inherent in a given act. Beckett, supra; Power, supra; Kroger Co., supra.

Clayton knew and appreciated the specific risk of falling off an unenclosed ladder whether he used one or two hands to climb. He voluntarily accepted that risk as part of his job. When one knows and appreciates the risk of falling as a result of a dangerous condition, yet voluntarily continues to use the dangerous instrumentality, the injured party incurs the risk as a matter of law. See St. Mary's Byzantine Church v. Mantich (1987), Ind.App., 505 N.E.2d 811, trans. denied; see also Sullivan v. Baylor (1975), 163 Ind.App. 600, 325 N.E.2d 475.

The specific risk is not defined as the increased danger of climbing a ladder one-handed. The proper focus delineated in Beckett, supra; Moore, supra; and Kroger Co., supra, is the knowledge of the condition created by the defendants. MFS, Kern, or Riggs did not create a condition which required Clayton to climb with one hand.

Our holding is consistent with Stainko, supra; Phillips, supra; and Borton, supra. In Stainko, the plaintiff knew that bus garages have repair pits, but was unaware that the pit might be unlighted and unguarded. While the plaintiff in Borton knew that nervous cattle could kick him, he did not know that a particular steer was wild and had a greater tendency to kick. Likewise, in Phillips, the injured party complained about certain dangers with a catwalk, but there was no testimony that he knew of the unguarded condition at the end of the catwalk from which he fell. The specific risks created by the defendants in these three cases were not known to the plaintiffs, unlike the case before us, where Clayton was expressly aware of the specific risk he incurred.

Clayton's awareness is more closely akin to that of the plaintiff in Beckett, supra, in which our supreme court determined a baseball player had voluntarily assumed the risk, as a matter of law, of the possibility of colliding with another baseball player on the playing field. The supreme court focused on the plaintiff's deposition testimony which indicated he was clearly aware collisions were possible. Id. at 555-56.

Just as the supreme court in Beckett was satisfied that the record conclusively demonstrated the plaintiff's actual knowledge of the risk incurred, we conclude our record unmistakably shows Clayton actually knew of the dangers he faced by climbing the ladder with one hand. Clayton's first deposition reveals that he recognized that there was always an increased risk of falling off a ladder when carrying something while climbing the ladder. At his first deposition, the following exchanges occurred:

"Q. Did carrying something up that ladder make it more difficult to climb the ladder?

A. Yes.

Q. Did it make it--

A. (Continuing) Regardless of what you were carrying.

Q. If you were carrying anything up that ladder did it make it more danger [sic] to climb that ladder?

A. Yes.

Q. How so?

THE WITNESS: How much more dangerous?

Q. How much more dangerous?

A. Pretty dangerous.

Q. Can you describe why?

A. Well, for one thing, it hasn't got a safety cage on it and the rungs on this particular ladder are slick and like what happened to me, I slipped and fell.

Q. The last several questions and answers have been about the same ladder that you fell off of; is that correct?

A. Yes.

Q. You knew that before the date you were injured, didn't you?

A. Yes. I knew that it was dangerous to take things up on your body.

. . . . .

Q. Even if you had both hands available for the ladder it was still dangerous to carry things up there?

A. Yes.

Q. Including the same ladder involved in this case?

A. Yes. Every ladder is dangerous.

Q. Did it increase the risk of falling off the ladder to carry something up the ladder?

A. Always.

Q. You knew that before the date of your injury; is that correct?

A. Yes.

. . . . .

Q. Anytime you have only got one hand on the ladder, only one hand being used to climb the ladder, that's pretty risky, isn't it?

A. Yes.

Q. And you knew that before you got hurt, didn't you?

A. Yes."

Clayton Deposition I at 51-53, 69 (emphasis supplied).

While his second deposition might be construed as a contradiction of his prior testimony, his subsequent statements cannot be used to defeat a summary judgment motion when the only issue raised is his own credibility. See Gaboury v. Ireland Rd. Grace Brethern, Inc. (1983), Ind., 446 N.E.2d 1310. If a party could raise an issue of fact simply by contradicting his own prior testimony, this would diminish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. The trial court properly granted summary judgment on the issue of negligence because Clayton incurred the risk of his injuries.

ISSUE TWO--Were the Fergusons'...

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