FMC Corp. v. Brown

Decision Date07 March 1990
Docket NumberNo. 18S04-9003-CV-181,18S04-9003-CV-181
Citation551 N.E.2d 444
PartiesFMC CORPORATION, Appellant, v. Sharon K. BROWN, administratrix of the Estate of Danny R. Brown, Deceased, Appellee.
CourtIndiana Supreme Court

DeBRULER, Justice.

In this case, a crane being operated at a construction site came in contact with a power line, and Danny R. Brown, a twenty-eight-year-old laborer acting as groundman, was electrocuted. His widow brought this wrongful death products liability suit against FMC, the manufacturer of the crane, alleging that the crane was in a defective condition unreasonably dangerous to users because it was not equipped with a proximity warning device or an insulated link. FMC claimed that incurred risk, misuse, and open and obvious danger negated its liability, and claimed further that a crane would be more dangerous with the warning device or insulated link. The jury returned a verdict for the plaintiff, and a judgment was rendered for approximately three million dollars. On appeal, the judgment was reversed and the cause remanded for a new trial. FMC Corp. v. Brown (1988), Ind.App., 526 N.E.2d 719. We grant transfer, adopt the opinion of the Court of Appeals in part, and affirm the judgment.

On appeal, FMC raised several issues which were resolved by the Court of Appeals, which issues related to the following questions, namely, (1) whether a defense motion for judgment on the evidence was correctly denied, (2) whether the evidence of a defective and unreasonably dangerous product was sufficient, (3) whether an instruction characterizing open and obvious danger as an affirmative defense upon which the defendant bears the burden of proof was proper, and (4) whether the issue of lost future earnings was properly given to the jury absent proof of the present value of such earnings. FMC also raised two issues which were not resolved due to the reversal, namely, (1) whether the trial court committed error in restricting its voir dire examination, and (2) whether the evidence supported the verdict amount.

In resolving the first two issues above, the opinion of the Court of Appeals notes in detail evidence that cranes of this type are routinely employed in close proximity to power lines and that operators have a limited capacity to judge clearances between the cranes and power lines. There was proof that the cab of this crane was constructed so as to block the view of the operator in a critical manner when making certain maneuvers. This was in juxtaposition with the massive evidence presented by the manufacturer that the danger resulting from this crane striking the lines was open and obvious and was appreciated by both Brown and the operator. There was also evidence that the proximity warning device was a feasible, available, and well understood and appreciated instrument in the industrial community to augment the user's limited capacity to perceive a nearby power line when engaged intently upon safely delivering a load. Testimony demonstrated as well the effectiveness of the insulated link in preventing electrocution. This evidence is conflicting and would permit the reasonable inferences in favor of the plaintiff that the crane without such safety devices was a defective and unreasonably dangerous product and that the failure to install such devices was one proximate cause of Brown's death. Under this state of the evidence, a judgment on the evidence is improper, Jones v. Gleim (1984), Ind., 468 N.E.2d 205, and the trial court correctly denied FMC's motion.

The events giving rise to this civil complaint and the trial itself occurred after the enactment of the 1978 Indiana Product Liability Act, I.C. 33-1-1.5-1 et seq. The open and obvious danger rule asserted in Bemis Co. v. Rubush (1981), Ind., 427 N.E.2d 1058, does not apply to strict liability claims under the Product Liability Act. Koske v. Townsend Engineering (1990), Ind., 551 N.E.2d 437. It is now clear that evidence tending to prove an observable danger or defect of a product is simply that, evidence relevant and material to the issue of whether the product was defective and unreasonably dangerous and to the statutory affirmative defense of incurred risk.

At trial, counsel, on behalf of their respective clients, and the trial court, in furtherance of its judicial duty, attributed differing legal consequences to the evidence in the case that the danger existing when operating a crane in proximity with power lines should have been known and discernible by users such as Brown and the operator. Defense counsel sought to ascertain from the prospective jurors during voir dire how each would respond to an instruction from the court that liability cannot stem from a product presenting an open and obvious danger. Plaintiff's counsel objected on the basis that the principle was not pleaded in the answer. The objection was sustained and voir dire in this form was duly curtailed. FMC asserts that this restriction of its voir dire examination constituted reversible error. To constitute sufficient basis for reversal, trial court error must be such that it impinges upon and prejudices a substantial right such that a fair trial was not accorded. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Grimes v. State (1983), Ind., 450 N.E.2d 512. The purpose of allowing voir dire examination of prospective jurors is to permit the rational exercise of the rights of challenge, peremptory and for cause. FMC pleaded the defenses of incurred risk and misuse. Such defenses call for close scrutiny of any alleged defect in a product, the awareness of the user of any resultant danger, and the reasonableness of the use. FMC was given the full opportunity to probe jurors regarding these matters, and we find that such opportunity provided a satisfactory basis for determining any juror bias or interest with reference to the then-assumed defense of open and obvious danger. The restraint imposed by the court's ruling, even if error, is not cause for a new trial.

By that point in the trial at which the plaintiff rested, there was much evidence regarding the nature of the alleged defect in the crane and the knowledge of Brown and the operator of it. At that point in the trial, FMC, while reserving its claim that the trial court had erred in sustaining the objection to voir dire, made a motion to amend its answer to include a defense of open and obvious danger, which motion was granted. The testimony presented by both parties would support an inference that both the decedent Brown and the operator of the crane were aware of the dangers existing when a crane with a long boom is operated in the vicinity of power lines. That aspect of the danger was addressed in final summation. It was addressed in the final jury instructions. Instruction No. 1, which described the nature of the action and the contentions of the parties, provided in part:

The defendant, FMC Corporation, denies any liability to the plaintiff, and contends that it is not responsible for the death of Danny Brown. The defendant denies that the crane was defective and denies that the crane was unreasonably dangerous as manufactured and delivered to the purchaser. As part of such denial, the defendant asserts that it gave adequate warnings of any danger associated with the product.

The defendant further asserts as affirmative defenses: (1) the crane was not unreasonably dangerous because the alleged defective condition was open and obvious to the decedent; (2) the decedent had discovered the alleged defect and was aware of the danger but nevertheless proceeded to make use of the product and was.... [Record incomplete.] The defendant further contends in defense that the cause of Danny Brown's death was the nonforeseeable misuse of the crane.

Instruction No. 2 provided in part:

If the plaintiff sustains his burden of proof and you find no applicable defenses exist, then the defendant has strict liability in tort for the plaintiff's damage.

Instruction No. 4 informed the jury in part:

Plaintiff has the burden of proving the following propositions:

First: That the Linkbelt model LS108-B lattice boom crane manufactured by the defendant, FMC Corporation was sold to Bowen Engineering Corporation in a defective condition unreasonably dangerous to users or consumers of the crane, such as Danny Brown.

Instruction No. 5 stated the following:

The defendant has raised the following affirmative defenses:

1. That the plaintiff's decedent, Danny Brown, had knowledge of the defect and was aware of the danger, but nonetheless proceeded unreasonably to make use of it.

2. The cause of plaintiff's damage was the nonforeseeable misuse of the crane by Danny Brown or others.

3. That the crane was not unreasonably dangerous because the alleged defective condition was open and obvious to the decedent Danny Brown.

In a products liability action, the defendant has the burden of proving by a preponderance of the evidence any defense it may raise.

I.C. 33-1-1.5-4

FMC made the following objection to Instruction Nos. 1 and 5:

Yes, your Honor, we would have objections to Court's instruction number one just to the extent it does illustrate or indicate that the defense of open and obvious is an affirmative defense ... [;] we do object to the concept that open and obvious is an affirmative defense. We believe it goes to whether there is a duty for purposes of warning ... [and is] all part of the definition of unreasonably dangerous and defective which is part of the plaintiff's burden. We do not believe that the case law supports the...

To continue reading

Request your trial
49 cases
  • Armentrout v. FMC Corp.
    • United States
    • Colorado Supreme Court
    • November 23, 1992
    ...Weatherby v. Honda Motor Co., 195 Ga.App. 169, 393 S.E.2d 64 (1990); FMC Corp. v. Brown, 526 N.E.2d 719 (Ind.App.1988), aff'd, 551 N.E.2d 444 (Ind.1990); Braxton v. Georgia Pacific Corp., 419 So.2d 125 (La.App.1982); Glavin v. Baker Material Handling Corp., 144 Mich.App. 147, 373 N.W.2d 272......
  • Dow Chemical Co. v. Ebling
    • United States
    • Indiana Appellate Court
    • February 3, 2000
    ...available that would have eliminated or significantly reduced the risk of harm that was caused to the plaintiff. See FMC Corp. v. Brown, 551 N.E.2d 444, 446 (Ind. 1990) (holding that a jury could reasonably infer that a manufacturer defectively designed a crane where evidence existed that a......
  • Alexander v. Scheid
    • United States
    • Indiana Supreme Court
    • April 3, 2000
    ...n. 12. 16. Compensation for reduced life expectancy is routinely awarded in the context of wrongful death claims, see FMC Corp. v. Brown, 551 N.E.2d 444, 449-50 (Ind.1990), Steiner v. Goodwin, 138 Ind.App. 546, 550-51, 215 N.E.2d 361, 364 (1966), as well as personal injury claims, see Smith......
  • Kaiser v. Johnson & Johnson, 18-2944
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 14, 2020
    ...left this method of proof open to plaintiffs, while not requiring it as an element of the claim. Id. at 210 ; accord FMC Corp. v. Brown , 551 N.E.2d 444, 446 (Ind. 1990). Reasonable alternative designs are also "relevant to the issue of whether the design in question is unreasonably dangero......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT