FMC Corp. v. Brown, 18A04-8611-CV-00350

• Decision Date: 28 July 1988
• Docket Number: No. 18A04-8611-CV-00350,18A04-8611-CV-00350
• Citation: 526 N.E.2d 719
• Parties: Prod.Liab.Rep. (CCH) P 11,869 FMC CORPORATION, Appellant, v. Sharon K. BROWN, Administratrix of the Estate of Danny R. Brown, Deceased, Appellee.
• Court: Indiana Appellate Court

Page 719

526 N.E.2d 719

Prod.Liab.Rep. (CCH) P 11,869

FMC CORPORATION, Appellant, v. Sharon K. BROWN, Administratrix of the Estate of Danny R Brown, Deceased, Appellee.

No. 18A04-8611-CV-00350.

Court of Appeals of Indiana Fourth District.

July 28, 1988.

Frank E. Gilkison, Beasley, Gilkison, Retherford, Buckles & Clark, Muncie, Stephen M. Shapiro, John E. Muench, Mayer, Brown & Platt, Chicago, Ill., Russell H. Schussler, Robert L. Bever, Harlan, Schussler, Keller, Boston & Bever, Richmond, for appellant.

Perry W. Cross, P. Gregory Cross, Cross, Marshall, Schuck, Deweese, Cross & Feick, P.C., Muncie, for appellee.

MILLER, Presiding Judge.

On November 4, 1981, Danny Brown, a 28-year-old construction worker, was electrocuted when the hoist line of a crane being used to move a load of metal forms contacted an energized power line while his hand was touching the load. His widow and administratrix of his estate, Sharon K. Brown, brought a wrongful death products liability suit on behalf of herself and their two children against FMC Corporation, manufacturer of the crane. Brown contended FMC was liable for damages resulting from the death of her husband because it had manufactured and sold its crane to Brown's employer in a defective condition unreasonably dangerous to users. FMC answered that Brown had incurred the risk of his death, was guilty of contributory negligence, and the crane had been misused. After a jury trial, the court entered judgment on the jury's verdict in favor of Brown and against FMC in the sum of $2,900,000.00. FMC raises four issues for consideration on appeal:

I. Whether the trial court erred in denying FMC's Motion for Judgment on the Evidence because FMC had no duty to protect against the open and obvious danger associated with use of its crane in proximity to a high-voltage power line.

II. Whether the trial court erred in denying FMC's Motion for Judgment on the Evidence because FMC had no duty to install an insulated link or proximity warning alarm devices on its cranes and the absence of those devices was not the proximate cause of injury.

III. Whether the trial court erred in ruling that the open and obvious nature of the danger constituted an affirmative defense, in instructing the jury that defendant FMC had the burden of proof thereon, and in denying FMC its right to conduct a voir dire examination of the jury on this critical issue.

IV. Whether the trial court erred in denying FMC's Motion to Withdraw the Issue of lost future earnings from the jury because there was not evidence of the present value of lost future earnings, in erroneously instructing the jury regarding damages, and in failing to set aside the jury's damage award as grossly excessive and grant FMC a new trial.

We reverse on Issue III, but will address the other issues as they may recur on retrial.

FACTS

The facts, stated in the light most favorable to the judgment, are as follows. On November 4, 1981, Danny R. Brown was employed by Bowen Engineering Corporation as a laborer in the construction of a sewage treatment plant at Galveston, Indiana. At approximately 11:30 a.m. on that date, Roll Hamilton, another Bowen employee, was operating a Linkbelt model LS-108B crane to move a load of metal forms weighing approximately 900 pounds. The crane had been manufactured by the defendant, FMC Corporation, and sold to Bowen on February 10, 1975. At the time of the incident, the crane was positioned on an east-west service road at the northernmost edge of the project, roughly parallel to a set of power lines carrying a phase to ground voltage of 7,200 volts. Although the crane had been used in the vicinity of the service road on the first day of the project several months before, it had not again been used in that area until that day. The forms were to be removed from a location immediately south of the service road and placed out of the way of the workmen at some point on the north side. Directly to the north of the road, the ground sloped downward precipitously, rendering that area unsuitable for the placement of such loads.

As the load was lifted by FMC's crane, Brown prepared to receive it by laying a pair of boards at the bottom of the bank, at a point constituting the closest possible place to the road at which it could be set. Although the job supervisor stated he had ordered the load set atop the bank, more favorable to the verdict is the testimony of the crane operator that the supervisor had generally indicated the load be set somewhere well to the north of the road, placement on the bank being impossible. As the crane boom came around, swinging in a clockwise direction, the load line descending from the boom came in contact with the energized line. The cab of the crane is designed so the operator's vision is obstructed to the right by the boom when swinging that direction, and the operator was not able to see the lines at the point of contact. Danny Brown, who was touching the load at that instant, was grounded and electrocuted when a current flowed down the line into the load and through his body to the ground. At the time of this incident, he was 28 years of age, with a life expectancy of 45.4 years. He left surviving him as dependents Sharon K. Brown, his wife of six months, their five-year-old son and three-year-old daughter.

Sharon Brown brought this wrongful death products liability suit on behalf of herself and her two children against FMC, manufacturer of the crane, and contended FMC was liable because FMC had manufactured and sold its crane to Brown's employer in a defective condition unreasonably dangerous to users. Brown asserted that either of two devices, a proximity warning device or an insulated link, would have prevented this accident and that the existence of this technology, which would eliminate the hazard that killed Brown (inadvertent contact of a crane with energized power lines), had been known to FMC for over thirty years. FMC responded that Brown had incurred the risk of his death, was guilty of contributory negligence, and the crane had been misused because Brown had disregarded (1) his supervisor's instructions as to where to place the load, (2) the two warnings on the crane regarding power lines, and (3) the open and obvious danger of placing the crane's arm on the power line.

A three week jury trial began on May 16, 1986. Evidence at trial showed FMC's crane was not designed, manufactured or sold with either of the two devices, a proximity warning device or an insulated link, which would have prevented this accident according to every witness who testified on the subject.

A proximity warning device detects the presence of the electric field surrounding energized lines, giving off an audio visual alarm. An insulated link serves the same essential function as a "headache ball" in weighing down the end of the line so as to prevent kinking, and the link is insulated and designed to stop the conduction of electricity. Although there are approximately 500 deaths and serious injuries each year from crane-power line contacts, there has never been a reported case of a death or serious injury where either device was installed and being used correctly. FMC knew this type of accident was one of the leading causes of injury in the construction industry since at least the 1950's, and knew of the existence of these devices for about the same time, yet did not incorporate them into the design of its crane, did not offer them to customers as optional equipment, and did not even inform crane buyers of their existence. As a result of Brown's death, his employer learned of the existence of insulated links and had them installed on all of its cranes. There have been no subsequent accidents.

The jury returned a verdict in favor of Brown and against FMC in the amount of $2,900,000.00. The trial court entered judgment on the jury's verdict on June 3, 1986. FMC now appeals from this judgment. ¹ ]

DECISION

I. Open and Obvious Danger as a Matter of Law

FMC argues on appeal it is entitled to judgment in its favor as a matter of law under the Bemis open and obvious danger doctrine. In Bemis v. Rubush Co. (1981), Ind., 427 N.E.2d 1058, the court stated the rule as follows:

"In the area of products liability, based upon negligence or based upon strict liability under Sec. 402A of the Restatement (Second) of Torts, to impress liability upon manufacturers, the defect must be hidden and not normally observable, constituting a latent danger in the use of the product. Although the manufacturer who has actual or constructive knowledge of an unobservable defect or danger is subject to liability for failure to warn of the danger, he has no duty to warn if the danger is open and obvious to all."

Id. at 1061.

The court clarified the effect of the open and obvious danger doctrine in Bridgewater v. Economy Engineering Co. (1985), Ind., 486 N.E.2d 484.

"In Bemis, we did not hold that the question of whether an alleged danger is open and obvious is a matter of law in all cases. Bemis involved a set of facts that was not in conflict and that left no general issue as to any material fact except for the question of whether the danger was open and obvious."

Id. at 488. (Emphasis in original)

In Bemis, the plaintiff was injured when he was struck by a descending shroud on a batt packing machine. The facts were not in conflict and the plaintiff admitted the danger was open and obvious. Bemis, supra at 1060. But, in Hoffman v. E.W. Bliss Co. (1983), Ind., 448 N.E.2d 277, the court was presented with a different factual setting. In Hoffman, the plaintiff was injured when a press descended on his hand. Evidence was presented that an internal dysfunction of the press could cause it to recycle and descend, even though the operator did nothing to activate it. Thus, the court concluded that, although the danger in placing one's hand in the press was open and obvious as a matter of law, it was a question of fact...