Jackson v. Warrum

• Decision Date: 20 March 1989
• Docket Number: No. 41A01-8711-CV-282,41A01-8711-CV-282
• Citation: 84 A.L.R.4th 97,535 N.E.2d 1207
• Parties: , Prod.Liab.Rep. (CCH) P 12,143 Brenda JACKSON, Individually and as Executrix of the Estate of Charles Jackson and Kenneth R. Barber, Plaintiffs-Appellants, v. Glen E. WARRUM, Caito Food Services, Inc., and Crane Carrier Co., Inc., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1207

535 N.E.2d 1207

84 A.L.R.4th 97, Prod.Liab.Rep. (CCH) P 12,143

Brenda JACKSON, Individually and as Executrix of the Estate of Charles Jackson and Kenneth R. Barber Plaintiffs-Appellants, v. Glen E. WARRUM, Caito Food Services, Inc., and Crane Carrier Co., Inc., Defendants-Appellees.

No. 41A01-8711-CV-282.

Court of Appeals of Indiana First District.

March 20, 1989.

Joe Keith Lewis, Fishburne & Lewis, Marion, for plaintiffs-appellants.

Steven J. Strawbridge, Locke Reynolds Boyd & Weisell, Indianapolis, for defendants-appellees Glen E. Warrum Caito Food Services, Inc.

John F. Prescott, Jr., Ice Miller Donadio & Ryan, Indianapolis, for defendant-appellee Crane Carrier Co., Inc.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Brenda Jackson, individually and as the executrix of the Estate of Charles Jackson, and Kenneth Barber appeal from the Johnson County Circuit Court a judgment against them on their claims which arose out of a motor vehicle collision. We affirm in part, reverse in part, and remand.

FACTS

In 1978, Crane Carrier Company, Inc. (hereinafter Crane) manufactured a low-entry design cab and chassis to be used as a garbage truck. The low-entry design placed the cab of the garbage truck forward of the front wheels and placed the garbage packer box behind the engine which was placed between and behind the driver and passenger seats of the cab. The low-entry design permitted the driver and passenger to enter the cab without the use of an outside step because the floor of the cab was located sixteen inches (16") from ground level. The foot controls, however, were elevated and were located on the cab floor directly behind the front bumper. Thus, when the driver was operating the foot pedals, the driver's feet were approximately eleven inches (11") from the front of the truck. In the fall of 1981, Crane manufactured the cab and chassis involved in the present case. The cab and chassis were equipped later with a garbage packer. In early to mid June of 1982, the City of Marion obtained the unit as a demonstrator on loan from Central Indiana Truck Equipment, Inc. (hereinafter CITE) and Marion Truck Sales (hereinafter MTS), distributors for Heil, Co. and Crane respectively.

Charles Jackson, an employee for the City of Marion's Department of Sanitation, was ordered to drive the garbage truck on penalty of losing his job. Although Jackson complained about the driver's position in the truck and the truck's airhorn, ride, maneuverability and braking quality, he followed his employer's orders. On July 1, 1982, Jackson and Kenneth Barber were en route to the landfill to empty the fully loaded garbage truck. The garbage truck and load weighed 47,140 pounds. Jackson and Barber were proceeding west on State Road 18 east of Interstate 69. At the same time, Glen Warrum, an employee of Caito Food Services, Inc., (hereinafter Caito) was operating a semi-tractor and trailer in the left turn lane of east bound State Road 18. Warrum had his left turn signal on and was attempting to turn onto the entrance ramp for southbound Interstate 69. Warrum observed the garbage truck driven by Jackson on the westbound side of State Road 18. Warrum noticed that the garbage truck's right turn signal was on, that the garbage truck moved from the left to right hand lane, and that the truck appeared to be preparing to turn as it neared the entrance ramp. Based on these observations, Warrum assumed that Jackson was going to turn at the entrance ramp, and since the garbage truck's access to the entrance ramp was located east of the access for eastbound State Road 18 traffic, Warrum decided it would be safe for him to make his left turn onto the entrance ramp. Warrum's assumption that Jackson was going to turn right was mistaken. Jackson had no intention of turning onto the entrance ramp. Rather, Jackson intended to proceed farther west on State Road 18 to the landfill. The garbage truck was equipped with manual cancelling turn signals. Although Jackson did not remember turning on his signal, he apparently forgot to turn his signal off after a previous turn or lane change.

When Warrum began his turn in front of Jackson, Jackson immediately attempted to sound the air horn, pumped the brake pedal, swerved to the right, and attempted but was unable to avoid a collision. At the time of impact the garbage truck was traveling at a speed of approximately 45 m.p.h. The maximum speed for the truck was 52-54 m.p.h. under ideal unloaded conditions. The left front of the garbage truck hit the right front or passenger side of the semi-tractor. The garbage truck then veered to the right and stopped approximately 49 yards west of the point of impact next to the back side of a guardrail. Jackson was not wearing his seat belt, and on impact was thrown forward and then fell to the floor of the cab. At the same time the left front corner of the cab collapsed. The front floor board area buckled and moved into the seat mount. This created a pincer action which crushed Jackson's legs and ankles. Although Barber was wearing his seat belt, he also was forced forward, to the left, and eventually was thrown out of the cab.

On July 23, 1982, Jackson and Barber filed a complaint for damages in the Marion County Superior Court. The original complaint stated a count in negligence against Warrum and Caito, and a products liability count was addressed against Crane, CITE, MTS, and unknown defendants for the manufacturing and distributing of a defectively designed truck and air horn. The complaint also stated counts for breach of warranty and misrepresentation. After these defendants filed answers the case was transferred to the Johnson County Circuit Court. Subsequently, Brenda Jackson was added as a plaintiff. On June 27, 1984, the Heil Co., Grover Products Co., and Wagner-Division of McGraw Edison Company were substituted for unknown defendants. The plaintiffs later dropped their claims for breach of warranty and misrepresentation. Warrum brought in the City of Marion as a third party defendant. Also, Warrum's wife, Dana, was added as a third party plaintiff to Warrum's cross-claim against Jackson. Prior to trial the plaintiffs dismissed their claims against several defendants. Several cross-claims also were dismissed.

On May 8, 1987, plaintiffs moved for a partial summary judgment against Caito and Warrum on the issue of Jackson's contributory negligence for failing to cancel the truck's turn signal when he did not intend to turn. Neither a brief nor affidavits were filed in support of this motion. The trial court denied plaintiffs' motion. On May 11, 1987, the trial commenced. At the close of the evidence more claims were dismissed, including the plaintiffs' claim against Crane which alleged that the defect in the garbage truck proximately caused the collision with the semi-tractor. On June 1, 1987, Crane filed and the trial court granted a motion for judgment on the evidence against plaintiffs' products liability claim which sought damages for enhanced injuries. Thereafter, final arguments were made and the jury was instructed on the remaining claims by and against the plaintiffs, Warrum, Caito, and the City of Marion. On July 2, 1987, the jury returned a verdict against all claimants, and the trial court entered judgment thereon. Plaintiffs appeal the denial of their motion for partial summary judgment, the trial court's grant of Crane's motion for judgment on the evidence, and the judgment entered against them on their negligence claim against Warrum and Caito. ¹

ISSUES

Plaintiffs raise three (3) issues on appeal which we renumber and rephrase, as follows:

1. Whether the trial court properly denied plaintiffs' motion for partial summary judgment on the issue of contributory negligence?

2. Whether the trial court erred by rejecting plaintiffs' tendered instruction No. 2 with regard to Warrum's statutory duty to yield?

3. Whether the trial court properly granted Crane's motion for judgment on the evidence with regard to plaintiffs' products liability enhancement of injury claim?

DISCUSSION AND DECISION

Issue One

Jackson argues that the trial court improperly denied plaintiffs' motion for summary judgment on the issue of contributory negligence. On appeal we use the same standard as the trial court in determining the propriety of the grant or denial of summary judgment. Jones v. Marengo State Bank (1988), Ind.App., 526 N.E.2d 709, 714. Summary judgment is appropriate only when no genuine issue of material fact exists and the proponent is entitled to summary judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C). The movant bears the burden of establishing the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed in favor of the non-movant. Jones, 526 N.E.2d at 714. Summary judgment should not be used as an abbreviated trial and rarely is appropriate in negligence actions. Rediehs Express, Inc. v. Maple (1986), Ind.App., 491 N.E.2d 1006, 1008, cert. denied 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 762; Ember v. B.F.D., Inc. (1986), Ind.App., 490 N.E.2d 764, 768. The issues of negligence, contributory negligence, causation, and reasonable care are most appropriately left for determination by the trier of fact. Ember, 490 N.E.2d at 768; McCall v. Sisson (1975), 166 Ind.App. 403, 406, 336 N.E.2d 660, 662.

In the present case plaintiffs argue that as a matter of law Jackson was not contributorily negligent in proceeding straight after signaling a turn. Plaintiffs rely on the Ohio cases of Bowe v. Jenkins (1982), 7 Ohio App.3d 302, 455 N.E.2d 707, and Timmins v. Russomano (1968), 14 Ohio St.2d 124, 236 N.E.2d 665, which stand for the proposition that a motorist who has a statutory duty to yield may not rely on the turn signal of an approaching vehicle. We disagree with plaintiffs and reject the Ohio cases. A motorist may be found negligent for proceeding straight after signaling a turn....