Koske v. Townsend Engineering Co., 52S02-9003-CV-172

Citation551 N.E.2d 437
Decision Date06 March 1990
Docket NumberNo. 52S02-9003-CV-172,52S02-9003-CV-172
Parties, Prod.Liab.Rep. (CCH) P 12,406 Margaret Ann KOSKE and Jeffrey L. Koske, Appellants (Plaintiffs Below), v. TOWNSEND ENGINEERING CO., Appellee (Defendant Below).
CourtSupreme Court of Indiana

Edgar W. Bayliff, Bayliff Harrigan Cord & Maugans, P.C., Kokomo, Kelly Leeman, Kelly Leeman & Associates, Logansport, for appellants.

Frank E. Tolbert, R. Tod Groff, Miller, Tolbert, Muehlhausen & Muehlhausen, P.C., Logansport, for appellee.

DICKSON, Justice.

With this case we consider the applicability of the open and obvious danger rule to claims arising under the Indiana Product Liability Act. In this action for personal injuries sustained while using machinery at her employment, Margaret Ann Koske and her husband seek damages from Townsend Engineering Co., the product manufacturer, and assert two theories of liability: a) strict liability in tort for sale of a machine in defective condition unreasonably dangerous pursuant to the 1978 Indiana Product Liability Act; and b) willful or wanton misconduct of the manufacturer for failing to issue post-sale warnings or to recall the machine in reckless disregard of known probable consequences.

Finding that "the danger of which plaintiff complains and by which plaintiff alleges to have been injured constituted an open and obvious danger, which is a complete defense to plaintiff's claim," the trial court granted the defendant's motion for summary judgment. The Court of Appeals affirmed the summary judgment as to the product strict liability theory, but reversed as to the claim of willful or wanton misconduct. Koske v. Townsend Eng'g Co. (1988), Ind.App., 526 N.E.2d 985. Both parties now seek transfer.

The following summary of facts is adopted from the opinion of the Court of Appeals.

The undisputed facts indicate that Margaret injured her hand while operating a meat-slicing machine that was designed and manufactured by Townsend. The injury occurred at Wilson Foods Company (Wilson) a meat-packing plant located in Logansport, Indiana.

The skinner/slasher machine simultaneously cuts the skin from jowls while slashing the tops of jowls to reveal hidden abscesses. The machine has seventeen circular slashing blades across the top and one long skinning blade on the bottom. It is approximately waist high in height and two feet long with a conveyor belt extending from the front. The conveyor belt moves a jowl into the rotating blades. A toothed roll aids in removing skin from a jowl after the skin has been severed by the skinning blade. The toothed roll pulls the severed skin downward from the blade. The slashing blades have notches that engage the jowl and force the jowl through the blades and through the machine. A cover is mounted over the top of the blades, but an operator of the machine is able to see the blades and the toothed roll. The machine has no safety guards at the point of operation, or elsewhere.

Margaret, employed by Wilson since 1973, was primarily responsible for trimming the remaining hair, skin, and abscesses off of pork jowls immediately after the jowls had gone through the skinner/slasher machine. Consequently, her job station was immediately adjacent to the machine. Approximately two times a week, Margaret assisted on the skinner/slasher machine because it regularly jammed and became a bottleneck in the production line.

On the afternoon of December 28, 1979, the skinner/slasher machine struck an abscess requiring a shutdown for approximately ten minutes to sanitize the machine. The shutdown created a backlog in the processing of jowls, so Margaret left her position as trimmer to help alleviate the bottleneck at the skinner/slasher machine. The jowls being processed had been hanging in the freezer longer because it was toward the end of the work day. As a result, the stiffened jowls would not automatically feed into the machine, and some external force was required to push the jowls into the blades. The sanitation of the machine made the conveyor belt wet and slick. Margaret, aware that her hands should not be close to the machine because of the sharpness of the blades, used one jowl to push another jowl into the blades of the machine. This was a precaution she regularly exercised when operating the skinner/slasher machine. Unfortunately, on this day, the bottom of the jowl that she was using to push the other jowl into the machine was wet from the conveyor belt, slid over the top of the jowl closest to the blade, and her hand became caught in the machine. Margaret received severe injuries to her hand.

Townsend advertised that the skinner/slasher machine had "improved operator safety" because the operator's hands were kept a minimum of eighteen inches from the machine's blades. However, Townsend was aware, prior to Margaret's injury, that the machine, under some circumstances, was not capable of operating automatically and continuously. For example, Townsend knew meat packers would freeze meat and that the frozen meat required manually pushing the meat into the blades.

Prior to Margaret's unfortunate injuries, several other operators at various meat-packing companies had been seriously injured by the same or a similar skinner/slasher machine model. Townsend was aware of these injuries. Ten months before Margaret's injury, in a letter to a meat-packing company, Townsend acknowledged the "potential safety hazard" of the 814 model and urged that "the 814 [be] removed as soon as possible." Less than a month after Margaret's injury, Townsend recalled the 814 model and offered a refund of the entire purchase price. The pertinent parts of that letter are:

"Recently we became aware of several instances where disregard of the obvious danger of putting a hand in the machine has caused, or is rumored to have caused, serious injuries, including the loss of partial use of a hand and arm to some employees in meat packing plants.

In view of these facts, Townsend Engineering Company is now recalling every 814 model in use.

You should discuss this letter with your company safety director and your insurance carriers. This situation is serious enough to warrant immediate action." [emphasis supplied by Court of Appeals]

Engineering experts agreed that the 814 model was inadequately guarded. One engineering expert asserted that the "potential elements of danger of the operator using that machine were not seriously considered" when the machine was designed. A barrier guard would have been a very inexpensive safety measure. Other feasible designs with enhanced safety were proposed by these expert witnesses. Townsend replaced the 814 model with model 914. The redesigned skinner/slasher machine was described by a Townsend sales engineer as a unit "designed with operator safety in mind" including a guarded in-feed, guarded take-away, and interlock switches to prevent operation in an improper manner. Additionally the 914 model displayed a warning sign which cautioned users not to expose hands or clothing to the toothed roll or skinning blade, and not to reach inside the guards.

1. Applicability of the Open and Obvious Danger Rule to Strict Liability Claims Under the Product Liability Act

The Indiana open and obvious danger rule was articulated in Bemis Co. v. Rubush (1981), Ind., 427 N.E.2d 1058, 1061, cert. denied (1982), 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61, as follows:

The rule may be stated generally 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.

This statement resulted from the court's discussion of the "unreasonably dangerous" element of Sec. 402A of the Restatement (Second) of Torts (1965).

Hence, to be actionable under Sec. 402A, the injury-producing product must be unreasonably dangerous, that is, dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. The harm is not actionable unless the product is "unreasonably dangerous."

427 N.E.2d at 1061. The intended thrust of Bemis was to emphasize that Sec. 402A liability should not be imposed for dangers so obvious that manufacturers could reasonably expect anticipated users to perceive and act to avoid injury. This is an entirely proper consideration, as reflected in comments g and i to Sec. 402A:

g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.... [emphasis added]

i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.... The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics....

The concepts "defective condition" and "unreasonably dangerous" focus the relevant inquiry upon the product and its manufacturer or seller, as assessed by an objective standard, regarding expected use. Thus, in determining whether a product was sold in a defective condition unreasonably dangerous to a user, considerations must necessarily include the reasonably anticipated knowledge, perception, appreciation, circumstances, and behavior of expected users. However, as formulated in Bemis and applied...

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