Koske v. Townsend Engineering Co., 52A02-8609-CV-00338

Docket NºNo. 52A02-8609-CV-00338
Citation526 N.E.2d 985
Case DateAugust 01, 1988
CourtCourt of Appeals of Indiana

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

Frank E. Tolbert, John C. Muehlhausen, Miller, Tolbert, Wildman, Meuhlhausen & Muehlhausen, Logansport, for appellee.



Appellants-plaintiffs Margaret Ann Koske (Margaret) and Jeffrey L. Koske (Jeffrey) [hereinafter collectively referred to as Koskes] appeal the trial court's grant of summary judgment in favor of appellee-defendant Townsend Engineering Co. (Townsend), claiming that the trial court erred, as a matter of law and fact, in determining their product liability action We affirm in part and reverse in part.

was barred by the open and obvious danger rule.


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 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 which 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 sanitization 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 machines 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." Record at 683. 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."

Record at 145 (emphasis supplied).

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. Elgomayel Deposition at 30. 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 infeed, guarded take away, and interlock switches to prevent operation in an improper manner. Record at 143. 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.

Koskes's amended complaint sought recovery from Townsend under a theory of strict liability for a defective design resulting in an unreasonably dangerous product and under a theory of willful or wanton misconduct. Jeffrey alleged damages resulting from the loss of his wife's consortium. The trial court granted summary judgment in favor of Townsend concluding the open and obvious danger rule barred Koskes's claims.


Koskes present four issues, as restated, for our review:

1. Is the open and obvious danger doctrine applicable to claims arising under the Products Liability Act?

2. Is the open and obvious danger doctrine applicable to claims based upon design defects?

3. Does the open and obvious danger doctrine preclude a manufacturer's liability for claims of willful or wanton misconduct asserted by an injured plaintiff?

4. Did a genuine issue of fact exist as to whether there was an open and obvious danger?


ISSUE ONE--Is the open and obvious danger doctrine applicable to claims arising under the Products Liability Act?

PARTIES' CONTENTIONS--Koskes argue that the open and obvious danger doctrine does not apply to claims arising under the Products Liability Act. They assert the doctrine is a common law rule and was not expressly included in the 1978 enactment.

Townsend responds that the common law doctrine has been followed in cases arising under the Products Liability Act and necessarily is applicable to Koskes's claim.

CONCLUSION--The Products Liability Act incorporates the open and obvious danger doctrine and is applicable to Koskes's claim.

The Products Liability Act, hereinafter referred to as the Act, is embodied in Ind.Code 33-1-1.5-1 to -8 (1982) (amended 1983). The crux of this dispute hinges on the following pertinent language of the Act:

"[t]he common law of this state with respect to strict liability in tort is codified and restated as follows :

(a) One who sells any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm thereby caused to the user or consumer or to his property...."

IC 33-1-1.5-3 (emphasis supplied).

The open and obvious danger rule, a creature of common law, precludes the imposition of liability on the manufacturer unless a plaintiff alleges and proves the existence of a latent defect. See generally Annot., 35 A.L.R. 4 TH 861 (1985). While several jurisdictions indicate a trend away from the rigid application of the rule, id., the Indiana courts and legislature apparently consider the rule viable and sound law. See Hubbard Mfg. Co. v. Greeson (1987), Ind., 515 N.E.2d 1071; Note, A Remedy For Indiana's Product Liability Malady, 21 VAL.U.L.REV. 159 (1986). The rule was first recognized in Indiana in the landmark case of Bemis Co. v. Rubush (1981), Ind., 427 N.E.2d 1058, cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61. Bemis was bottomed in common law because the claim arose before the effective date of the Act.

Few cases interpreting the Act have reached the Indiana courts because the Act applies only to causes of action accruing after June 1, 1978. Those cases arising under the Act have recognized the open and obvious danger doctrine. E.g., Miller v. Todd (1988), Ind.App., 518 N.E.2d 1124; Kroger Co. Sav-on Store v. Presnell (1987), Ind.App., 515 N.E.2d 538, trans. denied; Angola State Bank v. Butler Mfg. Co. (1985), Ind.App., 475 N.E.2d 717, trans. denied; see also Ruther v. Robins Eng'g and Constructors (7th Cir.1986), 802 F.2d 276; Estrada v. Schmutz Mfg. Co. (7th Cir.1984), 734 F.2d 1218.


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