Kroger Co. Sav-On Store v. Presnell

• Decision Date: 17 November 1987
• Docket Number: SAV-ON,No. 4-885A232,4-885A232
• Citation: 515 N.E.2d 538
• Parties: Prod.Liab.Rep. (CCH) P 11,614 The KROGER COMPANYSTORE, Appellant, v. Jacqueline PRESNELL, Appellee.
• Court: Indiana Appellate Court

Page 538

515 N.E.2d 538

Prod.Liab.Rep. (CCH) P 11,614

The KROGER COMPANY SAV-ON STORE, Appellant, v. Jacqueline PRESNELL, Appellee.

No. 4-885A232.

Court of Appeals of Indiana Fourth District.

Nov. 17, 1987.

Rehearing Denied Jan. 5, 1988.

Jerdie D. Lewis, Lewis and Lewis, Terre Haute, for appellant.

Harry A. Wilson, Jr., Wilson & Kehoe, Indianapolis, for appellee.

MILLER, Presiding Judge.

Jacqueline Presnell purchased an outdoor chaise lounge chair from the Kroger Sav-On Store in Terre Haute, Indiana. She took it home to her cement patio, set it up, and attempted to sit in the chair when it collapsed. Presnell fell to the patio floor and she sustained neck, spine, back and shoulder injuries which constitute a 30% permanent partial disability to her body as a whole. Presnell brought a strict products liability suit against Kroger, and after jury trial, was awarded $485,000.00 in damages. Kroger now appeals claiming multiple errors.

We affirm.

FACTS

On May 5, 1980 Jacqueline Presnell, 42 years old, purchased an outdoor lounge chair from The Kroger Company Sav-On Store located at Plaza North, Terre Haute, Indiana. No instructions for use were included with the chair. Presnell took the lounge chair home and later that evening placed the chair on the cement patio of her home. The chaise lounge chair is constructed so that when not in use, the supports for the user's back and legs fold upon the seat, and the chair legs fold underneath the seat. The leg and back supports are constructed so that either may be used to support the user's legs or back depending upon the height to which the supports are elevated and latched by means of ratchet mechanisms. In her first attempt to use the chair, Presnell placed the chair on its side, unfolded it, opened the legs until resistance was met in a vertical position, turned the chair upright, and, while she was in the process of sitting down, the chair collapsed. Presnell fell approximately nine inches and struck the cement floor of the patio.

Presnell experienced excruciating pain, crawled into her home and remained on the floor for two hours. The next day Presnell went to work at Columbia Record, where she was employed full-time as a mail sorter, and reported her injury. She was sent to the factory dispensary, then to the doctor, and finally to the hospital where x-rays and a myelogram were taken. Presnell had herniated discs and a laminectomy was later performed on both sides of her spine. Continued medical problems involving Presnell's neck, spine, back, and shoulder occurred over the next three years. Presnell sustained a fifteen percent permanent partial disability to her body as a whole from the neck condition and another fifteen percent permanent partial disability to her body as a whole from the back injury. In addition, Presnell developed epilepsy and experienced numerous emotional problems resulting in several hospitalizations and a suicide attempt.

Presnell filed a products liability suit ¹ against Kroger on July 18, 1980 claiming the lounge chair she purchased was defective and unreasonably dangerous because of Kroger's failure to give any instructions or warnings specifically about how to open the lounge chair to ensure that the locking devices were properly engaged before use and that without proper instructions or warnings the danger of the chair's collapse was not apparent to the uninformed user of the chair. Presnell also alleged she suffered permanent personal injuries and damages as a result of the chair's collapse, and that Kroger's acts were the proximate cause of the lounge chair's collapse.

Kroger's answer claimed Presnell misused the product by failing to put the legs of the chair in the proper position before sitting down on it. Kroger also alleged the danger of the chair's collapse and the manner and method of opening the chair, were open and obvious and therefore Kroger was under no duty to warn or instruct Presnell how to open the chair. In addition, Kroger contended that the accident occurred on May 5, 1980 and that the statutory provision of the Products Liability Act providing a product is defective for a failure to warn was an amendatory provision effective in 1983, after Presnell's accident occurred.

Presnell's jury trial was scheduled for May 14, 1985. Before trial on that morning, Presnell moved to strike the words "of negligence" from the title of her contentions and to proceed to trial solely under the "strict liability" section of the Indiana statute. Presnell's motion was granted over Kroger's objections that her theory had changed from negligence to strict liability and that her motion was not timely. The trial court denied Kroger's motion for continuance. After a one week trial, the jury returned a verdict in favor of Presnell and against Kroger in the amount of $485,000.00. On May 23, 1985, the trial court entered judgment on the verdict.

ISSUES

Kroger raises the following issues for our consideration on appeal:

I. Whether the trial court erred in permitting Presnell to strike the words "of negligence" from the title of her contentions on the morning of trial and in denying Kroger a continuance because Presnell changed her theory from negligence to strict liability.

II. Whether the trial court erred in overruling Kroger's objections to questions permitting Presnell's expert design engineer to give his opinion that Kroger should have included, as part of the lounge chair's design, instructions on how to open the chair for use.

III. Whether the trial court erred in denying Kroger's Motion for Judgment on the Evidence at either the close of Presnell's evidence or the close of all the evidence.

IV. Whether the trial court erred in giving the jury Presnell's tendered instructions numbers 1, 2, 5, and 8 because the language of these instructions were similar to the language of the 1983 amendments to the Indiana Products Liability Act which was not in effect on the date of Presnell's accident.

V. Whether the jury's verdict is supported by sufficient evidence or is excessive.

VI. Whether the trial court erred in refusing to grant Kroger a new trial.

DECISION

I. Change of Theory from Negligence to Strict Liability

Kroger argues the trial court erred in permitting Presnell, immediately before trial, to strike the words "of negligence" from the title of her contentions because this changed Presnell's theory from negligence to strict liability. Kroger claims it was prejudiced because it prepared its defense on the theory of negligence and the trial court's action denied Kroger the defense of contributory negligence. Presnell responds that the theory of strict liability was tried by consent and the record clearly reveals Kroger had known for four years before trial that Presnell was relying on both Section 402A of the Restatement of Torts, Second, and negligence theories. Presnell asserts the removal of the negligence issue lightened the burden of Kroger's defense rather than increasing it, so Kroger could not have been prejudiced by the removal of negligence as an alternate theory of recovery. We agree.

The record reveals the following facts relevant to the question of whether Kroger was adequately informed that Presnell was bringing her cause of action against Kroger on two alternate theories, negligence and strict liability: (1) Presnell alleged in her original complaint, filed on July 18, 1980 that she "removed the lawn chair from its package, opened it up and sat down on the chair, and the chair gave way because of faulty design or faulty manufacture, causing plaintiff to fall backward, causing her injury". Record p. 27; (2) at a pre pre-trial conference, Presnell contended in writing that her "action is brought under Restatement of the Law of Torts, Section 402A, and that her injuries were caused by negligent design ... and for failure to give adequate and sufficient instructions on setting the chair up ... or in the alternative, giving or supplying a warning of the danger inherent in the failure to properly engage and secure the support legs in a locked position," Record p. 47; (3) at the pre pre-trial conference, both Presnell's and Kroger's counsel agreed that the contested issues were as follows, "the applicability of Sec. 402A Restatement of the Law of Torts; whether such liability applies; whether there was any faulty design of the involved chair; whether defendant was guilty of any alleged negligence, and contributory negligence on the part of the plaintiff," Record p. 45; and, finally, (4) Presnell filed her amended contentions on July 2, 1984 in which she alleged the lounge chair was in a defective condition unreasonably dangerous because of defective design, failure to instruct, and failure to warn pursuant to IND. CODE Sec. 33-1-1.5-1 et seq., where the Restatement of the Law of Torts, Section 402(A) is codified. Record p. 129-131.

The record indicates that Kroger should have been well aware, long before trial, that Presnell's suit was based on two theories of liability, both strict liability and negligence. Presnell's amendment of her contentions on the morning of trial merely removed the words "of negligence" from the title which read "Plaintiff's Specifications of Negligence". The wording of the contentions was not changed. Given these facts, we fail to see how Kroger could have been prejudiced by the removal of negligence as an alternate theory of liability. Kroger failed to show the trial court in what way it has been denied substantial rights. We find no error in the trial court's granting of Presnell's motion to amend or in the trial court's denial of Kroger's motion for continuance.

With respect to Kroger's claim that the trial court improperly denied its motion for continuance, we first note Indiana Rules of Procedure, Trial Rule 53.5 provides in part:

"Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by...