Kroger Co. v. Haun

• Decision Date: 31 August 1978
• Docket Number: No. 2-576A189,2-576A189
• Citation: 177 Ind.App. 403,379 N.E.2d 1004
• Parties: The KROGER COMPANY, Appellant (Defendant below), v. David HAUN, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1004

379 N.E.2d 1004

177 Ind.App. 403

The KROGER COMPANY, Appellant (Defendant below), v. David HAUN, Appellee (Plaintiff below).

No. 2-576A189.

Court of Appeals of Indiana, Second District.

Aug. 31, 1978.

William M. Osborn and Thomas J. McKeon, Osborn & Hiner, Indianapolis, for appellant

Rex P. Killian, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for appellee.

SULLIVAN, Judge.

David Haun (Haun) recovered a judgment of $6,000 for personal injuries sustained at Kroger's warehouse. The following issues are presented for review: ¹

(1) Was Haun contributorily negligent or did he incur the risk of his injuries as a matter of law?

(2) Did the trial court err in refusing to submit Kroger's instructions and in giving certain instructions of its own to the jury?

(3) Did the trial court err in permitting Haun to estimate loss of income relative to the issue of damages?

On March 5, 1974, Haun arrived at the Kroger warehouse to deliver a truckload of boxed groceries. Haun unloaded by hand, in the early morning hours, that portion of the shipment consisting of dry freight. He then moved his truck to the other end of the loading dock to finish the delivery of the cold storage goods. Haun discovered, after removing the cold storage items, that a few boxes of dry goods remained. A dispute then arose over whether Haun would again be required to move his truck to finish the delivery.

A Kroger foreman decided in the afternoon that Haun could unload the remaining boxes without moving his truck, but he would be required to stack them in a limited area on the dock. In accordance with Kroger's warehouse procedure, Haun transferred the boxes by means of several fork-lift devices known as pallet jacks which were supplied by Kroger for delivery-dock use. Circumstances were such that Haun was required to drive the jack up a ramp inclined six to eight inches onto his truck. The fork-arms of the jack would then be placed under the wooden pallets constructed approximately six inches high and forty-two inches wide. Stacked upon each pallet Haun would back the loaded fork-lift out of the truck onto the ramp and eventually to the dock, whereupon he would apply the brake, turn, and proceed forward to the limited area designated by Kroger.

were boxes of groceries weighing in total from 600 to 1000 pounds.

Several jacks were made available by Kroger for delivery use. The jacks differed in that some had foot brakes while others had hand brakes. The hand-brake models employed a T-bar device which, when pulled downward, would engage the jack and, when released, would spring up automatically to apply the brake for a complete and sudden stop.

Haun had attempted to use four different jacks. Two of the first three he tried had weak batteries and could not pull the load. Haun was on the fourth jack when, while reversing from the ramp onto the dock, he backed into the pallets he had previously stacked. He testified that the jack was a hand-brake model. When he hit the pallets, he released the T-bar and pushed upward, but the brake failed to stop the jack and, as a result, his foot was crushed under the pallets behind him. Haun testified that the jack had previously "faltered" and had been "messing up", but that it had never failed to come to a complete stop.

I. CONTRIBUTORY NEGLIGENCE AND INCURRED RISK

Kroger asserted at trial that Haun's conduct constituted contributory negligence and incurrence of the risk. Upon the verdict for plaintiff, the jury necessarily concluded that Kroger failed to carry its burden of proving one of these defenses. To this extent, Kroger is therefore appealing a negative judgment and may only succeed if the judgment is contrary to law. Souerdike v. State (1952) 231 Ind. 204, 108 N.E.2d 136; Baker v. Fisher (3d Dist. 1972) 153 Ind.App. 581, 288 N.E.2d 263.

Incurred risk and contributory negligence are generally questions of fact for the jury, and the verdict should not be disturbed if evidence is conflicting or if reasonable minds could draw different inferences from the evidence. Petroski v. Northern Indiana Pub. Service Co. (3d Dist. 1976) Ind.App., 354 N.E.2d 736.

It is undisputed, and Kroger does not contest, that it owed Haun, an invitee, a duty to use due care to maintain the premises and instrumentalities of the loading dock in reasonably safe condition. See Hobby Shops, Inc. v. Drudy (3d Dist. 1974) Ind.App., 317 N.E.2d 473. Haun had a right to assume that Kroger would carry forth this duty unless and until he had reasonable notice to the contrary. See Rouch v. Bisig (1970) 147 Ind.App. 142, 258 N.E.2d 883.

Kroger initially contends that the collective malfunctioning of the jacks prior to the accident gave notice to Haun that Kroger had failed to maintain the machines properly. The jury could have found that the malfunctioning gave notice of the dangerous condition, but the jury did not do so. We cannot say as a matter of law that, under the circumstances herein presented, Haun acted unreasonably to the extent that he was " 'ignoring a condition . . . openly fraught with peril to the person.' (citation omitted)". Phillips v. Croy (3d Dist. 1977) Ind.App., 363 N.E.2d 1283, 1285; See also Hi-Speed Auto Wash, Inc. v. Simeri (3d Dist. 1976) Ind.App., 346 N.E.2d 607.

In a somewhat related presentation, Kroger contends that, notwithstanding its own arguable negligence, it should not be held liable since Haun was contributorily negligent and incurred the risk of his injuries.

Contributory negligence has been defined as " 'the failure of a person to exercise for his own safety that degree of care and caution which an ordinary reasonable and prudent person in a similar situation would exercise.' (citation omitted)". Memorial Hospital of South Bend, Inc. v. Scott (1973) 261 Ind. 27, 300 N.E.2d 50, 57; See also Petroski v. Northern Indiana Pub. Service Co., supra, 354 N.E.2d 736.

The doctrine of incurred risk ² has been explained as follows:

"The doctrine of incurred risk is based upon the proposition that one incurs all the ordinary and usual risks of an act upon which he voluntarily enters, so long as those risks are known and understood by him, or could be readily discernible by a reasonable and prudent man under like or similar circumstances."

Stallings v. Dick (1965) 139 Ind.App. 118, 210 N.E.2d 82, 88.

The relationship and application of the two doctrines have been sources of confusion and frustration among commentators and particularly among and between the courts of this state. It has been held repeatedly that in Indiana the two doctrines are separate and distinct. See Indiana Natural Gas and Oil Co. v. O'Brien (1903) 160 Ind. 266, 65 N.E. 918, on rehearing 66 N.E. 742; Fruehauf Trailer Division v. Thornton (3d Dist. 1977) Ind.App., 366 N.E.2d 21; Stallings v. Dick, supra, 210 N.E.2d 82. Yet other decisions have stated that the doctrine of incurred risk is merely a "species of contributory negligence." Rouch v. Bisig, supra, 258 N.E.2d at 888; See also Cleveland, C., C. & St. L. Ry. Co. v. Lynn (1911) 177 Ind. 311, 95 N.E. 577; Emhardt v. Perry Stadium, Inc. (1943) 113 Ind.App. 197, 46 N.E.2d 704.

We deem it appropriate and necessary here to attempt to reconcile the incongruity of these decisions and to hopefully clarify and develop a consistency in the use and application of the defenses.

Various dissimilarities have been put forth by authorities to distinguish the two doctrines. A few include:

(1) Incurred risk demands a subjective analysis with inquiry into the particular actor's knowledge and voluntary acceptance of the risk. Contributory negligence contemplates an objective standard for the determination whether a reasonable man would have so acted under similar circumstances. See Fruehauf Trailer Division v. Thornton, supra, 366 N.E.2d at 29; Morris v. Cleveland Hockey Club, Inc. (1952) 157 Ohio St. 225, 105 N.E.2d 419.

(2) Incurred risk is concerned with the perception and voluntariness of a risk and is blind as to the reasonableness of risk acceptance. Contributory negligence is concerned with whether the acceptance of the risk was reasonable and justified in light of the possible benefit versus the degree of danger. See Halepeska v. Callihan Interests, Inc. (Tex.1963) 371 S.W.2d 368.

(3) Incurred risk involves a mental state of "venturousness" while contributory negligence, under some definitions, describes conduct which is "careless". See Pittsburgh, C., C. & St. L. Ry. Co. v. Hoffman (1914) 57 Ind.App. 431, 107 N.E. 315; Weber v. Eaton (1947) 82 U.S.App.D.C. 66, 160 F.2d 577.

(4) While incurred risk, in one sense of the concept, has been described as negating a duty and therefore precluding negligence, contributory negligence always presupposes a duty and breach thereof, but serves as an affirmative defense to prevent recovery by plaintiff. See Gordon v. Maryland State Fair, Inc. (1938) 174 Md. 466, 199 A. 519.

The confusion in distinguishing the two defenses under Indiana law has been due in large part to two factors. First, there has been an infusion of the objective "reasonable man" test into the incurred risk concept. Secondly, courts have erroneously applied the requirement of knowledge and appreciation of a peril for the finding of contributory negligence.

The Indiana definition of incurred risk includes the proposition that knowledge of a risk may be imputed where such a risk would have been "readily discernible by a reasonable and prudent man under like or similar circumstances." Stallings v. Dick, supra, 210 N.E.2d at 88; See also Sullivan v. Baylor (1st Dist. 1975) Ind.App., 325 N.E.2d In Williams v. Brown Manufacturing Co. (1970) 45 Ill.2d 418, 261 N.E.2d 305, 312, the court stated:

475; Meadowlark Farms, Inc. v. Warken (1st Dist. 1978) Ind.App., 376 N.E.2d 122 (assumption of risk). We are of the belief that to hold that one may voluntarily incur a risk of which he had no actual knowledge, yet was required to know in the exercise of ordinary care, is a...