Lilge v. Russell's Trailer Repair, Inc.

Decision Date31 January 1991
Docket NumberNo. 30A04-8908-CV-333,30A04-8908-CV-333
PartiesProd.Liab.Rep. (CCH) P 12,757 Harry A. LILGE and Betty Lilge, Appellants and Cross-Appellees (Plaintiffs Below), v. RUSSELL'S TRAILER REPAIR, INC., Appellee and Cross-Appellant (Defendant Below).
CourtIndiana Appellate Court

Page 1146

565 N.E.2d 1146
Prod.Liab.Rep. (CCH) P 12,757
Harry A. LILGE and Betty Lilge, Appellants and
Cross-Appellees (Plaintiffs Below),
RUSSELL'S TRAILER REPAIR, INC., Appellee and Cross-Appellant
(Defendant Below).
No. 30A04-8908-CV-333.
Court of Appeals of Indiana,
Fourth District.
Jan. 31, 1991.

Page 1147

Douglas G. Wagner, Brazill & Bennett, Indianapolis, for appellants and cross-appellees.

David T. Kasper, Eric A. Riegner, Locke Reynolds Boyd & Weisell, Indianapolis, for appellee and cross-appellant.

CHEZEM, Judge.

Case Summary

Plaintiffs/Appellants/Cross-Appellees, Harry and Betty Lilge, appeal from the trial court's entry of summary judgment in favor of Defendant/Appellee/Cross-Appellant, Russell's Trailer Repair, Inc. We reverse.


Appellants present five (5) issues for our review, which we consolidate and restate as follows:

Page 1148

I. Whether there are genuine issues of material fact which precluded the entry of summary judgment for Russell's.

II. Whether the summary judgment could have been based on the "open and obvious rule."

III. Whether Lilge incurred the risk of his injuries as a matter of law.

In addition, Russell's presents one (1) issue by Cross-Appeal, which has to do with whether the trial court erred when it denied Russell's Motion to Amend Answer.


On March 25, 1983, Harry Lilge was a "delivery driver" with Capital Consolidated, Inc. In that capacity, he drove a truck and made deliveries in and around Indianapolis. The truck in question had a front cab area as well as a rear cargo box where goods were stored for transport. The rear box was accessible by a rear overhead door which is similar to a typical garage door.

The procedure that Lilge followed when making a delivery was as follows: he would open the overhead door, climb into the rear box, stack the goods to be delivered near the edge of the doorway, step onto the truck's back ledge, face the interior of the box, grasp a rope or strap tied to the overhead door handle, and then exit the box by pulling down on the overhead door as he stepped down onto the ICC bumper (which was a piece of U-shaped angle iron approximately three feet long that was attached approximately 35 inches below the level of the truck box floor). Lilge would place one foot on the ICC bumper and then the other on the ground. Lilge followed this procedure for almost two years (with approximately 30 deliveries per day).

Lilge fell while making a delivery on March 23, 1983. He was stepping down from the back ledge to the bumper "when the rope or something broke." His foot never reached the bumper, and his next recollection was being on the ground with severe pain in his right ankle (which was fractured).

Prior to Lilge's fall, the truck was refurbished by Russell's Trailer Repair, Inc., in April of 1981. Capital Consolidated had hired Russell's to remove the rear cargo box from one truck chassis and to install it on the truck in question. Russell's also installed the ICC bumper on that truck as part of the job.

Other facts will be added as needed.

Discussion and Decision

When reviewing a summary judgment, the standard on review is the same as it was for the trial court: whether there was a genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. Farm Bureau Co-op. v. Deseret Title Holding Corp. (1987), Ind.App., 513 N.E.2d 193, 195, reh. denied. We stand in the position of the trial court and consider the same matters. Moll v. South Central Solar Systems, Inc. (1981), Ind.App., 419 N.E.2d 154, 161. All evidence must be construed in favor of the nonmovant, and all doubts as to the existence of a material issue must be resolved against the movant. Even if facts are not in dispute, summary judgment is inappropriate if conflicting inferences arise. ITT Commercial Finance Corp. v. Union Bank & Trust Co. (1988), Ind.App., 528 N.E.2d 1149, 1152. A fact is material for summary judgment purposes if it helps to prove or disprove an essential element of the plaintiff's cause of action. Delk v. Board of Commissioners of Delaware County (1987), Ind.App., 503 N.E.2d 436, 438.


The first argument we address has to do with whether there are genuine issues as to material facts. Based on our review of the record, we conclude that such issues exist in this case. Their presence should have precluded the entry of summary judgment.

Lilge claims that the rear exit of the truck was defectively designed and the cause of his fall. His expert testified in part as follows:

I think two main things were the most likely cause for him to fall off the truck. One I think was that the truck was poorly

Page 1149

designed, manufactured and marketed. And I think the second one is that the potential hazard inherent in the poorly designed truck wasn't obvious to the user. And if those two things wouldn't have been present, it would be most unlikely that the plaintiff in question would have fallen from the truck.

With respect to the design, the expert explained that there was no "solid stationary handle" for Lilge to use when entering or descending from the rear of the truck. In addition, the distance between the floor of the truck and the ICC bumper, and between that bumper and the ground, was too great and appeared to violate pertinent sections of the Code of Federal Regulations. The expert also testified that "it would have been rather helpful ... to have a warning sign [back] there, indicating a potential danger."

On the other hand, Russell's claims that "the sole proximate cause of [Lilge's] injuries was his own negligent failure to place his foot on the ICC bumper." For this reason, there are no issues of material fact which precluded summary judgment. We disagree. The question of what caused the fall (construing the facts and inferences in favor of Lilge) is an issue of fact which should have precluded summary judgment for Russell's.

We also note that there is an issue of material fact as to whether the reconditioning job on the truck was a "product" as that term is defined and used in the Product Liability Act. As stated in Ind.Code 33-1-1.5-2:

'Product' means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Even though this definition was added by amendment after the fall in this case occurred (approximately one month later), the law is well-established that we may consider subsequent amendments where the original statute was ambiguous as to the question at hand. As noted by the Supreme Court of Indiana in Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223, 1226, "[i]n cases of ambiguity, we may resort to subsequent amendments in order to glean the Legislature's initial intent." In addition, "the subsequent amendment of a statute is indicative of the Legislature's intent at the initial enactment of that statute." United States Fidelity & Guaranty Co. v. DeFluiter (1983), Ind.App., 456 N.E.2d 429, 432. In the present case, the original Act was ambiguous because it did not define the term "product." Therefore, it was not clear what transactions came within the purview of the Act. That was rectified when the Legislature indicated their original intent by adding the amendment on or about April 21, 1983.

Russell's argues the reconditioning work was predominantly the sale of a service because it merely transferred the rear cargo box from one truck chassis to another, and performed other minor repair work on the new...

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