Montgomery Ward & Co. v. Gregg

• Decision Date: 31 May 1990
• Docket Number: No. 41A01-8903-CV-63,41A01-8903-CV-63
• Citation: 554 N.E.2d 1145
• Court: Indiana Appellate Court
• Parties: Prod.Liab.Rep. (CCH) P 12,477 MONTGOMERY WARD & COMPANY and Firestone Tire & Rubber Company, Appellants (Defendants Below), v. Robert GREGG, Appellee (Plaintiff Below).

Page 1145

554 N.E.2d 1145

Prod.Liab.Rep. (CCH) P 12,477

MONTGOMERY WARD & COMPANY and Firestone Tire & Rubber Company, Appellants (Defendants Below), v. Robert GREGG, Appellee (Plaintiff Below).

No. 41A01-8903-CV-63.

Court of Appeals of Indiana First District.

May 31, 1990.

Rehearing Denied Aug. 17, 1990.

Joe N. Van Valer, Van Valer & Williams, Greenwood, Richard D. Wagner and James G. McIntire, Krieg Devault Alexander & Capehart, Indianapolis, for appellants.

Peter L. Obremskey, Parr, Richey, Obremskey & Morton, Lebanon, and Tom G. Jones, Jones, Loveall & Johnson, Franklin, for appellee.

ROBERTSON, Judge.

This case comes to us following a jury verdict in the sum of one million dollars plus costs for the plaintiff Robert Gregg who sustained injury on July 24, 1979 when the tire he was changing exploded. Defendant-appellants Firestone Tire & Rubber Co. and Montgomery Ward & Co. (collectively referred to as Wards), manufactured and sold the 16"' diameter truck tire which is the subject of this litigation. We affirm.

Gregg proceeded against Wards solely upon the legal theory of strict product liability alleging that the design of the tire rendered it unreasonably dangerous when mismatched with and inflated upon a 16.5"' rim. Gregg also alleged the tire was unreasonably dangerous because Wards failed to adequately warn that the tire could be mounted safely only on a 16"' rim.

The defendants jointly appeal the verdict and judgment on multiple grounds but the errors alleged fall principly into three categories: error in the denial of Wards' motion for judgment on the evidence; error in the admission and exclusion of evidence; and, error in the giving and refusing of instructions.

I. Motion for Judgment on the Evidence

In determining whether the trial court erred in denying Wards' motion for judgment on the evidence, we examine the evidence and all reasonable inferences most favorable to Gregg from a qualitative as well as quantitative perspective. A judgment on the evidence is proper only when there is a total absence of evidence in favor of the plaintiff upon the issues, the evidence is without conflict and susceptible of but one inference and that inference is in favor of the defendant, or the inference intended cannot logically be drawn from the proffered evidence, either because the inference cannot be drawn without undue speculation or because the witness is lacking in credibility. American Optical Co. v. Weidenhamer (1983), Ind., 457 N.E.2d 181, 183-184.

A. Open and Obvious Rule

The Indiana Supreme Court's recent decision in Koske v. Townsend Engineering Co. (1990), Ind., 551 N.E.2d 437 eliminates the need for discussion of Wards' first two arguments, that Gregg is barred from recovery by reason of the open and obvious rule as set forth in Bemis Co., Inc v. Rubush (1981), Ind., 427 N.E.2d 1058, cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 and its progeny, and that Wards had no duty to warn Gregg of the dangers arising as a consequence of mismatching as a matter of law, ¹ as well as Gregg's argument on tendered instructions 10 and 11. Gregg's theory of strict liability, premised upon an incident occurring on July 24, 1979, is governed by the 1978 Product Liability Act. That legislation, which preempted the field of product strict liability in tort, excluded the open and obvious rule from its codification and restatement of the common law. Koske, 551 N.E.2d at 442. Hence, the open and obvious danger rule no longer applies to strict liability claims under the Indiana Product Liability Act. Id. The obviousness of the danger is still however an appropriate consideration in assessing a manufacturer's expectations regarding product use and in evaluating the actual state of mind of the product user when the affirmative defense of incurred risk is raised. Id. at 441.

B. Incurred Risk

Wards contends that its motion for judgment on the evidence should have been granted because certain undisputed facts establish Gregg incurred the risk of injury as a matter of law. Wards relies upon both the statutory defense, IND. CODE 33-1-1.5-4(b)(1) and Indiana's common law doctrine of incurred risk.

Again, the 1978 Product Liability Act expressly delineated the allowable affirmative defenses to a complaint sounding in strict liability. I.C. 33-1-1.5-4(b)(1), which incorporates a subjective standard and provides

(b) [w]ith respect to any product liability action based on strict liability in tort:

(1) [i]t is a defense that the user or consumer discovered the defect and was aware of the danger and nevertheless proceeded unreasonably to make use of the product and was injured by it ...,

codified the common law doctrine of incurred risk. See, Koske, 551 N.E.2d at 442, n. 3; Corbin v. Coleco Indus., Inc. (7th Cir.1984), 748 F.2d 411 and cf., Moore v. Fed. Pacific Elec. Co. (1980), Ind.App., 402 N.E.2d 1291, 1293.

The jury found Wards' tire was unreasonably dangerous either because, in the absence of an appropriate warning, it could easily be mismatched with a 16.5"" rim, or because, if so mismatched, its bead bundle would break when subjected to less than normal operating pressure. That Gregg knew the tire was not sealing properly on the rim, knew how to use an air gauge, knew the normal operating pressure for a passenger tire and knew the pounds per square inch (psi) ordinarily necessary to seat a passenger tire does not establish as a matter of law that Gregg had actual knowledge and appreciated the danger of explosion at less than the normal operating pressure associated with mounting a 16"' truck tire on a 16.5"' rim. It is clear from the record that a 16.5"' tire could not be discerned from a 16"' tire when the tires are standing side by side. Neither Gregg nor Barnes discovered the mismatch and neither had reason to suspect the tire's failure to seal was due to a mismatched rim as both had shared the experience, common among tire mechanics, that tires with properly matched rims would refuse to seal for a variety of reasons.

C. Misuse

Wards argues that Gregg and Barnes', a garage employee, misuse of the tire by placing it on the wrong size rim is a complete defense to any strict liability it may have because it did not manufacture or design its 16"' tire for use on a 16.5"' rim and misuse of the tire in this manner could not be reasonably foreseen. ² The evidence favorable to the jury's verdict established however that, to the extent it can be said Gregg and Barnes' unintentional use of the 16"' tire was a misuse, such a use was reasonably foreseeable by Wards.

Industry documents evince 14"'/14.5"' nonvehicular tire mismatch explosions as early as 1971. Indeed, Firestone knew of bead breakage problems in its 16"" tire, caused by forcing the smaller 5 degree bead onto a 16.5"' rim with a 15 degree angle, in 1955, when it applied for a patent on the tire. Firestone manufactured the private brand Wards tire which injured Gregg in the last month of 1974. By that time it had already begun molding a warning on its 16"' tire and attaching stickers to the tread advising users to mount the tire only on a 16"' rim.

D. Status as a User or Consumer

Wards offers a three-pronged standing argument. First, it compares this case to Wingett v. Teledyne Indus., Inc. (1985), Ind., 479 N.E.2d 51 and argues that Gregg's "use" of the tire was not reasonably foreseeable and therefore, Gregg was not within the class of persons whom Wards might anticipate to be subject to harm.

Both Gregg and Wingett were working on the product when it caused injury but that is where the analogy stops. Gregg was not destroying the tire or removing it from use. Indeed, he was not undertaking a risk foreign to proper and continued use of the tire at all. Surely, given the durability of tires generally and the nature of their use, Wards could reasonably expect its tire would be "changed" multiple times.

Wards next contends that Gregg was not an "expected user" within the meaning of the 1983 Act because he was not properly trained. Assuming the 1983 Act applies and the concept of expected user is somehow different from "user or consumer," the evidence offered by Gregg established that tire mechanics typically are not trained. There are no professional standards and no standardized training procedures. Tire changing is a menial job, performed routinely by persons without knowledge of the differences in tire sizes. It is a skill passed from one mechanic to the next. Wards' assertion therefore that its expected user is an individual properly trained in the service of tires is not borne out by the record.

Finally, Wards contends that Gregg, an officious intermeddler, was not a user or consumer within the meaning of the 1978 Act. Included within the definition of "user or consumer" is "any individual who uses or consumes the product." I.C. 33-1-1.5-2.

Prior to the 1978 codification of product liability common law, Indiana courts adopted Sec. 402A of the Restatement (Second) of Torts (1965) (hereafter 402A). See e.g., Cornette v. Searjeant Metal Prod., Inc. (1970), 147 Ind.App. 46, 258 N.E.2d 652. Since the 1978 Act does not explicitly or implicitly purport to constrict the class of persons entitled to maintain a strict product liability action at common law, State Farm Fire & Casualty Co. v. Structo Div., King Seeley Thermos Co. (1989), Ind., 540 N.E.2d 597, 598, "user" includes those who are passively enjoying the benefit of the product as well as those who are utilizing it for the purpose of doing work on it, as in the case of an employee of the ultimate buyer who is making repairs. ³ Restatement, id., comment 1. Cf. also, Phelps v. Sherwood Medical Indus. (7th Cir., 1987), 836 F.2d 296; Ruther v. Robins Engineering & Constructors (7th Cir., 1986), 802 F.2d 276.

The gratuitous nature of Gregg's actions does not provide a principled basis for distinguishing Gregg from other users. Gregg was mounting the tire on a rim when the tire exploded....