Moore v. Federal Pac. Elec. Co., 3-378A67

• Docket Nº: No. 3-378A67
• Citation: 402 N.E.2d 1291
• Case Date: April 15, 1980
• Court: Court of Appeals of Indiana

Page 1291

402 N.E.2d 1291 Herman R. MOORE and Sharron Moore, Appellants,
v.
FEDERAL PACIFIC ELECTRIC COMPANY, a New Jersey Corporation;
Universal Electric Company, Inc.; and Hilton Inn
of West Lafayette, Appellees. No. 3-378A67. Court of Appeals of Indiana, Fourth District. April 15, 1980.
Rehearing Denied May 9, 1980.

Page 1292

Robert O. Williams, Covington, Alfred V. Ringer, Williamsport, for appellants.

Russell H. Hart, Lafayette, James E. McCabe, Williamsport, for Federal Pac. Elec. and Universal Elec.

Stephen R. Pennell, Stuart, Branigin, Ricks & Schilling, for Federal Pac. Elec.

Richard L. Russell, Kokomo, for Hilton Inn.

MILLER, Presiding Judge.

Plaintiffs-Appellants, Herman R. Moore and his wife, Sharron, appeal from the entry of a summary judgment in favor of Defendants-Appellees Federal Pacific Electric Company, Universal Electric Company, Inc. and Hilton Inn of West Lafayette (Defendants). Moore, an electrician, brought suit alleging he was injured at the Hilton construction site, while attempting to tighten a bolt holding an insulation plate located on an electrical switchgear manufactured by Pacific and distributed by Universal. His complaint is essentially based on theories of breach of express and implied warranties, negligence, and strict liability in tort. ¹ The trial court granted the Defendants summary judgment based upon a finding that Moore was contributorily negligent

Page 1293

and had incurred the risk as a matter of law. We reverse.

The trial judge based his decision on the fact that Moore, an experienced electrician, as a matter of law "was contributorily negligent and because of his knowledge and expertise in dealing with the type product herein he voluntarily incurred the risks in this case when opportunity was available for him to reduce or prevent any risk to himself". It appears from the record the judgment of the trial court was based primarily on Moore's deposition wherein he acknowledged that he knew the equipment was energized at 480 volts and the short circuit that injured him would not have occurred had he shut off the gear, used a blanket, used an insulated shank screwdriver, or taped the screwdriver. Defendants claim in their briefs that summary judgment was proper because Moore, by placing his screwdriver inside the switchgear while he knew it was energized at 480 volts and the possibility existed that he might be injured, failed to exercise due care and thus was contributorily negligent and incurred the risk both as a matter of law. Moore claims the summary judgment was incorrect because, although he knew the equipment was energized, (1) his screwdriver would not have come in contact with the energized portion if the switch was not defectively designed, ² (2) prudent electricians customarily work on the exterior of properly designed switchgears while they are energized and (3) he had never worked on a bolt-on type switchgear prior to the occasion of the accident.

A summary judgment should not be granted unless the moving party demonstrates that there is no genuine issue of any material fact. Randolph v. Wolff, (1978) Ind.App., 374 N.E.2d 533. Inferences, evidence and pleadings must be viewed in the light most favorable to the opponent of the motion. Randolph v. Wolff, supra; Wozniczka v. McKean, (1969) 144 Ind.App. 471, 247 N.E.2d 215. Moreover a summary judgment is also improper in cases where the facts are undisputed, but the inferences to be drawn from them are disputed, Randolph v. Wolff; supra; Tapp v. Haskins, (1974) 160 Ind.App. 117, 310 N.E.2d 288.

Incurred Risk

Incurred Risk is generally a question of fact for the jury Kroger Co. v. Haun, (1978) Ind.App., 379 N.E.2d 1004; Petroski v. Northern Indiana Public Service Co., (1976) Ind.App., 354 N.E.2d 736. The plaintiff's voluntary incurrence of a known risk defeats his negligence claim, Kroger Co. v. Haun, supra.

The defense of incurred risk under Restatement (Second) of Torts § 402A (1962) (strict liability) was defined by this Ccourt in Bemis Co. v. Rubush, (1980) Ind.App., 401 N.E.2d 48, 61, when it quoted comment n to 402A as follows:

If the user . . . discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

Here, incurred risk as a defense to all of Moore's theories of recovery ³ could have been found as a matter of law only if the evidence was without conflict and the sole inference that could have been drawn therefrom was that Moore had actual knowledge of the danger or defect caused by the Defendants and that he understood and appreciated the risk. See Meadowlark Farms, Inc. v....