Nissen Trampoline Co. v. Terre Haute First Nat. Bank

• Citation: 265 Ind. 457,358 N.E.2d 974
• Decision Date: 12 October 1976
• Docket Number: No. 1076S334,1076S334
• Parties: NISSEN TRAMPOLINE COMPANY, Appellant, v. TERRE HAUTE FIRST NATIONAL BANK, as guardian of the Estate of Bruno Garzolini, Jr., a minor, Appellee, and Herbert A. Mason d/b/a Southlake Beach, Appellee.
• Court: Supreme Court of Indiana

Page 974

358 N.E.2d 974

265 Ind. 457

NISSEN TRAMPOLINE COMPANY, Appellant, v. TERRE HAUTE FIRST NATIONAL BANK, as guardian of the Estate of Bruno Garzolini, Jr., a minor, Appellee and Herbert A. Mason d/b/a Southlake Beach, Appellee.

No. 1076S334.

Supreme Court of Indiana.

Oct. 12, 1976.

Rehearing Denied Feb. 7, 1977.

Geoffrey Segar, Ralph A. Cohen, Indianapolis, for appellant

Robert Springer, William Maher, Terre Haute, for appellee.

ON PETITION TO TRANSFER

DeBRULER, Justice.

Plaintiff, Bruno Garzolini, Jr., brought suit against the Nissen Trampoline Company ¹ (hereinafter Nissen) and Herbert A. Mason d/b/a Southlake Beach to recover damages to him from an injury on an aqua diver manufactured by Nissen and set up for use at Mason's beach. He sued Nissen on the theories of liability for a defective product unreasonably dangerous to the user and liability for misrepresentation of a material fact. He sued Mason on a theory of negligence.

After a jury trial, the jury returned a verdict for both defendants. Plaintiff filed a motion to correct errors, which the trial court granted. The trial judge found that the verdict of the jury in favor of defendant Nissen was against the weight of the evidence, and granted a new trial, pursuant to Ind.R.Tr.P. 59(E)(7). He overruled the motion to correct errors as to plaintiff's claim of negligence. Nissen filed a motion to correct errors from the court's grant of a new trial and also a motion for a change of judge. The trial judge granted Nissen's motion for a change of judge for the new trial. Afterwards, he overruled Nissen's motion to correct errors. Nissen appeals from the trial judge's grant of the motion for a new trial and from his overruling Nissen's motion to correct errors. The Court of Appeals, First District, affirmed the trial judge's grant of a new trial. 332 N.E.2d 820 (1975). Nissen appeals to this Court by a petition to transfer, which we grant.

The facts of the case are undisputed. In June, 1970, Bruno Garzolini, Jr., who was thirteen years old and who had never used a trampoline or an aqua diver before, got in line behind his brother and cousin to use the aqua diver at Mason's Southlake Beach. He knew he was to climb the ladder, stand at the top on the platform, jump down onto the canvas mat avoiding the cables which connected the mat to the metal frame, and go off into the water. He looked down at the mat, waited a second to be sure he was clear, then jumped or slipped or fell off the platform. His left leg went through the cables and his body fell on forward, breaking his leg over the frame of the aqua diver. Due to complications, it was necessary to amputate his leg above the knee.

We address ourselves to the task of reviewing the trial judge's grant of a new trial because the verdict was against the weight of the evidence, enjoined by the common law of the State 'to examine the record to see if:

(a) The trial court abused its judicial discretion;

(b) A flagrant injustice has been done the appellant; or

(c) A very strong case for relief from the trial court's ordering a new trial has been made by the appellant.'

Memorial Hospital of South Bend, Inc. v. Scott (1973), 261 Ind. 27, 300 N.E.2d 50, 54.

And, in dealing with the issue, we afford the trial court's decision a strong presumption of validity and are hesitant to overturn it. Bailey v. Kain (1963), 135 Ind.App. 657, 192 N.E.2d 486. However, with the adoption of Trial Rule 59(E), an order granting a new trial on this basis is required to be supported by special findings and a collation of evidence. With the advent of this new requirement, appellate courts have been called upon to consider a new issue, namely, whether the trial court has complied with the rule. When noncompliance with the rule has been established, differing responses by courts on appeal may be noted. Some courts have considered the evidence in the record or, as stated in the briefs, have made a rough judgment as to whether the trial court was correct. Davis v. Lee (1973), Ind.App., 292 N.E.2d 263; Bredemeyer v. Cooper (1971), 150 Ind.App. 511, 276 N.E.2d 615. In Collins v. Grabler (1970), 147 Ind.App. 584, 263 N.E.2d 201, the appellate court remanded the case to permit the trial judge to supplement his findings. In Lake Mortgage Co. v. Federal National Mortgage Ass'n (1975), Ind., 321 N.E.2d 556, under such circumstances, this Court reversed and ordered reinstatement of the judgment. No single relief has been deemed appropriate in such cases.

In the case before us, after both parties had presented their evidence, the court instructed the jury on two legal theories relevant to this appeal. One of plaintiff's instructions required that he prove by a preponderance of the evidence that 'said trampoline was in a defective condition unreasonably dangerous to users of the trampoline without warning Herbert Mason of the defective condition or the danger caused by such defect.' Defendant Nissen's instruction was that plaintiff was required to prove by a preponderance that 'the aqua diver in question was in a defective condition unreasonably dangerous for use by persons of the same age, experience, knowledge and judgment as was possessed by plaintiff at the time of his accident.' Defendant Nissen's instructions also included one which defined 'defect' or 'defective' as a condition which 'is not contemplated by and will be unreasonably dangerous to the user.' 'Unreasonably dangerous' was defined as 'a condition which is more dangerous than would be contemplated by the ordinary user having the ordinary knowledge of others in the community as to the characteristics and uses of the product. In this case, 'others in the community' refers to other persons of like age, judgment, experience and knowledge as was possessed by plaintiff at the time of his injury.'

Under these instructions, the jury could have found for the plaintiff if it determined that the aqua diver was defective and unreasonably dangerous to the user due to a defect in design or due to the lack of warnings to Mason. The jury, however, returned a verdict in favor of defendant Nissen.

Pursuant to Trial Rule 59(E)(7), the trial judge made special findings and granted a new trial. He concluded that the aqua diver was 'a defective product dangerous to the user without warning and instruction.' His findings included: 'The evidence is undisputed that no warnings or instructions for use accompanied the aqua diver when delivered . . .' and 'The greater weight of the evidence, by expert testimony . . . is that supervision and instruction should accompany the use of such equipment by beginners.' Based on these findings and his conclusion that 'the aqua diver . . . is a defective product dangerous to the user without warning and instruction,' the trial judge granted a new trial. ² It is undisputed that neither Mason nor plaintiff received any cautionary information.

When the trial judge grants a new trial because the verdict does not accord with the evidence, Trial Rule 59(E)(7) requires him to make 'special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. . . . (I)f the decision is found to be against the weight of the evidence, the finding shall relate the supporting and opposing evidence to each issue upon which a new trial is granted.'

In this case, as noted, the trial judge concluded that 'the aqua diver . . . is a defective product dangerous to the user without warning and instruction.' To support his conclusion, he was required to set out the evidence on both sides relating to the elements which plaintiff had to prove under the theory that his injury was proximately caused by a product defective and unreasonably dangerous without warnings. Two principal elements of plaintiff's claim as it was defined by the trial judge were: (1) the aqua diver was defective and unreasonably dangerous to users without warnings; and (2) the unreasonably dangerous absence of warnings was the proximate cause of plaintiff's injury.

In its motion to correct errors, Nissen brought to the attention of the trial court that the requirements of Trial Rule 59(E) had not been fulfilled with regard to these two principal elements:

'3. The Court's Entry of April 17, 1971, violates Trial Rule 59(E) in that it fails to set forth the supporting and opposing evidence with respect to the issue of whether supervision and instruction should accompany the use of an aqua diver or of rebounding equipment by beginners and with respect to the issue of strict liability and proximate cause.'

In its memorandum to that motion, appellant argued that the court's findings were insufficient with respect to the issues of whether the aqua diver was defective and unreasonably dangerous without warnings, and with respect to the absence of such warnings being the proximate cause of plaintiff's accident and injury. After having been afforded this opportunity to reconsider the findings and order in light of the requirements of Trial Rule 59(E), and after having again re-weighed the evidence, the trial judge was unable to supplement the findings so as to set forth any warning or the content of any instruction, the absence of which rendered the aqua diver defective and unreasonably dangerous. Neither was he able, upon reconsideration of the findings and the requirements of the Rule, to set forth the supporting and opposing evidence relevant to a determination of what a proper warning should state, or what instruction a beginner should receive. Such findings and collation of evidence on point, are indispensable to a rational conclusion that the product was defective and unreasonably dangerous to the user without warnings, and to a rational conclusion that such unreasonably dangerous condition was the proximate cause of the accident and injury.

As a result of the absence of findings and recitation of evidence on these issues, the parties, and indeed the...