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

• Decision Date: 20 August 1975
• Docket Number: No. 1-774A105,1-774A105
• Citation: 332 N.E.2d 820
• Parties: NISSEN TRAMPOLINE COMPANY, Appellant (Defendant below), v. TERRE HAUTE FIRST NATIONAL BANK, as guardian of the Estate of Bruno Garzolini, Jr., a minor, Appellee (Plaintiff below), and Herbert A. Mason, d/b/a Southlake Beach, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 820

332 N.E.2d 820

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

No. 1-774A105.

Court of Appeals of Indiana, First District.

Aug. 20, 1975.

Rehearing Denied Sept. 22, 1975. ^*

Geoffrey Segar, Ralph A. Cohen, Ice, Miller, Donadio & Ryan, Indianapolis, for appellant.

Hansford C. Mann, William J. Maher, Terre Haute, Robert E. Springer, Sullivan, for appellee.

LYBROOK, Judge.

Defendant-appellant Nissen Trampoline Company appeals from a granting of a new trial following a jury verdict in its favor in a products liability action initiated by plaintiff-appellee Terre Haute First National Bank as guardian of the estate of Bruno Garzolini, Jr., a minor.

The record reveals that defendant Nissen was the manufacturer of a product know as "Aqua Diver", a circular trampoline with a metal frame thirty-six (36) inches in diameter and a bed of approximately sixteen (16) inches in diameter. The bed is attached to the frame by a network of elastic cables. This circular structure is then attached to a larger metal frame which has a platform approximately twenty-two (22) inches above the bed of the trampoline. The platform is accessible by a ladder attached at the rear. The entire structure, Aqua Diver, was designed and marketed by defendant for use as a diving apparatus at a swimming pool and/or lake. According to literature distributed by defendant, Aqua Diver was "twice as much fun as an old-fashioned diving board at half the cost."

Herbert A. Mason d/b/a Southlake Beach, purchased an Aqua Diver from Nissen and installed it upon a wooden platform at the beach. On June 28, 1970, while attempting to use the Aqua Diver for his first time, plaintiff Bruno Garzolini, Jr., a thirteen (13) year old boy, was injured. Although unable to recall all the specifics of the occurrence, Garzolini testified that he intended to jump from the platform of the Aqua Diver onto the bed of the trampoline and thereby catapult himself into the water. However, plaintiff landed with only one foot on the bed of the trampoline. His other foot either missed or slipped off the bed and passed through the open space between the bed and circular frame, becoming entangled in the elastic cables. As a result, plaintiff fell from the structure and became suspended by his left leg which remained ensnarled in the cables. Ultimately, plaintiff's injuries required amputation of the leg above the knee. Evidence at trial established that in tests conducted prior to marketing the Aqua Diver, defendant had determined that it was possible for a user's foot to pass through the elastic cables which connected the bed to the frame. Nevertheless, Nissen marketed the product without accompanying it with any warnings or instructions for use.

Plaintiff initiated this action, naming both Nissen and Mason as co-defendants, maintaining that Nissen was liable under the doctrine of strict liability, and that Mason was liable for negligence in failing to furnish supervision and instruction for use of the Aqua Diver. Trial by jury resulted in verdicts in favor of both defendants. Thereafter, pursuant to plaintiff's motion to correct errors and Ind.Rules of Procedure, Trial Rule 59(E), the trial judge granted a new trial as to Nissen only, thereby prompting this appeal. The trial judge supported his ruling with the following findings:

"1. The evidence is undisputed that defendant, Nissen Corporation, was on the 6th day of June, 1959, and for several years thereafter, the manufacturer and seller of an aquatic diving device called an 'Aqua Diver'.

2. The evidence is undisputed that on said date Herbert A. Mason purchased an aqua diver from Nissen Corporation.

3. The evidence is undisputed that no warnings or instructions for use accompanied the aqua diver when delivered later that summer.

4. The evidence is undisputed that the aqua diver purchased by Mason was used each summer at his recreation establishment known as Southlake Beach until June 28, 1970, without significant injury to any user.

5. The evidence is undisputed that the aqua diver was in the same condition on June 28, 1970 as it was when purchased from Nissen.

6. The evidence is undisputed that on June 28, 1970, as the plaintiff, Bruno Garzolini, Jr., used the aqua diver for the first time, his left leg became entangled in the elastic cables, was broken at the knee and later had to be amputated above the knee.

7. The evidence is undisputed that prior to selling the aqua diver, the defendant, Nissen Corporation, had determined by tests that it was possible for a user's foot to slip between the elastic cables of the aqua diver.

8. The greater weight of the evidence, by expert testimony of persons knowledgeable in rebounding equipment, is that supervision and instruction should accompany the use of such equipment by beginners.

From the foregoing findings of fact the Court concludes that the aqua diver, manufactured and sold by the defendant, Nissen Corporation, is a defective product dangerous to the user without warning and instruction; that on the 28th day of June, 1970, the aqua diver sold by Nissen to Herbert A. Mason was used by the plaintiff, Bruno Garzolini, Jr., while in substantially the same condition in which it was sold and as a result the plaintiff is entitled to recover for the injuries sustained by use of the product.

It is therefore ordered that the plaintiff's Motion to Correct Errors be sustained as to plaintiff's claim under the theory of strict liability, the jury's verdict being against the weight of the evidence and a new trial is ordered herein."

Nissen's appeal presents the following issues for review:

(1) Whether the trial court's finding that the Aqua Diver was defective was supported by substantial evidence.

(2) Whether the defective condition of the Aqua Diver caused plaintiff's injuries.

(3) Whether the weight of the evidence established that no instruction and supervision were necessary for use of the Aqua Diver.

(4) Whether the granting of a new trial violated TR. 59(E).

(5) Whether the application of the 13th juror rule was unconstitutional in the case at bar.

(6) Whether the trial court's entry must be modified.

Before addressing Nissen's arguments on the merits, it is necessary that our standard of review be ascertained.

Pursuant to Ind.Rules of Procedure, Trial Rule 59(E), the trial judge granted plaintiff a new trial as to Nissen on the issue of strict liability. The findings of fact accompanying the ruling reveal that the new trial was ordered upon the trial judge's determination that the jury verdict on the issue of strict liability was against the weight of the evidence. In such circumstances, there is a strong presumption in favor of the trial court's action. Bailey v. Kain (1963), 135 Ind.App. 657, 192 N.E.2d 486. This presumption was recently recognized by our Supreme Court in Lake Mortgage Company v. Federal National Mortgage Association (1975), Ind., 321 N.E.2d 556:

"The presumption announced in Bailey v. Kain (1963), 135 Ind.App. 657, 192 N.E.2d 486, as modified by TR. 59(E)(7) and adopted by this Court in Memorial Hospital of South Bend, Inc. v. Scott (1973), Ind., 300 N.E.2d 50 arises only when the trial court, acting as a 13th juror, sets aside a jury verdict as against a preponderance of the evidence and supports such decision with special findings of fact as required by TR. 59(E)(7)."

321 N.E.2d at 559.

TR. 59(E), in pertinent part provides:

"(7) in reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a nonadvisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a nonadvisory jury is clearly erroneous as contrary to or not supported by the evidence,

* * * * * *

"When a new trial is granted because the verdict, findings or judgment do not accord with the evidence, the court shall make special findings of fact upon each material issue or element of the claim or defense upon which a new trial is granted. Such finding shall indicate whether the decision is against the weight of the evidence or whether it is clearly erroneous as contrary to or not supported by the evidence; if 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 Memorial Hospital of South Bend, Inc. v. Scott (1973), Ind., 300 N.E.2d 50, our Supreme Court discussed at length the respective duties of the trial and appellate courts in implementing TR. 59(E)(7):

"On consideration of the granting of a new trial, the trial judge has an affirmative duty to weigh conflicting evidence. Novak, Admx. v. Chi. & Calumet Dist. Transit Co. (1956), 235 Ind. 489, 135 N.E.2d 1. The trial judge sits as a 'thirteenth juror' and must determine whether in the minds of reasonable men a contrary verdict should have been reached. State Farm Life Ins. Co. v. Spidel (1964), 246 Ind. 458, 202 N.E.2d 886. An appellate court cannot assume the responsibility of weighing conflicting evidence in reviewing the trial judge's action on a motion for a new trial (here a motion to correct error). State v. Bowling (1970), 253 Ind. 634, 256 N.E.2d 392. The sole duty of an appellate court is 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. Bailey v. Kain, supra. We are committed to the logic expressed nearly one hundred years ago in the landmark case of Christy v. Holmes (1877), 57 Ind. 314, which logic still stands inescapable today:

" 'It should always be kept in mind,...