Perdue Farms, Inc. v. Pryor

• Citation: 683 N.E.2d 239
• Decision Date: 22 July 1997
• Docket Number: No. 63S01-9509-CV-1102,63S01-9509-CV-1102
• Parties: Prod.Liab.Rep. (CCH) P 15,134 PERDUE FARMS, INCORPORATED, Defendant-Appellant, v. Darrell R. PRYOR, Plaintiff-Appellee.
• Court: Supreme Court of Indiana

Page 239

683 N.E.2d 239

Prod.Liab.Rep. (CCH) P 15,134

PERDUE FARMS, INCORPORATED, Defendant-Appellant, v. Darrell R. PRYOR, Plaintiff-Appellee.

No. 63S01-9509-CV-1102.

Supreme Court of Indiana.

July 22, 1997.

Marilyn R. Ratliff, Kahn, Dees, Donovan & Kahn, Evansville, for Defendant-Appellant.

Bruce A. Smith, Washington, for Plaintiff-Appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

Following injuries to his lower back incurred while attempting to repair a jammed feed auger on a farm, plaintiff-appellee Darrell R. Pryor ("Pryor") filed his two-count complaint against defendant-appellant Perdue Farms, Incorporated ("Perdue Farms"), asserting claims based on statutory strict product liability and common law negligence.

Pursuant to an agreement of the parties, a separate bench trial was conducted on the question of liability. Findings of fact were neither requested nor entered. The trial court entered a general judgment in favor of the plaintiff, ¹ whereupon Perdue Farms perfected this interlocutory appeal. The Court of Appeals reversed, Perdue Farms Inc. v. Pryor, 646 N.E.2d 715 (Ind.Ct.App.1995), and we granted transfer.

In its appeal from the judgment, the defendant asserts three claims: (1) the absence of any duty owed by the defendant to the plaintiff precludes a judgment based upon negligence; (2) the undisputed evidence of incurred risk precludes a judgment based upon products liability; and (3) the trial court erred in failing to attribute and assign a percentage of fault to the plaintiff.

The applicable standard of appellate review is clear. In the absence of special findings, we review a trial court decision as a general judgment and, without reweighing evidence or considering witness credibility, affirm if sustainable upon any theory consistent with the evidence. Sizemore v. H & R Farms, Inc., 638 N.E.2d 455, 457 (Ind.Ct.App.1994); Bedford Recycling, Inc. v. U.S. Granules Corp., 634 N.E.2d 1361, 1363 (Ind.Ct.App.1994); Quebe v. Davis, 586 N.E.2d 914, 917 (Ind.Ct.App.1992). In reviewing a general judgment, we must presume that the trial court correctly followed the law. Sizemore; Turpen v. Turpen, 537 N.E.2d 537, 539 (Ind.Ct.App.1989); Baker v. Baker, 488 N.E.2d 361, 364 (Ind.Ct.App.1986). Acknowledging that the judgment must be affirmed if it can be sustained under either the negligence claim or products liability theory, Perdue Farms contends that the undisputed evidence requires reversal. Brief of Appellant at 8, 25. On appellate review, due regard must be given the trial court's opportunity to judge the credibility of witnesses, and the judgment should not be set aside unless clearly erroneous. Ind.Trial Rule 52(A); Ind.Appellate Rule 15(N).

Following is a summary of the principal evidence favorable to the judgment. Pryor was injured while attempting to repair a jammed feed auger on the turkey farm operated by Donald Zwilling. Perdue Farms had contracted to provide Zwilling with day-old turkeys which he would raise until maturity. Perdue Farms supplied all necessary turkey feed, which it manufactured at its Washington, Indiana, feed mill. The auger, a long, screw-like device placed in a feeding tube, was used to distribute food into the barns where the turkeys were kept. Zwilling testified that he purchased his feed auger from Perdue Farms. On September 26, 1988, the auger jammed and Zwilling contacted Perdue Farms, which advised him to contact Mid-States Agricultural Equipment, the distributor for the auger manufacturer, because the auger was still under its one-year warranty. Pryor, who worked for K & M Agricultural Services installing and repairing feed delivery systems, was called out to repair the auger. Pryor went to Zwilling's farm to repair the feeding device and found the auger jammed by a stray bolt from the Perdue Farms feed mill. After removing the bolt, the auger still would not function correctly, so Pryor decided to remove the auger from the feeding tube. Pryor, who had previously removed augers by using a hand winch, decided to remove this one by hand because he did not have the winch at this time and because he had been instructed by his boss to pull it by hand to avoid bending the auger. Pryor grabbed the auger and placed his feet against a part of the equipment to get better leverage. When the auger suddenly jerked loose, he fell back against a concrete pad, injuring his back. Perdue Farms was aware that foreign objects had occasionally been discovered in their feed. In fact, they had replaced auger motors for farmers whose equipment had been damaged by objects that came from their feed. There was also testimony that feed often became hardened after delivery. The Perdue Farms Director of Live Production testified that caked feed could have also come straight from the mill. Pryor testified that he believed hardened feed prevented the auger from turning.

Perdue Farms contends that Pryor is not entitled to recover on his negligence claim because of the absence of any common law duty on the part of Perdue Farms toward Pryor. Perdue Farms asserts that the lack of any relationship between it and Pryor establishes the non-existence of the requisite duty, relying on the absence of privity of contract and the fact that Pryor was injured on premises not owned or operated by Perdue Farms. Citing J.I. Case Co. v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964), Perdue Farms contends that "the lack of privity between Pryor and Perdue would have negated the existence of a duty and doomed any action for injuries suffered by Pryor because of a defect in the Perdue product." Brief of Appellant at 26.

Sandefur does not support the appellant's position but rather expressly rejects the early common law doctrine of privity of contract as a prerequisite for imposition of liability for the negligent manufacture of a product. Sandefur, 245 Ind. at 221-222, 197 N.E.2d at 522-23. Privity of contract is no longer required if a personal injury action for a defective product sounds in tort. Lane v. Barringer, 407 N.E.2d 1173 (Ind.Ct.App.1980).

However, while privity is not a precondition to liability, the relationship of the parties is a proper factor for consideration in determining whether a legal duty exists in a particular case. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). This determination may also consider various other factors, among which are the reasonable foreseeability of harm and public policy concerns. See id. In the present case, viewing the evidence favorable to judgment as we must, the relationship of the parties is that of a repairman (Pryor) fixing damage caused by a turkey feed manufacturer (Perdue Farms). The latter was aware that foreign objects were occasionally discovered in its feed, that the feed was sometimes delivered caked, and that such conditions could render feed auger devices inoperable, thus requiring repair.

We decline to find clearly erroneous the trial court's implicit determination that Perdue Farms owed a duty of reasonable care to workers repairing conditions foreseeably resulting from its manufacture and supply of turkey feed. We therefore reject the contention of Perdue Farms that the absence of duty required the trial court to find against Pryor on the issue of negligence. Furthermore, because the plaintiff's negligence theory can be sustained, it is not necessary to address the defendant's contentions regarding the products liability theory.

The final appellate claim is that the trial court erred in failing to attribute and assign a percentage of fault to the plaintiff under the Comparative Fault Act because of his incurred risk. ² The court's judgment declares "that Defendant is liable to Plaintiff for Plaintiff's damages proximately caused by the injury to Plaintiff on September 26, 1988." Record at 732. It does not imply that the court intended to decide liability apportionment during the damage phase of the trial. We read the judgment to express the court's determination that Perdue Farms is responsible for 100% of the plaintiff's damages. ³ Perdue Farms argues that the undisputed evidence established that Pryor incurred the risk of his injury and, as to Pryor's theory of liability based on negligence, the trial court should have determined the percentage of fault attributable to each party. IND.CODE § 34-4-33-5 (1993). Citing Wilson v. Riddle, 540 N.E.2d 629 (Ind.Ct.App.1989), it urges that the court's failure to assign fault constituted reversible error.

In Riddle, an automobile accident negligence case in which both the plaintiff and defendant were asserting damage claims...