Ragsdale v. K-Mart Corp.

• Decision Date: 29 May 1984
• Docket Number: K-MART,No. 1-783A211,1-783A211
• Citation: 468 N.E.2d 524
• Parties: Kimberly Ann RAGSDALE, Plaintiff-Appellant, v.CORPORATION and Murray Ohio Manufacturing Company, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 524

468 N.E.2d 524

Kimberly Ann RAGSDALE, Plaintiff-Appellant, v. K-MART CORPORATION and Murray Ohio Manufacturing Company Defendants-Appellees.

No. 1-783A211.

Court of Appeals of Indiana First District.

May 29, 1984.

Order Published Sept. 27, 1984.

Charles W. Cooper, Cooper, Cox, Jacobs, Reed & Barlow, William E. Jenner, Darrell M. Auxier, Jenner & Kemper, Madison, for plaintiff-appellant.

Evan E. Steger, Robert G. Zeigler, Ice, Miller, Donadio & Ryan, Indianapolis, Gordon K. Emery, Donovan, Emery & Hewetson, Bedford, for defendants-appellees.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Kimberly Ann Ragsdale (Kimberly) appeals from a jury verdict and judgment for the defendant-appellees K-Mart Corporation (K-Mart) and Murray Ohio Manufacturing Company (Murray Ohio) in her action for damages in a products liability suit.

We affirm.

STATEMENT OF THE FACTS

Nancy Ragsdale, Kimberly's mother, purchased a push-type walk-behind rotary lawn mower from K-Mart in the fall of 1977. The mower had been manufactured by Murray Ohio in March of 1977. On August 4, 1978 Kimberly was operating the lawn mower when the chute became clogged with grass. Kimberly lifted the guard chute and placed her right hand in the chute in order to remove the clogged grass. In so doing, Kimberly's fingers came in contact with the moving blade of the mower, resulting in the amputation of the ends of three fingers on her right hand.

ISSUES

Kimberly presents four issues for our review:

I. Whether the trial court committed reversible error in instructing the jury that Kimberly could be held to have incurred the risk of her injuries if the risk could have been readily discernible by a reasonably prudent person in similar circumstances.

II. Whether the trial court committed reversible error in instructing the jury that K-Mart and Murray Ohio were not required to foresee or protect Kimberly from her own carelessness.

III. Whether the trial court erred in granting judgment on the evidence in favor of K-Mart and Murray Ohio and against Kimberly on the issue of punitive damages.

IV. Whether the trial court erred in granting K-Mart and Murray Ohio's Motion in Limine as to any changes made in mower design by Murray Ohio or other manufacturers, or in pertinent government regulations subsequent to the design and manufacture of the lawn mower involved here.

DISCUSSION AND DECISION

We first note the trial was based solely on the theory of strict liability. Kimberly did not allege the mower malfunctioned in any way; rather, she contends its defective design and/or lack of warnings caused her injuries.

Issue I.

Instruction No. 9 tendered by K-Mart and Murray Ohio, and given by the trial court, reads:

"Defendants have raised the affirmative defense that Kimberly Ragsdale incurred the risk of her injuries.

The Doctrine of Incurred Risk under Indiana law is that one incurs all of the normal risks of a voluntary act--so long as he or she knows and understands them, or if they are readily discernible by a reasonably prudent person in similar circumstances.

Therefore, even if you find by a preponderance of the evidence that Kimberly Ragsdale was injured as a result of a risk arising out of a defective and unreasonably dangerous condition of the lawn mower, if you further find that she knew and understood such risk or that it was a risk which could have been readily discernible by a reasonably prudent person in similar circumstances, then you should find for the defendants."

Kimberly objects to the last portion of this instruction which approves the use of an objective standard sounding of contributory negligence to support an incurred risk defense. Kimberly states the test of whether an injured plaintiff recognized the defect or danger giving rise to the injury is a subjective one; that she must have had actual knowledge of the moving blade before she could be held to have incurred the risk of injuring her fingers. We agree the instruction misstates the law, in that contributory negligence on the part of the plaintiff in failing to discover the danger is not a defense to an action based on strict liability. Perfection Paint & Color Co. v. Konduris, (1970) 147 Ind.App. 106, 258 N.E.2d 681, see IND.CODE 33-1-1.5-4. Cf. Gilbert v. Stone City Construction Company, (1976) 171 Ind.App. 418, 357 N.E.2d 738; Cornette v. Searjeant Metal Products, Inc., (1970) 147 Ind.App. 46, 258 N.E.2d 652, which applied the pre-code law of products liability.

This does not warrant reversal of the judgment in favor of K-Mart and Murray Ohio because examination of the record as a whole shows the jury could not have been misled; their verdict could not have been different under a proper instruction on incurred risk. See Pardue v. Seven-Up Bottling Co. of Indiana, (1980) Ind.App., 407 N.E.2d 1154. Following Indiana case law in the area of products liability, the danger posed by the moving blade of the lawn mower is an open and obvious one. Bryant-Poff, Inc. v. Hahn, (1982) Ind.App. 454 N.E.2d 1223; Coffman v. Austgen's Electric, Inc., (1982) Ind.App., 437 N.E.2d 1003. Whether a defect or danger is open and obvious is an objective test, based upon what the user should have known. American Optical Company v. Weidenhamer, (1983) Ind., 457 N.E.2d 181. The fact that the mower blade is not clearly exposed to the user of the mower does not make it a hidden, and thus latent, danger. The ordinary user of a lawn mower is aware of the presence of a blade under the hood of the mower which moves to cut the grass. Thus, Kimberly should have recognized the danger.

Following the precedent set by our supreme court in Bemis Company v. Rubush, (1981) Ind., 427 N.E.2d 1058, we hold that such blade poses an open and obvious danger as a matter of law to one placing a hand into the running mower, particularly after the user has lifted the guard chute from its protective location. Therefore, neither Murray Ohio nor K-Mart had a duty to warn Kimberly of the danger of inserting her hand near the blade, and Kimberly cannot recover on the theory that inadequate warnings of such danger were provided. Bemis, supra.

Issue II.

Kimberly complains of Instruction No. 7 tendered by K-Mart and Murray Ohio. This instruction, which was given by the trial court, reads:

"The defendants, K-Mart Corporation and Murray Ohio Manufacturing Company, had no legal duty to provide the lawn mower in question with devices or warnings against dangers or the potentiality of dangers which Kimberly Ragsdale knew or should have known, or which were generally known and recognized by users of lawn mowers because they were obvious; nor were the defendants required to foresee or protect Kimberly Ragsdale from her own carelessness."

Kimberly asserts the last part which denies any duty upon K-Mart and Murray Ohio to protect her from her own carelessness again amounts to an instruction on contributory negligence. The instruction addresses the open and obvious rule, and was not erroneously given. See Bemis, supra, where the supreme court voiced its approval of the substance of the identical Instruction No. 5 tendered by that defendant. We do think the instruction would be improved by appending a clarifying phrase to the end of the instruction, such as "in failing to recognize the open and obvious danger...