Sills v. Massey-Ferguson, Inc.

• Citation: 296 F. Supp. 776
• Decision Date: 24 February 1969
• Docket Number: Civ. No. 2009.
• Parties: Paul I. SILLS, Plaintiff, v. MASSEY-FERGUSON, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

296 F. Supp. 776

Paul I. SILLS, Plaintiff, v. MASSEY-FERGUSON, INC., Defendant.

Civ. No. 2009.

United States District Court N. D. Indiana, Fort Wayne Division.

February 24, 1969.

Archie Lapin, Muncie, Ind., J. Philip Burt, Fort Wayne, Ind., for plaintiff.

Robert C. Riddell, Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., Gilmore S. Haynie, Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., for defendant.

ORDER

ESCHBACH, District Judge.

This matter is before the court upon defendant's motion to dismiss the plaintiff's amended complaint for failure to state a claim upon which relief can be granted. The motion will be denied.

This civil action was commenced in the Blackford Circuit Court, Blackford County, Indiana, on July 9, 1968 by the filing of a complaint by the plaintiff, Paul I. Sills. Pursuant to 28 U.S.C. § 1441 (1964), defendant, Massey-Ferguson, Inc., removed the cause to this court by a petition filed on July 30, 1968. Plaintiff is a citizen of Indiana and defendant is a Maryland corporation with its principal place of business outside Indiana. The amount in controversy exceeds ten thousand dollars, exclusive of interest and costs, and this court has jurisdiction. 28 U.S.C. § 1332 (1964).

Pursuant to the court's order of October 22, 1968 granting plaintiff leave to file an amended complaint, an amended complaint was filed on October 22. On October 29, 1968, defendant filed the motion to dismiss which is the subject of this order.

This is a products liability action. According to the amended complaint, defendant is in the business of designing, manufacturing, and selling lawn mowers. The mower in question is a rotarytype mower that is towed behind a tractor. One William King purchased the mower, which was designed and manufactured by the defendant, and was using it on the premises of an automobile dealer in Montpelier, Indiana. On July 22, 1966, while plaintiff was visiting the dealer for the purpose of purchasing a new car, the mower allegedly passed over a bolt that had been lying on the ground, picked it up, and threw it approximately one hundred fifty feet through the air so that it struck plaintiff in the jaw. The theories upon which plaintiff seeks to recover damages are negligence, breach of implied warranty, and strict liability as defined in Section 402A of the Restatement. Restatement (Second) of Torts § 402A (1965).

The proper correlation between the various theories asserted by the defendant in support of the motion to dismiss and the particular theory of liability to which they are properly addressed is discerned only with difficulty.

In Count II of his amended complaint, sounding in negligence, plaintiff alleges that defendant knew or should have known that the risk of injury to the public from objects being thrown by the mower was a foreseeable risk; that defendant was negligent in failing to design a mower with openings in the blade housing that would prevent objects from being hurled forth, in failing to provide guards on the mower, in designing a mower with five and six-foot openings in the housing, and in failing to warn the general public to stay a safe distance from the mower. It is further alleged that defendant's negligence was a proximate cause of injury to the plaintiff.

Thus, plaintiff has alleged that defendant owed him a duty, that defendant breached that duty, and that the breach was a proximate cause of injury to him. In essence, defendant contends that the injury arose from the use of the mower and not from any negligence on the part of defendant or defect in the product, that plaintiff incurred the risk because the danger was obvious, and that defendant owed plaintiff no duty to warn. In the posture of a motion to dismiss, these contentions are without merit.

Under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this court is committed to the law of Indiana in this diversity action. Reasonable foreseeability is the fundamental test of proximate cause, and this rule is not changed by the fact of an alleged intervening act or agency. Elder v. Fisher, 247 Ind. 598, 217 N.E. 2d 847 (1966); New York Central R.R. Co. v. Cavinder, Ind.App., 211 N.E.2d 502 (1965); Phares v. Carr, 122 Ind. App. 597, 106 N.E.2d 242 (1952); Buddenberg v. Morgan, 110 Ind.App. 609, 38 N.E.2d 287 (1941); McIntosh v. Pennsylvania R. Co., 111 Ind.App. 550, 38 N. E.2d 263 (1941). Unless reasonable minds could not differ, the determination is one for the trier of the facts. Elder v. Fisher, 247 Ind. 598, 217 N.E. 2d 847 (1966); Phares v. Carr, 122 Ind.App. 597, 106 N.E.2d 242 (1952). It cannot be said as a matter of law that defendant's conduct was not a proximate cause of plaintiff's alleged injuries.

The incurred risk defense, submitted by way of a motion to dismiss, similarly raises factual questions that are for the jury unless only one inference from the facts is possible upon the face of the complaint. Stallings v. Dick, Ind.App. 210 N.E.2d 82 (1965); Thompson v. Pickle, 136 Ind.App. 139, 191 N.E.2d 53 (1963). At this posture of the proceedings, it cannot be said from an examination of the allegations in the amended complaint that plaintiff incurred the risk of injury.

Whether or not defendant should have warned plaintiff of the dangers, if any, is also a question for the jury. In a negligence action, provided that the plaintiff is one to whom the defendant owes a duty, that duty is to exercise such care as a person of reasonable or ordinary prudence would exercise in view of all the conditions and circumstances of the particular case. E.g., Northern Indiana Power Co. v. West, 218 Ind. 321, 32 N.E.2d 713 (1941). The question of duty is one of law while the question of the exercise of due care is one of fact. Id. Thus, it is for the jury to determine whether or not a warning was required in order for defendant to discharge his duty of exercising due care. The motion to dismiss Count II is denied.

The material allegations of Counts I and III are identical. Plaintiff alleges that defendant was a seller of lawn mowers, that defendant sold the mower in question, that the mower was sold in a defective condition, and that the defect was a proximate cause of his injuries. Count I is cast in the language of a breach of an implied warranty of fitness and merchantability while Count III is cast in strict liability language. Restatement (Second) of Torts § 402A (1965). The alleged defects are those referred to in Count II as specifications of negligence.

As this court suggested in Greeno v. Clark Equip. Co., 237 F.Supp. 427 (N. D.Ind.1965), the difference between implied warranty as it has been developed in products liability law and strict liability as defined in the Restatement is more semantic than real. Compare Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960) with Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). Under both theories, the conditions of liability are a "defective condition," which exists when the product leaves the seller's control, which proximately causes the plaintiff's injury. Greeno v. Clark Equip. Co., 237 F.Supp. 427, 429 (N.D.Ind.1965). While this court is unwilling to hold that there is never a significant difference between the two theories, it is plain that the outcome of the vast majority of cases is not affected by this fine legal distinction. For this reason, Counts I and III will be considered together.

Defendant's grounds for dismissal are (1) that plaintiff was a mere bystander who may not recover because he is not in privity with the defendant (Impliedly, defendant questions plaintiff's standing as a "user or consumer" under Section 402A of the Restatement.); (2) that the alleged injuries arose from the use of the product rather than from a defect in the product which existed when it passed from the defendant's hands; (3) that the hazards, if any, were sufficiently obvious that plaintiff incurred the risk; (4) that the product was not defective; and (5) that no warning was required because the hazards, if any, were sufficiently obvious to the plaintiff.

In deciding the questions raised by defendant's motion, the court has been forced to proceed as to some of these questions without the guidance of the Indiana courts since there are no reported Indiana decisions on some of these matters.

Therefore, the court must look to all available data and adopt the rule which it believes the Indiana Supreme Court would choose. * * * Indiana would unquestionably adopt the best reasoned and most intrinsically fair position, and presumably a determination by this court on such a basis would find approval with the Indiana Supreme Court. Greeno v. Clark Equip. Co., 237 F.Supp. 427, 430 (N. D.Ind.1965).

The direction of the law in Indiana is clear. In Hart v. Goodyear Tire & Rubber Co., 214 F.Supp. 817 (N.D.Ind. 1963), it was noted that Indiana has never committed itself to the doctrine that privity is essential to a recovery for breach of implied warranty. A year later, the teaching of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696 (1916), was embraced by Indiana. J. I. Case Co. v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964). Then came Greeno, which determined that Indiana would follow Section 402A of the Restatement. Restatement (Second) of Torts § 402A (1965). More than four years have elapsed since Greeno was announced and there is no Indiana decision rejecting or embracing that holding. The United States Court of Appeals for the Seventh Circuit, however, has affirmed a verdict for the plaintiff, submitted to the jury under a theory of strict liability, apparently as defined in Section 402A. Ilnicki v. Montgomery Ward Co., 371 F.2d 195 (7th Cir.1966) (Indiana law). See also Dagley v. Armstrong Rubber Co., 344 F.2d 245 (7th Cir.1965) (Indiana law).

The first ground urged for dismissal raises the question of the scope of a manufacturer's...