Sipes v. Osmose Wood Preserving Co. of America, Inc., 11S01-8912-CV-00903

CourtSupreme Court of Indiana
Citation546 N.E.2d 1223
Docket NumberNo. 11S01-8912-CV-00903,11S01-8912-CV-00903
PartiesProd.Liab.Rep. (CCH) P 12,322 James R. SIPES, Appellant (Plaintiff Below), v. OSMOSE WOOD PRESERVING COMPANY OF AMERICA, INC., Appellee (Defendant Below).
Decision Date07 December 1989

David S. McCrea, McCrea & McCrea, Bloomington, for appellant.

James D. Witchger, William T. Graden, Rocap Witchger & Threlkeld, Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant James R. Sipes contends that the Court of Appeals did not properly apply the appropriate standard of review for a Trial Rule 50 motion when it affirmed the trial court's grant of judgment on the evidence on Sipes's claim for punitive damages. We agree.

Sipes filed a tort action against Osmose Wood Preserving Company of America, Inc., after he became extremely ill subsequent to sawing wood treated with a chemical compound of chromium, copper and arsenic (CCA) manufactured by Osmose. Sipes based his suit on negligence, strict liability, and intentional failure to warn. He sought both compensatory and punitive damages.

At the close of Sipes' case in chief, Osmose moved for judgment on the evidence pursuant to Trial Rule 50, Indiana Rules of Trial Procedure. The trial court granted the motion on the punitive damages claim. The Court of Appeals affirmed, with Chief Judge Ratliff dissenting. Sipes v. Osmose Wood Preserving Co., No. 11A01-8711-CV-274 (Ind.App., Aug. 16, 1988) [528 N.E.2d 121 (table) ]. We grant transfer.

This Court described the appellate standard for reviewing grants of Trial Rule 50 motions in Jones v. Gleim (1984), Ind., 468 N.E.2d 205:

It is axiomatic that in reviewing the trial court's ruling on a motion for judgment on the evidence the reviewing court must consider only the evidence and reasonable inferences most favorable to the nonmoving party. Judgment on the evidence in favor of the defendant is proper when there is an absence of evidence or reasonable inferences in favor of the plaintiff upon an issue in question. The evidence must support without conflict only one inference which is in favor of defendant. If there is any probative evidence or reasonable inference to be drawn from the evidence or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper.

Id. at 206-07 (cites omitted, emphasis added). The Court of Appeals cited this standard. The court went on, however, to compare the evidence supporting the punitive damages claim with the evidence in opposition; it concluded that in light of Osmose's responses the evidence presented by Sipes did not rise to the clear and convincing level necessary to show "the requisite intent on the part of Osmose to support the punitive damage question going to the jury." Sipes, slip op. at 8. 1 By weighing all the evidence relevant to punitive damages, the Court of Appeals applied the Jones test incorrectly. We now reapply the test, considering only the evidence most favorable to Sipes and all reasonable inferences therefrom.

Sipes identifies a variety of evidence in the record that he believes proves that Osmose consciously and intentionally engaged in misconduct, knowing that such misconduct would probably result in injury to users like himself.

First, Sipes states that Osmose consciously and intentionally misled customers by distributing an advertising brochure which described CCA treated wood as having "virtually the same characteristics as untreated wood" and did not warn that the wood contained arsenic. There is evidence in the record to support Sipes' argument. The brochure containing the above language was admitted into evidence. Record at 333. Furthermore, while corporate counsel for Osmose acknowledged that the treated wood was not chemically similar to untreated wood, he stated that when he was preparing the brochure it "never occurred" to him to let people know that arsenic was present in the wood. Record at 583, 585.

Next, Sipes contends that Osmose was aware of two incidents involving injury to people who worked with wood treated with chemical compounds containing arsenic but did not report the incidents to the EPA despite the fact that other wood users could be injured. Evidence was presented to support this contention. The record shows that in 1977 a technical representative reported to the American Wood Preservatives Institute Committee on Arsenic that carpenters in Canada had experienced irritated throats and had coughed up blood after cutting arsenic treated wood with power saws. Record at 388-90. Osmose was represented on the committee when the report was made. Record at 386. The record also shows that corporate counsel for Osmose was aware that between 1976 and 1980 graduate students at the University of Illinois suffered nose bleeds and coughed up blood after sanding arsenic treated wood with power tools. Record at 546.

Sipes' third contention is that Osmose withheld information from purchasers about toxic chemicals released when CCA treated wood is burned. At trial, corporate counsel for Osmose admitted that Osmose had known since 1979 that burning CCA treated wood produced a toxic chemical, arsenic trioxide, in the smoke and ash. Record at 884. He also testified, however, that Osmose thought it "unnecessary" to warn end users that the chemical is released when the wood is burned by including that fact in the brochure accompanying the wood. Record at 884. The brochure distributed to users is part of the record; it says only that "all weather wood should not be burned either indoors or outdoors." Reco...

To continue reading

Request your trial
29 cases
  • Beresford v. Starkey
    • United States
    • Indiana Appellate Court
    • 20 Noviembre 1990
    ...is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper." Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223, 1224, (emphasis omitted) (quoting Jones v. Gleim (1984), Ind., 468 N.E.2d 205, IND.CODE Sec. 34-1-52-1 defines a nuisa......
  • Keith v. Mendus
    • United States
    • Indiana Appellate Court
    • 12 Febrero 1996
    ...only when there is no evidence or reasonable inferences therefrom to support an essential element of the claim. Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223. However, when the trial court grants a new trial as a "thirteenth juror" under the provisions of T.R. 59(J), it ......
  • Knauf Fiber Glass, GmbH v. Stein
    • United States
    • Indiana Appellate Court
    • 8 Junio 1993
    ...in favor of the non-moving party along with all the reasonable inferences to be drawn therefrom. Sipes v. Osmose Wood Preserving Co. of America, Inc. (1989), Ind., 546 N.E.2d 1223. Here, there was sufficient evidence presented to the jury for it to conclude KFG falsely represented the level......
  • Williams v. Younginer
    • United States
    • Indiana Appellate Court
    • 26 Julio 2006
    ...is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper. Sipes v. Osmose Wood Preserving Co., 546 N.E.2d 1223, 1224 (Ind.1989) (quoting Jones v. Gleim, 468 N.E.2d 205, 206-07 In considering a motion to correct error based on a claim of insuffi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT