Spangler v. Sears, Roebuck and Co.

• Decision Date: 11 December 1990
• Docket Number: No. IP 87-1013-C.,IP 87-1013-C.
• Citation: 752 F. Supp. 1437
• Parties: Burl SPANGLER and Bonnie Spangler, Plaintiffs, v. SEARS, ROEBUCK AND CO. and Roper Corporation, Defendants.
• Court: U.S. District Court — Southern District of Indiana

752 F. Supp. 1437

Burl SPANGLER and Bonnie Spangler, Plaintiffs, v. SEARS, ROEBUCK AND CO. and Roper Corporation, Defendants.

No. IP 87-1013-C.

United States District Court, S.D. Indiana, Indianapolis Division.

December 11, 1990.

Morris L. Klapper, Klapper & Isaac, Indianapolis, Ind., for plaintiffs.

William M. Osborn, Osborn, Hiner & Lisher, Indianapolis, Ind., for defendants.

TINDER, District Judge.

After a riding lawn mower accident in which Mr. Burl Spangler allegedly suffered extensive injury to his right foot, Mr. Spangler and his wife Bonnie brought a six-count complaint against Sears, Roebuck and Co. and Roper Corporation (hereinafter collectively described as "Sears") the alleged manufacturer and seller of the riding mower. Mr. and Mrs. Spangler seek to recover under theories of products liability (Count I), products liability—loss of consortium (Count II), negligence (Count III), negligence—loss of consortium (Count IV), fraudulent concealment (Count V) and fraudulent concealment—loss of consortium (Count VI).

In response, defendants filed a motion, based on the open and obvious danger rule, to dismiss Counts I-IV for failure to state a claim upon which relief can be granted. In addition, defendants moved for a ruling that plaintiffs are not entitled to punitive damages or attorneys fees.

I. MOTION TO DISMISS

a. Counts I and II

Counts I and II of the complaint seek recovery for personal injuries on a strict liability-products liability theory of recovery. Defendants have moved to dismiss Counts I and II based on the open and obvious danger rule. After defendants filed their motion to dismiss on January 2, 1990, the Indiana Supreme Court decided two cases which are dispositive of defendants' claim. In Koske v. Townsend Engineering Co., 551 N.E.2d 437, 442 (Ind. 1990), and in Miller v. Todd, 551 N.E.2d 1139, 1143 (Ind.1990), the Indiana Supreme Court held "that the Indiana open and obvious danger rule does not apply to strict liability claims under the Indiana Product Liability Act." Therefore, defendants' motion to dismiss Counts I and II of plaintiffs' complaint is DENIED.

b. Counts III and IV

Defendants' motion to dismiss Counts III and IV of the complaint is also grounded solely upon the open and obvious danger rule. In response to defendants' motion to dismiss Counts III and IV of the complaint, plaintiffs cite Bridgewater v. Economy Engineering Co., 486 N.E.2d 484, 489 (Ind.1985), and assert "that the open and obvious rule ... has no application where negligence is alleged." Plaintiffs, however, have misread the Bridgewater case which observed only that the open and obvious danger rule should be limited to products liability cases and not extended to general negligence cases of the "slip and fall" variety. Id. at 489. Plaintiffs have alleged a negligence-products liability theory of recovery, thus the open and obvious rule is fully available as a defense to plaintiffs' negligence claim.

Indeed, the Bridgewater case stands for the proposition that a trial court may grant summary judgment in favor of a defendant in a negligence-products liability case based on a determination that the alleged defect was open and obvious. See Bridgewater, 486 N.E.2d at 488-89 (finding "no genuine issue as to any material fact" regarding "any of the theories" of the trial court judge including the trial court's ruling "as a separate and independent basis for its decision granting summary judgment that the defect ... was open and obvious") (emphasis original). The Bridgewater court's conclusion "that the doctrine of open and obvious danger could be used against a product liability claim based on common law negligence" was reaffirmed by the Indiana Supreme Court in Miller v. Todd, 551 N.E.2d at 1143 (affirming "trial court's entry of summary judgment on open and obvious grounds" because the uncrashworthiness of a motorcycle that did not have a crash bar to protect a back seat rider should have been apparent to the rider, particularly because the front seat did have a crash bar).

1. The evolution of plaintiffs' claim

The Bridgewater and Miller cases instruct this court that it must review whether the open and obvious danger rule should bar Mr. Spangler from presenting his case to the jury. In performing this task this court has been hampered by the sketchy, incomplete and conclusory allegations of plaintiffs' complaint. When describing how Mr. Spangler suffered his injuries, plaintiffs' counsel alleges merely that "On May 8, 1987, Mr. Burl Spangler, while operating the above-described tractor, sustained severe and permanent injury to his right foot, which injuries were the direct and proximate result of the dangerously defective condition of the lawn tractor and/or negligence of the defendants." This conclusory allegation does not inform this court, nor did it inform defendants, how Mr. Spangler's foot was injured.

Both defendants and this court have been left to speculate whether the foot was caught and twisted on the top of the mower, whether it was struck by an object thrown by the mower, whether it was injured by an object run into while Mr. Spangler was operating the mower or whether it was run over by the lawn mower blades. Such sketchy pleading is inadequate to inform a defendant concerning the claim against which he or she must defend. Moreover, such sketchy pleading, taken alone, would make it impossible to rule on defendants' motion to dismiss based on the open and obvious danger rule.

Plaintiffs were previously given leave to amend their complaint, nevertheless, the lack of particularity of their allegations has persisted in their amended complaint.¹ Consideration could be given to dismissing plaintiffs' complaint for lack of specificity. A dismissal without prejudice at this date could subject plaintiff to the bar of the statute of limitations, as plaintiff alleges his injury occurred more than two years ago. See Monsanto Co. v. Miller, 455 N.E.2d 392, 394 (Ind.App.1983) (interpreting Ind.Code § 33-1-1.5-5 to mean that for products liability claims "suit must be brought within both ten years of delivery to the initial user and two years of the accrual date" of the injury) (emphasis added); See also C. WRIGHT, A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1215 at 145 (1990) ("the rules do contemplate a statement of circumstances, occurrences, and events in support of the claim being presented ... Rule 8(a)(2) does require that the pleader disclose adequate information concerning the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it") (emphasis added).

Nevertheless, upon a review of the extensive file in this case this court has concluded that it would not be in the best interest of justice to dismiss this complaint. See Fed.R.Civ.P. 8(f) (requiring "all pleadings to be so construed as to do substantial justice"). Plaintiffs filed their original complaint on August 18, 1987. On December 7, 1987, defendants filed a motion to dismiss similar to the one now under consideration. Defendants' motion was met by plaintiffs' response filed on December 21, 1987. In their response to defendants' initial motion to dismiss the plaintiffs did adequately set forth the facts on which their claim is based.² In addition, on March 1, 1989, plaintiffs filed their contentions which added further detail to their claim.

Since at least December, 1987, defendants have been on notice concerning the factual basis on which plaintiffs are seeking a recovery. In nearly three years of litigation including extensive discovery, defendants have never claimed prejudice based on the insufficiency of the allegations of plaintiffs' complaint, therefore, this court cannot say that the objectives of notice pleading have been subverted by plaintiffs' sketchy pleading.³

2. Application of the open and obvious rule to plaintiffs' allegations of negligence

Much as plaintiffs overstate their case by arguing that the open and obvious rule is inapplicable in all negligence cases, defendants mischaracterize plaintiffs' case by contending that plaintiffs' negligence counts must be dismissed because "the moving blade of a power lawn mower, the product which plaintiffs allege to be defective, is an open and obvious danger as a matter of law." It may be that "the moving blade of a power lawn mower ... is an open and obvious danger," however, such a conclusion is largely irrelevant considering the facts alleged in plaintiffs' complaint which are far removed from the facts described in the cases on which defendants rely.

In every open and obvious danger case cited by defendants in support of their motion to dismiss the court applied the open and obvious danger rule to preclude a products liability recovery where either (1) the plaintiff intended to place himself in close proximity to the open and obvious danger or (2) the plaintiff alleged that the product was defective solely because of a failure to warn the plaintiff of the danger.⁴See Posey v. Clark Equipment Co., 409 F.2d 560, 563-64 (7th Cir.1969) ("no duty to warn if the danger be obvious") cert. denied, 396 U.S. 940, 90 S.Ct. 374, 24 L.Ed.2d 242 (1969); Ragsdale v. K-Mart Corp., 468 N.E.2d 524, 527 (Ind.App.1984) (holding that a lawn mower "blade poses an open and obvious danger ... to one placing a hand into the running mower, particularly after the user has lifted the chute guard from its protective location"); Bryant-Poff, Inc. v. Hahn, 454 N.E.2d 1223, 1224-25 (Ind.App.1983) (plaintiff's injury was caused by an open and obvious danger where plaintiff "reached his hand between the chain and sprocket ... and the chain and sprocket was activated resulting in the crushing" of the plaintiff's arm) cert. denied, 465 U.S. 1075, 104 S.Ct. 1433, 79 L.Ed.2d 756 (1984); Bemis Co. v. Rubush, 427 N.E.2d 1058, 1061 (Ind.1981)⁵ ("Although the manufacturer who has actual or constructive knowledge of an unobservable defect or danger...