Thiele v. Faygo Beverage, Inc.

Decision Date24 February 1986
Docket NumberNo. 4-1284A349,4-1284A349
Citation489 N.E.2d 562
PartiesProd.Liab.Rep. (CCH) P 10,936 Robert L. THIELE and Doris A. Thiele, Appellants (Plaintiffs Below), v. FAYGO BEVERAGE, INC., and Dugan-Doss, Inc., Appellees (Defendants Below).
CourtIndiana Appellate Court

Philip R. Terrill, Mark A. Thoma, Peters & Terrill, Fort Wayne, for appellants (plaintiffs below).

Thomas W. Belleperche, Hunt, Suedoff, Borror & Eilbacher, Fort Wayne, for appellee (defendant below) Faygo Beverage, Inc.

MILLER, Judge.

The plaintiffs-appellants, Robert and Doris Thiele, appeal the trial court's grant of summary judgment to the defendant-appellee, Faygo Beverage, Inc. (Faygo). 1 Robert Thiele suffered a severe eye injury while handling a case of Faygo pop bottles in the course of his employment as a grocery order worker for the Kroger Company (a chain of grocery stores) in their warehouse in Fort Wayne, Indiana. The Thieles alleged Faygo's liability for Robert's injury and Doris's loss of consortium and services in a four count complaint based on negligence, breach of express and implied warranties, the federal Magnuson-Moss Act, and strict liability in tort. Faygo's answer to the complaint generally denied the Thieles' allegations and asserted the affirmative defenses of contributory negligence, incurred risk, misuse, and failure to state a claim on which relief could be granted. The parties filed and answered interrogatories and submitted supporting affidavits, and Faygo took the deposition of Robert Thiele and submitted it in support of the motion for summary judgment. The trial court granted summary judgment to Faygo as to all four counts of the complaint, and the Thieles appeal, alleging the existence of genuine issues of material fact on each count, rendering the grant of summary judgment erroneous. We affirm in part and reverse in part. 2


When reviewing the grant of a motion for summary judgment, this court applies the same standard as applied by the trial court in ruling on the motion in the first instance. Barnes v. Wilson (1983), Ind.App., 450 N.E.2d 1030.

"[W]e must determine whether there is any genuine issue of material fact, and whether the law was correctly applied. Hale v. Peabody Coal Company, (1976) 168 Ind.App., 336, 343 N.E.2d 316. The moving party has the burden of establishing that no material facts are in genuine issue. All doubts and inferences are resolved in favor of the non-moving party. Podgorny v. Great Central Insurance Co., (1974) 160 Ind.App., 244, 311 N.E.2d 640.

A fact is material if its resolution is decisive of either the action or a relevant secondary issue. Lee v. Weston, (1980) Ind.App., 402 N.E.2d 23. The factual issue is genuine if it cannot be foreclosed by reference to undisputed facts, but rather requires a trier of fact to resolve the opposing parties' differing versions. Stuteville v. Downing, (1979) Ind.App., 391 N.E.2d 629.

In a word, we are to reverse if there is any genuine issue for the trier of fact to determine."

Perry v. Northern Indiana Public Service Co. (1982), Ind.App., 433 N.E.2d 44, 46. In determining the existence vel non of a genuine issue of material fact, this court will examine "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any," Ind. Rules of Procedure, Trial Rule 56(C) 3 and construe these

materials liberally in favor of the non-moving party. Perry v. NIPSCO, supra.


The evidence contained in the Trial Rule 56(C) materials in this case indicates that on June 22, 1981, Robert Thiele was employed as a grocery order worker in the Kroger Co. warehouse and distribution center in Fort Wayne, Indiana. At the warehouse, bulk quantities of items to be sold in Kroger retail stores were received on the warehouse dock and then moved inside the warehouse, where the goods were stored on wooden pallets aligned in rows with open aisles running between the rows of inventory. Robert's job as grocery order worker was to receive an order for various items to be shipped from the warehouse to a particular Kroger store and to walk up and down the aisles, picking the ordered Cases of Faygo pop were delivered in bulk, on wooden pallets, to the Kroger warehouse in Faygo trucks. A Kroger employee unloaded the pallets from the truck to the warehouse dock using a forklift. Robert Spear, a Kroger employee who worked on the warehouse dock, swore an affidavit that was filed in support of the Thieles' opposition to Faygo's motion for summary judgment. In his affidavit, Spear stated that on June 22, 1981 and for many years prior thereto, his duties at the Kroger warehouse included unloading Faygo pop from Faygo trucks; that he always unloaded the Faygo pop in bulk on pallets with the aid of a forklift; and that in performing this duty, he always used due care and in no way mishandled the cases and pallets of Faygo pop in such a way as to cause any pop bottles to break or explode. Other evidence indicated the pallets of Faygo pop would remain on the dock for no more than an hour before another Kroger employee moved them--again, in bulk--into the proper area of the warehouse, where the cases of pop would remain until individual cases were picked by a grocery order worker to fill an order for shipment to a Kroger retail store. As much as a month might elapse between the time a particular case of Faygo pop arrived at the Kroger warehouse and the time it was picked for shipment to a Kroger store. In his deposition, Robert Thiele stated he did not know how long the particular case of pop that allegedly caused his injury had been in the warehouse at the time of his injury.

goods from the pallets and placing them on a machine (similar to a forklift) known as a pallet jack. Before the goods were loaded from the line of pallets to the pallet jack, the grocery order worker was to stick a coded label on each case of goods picked, indicating the date of the order, the type, quantity and price of the goods, and their shipment destination.

A case of Faygo pop consists of twenty-four 16-ounce bottles that sit in a cardboard carton that covers the lower one-half to two-thirds of the bottles. A piece of polyethelene plastic is laid on top of the case of bottles, then heated to shrink around the final package. The plastic covers the top of the bottles, the sides of the cardboard carton, and comes together on the underside of the case, virtually enclosing the entire package in plastic. Robert Thiele stated in his deposition that a pallet of cases of Faygo pop consists of approximately six layers of cases stacked on top of one another and that, at most, two or three pallets might be stacked together. Robert did not know whether other cases or pallets had ever been stacked on top of the case of Faygo pop that allegedly caused his injury.

At the time of his injury, Robert was picking an order for a case of Faygo pop for shipment to a Kroger retail store. The case of pop in question was stacked on top of other cases, on a pallet, resting at about waist level. Standing a bit in back of the case of Faygo pop in order to stick the coded label on the side, Robert bent over to lift the case from the storage pallet onto the pallet jack. In his deposition, Robert testified to the occurrence of his injury as follows:

Q. [by attorney for Faygo] Were you doing it [moving the case of pop] with your bare hands?

A. [by Robert Thiele] Yes.

Q. Did you lift this case?

A. Yes.

Q. It was cardboard, I take it?

A. Yes.

Q. When you lift one of these cardboard cases, does it become concave, or does it move at all? Is there any flexibility to that cardboard case?

A. Some.

Q. Am I saying it correctly? Does it become a little bit looser, or how does it work?

A. Yeah. It's a cardboard box that's open on top. That's why it's wrapped in plastic. But the sides of the case are, I'd say, roughly maybe four inches high. And that's the cutoff point there. And then the bottles are setting down in this case ....

that's wrapped in plastic. So naturally, its not going to be as firm as a closed-in case. It does flex somewhat.

Q. And you were going to move it from your right to your left?

A. Yes.

Q. And you reached over and you picked it up. When you first picked it up, how far from your eye would this case be?

A. Oh, I'd say about two feet.

Q. Is there anything unusual that you noticed about the case when you picked it up?

A. No.

Q. Did you look at it?

A. No.

Q. Nothing about it seemed unusual to you?

A. No.

Q. Have you ever moved a case or cans or boxes of anything in which you noticed any kind of problems, Faygo or anything else?

A. No.

Q. So insofar as when you reached over and picked up the case of this pop, everything seemed to be okay, am I right?

A. Yes.

Q. And you turned to your left to place it on the machine.

A. Yes.

Q. Now, would you tell me, with what force did you put it on the machine? Did you put it down very gently, did you kind of throw it over there, or how does it work?

A. Well, we pull our machine up along as we go, to work orders, and we roughly keep it about two feet away so you've got room to walk between the machine and the product you're picking, and I--You can stand there in one spot and turn from item to item, roughly. But it's about two feet away, and you just make a turn and put it down on the machine more gently than anything else, because you know it's glass. And that's about it. I didn't throw it down hard, just gently.

Q. Do you place it down as opposed to dropping it?

A. No, you place it because you can't put it just anywhere. You've got to put a lot of stuff on one pallet, so you've got to watch the order you put it on. There's certain, different ways you put some items.

Q. With respect to this, because it's glass, though, you put it down gently.

A. Uh-huh (affirmative).

Q. Am I saying that correctly?

A. Yes.

Q. Now when you put it down gently, how much...

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