Traylor v. Husqvarna Motor

• Decision Date: 15 March 1993
• Docket Number: No. 91-3453,91-3453
• Citation: 988 F.2d 729
• Parties: 37 Fed. R. Evid. Serv. 517, Prod.Liab.Rep. (CCH) P 13,431 Ronnie A. TRAYLOR and Ann M. Traylor, Plaintiffs-Appellants, v. HUSQVARNA MOTOR, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 729

988 F.2d 729

37 Fed. R. Evid. Serv. 517, Prod.Liab.Rep. (CCH) P 13,431

Ronnie A. TRAYLOR and Ann M. Traylor, Plaintiffs-Appellants, v. HUSQVARNA MOTOR, et al., Defendants-Appellees.

No. 91-3453.

United States Court of Appeals Seventh Circuit.

Argued Nov. 6, 1992.

Decided March 15, 1993.

Roger L. Pardieck, Barbara Stevens (argued), Pardieck, Gill & Vargo, Seymour, IN, for plaintiffs-appellants.

Ann E. Fulks, Stites & Harbison, Jeffersonville, IN, John L. Tate (argued), Stites & Harbison, Louisville, KY, Cecile A. Blau, Jeffersonville, IN, for defendants-appellees.

Before POSNER and FLAUM, Circuit Judges, and WILLIAMS, District Judge. ^*

POSNER, Circuit Judge.

Ronnie Traylor and his wife appeal from the dismissal of their products liability suit, a diversity suit governed by Indiana law. The case was tried before a magistrate judge by consent of the parties and the jury brought in a verdict for the defendants whom we refer to collectively as Omark.

A maul, the agent of the injury that gave rise to the suit, is a long-handled striking tool the steel head of which has an axe blade on one side and a flat, sledgehammer-like surface on the other. One day in 1986 Ronnie Traylor and his friend Dierking were splitting logs on Traylor's property. Each had a maul--Dierking a maul that had been manufactured by Omark. Each maul had been sold with a warning not to strike one maul against another, because chipping could occur and cause an eye injury, and not to use a maul without safety goggles. Traylor's maul got stuck in a log he was splitting. With the axe head embedded in the log, the flat surface of the head facing up, and the handle of the maul sticking out sideways, the two men set about to free the axe head. Traylor--who was not wearing safety glasses--crouched down, holding the handle of his maul to steady it, his unprotected face only a couple of feet from the head of the maul. Dierking gave the flat surface of Traylor's maul a whack with the flat surface of his maul. When Dierking's maul struck, it chipped, and the chip shot into Traylor's right eye and put the eye out.

Dierking had noticed before the accident that the flat surface of the head of his maul was chipped, cracked, and misshapen. There was considerable although not conclusive evidence that this was not due just to normal wear and tear--rather, that Dierking's maul was defective in two respects. First, it had an unusually narrow bevel around the flat surface of the head. A bevel is an angled as distinct from a right-angled edge. The larger the bevel, the less likely a surface is to chip. Second, the steel in the head, which had been manufactured in China, was of uneven hardness, which made it more likely that the head would chip when it was struck against another hard surface. The fact that a product is of low quality does not make it defective merely because higher-quality products are likely to be safer, safety being a dimension of quality. But Omark, while denying that its maul was defective, has not argued that the plaintiffs were trying to hold it to a standard of safety appropriate only to a more expensive maul.

Besides denying that the maul was defective, Omark raised affirmative defenses of misuse and "incurred risk," the latter a synonym for assumed risk. Dean v. Martz, 329 S.W.2d 371, 374 (Ky.1959); LaFata v. Busalaki, 291 S.W.2d 151, 154 (1956). The common law tort defense of "open and obvious danger" used to be available to defendants in products liability cases as in other personal injury cases in Indiana. Bemis Co. v. Rubush, 427 N.E.2d 1058, 1061 (Ind.1981); Estrada v. Schmutz Mfg. Co., 734 F.2d 1218 (7th Cir.1984). Then the Indiana legislature as part of a general overhaul of products liability law decided in effect to replace the defense of open and obvious danger (a much-criticized defense, for reasons sketched in id. at 1220), which the legislature abolished in products liability cases, with another common law defense, which the legislature proceeded to codify for those cases--that of assumed or incurred risk. Koske v. Townsend Engineering Co., 551 N.E.2d 437, 441-42 (Ind.1990); Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1150-51 (Ind.App.1990). The products liability statute defines the defense as follows: "It is a defense that the user or consumer ... knew of the defect and was aware of the danger and nevertheless proceeded unreasonably to make use of the product and was injured by it." Ind.Code § 33-1-1.5-4(b)(1). Traylor was a bystander rather than a user or a consumer of the allegedly defective product--Dierking's maul--but the statute, including its defenses, applies to suits by foreseeable bystanders as well as to suits by users or consumers of the defective product. Ind.Code § 33-1-1.5-2; State Farm Fire & Casualty Co. v. Structo Division, 540 N.E.2d 597 (Ind.1989). The jury brought in a general verdict for the defendants, and as there was a good deal of evidence that the maul was indeed defective, and the applicability of the defense of misuse is obscure in a case like this (more on that later), it is entirely possible that the jury based its verdict on a determination that Traylor "knew of the defect" and decided to take his chances.

The doctrine of incurred risk, more familiarly assumption of risk, teaches that a person who proceeds in the face of what he knows to be a risk of a certain consequence cannot complain if the consequence materializes. Dierking may well have known that his maul was defective, so if he had been injured by it we may assume that he could not recover damages against Omark. But there is little or no evidence that Traylor knew that Dierking's maul was defective. He probably knew that striking a maul against another maul can cause one of the mauls to chip. The instructions that came with his own maul expressly warned him of this danger and he is (or at least was, before his accident) a factory worker who wore safety goggles at work to protect his eyes from metal chips. But to assume the risk of an eye injury from a flying maul chip is not the same thing as assuming the risk of an eye injury caused by a chip from a defective maul. These could be risks of different orders of magnitude. The difference is well illustrated by Moore v. Sitzmark Corp., 555 N.E.2d 1305 (Ind.App.1990), which involved safety binders for skis. A safety binder is designed to release the ski from the skier's boot when lateral force is applied to the binder, so that the boot (and the foot in it) won't be twisted by the ski. Anyone who skis knows that even the best safety binders are fallible, so that there is still a nontrivial risk of breaking one's leg. But of course if the safety binder is defective and therefore highly unlikely to release the ski in a fall, the danger of breaking one's leg is much greater. Moore holds that merely by going skiing and thus assuming some irreducible risk of being injured, the purchaser of safety binders does not assume the greater, hidden risk due to the defect in the particular binders he bought. If, however, he had known about the defect and had decided to take his chances, he would have assumed the specific risk of a defective binder and the doctrine of incurred risk would bar him from recovering damages if he was injured as a result of the defect.

It is the same here. If Traylor knew that Dierking's maul was defective and decided to take his chances, the incurred-risk statute bars recovery. But if he merely knew that striking two mauls together can cause one of them to chip even if neither is defective, that knowledge would not bar recovery. This is provided of course that the accident was due to the defect. If the accident would have occurred anyway, there would be no prima facie liability and the defense would not come into play.

All this is background to the question whether the nature of the incurred-risk defense was adequately explained to the jury. Instruction 20 explains that if the plaintiff "disregarded an adequate warning ... he incurred the risk of the injury he sustained," for "the doctrine of incurred risk is based upon the proposition that one incurs all the ordinary and usual risks of an act which he voluntarily enters, if those risks are known and understood by him." Instruction 21 explains that the "essential elements" of the defense are that Traylor knew either "of the danger associated with using a maul without adequate eye protection" or "of the danger associated with striking a maul with another maul," and that knowing these things he voluntarily exposed himself to the danger and was injured as a proximate result. These are the only instructions that deal with incurred risk. Nowhere do they state that the relevant knowledge is knowledge of the defect. The reference to "adequate warning" and to the two dangers associated with the use of a maul is a giveaway that the magistrate judge thought the defense applicable whenever the plaintiff knows that the use of the product in a particular way creates a danger of injury. That is not Indiana law, and would in fact strip plaintiffs of virtually all protection against hidden product defects.

Since there must be a new trial, it is not strictly necessary that we discuss the other errors allegedly committed by the magistrate judge, but we have decided to do so in order to provide guidance for the retrial and to minimize the probability of another appeal. One of these concerns instruction 18, which correctly instructed the jury on the two defects alleged by the Traylors but then went on to say that the jury was "not to consider the hardness of the maul." What the instruction doubtless meant, and probably what the jury understood it to mean in light of the testimony and the lawyer's arguments, was that the surface hardness (or softness) of the flat side of the head of Dierking's maul's was not alleged to be defective. The surface of the head had been hardened to acceptable industry specifications. The...