Underly v. Advance Mach. Co.
| Decision Date | 19 January 1993 |
| Docket Number | No. 20A04-9103-CV-88,20A04-9103-CV-88 |
| Citation | 605 N.E.2d 1186 |
| Parties | Prod.Liab.Rep. (CCH) P 13,539 Otto L. UNDERLY, Appellant-Plaintiff, v. ADVANCE MACHINE COMPANY, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Robert F. Gonderman, Jr., Robert F. Gonderman, Sr., Gonderman Law Offices, South Bend, for appellant-plaintiff.
Robert J. Palmer, Arthur A. May, Wendell W. Walsh, May, Oberfell & Lorber, South Bend, for appellee-defendant.
Otto Underly sustained permanent injuries to his hand when he attempted to confirm the source of a hydraulic oil leak in a "retriever" (a parking lot sweeper) manufactured by Advance Machine Company (Advance). Underly placed the middle finger of his right hand over a worn spot in the suspected hose--which had a pressure level of 1,000 p.s.i., powerful enough to easily puncture the human body--and then had a co-worker pressurize the line, causing hydraulic oil to be injected into Underly's finger. 1 Underly brought an action for strict product liability against Advance, claiming that Advance failed to provide warnings regarding the dangers of working on hydraulic lines and, therefore, the retriever was unreasonably dangerous. The jury disagreed.
Underly claims: (1) the trial court erred in not granting his motion for judgment on the evidence on the issue of misuse; (2) the jury was improperly instructed on the defense of foreseeable misuse and Advance's duty to warn; and (3) the trial court erred by admitting into evidence a videotape put together by Advance, which showed hydraulic oil coming out of a hole in a hose at various pressure levels. 2
We affirm.
Underly was the shift leader of the University Park Mall maintenance crew. On July 9, 1984, David Young, one of the employees under Underly's supervision, was using the retriever to sweep the mall parking lot. Young noticed a pool of fluid accumulating underneath the retriever, and shortly thereafter, the retriever's broom (which swept up debris) stopped operating. Young reported the problem to Underly who proceeded to inspect the retriever for the source of the problem. Deducing that the pool of fluid was hydraulic oil, Underly added more hydraulic fluid into the reservoir and took the retriever into the maintenance bay for a more thorough inspection.
Once in the maintenance area, Underly continued in his attempt to locate the source of the leak. With the retriever turned off, Underly removed the exterior and interior steel panels in order to access the hydraulic hoses. Underly next ran his hand along the hoses to detect any worn spots. Finding what he believed to be the source of the leak, Underly, with his finger over the hole, instructed one of his underlings to turn on the retriever's engine. Nothing happened. Next, Underly, with his finger still over the hole, told his co-worker to pressurize the hydraulic line. Immediately, high-pressure hydraulic oil was injected into Underly's hand, causing him permanent injuries.
On May 16, 1985, Underly brought suit in the Elkhart Circuit Court against the maker of the retriever, Advance, 3 pursuant to the Indiana Products Liability Act, Ind.Code 33-1-1.5 et seq. Underly contended At the end of the second trial in February of 1991, Underly moved for a judgment on the evidence on Advance's defense of misuse. This motion was denied. The second jury returned a verdict in favor of Advance.
that because Advance failed to post warnings on its retriever concerning the risk of injuries from hydraulic oil leaks, and because Advance encouraged users to make light repairs, such as replacing hydraulic hose, the retriever was in a defective and unreasonably dangerous condition. The case was tried before a jury in December of 1988. At the end of a week long trial, the jury returned a verdict in favor of Advance. Due to juror misconduct, however, the trial court granted Underly's motion for mistrial and set the cause for a new trial.
ISSUE I. JUDGMENT ON THE EVIDENCE
Underly contends the trial court erred by not granting his motion for judgment on the evidence with respect to Advance's affirmative defense of misuse. When reviewing the denial of a motion for judgment on the evidence, we are bound by the same standards which govern the trial court. Kroger Co. Sav-On Store v. Presnell (1987), Ind.App., 515 N.E.2d 538, 543, trans. denied. When the trial court considers a motion for judgment on the evidence, it must view the evidence in a light most favorable to the non-moving party. Id. If there is any probative evidence or reasonable inferences to be drawn from the evidence sufficient to support the non-movant's claim, or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper. Id.
In Indiana, actions for strict liability in tort against sellers and manufacturers of defective products are governed by Indiana's Product Liability Act, I.C. 33-1-1.5-1 et seq. In order to maintain a successful action under the Act, a plaintiff must show: (1) the seller; (2) put into the stream of commerce; (3) a product in a defective condition unreasonably dangerous; (4) that was the proximate cause of the plaintiff's injuries. I.C. 33-1-1.5-3(a). According to the Act, a product is "defective" if it is in a condition:
(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
I.C. 33-1-1.5-2.5(a)(1). A product is also "defective" if the seller fails to:
(1) properly package or label the product to give reasonable warnings of danger about the product; or
(2) give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer.
Misuse is a defense which will completely bar recovery. Under the Act, misuse occurs where "a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party." I.C. 33-1-1.5-4(b)(2). Thus, the key to a successful claim of misuse is whether the seller can prove that the misuse, from the seller's perspective, was not reasonably foreseeable. 4 Hoffman v. E.W. Bliss, Co. (1983), Ind., 448 N.E.2d 277, 283; Montgomery Ward & Co. v. Gregg (1990), Ind.App., 554 N.E.2d 1145, 1156, trans. denied. The foreseeability of an intervening misuse is usually a question for the jury. Montgomery Ward, supra, at 1156.
Viewing the evidence in the light most favorable to Advance, we conclude the trial court did not err in denying Underly's motion. At trial, Advance's Vice-President William Charles Sletten (Sletten) testified as to the condition of the retriever. Sletten stated that Advance could foresee that users of its retriever would conduct light repairs, such as replacing a hydraulic hose. He also testified it was foreseeable that persons, such as Underly, may run their hands along the hose while the retriever was turned off in order to discover any worn spots or leaks. However, in Sletten's opinion, it was not only unforeseeable, but inconceivable that someone would find a worn spot in the hydraulic hose and then, with their finger remaining on the hose, pressurize the line. Finally, Sletten testified that, apart from Underly's injury, Advance had never experienced anyone else injuring themselves in the same manner. Thus, these facts demonstrate that there was sufficient evidence on Advance's defense of misuse to submit the issue to the jury.
Underly spends a large portion of his brief (and this court's time) presenting facts in his favor which he claims entitle him to a different result. Underly maintains this is so because such "facts" are undisputed. However, our standard of review of a denial of a judgment on the evidence does not depend on whether or not the facts are undisputed; we only look to those facts--disputed or undisputed--most favorable to the non-moving party, in this case Advance. Underly's distinction between "disputed facts" versus "undisputed facts" is nothing more than a thinly-veiled invitation for this Court to engage in reweighing the evidence--which we will not do. The trial court did not err.
ISSUE II. WAS THE JURY FAIRLY INSTRUCTED?
Underly raises several objections concerning various jury instructions given by the trial court, and jury instructions tendered by Underly which were refused by the trial court. The giving of jury instructions is a matter primarily entrusted to the discretion of the trial court. Wielgus v. Lopez (1988), Ind.App., 525 N.E.2d 1272, 1274. We will not disturb the trial court's decision except for an abuse of that discretion. Weller v. Mack Trucks, Inc. (1991), Ind.App., 570 N.E.2d 1341, 1343.
Underly raises several objections regarding the trial court's final instruction 21, which addressed the defense of misuse. The relevant portion of the trial court's instruction reads:
At the time of the occurrence being considered, there was in full force and effect in the state of Indiana a statute that provides as follows:
(a) The defenses in this portion of the statute are defenses to actions in strict liability in tort. The burden of proof of any defense raised in a product liability action is on the party raising the defense.
(b) With respect to any product liability action based on strict liability in tort:
It is a defense that a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party.
R. at 872. At trial, Underly objected to this instruction, claiming the instruction in its present form...
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