Bemis Co., Inc. v. Rubush

427 N.E.2d 1058, 1981 Ind. LEXIS 897

• Court: Indiana Supreme Court
• Decided: November 12, 1981
• Docket: 1181S319
• Status: Published

Opinions

PIVARNIK, Justice.

This cause comes to us on a Petition to Transfer from the First District Court of Appeals, brought by Defendants-Appellants, Bemis Company, Inc., and Wabash Products, Division of Bemis Company, Inc. A judgment of seven hundred seventy-five thousand dollars ($775,000) was entered against petitioner. Seven hundred fifty thousand dollars ($750,000) in damages was awarded to Gerald Rubush and twenty-five thousand dollars ($25,000) was awarded to Phyllis Rubush. Petitioner appealed from this judgment and the Court of Appeals affirmed the judgment in favor of Gerald C. Rubush and reversed the judgment in favor of Phyllis C. Rubush and remanded her cause of action for loss of consortium for a new trial on damages only. Bemis Co., Inc., v. Rubush, (1980) 401 N.E.2d 48. Petitioner now seeks transfer of this cause.

The eause was tried in the trial court on the theory of strict liability in tort under § 402A of the Restatement (Second) of Torts (1965). The Court of Appeals affirmed the trial court in its application of § 402A which permitted Bemis to be found liable in strict liability even though the danger was open and obvious. We find the Court of Appeals and the trial court to be in error in their interpretation of strict liability in tort under § 402A and accordingly grant transfer and vacate the opinion of the Court of Appeals.

Gerald G. Rubush was employed as a bagger on a fiber glass insulation batt packing machine for Johns-Manville Corporation. The evidence was that Rubush was an experienced bagger although he had been working on the particular job for only about ten minutes when he was injured on October 19, 1971. The batt packing machine was designed by Bemis Company, Inc., and Wabash Products Co., Division of Bemis Co., Inc., (both hereinafter referred to as Bemis). While working as a bagger on the batt packer and during the course of the batt packer’s operation, Rubush was struck in the head by a moving part of the machine. This moving part was called a shroud and it was a visible, moving part of the batt packing machine. Rubush sustained serious injuries to his skull and brain.

The function of the batt packer is to pack batts of insulation into heavy paper bags. This is accomplished in two phases. The first phase is a compression phase in which batts are vertically compressed into the compression chamber of the packer to the approximate size of the open end of the bag. The batts are then moved horizontally out of the compression chamber. The second phase is the bagging phase during which the bag is filled with compressed batts which have been horizontally pushed from the compression chamber to the shroud assembly area through a square opening in the base of the wall of the compression chamber, called a bag spout. The bagger places the open end of a bag around the mouth of the bag spout, the top of which is about 23 inches from the ground, and the bag is secured to the mouth of the metal bag spout by a bag clamp. The bag clamp is activated by a push button which is located at chest or shoulder height and is one of three buttons on a panel. The bag clamp button is pushed by the bagger after he places the bag over the mouth of the bag spout. Activation of the bag clamp also activates a seven-foot long metal shroud which is located directly in front of the bag spout. The shroud is hinged on its bottom end on the frame of the batt packer at the level of the top of the bag spout. When the bagger pushes the bag clamp button the bag is clamped and the shroud descends under power in an arc to a horizontal position above the bag. The end of the shroud slightly overlaps the bag spout. The function of the shroud is to furnish support to the paper bag as it is being filled with batts, to prevent the bag from being torn. The batt packer had two sets of push button controls, each set consisting of the activating bag clamp button, a bag release button and an emergency stop button. A set of controls was situated on each side of the machine.

In a typical operation the bagger would place the open end of the bag over the mouth of the bag spout. This would necessitate his being within the arc of the shroud at that time. He would then push the bag clamp button which is located at chest level and be turning away from the machine. The bag clamp would set instantly to hold the bag in place. The shroud, being activated at the same time, would commence its descent to a horizontal position, which descent would take four or five seconds. The shroud would descend at a rate of one to one and one-half feet per second and would have the basic pushing force which would come from an air cylinder rather than that which would come from a sudden impact. There was evidence that the timing of the descent of the shroud could be adjusted and that it was adjusted in the Johns-Manville plant after some study and investigation at a rate that would allow the slowest worker to move back after the bag clamp was secured and before the shroud came down to the spout.

There was evidence that Rubush may have caught his hand under the bag clamp and was unable to extricate himself to avoid the descending shroud. There was testimony that it was sometimes necessary to hold the bag on the bag spout with the hand until the bag clamp set, but not where a hand would be clamped. One witness testified that when injured, Rubush appeared to have his hand caught, then fell away from the machine. There was evidence that one could place a hand under the clamp if the fingers were extended, but that it was not necessary to do so and that it would be unreasonable and unlikely that anyone would do so. It would be difficult for one to get his hands in such a position that the bag clamp would clamp down on the hands, and there would be no need for a bagger to have his hands in that area at any time during the operation. If one’s hands were under the clamp when it set, they would have been subjected to 1400 pounds of pressure. It would have been nearly impossible to have removed them without releasing the clamp. Releasing the clamp would cause the shroud to retract and prevent descent. Medical witnesses testified that there was no demonstration of trauma on Rubush’s hand which might be expected if it had been clamped. Ru-bush was operating two machines simultaneously by loading one and then turning to load the other one. The typical operation was for one bagger to load one machine. In short, there existed a situation where no one testified he actually knew how the accident happened. Rubush was unable to recall the occurrence, and attempts to explain or reconstruct the incident were fraught with inconsistencies.

There was no evidence that the machine had malfunctioned or that there was a defect in its operation. Similar batt packers had been used during a 10-year period from 1961-1971 without any reports of workers having gotten hands caught in bag clamps. In 1969, BP 18 and BP 19 were purchased and had been used before and after Ru-bush’s injury without any other injuries having been reported. No modifications were made after the accident and the machine was tested for malfunctions by examination of mechanics, pipe fitters and electricians, and reviewed by an accident review committee. It was determined that there was nothing wrong with the machine involved, either mechanically or electrically. The same batt packer was used after the accident without changes, additions, guarding apparatus or alterations.

Appellees admit that the descent of the shroud was an open and obvious danger which was well known to the operators of the machines and which would be obvious to anyone observing the machine. They contend that the danger in the machine was the fact that the machine could operate so that the shroud could descend with any object, or anyone within the path of the shroud which they have designated as a “zone of danger.” Their claim is that the machine should have been made so that it was impossible for the shroud to descend, or that there should have been some kind of automatic device which would have prevented its descent if anything were in its path. They claim the failure to so design the machine is a defect.

Bemis’ main contention is that it cannot be held liable in strict liability under § 402A since any dangers in the descending shroud were open and obvious rather than latent or hidden defects that required a warning to the user. The evidence was without conflict both by oral testimony of witnesses and by demonstrative evidence in the form of drawings, diagrams, and movies of the batt packer machine showing that the descent of the shroud in the operation of the batt packing procedure was open, obvious, and apparent to anyone using it. The descent was caused when the batt packer pushed the button. The evidence was that personnel of Johns-Manville trained batt packers and taught them proper use of the machine and all were aware of the operation of the machine and the dangers of the descending shroud. They presented evidence that types of guards such as photo electric cells, sweeps or other devices were considered and rejected as not being effective, necessary, or economically feasible. Similar evidence was heard with regard to the placement of more remote control buttons with arguments made that they would make the machine more dangerous and open to being activated by persons other than the bagger himself.

The basic premise for the imposition of strict liability is stated in § 402A as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, .... ”

Comment g to § 402A adds the following:

“The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. . . . ”

Comment i discusses and defines “unreasonably dangerous” as follows:

“The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.. . . ”

Hence, to be actionable under § 402A, the injury-producing product must be unreasonably dangerous, that is, dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. The harm is not actionable unless the product is “unreasonably dangerous.”

As noted above, Bemis’ principal argument is that the functions of the machine were apparent, and any dangers were open and obvious to any person using it. The open and obvious rule finds support in Indiana cases and cases decided in federal courts applying Indiana law in diversity. The rule may be stated generally as follows: In the area of products liability, based upon negligence or based upon strict liability under § 402A of the Restatement (Second) of Torts, to impress liability upon manufacturers, the defect must be hidden and not normally observable, constituting a latent danger in the use of the product. Although the manufacturer who has actual or constructive knowledge of an unobservable defect or danger is subject to liability for failure to warn of the danger, he has no duty to warn if the danger is open and obvious to all. See Burton v. L. O. Smith Foundry Products Co., 529 F.2d 108 (7th Cir. 1976); Posey v. Clark Equipment Company, 409 F.2d 560 (7th Cir. 1969); Greeno v. Clark Equipment Co., 237 F.Supp. 427 (N.D.Ind.1965); and J. I. Case Company v. Sandefur, (1964) 245 Ind. 213, 197 N.E.2d 519.

J. I. Case Co., v. Sandefur, supra, included the following discussion:

“As stated by the leading authorities, public policy has compelled this gradual change in the common law because of the industrial age where there is no longer the usual privity of contract between the user and the maker of a manufactured machine. On the other hand, there must be reasonable freedom and protection for the manufacturer. He is not an insurer against accident and is not obligated to produce only accident-proof machines. The emphasis is on the duty to avoid hidden defects or concealed dangers.”

245 Ind. at 222, 197 N.E.2d at 523.

The Court, in Sandefur, supra, discussed its reasoning further as follows:

“A manufacturer may determine the character of the materials to be used primarily for the purpose of producing or manufacturing an ‘economy model,’ as compared with a luxury model — the life of one being much less than the life of the other. Yet there are reasonable limits on such ‘economy’, for example: a machine may not be built with extremely weak or flimsy parts concealed by an exterior such as to mislead a user into believing it safe and stable when, in fact, it is not, thus causing a user to rely thereon, to his injury. This again is a question of fact, namely, was there a concealed defect or hidden danger to a user?”

245 Ind. 222-23, 197 N.E.2d at 523.

In Greeno, supra, Judge Eschbach stated: “A defective condition is a condition not contemplated by the consumer-user and which is unreasonably dangerous to him or his property, that is, more dangerous than would be contemplated by the ordinary consumer-user with the ordinary knowledge of the community as to its characteristics and uses. Restatement, supra, Comment at 351-52. An axe is not unreasonably dangerous because, as in negligence law, users would contemplate the obvious dangers involved. But a farm combine with a weak lid over the auger would constitute an unreasonable danger because such a danger is beyond the contemplation of ordinary users.”

237 F.Supp. at 429.

Several allegations of error were raised relating to this general rule. They involved the conduct of voir dire, instructions given and refused and the court’s comments before the jury. They also relate to the allegation that the verdict is not sustained by the evidence. The Court of Appeals found no error in these issues. We disagree.

During voir dire counsel for Bemis sought to question the potential jurors on the open and obvious rule but was prevented from doing so by the trial judge. Bemis tendered final instructions 4 and 5 which stated that a manufacturer is not obligated to design an accident-proof machine, but a reasonably safe one which does not contain hidden or concealed defects and, in brief, stated the open and obvious rule. The trial court refused to give Bemis’ instructions 4 and 5 and also refused their tendered instruction No. 3, which provided:

“The plaintiffs, in order to prevail here, must establish by a preponderance of the evidence each of the following:

First, that at the time the Batt Packer in question was supplied by the defendant it was in a defective and unreasonably dangerous condition not contemplated by the ultimate consumer such that it was dangerous to an extent beyond that which would have been contemplated by the ordinary consumer who purchased or used it with like age, judgment, experience, and knowledge as that which was possessed by the plaintiff at the time of his injury.

Second, that the Batt Packer was expected to and did reach the ultimate consumer without substantial change in its condition;

Third, that plaintiff’s injuries were a direct and proximate result of said defective and unreasonably dangerous condition.

If you find that the plaintiffs have established each of these elements, your verdict should be for the plaintiffs, unless you find for the defendant on its affirmative defenses. On the other hand, if you do not find that plaintiffs proved each of these elements by a preponderance of the evidence, then you should find for the defendant, without regard to whether defendant has proved its affirmative defenses.

* * * * * *

The trial court failed to define unreasonably dangerous under the strict liability theory as was set out in defendant’s tendered instruction 3. This failure to instruct was also compounded when the jury was allowed to hear, over the objection of Bem-is, the testimony of Dr. Richard L. Fox, a professor of engineering at Case Western Reserve University, who was called as an expert witness in the field of machine design and qualified as such. He defined “unreasonable hazard” as follows:

“[A] hazard or risk in a product is unreasonable if it could be removed and the cost of removal is not significant nor the cost of removal does not seriously reduce the utility of the product. This is a basic definition. In other words basically in simple words it says if you can get rid of the hazard at little cost you have no business leaving it in, so it is unreasonable to leave it in, and this is, this is the term that we use.”

He testified further as to ways in which the machine could have been made safer. Dr. Manos, another expert witness, testified similarly. The jury could have relied on this definition then, and determined that even though the dangerous characteristic of the descending shroud was open and obvious to Rubush as he operated the machine, and known to him, they could find Bemis liable for not conforming to the standards set by Dr. Fox and Dr. Manos. This would make manufacturers insurors of any product they put in the open market and render them liable for injuries and damages to those using the machine regardless of the facts and circumstances surrounding the injury. This is not the law in Indiana.

In Posey v. Clark Equipment Co., supra, plaintiff was operating a fork lift truck manufactured by Clark Equipment Co., when a carton from a high stack became dislodged and fell on him, causing serious injuries. The fork lift truck was capable of lifting an article to 106 inches, but did not have an overhead guard to protect the operator from falling objects. Plaintiff’s employer wanted the fork lift to be designed as low as possible so that it could enter areas such as street trucks with low head room. An overhead guard was available and could have been mounted on the truck in the space of ten minutes, but this would have made the lift stand too high to be driven into the back of a truck. While using the equipment in this condition, Posey was taking cartons from a lower stack when the movement caused a higher stack to sway and cause a carton at the top of the higher stack to fall on him. Judge Dillin, of the Southern District Court, directed a verdict in favor of the defendant, and appeal was taken to the Seventh Circuit Court of Appeals. In affirming the District Court, the Seventh Circuit Court of Appeals observed:

“Posey’s theory appears to be that if there had been a warning notice on the truck, the employer might have purchased a guard and instructed his employees to install it whenever the truck was used among high stacks, and Posey, as well as other employees, would have been alerted to the importance of using the guard.

In directing a verdict, Judge Dillin concluded that the danger of an object falling upon an unprotected operator was so obvious that the user of the truck would reasonably be expected to know about it.”

409 F.2d at 563.

The court then further observed that a warning may be necessary to prevent the product from being unreasonably dangerous, but a seller is not required to warn when the danger, or potentiality of danger is generally known and recognized. The court then found that the District Judge had properly directed the verdict in favor of the defendant since any ordinary user or operator of fork lifts would recognize the danger facing Posey as he drove the fork lift truck in the area of high stacks while unprotected and that it was not a situation where only persons of special experience would realize the danger which might befall an unprotected operator. Therefore there was no evidence to support a finding that Clark had a duty, under the circumstances, to supply a warning notice.

In the present case, the danger of the shroud operating under power were open and obvious. The operator of the machine was familiar with and aware of the dangers in the descending shroud. The court erred in refusing to instruct the jury on the open and obvious rule and in failing to define “unreasonably dangerous.”

Other issues which were raised in this cause relate to the plaintiff’s conduct and the instructions which were given on negligence and incurred risk. Instruction 14 stated that in order to find for Bemis the jury had to find that the batt packer was not defective or unreasonably dangerous, and that Gary was contributorily negligent in causing his injury. Bemis argues that this misstated the law because if Gary’s injuries were proximately caused by his own conduct, he could still recover against Bemis. We find this argument persuasive. It is especially significant since this instruction was argued to the jury by counsel and Rubushs’ counsel read part of that instruction to the jury and interpreted it.

These errors are especially relevant in view of the fact that there was no explanation given as to how the accident had occurred. One witness testified that he thought Mr. Rubush caught his hand. One of plaintiff’s expert witnesses, Dr. Manos, testified that he was totally unable to scientifically determine how the accident occurred. Dr. Fox, another plaintiff’s expert, admitted he did not have any facts as to how the accident happened and that it was irrelevant to him how the accident occurred. Testimony was heard from witnesses as to the feasibility of guards, or the use of photo electric cells or remote controls. Therefore, there was much speculation about the cause of the accident and about possible guards or warnings, none of which speculation was clearly related to the facts of this accident and how it occurred.

Additional errors occurred when the jury was incorrectly instructed that if it found that the dissolution of the Rubush marriage was a proximate result of Gary Rubush’s injuries, they could consider the value of Phyllis Rubush’s loss of consortium after the date of the dissolution as an element of damage. In view of our disposition of this case, further discussion of these errors is not necessary.

For the above reasons, transfer is granted, the Court of Appeals opinion is vacated and this cause is remanded to the trial court with directions to enter judgment for defendants-appellants Bemis Company, Inc., and Wabash Products, Division of Bemis Company, Inc.

GIVAN, C. J., and PRENTICE, J., concur. HUNTER, J., dissents with separate opinion in which DeBRULER, J., concurs. DeBRULER, J., dissents with separate opinion in which HUNTER, J., concurs.