Cornette v. Searjeant Metal Products, Inc.

258 N.E.2d 652, 147 Ind. App. 46, 1970 Ind. App. LEXIS 361

• Court: Indiana Court of Appeals
• Decided: May 26, 1970
• Docket: 1168A196
• Status: Published

Opinions

Hoffman, P. J.

This appeal arose from the entry of a judgment in favor of defendant-appellee on its motion for a finding in its favor at the close of plaintiff’s evidence. Thus, the only evidence before the trial court was that introduced by plaintiff-appellant.

The controversy at issue developed out of the following circumstances:

In 1957, appellant’s employer, Harper J. Ransburg Company, Inc., purchased a used punch press which had originally been manufactured by the E. W. Bliss Co. of Brooklyn, New York. Prior to placing the press in operation, the Ransburg Company hired the Cain Safety Service to inspect the unit and recommend a safe control system for its operation. Cain Safety Service recommended a Searjeant electro-pneumatic two-hand control system, manufactured by appellee. The catalog accompanying the unit described the machine as having an air filter, but at the time of the accident in issue there was no air filter on the machine.

On January 10, 1964, appellant was operating the press. Her work required her to reach into the press to remove metal “blanks.” On the occasion in question she reached into the press when the press “ram” was in the “up” position, but for an unexplained reason, the press “double-tripped”, the “ram” descended, seriously injuring three of appellant’s fingers on her left hand. The fingers were subsequently amputated. Appellant testified that the “ram” had “double-tripped” before, and that she was aware of the possibility and danger of a press double-tripping.

Following the accident, at the request of the Ransburg Company, William A. SerVaas, a consulting engineer, tested the unit several hundred times and inspected it thoroughly. It did not malfunction again.

Appellant’s complaint alleged, inter alia, essentially, that the unit “. . . contained a defect that made it unreasonably dangerous. . . .”

At the trial of the cause, appellant introduced the testimony of an expert witness to the effect that “. . . a transient situation existed which was caused by dirt in the air system which caused the solenoid valve to function in such a manner as to cause the press to trip a second time.”

This situation was precipitated, in the expert’s opinion, because there was no air filter.

A second expert testified that, in his opinion, such a unit without an air filter would be substandard.

At the close of plaintiff-appellant’s evidence, the court sustained defendant-appellee’s motion for a finding in its favor. Thereafter, the trial court entered extensive findings of fact and conclusions of law.

The trial court entered conclusions of law which, in pertinent part, are as follows:

“The court concludes that the law is with the defendant.

“1. There is no special liability of the seller of a product for physical harm to the user unless it is established that the product was effective when sold, and that at the time of the accident the product was in substantially the same condition as when sold.

* * * * *

“2. It is the responsibility of the plaintiff to establish by credible evidence that the alleged defect in the defendant’s product proximately caused the injury to the plaintiff. This must be done by something more than surmise or conjecture.

“3. Finally, the court concludes that plaintiff assumed the risk of her injury as a matter of law. Plaintiff admitted she knew of the danger of double tripping.”

Appellant’s sole assignment of error is the overruling of her motion for a new trial. She specifies as a basis for her motion for a new trial that the trial court erred in sustaining appellee’s motion for a finding.

The basic theory of appellant’s argument is that giving every favorable intendment to the facts presented by her at the trial, a prima facie case for holding the manufacturer liable on a theory of strict liability had been established by the evidence.

As appellant concedes on page 23 of her brief, “[t]he question with respect to the law of strict liability has never been squarely presented to an Indiana Court.”

In J. I. Case Co. v. Sandefur, 245 Ind. 213, 197 N. E. 2d 519 (1964), our Supreme Court for the first time accepted, in part, the basic premise that a manufacturer may be liable to third party consumers for negligence in the construction or manufacture of goods, notwithstanding the lack of privity between these parties. In Sandefur the Supreme Court adopted the position, which had gained wide acceptance at the time, espoused in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N. E. 1050 (1916).

More recently, this court in Hobson v. Beck Welding & Mfg. Inc., 144 Ind. App. 199, 245 N. E. 2d 344, 16 Ind. Dec. 717 (1969), (Transfer denied), reversed a lower court decision for failing to properly apply the theory adopted in Sandefur.¹

While the essential doctrine of negligent liability for manufacturer products has been fully accepted in Indiana, there has been no effort, direct or indirect, to adopt the doctrine of “strict liability” by this court, or our Supreme Court.

The essential theory of “strict liability” is embodied in 2 Restatement of Torts, 2d, § 402A, at 347 (1964), which reads as follows:

“Special Liability of Seller of Product for Physical Harm to User or Consumer

“(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, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

“(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

While the Sandefur theory is founded in negligence as a tort action, “strict liability” under § 402A, supra, has a different and somewhat unique basis. In Dagley v. Armstrong Rubber Company, 344 F. 2d 245, at 253, (1965), Chief Judge Hastings, speaking for the United States Court of Appeals, 7th Circuit, spelled out this distinction in theories:

“As a result of this new policy there has developed a new concept of warranty. * * * The traditional concept of warranty is that the seller of a product expressly and impliedly warrants certain things concerning the product to the buyer. This warranty is a part of the contract between seller and buyer and thus has its basis in contract law. (As noted previously, however, most courts hold that warranty may also state a cause of action in tort.) This traditional concept is not being superseded by the new concept and still requires privity of contract to be enforced.

“The new concept of warranty bases liability on strict liability in tort. This warranty ‘is a very different hind of warranty from those usually found in the sale of goods, and * * * it is not subject to the various contract rules which have groton up to surround such sales.’ ” [Quoting 2 Restatement of Torts, 2d, Explanatory Notes § 402A, Comment c, at 349.] (Emphasis supplied.)

Our Supreme Court has accepted such a definition of “warranty”, as expressed by Judge Hastings, in Wright-Bachman, Inc. v. Hodnett, et al., 235 Ind. 307, at 313, 133 N. E. 2d 713, at 716 (1956), wherein it stated:

“It is well settled that an action of breach of warranty may be either a contract action or a tort action, depending on the allegations of the complaint.”

It should be pointed out, however, that strict liability under § 402A, supra, is not the same as liability for breach of the warranty of fitness or merchantability. “Warranty” as used by Judge Hastings and in this opinion is intended in the broad sense of the word and is intended only to identify by analogy the conceptual basis of liability. It should not be confused in this context with the express and implied contract warranties as they may relate to products liability.

It is apparent that negligence, per Sandefur, and “strict liability” are distinct and independent bases for a cause of action: the former based on negligent manufacture, inspection, assembly or repair, and the latter on the § 402A, supra, protection against any defect rendering a product unreasonably dangerous regardless of fault.

However, the fundamental policy on which both concepts rest is the same: protection of the consumer from physical harm caused by a product. The application of Sandefur in Indiana was a response to the problem of the “privity” barrier ; and “strict liability” per § 402A, supra, was a response to the problem of the “proof” barrier.

We think these principles are sound and we expressly adopt § 402A, supra, as the law of this state.²

The legal continuum encompassing “strict liability” has proven extremely flexible and adaptable. Beginning with common-law trespass to the person, tort concepts of injury to the person have evolved through stages of negligence, res ipsa loquitor, and strict liability for dangerous instrumentalities, i.e., dynamite. The warranty in tort concept of § 402A, however, has proven to be a difficult step to take, in many instances, because it moves so severely away from traditional concepts of “fault” and “negligence.”

Comment c under § 402A, supra, provides the following rationale for imposition of the doctrine:

“On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.”

This rationale has proven to be sound and has been accepted in numerous jurisdictions. The essential question is one of values: Who deserves protection when an injury occurs, notwithstanding due care in the manufacture of the product— the manufacturer, or the consumer?

In theory at least, as pointed out above in Comment c, if the price of the product accurately reflects the cost of the product, then the consumer is contributing to a fund for his own protection.

Our reading of § 402A, supra, and numerous cases applying it, leads us to the conclusion that it should be strictly construed and narrowly applied. The limitations on imposition of the doctrine should be fully invoked, and “strict liability” applied only in those cases which fully and fairly meet the § 402A, supra, standards.

The facts critical to this determination are the following: While there was plentiful evidence that at the time of the injury there was no air filter on the machine which, according to the expert, was the proximate cause of the injury, there was no evidence that such air filter was not on the machine at the time it was delivered or sold. In fact, any reasonable inferences would be to the contrary since the catalogue which accompanied the machine called for an air filter as standard equipment. We are thus confronted with a failure of evidence essential to the imposition of § 402A, supra. Section 402A(1) (a) and (b) establishes positive proof requirements for the plaintiff. Specifically, in order to show himself entitled to relief under § 402A (1) (b), supra, a plaintiff must carry the burden of proving that no substantial change occurred in the condition of the product in which it was sold. Appellant failed to sustain this burden. As we have noted, the facts are devoid of any evidence of probative value on this issue. Further, the facts of record establish to our satisfaction that removal of the filter, which was prescribed by the manufacturer of the safety control system, could cause the malfunction. In fact, there was no evidence to the contrary. This could not be considered a defective condition attributable to the manufacturer.

We would point out that any change which increases the likelihood of a malfunction, which is the proximate cause of the harm complained of, and which is independent of the expected and intended use to which the product is put, is a substantial change. Thus, removal of an air filter which was the proximate cause of the incident complained of was a substantial change.

Appellant further cites as error the trial court’s Conclusion of Law No. 3, that appellant had assumed a known risk.

The facts adduced at the trial clearly established that the appellant had seen the machine double-trip on previous occasions.

The doctrine of assumed or incurred risk “. . . is based upon the proposition that one incurs all the ordinary and usual risks of an act upon which he voluntarily enters, so long as those risks are known and understood by him, or could be readily discernible by a reasonable and prudent man under like or similar circumstances.” Stallings et al. v. Dick, 139 Ind. App. 118, at 129, 210 N. E. 2d 82, at 88 (1966), (Transfer denied).

The trial court, in its findings, determined that the appellant knew of the risk, and, further, had adequate safety equipment available to reduce the possibility of harm, which she had failed to use. Conclusion of Law No. 3, that appellant had assumed a known risk, was proper based on the evidence of record. The question remains, however, whether assumed or incurred risk operates as a defense to “strict liability.” While there is a split of authority on this issue in those jurisdictions which have adopted § 402A, supra, we believe the better position favors its applicability. See:

Greeno v. Clark Equipment Co., 237 F. Supp. 427 (N. D. 1965) ; 2 Restatement of Torts, 2d, § 402A, Comment n at 356 (1964).

The trial court properly ruled in favor of the defendant at the close of plaintiff’s evidence and, accordingly, the judgment entered for defendant-appellee was proper and must be affirmed.

Judgment affirmed.

White, J., concurs with opinion. Sharp, J., concurs with opinion in which Pfaff, J., concurs.

1 . For an excellent summary of “products liability” cases, See: Frandsen, Summary of Indiana Law on Products Liability, Indiana Products Liability Handbook, published by the Continuing Legal Education Forum (1968).

2 . In Greeno v. Clark Equipment Co., 237 F. Supp. 427 (N.D. 1965), the Northern District Court of Indiana adopted § 402A. Since Greeno, an excellent series of cases applying various positions in Indiana to the basic consideration of § 402A have been handed down by the Federal District Courts in Indiana and the 7th Circuit Court of Appeals: Evans v. General Motors Corporation, 359 F. 2d 822 (7th Cir., 1966); Schemel v. General Motors Corporation, 384 F. 2d 802 (7th Cir., 1967) ; Indiana Nat. Bank of Indianapolis v. DeLaval Separator Co., 389 F. 2d 674 (7th Cir., 1968); Eck v. E. I. Dupont DeNemours & Company, 393 F. 2d 197, (7th Cir., 1968); Zahora v. Harnischfeger Corporation, 404 F. 2d 172 (7th Cir., 1968) ; Sills v. Massey-Ferguson, Inc., 296 F. Supp. 776 (N.D. Ind., 1969).