FILED Apr 13 2020, 8:51 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Bryan H. Babb Christopher A. Pearcy Bradley M. Dick Hume Smith Geddes Green & Bose McKinney & Evans LLP Simmons, LLP Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kyle Hackney, April 13, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-1080 v. Appeal from the Lawrence Circuit Court Pendu Manufacturing, Inc., The Honorable Appellee-Defendant. Andrea K. McCord, Judge Trial Court Cause No. 47C01-1606-CT-595
Kirsch, Judge.
[1] This case involves an action by Kyle Hackney (“Hackney”) against Pendu
Manufacturing, Inc. (“Pendu”), alleging that a piece of machinery
manufactured by Pendu contained a design defect that made it unreasonably
dangerous under the Indiana Product Liability Statute. Hackney appeals the
trial court’s entry of summary judgment in favor of Pendu and raises several
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 1 of 20 issues, of which we find the following issue dispositive: whether the trial court
erred in granting summary judgment in favor of Pendu because the defense of
misuse barred any liability by Pendu.
[2] We affirm.
Facts and Procedural History [3] On November 17, 2015, Hackney was an employee of American Fibertech
(“Fibertech”), working at the Mitchell, Indiana facility that produces boards for
wooden pallets. Appellant’s App. Vol. II at 12; Appellant’s App. Vol. III at 46. On
that date, Hackney was working at a machine called the Pendu Edger 3000
(“the Machine”), which was manufactured by Pendu and had been delivered to
Fibertech in July or August 2015. Appellant’s App. Vol. II at 12; Appellant’s App.
Vol. IV at 129. The Machine trimmed edges off the boards that were cut to
make four-inch and six-inch boards used to build the wooden pallets, and the
Machine was comprised of three separate components: (1) the infeed; (2) the
edger itself, and (3) the custom built outfeed (“the Outfeed”). Appellant’s App.
Vol. III at 13, 49. The Outfeed is the only component at issue in this case.
Appellant’s App. Vol. IV at 162. The Machine was a part of Fibertech’s much
larger production line and fed into Fibertech’s main conveyor belt. Id. at 129.
[4] The Machine was shipped by freight from Pendu to Fibertech. Id. at 98-100.
Pendu did not accompany the Machine to Fibertech and did not have any
involvement in the installation and incorporation of the Machine and Outfeed
into Fibertech’s main production line. Id. at 92-93. After the Machine was
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 2 of 20 delivered, Fibertech did not contact Pendu for any reason regarding the
Machine. Id. at 129. Included with the Machine was the Pendu Safety Manual
(“the Safety Manual”), which expressly advised all operators on the safe use
and operation of the Machine. Id. at 56; Appellant’s App. Vol. II at 53-63. The
Safety Manual was in Fibertech’s possession at all relevant times, and Fibertech
testified the Safety Manual was available to any and all operators of the
Machine, including Hackney. Appellant’s App. Vol. IV at 56-57.
[5] The Outfeed of the Machine was custom built and its design was based on
photos provided by Fibertech of an older edger it was using and other custom
requirements of Fibertech. Appellant’s App. Vol. V at 105-06. Pendu was not
told how Fibertech intended to incorporate the Outfeed into its main
production line/conveyor belt. Appellant’s App. Vol. IV at 129; Appellant’s App.
Vol. V at 125-26. Pendu was not told what the conveyor would look like or
how the custom Outfeed would be incorporated. Appellant’s App. Vol. IV at 129.
It was Pendu’s understanding with Fibertech that Fibertech was going to install
any guarding as part of its incorporation of the Outfeed into its main production
line. Id. at 95, 129. That understanding/agreement was established by the
parties’ course of dealing and memorialized by the language on their
contract/change order. Id. at 95, 100, 129; Appellant’s App. Vol. V at 105-06.
Fibertech did all installation and configuration of the Outfeed into its
production line, made several changes, and added guarding to the top of the
Machine as part of its configuration. Appellant’s App. Vol. IV at 35-42,132-33.
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 3 of 20 [6] Pendu testified that installing a guard on the Outfeed when it manufactured the
Machine for Fibertech was not feasible “[b]ecause [Pendu] didn’t know exactly
what [Fibertech’s] belt conveyor’s going to look like.” Appellant’s App. Vol. V at
101. Pendu “had no idea what [Fibertech was] putting up for guarding or how
they’re manufacturing” from where the Outfeed ended. Id. at 130. For those
reasons, Pendu “built exactly what [Fibertech] wanted[,]” and Fibertech never
said it wanted any guarding on the Outfeed of the Machine. Id. at 105-06.
That was done per industry standards for custom machinery, like the Outfeed. 1
[7] Fibertech was “very capable of doing their own installation” of equipment and
employed their own riggers and installation personnel or would retain
contractors to assist them with the install or modifications. Appellant’s App. Vol.
IV at 66-67, 95. It was common for Fibertech to make modifications to the
Machine after delivery. Id. at 96-97. Fibertech made at least the following
known modifications to the Machine since delivery:
1. Performed or oversaw the entire installation of the Machine and incorporation into its production line;
2. Added an extensive catwalk in front of the Machine, and over its main conveyor system, stairs, and countless other modifications shown in photos, with some contractor assistance;
1 ANSI industry standards 4.3 for custom machinery states that “the user shall communicate its specific safety requirements as part of the machinery purchase . . . . The supplier and user shall develop a set of specifications suited to the user’s location and application specifics of the machine.” Appellant’s App. Vol. IV at 101-02.
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 4 of 20 3. Added a guard on top of the Machine that was in place at the time of Hackney’s accident;
4. Added poles to the side of the Machine;
5. Removed the guards that surround the chain conveyors on the outfeed and replaced them with central chain support;
6. Altered the shaft involved in Hackney’s accident by damaging it with the improper use of a pipe wrench.
Id. at 132-33.
[8] Hackney’s normal position while working was at the rear of the Machine at the
infeed area, where he would feed boards into the Machine, which would be
edged or trimmed inside the Machine and then come out of the Machine via the
Outfeed. Id. at 22. Occasionally, while performing this job, Hackney would
notice scrap wood that would get caught in the Outfeed at the opposite end of
the Machine, and the scrap wood would need to be removed so it would not
cause a jam. Id. at 22-23. Both the Safety Manual and Fibertech required a
person to turn off the Machine before reaching into it or servicing it in any way.
Appellant’s App. Vol. II at 53-63. On November 17, 2015, the date of the
incident, Hackney was operating the Machine when he noticed a piece of scrap
wood standing vertically in the Machine. Appellant’s App. Vol. IV at 20. He
then walked around to the end of the Machine to remove the piece of wood. Id.
On his way to remove the scrap wood, Hackney walked past both the E-Stop
and Main Control box, which both had buttons that would have stopped the
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 5 of 20 Machine; Hackney testified that turning off the Machine first would have
“obviously” prevented his accident. Id. at 22-23, 28. When Hackney got to the
end of the Machine, he reached his body over the still-operating Machine while
balancing on one foot. Ex. H. Seconds later, the shirttail of Hackney’s
sweatshirt got caught in the Machine and became entangled until the sweatshirt
was removed from Hackney’s body, causing injury to Hackney’s arm and
shoulder. Id.
[9] Fibertech trained Hackney to either use the E-Stop or the lockout/tagout
procedure to stop the machine before removing scrap wood from the Outfeed.
Appellant’s App. Vol. IV at 60. Fibertech taught Hackney that failure to follow
the safety rules could result in serious personal injury. Id. at 58. Hackney
stated that he was trained to turn off the machine before removing a jam, and if
he had hit one of those two stop buttons that he walked past, the accident
would not have happened. Id. at 23, 28. The Safety Manual, the safety training
Hackney received twice a week and signed attendance forms for attending, and
the Fibertech Safety Policy, which he signed and initialed, all required him to
stop the Machine before reaching into the machine to service it, such as
removing scrap wood. Appellant’s App. Vol. II at 53-63, 95-96; Appellant’s App.
Vol. IV at 45, 81-90.
[10] Fibertech testified that the Safety Manual was available to “any and all
operators” of that same machine. Appellant’s App. Vol. IV at 56. On page two of
the Safety Manual, under “Introduction,” it reads: “Maintenance personnel
and operators should read this manual thoroughly and become familiar with the
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 6 of 20 various assemblies and sub-assemblies. This will be helpful when ordering
replacement parts and reduce the possibility of errors.” Appellant’s App. Vol. II
at 54. On page three of the Safety Manual, it reads in all capital letters and bold
font: “WARNING: FAILURE TO FOLLOW THESE RULES MAY
RESULT IN SERIOUS PERSONAL INJURY.” Id. at 55 (emphasis in
original). On the same page, it states under the heading “SAFETY RULES
FOR ALL MACHINES”: “FOR YOUR OWN SAFETY, READ
INSTRUCTION MANUAL BEFORE OPERATING THE MACHINE.
Learn the machine application and limitations as well as the specific hazards
peculiar to it.” Id. (emphasis in original). It further states on page three:
“WEAR PROPER APPAREL. Loose clothing, gloves, neckties, rings,
bracelets, or jewelry can get caught in moving parts.” Id. (emphasis in original).
On page four of the Safety Manual, it states the OSHA “Lock-Out Standard.”
Id. at 56. Page four also contained the following language: “DO NOT
OVERREACH. Keep proper footing and balance at all times.” Id. On page
five under the heading, “WEAR PROTECTIVE CLOTHING,” it states,
“Wear close-fitting clothing and safety equipment appropriate to the job.” Id.
at 57. On page five, it also reads: “Follow OSHA approved, documented
lockout/tagout procedures when cleaning, servicing, adjusting, or doing any
maintenance on a machine. The lockout/tagout procedures should be
permanently attached to each machine.” Id. Additionally, on page seven of the
Safety manual, it stated that “During operation:”
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 7 of 20 5. Follow the instructions below before performing inspections, adjustments, repairs, or removing lodged material:
a) Push the emergency stop button located on the operator’s console,
b) Turn the key switch to the off position and remove the key.
c) Follow approved lockout/tagout procedures specific to the machine.
d) Be sure material feed has stopped and the arbors have stopped turning.
Id. at 59.
[11] Fibertech kept the “lockout/tagout” procedures attached to the Machine, and
part of the new employee training at Fibertech included instruction on
lockout/tagout procedures specific to the machines that an employee utilized in
their job duties. Appellant’s App. Vol. III at 59, 96-97. Employees additionally
were required to attend safety meetings twice per week at Fibertech where a
variety of general workplace hazards were discussed. Appellant’s App. Vol. IV at
49-50, 53-54. Lockout/tagout procedures were listed or discussed in all of the
bi-weekly safety meetings due to their “paramount” importance. Id. at 50-51,
81-90. On October 9, 2015, Hackney initialed and signed that he read and
understood the Fibertech Safety Policy. Appellant’s App. Vol. II at 95-96.
Hackney testified in his deposition that he understood the lockout/tagout rules
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 8 of 20 and that the lockout/tagout rules would have required him to turn the Machine
off prior to attempting to remove a scrap of wood. Id. at 192, 200, 202, 235.
[12] After Hackney’s accident and injury, Fibertech investigated and determined the
accident was caused by Hackney’s behavior, violation of safety rules, and
failure to first turn off the Machine. Appellant’s App. Vol. III at 81-82; Appellant’s
App. Vol. IV at 72, 74-77. The report concluded that the “incident’s root cause
was behavioral in nature.” Appellant’s App. Vol. IV at 77. Additionally, the
report concluded that Hackney was injured “when his jacket got entangled in a
shaft at the end of the [M]achine.” Id. (emphasis added).
[13] When the Machine was shipped from Pendu to Fibertech, the Outfeed had a
smooth and machine-polished shaft. Appellant’s App. Vol. IV at 130-31. Pendu’s
expert opinion stated that this would have made the shaft resistant to friction,
but that the post-accident photos of the Outfeed’s shaft showed that it had been
damaged and was no longer smooth. Id. at 139-40. The expert stated that the
damage to the shaft notched and serrated the shaft, enabling it “to grab
[Hackney’s] loose clothing.” Id. at 141. The expert also opined that it appeared
that someone had used a pipe wrench on the shaft, causing the damage. Id. at
122, 139-41.
[14] Hackney testified that prior to his accident he was told that another employee
had lost a finger in the Outfeed of the Machine, in the same “roller” and
location on the Outfeed allegedly involved in Hackney’s accident. Id. at 31-32.
For such an injury to be possible, that unknown employee would have had to
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 9 of 20 have failed to turn off the machine and put his fingers or body in or near the
Outfeed. Id. at 141. However, Fibertech denied that anyone else had ever been
injured using the Machine, and there were no workers compensation claims or
other evidence to support Hackney’s belief that someone else had been injured.
Id. at 73.
[15] On June 8, 2016, Hackney filed his complaint against Pendu, alleging that the
Machine was negligently designed and that, under Indiana’s Product Liability
Act (“IPLA”), the Machine was unreasonably dangerous and a defective
product. Appellant’s App. Vol. II at 12-14. On June 21, 2018, Pendu filed a
motion for summary judgment, arguing that Hackney’s injuries were caused by
Hackney’s misuse of the Machine, which included failure to read the Safety
Manual and failure to follow several safety warnings, that Pendu did not breach
its duty to Hackney and was not the proximate cause of Hackney’s injuries, and
Hackney should be barred from recovery because he had prior knowledge of the
Machine’s danger. Id. at 27-42. Hackney filed his response in opposition to
Pendu’s motion for summary judgment, contending that summary judgment
should be denied because material issues of fact existed as to whether Pendu
acted negligently and whether the Machine had a design defect. Id. at 129-41.
Pendu filed a response arguing that Hackney’s accident was not caused by a
design defect, the violation of safety rules and warnings by Hackney was misuse
that constituted a complete defense under IPLA, alterations to the shaft of the
Machine constituted a complete defense under IPLA, and Hackney’s incurred
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 10 of 20 risk and knowledge of the danger of reaching into the Machine constituted a
complete bar to recovery, among other things.
[16] After a hearing, the trial court issued an order granting summary judgment in
favor of Pendu on February 1, 2019, and held that the “issues of misuse and
alterations of the equipment as they relate to the holding in [Campbell
Hausfeld/Scott Fetzer Co. v. Johnson], 109 N.E.3d 953 (Ind. 2018) are dispositive.”
Appellant’s App. Vol. V at 153. Hackney filed a motion to correct error, which
the trial court denied. Hackney now appeals.
Discussion and Decision [17] When reviewing the grant of summary judgment, our standard of review is the
same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d
1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of
Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in
the shoes of the trial court and apply a de novo standard of review. Id. (citing
Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our
review of a summary judgment motion is limited to those materials designated
to the trial court. Ind. Trial Rule 56(H); Thornton v. Pietrzak, 120 N.E.3d 1139,
1142 (Ind. Ct. App. 2019), trans. denied. Summary judgment is appropriate only
where the designated evidence shows there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. T.R.
56(C). For summary judgment purposes, a fact is “material” if it bears on the
ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view the
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 11 of 20 pleadings and designated materials in the light most favorable to the non-
moving party. Id. Additionally, all facts and reasonable inferences from those
facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.
Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.
denied). The initial burden is on the moving party to demonstrate the absence of
any genuine issue of fact as to a determinative issue, at which point the burden
shifts to the non-movant to come forward with contrary evidence showing an
issue for the trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
[18] A trial court’s grant of summary judgment is clothed with a presumption of
validity, and the party who lost in the trial court has the burden of
demonstrating that the grant of summary judgment was erroneous. Henderson v.
Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.
denied. We will affirm upon any theory or basis supported by the designated
materials. Id. When a trial court grants summary judgment, we carefully
scrutinize that determination to ensure that a party was not improperly
prevented from having his or her day in court. Id.
[19] Hackney’s complaint claimed that the Machine was unreasonably dangerous
and a defective product under the IPLA. Pursuant to the IPLA, a plaintiff must
prove that a product was placed into the stream of commerce in a defective
condition that was unreasonably dangerous to the user and that plaintiff's
injuries were caused by this dangerous product. Ind. Code § 34-20-2-1. A
product can be defective within the meaning of the IPLA because of a
manufacturing flaw, a defective design, or a failure to warn of dangers while
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 12 of 20 using the product. Cook v. Ford Motor Co., 913 N.E.2d 311, 319 (Ind. Ct. App.
2009), trans. denied. In an action based on an alleged design defect in the
product or based on an alleged failure to provide adequate warnings or
instructions regarding the use of the product, the party making the claim must
establish that the manufacturer or seller failed to exercise reasonable care under
the circumstances in designing the product or in providing the warnings or
instructions. Ind. Code § 34-20-2-2. To establish a prima facie case of liability
under IPLA, the plaintiff must show that (1) the product is defective and
unreasonably dangerous, (2) the defective condition existed at the time the
product left the defendant’s control, and (3) the defective condition is the
proximate cause of the plaintiff’s injuries. Coffman v. PSI Energy. Inc., 815
N.E.2d 522, 527 (Ind. Ct. App. 2004), trans denied.
[20] The IPLA provides three non-exclusive defenses to a products liability action:
incurred risk under Indiana Code section 34-20-6-3; misuse of the product
under Indiana Code section 34-20-6-4; and modification or alteration of the
product under Indiana Code section 34-20-6-5. All three statutory defenses act
as a complete bar to recovery in a products liability action, but all three defenses
must “be proven.” Campbell Hausfeld/Scott Fetzer Co. v. Johnson, 109 N.E.3d
953, 959 (Ind. 2018).
[21] Here, in response to Hackney’s complaint alleging that the Machine was a
defective product due to an alleged design defect, Pendu filed a motion for
summary judgment, arguing that, among other reasons, Hackney’s injuries
were caused by his misuse of the Machine, which included failure to read the
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 13 of 20 Safety Manual and failure to follow several safety warnings. After a hearing,
the trial court issued an order granting summary judgment in favor of Pendu
and held that the “issues of misuse and alterations of the equipment as they
relate to the holding in [Campbell Hausfeld/Scott Fetzer Co. v. Johnson], 109
N.E.3d 953 (Ind. 2018) are dispositive.” Appellant’s App. Vol. V at 153. It
further concluded, “the undisputed evidence is clear that Hackney misused the
machine in multiple ways that together could not be reasonably expected by
Pendu (including failing to follow lockout procedures to turn off the machine
before he attempted to remove a scrap piece from the machine) and that misuse
was the cause of his injuries.” Id. at 154.
[22] Hackney contends on appeal that it was error for the trial court to grant
summary judgment on the basis of the misuse defense. Specifically, he asserts
that a jury should decide whether the violations of warnings and instructions
alleged by Pendu even constitute violations and whether they combine in the
aggregate to constitute misuse. He also argues that a jury must decide if Pendu
could have reasonably expected him to reach inside an operating, unguarded
Machine because the evidence supported that, since the Machine did not
include guards and Pendu included a warning on the Machine that users not
operate the Machine without guards, it expected an operator like Hackney to
fail to follow instructions and reach into the Machine while it was operating.
Hackney maintains that there is no other reason why Pendu would warn
against operating the Machine without guards under any circumstances, other
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 14 of 20 than that Pendu understood that its other written warnings on how to operate
the Machine might not be followed.
[23] Misuse is typically a question of fact for a jury to decide. Campbell, 109 N.E.3d
at 959. However, summary judgment based on misuse is appropriate when the
undisputed evidence proves that the plaintiff misused the product in an
unforeseeable manner. Id. Misuse is established as a matter of law when the
undisputed evidence proves that plaintiff used the product in direct
contravention of the product’s warnings and instructions. Id. The misuse
defense acts as a complete bar to recovery in a products liability action but must
“be proven.” Id. “[I]n order to successfully employ misuse as a defense, the
seller must show both that the misuse of the product is: 1) the cause of the
harm; and 2) not reasonably expected by the seller.” Id. at 957. Therefore, if “a
plaintiff misuses a product but it is not the cause of the harm and/or the misuse
can reasonably be expected by the seller, then the misuse would not serve as a
complete defense and comparative fault principles would apply.” Id. at 959.
[24] Here, the trial court granted summary judgment in favor of Pendu and held that
the “issues of misuse and alterations of the equipment as they relate to the
holding in [Campbell] . . . are dispositive.” Appellant’s App. Vol. V at 153. In
Campbell, Johnson was seriously injured while using a hand-held grinder
designed by Campbell Hausfeld. 109 N.E.3d at 954. “The [g]rinder is an
approximately eight-inch, hand-held, air-powered tool intended for grinding,
polishing, deburring, and smoothing sharp surfaces.” Id. at 955. Johnson did
not use the tool for any of those intended purposes and, instead, used it to help
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 15 of 20 a friend do some work on the friend’s truck by “cut[ting] around the truck’s
headlight opening to accommodate larger headlights.” Id. Johnson “took the
[g]rinder and attached a cut-off disc to it using a mandrel. Johnson’s friend
expressed concern about him using the cut-off disc, which was rated lower than
25,000 RPM, but Johnson used the cut-off disc anyway.” Id. Johnson wore his
prescription glasses as he cut around the headlights with the grinder, believing
they were sufficient to serve as safety glasses. Id. While using the grinder, the
cut-off disc came apart and a piece struck him in the left side of his face,
breaking his eyeglasses and causing serious injuries to his cheek and eye. Id.
[25] Johnson sued Campbell Hausfeld, alleging the tool was defective in its design
and that the manufacturer failed to provide adequate warnings, and Campbell
Hausfeld sought summary judgment, contending, among other things, that
Johnson had misused the tool by failing to follow its instructions. Id.
Specifically, Campbell Hausfeld alleged that Johnson “misused the [g]rinder in
three ways [in violation of its instructions]: he did not wear proper safety
glasses; he attached and used a cut-off disc without a safety guard in place; and
the cut-off disc had an inadequate RPM rating.” Id. at 959.
[26] Our Supreme Court determined that the misuse statutory defense turned on
“whether Johnson’s failure to follow the instructions was reasonably expected
by Campbell Hausfeld.” Id. The Court found, “while Campbell Hausfeld
could have perhaps reasonably expected a user to not use proper eyewear or for
a user to attach a cut-off disc without a guard, or for a user to attach something
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 16 of 20 with an improper RPM rating, it was not reasonably expected for a user to
disregard the safety instructions in all three of these ways.” Id. at 960.
[27] Here, Pendu alleges that Hackney committed multiple violations of the
warnings and instructions for the Machine and misused the Machine in several
ways. Specifically, Pendu asserts that: (1) Hackney failed to turn off the
Machine before reaching into it; (2) Hackney overreached and did not maintain
proper balance and footing when he reached into the Machine; (3) Hackney
leaned over and in front of the Machine, putting his body in front of the
Outfeed, which was not otherwise accessible due to the placement of the
conveyor belt; (4) Hackney failed to wear proper apparel by wearing a baggy
sweatshirt; (5) Hackney ignored his training about the nip points of the
Machine and his belief that someone had previously lost a finger on the
Machine; (6) Fibertech failed to ensure that Hackney reviewed the Safety
Manual, contrary to the warnings that all operators must review it; and (7)
Fibertech damaged the shaft by using a pipe wrench on it.
[28] The designated evidence showed that Hackney testified that turning off the
Machine first would have “obviously” prevented his accident and that he was
trained to turn off the Machine before removing a jam, and if he had hit one of
those two stop buttons that he walked past on the way to remove the scrap of
wood, the accident would not have happened. Appellant’s App. Vol. IV at 22-23,
28. Evidence also showed that the Safety Manual, the safety training Hackney
received twice a week and signed attendance forms for attending, and the
Fibertech Safety Policy, which he signed and initialed, all required him to stop
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 17 of 20 the Machine before reaching into the machine to perform service on it, such as
removing scrap wood. Appellant’s App. Vol. II at 53-63, 95-96; Appellant’s App.
Vol. IV at 45, 81-90. The evidence further showed that, on the day of the
accident, Hackney left his normal position at the infeed area of the Machine
and walked to the end of the Machine where the Outfeed was located to remove
the scrap wood and reached his body over the still-operating Machine while
balancing on one foot. Ex. H. As he leaned over the moving Machine, the
shirttail of Hackney’s loose-fitting sweatshirt got caught in the Machine and
became entangled. Id. After Hackney’s accident and injury, Fibertech
investigated and determined the accident was caused by Hackney’s behavior,
violation of safety rules, and failure to first turn off the Machine. Appellant’s
App. Vol. III at 81-82; Appellant’s App. Vol. IV at 72, 74-77. The report concluded
that the “incident’s root cause was behavioral in nature.” Appellant’s App. Vol.
IV at 77. Additionally, the report concluded that Hackney was injured “when
his jacket got entangled in a shaft at the end of the [M]achine.” Id. (emphasis
added).
[29] The evidence therefore showed that the accident would not have occurred if, by
Hackney’s own admission, he had turned the Machine off before going to
remove the scrap wood. Further leading to the accident was the fact that
Hackney leaned over the moving Machine while not being properly balanced
on two feet and allowed his sweatshirt to come in contact with the shaft of the
Machine. It is clear that if Hackney had turned off the Machine, the accident
would not have occurred, and even if he had not done so, the accident may
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 18 of 20 have been avoided if he did not lean directly across the moving Machine, had
maintained proper footing, and was not wearing a loose-fitting shirt that easily
caught in the moving shaft. Thus, Hackney’s failure to follow the instructions
and warnings was the cause of his injuries.
[30] We must then determine whether Hackney’s failure to follow the instructions
and warnings was reasonably expected by Pendu. The trial court found that
“the undisputed evidence is clear that Hackney misused the [M]achine in
multiple ways that together could not be reasonably expected by Pendu
(including failing to follow lockout procedures to turn off the [M]achine before
he attempted to remove a scrap piece from the [M]achine) and that misuse was
the cause of his injuries.” Appellant’s App. Vol. V at 154. Hackney argues that
because Pendu included a warning on the Machine that stated “DO NOT
OPERATE WITHOUT GUARDS,” Appellant’s App. Vol. II at 137, it expected
an operator like Hackney to fail to follow instructions and reach into the
Machine while it was operating. He claims that there is no other reason why
Pendu would include such a warning against operating the Machine without
guards, other than that Pendu understood that its warnings and instructions on
how to operate the Machine might not be followed.
[31] We find the present case to be similar to Campbell, where our Supreme Court
found that Johnson’s multiple failures to follow the grinder’s instructions were
the cause of his injuries and taken together, could not be reasonably expected
by a seller. 109 N.E.3d at 960. Here, Hackney also had multiple failures to
follow the Machine’s warnings and instructions that were the cause of his
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 19 of 20 accident and injury. While Pendu could have perhaps reasonably expected an
operator to not follow one of the warnings or instructions, it could not have
reasonably expected an operator to disregard the safety warnings and
instructions in all of the ways that Hackney did. Hackney could have avoided
injury if he had shut the Machine off before reaching into it to remove the piece
of scrap wood or if he not leaned directly in front of the moving Machine or
maintained proper footing or worn proper attire that would not have gotten
caught in the Machine. His multiple failures to follow the Machine’s warnings
and instructions were the cause of his injuries and taken together, could not be
reasonably expected by Pendu. We, therefore, conclude that the trial court did
not err in granting summary judgment in favor of Pendu.
[32] Affirmed.
Vaidik, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020 Page 20 of 20