Indiana Law Review


Is the Danger Really Open and Obvious?

Roger L. Pardieck*

Sharon L. Hulbert**

I. Introduction

Several states use variations of open and obvious danger concepts

to determine the duties of manufacturers and injured parties involved

in product liability actions.' The application of the concept varies from

state to state. The more recent trend considers the obviousness of the

danger as only one factor in determining whether a plaintiff has assumed

the risk of injury. ^ The minority approach looks only at the obviousness

of the danger and bars a plaintiff's recovery if it is determined that the

danger was obvious.^

Attorney, Law Offices of Roger L. Pardieck, Seymour Indiana. B.A., Indiana
University, 1959; International Graduate School, University of Stockholm, Sweden; LL.B.,

Indiana University—Bloomington, 1963.
Attorney, Law Offices of Roger L. Pardieck, Seymour, Indiana. B.A., Purdue

University, 1981; J.D., Indiana University—Indianapolis, 1984.
'See, e.g.. Turner v. Machine Ice Co., 674 P.2d 883 (Ariz.App. 1983); Brown v.

Sears, Roebuck & Co., 667 P.2d 750 (Ariz.App. 1983); Union Supply Co. v. Pust, 196
Col. 162, 583 P.2d 276 (1978); Miscevich v. Commonwealth Edison Co., 110 111. App. 3d
440, 442 N.E.2d 338 (1982); Hoffman v. E.W. Bliss Co., 448 N.E.2d 277 (Ind. 1983);
Holm V. Sponco Mfg., Inc., 324 N.W.2d 207 (Minn. 1982); Brown v. North American
Manufacturing Co., 176 Mt. 98, 576 P.2d 711 (1978). For a general discussion of this

area of law, see Phillips, Products Liability: Obviousness of Danger Revisited, 15 Ind. L.

Rev. 797 (1982).

^See, e.g.. Miller v. Utica Mill Specialty Machinery Co., 731 F.2d 305 (6th Cir.

1984); Banks v. Iron Hustler Corp., 59 Md. App. 408, 475 A.2d 1243 (1984); Holm v.
Sponco Mfg., Inc., 324 N.W.2d 207 (Minn. 1982); Berg v. Sukup Mfg. Co., 355 N.W.2d
833 (S.D. 1984).

^See, e.g., Miscevich v. Commonwealth Edison Co., 110 111. App. 3d 400, 442 N.E.2d

338 (1982); Bryant-Poff, Inc. v. Hahn, 454 N.E.2d 1223 (Ind. Ct. App. 1982). The open

and obvious danger rule gained momentum as a complete bar to recovery in Campo v.
Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). In Campo, the court stated, "[T]he

manufacturer of a machine or any other article, dangerous because of the way it functions,

and patently so, owes to those who use it a duty merely to make it free from latent
defects and concealed dangers." Id. at 471, 95 N.E.2d at 803. Campo was later overruled
by the New York Court of Appeals in Micallef v. Miehle Co., 39 N.Y.2d 376, 348
N.E.2d 571, 384 N.Y.S.2d 115 (1976). In place of the rigid no-duty rule, the Micallef

court adopted a reasonable care test. Under the test, the manufacturer's actions would

be reasonable if the cost of installing safety devices outweighed the benefit resulting from

their installation. Id. at 386, 348 N.E.2d at 578, N.Y.S. 2d at 121. The openness and ob-
viousness of a danger was a factor considered in determining whether the "plaintiff exercised

that degree of care as was required under the circumstances." Id. at 387, 348 N.E.2d at

578, 384 N.Y.S. 2d at 122.

Courts following the more recent trend have noted that the no-duty and obvious
danger rule protects manufacturers who sell products with dangerous, but obvious, design
defects, encourages manufacturers to be outrageous in their design and to eliminate safety

383



384 INDIANA LAW REVIEW [Vol. 19:383

One test used to determine whether a danger is obvious is an objective
test, focusing on the knowledge and experience of a person with knowl-

edge similar to the plaintiff's rather than on the actual subjective knowl-

edge of the injured person/ Under this test, the obviousness of the

danger is based on the obviousness to a person with the plaintiffs

knowledge, not to an experienced or more knowledgeable person.^ This

approach treats the question of obviousness as a question of fact for

the jury.^

The question of obviousness has also been treated as a question of

law. Under this approach, plaintiffs are barred from recovery because

the court, upon examining the evidence, determines that the danger was
obvious as a matter of law.^ It is this last approach that has come under
increasing attack in recent years. ^ Indiana courts have followed the latter

approach exclusively and treat the issue of open and obvious danger as

a question of law.^ The recent case of Corbin v, Coleco Industries,

Inc.^^ does not alter this approach, but offers new factors for consid-
eration in determining whether a danger really is open and obvious. The

use of these factors serves to mitigate the harsh results obtained previously

under Indiana's open and obvious danger rule and creates hope that

Indiana will be brought a step closer to the modern trend in this area
of law. This Article examines the development and use of the no-duty

open and obvious danger rule in Indiana and the impact the Corbin

decision may have on that rule.

II. Development of the Open and Obvious Danger
Rule in Indlaj^a

Bemis Co., Inc. v. Rubush^^ is the leading case in Indiana on the

devices and make hazards more obvious, and shifts the economic loss to the injured party
in spite of the manufacturer's lack of care in design. See Holm v. Sponco Mfg. Inc.,
324 N.W.2d at 213.

"Ford Motor Co. v. Rodgers, 337 So. 2d 736 (Ala. 1976). Indiana courts recently

reaffirmed the use of an objective test to determine whether a danger is open and obvious.

In Ragsdale v. K-Mart Corp., 468 N.E.2d 524 (Ind. Ct. App. 1984), the court stated,

"Whether a defect or danger is open and obvious is an objective test, based upon what the

user should have known." Id. at 527 (citing American Optical Company v. Wiedenhamer,
457 N.E.2d 181 (Ind. 1983)). See also Angola State Bank v. Butler Manufacturing Co.,

475 N.E.2d 717, 718 (Ind. Ct. App. 1985).
'475 N.E.2d at 718.

"•Id.

'See Bemis Co., Inc. v. Rubush, 427 N.E.2d 1058 (Ind. 1981).

'See, e.g.. Auburn Machine Works Co. v. Jones, 366 So. 2d 1167 (Fla. 1979); Holm
v. Sponco Mfg. Inc., 324 N.W.2d 207 (Minn. 1982); Micallef v. Miehle Co., 39 N.Y.2d
376, 348 N.E.2d 571, 384 N.Y.S.2d 115 (1976).

'Bemis Co., Inc. v. Rubush, 427 N.E.2d 1058, 1061 (Ind. 1981); Hoffman v. E.
W. Bliss Co., 448 N.E.2d 277, 284 (Ind. 1983); Bryant-Poff, Inc. v. Hahn, 454 N.E.2d
1223, 1225 (Ind. Ct. App. 1982).

'°748 F.2d 411 (7th Cir. 1984).

"427 N.E.2d 1058 (Ind. 1981).



1 986] OPEN AND OB VIOUS 3 8

5

application of the open and obvious danger rule in product liability

actions. The plaintiff in Bemis was injured when a shroud from a batt

packing machine descended and struck the plaintiff in the head. The

case was tried by the jury under a strict liability theory. The defendant

was found liable and appealed'^ on the ground that the trial court had

improperly applied the law of strict Hability.'^ The court of appeals

affirmed the trial court's application of the law,'"* and the defendant

sought transfer to the Indiana Supreme Court. '^ On appeal, the plaintiff
conceded that the danger in the descending shroud was open and obvious.

However, the plaintiff contended that the machine should have been

designed so that the shroud could not descend when an object or person

was in its path.'^ The defendant argued that it could not be held liable

under a strict Uability theory because the danger was open and obvious;

therefore, it had no duty to warn of the obvious danger,'^

The Indiana Supreme Court found that the lower courts had in-

correctly interpreted Restatement (Second) of Torts section 402A strict
Uability law.'^ The court noted that section 402A imposes liability upon

'^Id. at 1059.

^^Id. The shift in focus that occurs in this part of the opinion is extremely important.

The plaintiff focused on the failure to equip the machine with proper safety devices. The

defendant focused on the duty to warn. The court shifted to the defendant's focus, which

resulted in the application of the no-duty open and obvious danger rule to all types of

strict product liability actions regardless of whether the theory was one of failure to warn

or defective design.

'"M at 1059. The court of appeals' decision recognized that modern technology had

enabled the development of products that utilized "complex and sophisticated technology,

incomprehensible to all but practitioners of the art, [where] the dangers are not so obvious

and may not be appreciated by an ordinary consumer with ordinary knowledge in the
community, even though the dangers may be appreciated by the sophisticated." Bemis
Co., Inc. V. Rubush, 401 N.E.2d 48, 57 (Ind. Ct. App. 1980), vacated. All N.E.2d 1058

(Ind. 1981). The court of appeals noted that the proper role of open and obvious dangers

was as a factor to be considered in deciding whether a product was unreasonably dangerous.

Because this decision involved an examination of the facts and circumstances presented,

it was deemed a jury question. The test under this approach was objective. The jury

would consider the evidence presented on what the ordinary knowledge of the community

was concerning the product, the feasibility of safeguards, the plaintiff's appreciation of

the danger, and any other relevant factors. The ultimate issue was whether the product

"was in a defective condition unreasonably dangerous, that is, dangerous to an extent

beyond that which is contemplated by the ordinary consumer, with the ordinary knowledge

common to the community as to the product's characteristics." 401 N.E.2d at 57.
"427 N.E.2d at 1059.

'"•Id. at 1060-61.

''Id. at 1060.

'*/<i. at 1059. Bemis was decided under Restatement (Second) of Torts section 402

A

strict liability which states:

(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



386 INDIANA LAW REVIEW [Vol. 19:383

manufacturers only when the product is unreasonably dangerous.'^ **Un-

reasonably dangerous" was defined in Bemis as "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."^^ If a product was not unreasonably dangerous,

no legal action was possible.^'

The court interpreted section 402A to permit recovery only where

a defect is ''hidden and not normally observable. . . ."^^ Where a defect

is observable, the manufacturer would have no duty to warn, even if

the manufacturer had actual or constructive knowledge of the defect. ^^

Because the plaintiff was aware of the danger presented by the descending

shroud, the Indiana Supreme Court found that the trial court had erred

in not instructing the jury on the open and obvious danger rule and in

faiUng to define unreasonably dangerous. ^'^ Based on this finding, the

court vacated the court of appeals decision and ordered the trial court

to enter judgment on behalf of the defendant. ^^ According to Justice

(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.

Restatement (Second) of Torts § 402A (1965).
Following the Bemis decision, 402A strict liability was codified at Ind. Code § 33-

1-1.5-3 (Supp. 1985). The Indiana version, however, limits the user or consumer to "the

class of persons that the seller should reasonably foresee." Id.

""Bemis, All N.E.2d at 1061.

^°Id. (An expert witness in Bemis defined a risk or hazard as unreasonble "if it

could be removed and the cost of removal is not significant nor the cost of removal does

not [sic] seriously reduce the utihty of the product." Id. at 1063.)

^'Id. at 1061.

^^Id.

^Ud. It is interesting to note the effect of this rule. Rather than encouraging the

design and construction of safe products, it encourages manufacturers to make defects
or dangers as open and blatant as possible in order to avoid liability. The more blatant

the danger, the less the chance of liability. Other jurisdictions have avoided this pitfall

by making the open and obvious danger merely a factor to be considered rather than a

bar to recovery as a matter of law. See supra notes 2 and 3 and accompanying text.

''Bemis, All N.E.2d at 1064.

"M. The supreme court apparently relied on Campo v. Scofield, 301 N.Y. 468, 95
N.E.2d 802 (1950), in overruling the Indiana Court of Appeals' decision. However, nowhere

in the Indiana Supreme Court majority decision is it acknowledged or mentioned that the

New York courts had overturned the Campo decision in Micallef v. Miehle, 39 N.Y.2d
376, 348 N.E.2d 571, 384 N.Y.S.2d 115 (1976).

The Bemis dissent by Justice Hunter acknowledged that Campo had been overruled.
Bemis, All N.E.2d at 1067. Justice Hunter noted that the rule adopted by the majority

defeated the purposes of 402A strict liability by prohibiting recovery as a matter of law
even though a product was unsafe. Id. at 1067-68 (Hunter, J., dissenting). Justice DeBruler's



1986] OPEN AND OBVIOUS 387

Hunter, who dissented, this order indicated that the majority had adopted
the position that recovery for injuries suffered at the hands of an " 'open

and obvious danger' are barred as a matter of law" in Indiana.
^^

III. Defining the Danger

Two years after Bemis, the Indiana Supreme Court again addressed
the open and obvious danger rule in Hoffman v. E. W. Bliss Company. ^^

The Hoffman decision did not reevaluate the efficacy of the no-duty
rule but focused on what should be considered an open and obvious

danger. ^^

In Hoffman, the plaintiff's fingers were crushed and severed when

the ram of a punch press suddenly descended without being activated. ^^

The case was tried before a jury, and a verdict was returned in favor

of the defendants. The plaintiff appealed. ^^

On appeal, the defendant argued that the open and obvious danger
rule precluded recovery by the plaintiff.^' The plaintiff had testified that

he knew of the danger posed by the descending ram^^ and that the
machine was not functioning properly. ^^ The Indiana Supreme Court

found that this testimony did not bring the case within the purview of

the open and obvious danger rule.^^

The court focused on the interpretation of the word "danger. "^^ It

was obvious that the ram descended with tremendous force, but it was
not obvious that the ram would descend without being activated by the
operator. ^^ This distinction, in the eyes of the court, was critical. The
unactivated descent of the ram was found to be hidden defect which
would not excuse the manufacturer from liability. ^^ Hoffman had in-
troduced evidence that the ram's descent could have been caused by an

dissenting opinion also noted that "[o]pen and obvious dangers may be reasonable, and
again they may not be." Id. at 1065 (DeBruler, J., dissenting).

^''Id. at 1066. While the majority did not expressly state that recovery was barred
as a matter of law, the dissent properly noted that an erroneous instruction would only
have required a new trial. Id. (Hunter, J., dissenting).

^^448 N.E.2d 277 (Ind. 1983).

^M at 285.
^"Id. at 280.

'"'Id. at 278.

''Id. at 285.

'^Id.

''Id. at 280.

'^Id. at 285.

''Id.

"'Id.

'''Id. The activation of the machine by the operator in Bemis is apparently the crucial
factor that differentiates that case from Hoffman. In Bemis, the plaintiff focused his
claim on the lack of safety devices, whereas the Hoffman plaintiff focused his claim on
an alleged malfunction or uninitiated descent of the ram.



388 INDIANA LA IV REVIEW [Vol. 19:383

uninitiated double trip^* and that no warning was provided informing

the user of this possibiHty. Therefore, the court concluded that the theory

espoused by Hoffman and the evidence introduced in support precluded
a finding that Hoffman's injury was caused by an open and obvious

danger. ^^ The court declared that **[a] careful examination of the evidence

in each case is necessary to determine whether the danger in the product

is truly and entirely open and obvious. ""^^

The Hoffman decision created hope that the open and obvious danger

rule would be used sparingly as a method to preclude recovery as a

matter of law for injuries suffered from defects in a product. However,

this hope was dashed by the Bryant-Poff Inc. v. Hahn"^^ decision in

1982.

The plaintiff in Hahn was injured while attempting to paint a rust
spot on a grain elevator by reaching between a chain and sprocket

mechanism. The plaintiff was on a platform ninety feet above the ground

when the chain and sprocket device was activated from an operator's

station at ground level. The plaintiff's arm was pulled into the system

and crushed. The injuries resulted in a below the elbow amputation.^^

The plaintiff brought suit against the manufacturer of the device on

theories of negligence and strict liability. "^^ On appeal, the judgment in
favor of the plaintiff was reversed on the basis that the open and obvious

danger rule precluded recovery as a matter of law."^ The Indiana Supreme

Court denied transfer, in effect affirming the court of appeals' reversal

of the trial court judgment."^^

The court of appeals had reversed the trial court judgment because

it found that the chain and sprocket mechanism presented an open and

^^Hoffman, 448 N.E.2d at 285. (The defendant introduced evidence that the descent

of the ram could have been cause by Hoffman's inadvertent activation of the ram.).
'"Id.

^Id. This comment places the majority in a precarious position. The Bemis dissent
had noted that the majority rule lacked flexibility. This is the problem arising in Hoffman
where the facts are substantially similar to the Bemis facts, and yet, the majority reaches

an opposite conclusion. The court's statement does, however, raise the question of just
how much fact review and weighing a court may do under the open and obvious danger
rule. Justices Hunter and DeBruler concurred in a separate opinion in the Hoffman
majority result. Justice Hunter again pointed out the problems with the open and obvious

danger rule as adopted in Indiana and agreed that if the rule was to exist, it should be
narrowly construed, id. at 288 (Hunter, J., concuring).

^'454 N.E.2d 1223 (Ind. Ct. App. 1982). (The court of appeals had earlier reversed
in an unpublished memorandum decision reported at 443 N.E.2d 1266.) The Indiana
Supreme Court denied transfer of this case, see Hahn, 453 N.E.2d 1171 (Ind. 1983), where
Justice Hunter wrote a dissenting opinion to the court's denial of transfer.

^^54 N.E.2d at 1224.

''Id.

^Id. at 1225.

^H53 N.E.2d 1171 (Ind. 1983).



1986] OPEN AND OBVIOUS 389

obvious danger.^ This was in spite of the fact that a jury could have

found that the unguarded chain and sprocket mechanism created an

unreasonably dangerous condition/^ The Indiana Supreme Court's af-

firmation of this decision expanded the scope of the open and obvious

danger rule.

In Bemis, the court had taken the position that the product was

not unreasonably dangerous because the ordinary consumer or user of

the product was capable of recognizing the dangers presented by the

descending shroud/^ The Hoffman decision reaffirmed this approach by

reiterating the maxim that manufacturers were liable for injuries caused

by placing products in the stream of commerce that were in a
*

'defective

condition unreasonably dangerous.
''^^ The Hahn decision obliterated the

theory underlying this principle by declaring that the open and obvious

danger rule precluded recovery even when the danger made the product

unreasonably dangerous.
^°

Justice Hunter recognized the inconsistency between the Hahn de-

cision and the Bemis and Hoffman decisions.^' Justice Hunter noted

that, in the earlier decisions, the court had found that the product was

^^454 N,E,2d 1225. The court of appeals relied on Coffman v. Austgen's Electric,

Inc., 437 N.E.2d 1003 (Ind. Ct. App. 1982). In Coffman, a twelve-year-old boy reached

into a grain auger's hopper to remove a bird's nest. The auger was not running when

the boy reached into the hopper. However, the auger was inadvertently started when the

boy had his arm in the hopper. The boy's hand was badly mangled as a result of the

accident. Id. at 1005.

The plaintiffs sued on the basis of the defendants' negligent failure to place guards

over the auger shaft and for improper design of the control panel and on a strict products

liability theory. Id. The case proceeded to trial, and the court refused to read the plaintiffs'

instruction on duty to warn because it omitted language concerning open and obvious

dangers. Id. at 1008. The court of appeals affirmed the trial court's decision to omit the

plaintiffs' instruction because it failed to state that manufacturers have no duty to warn

of open and obvious dangers. Id. The court of appeals, without elaboration, also stated:

"Clearly, the potentiality of danger inherent in sticking one's hand in an auger which

has the propensity to move is open and obvious to all." Id.
The Hahn court's reliance on Coffman is interesting because in Hahn the plaintiff

was barred from recovery as a matter of law, and the case never got to the jury. In

Coffman, however, the case was tried, and the open and obvious danger issue arose as

a result of a tendered jury instruction. Presumably, if the plaintiff in Coffman had

submitted a proper instruction, the jury would have been left to determine whether under

the facts and circumstances presented, the danger was truly open and obvious. In Hahn,

the opposite is true because the court determined, as a matter of law, that the danger

was open and obvious.

*'Hahn, 454 N.E.2d at 1225.

*H21 N.E.2d at 1064. (Although the Bemis decision does not specifically state that

the product was not unreasonably dangerous, that inference is created through the court's

definition and use of the term unreasonably dangerous.)
^^448 N.E.2d at 281.

'M54 N.E.2d at 1225.

''Hahn, 453 N.E.2d at 1171-72 (Hunter, J., dissenting).



390 INDIANA LAW REVIEW [Vol. 19:383

not unreasonably dangerous because the danger was open and obvious."
In Hoffman, the court in refusing to find the danger open and obvious
left the issue for the jury to decide because of conflicting evidence."
In Hahn, there was evidence that the product was unreasonably dangerous
because of the absence of guards and violations of industry standards. ^^

The evidence also showed that the chain and sprocket were not in motion
when Hahn attempted to paint the rust spot and that the chain was
loose until the machine was activated. ^^ xhere was no dispute that the
danger from the chain and sprocket mechanism was open and obvious
when it was moving.^^ The plaintiff, however, was proceeding on the
theory that warnings should have alerted users of the need to disconnect
the power prior to working near the chain on the platform to avoid
activation by another person and that instructions of how to disconnect
the power should have been provided.^^ Because the evidence in the
Hahn case created a question of whether the danger from a non-moving
chain really was open and obvious. Justice Hunter concluded the case
was analogous to the Hoffman case and the jury should have been
permitted to determine whether the danger presented by the nonmoving
mechanism was "truly and entirely open and obvious. ''^^

The definition of an open and obvious danger had thus become
closely tied to the use of the open and obvious danger rule as a means

"/c^. at 1172.

''Id.

''Id. at 1173.

''Id.

"•Id.

"Id. at 1174.

'^Id. at 1175 (quoting Hoffman, 440 N.E.2d at 285). The Indiana Supreme Court

also addressed the issue of open and obvious dangers in American Optical Co. v. Wei-

denhamer, 457 N.E.2d 181 (Ind. 1983). In American Optical, the court held that the

danger of an eye-glass lens breaking and injuring the wearer's eye was a risk that was

"obvious to all." Id. at 188. The court's decision was based on the lack of any evidence

that the safety glasses were defective or dangerous or improperly designed. Without evidence

of a defect, there could be no duty to warn. The only danger presented was the risk

that something could strike the glasses causing them to shatter or break. It was this risk

that the court determined was obvious to all users and required no warning. Again, this

approach encourages manufacturers to omit warnings of known dangers. The better

approach, and one consistent with the protection of the public, was outlined by the

concurring opinion. Id. at 188-89 (DeBruler, J., concurring).

Justice DeBruler, joined by Justice Hunter, concurred in the result obtained by the

majority but for different reasons. Id. at 188. The manufacturer of the safety glasses

knew of the limitations of the glasses and therefore had a legal duty to supply adequate

warnings concerning the dangers associated with the use of the safety glasses and the

precautions to be taken. Id. The evidence presented at trial showed that the manufacturer

had supplied warnings with each pair of glasses. However, these warnings were removed

by the injured plaintiff's plant prior to distributing the glasses to the workmen. Therefore,

the evidence was insufficient to support a finding that the glasses were defective because of

a lack of adequate warnings by the manufacturer. Id. at 189.



1986] OPEN AND OBVIOUS 391

to preclude recovery. Following the Hahn decision, the determination
that a danger was open and obvious would bar recovery even when the

danger presented was recognized as being so great that it made the

product unreasonably dangerous. The rule, as applied in Hahn, creates

the absurd result of permitting manufacturers to leave safety devices

and guards off of their products deliberately to ensure that the dangers

presented in using the product will be obvious. ^^ Under this approach,

the determination of whether a danger is open and obvious attains

increased importance and significance, and the no-duty open and obvious

danger rule becomes increasingly virulent.

IV. The Rule's Extension to Non-Product Actions

The scope of Indiana's open and obvious danger rule was further

broadened by the Indiana Court of Appeals in Law v. Yukon Delta,
Inc.^ In Law, the plaintiff was injured when he slipped and fell on the

defendant's premises while there for business purposes. He admitted in
his deposition that he was aware the floor was wet and assumed that

it was slippery because it was made of concrete. The plaintiff, never-
theless, proceeded across the floor without seeking help. The defendant

was granted summary judgment based on the open and obvious danger
rule. The plaintiff appealed.^'

On appeal, the plaintiff argued that the open and obvious danger
rule applied only to actions based on a strict product liability theory. ^^

The Indiana Court of Appeals, however, determined that the Bemis

decision supported the application of the rule to all types of actions,

whether based on a negligence theory or on a strict products liability

theory. This determination was based on the Indiana Supreme Court's

use in Bemis of the phrase '*[i]n the area of products liability, based

upon negligence or based upon strict liabiHty."^^ This language was used
to indicate that the open and obvious danger rule was meant to apply

to all products liability actions regardless of whether the action was

based on negligence or strict liability.^ Because the rule was applied to

product liability negligence actions, the Law court reasoned that it could
be extended to apply to negligence actions that did not involve a product. ^^

The court found this extension logical because the prima facie evidence
requirements were the same for all types of negligence actions, and the

open and obvious danger rule was a ** logical factor to consider when

''Hahn, 453 N.E.2d at 1174 (Hunter, J., dissenting to denial of transfer).

"458 N.E.2d 677 (Ind. Ct. App. 1984).

'Id. at 678.

^Id. at 678-79.

'Id. (quoting Bemis Co., Inc. v. Rubush, 427 N.E.2d at 1061).

'Law, 458 N.E.2d at 679.

'Id.



392 INDIANA LA W REVIEW [Vol. 19:383

determining whether a person has acted in an ordinary and reasonable

fashion."^

Judge Staton, in his dissenting opinion, noted that the majority's

extension of the open and obvious danger rule to negligence actions was

unnecessary.^^ Indiana negligence law already required three elements for

recovery: 1) defendant owed a duty to the plaintiff; 2) defendant failed

in performing that duty; and 3) the failure to perform the duty resulted

in the plaintiff's injury.^^ Under negligence law, the plaintiff's unrea-

sonable failure to recognize an obvious risk or danger would preclude

recovery because of the plaintiff's contributory neghgence.^^ The plain-

tiff's subjective knowledge of a danger would also preclude recovery

under the doctrine of incurred risk.'" Thus, according to Judge Staton,

application of the open and obvious danger rule was unnecessary in the

Law case.'*
This issue was again addressed in Bridgewater v. Economy Engi-

neering Company. ^^ In Bridgewater, a worker suffered fatal injuries when

the guardrails of a ladder on which he was working suddenly collapsed

and caused him to fall.'^ A negligence action was brought against the
distributor of the ladder. The defendant was granted summary judgment
on the basis that any defect in the guardrail latching device was, as a

matter of law, open and obvious and the product was, therefore, not

unreasonably dangerous. '"*

On appeal, the court of appeals refused to extend the Bemis open
and obvious danger rule to negligence actions even when a product was
involved.'^ The court noted that extending the application of the open

and obvious danger rule to neghgence actions created an anomaly in

Indiana law.'^ The Indiana Supreme Court had declared that the de-

termination of whether a product had a concealed or hidden danger was

a question of fact for the jury in negligence actions.'' If the court

utilized the open and obvious danger rule to bar recovery in negligence

actions as a matter of law, the result would be that the court would

actually be determining whether a defect was hidden or concealed.'^ The

"^Id.

'''Id. at 680 (Staton, J., dissenting).

"^Id. at 681.

"''Id. (citing Kroger Co. v. Haun, 177 Ind. App. 403, 410-11, 379 N.E.2d 1004,

1009 (1978)).

'''Id. (citing Kroger Co. v. Haun, 177 Ind. App. at 415-16, 379 N.E.2d at 1012).

''Id.

'H64 N.E.2d 14 (Ind. Ct. App. 1984), vacated, 486 N.E.2d 484 (Ind. 1985).

''Id. at 15.

"Id. at 16.

"Id. at 18.

"'Id.

"Id. (citing J.I. Case Co. v. Sandefur, 245 Ind. 213, 197 N.E.2d 519 (1964)).
"Id.



1986] OPEN AND OBVIOUS 393

Bridgewater court questioned the potential result that the parties could

control whether the court or jury decided that issue in negligence cases

by merely phrasing the issue as one of an open and obvious danger or

one of a concealed danger. ^^ Because the Indiana Supreme Court could

not have intended this type of result, the Bridgewater court disputed

whether the open and obvious danger rule should apply to both strict

products liability actions and negligence actions. ^°

This conflict in the appellate courts' application of the open and

obvious danger rule to negligence cases was resolved by the Indiana

Supreme Court when it granted transfer in Bridgewater v. Economy
Engineering Co.^^ The court granted transfer in part to clarify the open

and obvious danger rule's application to negligence actions. ^^

As a preliminary matter, the Indiana Supreme Court clarified the

Bemis holding by stating that the court had not intended the open and

obvious danger issue always to be decided as a matter of law. Rather,

''Id.

'°Id.

*'486 N.E.2d 484 (Ind. 1985). The application of the open and obvious danger rule

to product liability actions based on negligence presents unique problems in Indiana.

Indiana recently adopted comparative fault in negligence actions. Ind, Code §§ 34-4-33-

1 to -13 (Supp. 1985). Under this Act, the fault of the defendant and plaintiff are to be

compared to determine the liability, if any, of the defendant. If a plaintiff is over 50%
at fault, he is denied any recovery under the Act. Ind. Code § 34-4-33-5(a)(2) (Supp. 1985).

The efficacy of the open and obvious danger rule under comparative fault principles

can be seriously questioned. The open and obvious danger rule creates an artificial condition

which places full blame of an injury on the plaintiff even though the defendant is really

partially at fault. These type of no-duty rules clash with the very purpose of comparative

fault statutes and therefore should not remain viable under comparative fault. Indiana

courts should recognize this clash and determine that even if the open and obvious danger

rule would have applied to product actions based on negligence under Law, it has no

place in a comparative fault system. The rule should be only one factor considered when

comparing the fault of the defendant and plaintiff. Contra Schwartz, Comparative

Negligence 202-03 (1974).

This approach would create problems because Indiana's Comparative Fault Act does

not apply to product liability actions based on strict liability. If a plaintiff pursues a

product action based on theories of negligence and strict liability, the court may be faced
with the unenviable task of determining that the strict liability claim is barred by the

open and obvious danger no-duty rule while the negligence claim should proceed to the

jury for a fault comparison to determine the liability of the defendant to the plaintiff,

if any.

A solution to the problem may be to place the open and obvious danger rule in its
proper place in both types of product actions: to treat it as a factor to be considered in

determining whether the plaintiff incurred the risk of injury in using the product in strict

liability actions, and in neghgence actions as a factor in determining whether the plaintiff

was contributorily negligent or incurred the risk. This avoids the problem of treating

various types of product actions differently and allows the consideration of the openness

and obviousness of a danger when determining the liability of the defendant. See infra
notes 107-23 and accompanying text.

«H86 N.E.2d at 485.



394 INDIANA LAW REVIEW [Vol. 19:383

it was to be treated as a matter of law only in cases involving a set

of facts that were not in conflict and where no general issue was left

as to **any material fact except for the question of whether the danger

was open and obvious. "^^ Under the facts presented in Bridgewater, the

Indiana Supreme Court agreed with the court of appeals' statement that

the question of whether the danger was open and obvious was the same

as whether the danger was concealed or hidden.^'* The court did not

discuss the factors to be considered in making that determination. How-
ever, the court decided that the open and obvious danger rule would

not be extended to all negligence actions. ^^ In light of this ruling, the

court's conclusion that Bridgewater's neghgence action should be dis-

missed appears misplaced. ^^ However, the court evidently determined that

all product actions, whether based on strict liability or negligence, would

be subject to the open and obvious danger defense. ^^ The court did not
discuss the distinction being made between general negligence actions
and product-based negligence actions or the repercussions such a dis-

tinction could have in the future. Therefore, the scope of the application

of the open and obvious danger rule and the determination of what

constitutes an open and obvious danger remain major issues in Indiana

law and may be significantly affected by the recent Seventh Circuit
Court of Appeals decision in Corbin v. Coleco Industries, Inc.^^

V. The Corbin Decision

In Corbin, the plaintiff, Mr. Corbin, became the owner of a used

Coleco swimming pool. Mr. Corbin placed the pool in his backyard

and filled it to a depth of about four feet. One evening, Mr. Corbin

jumped onto the lip of the pool (a six-inch wide flat rim running around

the top edge), balanced himself, and dove in. He intended to do a '*belly
flopper," but for some reason his waist bent in mid-air and he entered

the water head first. He hit his head on the bottom of the pool and

*'Id. at 488.

^Id.

*^Id. at 489. In doing so, the court explicitly adopted part of the language used by

Judge Staton in his dissenting opinion in Law. See supra notes 67-71 and accompanying

text.

«^486 N.E.2d at 489.

*Uustice Shepard (concurring in part, dissenting in part) was also surprised by the

majority's finding that the trial court had properly used the open and obvious danger

rule to grant summary judgment on the negligence theory. He noted that the majority
did not discuss the distinction it was making between non-product negligence actions and

product negligence actions. He approved of the court's ruling that the open and obvious
danger rule would not apply to general negligence actions but dissented on the court's

finding that the product-based negligence action was properly dismissed. 486 N.E.2d at

490-91.

««748 F.2d 411 (1984).



1986] OPEN AND OBVIOUS 395

suffered a fracture dislocation in vertebrae C-5 and C-6, resulting in

quadriplegia. At the time of the accident, he was twenty-seven years

old and in good health. ^^

Mr. Corbin and his wife filed a complaint against Coleco based in

part on the theories of negligence and strict product liability. Coleco

moved for summary judgment and the district court held that it was
obviously dangerous for a six-foot man to dive into four feet of water.

^

The court held additionally that Coleco had no duty to warn of the

open and obvious dangers and that a product is not defectively designed

when its dangerous properties are patent. The district court found that

the cause of Corbin's injuries was his own error of judgment in executing
a shallow dive, implicitly concluding that a missing or defective warning

was not a proximate cause of the injury. Finding no genuine issue of

material fact, the district court granted Coleco's motion for summary
judgment. ^^ Mr. Corbin appealed and the Seventh Circuit Court of

Appeals, construing Indiana law, reversed the decision. ^^

On appeal, Coleco vigorously asserted that the danger of diving into
four feet of water was open and obvious. The Seventh Circuit Court

of Appeals noted that if this were true, it would be a complete defense

to a charge of negligent breach of duty to warn of the danger because

there would be no such duty.^^ However, the court found "that Corbin

put on the record before the district court evidence that the danger of

serious spinal cord injury from diving into shallow water is not open

and obvious and that this evidence is sufficient to preclude summary
judgment for Coleco on the basis of the open and obvious defense. "^"^

The evidence presented by Mr. Corbin included expert testimony

that users of swimming pools:

are aware of a general safety principle or homily against diving

into shallow water. . . . The problem is that people associate

that warning or general admonition with a couple of different

things. They associate it with that you shouldn't dive into un-
known waters, especially not unknown waters that are shallow,
because there may be an object lurking there which you can
strike .... They also associate the general admonition against

diving as [sic] to mean that in a shallow body of water, some
dives may create injury, some types of dives. The other important
thing that the users of the pool typically carry in their heads

is the behef that there is a safe and proper particular way to

^"Id. at 412-13

"^Id. at 413.

«A/. at 417, 421.

"/rf. at 417 (citing Bemis Co., Inc. v. Rubush, 427 N.E.2d at 1061).
'Vc?. at 417.



396 INDIANA LAW REVIEW [Vol. 19:383

dive into pools of approximate or bodies of water of that
approximate depth of three and a half feet. Flat and shallow
dives with arms outstretched are common knowledge and one
of the most rudimentary forms of diving that people learn.
People have the belief that if they dive into water in approxi-
mately the depth we are concerned with here, that if they dive
in a fairly shallow dive, with their hands outstretched in front
of them, that in the event they strike the bottom, their hands
will absorb or cushion the blow, that the only thing they will

do is strike their hands on the bottom.'^

The court went on to maintain:

The crucial point made in this testimony is that even though
people are generally aware of the danger of diving into shallow

water, they believe there is a safe way to do it, namely, by
executing a flat shallow dive. If people do in fact generally hold

such a belief, then it cannot be said, as a matter of law, that

the risk of spinal injury from diving into shallow water is open

and obvious. Whether a danger is open and obvious depends

not just on what people can see with their eyes but also on

what they know and believe about what they see. In particular,
if people generally believe that there is a danger associated with

the use of a product, but that there is a safe way to use it,
any danger there may be in using the product in the way generally
believed to be safe is not open and obvious.^^

Deposition testimony by Corbin indicated that Corbin was aware of

the depth of the pool and that it might be too shallow to dive in. This

testimony revealed clearly that Corbin knew of some general danger in
diving into the shallow water. However, the Seventh Circuit stated that

this testimony was 'inconclusive on the crucial points: whether he knew
that he risked serious spinal cord injury, possibly resulting in paraplegia

or quadriplegia, and whether he believed that it was safe to dive as

long as the dive was flat and shallow. "^^ At one point in his deposition,

Corbin indicated that he had jumped wrong. It was clear that Corbin

intended to perform a flat, shallow dive rather than the dive that resulted.

The Seventh Circuit noted that this testimony, along with the expert

witness' testimony that people generally believe that flat, shallow dives

into shallow water are safe, created a genuine issue of material fact as

to whether Corbin knew that he risked spinal injury by diving into
shallow water, even if he attempted a flat, shallow dive. If he did not

"^^Id. at 417 (quoting deposition).

"^Id. at 417-18.

''Id. at 418.



1986] OPEN AND OBVIOUS 397

know this, then a conspicuous warning on the side of the pool could
very well have deterred him from diving. The court concluded that the

summary judgment for Coleco on the basis of Corbin's knowledge of

the danger was inappropriate.^^

The Seventh Circuit also addressed the issue of whether the Coleco

swimming pool was an unreasonably dangerous product. The court stated

that whether a product is in an unreasonably dangerous defective con-

dition is a question of fact.^^ The Seventh Circuit stated that the district

court had found that Corbin's injuries were caused by his own error
of judgment in executing a shallow dive that he knew to be dangerous.

Therefore, the district court had implicitly concluded as a matter of law

that Corbin's injuries were not caused by a defect in the pool unreasonably

dangerous to users. '^ The Seventh Circuit found this to be error because

there was evidence that the pool was in a condition that made it
exceptionally dangerous, well beyond what the ordinary user of swimming

pools would contemplate and well beyond any danger that Corbin actually

contemplated, and that this defect was the cause of Corbin's injuries.'^'

The Seventh Circuit relied on testimony by an expert witness in-

dicating that the outer lip of the pool would wobble, thus affecting an

individual's ability to control a dive. The court noted that Corbin might

have had intimate knowledge of the construction of the pool without

knowing that the Up wobbled when stood on or that a wobbling pool
lip would impair a diver's control. His knowledge of the depth of the

water and the general danger of diving into shallow water did not show

that he knew the extreme danger of diving into shallow water from a
wobbly platform. '°^ Coleco maintained that Corbin's strict liability claim

was defeated by the open and obvious danger rule of Bemis. In rejecting

this claim, the appellate court stated:

Even if it were open and obvious that there is some danger in
diving into shallow water ... we cannot say on this record as
a matter of law that it was open and obvious that the lip of
Corbin's pool wobbled or that a wobbly pool Hp increases the
danger of a dive from it. Thus, the open and obvious rule does
not defeat Corbin's strict liability theory at the summary judg-
ment stage. ^^^

The court concluded, **we think the record shows that it is a genuine
issue of material fact whether the pool contained a latent defect making

•^Id.

"^Id. at 419.

"=^Id.

'^'Id. at 419-20.

"^/cf. at 420.

'°V</. at 420-21.



398 INDIANA LAW REVIEW [Vol. 19:383

it unreasonably dangerous to divers, notwithstanding the general danger

of diving into shallow water.
"'^

VI. The Impact of Corbin on Indiana Law

The Corbin decision potentially has two areas of major impact on

Indiana law. First is the federal court's acceptance that the open and

obvious danger rule applies to product liability actions based on neg-

ligence; second are the factors to be considered when determining whether

a danger is truly open and obvious as a matter of law.

A. Application of the Open and Obvious Danger Rule
to Negligence Actions

The Corbin decision addressed the application of the open and

obvious danger rule to both a products liability case based on negligent

failure to warn and on strict liability. The Corbin court did not debate

whether Bemis intended to encompass negligence-based actions or only

actions based on a strict liability theory. '°^ Instead, the court simply

stated that if diving into four feet of water was open and obvious, then

"it is a complete defense to a charge of negligent breach of a duty to

warn of the danger. "'^^

This determination was compatible with the Indiana Supreme Court's

subsequent ruling in Bridgewater. However, the application of the open

and obvious danger rule to product liability actions based on negligence

may create substantial problems.
Indiana recently passed comparative fault legislation.'^^ Other states

adopting comparative fault have struggled with the existence of no-duty

rules'^^ because they circumvent fault comparison and thwart the very

'"^Id. at 421.

'°The Corbin decision was handed down prior to the Indiana Supreme Court's decision
in Bridgewater. The federal court's acceptance of the application of the open and obvious

danger rule in product negligence actions was therefore not based on that decision. The

court conducted an examination to determine whether a negligent failure to warn action
had survived the passage of the Products Liability Act. Id. at 416-17. The court concluded

that it had and that the products act would govern the action only so far as the substantive

provisions of the Act conflicted with the common law. The accident had occurred in 1978,
and the court was concerned with the following statutory language in the 1978 version

of the statute: "This chapter shall govern all product liability actions, including those in

which the theory of liability is negligence or strict liability in tort .... " Id. at 416

(quoting Ind. Code § 33-1-1.5-1 (1982)). Concluding that the action had survived passage
of the Act, the court went on to address the merits of the case.

'"^Corbin, 748 F.2d at 417.

'°lND. Code §§ 34-4-33-1 to -13 (Supp. 1985).
"""See Pardieck, The Impact of Comparative Fault in Indiana, 17 Ind. L. Rev. 925,

942-54 (1984) (containing a discussion of various states' approach to no-duty rules under

comparative fault systems). See also Woods, The Negligence Case: Comparative Fault
14:32 (1978).



1986] OPEN AND OBVIOUS 399

purpose of comparative fault. '°^ The logic of the open and obvious

danger rule is questionable under negligence systems because it swallows

the assumption of risk defense and greatly expands the concept of

contributory negligence, both of which are viable defenses in a negligence

action.''^ The Bridgewater and Corbin courts' approach creates a question

of whether the no-duty rule should continue under a comparative fault

system where the application of the rule actually prevents the comparison

of fault. It would seem that the approach utilized by the Minnesota

Supreme Court in Holm v. Sponco Manufacturing, Inc.^^^ would be
desirable. In that case, the court abandoned the use of the rule as a

complete bar to recovery and treated it as a factor to be considered in

determining whether a product was unreasonably dangerous and whether

the injured person had exercised reasonable care.''^

The impact of the Bridgewater and Corbin courts' interpretation of

the Bemis decision has the potential for significant impact because it

supports the application of the open and obvious danger rule to product

cases based on a negligence theory."^ The level of this impact will

perhaps never be known because of the new issues added to the debate
by the adoption of comparative fault.

The Bemis decision was also based on a strict Hability claim. ''^ The

importance of this was pointed out by the court of appeals in Bridgewater^ ^^

and may have been a major factor in the Corbin court's decision to apply
the open and obvious danger rule to the case. The Bridgewater and Cor-

bin courts' application of the rule appears to have been based on the fact

that the cases involved products and the Bemis decision was intended, Hke

the product liability statute,"^ to apply to all actions whether based on

negligence or strict liability. However, the products statute has since

been revised and now applies only to actions based on a claim of strict
liability."^ Presumably, the open and obvious danger rule, as appHed

in Bemis, should not have a place in negligence actions because the

plaintiff's conduct is already considered in both the contributory neg-

ligence and assumption of risk defenses. The adequacy of these defenses

in negligence actions was acknowledged by the majority of the supreme

court in Bridgewater.^ ^^ Justice Shepard disagreed with the application of the

open and obvious rule to product liability actions based on negligence and

""'See Pardieck, supra note 108, at 942-54.

"«/£/.

'"324 N.W.2d 207 (Minn. 1982).
"Vcf. at 213.

'''Corbin, 748 F.2d at 417.

"M27 N.E.2d at 1061.
"464 N.E.2d at 18. See supra text accompanying notes 72-80.

"*IND. Code § 33-1-1.5-1 (1983).
"iND. Code §§ 33-1-1.5-1 to -6 (Supp. 1985).
"H86 N.E.2d at 489.



400 INDIANA LAW REVIEW [Vol. 19:383

noted that no examination had been made as to the reasons for applying
the rule in some negHgence actions but not in others.''^ Presumably,

the Indiana Supreme Court will be asked to address this issue again

and examine the logic of the distinction being made between product
and non-product negligence actions. If this is done, the court may find
that the open and obvious danger rule should not apply in any type of

negligence action because adequate defenses already exist in these actions.'^"

This would leave Indiana with a situation in which the open and obvious

danger rule could totally bar recovery in a strict products liability theory,

but act as only a factor to be considered in a products claim based on

negligence. A more logical approach, and one more consistent with the
goals of comparative fault, would be to utilize the open and obvious

danger as a factor to be considered in determining whether the plaintiff

had incurred the risk of injury in a strict products liability action and

as a factor in determining fault in a negligence based action. This

approach has been utilized successfully by other jurisdictions'^' and avoids

the problem of treating products cases differently because of the theory

pursued. It also avoids adopting an approach that is inconsistent with

the comparative fault act.

Because strict liability claims are not covered by comparative fault, '^^

it is possible that the open and obvious danger rule could continue to

exist in its unaltered form in strict products cases. '^^ At this time, it is

impossible to predict which route will be chosen by the Indiana courts.

Adopting the approach of treating the open and obvious danger issue

as a factor to be considered would, however, avoid serious problems

in the future and would be consistent with the Corbin decision and

avoid distinctions in the treatment of personal injury cases based on

the method of injury or theory pursued.

"'A/, at 490-91 (Shepard, J., concurring in part, dissenting in part).

'^If the adequacy of available defenses is considered, it is highly questionable whether

the open and obvious danger rule should apply as a complete defense in any type of

action. Under Indiana's Product Liability Statute, manufacturers may assert four major
defenses: 1) incurred or assumed risk; 2) misuse of the product; 3) modification or

alteration of the product; and 4) state of the art. Ind. Code § 33-1-1. 5-4(b) (Supp. 1985).
The assumed risk defense is similar to the open and obvious danger rule and adequately

protects manufacturers, especially because contributory negligence is not a defense in strict

product liability actions. The obviousness of a, danger should logically only be a factor

that is considered in determining whether the product user incurred the risk of using the

product.
'2
'See supra note 2.

'"Ind. Code § 34-4-33-1 (Supp. 1985).
'^The authors' personal view is that the obviousness of a danger should be treated

as only one factor for the jury to consider when determining whether a product is

unreasonably dangerous and whether the plaintiff has exercised reasonable care.



1986] OPEN AND OB VIOUS 401

B. Factors Considered in Determining Whether a Danger

is Truly Open and Obvious

The Corbin decision presents unlimited possibilities for determining

whether a danger is really open and obvious.'^"* The test applied is still

the objective test enunciated and followed in Indiana decisions. The

factors considered, however, are greatly advanced. '^^ The Corbin decision

entered a consideration of not only physical factors but psychological

factors. '^^ The court recognized that perceiving danger or hazards is not

as simple as one first believes. The issue is not as simple as the water

is four feet deep and everyone knows diving into water of that depth

can be dangerous. Rather, the issue encompasses a determination of

what people generally believe about diving. The court acknowledged, as

did the Hoffman court, '^^ that people can know of a general danger
but not be aware of a more specific danger. '^^

The Corbin decision is a culmination of the course begun by the

Indiana open and obvious danger cases. It indicates that the no-duty

rule operates to bar recovery only where the specific danger is known,

appreciated, and clearly visible. '^^ This case, it is hoped, will alert Indiana

courts to the complexity of hazard and risk recognition.'^^ The case is

also instructive in showing that questions of fact will at times be presented

in determining what a populace does generally believe. When such ques-
tions are presented, the resolution of the issue should be left for the

jury, even under the no-duty rule approach.

The close examination of the facts presented and the consideration

of psychological factors may serve as a step to bring Indiana more in
line with other jurisdictions. While Indiana may still have the open and
obvious danger rule, its harsh effects can be lessened by a consideration

of all the factors and an understanding of the complexity of the issues

'^The decision also is cause for hope that the rule will one day be altered and treated

as only a factor to be considered rather than a complete bar to recovery. If such a change

does not occur, the Corbin decision at least provides an avenue for construing the rule

narrowly.

'^'Corbin, 748 F.2d at 417-21.

'"^Id. at 417-18.

^^^See supra notes 27-40 and accompanying text.

'"^Corbin, 748 F.2d at 420.

'^"Several articles discussing the human's ability to recognize and perceive hazards

have been written. These articles indicate that humans, as a whole, have great difficulty

in perceiving and understanding risks for various reasons, the major reason being that

people are poor judges of probability and therefore underestimate the probability that an

accident or injury could occur. See, e.g., McKean, Decisions, Discover, June 1985, p.
22; Kahneman and Tversky, The Psychology of Preferences, 246 Scientific American 160

(1982). See also Wickens, Engineering Psychology and Human Performance (1984).



40: INDIANA LA W REVIEW [Vol . 19:383

of risk and danger recognition. The focus on what people in the plaintiffs

position at the time of the accident would have beheved is also beneficial.

It places the determination of what constitutes an open and obvious

danger in the proper perspective by focusing on what the average person

with the plaintiff's level of knowledge and understanding would see and

believe, not what a manufacturer with years of experience believes should

be open and obvious.'^'

VII. Conclusion

The Corbin decision promises to have an impact on Indiana's open
'i: and obvious danger rule in two major areas. First, it supports the

%\ application of the rule to products cases based on a negligence claim.
'*'» The decision's impact in this area may be overshadowed by the adoption
bi« of comparative fault and the issues comparative fault raises with regard

ni^
to no-duty rules. Second, the Corbin case places the open and obvious

"J:f
danger rule in a more human light. Its consideration of psychological

»«t as well as physical factors shows an appreciation for the complexity of

the human's ability to recognize and perceive danger. Consideration of

%^ these factors will lessen the harsh effect of the open and obvious danger

[|i5 rule by recognizing that sometimes the obviousness is elusive.
\hI.

v^\

"'It is noteworthy that manufacturers themselves have recognized the great importance

j^. proper design and warnings play in the production process. It is axiomatic that good

tit t design calls for dangers to be designed out if possible, guarded against, and warned about,

jf
^ in that order. See Hammer, Product Safety Management and Engineering 55, 108-

I
13 (1980). The importance of warnings is to alert the product user of hazards or other

noteworthy conditions, and they are necessary to prevent users from making incorrect

decisions that could cause accidents. See Hammer, Handbook of System and Product

rus

f^. Safety 86 (1972).

•lij.