Indiana Law Review


Survey of Recent Developments in
Indiana Product Liability Law

Joseph R. Alberts*

James Petersen**
Ann L. Thrasher Papa'

Introduction

In the eleven years since the Indiana General Assembly amended the Indiana
Product Liability Act ("IPLA")^ in 1995, Indiana judges and product liability

practitioners have made significant strides in refining and defining its scope and
meaning. The 2005 survey period^ brought continued activity by the Indiana
Court of Appeals with respect to a variety of product liability issues. The
Seventh Circuit Court of Appeals and the LFnited States District Court for the

Southern District of Indiana issued a surprising number of substantively
important product liability federal decisions.

This survey does not attempt to address in detail all of the cases decided

during the survey period that might be interesting to Indiana product liability

practitioners.^ Rather, it examines selected cases that address important product

* Litigation Counsel, Dow AgroSciences LLC, Indianapolis; B.A., cum laude, 1991,
Hanover College; J.D., magna cum laude, 1994, Indiana University School ofLaw—Indianapolis.
Chairman, Product Liability Section, Defense Trial Counsel of Indiana (1999-2001); Board of

Directors, Defense Trial Counsel of Indiana (2002-Present). The authors thank Adam Brower,
William Hahn, and Freedom Smith for their assistance with this Article.

** Partner, Ice Miller LLP, Indianapolis; B.A., 1970, Illinois State University; M.A., 1973,

University of Illinois; J.D., magna cum laude, 1976, Indiana University School of
Law—Bloomington. Past Co-Chair, Product Liability Section, Indiana Defense Lawyers'
Association.

*** Project Attorney, Ice Miller LLP, Indianapolis; B.A., 1993, Indiana University; J.D.,

magna cum laude, 2001, Indiana University School of Law—Indianapolis.
1

.

This survey article follows the lead of the Indiana General Assembly and employs the

term "product liability" (not "products liability") when referring to actions governed by the IPLA.

2. The survey period is October 1, 2004, to September 30, 2005.

3. There were many cases decided during the survey period that simply cannot be treated

in detail here because of space constraints even though they may be interesting to Indiana product

liability practitioners. Two such cases involve issues of federal preemption. In Bates v. Dow
AgroSciences LLC, 544 U.S. 431 (2005), the United States Supreme Court held that the Federal

Insecticide, Fungicide, and Rodenticide Act ("FIFRA") does not expressly preempt state law-based

claims for defective design, defective manufacture, negligent testing, and breach of express

warranty. Id. at 443. FIFRA does not expressly preempt state law-based failure-to-wam and fraud

claims if they are found to be equivalent or parallel to FIFRA' s labeling requirements covering

"misbranding." Id. at 447. In another interesting preemption case, McMullen v. Medtronic, Inc.,

421 F.3d 482 (7th Cir. 2005), cert, denied, 126 S. Ct. 1464 (2006), the Seventh Circuit affirmed

a Southern District ofIndiana decision that the federal requirements imposed by the Food and Drug

Administration pursuant to the Medical Device Amendments to the Federal Food, Drug and

Cosmetic Act preempted plaintiffs common law claims against a device manufacturer for post-sale

failure to warn. Id. at 490.



1 146 INDIANA LAW REVIEW [Vol. 39: 1 145

liability issues. This survey also provides some background information, context,
and commentary where appropriate.

I. The Scope OF THE IPLA

The Indiana General Assembly first enacted the IPLA in 1978. It originally
governed claims in tort utilizing both negligence and strict liability theories. In

1983, the General Assembly amended it to apply only to strict liability actions.'*
In 1995, the General Assembly amended the IPLA to once again encompass
theories of recovery based upon both strict liability and negligence.^

In 1998, the General Assembly repealed the entire IPLA and recodified it,
effective July 1, 1998.^ The 1998 recodification did not make substantive
revisions; it merely redesignated the statutory numbering system to make the
IPLA consistent with the General Assembly's reconfiguration of the statutes
governing civil practice.

The IPLA, Indiana Code sections 34-20-1-1 to -9-1, governs and controls all
actions that are brought by users or consumers against manufacturers or sellers

for physical harm caused by a product, "regardless of the substantive legal theory
or theories upon which the action is brought."^ When Indiana Code sections 34-
20-1-1 and -2-1 are read together, there are five unmistakable threshold

requirements for BPLA liability: (1) a claimant whom is a user or consumer and
is also "in the class of persons that the seller should reasonably foresee as being

subject to the harm caused";^ (2) a defendant that is a manufacturer or a "seller
. . . engaged in the business of selling [a] product";^ (3) "physical harm caused

In addition, because product liability cases often turn on the admissibility, credibility, and

persuasiveness of opinion witnesses, Henderson v. Freightliner, LLC, No. l:02-cv-1301-DFH-

WTL, 2005 U.S. Dist. LEXIS 5832, at *1 (S.D. Ind. Mar. 24, 2005) andNorfolkS. Ry. Co. v. Estate

of Wagers, 833 N.E.2d 93 (Ind. Ct. App. 2005), trans, denied (Ind. 2006), are also cases in which

product liability practitioners will be interested. In Henderson, a case involving an injured diesel

truck mechanic, the court held that opinion witness testimony about components of the truck, the

truck itself, and the circumstances ofplaintiffs' injuries was relevant, and that the offered testimony

was admissible despite lack of peer review and specific scientific validation. See 2005 U.S. Dist.

LEXIS 5832, at *30-53. In Estate of Wagers, a case involving alleged exposure to asbestos and

diesel fumes, the court affirmed the trial court's denial of a motion to exclude plaintiffs' opinion

witness. 833 N.E.2d at 38.

4. Act of Apr. 21, 1983, 1983 Ind. Acts 297.

5. Act of Apr. 26, 1995, 1995 Ind. Acts 278; see Progressive Ins. Co. v. Gen. Motors Corp.,

749 N.E.2d 484, 487 n.2 (Ind. 2001).

6. The current version of the IPLA is found in Indiana Code sections 34-20-1-1 to -9-1.

7. IND. Code § 34-20-1-1 (2005).

8. Indiana Code section 34-20-1-1 identifies a proper IPLA claimant as a "user" or

"consumer." Indiana Code section 34-20-2-1(1) requires that IPLA claimants be in the "class of

persons that the seller should reasonably foresee as being subject to the harm caused by the

defective condition."

9. Indiana Code section 34-20- 1 - 1 (a) identifies properIPLA defendants as "manufacturers"



2006] PRODUCT LIABILITY 1147

by a product'V° (4) a product that is in a defective condition unreasonably
dangerous to a user or consumer or to his property;'' and (5) a product that

reached the user or consumer without substantial alteration in its condition.'^

Indiana Code section 34-20-1-1 makes clear that the IPLA governs and controls
all claims that satisfy these five requirements, "regardless ofthe substantive legal

theory or theories upon which the action is brought."'^

A. ". . . brought by a user or consumer . . .'*

The language the General Assembly employs in the IPLA is very important
when it comes to who qualifies as IPLA claimants. Indiana Code section 34-20-
1-1 provides that the IPLA governs claims asserted by "users" and "consumers."
For purposes of the IPLA, "consumer" means:

(1) a purchaser;

(2) any individual who uses or consumes the product;
(3) any other person who, while acting for or on behalf of the injured

party, was in possession and control of the product in question; or

(4) any bystander injured by the product who would reasonably be
expected to be in the vicinity of the product during its reasonably

or "sellers." Indiana Code section 34-20-2-1(2) provides the additional requirement that such a

manufacturer or seller also be "engaged in the business of selling the product," effectively

excluding comer lemonade stand operators and garage sale sponsors from IPLA liability.

10. IND. Code § 34-20-1-1(3) (requiring "physical harm caused by a product").

11. Id. % 34-20-2-1 (2005) (requiring that the product at issue be "in a defective condition

unreasonably dangerous to any user or consumer or ... to his property").

12. Id. § 34-20-2-1(3) (requiring that the product at issue "is expected to and does reach the

user or consumer without substantial alteration in the condition in which the product is sold by the

person sought to be held liable"). Indiana Pattern Jury Instruction 7.03 sets out a plaintiffs burden

of proof in a product liability action. It requires a plaintiff to prove each of the following

propositions by a preponderance of the evidence:

(1) the defendant was a manufacturer of the product (or part of the product) alleged to

be defective and was in the business of selling the product;

(2) the defendant sold, leased, or otherwise put the product into the stream ofcommerce;

(3) the plaintiff was a user or consumer of the product;

(4) the product was in a defective condition unreasonably dangerous to users or

consumers (or to user's or consumer's property);

(5) the plaintiff is in a class of persons the defendant should reasonably have foreseen

as being subject to the harm caused by the defective condition;

(6) the product was expected to and did reach the plaintiff without substantial alteration

of the condition in which the defendant sold the product;

(7) the plaintiff or the plaintiffs property was physically harmed; and

(8) the product was a proximate cause of the physical harm to the plaintiff or the

plaintiffs property.

13. M§ 34-20-1-1.



1 148 INDIANA LAW REVIEW [Vol. 39: 1 145

expected use."^"^

"User" has the same meaning as "consumer." ^^ Several published decisions in
recent years construe the statutory definitions of "user" and "consumer." ^^

A literal reading of the IPLA demonstrates that even if a claimant qualifies
as a statutorily-defined "user" or "consumer," he or she also must satisfy another

statutorily-defined threshold before proceeding with a claim under the IPLA.

That additional threshold is found in Indiana Code section 34-20-2-1(1), which
requires that the "user" or "consumer" also be "in the class of persons that the

seller should reasonably foresee as being subject to harm caused by the defective
condition." ^^ Thus, the plain language of the statute assumes that a person or

entity must already qualify as a "user" or a "consumer" before a separate

"reasonable foreseeability" analysis is undertaken. ^^ In that regard, the IPLA

14. Id. § 34-6-2-29.

15. Id. § 34-6-2-147.

16. See Butler v. City of Peru, 733 N.E.2d 912 (Ind. 2000) (mentioning that a maintenance

worker could be considered a "user or consumer" of an electrical transmission system because his

employer was the ultimate user and he was an employee of the "consuming entity"); Estate of

Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275 (Ind. 1999) (holding that a "user or consumer"

includes a distributor who uses the product extensively for demonstration purposes). For a more

detailed analysis of Butler, see Joseph R. Alberts & David M. Henn, Survey of Recent
Developments in Indiana Product Liability Law, 34 Ind. L. Rev. 857, 870-72 (2001). For a more

detailed analysis oi Estate of Shebel, see Joseph R. Alberts, Survey of Recent Developments in

Indiana Product Liability Law, 33 iNfD. L. REV. 1331, 1333-36 (2000).

17. Indiana Code section 34-20-2-1 imposes liability when "a person who sells, leases, or

otherwise puts into the stream of commerce any product in a defective condition unreasonably

dangerous to any user or consumer or to the user's or consumer's property . . . if . . . that user or

consumer is in the class of persons that the seller should reasonably foresee as being subject to the

harm caused by the defective condition."

18. It is important to recognize the distinction between the "reasonable foreseeability" test

employed pursuant to Indiana Code section 34-20-2-1(1) and the separate "reasonableness"

components of Indiana Code sections 34-20-4-1, -3, and -4. Indiana Code section 34-20-4-1

provides that a "product is in a defective condition ... if, at the time it is conveyed by the seller to

another party, it is in a condition . . . not contemplated by reasonable persons among those

considered expected users or consumers of the product." Indiana Code section 34-20-4-3 provides

that "[a] product is not defective under [the IPLA] if it is safe for reasonably expectable handling

and consumption. If an injury results from handling, preparation for use, or consumption that is

not reasonably expectable, the seller is not liable under [the IPLA] ." Indiana Code section 34-20-4-

4 incorporates the same premise: "[a] product is not defective under [the IPLA] if the product is

incapable of being made safe for its reasonably expectable use, when manufactured, sold, handled,

and packaged properly."

Indiana Code section 34-20-4- 1 employs a "reasonableness" test to measure the condition of

the product relative to its risks among persons already considered expected users or consumers.

Similarly, Indiana Code sections 34-20-4-3 and -4 employ a "reasonableness" test to determine

whether the product is handled and consumed in expectable ways. These analyses should be



2006] PRODUCT LIABILITY 1 149

does not appear to provide a remedy to a claimant whom a seller might
reasonably foresee as being subject to the harm caused by a product's defective
condition if that claimant falls outside of the IPLA's definition of "user" or

"consumer."

On February 7, 2006, the Indiana Supreme Court decided Vaughn v. Daniels
Co. (West Virginia),^^ further defining and narrowing who qualifies as a "user"
or "consumer" for purposes of bringing an action under the EPLA. Although the

court decided Vaughn outside the 2005 survey period and presumably will be
addressed in more detail in next year's survey article, practitioners should be
aware of the decision. Briefly, the facts are as follows: Daniels Company
designed and built a coal preparation plant at a facility owned by Solar Sources,
Inc.^° Part of the design involved the installation of a heavy media coal sump.^'

An out-of-state steel company manufactured the sump that Daniels designed and
sent it, unassembled, to the facility.^^

Stephen Vaughn worked for the construction company that Daniels hired to
install the sump.^^ During the installation process, Vaughn climbed onto the top
of the sump to help connect a pipe. The chain he was using to secure the pipe in
place gave way, causing Vaughn to fall and sustain injuries.^"^ Vaughn did not
wear his safety belt when he climbed onto the sump.^^

Vaughn and his wife sued Daniels, alleging, among other things, "negligent
design, manufacturing, and maintenance of the sump and the processing plant,"
as well as a "strict liability" claim. The trial court granted summary judgment
to Daniels, concluding that Daniels owed no duty of care to Vaughn and that
Vaughn was not a "user" or "consumer" under the IPLA. The court of appeals
affirmed summary judgment for Daniels on the negligence claim, but reversed
on the product liability claim based upon an expansive view of the terms "user"
and "consumer."^^

The Indiana Supreme Court held that Daniels could not be liable under the
IPLA because Vaughn was not a "user" or "consumer." The court also
concluded that Daniels could be liable, however, under a separate common law
theory of recovery. With regard to the IPLA claim, Vaughn could not be
considered either a purchaser of the sump or a person "acting for or on behalf of

separate and distinct from an examination that employs "reasonableness" as a guidepost for a user's

or consumer's foreseeability as a potential IPLA plaintiff.

19. 841 N.E.2d 1133 (Ind. 2006).

20. Mat 1136.
21. Id.

22. Id.

23. Id.

24. Id.

25. Id.

26. 777 N.E.2d 1 1 10 (Ind. Ct. App. 2002), clarified on reh'g, 782 N.E.2d 1062 (Ind. Ct.

App. 2003), vacated, 841 N.E.2d 1133 (Ind.), reh'g denied (Ind. 2006). For a more detailed

analysis ofthe court of appeals' s decision in Vaughn, see Joseph R. Alberts & Jason K. Bria, Survey
ofRecent Developments in Indiana Product Liability Law, 37 iND. L. REV. 1247, 1250-57 (2004).



1 150 INDIANA LAW REVIEW [Vol. 39: 1 145

the injured party."^^ Although the Vaughn court recognized that "use" of a
product might include "installation or assembly" if the manufacturer intends the

product "to be delivered to the ultimate purchaser in an unassembled state[,]"

such was not the case here because Solar ordered an "assembled and installed
product."^^ Because the "product" was not assembled and installed at the time
of Vaughn's accident, "neither Vaughn nor anyone else was a user of the product
at the time it was still in the process of assembly and installation."^^

Vaughn did not have a product liability claim for negligent design of the
sump because he was not a "user" or "consumer." Practitioners should
recognize, however, that the Vaughn court addresses his theoretical product
liability claim against Daniels as if it were a strict liability claim.^^ The court's
opinion, as a result, has the potential to confuse those who seek to interpret it
consistent with the IPLA's requirements. Vaughn's alleged design defect claim,

if it existed, would not have been a "strict liability" claim because the DPLA
requires him to prove, among other things, that Daniels "failed to exercise
reasonable care under the circumstances in designing the product."^

^

Practitioners also should consider in its proper context the common law
negligence claim the Indiana Supreme Court allowed to proceed against Daniels.
Vaughn argued, among other things, that Daniels was "negligent" in its design
and manufacture of a "defective coal sump constituting a latent danger in the use
of the product." The Vaughn court's holding makes it clear that such allegations
are not product liability claims.^^ Rather, the claims that survive against Daniels

allege common law negligence for failing to "design" (i.e., provide) sufficient
safety devices to protect workers during installation of the sump within the
context of the larger plant.

B. ". . . against a manufacturer or seller. . .

"

For purposes of the EPLA, "'[m]anufacturer' . . . means a person or an entity
who designs, assembles, fabricates, produces, constructs, or otherwise prepares
a product or a component part of a product before the sale of the product to a user

or consumer."^^ "'Seller' . . . means a person engaged in the business of selling
or leasing a product for resale, use, or consumption."^"^ Indiana Code section 34-

20-2-1(2) employs nearly identical language when addressing the threshold
requirement that liability under the IPLA will not attach unless the "seller is

27. V^aM^/in,841N.E.2datll39.

28. Id.

29. Id.

30. Mat 1138-43.
3 1

.

IND. Code § 34-20-2-2 (2005); see, e.g., Burt v. Makita USA, Inc., 212 F. Supp.2d 893,

899-900.

32. Vaughn, S4\N.E.2d at 1144.

33. iND. Code § 34-6-2-77 (2005).

34. Id. § 34-6-2-136.



2006] PRODUCT LIABILITY 1151

engaged in the business of selling the product."^^

Sellers can be held liable as manufacturers in two ways. First, if the seller

fits within Indiana Code section 34-6-2-77(a)'s definition of "manufacturer,"
which expressly includes a seller who:

(1) has actual knowledge of a defect in a product; (2) creates and

furnishes a manufacturer with specifications relevant to the alleged

defect for producing the product or who otherwise exercises some
significant control over all or a portion of the manufacturing process; (3)
alters or modifies the product in any significant manner after the product

comes into the seller's possession and before it is sold to the ultimate
user or consumer; (4) is owned in whole or significant part by the
manufacturer; or (5) owns in whole or significant part the
manufacturer.^^

Second, a seller can be deemed a statutory "manufacturer" and, therefore, be
held liable to the same extent as a manufacturer, in one other limited
circumstance. Indiana Code section 34-20-2-4 provides that a seller may be
deemed a "manufacturer" if the court "is unable to hold jurisdiction over a
particular manufacturer" and if the seller is the "manufacturer's principal

distributor or seller."^^

There is one other important provision about which practitioners must be

aware when it comes to liability of "sellers" under the IPLA. When the theory
of liability is based on "strict liability in tort,"^^ Indiana Code section 34-20-2-3

35. Id. § 34-20-2-1(2); see, e.g., Williams v. REP Corp., 302 F.3d 660 (7th Cir. 2002)
(recognizing that Indiana Code § 33-1-1.5-2(3), the predecessor to Indiana Code § 34-20-2-1,

imposes a threshold requirement that an entity must have sold, leased, or otherwise placed a

defective and unreasonably dangerous product into the stream of commerce before IPLA liability

can attach and before that entity can be considered a "manufacturer" or "seller"); Del Signore v.

Asphalt Drum Mixers, 182 F. Supp. 2d 730 (N.D. Ind. 2002) (holding that although the defendant

provided some technical guidance or advice relative to ponds at an asphalt plant, such activity was

not sufficient to constitute substantial participation in the integration of the plant with the pond so

as to deem it a "manufacturer" of the plant); see also Joseph R. Alberts & James M. Boyers, Survey
ofRecent Developments in Indiana Product Liability Law, 36 iND. L. REV, 1 165, 1 170-72 (2003).

36. iND. Code § 34-6-2-77(a) (2005).

37. Id § 34-20-2-4. Kennedy v. Guess, Inc. , 806 N.E.2d 776 (Ind.), reh 'g denied (Ind. 2004),

is the most recent case interpreting Indiana Code section 34-20-2-4 and specifically addressing the

circumstances under which entities may be considered "manufacturers" or "sellers" under the IPLA.

See also Goines v. Federal Express Corp., No. 99-cv-4307-JPG, 2002 U.S. Dist. LEXIS 5070, at

*14-15 (S.D. 111. Jan. 8, 2002). The court, applying Indiana law, examined the "unable to hold

jurisdiction over" requirement oflndiana Code section 34-20-2-4. Id. at*9. The plaintiff assumed

that "jurisdiction" refers to the power of the court to hear a particular case. The defendant argued

that the phrase equates to "personal jurisdiction." The court refused to resolve the issue, deciding

instead to simply deny the motion for summary judgment because the designated evidence did not

clearly establish entitlement to application oflndiana Code section 34-20-2-4. M at * 14- 15.
38. The phrase "strict liability in tort," to the extent that the phrase is intended to mean



1 152 INDIANA LAW REVIEW [Vol. 39: 1 145

provides that an entity that is merely a "seller" and cannot be deemed a
"manufacturer" is not liable, and is not a proper IPLA defendant.^^

C. ". . . for physical harm caused by a product. . .

"

For purposes of the IPLA, "physical harm" means "bodily injury, death, loss
of services, and rights arising from any such injuries, as well as sudden, major

damage to property.""^® It does not include "gradually evolving damage to
property or economic losses from such damage.""^'

For purposes of the IPLA, "product" means "any item or good that is

"liability without regard to reasonable care," appears to encompass only claims that attempt to

prove that a product is defective and unreasonably dangerous by utilizing a manufacturing defect

theory. Indiana Code section 34-20-2-2 provides that cases utilizing a design defect or a failure to

warn theory are judged by a negligence standard, not a "strict liability" standard.

39. IND. Code § 34-20-2-3- (2005). In Ritchie v. Glidden Co., lAl F.3d 713 (7th Cir. 2001),

the court cited what is now Indiana Code section 34-20-2-3 for the proposition that sellers in a

product liability action may not be liable unless the seller can be deemed a manufacturer. Id. at

725-26. Applying that reading of what is now Indiana Code section 34-20-2-3, the court held that

defendant Glidden could not be liable pursuant to the IPLA because the plaintiff failed to designate

sufficient facts to demonstrate that Glidden had actual knowledge ofan alleged product defect (lack

of warning labels) and because Glidden did not meet any of the other statutory definitions or

circumstances under which it could be deemed a manufacturer. Id. There is an omission in the

Ritchie court's citation to what is now Indiana Code section 34-20-2-3 that may be quite significant.

The statutory provision quoted in Ritchie leaves out the following important highlighted language:

"A product liability action [based on the doctrine ofstrict liability in tort] may not be commenced

or maintained." Id. at 725 (emphasis added). The Ritchie case involved a failure to warn claim

against Glidden under the IPLA. Indiana Code section 34-20-2-2 makes it clear that "liability

without regard to the exercise of reasonable care" (strict liability) applies now only to product

liability claims alleging a manufacturing defect theory. Claims alleging design or warning defect

theories are controlled by a negligence standard. See, e.g., Burt v. Makita USA, Inc., 212 F. Supp.

2d 893 (N.D. Ind. 2002); see also Alberts & Boyers, supra note 35, at 1 173-75.
40. Ind. Code § 34-6-2-105(a) (2005).

41. Id. § 34-6-2- 105(b); see, e.g., Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749

N.E.2d 492, 493 (Ind. 2001) (holding that "personal injury and property damage to other property

from a defective product are actionable under the IPLA, but their presence does not create a claim

for damage to the product itself); Progressive Ins. Co. v. Gen. Motors Corp., 749 N.E.2d 484, 486

(Ind. 2001) (holding that there is no recovery under the IPLA where a claim is based on damage

to the defective product itself); Miceli v. Ansell, Inc., 23 F. Supp. 2d 929, 933 (N.D. Ind. 1998)

(denying a motion to dismiss a case a motion to dismiss in a case determining that Indiana

recognizes that pregnancy may be considered a "harm" in certain circumstances); see also Great N.

Ins. Co. V. Buddy Gregg Motor Homes, Inc., No. IP 00-1378-C-H/K, 2002 U.S. Dist. LEXIS 7830,

at *2 (S.D. Ind. Apr. 29, 2002) (holding that there was no recovery under the IPLA in a case

involving a motor home destroyed in a fire allegedly caused by a defective wire in the engine

compartment).



2006] PRODUCT LIABILITY 1153

personalty at the time it is conveyed by the seller to another party.'"^^ The term
does not apply to a "transaction that, by its nature, involves wholly or
predominantly the sale of a service rather than a product.'"^^

D. ". . . a product in a defective condition unreasonably dangerous. .
.

"

Only products that are in a "defective condition" are ones for which IPLA
liability may attach."^ For purposes of the IPLA, a product is in a "defective
condition" if

at the time it is conveyed by the seller to another party, it is in a

condition:

(1) not contemplated by reasonable persons among those considered
expected users or consumers of the product; and

(2) that will be unreasonably dangerous to the expected user or consumer

when used in reasonably expectable ways of handling or consumption/^

42. IND. Code §34-6-2-1 14(a).

43. Id. § 34-6-2- 105(b). The most recent significant case in this area is Baker v. Heye-

America, 799 N.E.2d 1 135 (Ind. Ct. App. 2003), in which the court held that a worker injured by

a bottle-making machine could recover under the IPLA as the "user" of a "product." Id. at 1 141.

In support of its conclusion that the bottle-making machine was, in fact, a product for IPLA

purposes, the court reasoned that the process undertaken when it was rebuilt was "a substantial and

complicated one that resulted in a complex new machine that was significantly different from its

parts." Id. at 1141. According to the Baker court, "Heye-America did more than simply provide

the service of restoring [the machine] from a damaged condition . . . [tjhrough an interactive

process with [Baker's employer], Heye-America designed and produced a custom product that it

placed in the stream of commerce." Id.

See also R.R. Donnelley & Sons Co. v. N. Tex. Steel Co., 752 N.E.2d 112, 121-22 (Ind. Ct.
App. 2001) (holding that a manufacturer of component parts of a steel rack system sold a product

and did not merely provide services because it modified raw steel to produce the component parts

and, in doing so, transformed the raw steel into a new product that was substantially different from

the raw material used); Marsh v. Dixon, 707 N.E.2d 998, 1001-02 (Ind. Ct. App. 1999) (holding

that an amusement ride involved the provision of a service and not the sale of a product); Lenhardt

Tool & Die Co. v. Lumpe, 703 N.E.2d 1079, 1085-86 (Ind. Ct. App. 1998) (holding that defendant
provided products and not merely services because it transformed metal block into "new" products

and because it repaired damaged products, both of which created "new," substantially different

work product); N.H. Ins. Co. v. Farmer Boy AG, Inc., No. IP 98-003 1-C-T/G, 2000 U.S. Dist.

LEXIS 19502, at *7-8 (S.D. Ind. Dec. 19, 2000) (holding that installation of a custom-fit electrical

system into a hog bam involved wholly or predominately the sale of a service rather than a

product); Buddy Gregg, 2002 U.S. Dist. LEXIS 7830, at *15 (holding that plaintiff could not

pursue a negligent inspection claim separate and apart from the IPLA because no reasonable jury

could determine that the allegedly negligent inspection occurred as part of a transaction for

"services" that was separate from the purchase of a motor home).

44. Ind. Code §34-20-2-1(1).

45. /rf. § 34-20-4-1.



1 154 INDIANA LAW REVIEW [Vol. 39: 1 145

Recent cases confirm that establishing one of the foregoing threshold

requirements without the other will not result in liability under the IPLA."^^

Claimants in Indiana may prove that a product is in a "defective condition"
by asserting one or a combination of three theories: (1) the product has a defect

in its design (a "design defect"); (2) the product lacks adequate or appropriate

warnings (a "warnings defect"); or (3) the product has a defect that is the result

of a malfunction or impurity in the manufacturing process (a "manufacturing

defect")."'

Although claimants are free to assert any of those three theories for proving

that a product is in a "defective condition," the IPLA provides explicit statutory
guidelines identifying when products, as a matter of law, are not defective.
Indiana Code section 34-20-4-3 provides that "[a] product is not defective under
[the IPLA] if it is safe for reasonably expectable handling and consumption. If

an injury results from handling, preparation for use, or consumption that is not

reasonably expectable, the seller is not liable under [the IPLA].""^^ In addition,

46. See Baker, 799 N.E.2d at 1140 ("[UJnder the IPLA, the plaintiff must prove that the

product was in a defective condition that rendered it unreasonably dangerous." (citing Cole v.

Lantis Corp., 714 N.E.2d 194, 198 (Ind. Ct. App. 1999))).

47. See First Nat'l Bank & Trust Cop. v. Am. Eurocopter Corp. {Mow 11), 378 F.3d 682, 689
(7th Cir. 2004); Baker, 799 N.E.2d at 1 140; Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d

155, 161 (Ind. Ct. App. 1997).

48. Ind. Code § 34-20-4-3 (2005). One recent case discussing "reasonably expectable use"

is an unpublished federal decision in Hunt v. Unknown Chemical Manufacturer No. One, No. IP

02-389-C-M/S, 2003 U.S. Dist. LEXIS 20138, at *1 (S.D. Ind. Nov. 5, 2003). There, Gary Hunt

purchased lumber treated with chromium copper arsenate ("CCA") from Furrow Building

Materials. Id. at *3. The chemical treatment waterproofs lumber and protects it from damage from

wood-boring insects. Id. at *2-3. Hunt used the wood primarily to construct a deck around a

swimming pool. Id. at *4. He then sold the home to the plaintiffs, who tore down the deck, burned

the wood in the backyard, and spread the ashes as fertilizer in the family garden. Id. at *3-4.

Plaintiffs filed suit after learning "about the dangers resulting from exposure to CCA-treated wood."

Id. at *4.

Judge McKinney cited Indiana Code section 34-20-4-3 for the proposition that manufacturers

(as defined by the IPLA) can only be held liable for injury or damage caused by a product's

reasonably expectable use. Id. at *27-28. He also recognized that Indiana cases such as Wingett

V. Teledyne Industries, Inc., 419 N.E.2d 5 1 (Ind. 1985), contemplate that some activities or actions

relative to a product (demolition of ductwork in that case) are simply not foreseeable as a matter

of law and, accordingly, are not "intended" or expected uses of the product. Id. at *28-29.

Applying Indiana law to the facts before him. Judge McKinney recognized that the "intended use

of the treated wood that . . . Hunt bought from Furrow was the construction of decks and other

structures." Id. at *3 1 . He did "use the wood to construct and repair a swimming pool deck." Id.

at *32. That use was not, however, the basis of plaintiffs' claim. Rather, the claims stemmed from

the burning of the treated wood at issue. Id. Accordingly, Judge McKinney concluded that

"[p]laintiffs' destruction of the wood and their post-destruction use ofthe wood ashes as 'fertilizer'

for the yard were not reasonably foreseeable uses of the product." Id.



2006] PRODUCT LIABILITY 1 155

Indiana Code section 34-20-4-4 provides that "[a] product is not defective under
[the IPLA] if the product is incapable of being made safe for its reasonably
expectable use, when manufactured, sold, handled, and packaged properly.""^^

In addition to the two specific statutory pronouncements identifying when a
product is not "defective" as a matter of law, Indiana law also defines when a
product may be considered "unreasonably dangerous" for purposes of the ILPA.
A product is "unreasonably dangerous" only if its use "exposes the user or
consumer to a risk of physical harm . . . beyond that contemplated by the ordinary
user or consumer who purchases [it] with ordinary knowledge about the
product's characteristics common to consumers in the community."^^ A product
is not unreasonably dangerous as a matter of law if it injures in a way or in a
fashion that, by objective measure, is known to the community of persons
consuming the product.^

^

49. IND. Code § 34-20-4-4.

50. Id. § 34-6-2-146; see also Baker, 799 N.E.2d at 1 140; Cole, 714 N.E.2d at 199. In Baker,

a panel of the Indiana Court of Appeals wrote that "[t]he question whether a product is

unreasonably dangerous is usually a question offact that must be resolved by thejury." 799 N.E.2d

at 1140 (emphasis added). Another panel wrote the same thing in Vaughn v. Daniels Co., Ill

N.E.2d 1 128 (Ind. Ct. App. 2002) (citing Cole, 714 N.E.2d at 200). Those panels also seem to

favorjury resolution in determining reasonably expected use. Indeed, the Baker o^imon states that

"reasonably expectable use, like reasonable care, involves questions concerning the ordinary

prudent person, or in the case of products liability, the ordinary prudent consumer. The manner of

use required to establish 'reasonably expectable use' under the circumstances of each case is a

matter peculiarly within the province of the jury." 799 N.E.2d at 1 140 (citing Vaughn, 111 N.E.2d

at 1128).

It would be incorrect, however, to conclude from those pronouncements that there exists

something akin to a presumption that juries always should resolve whether a product is

unreasonably dangerous or whether a use is reasonably expectable. Indeed, recent cases have

resolved the defective and unreasonably dangerous issue as a matter of law in a design defect

context even in the presence of divergent expert testimony. In Burt v. Makita USA, Inc., 212 F.

Supp. 2d 893 (N.D. Ind. 2002), the plaintiff was injured when a blade guard on a circular table saw

struck him in the eye after one of his co-workers left the guard in what appeared to be in the

installed position. W^ith respect to the defective design claims, plaintiffs expert opined that the saw

was defective and unreasonably dangerous by its design, suggesting that the saw could be designed

so that the guard could be attached without tools or that the tools could be physically attached to

the saw. Id. at 900. The court rejected the claim, holding that the plaintiff and his expert had

"wholly failed to show a feasible alternative design that would have reduced the risk of injury." Id.

See also Miller v. Honeywell Int'l, Inc., No. IP 98-1742 C-M/S, 2002 U.S. Dist. LEXIS 20478, at

*l-4 (S.D. Ind. Oct. 15, 2002) (holding that Honeywell's design specifications for planetary gears

and gear carrier assembly within the engine of an Army UH-1 helicopter were not defective as a

matter of law at the time the specifications were introduced into the stream of commerce).

51. See Baker, 799 N.E.2d at 1 140; see also Moss v. Crosman Corp., 136 F.3d 1 169, 1 174

(7th Cir. 1998) (writing that a product may be "dangerous" in the colloquial sense, but not

"unreasonably dangerous" for purposes of IPLA liability). An open and obvious danger negates

liability. "To be unreasonably dangerous, a defective condition must be hidden or concealed [and]



1 156 INDIANA LAW REVIEW [Vol. 39: 1 145

In cases alleging improper design or inadequate warnings as the theory for

proving that a product is in a "defective condition," recent decisions have quite

clearly recognized that the substantive defect analysis (i.e., whether a design was
inappropriate or whether a warning was inadequate) shouldfollow a threshold
analysis that first examines whether, in fact, the product at issue is "unreasonably

dangerous." Indeed, in two separate cases decided during the survey period.
Bourne v. Marty Gilman, Inc.,^^ (involving an alleged design defect) and Conley

V. Lift-All Co.,^^ (involving an alleged warnings defect). Judge Hamilton followed

that precise approach.

The ILPA provides that liability attaches for placing in the stream of
commerce a product in a "defective condition"^'* even though: "( 1 ) the seller has
exercised all reasonable care in the manufacture and preparation of the product;

and (2) the user or consumer has not bought the product from or entered into any

contractual relation with the seller."^^ What Indiana Code section 34-20-2-1
bestows, however, in terms ofliability despite the exercise of "all reasonable care

[i.e., fault]," section 34-20-2-2 then removes for two of the three operative

theories used to show a defect. It eliminates the privity requirement between
buyer and seller for imposition of liability and also confirms that a

manufacturer' s or seller's exercise ofreasonable care eliminates liability in cases

in which the theory of liability is based on a design warning defect:

[I]n 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.^^

evidence of the open and obvious nature of the danger . . . negates a necessary element of the

plaintiffs prima facie case that the defect was hidden." Hughes v. Battenfeld Glouchester Eng'g

Co., No. TH 01-0237-C T/H, 2003 U.S. Dist. LEXIS 17177, at *7-8 (S.D. Ind. Aug. 20, 2003)
(quoting Cole, 714 N.E.2d at 199). In Hughes, the plaintiff injured his hand while separating and

rethreading plastic film through a machine called a secondary treater nip station. Plaintiff admitted

that he knew about the dangers associated with using the nip station because he observed co-

workers who were injured performing similar tasks. Id. at *4. Plaintiff testified that he was aware

of the alleged defect that caused his accident, and on two previous occasions he had filed written

suggestions with his employer requesting that it reduce the risk of injury involved. Id. at *3-4.

Judge Tinder held that the dangerous condition of the nip station was open and obvious as a matter

of law and entered summary judgment. Id. at *17.

52. No. l:03-cv-01375-DFH-VSS, 2005 U.S. Dist. LEXIS 15467, at *1 (S.D. Ind. July 20,

2005).

53. No. l:03-cv-01200-DFH-TAB, 2005 U.S. Dist. LEXIS 15468, at *1 (S.D. Ind. July 25,

2005).

54. Ind. Code § 34-20-2-1(1) (2004).

55. /J. § 34-20-2-2.

56. Id.



2006] PRODUCT LIABILITY 1 1 57

Indiana practitioners and judges routinely have recognized that the post-1995

IPLA imposes a negligence standard in design and warnings cases, while
retaining strict liability (liability despite the "exercise of all reasonable care") for

manufacturing defect cases.^^ Thus, just as in any other negligence case, a

claimant advancing design or warning defect theories must satisfy the traditional

negligence requirements—duty, breach, injury, and causation.^^
Many courts have recognized that the post- 1995 IPLA imposes a negligence

standard in design and warnings cases, while retaining strict liability (liability

despite the "exercise of all reasonable care") for manufacturing defect cases.^^

Even though Indiana is now ten years removed from the 1995 amendments to the
IPLA, some courts and practitioners continue to use erroneous language implying
that "strict liability" and/or "liability without regard to reasonable care" still

applies to cases in which the operative theory of liability is based upon

inadequate warnings or improper design.^^

57. See Mesman v. Crane Pro Servs., Inc., a Div. of Konecranes, 409 F.3d 846, 849 (7th Cir.)

("Under Indiana's products liability law, a design defect can be made the basis of a tort suit only

if the defect was a result of negligence in the design."), reh'g and reh'g en banc denied (7th Cir.

2005); First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. {Mow II), 378 F.3d 682, 691 n.7
(7th Cir. 2004); Conley, 2005 U.S. Dist. LEXIS 15468, at *12-13 ("The IPLA effectively supplants

the plaintiffs common law claims because all of his claims are brought by a user or consumer

against a manufacturer for physical harm caused by a product. Plaintiffs common law claims will

therefore be treated as merged into the IPLA claims."); Bourne, 2005 U.S. Dist. LEXIS 15467, at

*9 n.2 ("[Pjlaintiffs may not pursue a separate common law negligence claim [for design defect].

Their negligence claim is not dismissed but is more properly merged with the statutory claim under

the IPLA, which includes elements of negligence."); Birch v. Midwest Garage Door Sys., 790

N.E.2d 504, 518 (Ind. Ct. App. 2003).

58. E.g., Conley, 2005 U.S. Dist. LEXIS 15468, at *13-14 ("To withstand summary

judgment, Conley must come forward with evidence tending to show: (1) Lift-All had a duty to

warn the ultimate users of its sling that dull or rounded load edges could cut an unprotected sling;

(2) the hazard was hidden and thus the sling was unreasonably dangerous; (3) Lift-All failed to

exercise reasonable care under the circumstances in providing warnings; and (4) Lift-All's alleged

failure to provide adequate warnings was the proximate cause of his injuries.").

59. See, e.g.. Mow II, 378 F.3d at 690 n.4 ("Both Indiana's 1995 statute (applicable to this
case) and its 1998 statute abandoned strict liability in design defect and failure to warn cases.

Hence, unlike manufacturing defects, for which manufacturers are still held strictly liable, claims

of design defect and failure to warn must be proven using negligence principles."); Miller v.

Honeywell Int'l Inc., No. IP 9-1742-C-M/S, 2002 U.S. Dist. LEXIS 20478, at *38 (S.D. Ind. Oct.

15, 2002), aff'd, 2004 U.S. Dist. LEXIS 15261 (7th Cir. July 21, 2004); Burt v. Makita USA, Inc.,

212 F. Supp. 2d 893, 899-900 (N.D. Ind. 2002); Kennedy v. Guess, Inc., 765 N.E.2d 213, 220 (Ind.

Ct. App. 2002).

60. A recent example is found in Ziliak v. AstraZeneca LP, 324 F.3d 518 (7th Cir. 2003).
Although not relevant to the court's ultimate decision, the Ziliak decision proclaimed that

"manufacturers are strictly liable to consumers for injuries caused by defective or unreasonably

dangerous products placed in the stream of commerce." Id. at 521 (emphasis added). A few



1 158 INDIANA LAW REVIEW [Vol. 39: 1 145

1. Design Defect Theory.—Decisions that address substantive design defect
allegations in Indiana require plaintiffs to prove the existence of what

practitioners and judges often refer to as a "safer, feasible alternative" design.^^

Plaintiffs must demonstrate that another design not only could have prevented the

injury but that the alternative design was effective, safer, more practicable, and
more cost-effective than the one at issue.^^ One panel of the Seventh Circuit
(Judge Easterbrook writing) has described that a "design-defect claim in Indiana

is a negligence claim, subject to the understanding that negligence means failure
to take precautions that are less expensive than the net costs of accidents."^^

Indiana's requirement of proof of a safer, feasible alternative design is

sentences later, the court again incorporated strict liability into its analysis: "AstraZeneca is

absolved oi strict liability so long as it has imparted adequate warnings to treating physicians." Id.

(emphasis added). In support of its strict liability assumption, the Ziliak court cited Indiana Code

section 34-20-2-1. Id. Because Ziliak' s cause of action accrued in November 1998, there is no

question that the case is governed by the current version of the IPLA, which was enacted in 1995.

Although, as the Ziliak court recognized, it is true that the "rule of liability" established by Indiana

Code section 34-20-2-1 applies even though a seller has exercised all reasonable care in the

manufacture and preparation ofthe product (the rule of strict liability), Indiana Code section 34-20-

2-2 eliminates the rule of strict liability in all cases in which the theory of liability is inadequate

warnings or improper design. See also Alberts & Bria, supra note 26, at 1247.
Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 405-06 (Ind. Ct. App. 1999), is

another case in which the Indiana Court of Appeals found no error in the trial court's use of the

term "strict liability" in its instructions to the jury even though the case was not limited to

manufacturing defects.

Practitioners should note that the Indiana Pattern Jury Instructions do not adequately

distinguish between the operative theories to which a negligence standard applies (warning defect

and design defect) and the operative theory to which a strict liability standard applies

(manufacturing defect). Specifically, Indiana Pattern Instruction 7.04 does not track Indiana Code

section 34-20-2-2, which requires an IPLA claimant utilizing a design or warning defect theory to

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."

61

.

In cases alleging improper design to prove that a product is in a "defective condition,"

the substantive defect analysis may need to follow a threshold "unreasonably dangerous" analysis

if one is appropriate. E.g., Bourne, 2005 U.S. Dist. LEXIS 15467, at *10-20.

62. See Burt, 2 1 2 F. Supp. 2d at 900; Whitted v. Gen. Motors Corp., 58 F.3d 1 200, 1 206 (7th

Cir. 1995). The plaintiff in Burt was injured when a blade guard on a circular table saw struck him

in the eye after one of his co-workers left the guard in what appeared to be the installed position.

With respect to his design claims, plaintiffs expert suggested that the saw could be designed so that

the guard could be attached without tools or that the tools could be physically attached to the saw.

212 F. Supp. 2d at 900. The court rejected the claim, holding that the plaintiff had "wholly failed

to show a feasible alternative design that would have reduced the risk of injury." Id.; see also

Miller, 2002 U.S. Dist. LEXIS 20478, at *66 (finding that design defect theory required proof of

an alternative design that was effective, safer, more practicable, and more cost-effective than the

one at issue).

63. McMahon v. Bunn-0-Matic Corp., 150 F.3d 651, 657 (7th Cir. 1998).



2006] PRODUCT LIABILITY 1159

similar to what a number of other states require in the design defect context.
Indeed, that requirement is reflected in Section 2(B) of the Restatement (Third)

of Torts and the related comments.^ In the specific context of the IPLA, it is
clear that design defects in Indiana are judged using a negligence standard. As
such, a claimant can hardly find a manufacturer negligent for adopting a

particular design unless he or she can prove that a reasonable manufacturer in the

exercise of ordinary care would have adopted a different and safer design. The
claimant must prove that the safer, feasible alternative design was in fact
available and that the manufacturer unreasonably failed to adopt it.^^

In addition, the IPLA adopts comment k of the Restatement (Second) of
Torts for all products and, by statute, "a product is not defective ... if the

product is incapable of being made safe for its reasonably expectable use, when
manufactured, sold, handled, and packaged properly."^^ Thus, a manufacturer

technically cannot make the "comment k" statutory defense available until and
unless the claimant demonstrates a rebuttal to it. That raises interesting questions

in light of Indiana's quirky treatment of Trial Rule 56 under Jarboe v. Landmark
Community Newspapers of Indiana, Inc.^^ In federal court under a Celotex^^
standard, a manufacturer may file a summary judgment motion based upon the
"comment k" defense, challenging the claimant to rebut the defense through
properly designated proof of feasible alternative design. Under Indiana's
treatment of Rule 56, however, the manufacturer bears the burden of

affirmatively showing the unavailability of the safer, feasible alternative design.

Nevertheless, and regardless of the procedure governing the motion itself, the

claimant still must prove the existence of a safer, feasible alternative design to

rebut the DPLA's "comment k" defense.
State and federal courts applying Indiana law have been busy in recent years

addressing design defect claims. In Baker v. Heye-America,^^ a panel of the

Indiana Court ofAppeals held that fact issues precluded summaryjudgment with
respect to, among other issues, whether the placement of, and lack of a guard for,
a maintenance stop button rendered a glass molding machine defective or

unreasonably dangerous or both.^^ In Lytle v. Ford Motor Co.^^ another panel

64. Restatement (Third) of Torts § 2(B) ( 1 998).

65

.

To excuse that requirement would be tantamount to excusing the reasonable care statutory

component of design defect liability. By way of example, a manufacturer could not be held liable

under the IPLA for adopting design "A" unless there was proof that through reasonable care the

manufacturer would have instead adopted design "B." To make that case, a claimant must show

the availability of design "B" as an evidentiary predicate to establish before proceeding to the other

"reasonable care" elements.

66. IND. Code § 34-20-4-4 (2005).

67. 644 N.E.2d 118 (Ind. 1994).

68. CelotexCorp.v.Catrett, 477 U.S. 317(1986).

69. 799 N.E.2d 1 135 (Ind. Ct. App. 2003).

70. Mat 1145.
71. 814 N.E.2d 301 (Ind. Ct. App.), reh'g denied (Ind. Ct. App. 2004), trans, denied, 831

N.E.2d 745 (Ind. 2005).



1 160 INDIANA LAW REVIEW [Vol. 39: 1 145

of the Indiana Court of Appeals held, among other things, that the theories
offered by plaintiffs' opinion witnesses regarding the inadvertent unlatching of

a seatbelt were not reliable^^ and that designated evidence failed to show that
Ford's seatbelt design was defective or unreasonably dangerous.

''^

Federal courts issued two important opinions during the survey period in
design defect cases. The first case. Bourne v. Marty Gilman, Inc.^"^ Judge David
Hamilton held that a goal post that fell and injured a college student during a

post-game celebration was not unreasonably dangerous as a matter of law.''^
After the Ball State University football team won an upset victory against the
University of Toledo in October 2001, hundreds of fans, including plaintiff

Andrew Bourne, ran onto the field to celebrate. ''^ Many of the fans in the crowd
were pushing and pulling at one of the goal posts in an effort to bring it down.^^

Some fans climbed onto the goal post and began rocking it.^^ Bourne said that
he walked under the goal post and jumped up to swat it, but missed.^^ He then
started walking toward the other end of the field with his back to the goal post.^°

He heard a snap, felt an impact across his back, and suffered a broken leg and a
spinal injury.^^

Bourne and his parents sued the manufacturer of the goal post, Marty

Gilman, Inc. ("Gilman"), claiming that it was improperly designed.^^ Gilman has
manufactured goal posts since 1960 and Ball State has used Gilman "slingshot"

style goal posts since at least the mid 1990s.^^ The slingshot goal post uses a
single vertical stem supporting a horizontal cross bar and two vertical upright

posts. The vertical stem curves to allow its base to be set back from the playing

72. Mat 312.
73. Id. The Indiana Supreme Court denied transfer in April 2005.

74. No. l:03-cv-01375-DFH-VSS, 2005 U.S. Dist. LEXIS 15467, at *1 (S.D. Ind. July 20,

2005).

75. Mat*2.

76. Id. at *1. Andrew Bourne did not have a ticket to the game. Id. at *3. He spent most of

the game "tailgating" outside the stadium. Id. Bourne and his friends entered the stadium without

tickets late in the fourth quarter. Id. at *3-4. When it was apparent that Ball State was going to win

the game, the scoreboard operator saw fans gathering and expected them to tear down the goal

posts. Id. at *3. She caused a pre-programmed message to appear on the scoreboard that read '"the

goal posts look lonely' or words to that effect." Id. The message was intended to encourage fans

to enter the field and tear down the goal posts." Id. Ball State did not have any security personnel

or other measures in place to prevent or discourage fans from running onto the field as the game

ended. Id. at *4. Bourne and his parents reached a separate settlement with Ball State University.

Id.2Xn.

11. Id.

78. Id.

79. Id.

80. Id.

81. Id. at *5

82. Id. at *1

83. Id. at *5



2006] PRODUCT LIABILITY 1161

field.^"^ Gilman goal posts at issue weigh approximately 470 pounds and are forty

feet tall.^^ The cross-bar is 18.5 feet wide and ten feet above the ground. The
two vertical posts are thirty feet long.^^

In 1985 when it took over production from the original designer, Gilman
changed the metal alloy used to build the goal post model at issue.^^ The new
metal was described as "softer" and less resistant to bending than the older

model.^^ Gilman switched to the softer metal because its specialized bending

machine could not satisfactorily bend the older alloy to create the curved vertical

stem.^^

Gilman knew that celebrating fans tear down goal posts.^^ Gilman also knew
"that the main stem of its own slingshot style goal posts could 'snap' under the
weight of celebrating fans" and "that fans standing on the field when goal posts
are being torn down are at risk of injury."^^ In 1996 and again in 2000, Ball State
fans tore down the Gilman goal posts.^^ In those previous instances, the goal
posts broke at the vertical stem, just above the anchor plate at its base.^^ The
goal post that fell on Bourne was the same as the ones that fell in 1996 and 2000,
and it broke in the same location as did the ones in 1996 and 2000.^"^ Gilman

conceded that the vertical stem just above the anchor plate is the weakest point

on the goal post and is, historically, where its "goal posts tend to break under the

weight of fans."^^

Other goal post designs existed before Bourne's injury, including a "hinged"

goal post that can be lowered to the ground at the end of a game, a goal post with

a double vertical stem to increase strength and improve weight distribution, and

a variety of and others described as "fan resistant" or "indestructible" because

they are made from structural steel instead of aluminum and are based in an
"underground concrete footer rather than bolted at ground level."^^

Bourne and his parents contended that the new alloy Gilman used was prone
to fracture under the weight of celebrating fans and that Gilman should have
utilized one of the alternative goal post designs mentioned above.^^ Gilman

84. Id. The "slingshot" style goal post was developed in 1969. Id. It replaced the older "H"

style goal post, which used two vertical support posts in or on the edge of the playing field. Id.

85. Id.

86. Id.

87. Id. 2X*5-6.

88. /dat*6.

89. Id.

90. Id. at *7. "Gilman was aware that sixteen sets of college football goal posts were torn

down by fans in 2000, ten goal posts in 2001, seventeen in 2002, and twelve in 2003." Id.

91. Id.sit*l.

92. M at*7-8.
93. Id. at *8.

94. Id.

95. Id.

96. /rf. at*8-9.

97. M. at*19-20.



1 162 INDIANA LAW REVIEW [Vol. 39: 1 145

countered by arguing that its goal post was neither defective nor unreasonably
dangerous as a matter of Indiana law because the danger Bourne and other

bystanders faced was "open and obvious."^^

Judge Hamilton agreed with Oilman, determining that the goal post was not
unreasonably dangerous as a matter of law.^^ Judge Hamilton's decision first

recognized that the term "unreasonably dangerous" for purposes ofIPLA liability
"refers to any situation in which the use of a product exposes the user or

consumer to a risk of physical harm to an extent beyond that contemplated by the
ordinary consumer who purchases the product with the ordinary knowledge about
the product's characteristics common to the community ofconsumers."^^ Citing
Lovell V. Marion PowerShovel Co. ^°* and Welch v. Scripto-Tokai Corp.,^^^ Judge
Hamilton pointed out that "whether a defect is open and obvious is relevant to the

inquiry into whether a product was unreasonably dangerous." *°^ Indeed, under
Indiana law, "a defective condition must be hidden or concealed" to be

considered unreasonably dangerous; "[i]f a defective condition is open and

obvious, then it does not present a risk of injuries 'different in kind' from those

the average user might anticipate."'^"^ "The test is an objective one, based upon
what the user or consumer should have known."

^^^

In Bourne, the court agreed as a matter of law that "an objective person

would have been well aware of the dangers that [Bourne] faced by standing in the
area of a goal post being rocked by college students":

First, as an objective matter, any reasonable observer on the scene

would have recognized the danger that the goal post would fall under the
weight of the fans climbing on it and rocking it back and forth. Pulling

down the goal post is what Ball State effectively invited and expected
the fans to do. Bourne himself testified that he was not surprised the
goal post came down.

Second, the risk that a person might be hurt by a 40-feet tall metal

structure falling under the weight of a dozen or more people was
obvious, as a matter of law, to any reasonable observer on the scene.

98. id.ni.

99. Id. Sit no.

100. Id. at *11-12 (internal quotation marks omitted) (quoting IND. CODE § 34-6-2-146

(2004)). Because "consumer" for purposes of the IPLA includes a bystander "injured by the

product who would reasonably be expected to be in the vicinity of the product during its reasonably

expected use," a student such as Bourne who rushed the field at the end of the game was a

"consumer" of the goal post. Id. (citing iND. CODE § 34-6-2-29 (2004)).

101. 909F.2d 1088, 1090-91 (7th Cir. 1990).

102. 651 N.E.2d 810, 815 (Ind. Ct. App. 1995).

103. Bourne, 2005 U.S. Dist. LEXIS 15467, at *12.

104. Id. (internal quotation marks omitted) (quoting Cole v. Lantis Corp., 7 14 N.E.2d 194, 199

(Ind. Ct. App. 1999)).

105. Id. (citing Schooley v. IngersoU Rand, Inc., 631 N.E.2d 932, 939 (Ind. Ct. App. 1994)).



2006] PRODUCT LIABILITY 1 1 63

The test of unreasonable danger is an objective one. The court "must
take into account 'the reasonably anticipated knowledge, perception,

appreciation, circumstances, and behavior of expected users.'"*^^

Judge Hamilton noted that Indiana courts have a history of deciding as a

matter of law that products are not unreasonably dangerous in cases involving

"similarly obvious dangers," such as the danger posed by a butane cigarette

lighter,
^^^ "the risk that a running rotary lawnmower blade would cut a hand stuck

beneath the mower," ^^^ "the risk that a metal crane would conduct electricity
from overhead wires to injure or kill the operator,"'^^ "and the danger that a BB
gun would injure a person shot with it."*'^ In Bourne, "[b]ystanders on the scene

saw a 40-feet tall structure of metal pipes with a dozen or more adults climbing

on it and bouncing and rocking it back and forth with the obvious intent to cause

it to fall."'*^ As such, "[t]he court determined that the risk of injury to those
below the goal post was obvious as a matter of law."^^^

That Bourne "thought he was in a safe position because he had seen goal
posts come down slowly on television" was unpersuasive because such a
contention "does not address the fact that the test is an objective one."^'^

Similarly, the court rejected plaintiffs' argument "that a reasonable person on the

scene could have expected that the goal post would come down slowly" rather
than snapping as the Oilman post did.*'"^ Using Moss and Anderson as
illustrations. Judge Hamilton explained that such an argument "seeks to require

more specific awareness of the degree of risks than Indiana law actually
requires."^ ^^ According to Judge Hamilton,

106. Id. at *13 (footnote and internal citation omitted) (quoting Moss v. Crosman Corp., 136

F.3d 1169, 1175 (7th Cir. 1998)).

107. Id. at *14 (citing Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 814 (Ind. Ct. App.

1995)).

108. Id. (citing Ragsdale v. K-Mart Corp., 468 N.E.2d 524, 527 (Ind. Ct. App. 1984)).

109. Id. (citing Anderson v. P.A. Radocy & Sons, Inc., 67 F.3d 619, 624-26 (7th Cir. 1995)).
1 10. Id. (citing Moss, 136 F.3d at 1 175).

111. /^. at*15.

112. Id.

113. /^. at*16.

114. Id.

115. Id. In Moss, a child was killed when another child shot him in the eye with a BB gun.
Id. "The victim's parents[, who] sued the gun's manufacturer . . . conceded that a reasonable

person would understand that the gun could injure someone, [though] they argued that a reasonable

person would not expect that the danger could be fatal." Id. "The Seventh Circuit affirmed

summaryjudgment for the manufacturer because the difference was one only of degree." Id. "The

fact that a reasonable person would understand the general type of risk was enough to show that the

product was not unreasonably dangerous." Id.

''Moss followed the reasoning of Anderson,'' in which an electrician was electrocuted when

his metal crane and bucket contacted overhead electrical wires. Id. at *16. "Plaintiffs

acknowledged that reasonable [consumers] (and the decedent himself) would understand there was



1 164 INDIANA LAW REVIEW [Vol. 39: 1 145

the general danger that a tall structure of metal pipes could injure

someone as it fell under the weight of fans was objectively obvious to a
reasonable bystander. The fact that Bourne's injuries were so serious is
very unfortunate. But his injuries are not different from the general type

of injury that a reasonable bystander would understand.
^^^

Bourne is a significant decision because it reinforces at least three important

points for Indiana product liability practitioners: (1) "defective condition" and

"unreasonably dangerous" are not interchangeable terms; (2) the concept of

"open and obvious" remains quite relevant in Indiana product liability law even

though it is no longer a stand-alone defense; and (3) whether a product presents

an unreasonable danger can and should, under the proper circumstances, be

decided by the court as a matter of law rather than automatically defaulted to the

jury.

First, the Bourne decision reminds practitioners that "defective condition"

and "unreasonably dangerous" are not interchangeable terms under the IPLA. In

this regard, that the published Lexis case summary indicates that the court held
that the goal post was not defective under Indiana law is an unfortunate

characterization of the holding. In point of fact, the court held that the goal post

did not present an unreasonable danger to the plaintiff because the risk of serious

injury associated with students climbing on and rocking the goal post during the

celebration were open and obvious to an objective person.
^^^

IPLA liability does not attach unless the defective condition arising from an
improper design, an inadequate warning, or a manufacturing flaw also renders

the product unreasonably dangerous as judged by an "objective person"

standard.^ ^^ Recent cases confirm that establishing one of the foregoing

a risk of electrical shock," Id. at * 16- 17. "They argued[, however,] that this understanding did not

reach so far as to include the possibility of a fatal electrocution." Id. at *17. "The Seventh Circuit

rejected the argument, affirming summary judgment for the crane manufacturer":

The question becomes whether the difference between an electrical shock and

electrocution is one of kind or degree. We answer that the difference is one of degree.
Anderson experienced an initial shock of electricity while standing in the metal basket

attached to the steel crane. He was aware that an amount of electricity could surge

through his person. The fact that a fatal amount of electricity surged through him is a

matter of degree, not a matter of a completely different injury.

Id. (internal quotation marks omitted) (quoting Anderson v. P.A. Radocy & Sons, Inc., 67 F.3d 619,
625 (7th Cir. 1995)).

116. Id.

117. See id. at *13.

1 1 8. IND. Code § 34-20-4- 1 (2005); see supra notes 44-46 and accompanying text. The IPLA

defines when a product may be considered "unreasonably dangerous" for purposes ofIndiana Code

section 34-20-4-1(2). A product is "unreasonably dangerous" only if its use exposes the user or
consumer to a risk of physical harm beyond that contemplated by the ordinary user or consumer

who purchases it with ordinary knowledge about the product common to consumers in the

conmiunity. See iND. CODE § 34-6-2-146 (2005). A product is not unreasonably dangerous as a



2006] PRODUCT LIABILITY 1 1 65

threshold requirements without the other will not result in liability under the

EPLA.

As Judge Hamilton recognized, there was evidence in Bourne suggesting the
existence of stronger goal post designs and the court assumed "for purposes of

summary judgment that there were safer designs available at the time of the sale
of this goal post to Ball State."' ^^ Nevertheless, "a manufacturer is not obliged

to build the safest possible product, at least where the danger in question is

known to a reasonable consumer" and Oilman was "not required to sell only the
safest goal post design, at least where the risk of injury is apparent to a

reasonable bystander.
"'^°

Second, as the Bourne decision makes clear, the concept of "open and

obvious" remains viable even though it is no longer a stand-alone defense.

Indeed, some courts have described the "open and obvious rule" as having been
"abrogated" by Koske v. Townsend Engineering Co)'^^ As Judge Hamilton
recognized in Bourne, Koske eliminated the "open and obvious rule" only to the

extent that it existed as a stand-alone defense "under earlier product liability

law."'^^ Nevertheless, "open and obvious" considerations "remain relevant in

determining whether a product is 'unreasonably dangerous,' meaning it is in a

condition that 'exposes the user or consumer to a risk of physical harm to an
extent beyond that contemplated by the ordinary consumer. '"'^^ As such, the
"open and obvious" concept continues to provide "helpful guidance on Indiana

law as to when a product is unreasonably dangerous."
'^"^

Practitioners and judges in Indiana should not confuse application of the

"open and obvious" concept for purposes ofdetermining unreasonable danger (as

occurred in Bourne) with its application for purposes of evaluating the IPLA's

statutory defenses. The "open and obvious" concept does not readily lend itself,

matter of law if it injures in a way or in a fashion that, by objective measure, is known to the

community ofpersons consuming the product. See Baker v. Heye-America, 799 N.E.2d 1 1 35, 1 140

(Ind. Ct. App. 2003); see also Moss, 136 F.3d at 1 174 (noting that a product may be "dangerous"

in the colloquial sense, but not "unreasonably dangerous" for purposes of IPLA liability).

1 19. Bourne, 2005 U.S. Dist. LEXIS 15467, at *19-20.

120. Id. at *20 (citing Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 815 n.5 (Ind. Ct. App.

1995) (noting that "if a product is not dangerous to an extent beyond that contemplated by the

ordinary consumer, the fact that the product could have been made safer does not establish

liability")). The Bourne decision is similar to Judge Tinder's decision in Hughes v. Battenfeld

GlouchesterEngineering Co., No. TH 01-0237-C T/H, 2003 U.S. Dist. LEXIS 17 177, at *7-8 (S.D.
Ind. Aug. 20, 2003). See supra note 51.

121. 551 N.E.2d 437, 441 (Ind. 1990).

122. Bourne, 2005 U.S. Dist. LEXIS 15467, at *14 n.5.

123. Id. (citing Ind. Code § 34-6-2-146). Although recognizing that football goal posts are

designed to gauge the accuracy of kickers. Judge Hamilton assumed that goal post manufacturers

reasonably should expect that fans occasionally will try to tear them down. Accordingly, the

statutory affirmative defense of misuse did not apply. See iND. CODE § 34-20-6-4 (2004).

124. Bourne, 2005 U.S. Dist. LEXIS 15467, at *14 n.5.



1 166 INDIANA LAW REVIEW [Vol. 39: 1 145

for example, to application in the context of the IPLA's "misuse" defense. '^^

Although Judge Hamilton in Bourne recognized that football goal posts are

designed specifically to gauge the accuracy of kickers, he assumed that goal post
manufacturers reasonably should expect that fans occasionally would try to tear
them down.*^^ As such, the misuse defense did not apply. ^^^

In contrast, however, the "open and obvious" concept often readily applies

in the context of the IPLA's "incurred risk" defense. '^^ When applying the "open
and obvious" concept in the context of the "incurred risk" defense, the current

debate centers around the extent to which the open and obvious nature of a risk

of which an injured user or consumer is specifically aware constitutes an

"incurred risk" as a matter of law, thus eliminating any IPLA liability and
effecting a "complete defense." Several Indiana appellate cases have recently

held that a claimant who incurs a risk under the foregoing circumstances is
precluded from IPLA recovery. That issue has been brought to the fore once
again by Mesman v. Crane Pro Services, a Division ofKonecranes, Inc}^^

It is important for practitioners and judges in Indiana to recognize that

Bourne and Mesman construe the "open and obvious" concept in two very
different ways. Bourne construes the concept in the context of determining

unreasonable danger as a matter of law; Mesman construes the concept in the
context of determining the extent to which a claimant might be foreclosed from

recovery under the auspices of the "incurred risk" defense.

Third, Bourne stands for the proposition that judges can and should decide

as a matter of law that a product is not "unreasonably dangerous" for purposes

of IPLA liability when undisputed facts demonstrate that the risks it presents are
objectively obvious. Citing a case applying Indiana product liability law from

the early 1980s, the plaintiffs in Bourne argued that whether a product is

"unreasonably dangerous" is a question for the jury and should not be decided

as a matter of law.'^° Judge Hamilton rejected such a premise, recognizing

125. IND. Code § 34-20-6-4 (2005).

126. Bourne, 2005 U.S. Dist. LEXIS 15467, at *11 n.3.

127. Id.

128. 5^^ iND. Code § 34-20-6-3 (2005).

129. 409 F.3d 846 (7th Cir.), reh 'g and reh 'g en banc denied (7th Cir. 2005); see infra Part

IV.A.

130. Plaintiffs cited Corbin v. Coleco Industries, Inc., 748 F.2d 41 1 (7th Cir. 1984), in which

the Seventh Circuit reversed summary judgment for a manufacturer of an above-ground pool. Id.

at 412. The plaintiff had assembled the four-feet deep pool and then dived into it. He broke his

neck and was permanently paralyzed. The Seventh Circuit determined that a fact issue precluded

judgment as a matter of law concerning whether a warning was required. Id. at 417-18. In doing

so, the Corbin court wrote that "[wjhether a product is in an unreasonably dangerous defective

condition is a question of fact." Id. at 419. As Judge Hamilton noted, the Seventh Circuit in

Corbin also relied on evidence that the pool contained a feature that made it deceptively dangerous.

Bourne, 2005 U.S. Dist. LEXIS 15467, at *19. The plaintiff in Corbin had intended to make a flat,

shallow dive, but there was evidence that the side of the pool was weak and would wobble under

the pressure of a dive, so as to throw the diver off balance unexpectedly. Corbin, 748 F.2d at 420.



2006] PRODUCT LIABILITY 1167

Indiana product liability cases decided in the two decades since Corbin "shows

that the question may be decided in a proper case as a matter of law, especially
if the alleged danger is open and obvious, as with the risk that a lighter will start

fires [Welch], the risk that a running lawnmower blade will injure a hand stuck
underneath the mower [Ragsdale], and the risk that a BB gun will injure

Practitioners and judges often default to the idea that juries must determine

whether a product is "unreasonably dangerous" or whether a use is "reasonably

expectable." As Bourne reminds practitioners andjudges, that kind of automatic
default should not exist in every product liability case. Indeed, judges in several

recent cases have had no problem resolving such issues as a matter of law, even

in the presence of divergent expert testimony.
'^^

The other important design defect case addressed by the federal courts during
the survey period is Mesman v. Crane Pro Services, a Division ofKonecranes,
Inc}^^ Plaintiff John Mesman, a worker at a plant that manufactured steel
products, suffered serious leg injuries when a load of steel sheets that a crane was
unloading from a boxcar fell on him. The plant at which Mesman worked used
the crane to unload steel sheets from railcars.'^"^ The crane had a beam called the
"bridge," which was fastened to the plant's ceiling directly above the rail

siding.
^^^ The crane also had a hoist, suspended from the beam, which the crane

operator could move up and down and sideways along the bridge. ^^^ In addition,
the crane had a "spreader beam" connected to the hoist, as well as chains
connecting each end of the spreader beam to "scoops" for gripping loads. ^^^

Before the accident, Konecranes evaluated the design and operation of the

crane and made several changes. First, it substituted for the controls in the
operator's cab a hand-held remote-control device with which the operator would

operate the crane from ground level. ^^^ To raise the load he would press the up
button on the device and to lower it he would press the down button. ^^^ Second,
Konecranes installed alongside the up and down buttons on the remote-control
device an emergency stop button, which the operator could press if he or she

There was no comparable evidence in Bourne. Bourne, 2005 U.S. Dist. LEXIS 15467, at *19.

131. Bourne, 2005 U.S. Dist. LEXIS 15467, at *19.

1 32. See supra note 50 (describing Burt v. Makita USA, Inc., 2 1 2 F. Supp. 2d 893 (N.D. Ind.

2002) and Miller v. Honeywell Int'l, Inc., No. IP 98-1742 C-M/S, 2002 U.S. Dist. LEXIS 20478

(S.D. Ind. Oct. 15, 2002)); see also Alberts & Bria, supra note 26, at 1267-69. Hughes v.
Battenfeld Glouchester Engineering Co., No. TH 01-1237-C-T/H, 2003 U.S. Dist. LEXIS 17177
(S.D. Ind. Aug. 20, 2003), reached a similar result. See supra note 51.

133. 409 F.3d 846 (7th Cir.), reh'g and reh'g en banc denied (7th Cir. 2005).

134. Mat 847.
135. Mat 848.
136. Id.

137. Id.

138. Id.

139. Id.



1 168 INDIANA LAW REVIEW [Vol. 39: 1 145

"sensed an impending collision between the load and the cab."'"^^ The operator
could also reverse the direction of the hoist by pressing the "down" button on the
remote.

'"^^ Because, however, "the up and down control had a deceleration
feature to reduce wear and tear on the crane, the spreader beam would continue
to rise for three seconds after the down button was pressed."^"^^ In those three
seconds, the beam would still travel about a foot until it stopped and began its
reverse motion.

'"^^

According to the Mesman court, Konecranes's alterations did not change the
fact that there was only a foot or two of clearance between the rim of the boxcar
and the cab overhead when a boxcar was being unloaded underneath the section
of the bridge to which the cab was attached.'"^ As such, there existed the
possibility that a load of steel could be jarred loose and could fall on anyone

standing beneath it if the spreader beam struck the cab while being lifted by the
hoist.

^"^

On the day of the accident, the crane operator was standing about twenty feet
away from a boxcar that was underneath the empty cab.*"^^ Mesman was standing
in the boxcar as he "fastened a load of steel sheets to the scoops beneath the

crane's spreader beam."^"^^ The operator pressed the "up" button on the remote
controller, causing the beam and the load to rise.'"^^ The operator "saw that the
spreader beam was going to hit the cab, but instead of pressing the emergency-
stop button, ... he [mistakenly] pressed the down button." ^"^^ "Because of the
deceleration feature . . . and the narrow clearance between the cab and the rim of

the boxcar, the beam continued to rise for three seconds," hitting the cab and
causing the load to fall on Mesman. ^^^

Mesman and his wife sued Konecranes.^^* Ajury determined that the crane
operator's mistake was the principal cause of the accident, assigning two-thirds
of the responsibility for the accident to the operator's employer. '^^ The jury also
found that Konecranes's renovated crane design also contributed to the accident,

assigning one-third of the responsibility to Konecranes.^^^ According to the

Mesman court, the accident would have been avoided "with certainty" if

140. Id.

141. Id.

142. Id.

143. Id.

144. Id. at 849.

145. Id.

146. Id. at 848.

147. Id.

148. Id.

, 149. Id.

150. Id.

151. M at 847. The Mesmans originally sued in state court; Konecranes removed the case to
the United States District Court for the Northern District of Indiana. Id.

152. /J. at 848.

153. Mat 848-49.



2006] PRODUCT LIABILITY 1 1 69

Konecranes had removed the cab or eliminated the deceleration feature.' ^"^ The
accident might also have been avoided had Konecranes modified the limit switch

so that the limit could be lowered when a load was being unloaded beneath the
cab/^^

The jury awarded the Mesmans a large verdict, but the judge set it aside and
entered judgment for Konecranes. '^^ The judge alternatively decided that
Konecranes was, at the very least, entitled to a new trial because the jury had
been confused by irrelevant evidence and had ignored critical instructions.'^^

The Mesman court (Judge Posner writing) described a negligent design as
one in which "the product could have been redesigned at a reasonable cost to

avoid the risk of injury."'^^ According to the Mesman court, "the risk of injury
has to be weighed against the cost of averting it."'^^ Citing Judge "Learned

Hand's influential negligence formula" set forth in United States v. Carroll

Towing Co.,'^^ the court noted that

failure to take a precaution is negligent only if the cost of the precaution

... is less than the probability of the accident that the precaution would

have prevented multiplied by the loss that the accident if it occurred

would cause; hence the formula: B < PL The cheaper the precaution,
the greater the risk of accident, and the greater the harm caused by the
accident, the likelier it is that the failure to take the precaution was
negligent.'^'

In light of the facts presented in Mesman, the court viewed as "substantial"
the risk of a heavy load falling on a worker if the spreader beam struck the cab

1 54. Id. at 849. Because the crane could be operated from ground level with a remote, the cab

was no longer used. Konecranes's decision not to remove the cab and thereby eliminate the danger

of its being struck by the spreader beam was one of the design decisions that were claimed to have

rendered the crane defective. Id. at 848. In addition, Konecranes built into the renovated crane a

limit switch that would automatically stop the spreader beam from rising when it came too near the

bridge. The switch, however, was set to prevent the spreader beam from touching the bridge where

the cab was not attached. To prevent the spreader beam from touching the cab, the limit would

have had to be set much lower, too low for convenient unloading of boxcars that were underneath

any other section of the bridge. Id. at 848.

155. Id. at 849. Whether or not an adjustable limit switch would have prevented the accident

was less certain because, according to the court, the operator "might have forgotten to adjust it."

Id

156. Mat 847.
157. Id.

158. Id at 849 (citing Weir v. Crown Equip. Corp., 217 F.3d 453, 460-61 (7th Cir. 2000);

McMahon v. Bunn-0-Matic Corp., 150 F.3d 651, 657 (7th Cir. 1998); Navarro v. Fuji Heavy

Indus., Ltd., 117 F.3d 1027, 1031 (7th Cir. 1997); Miller v. Todd, 551 N.E.2d 1 139, 1 141 (Ind.

1990); Stamper v. Hyundai Motor Co., 699 N.E.2d 678, 689 (Ind. Ct. App. 1998)).

159. Id

160. 159 F.2d 169, 173 (2d Cir. 1947).

161. Af^5m«n, 409 F.3d at 849 (internal citations omitted).



1 170 INDIANA LAW REVIEW [Vol. 39: 1 145

because: (1) there was a "narrow clearance under the section of the bridge to
which the crane was attached"; and (2) "if the load did fall on someone it would
be likely to kill or seriously injure him."^^^ And, according to the Mesman court,
the substantial risk could have been avoided "at little cost simply by removing

the cab," which no longer had a function.
'^^

Konecranes defended the case by arguing that the crane operator exposed
Mesman to a danger that was "open and obvious." That portion of the court's
analysis is properly addressed below in the context of the "incurred risk"

defense.'^ In the context of the allegedly defective design allegations, the

specific question before the court was "whether there was a sufficient likelihood
that the operator of the rebuilt crane would fail to press the emergency-stop

button when he saw the spreader beam about to hit the cab."*^^ The Mesman
court found that the jury should have been instructed to focus upon that question
and that "[t]he answer would depend on the likelihood of the kind of mistake that
[the crane operator] made and the cost and efficacy of additional precautions,
such as removing the cab."*^^ It was not, therefore, unreasonable for a jury to
conclude that Konecrane was negligent in its failure to design the renovated
crane in such a way as to protect Mesman against the kind of error that the crane
operator made.'^^ Accordingly, the court reversed the district judge's entry of

judgment for Konecranes.
'^^

162. Id.

163. Id. Alternative precautions (though perhaps less failsafe) might have included: (l)the

addition of an "adjustable limit switch [that the operator] could have set to prevent the spreader

beam from hitting the cab when it was underneath it"; (2) the "eliminat[ion of] the deceleration

feature, so that pressing the down button while the spreader beam was rising would have brought

the beam to an immediate stop"; (3) "reducing the period ofdeceleration from three seconds to one,

which would have stopped the spreader beam within four inches after the down button was pressed

rather than twelve"; and (4) the addition of "an additional automatic limit switch, one operative

only when the unloading was taking place under the disused cab." Id. at 850.

164. 5^^ m/ra Part IV.A.

165. Mesman, 409 F.3d at 85 1

.

166. Mat 851-52.
It is easy enough to push the wrong button in an emergency or to forget that pushing the

down button isn't as effective as pushing the emergency-stop button because of the

deceleration feature. This argues for an automatic protective device, of which the

cheapest would have been simply to remove the cab, made empty and useless by the

removal from it of the crane controls.

Id. at 852.

167. Id.

168. Id. (citing FMC Corp. v. Brown, 551 N.E.2d 444, 445-46 (Ind. 1990); Baker v. Heye-
America, 799 N.E.2d 1 135, 1 141-45 (Ind. Ct. App. 2003)). In addition and although it was error

for the judge to enter judgment for Konecranes, the Mesman court did not conclude that the judge

abused her discretion in ruling in the alternative that Konecranes was entitled to a new trial. Id.

Indeed, the court noted that the "plaintiffs failed to put before the jury a clear picture of the cause

of the accident and how it might have been prevented." Id. In addition, the court pointed out that



2006] PRODUCT LIABILITY 1171

2. Warning Defect Theory.—The EPLA contains a specific statutory
provision covering the warning defect theory, which reads as follows:

A product is defective ... if the seller fails to:
(1) properly package or label the product to give reasonable warnings of

danger about the product; or

(2) give reasonably complete instructions on proper use of the product;

when the seller, by exercising reasonable diligence, could have made
such warnings or instructions available to the user or consumer.

'^^

In failure to warn cases, the "unreasonably dangerous" inquiry is essentially the

same as the requirement that the defect be latent or hidden.
'^°

Indiana courts have been active in recent years in resolving cases espousing

warning defect theories, including First National Bank & Trust Corp. v.
American Eurocopter Corp.^^^ and Birch v. Midwest Garage Door Systems. ^^^

"Konecranes contributed to the jury's confusion by presenting evidence that the renovated crane

. . . complied with industry safety standards." Id. According to the court, such compliance was

"irrelevant" because "the danger arose from site-specific conditions that the industry standards

don't address." Id. That the plaintiffs responded by criticizing the standards, in the court's view,

only "distracted the jury from those conditions—specifically the narrow clearance between boxcar
and spreading beam in the vicinity of the abandoned but not removed cab ~ on which resolution
of the issue of negligence should have depended." Id.

169. IND. Code § 34-20-4-2 (2005).

170. First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp., 378 F.3d 682, 690 n.5 (7th Cir.
2004). For a more detailed analysis of American Eurocopter, see Joseph R. Alberts, Survey of

Recent Developments in Indiana Product Liability Law, 38 iND. L. REV. 1205, 1221-27 (2005).

171. First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. (Inlow 11), 378 F.3d 682 (7th
Cir. 2004), ajfg In re Inlow Accident Litig. {Mow I), No. Ip 99-0830-C H/K, 2002 U.S. Dist.
LEXIS 8318 (S.D. Ind. Apr. 16, 2002). In the Inlow cases, a helicopter rotor blade struck and

killed the Conseco general counsel, Lawrence Inlow, as he passed in front of the helicopter after

disembarking. Id. at 685. Because of the helicopter's high-set rotor blades, the court determined

as a matter of law that the deceleration-enhanced blade flap was a hidden danger of the helicopter

and that the manufacturer had a duty to warn its customers of that danger. Id. at 688. The court

ultimately held, however, that the manufacturer satisfied its duty to warn Conseco and Inlow as a

matter of law in light of the sophisticated intermediary doctrine. Id. at 692-93.

172. 790 N.E.2d 504 (Ind. Ct. App. 2003). In Birch, a young girl sustained serious injuries

when the door of the garage closed on her. Id. at 508. The court concluded that the garage door

system at issue was not defective and that a change in an applicable federal safety regulation, in and

of itself, does not make a product defective. M at 5 18. The court concluded that there was no duty
to warn plaintiffs about changes in federal safety regulations because the system manual the

plaintiffs received included numerous warnings regarding the type of system installed and that no

additional information about garage door openers would have added to the plaintiffs' understanding

of the characteristics of the product. Id. at 518-19. For a more detailed analysis of Birch, see

Alberts & Bria, supra note 26, at 1262-65.
See also Burt v. Makita USA, Inc., 212 F. Supp. 2d 893 (N.D. Ind. 2002) (rejecting plaintiffs

argument that a saw should have had warning labels making it more difficult for the saw guard to



1 172 INDIANA LAW REVIEW [Vol. 39: 1 145

During the 2005 survey period, Judge Hamilton decided the case of Conley v.

Lift-All Co.,^^^ another interesting case alleging inadequate product warnings. In

Conley, the plaintiff was injured when a nylon sling suspending a 7000-pound
bundled load of angle iron broke, causing the angle iron to fall on him.'^"^ Lift-

All Co. manufactured the sling, which Conley' s employer used to unload

trucks.^
''^ The parties agreed that the sling broke because the edges of the angle

iron cut into it.^^^

In his suit against Lift-All, Conley ultimately pursued only a failure to warn

theory, contending that "Lift-All failed to provide adequate warnings that the

edges of a load that are not sharp could still cut the sling and cause it to drop its

load if the sling is not protected by padding." ^^^ Judge Hamilton denied Lift-

All's motion for summary judgment, determining that fact issues existed
concerning: (1) "whether Lift-All had a duty to warn about the danger that dull
or rounded edges could cut the sling"; (2) "whether Lift-All provided adequate

warnings"; and (3) "whether the alleged failure to give adequate warning was a
proximate cause of Conley's injuries."'^^

Judge Hamilton's decision first addressed whether there is a duty to warn in

the first place, acknowledging that there is "no actionable failure to warn without

a duty to warn"^^^ and that "there is no duty to warn of known or obvious
hazards."'^^ The court went on to write that "[t]he concept that there is no duty
to warn of known or obvious risks has been described as the 'open and obvious'
rule in the context of negligence actions."'^' Consistent with his analysis in the

Bourne case. Judge Hamilton rejected the idea that the concept of "open and
obvious" is no longer applicable because the rule is no longer a stand-alone

be left in a position where it appeared installed when in fact it was not; the scope of the duty to

warn is determined by the foreseeable users of the product and there was no evidence that the

circumstances of plaintiffs injuries were foreseeable such that defendants had a duty to warn

against those circumstances); McClain v. Chem-Lube Corp., 759 N.E.2d 1096 (Ind. Ct. App. 2001)

(holding that the trial court should have addressed whether the risks associated with use of a

product were unknown or unforeseeable and whether the defendants had a duty to warn of the

dangers inherent in the use of the product, because designated evidence showed that both

defendants knew that the product at issue was to be used in conjunction with high temperatures that

occurred as a result of the hot welding process). For a more detailed analysis of Burt and McClain,

see Alberts & Boyers, supra note 35, at 11 82-85.
173. No. l:03-cv-01200-DFH-TAB, 2005 U.S. Dist. LEXIS 15468 (S.D. Ind. July 25, 2005).

174. Mat*l.

175. Id.

176. Mat*l,*5.

177. /J. at*2.

178. Id.

179. Id. at *14 (citing Am. Optical Co. v. Weidenhamer, 457 N.E.2d 181, 187 (Ind. 1983)).

180. Id. at *14-15 (citing McMahon v. Bunn-0-Matic Corp., 150 F.3d 651, 655 (7th Cir.

1998); Am. Optical, 457 N.E.2d at 188).

181. Id. at *15 (citing Bemis Co. v. Rubush, 427 N.E.2d 1058, 1061 (Ind. 1981); Welch v.

Scripto-Tokai Corp., 651 N.E.2d 810, 815 (Ind. Ct. App. 1995)).



2006] PRODUCT LIABILITY 1 173

defense. ^^^ Rather, as Judge Hamilton recognized, the existence of an "open and

obvious" risk, in effect, renders the product not "unreasonably dangerous" as a

matter of law, obviating the need for a warning.'
^^

Synthetic web slings are commonly used for rigging loads, and Federal
Occupational Safety and Health Administration ("OSHA") regulations govern
their use.'^"^ The American Society of Mechanical Engineers ("ASME") also
publishes standards applicable to the use of slings. *^^ Lift-All argued that "it

owed no duty to warn Conley of the hazard that a lifted load could cut an
unprotected sling because this hazard was 'open and obvious' to the intended
community of users."'^^

According to Judge Hamilton, that question simply could not be resolved as

a matter of law on the record before the court. '^^ The record included Conley'

s

subjective belief that angle iron with rounded or dull edges would not cut the
sling, which was based both upon his experience and his observation of others

using slings without padding to unload angle iron.'^^ In addition, "the OSHA
regulations and ASME standards address the hazard of cutting an unprotected
sling with only sharp edges."'^^ As the court explained, "[i]f a reasonable jury
could infer from the facts that the hazard posed by a load of angle iron is hidden

from the reasonable sling operator, a jury must decide whether Lift-All had a

duty to warn of the danger."
'^^

182. Id. at *15-16.

183. Id. On this point. Judge Hamilton wrote that "the obviousness of a danger [is] relevant

in determining whether a product was sold in an unreasonably dangerous and defective condition,

and in evaluating the affirmative defense ofincurred risk." Id. at *15- 16 (citing Koske v. Townsend

Eng'g Co., 551 N.E.2d 437, 440-41 (Ind. 1990)). Moreover, "[w]hether a hazard is open and

obvious and whether the product is unreasonably dangerous are essentially two ways of asking the

same question." Id. at *17 n.2 (citing First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp.
{Mow II), 378 F.3d 682, 690 n.5 (7th Cir. 2004)); see also Mow II, 378 F.3d at 690 n.5 ("Under
Indiana law, there is a duty to warn reasonably foreseeable users of all latent dangers inherent in

the product's use. ... In failure to warn cases, the 'unreasonably dangerous' inquiry is not a

separate inquiry from whether the defect is latent or hidden.").

184. Conley, 2005 U.S. Dist. LEXIS 15468, at *6.

185. M at*8.
186. /J. at*16-17.

187. Mat*17.

188. Id. at *17-18. During his work history, "Conley witnessed or was involved in unloading

angle iron with a Lift-All sling on hundreds of occasions." Id. at *1 1. He said that he never saw

"a pad or other protection placed between the angle iron and the Lift-All sling, and unpadded slings

had been used ... for years without problems." Id. at *1 1-12. Conley also testified that he "was

trained in how to unload angle iron using the Lift-All sling," but "was not told and was not aware

that such a pad or protection was necessary." Id. at *12. "On the day of the accident, . . . Conley

personally inspected the sling that was used and saw no cuts, damage, or red core yams." Id. at

*11.

189. Id. at *18.

190. Id. (citing Cole v. Lantis Corp., 714 N.E.2d 194, 199 (Ind. Ct. App. 1999)). Judge



1174 INDIANA LAW REVIEW [Vol. 39:1145

Lift-All submitted opinion testimony that "the general hazard presented by
lifting a load with a synthetic sling, and the specific hazard of cutting the sling

with a load of one quarter inch thick angle iron, would have been obvious to a
reasonable sling operator 'properly trained' in using the sling."

^^^
According to

the court, however, such testimony "begs the question of whether sling operators

such as Conley are in fact properly trained in OSHA regulations and ASME
standards, and whether a manufacturer like Lift-All may assume that they will be
properly trained." '^^ The court continued:

Lift-All presents no evidence that sling operators typically are in fact

"properly trained." . . . Without evidence that Conley received proper

training, [Lift-AIF s expert' s] opinion that the hazard of lifting angle iron

with an unpadded sling would have been known or obvious to sl properly
trained sling operator does not prove beyond reasonable dispute that the

risk that rounded or dull edges would cut the sling would have been
known or obvious to an ordinary user or consumer. ^^^

Citing Anderson v. PA. Radocy & Sons, Inc.,^^^ among other cases. Judge
Hamilton also noted that "[a] duty to warn may . . . exist even if end users of a
product know about a danger but believe that the product can still be used
safely." *^^ Conley, however, testified that he never saw anyone use protection
between a load of angle iron and the Lift-All sling.

^^^

Accordingly, the court concluded that "Conley' s evidence raises a genuine

issue offact as to whether a reasonable sling operator would have recognized that

a load of angle iron could cut an unpadded Lift-All sling. Whether Lift-All had

a duty to warn Conley of this hazard cannot be decided as a matter of law."^^^

Hamilton distinguished the fact situation before him in Conley from the one presented by In re

Inlow Accident Litigation {Mow I), 2002 U.S. Dist. LEXIS 8318 (S.D. Ind. Apr. 16, 2002), ajfd
sub nom. First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. {Inlow 11), 378 F.3d 682 (7th Cir.
2004). In Inlow I, he "found that the specific risk of blade 'flap' posed by decelerating helicopter

rotor blades would have been obvious to a trained helicopter pilot but not to an untrained

passenger." Conley, 2005 U.S. Dist. LEXIS 15468, at 22 (citing Inlow I, 2002 U.S. Dist. LEXIS

8318, at *16; Inlow II, 378 F.3d at 691). The Inlow II court held that although the dangers

presented by moving rotor blades on some helicopters may be open and obvious, the danger posed

by this particular helicopter's decelerating blades was not obvious to passengers. Inlow II, 378 F.3d

at 691. Whereas "[t]he helicopter manufacturer in Inlow I came forward with evidence showing

that all the helicopter pilots were in fact aware of the specific risk posed by decelerating rotor

blades," Lift-All failed to "come forward with comparable evidence ofknowledge." Conley, 2005

U.S. Dist. LEXIS 15468, at *22-23.

191. Conley, 2005 U.S. Dist. LEXIS 15468, at *19-20.

192. Mat*21.

193. Id.

194. 67 F.3d 619, 621-22 (7th Cir. 1995).

195. Conley, 2005 U.S. Dist. LEXIS 15468, at *24.

196. Mat*ll.

197. Id. at*25.



2006] PRODUCT LIABILITY 1 1 75

Having found a duty to warn to exist by virtue of a factual dispute about

whether the product was "unreasonably dangerous," Judge Hamilton next

addressed whether the warning Lift-All provided was adequate as a matter of
law. The sling at issue included the following warning on a tag sewn to it, which
Conley admitted seeing:

! WARNING
FOLLOWTHIS WARNINGORPERSONALINJURYMAYRESULT
INSPECTTHESLINGFORDAMAGEBEFOREEACHUSEDONOT
CUT, OVERLOAD OR EXPOSE TO TEMPERATURE ABOVE 200
[degrees] F
DISCARD WHEN RED CORE YARNS APPEAR.^^'

In addition, Lift-All slings like the one that Conley used were packaged with

an information and warning sheet that stated in part:

! WARNING
FAILURE TO READ, UNDERSTAND AND FOLLOW THE USE
AND INSPECTION INSTRUCTIONS FURNISHED WITH EACH
SLING MAY RESULT IN SEVERE PERSONAL INJURY OR
DEATH.
! WARNING WEB SLINGS CAN BE CUT BY CONTACT WITH
SHARP OR UNPROTECTED LOAD EDGES. PROPER PADDING
MUST BE USED TO PROTECT THE SLINGS.
Web slings shall always be protected from being cut or damaged by
comers, edges, protrusions, or abrasive surfaces. See Wear Pad section
of Lift-All Catalog.^''

Several of the operating and inspection standards set forth by OSHA and ASME
were also reiterated on the information and warning sheet.^^

Conley testified that he never saw the sling involved until it was unpackaged
and that he never saw a Lift-All catalog or any written material or warnings other
than the warning sewn on the sling.^°* Lift-All countered that it is impossible to
provide definitive warnings on the sling itself because of the wide array of

"rigging techniques, . . . load shapes, compositions, and weights."^^^ Lift-All also

pointed out that "presenting information and warnings through separate

documentation ... is a method used throughout the industry."^^^
According to Judge Hamilton, "a reasonable jury could infer from Conley'

s

testimony that [his employer] did not make available to sling operators the
documents that Lift-All packed with its slings."^^ Citing the venerable case The

198. /J. at*9.

199. Id. at no.

200. Id.

201. W. at *6, *9-10.

202. W. at*27.

203. M. at*27-28.

204. Mat*28.



1 176 INDIANA LAW REVIEW [Vol. 39: 1 145

T.J. Hooper,^^^ Judge Hamilton pointed out that the industry's widespread

presentation of warnings on separate packaging documentation "does not always

control whether the method is reasonable."^^^ Accordingly, the court held that
there was "a genuine issue of fact as to whether Lift-All could reasonably rely on
buyers to pass along the warnings in the packaging."^^^

The Conley decision also holds that it was a question for the jury whether
Lift-All adequately provided warnings to the "sophisticated intermediary,"

Conley' s employer.^^^ "Under this doctrine, the duty to warn end users is
satisfied when the product is sold to a 'sophisticated intermediary' whom the
manufacturer has adequately wamed."^^^ The doctrine only applies if the
intermediary has "knowledge or sophistication equal to that of the manufacturer,

and the manufacturer must be able to reasonably rely on the intermediary to warn

the ultimate users.
"^^°

In Conley, the evidence showed that Conley' s employer consistently used
unprotected slings to lift the angle iron without any accidents, even though the

detailed warnings given in the packaging by Lift-All provided that slings could

be cut by sharp or unprotected load edges. Judge Hamilton ruled that "[t]he

evidence stops short of showing as a matter of law that [Conley' s employer] had

knowledge or sophistication equal to that of [Lift-All], let alone that [Lift-All]

could reasonably rely on [Conley' s employer] to pass the warnings along to the

end users who would be in the danger zone."^^^ As such, "[a] reasonable jury
could infer from Conley's testimony that [his employer did] not train its sling

operators ... to use padding when lifting angle iron or generally to be aware of
the various types of edges that may cut an unprotected sling."^^^

205. 60 F.2d 737, 740 (2d Cir. 1932) (Hand, J.) (finding that an entire industry may be

negligent, therefore industry custom is only evidence of what is reasonable).

206. Conley, 2005 U.S. Dist. LEXIS 15468, at *28-29.

207. Mat*29.

208. Mat*33-34.

209. Id. at *29 (citing First Nat'l Bank & Trust Corp. v. Am. Eurocopter Corp. {Mow II), 378
F.3d 682, 691 (7th Cir. 2004); Taylor v. Monsanto Co., 150 F.3d 806, 808-09 (7th Cir. 1998)).

210. Id. at *30 (citing Mow II, 378 F.3d at 691; Taylor, 150 F.3d at 808).
211. Mat*31-32.

212. Id. at *34. The final issue addressed by the court in Conley was whether Lift-All's

alleged failure to adequately warn proximately caused Conley' s injuries. Id. at *35. According to

Judge Hamilton, "the focus is on the effect of giving a warning on the actual circumstances

surrounding the accident" and "[tjhe question is whether the plaintiffs injury was a natural and

probable consequence of the failure to warn about the dangers associated with the product." Id. at

*35 (internal quotations marks omitted) (quoting Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d

155, 164 (Ind. Ct. App. 1997)). The plaintiff may need to "show that an adequate warning would

have altered the conduct which led to the injury." Id. (internal quotation marks omitted) (quoting

Downs, 685 N.E.2d at 164).

Conley presented two alternative warnings to the court that he believed would have adequately

warned of the danger that dull or rounded edges could also cut the sling, and that padding or

protection should be used with any type of edge. Id. at *36. "An expert is normally required in



2006] PRODUCT LIABILITY 1 1 77

Practitioners should take note of Judge Hamilton's analysis in Bourne and

in Conley. Though the legal methodology is applied in a perfectly consistent
fashion, the ultimate conclusions differed. In Bourne, the issues were resolved

as a matter of law because the undisputed facts presented led to only one

reasonable conclusion. According to the court, the same simply did not hold true

in Conley.

E. ". . . regardless ofthe substantive legal theory. .

.

"

Indiana Code section 34-20-1-1 provides that the EPLA "governs all actions
that are: (1) brought by a user or consumer; (2) against a manufacturer or seller;

and (3) for physical harm caused by a product; regardless ofthe substantive legal
theory or theories upon which the action is brought.''^^^ Accordingly, theories

of liability based upon breach of warranty, breach of contract, and common law
negligence against entities that are outside of the IPLA's statutory definitions are

not governed by the IPLA.^^"^ At the same time, however, Indiana Code section
34-20-1-2 provides that the "[DPLA] shall not be construed to limit any other

action from being brought against a seller of a product."^^^ That language, when
compared with the "regardless of the legal theory upon which the action is
brought"^^^ language found in Indiana Code section 34-20-1-1 raises an
interesting question: whether alternative claims against product sellers or

suppliers that fall outside the reach of the IPLA are still viable when the
"physical harm" suffered is the very type of harm the IPLA otherwise would

217
cover.

design defect cases," but by court order, Conley had been precluded from presenting an expert at

trial. Id. at *38. Judge Hamilton wrote that "Indiana law allows a plaintiff to prove in a proper case

that a warning is inadequate without expert testimony on the subject[,]" and "[ejxpert testimony is

required to sustain the plaintiffs burden of proof on the question of the existence of a defect only

where matters are beyond the common understanding of a lay juror." Id. at *41 (citations omitted).

As with the other issues in Conley, Judge Hamilton held that "whether the alleged failure to warn

was a proximate cause of Conley' s injuries presents a disputed issue of fact." Id. at *42.

213. IND. Code § 34-20-1-1 (2005) (emphasis added).

214. E.g., N.H. Ins. Co. v. Farmer Boy AG, Inc., No. IP 98-003 1 -C-T/G, 2000 U.S. Dist.

LEXIS 19502, at *10-1 1 (S.D.Ind. Dec. 19, 2000) (holding that a claim alleging "breach ofimplied

warranty in tort is a theory of strict liability in tort and, therefore, has been superceded by the theory

of strict liability," and, thus, plaintiff could proceed on a warranty claim so long as it was limited

to a breach of contract theory).

215. iND. Code §34-20-1-2 (2005).

216. Id. § 34-20-1-1.

217. As quoted above, Indiana Code section 34-20-1-2 provides that the IPLA "shall not be

construed to limit any other action from being brought against a seller of a product." Id. § 34-20-1-

2. Both the placement of that provision and the words chosen are important. Having specifically

provided in Indiana Code section 34-20-1-1 that the IPLA governs all actions against a seller or a

manufacturer for physical harm caused by a product regardless ofthe substantive theory or theories

upon which the action is brought, it would seem to follow that the only "other action" to which the



1 178 INDIANA LAW REVIEW [Vol. 39: 1 145

In recent years, state and federal courts in cases such as Kennedy v. Guess,
Inc.,^^^ Coffinan v. PSI Energy, Inc.^^^ Ritchie v. Glidden Co.^^^ and Goines v.
Federal Express Corp}^^ have allowed claimants to pursue common law or non-
IPLA statutory actions against manufacturers and sellers for the very same
"physical harm" the IPLA covers. Three cases decided during the 2005 survey
period appear to continue that trend.

In Gunkel v. Renovations, Inc.^^^ the Indiana Supreme Court held that under
the "economic loss" doctrine, "physical injuries and damages to other property
are recoverable in tort, but damages to the defective product itself are not."^^^
The question then becomes whether the "other property" was acquired by the
plaintiff separately or "as a component ofthe defective product."^^"^ The Gunkels
contracted with Renovations, Inc. ("Renovations") to build the Gunkels'

residence. Six months later, the Gunkels contracted with J & N Stone, Inc. ("J
& N") to install stone and masonry to the exterior of the residence. After the
fagade was installed, water entered through gaps in the facade. The Gunkels
claimed that because ofthe moisture, "walls, ceilings, floors, drywall, carpet, and

carpet padding were damaged."^^^

The Gunkels sued Renovations for breach of contract and fraud, and later
added J & N as a defendant under claims of negligence and breach of contract.
The breach of contract claim against J & N was dismissed on partial summary
judgment. The trial court also granted sunmiary judgment on the negligence
claim against J & N because the Gunkels' negligence claim sought purely
economic damages. The Court of Appeals agreed and held that because the
Gunkels sought only economic losses, they had no tort claim.^^^ The Supreme
Court disagreed.^^^

The Supreme Court found that

Indiana law under the [IPLA] and under general negligence law is that

damage from a defective product or service may be recoverable under a

General Assembly later refers are those alleging some type ofnon-physical (i.e., commercial) harm.

Such harm may be redressed as a matter of contract or warranty in a separate action not intended

to be affected by the IPLA's coverage of "physical harm."

2 1 8. 806 N.E.2d 776 (Ind.), reh 'g denied (Ind. 2004). For a detailed analysis oiKennedy, see

Alberts, supra note 170, at 1210-14, 1241-42.

219. 815 N.E.2d 522 (Ind. Ct. App.), reh'g denied (Ind. Ct. App. 2004), trans, denied, 831

N.E.2d 745 (Ind. 2005).

220. 242 F.3d 713 (7th Cir. 2001).

221. No. 99-CV-4307-JPG, 2002 U.S. Dist. LEXIS 5070 (S.D. 111. Jan. 8, 2002) (applying

Indiana law).

222. 822 N.E.2d 150 (Ind.), reh 'g denied (Ind. 2005).

223. Mat 151.
224. Id.

225. Id.

226. W. at 151-52.

227. /rf. at 156-57.



2006] PRODUCT LIABILITY 1 179

tort theory if the defect causes personal injury or damage to other
property, but contract law governs damage to the product or service itself
and purely economic loss arising from the failure of the product or

service to perform as expected.^^^

Without discussing why this case was not analyzed under the IPLA, the Gunkel
court continued with an analysis under the economic loss doctrine and interpreted

the definition of "other property."

The Gunkel court found that "property acquired separately from the defective
good or service is 'other property,' whether or not it is, or is intended to be,

incorporated into the same physical object." ^^^ Therefore, the court concluded,

the economic loss rule precluded recovery by the Gunkels for the damage to the
fagade, "but tort recovery for damage to the home, and its parts, caused by the
allegedly negligent installation of the fa9ade is not limited by the economic loss

rule."23«

Shortly after releasing its opinion in Gunkel, the Indiana Supreme Court

decided Hyundai Motor America, Inc. v. Goodin^^^ another example of a
claimant utilizing a cause of action outside of the IPLA in a product liability
case. In Goodin, the plaintiff sued Hyundai under the Magnuson-Moss
Warranty-Federal Trade Commission Improvement Act^^^ for breach of express
and implied warranty, as well as revocation of acceptance, based upon problems

she had with a car purchased from a dealer.^^^ After a two-day trial, a jury found

in favor of Hyundai on the breach of express warranty claim, "but found in favor

of Goodin on her claim for breach of implied warranty of merchantability,"

assessing $3000 in damages and $19,237.50 in attorneys' fees "pursuant to the

fee shifting provisions of the Magnuson-Moss Warranty Act."^^"^
Hyundai then orally moved to set aside the verdict because Goodin did not

have vertical privity with Hyundai. The trial court initially denied the motion,
but the next day granted the motion concluding that lack of vertical privity

precluded Goodin' s claim for breach of implied warranty. The trial court then
granted Goodin' s motion to reinstate the verdict, determining that Hyundai was
estopped from asserting lack of privity.^^^ The court of appeals agreed with
Hyundai, holding that it was not estopped, privity was an element of Goodin'

s

claim, and privity was lacking.^^^
The Indiana Supreme Court accepted transfer and addressed the issue of

privity in the context an alleged breach of implied warranty of merchantability.

228. Id. at 153.

229. Id. at 155.

230. Id. at 156-57.

231. 822 N.E.2d 947 (Ind. 2005)

232. 15U.S. §§ 1301-12(2000).

233. Goodin, 822 N.E.2d at 950.

234. Id.

235. Mat 950-51.
236. Mat 951.



1 1 80 INDIANA LAW REVIEW [Vol. 39: 1 145

Much of the discussion centered around the Uniform Commercial Code
("UCC"). The Goodin court mentioned the IPLA, however, in support of its
conclusion, writing that the IPLA "does not require a personal injury plaintiff to
prove vertical privity in order to assert a products liability claim against the

manufacturer."^^^ The Goodin court also wrote that ''elimination of [the] privity
requirement gives consumers . . . the value of their expected bargain, but will

rarely do more than duplicate the [IPLA] as to other consequential damages."^^^
And, if plaintiffs are able to recover additional damages under the UCC based
upon the elimination of the privity requirement, "Indiana law would award the

same damages under the [IPLA] as personal injury or damage to 'other property'
from a 'defective' product."^^^

Each ofthe foregoing cases allowed claimants to pursue common law or non-
IPLA statutory claims outside the EPLA even when their allegations appeared to
involve the type of "physical harm" the IPLA covers. And, in Kennedy, Coffinan,
Ritchie, and Goines, such was true even when the defendants were not
"manufacturers" or "sellers" under the IPLA.^^° Clearly, there are important

policy considerations involved when courts decide to impose common law and
non-ff*LA liability in cases involving "physical harm" as defined by the IPLA,

particularly in cases against entities that do not otherwise qualify as

"manufacturers" or "sellers" under the IPLA.

Gunkel, Goodin, Kennedy, Cojfman, Ritchie, and Goines make it readily
apparent that Indiana federal and appellate courts seem to have no difficulty
allowing alternative statutory and conmion law claims against product sellers,
suppliers, and manufacturers that fall outside the reach of the IPLA even when
the "physical harm" suffered is the very type of harm the IPLA otherwise would
cover. Legislative action likely is the only way to reverse that trend, if indeed the
Indiana General Assembly intended something different.

n. Statutes OF Repose

Product liability cases involving asbestos products are unique in several

ways, including the manner by which the Indiana General Assembly chose to
handle the repose period that applies to them. Indiana Code section 34-20-3-2(a)
provides that a product liability action based upon either "property damage
resulting from asbestos" or "personal injury, disability, disease, or death resulting

from exposure to asbestos . . . must be commenced within two (2) years after the
cause of action accrues."^"^^ That rule applies, however, "only to product liability

237. Id. at 954 (citing iNfD. CODE §§ 34-20-2-1 to -4 (2004); Lane v. Barringer, 407 N.E.2d

1 173, 1 175 (Ind. Ct. App. 1980)).

238. /^. at 959.

239. Id. (citing Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind.), reh 'g denied (Ind. 2005)).

240. See supra notes 218-21 and accompanying text.

241

.

Ind. Code § 34-20-3-2(a) (2005). The statute further provides that an action accrues "on

the date when the injured person knows that the person has an asbestos related disease or injury,"

id. § 34-20-3-2(b), and that the "subsequent development of an additional asbestos related disease



2006] PRODUCT LIABILITY 1181

actions against . . . persons who mined and sold commercial asbestos," and to
"funds that have, as a result of bankruptcy proceedings or to avoid bankruptcy

proceedings, been created for the payment of asbestos related disease claims or

asbestos related property damage claims."^"^^
In AlliedSignal, Inc. v. Ott^^^ the Indiana Supreme Court held that Indiana

Code section 34-20-3-1 bars claims against manufacturers that did not sell bulk
asbestos fiber for asbestos-related injuries accruing more than ten years after the
initial delivery.^"^ In doing so, the court concluded that the asbestos-specific

"discovery rule" exception to the ten-year repose period^"^^ does not apply to

manufacturers that did not sell bulk asbestos fiber.^"^^ The On court also held that
application of the ten-year statute of repose does not violate "due process"

guarantees provided by article I, section 23 of the Indiana Constitution.^"^^ The
court, however, left open, pending further factual findings whether the statute of

repose violated article I, section 12 of the Indiana Constitution as applied.^"^^

On the latter issue, the court determined that a cause of action "accrues"
when "the disease has actually manifested itself."^"^^ The court then
acknowledged that injury "does not occur upon mere exposure to (or inhalation

of) asbestos fibers" but that "injury may well occur before the time that it is
discovered."^^^ As such, the court concluded that Indiana Code section 34-20-3-1

"might be unconstitutional as applied to the plaintiff if a reasonably experienced

physician could have diagnosed Jerome Ott with an asbestos-related illness or

disease within the ten-year statute of repose, yet Ott had no reason to know of the
diagnosable condition until the ten-year period had expired."^^^ Because the

record had not been developed to address that issue, the case was remanded to
the trial court for further proceedings.^^^

Two follow-up cases, including the same Ott case noted above, made their
way to the Indiana Court of Appeals during the current survey period. First, in
Jurich V. John Crane, Inc.,^^^ plaintiffs claimed that they contracted

mesothelioma (a type of lung cancer) as a result of workplace exposure to

or injury is a new injury and is a separate cause of action." Id. § 34-20-3-2(a).

242. Id. § 34-20-3-2(d) (emphasis added).

243. 785 N.E.2d 1068 (Ind. 2003), appeal after remand, 827 N.E.2d 1194 (Ind. Ct. App.

2005).

244. Id. at 1072-73. For a detailed analysis of Ott and a brief overview of the cases and issues

that preceded it, see Alberts & Bria, supra note 26, at 1276-82.
245. IND. Code § 34-20-3-2 (2005) (formeriy Ind. Code § 33-1-1.5-5.5).

246. Ofr, 785 N.E.2d at 1073.

247. /^. at 1075-77.

248. Id at 1077.

249. /^. at 1075.

250. Id

251. Id

252. Id

253. 824 N.E.2d 777 (Ind. Ct. App.), trans, denied sub nom. Jurich v. Anchor Packing Co.,

841 N.E.2d 179 (Ind. 2005).



1 182 INDIANA LAW REVIEW [Vol. 39: 1 145

asbestos.^^"^ The defendants sought summaryjudgment based upon the statute of
repose.^^^ Plaintiffs countered with testimony from opinion witnesses that

cellular changes leading to the development of mesothelioma could have been

detected within the statute of repose period with certain invasive exams and
tests.^^^ The trial court granted the defendants' motions for summary judgment,
concluding that the DPLA statute of repose was constitutional as applied to the
plaintiffs.^^^ Plaintiffs appealed.

The Jurich court first acknowledged that evidence from opinion witnesses
indicated that inhalation of asbestos by the plaintiffs probably caused immediate

lung damage that eventually led to mesothelioma, but that such initial damage
was not mesothelioma, and that a reasonably experienced physician would not
have diagnosed either plaintiff with mesothelioma until after the repose period

had expired.^^^ According to the court, although certain invasive tests could have

been performed on the plaintiffs during the repose period, "it would have been

highly dangerous, unethical, and medically inappropriate to perform" such

invasive tests on persons with no symptoms whatsoever.^^^
Interpreting On, the Jurich court concluded that an '"asbestos-related illness

or disease' that could have been diagnosed by a 'reasonably experienced

physician'" meant a "disease that is a clinically-recognized symptomatic

condition, or one that could have been detected by a competent physician

conducting a routine examination of the patient."^^^ Such a definition excludes

"asymptomatic conditions that merely represent the early stages of a potential

disease or condition that could only be detected by a physician utilizing extreme

and medically unsound or unethical measures."^^* Accordingly, based upon the

facts as applied to the Ott requirements, the plaintiffs "failed to demonstrate that

the [I]PLA statute of repose is unconstitutional as applied to them."^^^

A separate panel of the court of appeals reached the result in Ott v.
AlliedSignal, Inc.^^^ the appeal arising out of the same original lawsuit that

reached the Indiana Supreme Court on the issues noted above. After the Indiana

Supreme Court remanded the case to the trial court, the trial court granted

summary judgment to several defendants based upon the statute of repose.^^
Plaintiffs appealed the grant of summary judgment to the Indiana Court of
Appeals, challenging, among other things, that the statue of repose was

254. Mat 778.
255. Id.

256. Id.dXll9.

257. Id. Sit nS.

258. /J. at 783.

259. Id.

260. Id. (quoting AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068, 1075 (Ind. 2003)).

261. Id.

262. /^. at 784.

263. 827 N.E.2d 1 144 (Ind. Ct. App.), trans, denied, 841 N.E.2d 187 (Ind. 2005).

264. /^. at 1147.



2006] PRODUCT LIABILITY 1 1 83

unconstitutional as it was applied to the facts of the case.^^^

Relying heavily on the Jurich decision with regard to its analysis of the

article I, section 12 issue, the court of appeals affirmed.^^^ The court agreed with
Jurich' s "general framework," determining that a manifested asbestos-related

illness or disease that a reasonably experienced physician could have diagnosed,

is indeed, a "disease that is a clinically-recognized symptomatic condition, or one

that could have been detected by a competent physician conducting a routine

examination of the patient."^^^ According to the court, such a test is appropriate

"because it requires the plaintiff either to display symptoms or to present a
condition that can be diagnosed without unusual or heroic measures."^^^ Ott did

not have any clinically recognizable symptoms of lung cancer during the repose
period, and his condition could only have been detected by "an invasive and

dangerous procedure that would not have been clinically indicated in the absence

of symptoms.
"^^^

The Ott court also rejected the notion that application of the statute ofrepose
violates the Equal Privileges and Immunities Clause (article I, section 23) of the

Indiana Constitution because it precludes claims that have longer latency periods

caused by newer products but not shorter latency claims caused by identical older

products.^^^ The court held that the statutory classification "survives scrutiny
under article I, section 23 of the Indiana Constitution."^^'

265. Id. at 1 148. The trial court concluded that the statute of repose as applied to Ott did not

violate article I, section 12 of the Indiana Constitution because even though the "process of the

development of [Ott's] cancer likely began during the ten-year repose period[,]" there was no

evidence that the disease manifested within the repose period. Id. at 1 149. Furthermore, "the trial

court found no evidence that a reasonably experienced physician could have diagnosed the illness

within the repose period." Id.

266. Id. at 1 149, 1 152-53 (citing Jurich v. John Crane, Inc., 824 N.E.2d 777 (Ind. Ct. App.),

trans denied sub nom. Jurich v. Anchor Packing Co., 841 N.E.2d 179 (Ind. 2005)). The court of

appeals first determined that the trial court erroneously struck affidavits supporting Ott's motions.

The affidavits were submitted by opinion witnesses who had never examined Ott or his medical

records, and two of the affidavits were prepared for other cases. The panel believed that the

affidavits should have been admitted because they explained the disease process applicable to all

asbestos-related cancer victims, and were "therefore relevant in that it makes facts of consequence

to the determination of the action more or less probable than it would be without the evidence."

Id. at 1 150 (citing iND. EviD. R. 401). Ultimately, however, the admission of the affidavits did not

result in reversal.

267. /^. at 1153.

268. /^. at 1155.

269. Id.

270. /rf. at 1159.

271. /c/. at 1160.



1 1 84 INDIANA LAW REVIEW [Vol. 39: 1 145

m. Evidentiary Presumption for Compliance
WITH Government Standards

The IPLA, by Indiana Code section 34-20-5-1, entitles a manufacturer or
seller to a rebuttable presumption that the product causing the physical harm is
not defective and that the product's manufacturer or seller is not negligent if,

before the sale by the manufacturer, the product:

(1) was in conformity with the generally recognized state of the art
applicable to the safety of the product at the time the product was
designed, manufactured, packaged, and labeled; or

(2) complied with applicable codes, standards, regulations, or

specifications established, adopted, promulgated, or approved by the

United States or by Indiana, or by any agency of the United States or

Indiana.^^^

Two cases decided during the survey period reached opposite conclusions
with respect to how the presumption should operate in an evidentiary context.
Interestingly enough, both cases involve motor vehicle accidents. In the first

case, Schultz v. Ford Motor Co.^^ plaintiff Schultz was involved in a one-car
accident in his Ford Explorer. During the accident, the vehicle slid sideways off

the roadway, rolled over, hitting the ground on the driver's side roof, and then

landed on its wheels. ^^"^ The driver's side roof collapsed one foot when the
vehicle hit the ground.^^^ Schultz suffered a cervical cord injury.^^^ Schultz sued

Ford, alleging negligence and defective roof design.^^^

Schultz' s trial brief objected to the use of any jury instruction derived from

the IPLA governmental compliance presumption or the Indiana Pattern Jury
Instruction 7.05(D), which was patterned after the IPLA's statutory
presumption.^^^ Schultz again raised his objection to the jury instruction at

trial.^^^ The trial court overruled the objection and read Ford's proffered jury
instruction to the jury.^^^ After an eight week trial, the jury found in favor of
Ford on all claims.

^^'

On appeal, Schultz argued that it was reversible error for the trial court to
give Ford' s instruction on the governmental compliance presumption because the

272. IND. CODE §34-20-5-1(2005).

273. 822 N.E.2d 645 (Ind. Ct. App.), reh 'g denied (Ind. Ct. App.), trans, granted, 841 N.E.2d

182 (Ind. 2005).

274. Mat 647.
275. Id.

276. Id.

111. /J. at 647-48.

278. /J. at 648.

279. Id

280. Id

281. Mat 648.



2006] PRODUCT LIABILITY 1 1 85

statute has no evidentiary value.^^^ Schultz asserted that the only purpose of the

presumption is to require the plaintiff to rebut the presumption and, "once that

burden is met, the presumption serves no further purpose and drops from the

case."^^^ Schultz also asserted that the IPLA governmental compliance
presumption "creates a rebuttable presumption, which imposes a burden of

production—not proof—and, hence, is an improper subject of jury
instruction."^^"^ Ford replied "that the presumption of non-negligence under the

IPLA is closer to a statutorily recognized inference and, as such, is appropriate
for use as an instruction to the jury.'*^^^

Finding the distinction between a presumption and inference to be key to the

case holding, the Schultz court discussed the two terms. First, the court stated

that "'presumption' is one of the slipperiest members of the family of legal
terms."^^^ Furthermore,

"A presumption is an assumption of fact resulting from a rule of law that
requires the fact to be assumed from another proven fact or group of

facts. Stated differently, a presumption is a declaration of public policy

that if a litigant presents evidence of a specified set of facts, then an

additional fact will be presumed to exist."^^^

The Schultz court found the distinction between a presumption and inference to
be "best understood by noting that 'a presumption is a deduction that the law

requires the trier of fact to make if it finds a certain set of facts. '"^^^ Therefore,
the court concluded, "a presumption differs from an inference, which the trier

may or may not make according to his own conclusions drawn from the facts
adduced at trial. A presumption is mandatory, while an inference is
perrmssive.

The Schultz court also cited Miller's Indiana Evidence treatise in Indiana
Practice for three differences between presumptions and inferences.

^^°

First, presumptions are mandatory unless rebutted; the presumed fact

must be taken as true in the absence of evidence to the contrary.

Inferences are permissible, but never mandatory, when the evidence is
being weighed; the trier of fact is not required to draw inferences.

Second, presumptions are not weighed in the sense evidence is weighed

282. Mat 652.
283. Mat 652.
284. Mat 653.
285. Id.

286. Id. (citing JOHN W. STRONG, McCORMICK ON EVIDENCE § 342 (5th ed. 1999)).
287. Id. (quoting 12 ROBERT LOWELLMILLER, Jr., Indiana Practice, Indiana Evidence §

301.101 (2d ed. 1995)).

288. Id. (quoting In re Borom, 562 N.E.2d 772, 775 (Ind. Ct. App. 1990)).

289. Id. (citing Borom, 562 N.E.2d at 775).

290. Id.



1 1 86 INDIANA LAW REVIEW [Vol. 39: 1 145

if contrary evidence is produced, although a presumption met by
rebutting evidence may effectively become an inference under Rule 301

.

An inference remains in the case despite the presentation of contrary
proof and may be weighed with all the other evidence.

Third, a presumption need not be based entirely upon logical
probabilities; public policy, social convenience, safety or procedural

convenience may lead to the creation of a presumption. An inference,
however, must be logical. Inferences also must be based on evidence.^^'

After its review of the distinctions between presumptions and inferences, the

Schultz court concluded that the IPLA governmental compliance presumption
"creates a mandatory presumption and not a permissive inference."^^^ The court
stated that the IPLA "presumption is mandatory and, unless rebutted, allows the
conclusion that the manufacturer was not negligent. The governmental
compliance presumption does not arise logically, but instead is a legislative

fiction created to address the public policy concerns that manufacturers do not

get adequate credit for complying with governmental standards.
"^^^

The court agreed with Schultz, and found that "the governmental compliance
presumption helps Ford on a motion for summaryjudgment or a directed verdict,
but an instruction explaining this presumption has no evidentiary value and no

practical effect at trial."^^"^ Holding that it was reversible error for the trial court
to read Ford's profferedjury instruction on the governmental compliance statute,

the Schultz court wrote, "[t]he rebuttable presumption of [the IPLA] is not

evidence; instead, it should be used as guidance for the court and not as evidence

forthejury."'"'

In Flis V. Kia Motors Corp.^^^ Judge Tinder reached a different conclusion,

writing that "the Indiana Supreme Court would most likely disagree with the
Schultz opinion regarding an instruction based upon Indiana Code section 34-20-
5-1 and grant transfer in that case."^^^ In Flis, the driver of a Kia sport utility

vehicle was injured during a one-car accident in which her vehicle rolled over.^^^
As was the case in Schultz, Kia offered a jury instruction based upon the IPLA
governmental compliance presumption and Indiana Pattern Jury Instruction

7.05(D).^^^ Flis objected to the use of the proffered instruction based upon the

29 1

.

Id. (footnotes omitted) (citing 1 2 MILLER, supra note 287, § 301 . 101 ).

292. /^. at 654.

293. Id.

294. /J. at 655.

295. Id.

296. No. l:03-cv-1567-JDT-TAB, 2005 U.S. Dist. LEXIS 1291 1, at *1 (S.D. Ind. June 20,

2005).

297. Mat*17.

298. Mat*2.

299. Id.



2006] PRODUCT LIABILITY 1 1 87

Schultz decision.^^ Judge Tinder overruled the plaintiffs objection.
^^'

After first recognizing that the court must "use its bestjudgment to apply the

rules of law that the Supreme Court of Indiana would apply,"^^^ Judge Tinder
characterized the Schultz decision as one applying the "'bursting bubble' theory

of presumptions, 'whereby the presumption bursts' [sic] and vanishes once

evidence to dispute the existence of the presumed fact is produced.
'"^^^

However, he went on to point out that Rule 301 of the Indiana Rules of Evidence

modifies the traditional "bursting bubble" theory by providing in the second

sentence of the rule that, "[a] presumption shall have continuing effect even

though contrary evidence is received."^^

Although he recognized that Indiana's evidentiary rules did not apply to the

procedural conduct of a trial in federal court, Judge Tinder reviewed Indiana's

Rule 301 in an effort to give effect to the presumption, which is an issue of

substantive Indiana product liability law under the IPLA.^®^ As such. Judge
Tinder had to consider how the Indiana Supreme Court likely would resolve the
issue, ultimately determining that the Indiana Supreme Court would not follow

Schultz.^''^

Perhaps aware of the conflict between Flis and Schultz, the Indiana Supreme
Court granted transfer in Schultz in August 2005. Oral argument was held in
November 2005.

IV. Defenses

A. Use with Knowledge ofDanger (Incurred Risk)

Indiana Code section 34-20-6-3 provides that "[i]t is a defense to an action
under [the IPLA] that the user or consumer bringing the action: (1) knew of the
defect; (2) was aware of the danger in the product; and (3) nevertheless
proceeded to make use of the product and was injured."^^^ Incurred risk is a
defense that "involves a mental state of venturousness on the part of the actor and

demands a subjective analysis into the actor's actual knowledge and voluntary
acceptance of the risk."^^^ At least one Indiana court has held in the summary
judgment context that application of the incurred risk defense requires

300. Id.

301. Id.

302. Id. at * 10 (internal quotation marks omitted) (quoting Dameron v. City of Scottsburg, 36

F. Supp. 2d 821, 831 (S.D. Ind. 1998)).

303. Id. at *1 1 (quoting 12 MiLLER, supra note 283, § 301.102).

304. Id. at * 12- 13 (internal quotation marks omitted) (quoting Ind. R. Evid. 301).

305. Id atn5-l6.

306. Id.atnS-ll.

307. IND. Code § 34-20-6-3 (2005).

308. Cole V. Lantis Corp., 714 N.E.2d 194, 200 (Ind. Ct. App. 1999); Henderson v.

Freightliner, LLC, No. l:02-cv-1301-DFH-WTL. 2005 U.S. Dist. LEXIS 5832, at *1 1 (S.D. Ind.

Mar. 24, 2005).



1 1 88 INDIANA LAW REVIEW [Vol. 39: 1 145

uncontradicted evidence from which the sole inference to be drawn is that the
plaintiff had actual knowledge of the specific risk and understood and
appreciated that risk.^^^

In this regard, we revisit the case of Mesman v. Crane Pro Services, a
Division of Konecrane, Inc.,^^^ which was discussed above in connection with
design defect issues.^'' There, plaintiff John Mesman suffered serious leg
injuries when a load of steel sheets fell on him while a crane was unloading them
from a boxcar.^^^ Before the accident, Konecranes, Inc. evaluated the design and

operation ofthe crane and made several changes, "including substitut[ing] for the
controls in the operator's cab a hand-held remote-control device with which the

operator would operate the crane from ground level."^^^ Konecranes also
installed and emergency stop button alongside the "up" and "down" buttons on
the remote device, which the operator could press if he or she "sensed an

impending collision between the load and the cab."^^"^ "Because the up and down
controls had a deceleration feature to reduce wear and tear on the crane, the

spreader beam would continue to rise for three seconds after the down button was
pressed."^^^ In those three seconds, the beam would still travel about a foot until
it stopped and began its reverse motion.^

^^

On the day of the accident, Mesman was standing in the boxcar as he
"fastened a load of steel sheets to the scoops beneath the crane's spreader

beam."^^^ Standing on the floor of the plant about twenty feet away from the
boxcar, the crane operator pressed the "up" button on the remote controller.

309. Indiana courts have decided some important incurred risk cases in the last few years.

E.g., Smolk Materials Handling Co. v. Kerr, 719 N.E.2d 396 (Ind. Ct. App. 1999) (finding no basis

for the incurred risk defense under the facts of that case; plaintiff had no knowledge of the fact that

the manufacturer had changed the design of the lift so as to eliminate pins that would have

prevented rods from falling unexpectedly from the lift cups underneath the lift platform); Hopper

V. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999) (finding that because the plaintiffs did not

adequately specify the basis of their claim, it was unclear "whether the defect in the fire truck was

open and obvious or whether warnings were placed on the truck informing the passengers of the

specific risk from which the Hoppers' injuries resulted" and the court was unable to determine the

applicability of the incurred risk defense); Cole, 714 N.E.2d 194 (concluding that because

plaintiffs job necessarily entailed moving containers across a gap between aircraft and aircraft

loading equipment and he apparently believed that he had to somehow find a way to work around

the known danger posed by the gap, whether plaintiffvoluntarily incurred the risk of falling through

the gap is a question of fact for the jury's resolution).

310. 409 F.3d 846 (7th Cir.), reh 'g and reh 'g en banc denied (7th Cir. 2005).

311. See supra Part I.D.

312. Merman, 409 F.3d at 847.

313. Mat 848.
314. Id.

315. Id.

316. Id.

317. Id.



2006] PRODUCT LIABILITY 1 1 89

causing the beam and the load to rise.^'^ The operator "saw that the spreader
beam was going to hit the cab, but instead of pressing the emergency-stop button,
... he [mistakenly] pressed the down button."^^^ "Because of the deceleration
feature . . . and the narrow clearance between the cab and the rim of the boxcar,

the beam continued to rise for three seconds," hitting the cab and causing the
load to fall on Mesman.^^^

As part of its defense to the design defect allegations, Konecranes argued
that the crane operator "exposed Mesman to a danger that was open and
obvious."^^^ "By pressing the down button, Konecranes argue[d], [the crane
operator] exposed Mesman to a danger that was 'open and obvious' to [the crane
operator]."^^^ In this context, "the danger [was] that the rising spreader beam
would not stop in time to avoid hitting the cab and dislodging the beam's load

unless the emergency-stop button was pushed."^^^ "Konecranes argue[d] that it

had no legal obligation to protect against such a danger."^^"^ Konecranes further

contended that although the danger was not obvious to Mesman, it was obvious
to the crane operator and the "appearance of danger" to the crane operator was

"legally relevant to the apportionment of liability between the [crane operator' s]
employer and Konecranes."^^^

The Mesman court (Judge Posner writing) refused to apply the "open and
obvious" concept to the facts presented, pointing out that the current version of

the IPLA deliberately omitted the "open and obvious" rule as a stand-alone
defense, replacing it instead with the "incurred risk" defense "that requires proof

that the user . . . was actually 'aware of the danger of the product. '"^^^ In the
context of applying the "open and obvious" concept to the "incurred risk"

defense, however, the Mesman court specifically recognized that an open and
obvious risk "remains relevant to liability" because "[i]t is circumstantial

evidence that the user of the product knew of the danger (and thus 'incurred' the
risk)"^^^ and because it "bears on whether the risk was great enough to warrant

protective measures beyond what the user himself would take."^^^
Konecranes argued that the General Assembly eliminated the "open and

obvious" defense only with respect to claims alleging manufacturing defects, and

318. Id.

319. Id.

320. Id.

321. Mat 850.
322. Id.

323. Id.

324. Id.

325. Id.

326. Id. (quoting I^fD. CODE § 34-20-6-3 (2004)).
327. Id. (citing Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1 145, 1 150-5 1 (Ind. Ct. App.

1990)).

328. Id. at 851 (citing Lovell v. Marion Power Shovel Co., 909 F.2d 1088, 1090-91 (7th Cir.

1990); Miller v. Todd, 551 N.E.2d 1139, 1143 (Ind. 1990); Welch v. Scripto-Tokai Corp., 651

N.E.2d 810, 815 (Ind. Ct. App. 1995); Gregg, 554 N.E.2d at 1150-51).



1 190 INDIANA LAW REVIEW [Vol. 39: 1 145

not with respect to claims alleging design defects.^^^ Stated differently, although

Konecranes never specifically pleaded or argued the "incurred risk" defense per

se, Konecranes, in effect, contended that "incurred risk" remains a complete

defense even after the 1995 IPLA amendments.^^^ The Mesman court rejected
that contention:

Suppose a machine is designed without a shield over its moving parts.

It is obvious to the operator that if he sticks his hand into the machine

while the machine is operating, the hand will be mangled. In the old

days [before the 1995 amendments] that would have been a complete

defense. But the new law recognizes that because of inadvertence or
other human error, or because of debris or a slippery surface that might
cause a worker to trip, or even because of a distracting noise or a sudden

seizure, open and obvious hazards do on occasion result in accidents. If

those accidents can be avoided by a design modification at very little

cost, then even if the risk is slight, the modification may be cost-justified
.... The analogy to the doctrine of last clear chance, which imposes a
duty of care on a potential injurer even when the potential victim has
carelessly or even recklessly exposed himself to danger, is apparent.^^*

The Mesman court openly acknowledged that such a determination places it
at odds with recent Indiana appellate decisions holding that a plaintiff whom is
found to have incurred an open and obvious risk is barred from recovery under

the IPLA.^^^ These decisions conclude the "open and obvious nature of the

danger . . . negate[s] a necessary element of the plaintiffs prima facie case" (i.e.,

that the defect was hidden).^^^ In effect, such holdings render "incurred risk" a
complete defense.

The Indiana Supreme Court's decision in Vaughn not only addressed the
terms "user" and "consumer," it cleared up any lingering controversy about how
courts and practitioners in Indiana should view the incurred risk defense in

product liability cases. The Vaughn court plainly held that "[i]ncurred risk acts
as a complete bar to liability with respect to negligence claims brought under the

IPLA."^^-*

The Vaughn decision is consistent with several prior cases on that point,
including Baker v. Heye-America,^^^ Hopper v. Carey,^^^ and Cole v. Lantis

329. Mat 851.
330. Mat 850-51.
331. /J. at 85 1 (internal citations omitted).

332. Id.

333. Id. (quoting Cole v. Lantis, 714 N.E.2d 194, 199 (Ind. Ct. App. 1999)). Actually, the

Mesman court recognized only that its interpretation of the "incurred risk" defense is at odds with

Cole and Baker. Id.

334. Vaughn v. Daniels Co., 841 N.E.2d 1 133, 1 146 (Ind. 2006).

335. 799 N.E.2d 1 135 (Ind. Ct. App. 2003).

336. 716 N.E.2d 566, 576 (Ind. Ct. App. 1999) ("[E]ven if a product is sold in a defective

condition unreasonably dangerous, recovery will be denied an injured plaintiff who had actual



2006] PRODUCT LIABILITY 1 191

Corp.^^^ and the court of appeals' s decision in Vaughn?^^ Those cases all

previously determined that incurred risk remains a complete defense in

Indiana.
^^^

In addition to Mesman, Henderson v. Freightliner, LLC^^^ is another federal
decision issued during the survey period that addressed the incurred risk defense.

In that case, Ronald Henderson was a "diesel truck mechanic who was seriously
injured when a component of the pressurized air suspension system" of a truck
manufactured by Freightliner burst. ^"^^ At the time of the accident, Henderson
was working on the driver's side air spring, which consisted of a rubber air bag
and a piston.^"^^ When replacing the air spring assembly, Freightliner' s service
manual instructs mechanics, among other things, to "[rjaise the vehicle frame and
support it with safety stands," to disconnect the leveling value, and to "exhaust

all air from the air springs."^"^^ Henderson was familiar with the warning and
knew that he needed to take such steps before working on the suspension
system.^"^ When he first rolled under the truck on his roller platform, however,
he had not yet released the air in the air suspension system and it remained

pressurized.^"^^ The air spring assembly exploded while Henderson was beneath
thetruck.^^^

The parties disputed whether Henderson rolled under the truck merely to
diagnose or inspect the air spring, or whether he had actually started to work on

knowledge and appreciation of the specific danger and voluntarily [incurred] the risk." (emphasis

added) (internal quotation marks omitted)).

337. 714 N.E.2d 194, 199 (Ind. Ct. App. 1999).

338. 777 N.E.2d 1110 (Ind. Ct. App. 2002), clarified on reh'g, 782 N.E.2d 1062 (Ind. Ct.

App. 2003), vacated, 841 N.E.2d 1133 (Ind.), reh'g denied (Lnd. 2006).

339. In Cojfman v. PSI Energy, Inc., 815 N.E.2d 522 (Ind. Ct. App.), reh'g denied (Ind. Ct.
App. 2004), trans, denied, 831 N.E.2d 745 (Ind. 2005), a panel of the Indiana Court of Appeals

seemed to assume, as did Mesman, that the incurred risk defense is not a complete one because it

embraces a discussion built around a comparative fault analysis, ultimately finding no liability

because, as a matter of law, no reasonable juror could have concluded anything other than that

Coffman's comparative fault in incurring the risk exceeded the total fault that could be assessed to

the alleged tortfeasors. The court in Cojfman noted that "incurred risk bars a product strict liability

claim when the evidence is undisputed and reasonable minds could draw" only one inference. 815

N.E.2d at 528 (citing Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 402 (Ind. Ct. App.

1999)). "While the allocation ofeach party's proportionate fault is generally a question for the trier

of fact, such is not the case when there is no dispute in the evidence and the fact finder could reach

only one conclusion." Id. at 528.

340. No. l:02-cv-1301-DFH-WTL, 2005 U.S. Dist. LEXIS 5832 (S.D. Ind. Mar. 24, 2005).

341. Mat*l.

342. Mat*4.

343. Mat*5.

344. Id

345. Id

346. /rf. at*5-6.



1 192 INDIANA LAW REVIEW [Vol. 39: 1 145

it.^"^^ Although Henderson did not recall anything that occurred after he rolled

under the truck, "a co-worker inspected the scene" after the accident "and found

tools under the truck, including an impact gun, some sockets, and a wrench."^'^^
The first mechanic to work on the truck after Henderson's injury, Timothy
Couch, testified that he found a deep-well socket that belonged to Henderson

wedged between the truck's frame and the axle housing.^"^^ Couch testified that
mechanics put sockets in that location to prevent the frame from lowering onto

the axle housing when the air is released from the suspension system."^^^
Removing an air spring assembly requires a mechanic to loosen U-bolts that

hold the truck' s leaf springs in place.^^^ The parties also disputed whether the U-
bolts securing the leaf spring were tight when Couch began to remove the failed
air spring assembly, or whether Henderson had already loosened them.^^^

Henderson brought claims against Freightliner as well as the manufacturer

of the allegedly defective air spring component of the truck's suspension system
and the allegedly defective leaf spring that was part of the suspension.^^^ Each
of the defendants moved for summary judgment, arguing, among other things,
that Henderson incurred the risk of harm by working on the truck's suspension
system without first bleeding the air pressure from the system.

^^"^

Judge Hamilton began his analysis by recognizing that the defendants had to
"present sufficient evidence to convince a reasonable jury that Henderson had

actual knowledge of the specific risk that he faced" in order for the incurred risk

defense to apply.^^^ To apply the defense to foreclose claims as a matter of law
in the context of a summary judgment motion. Judge Hamilton wrote that the
defendants would have to show that any reasonable jury would be required to
find that Henderson had such knowledge.^^^

Judge Hamilton concluded that the defendants were not entitled to judgment

as a matter of law with respect to the incurred risk defense because record

evidence, in his view, "would easily allow a jury to find that Henderson had not

begun working on a still pressurized air suspension system when the piston
exploded."^^^ According to the court, evidence existed that would allow ajury to

conclude that Henderson was merely preparing to work on the system, that he
had gathered some tools in preparation for such work, and that he was underneath

347. Id.at*6.

348. Id.

349. Id.

350. Id.

351. Mat*7.

352. Id.

353. Mat*2.

354. Id. at *10. Defendants alternatively argued that they were entitled to summaryjudgment

because Henderson's conduct amounted to a misuse of the truck. Id.; see infra Part IV.B.

355. M. at*ll.

356. Id.

357. Mat*12.



2006] PRODUCT LIABILITY 1 193

the truck only to initially inspect the suspension system.^^^ "Perhaps most

telling," according to Judge Hamilton, "ajury could find that he put the deep well

socket on the truck frame so that he would have more room to work after
bleeding the air from the system."^^^

"Henderson [clearly] understood that it was dangerous to work on a
pressurized suspension system."^^^ Indeed, he admitted in his deposition that he

wanted to get the air out of the system before he removed the components to

avoid an explosion.^^^ According to Judge Hamilton, such an "understanding

provides some evidence that weighs against the circumstantial evidence that
defendants cite to argue that he began working while the system was still
pressurized."^^^

B. Misuse

Indiana Code section 34-20-6-4 provides that

[i]t is a defense to an action under [the IPLA] that a cause ofthe physical

harm is a misuse of the product by the claimant or any other person not
reasonably expected by the seller at the time the seller sold or otherwise

conveyed the product to another party.^^^

Knowledge of a product's defect is not an essential element of establishing the
misuse defense. The facts necessary to prove the defense of "misuse" many
times may be similar to the facts necessary to prove either that the product is in
a condition not contemplated by reasonable users or consumers under Indiana

Code section 34-20-4-1(1) or that the injury resulted from handling, preparation
for use, or consumption that is not reasonably expectable under Indiana Code
section 34-20-4-3.

Recent decisions in cases such as Barnard v. Saturn Corp. ,^^^ and Burt v.

358. Id.

359. Id.

360. Id.

361. Id.

362. Mat*12-13.

363. IND. Code § 34-20-6-4 (2005). Stated in a slightly different way, misuse is a "use for a

purpose or in a manner not foreseeable by the manufacturer." Henderson, 2005 U.S. Dist. LEXIS

5832, at * 1 (internal quotation marks omitted) (quoting Barnard v. Saturn Corp. , 790 N.E.2d 1 023,

1030 (Ind. Ct. App. 2003)).

364. 790 N.E.2d 1023 (Ind. Ct. App. 2003). Barnard was a wrongful death action against the

manufacturers of an automobile and its lift jack. Id. at 1026-27. Plaintiffs decedent was killed

when he used a lift jack to prop up his vehicle while he changed the oil. The jack gave way,

trapping the decedent underneath the car. Id. at 1027. Both manufacturers provided safety

warnings regarding proper use of the jack that the decedent did not follow. Id. at 1026. For

example, the decedent failed to block the tires while he used the jack, he used the jack when the

vehicle was not on a flat surface, and he got underneath his vehicle while it was raised on the

jack—all ofthese actions were contrary to the warnings provided by the manufacturers. Id. at 1030.



1 194 INDIANA LAW REVIEW [Vol. 39: 1 145

Makita USA, Inc.,^^^ have resolved the applicability of the misuse defense as a

matter of law. The Henderson case, discussed in detail above in the context of
the incurred risk defense, also involved the misuse defense. There, defendants

argued that Henderson began working on the truck's air suspension system

without first bleeding the air pressure from the system, which was a misuse

because the truck's service manual requires that mechanics, among other things,
disconnect the leveling value and to exhaust all air from the springs.^^^ Judge

Hamilton decided that the disputed issues of fact noted above precluded him
from granting summaryjudgment that the misuse defense foreclosed recovery as
a matter of law.

^^^

As is the case with the incurred risk defense, courts applying Indiana law
continue to reach contrary decisions with regard to whether misuse is a complete

defense. In Burt v. Makita USA, Inc.,^^^ an Indiana federal district court

recognized that the misuse of a product operates as a complete defense.^^^ Two
other Indiana Court ofAppeals decisions, Indianapolis Athletic Club, Inc. v. Alco

Standard Corp?^^ and Morgen v. Ford Motor Co.^''^ have held that a misuse is
a "complete" defense under the IPLA, recognizing that the facts giving rise to a

misuse defense effectively create an unforeseeable intervening cause, thus

eliminating any need to compare fault.^^^ On the other hand, decisions in cases

The trial court granted summary judgment to the defendants based upon product misuse, and the

Estate appealed. The Barnard court ultimately affirmed the grant of summary judgment, holding

as a matter of law that "no reasonable trier of fact could fmd that [the Decedent] was less than fifty

percent at fault for the injuries that he sustained." Id. at 1031. As such, the resolution of the case

by the Barnard court was practically identical to how the court in Cowman resolved an incurred risk

question. For a more detailed analysis of Barnard, see Alberts & Bria, supra note 26, at 1286-87.
365. 212 F. Supp. 2d 893 (N.D. Ind. 2002). In Burt, the plaintiff was injured by a circular

saw's blade guard. Id. at 894. The district court held that there was

no evidence that the defendants should have foreseen that someone would leave the

blade guard in an incompletely installed position, or that someone would attempt to use

the saw with the blade guard improperly attached. To the contrary, the evidence

suggest[ed] that the accident was unforeseeable, caused by a very unusual set of factual

circumstances.

Id. at 898. Accordingly, the defendants were not liable because the manner in which the injury

occurred was not reasonably foreseeable as a matter of law. Id. That being the case, the statutory

definition in IndianaCode section 34-20-4- 1(1) had not been met, which necessarily also meant that

the defense of "misuse" had been established as a matter of law. Id. at 898; see also Alberts &
Boyers, supra note 35, at 1 195-96.

366. Henderson, 2005 U.S. Dist. LEXIS 5832, at *5, *10.

367. M. at*10-14.

368. 212F. Supp. 2d 893 (N.D. Ind. 2002).

369. Mat 897.
370. 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999).

371. 762 N.E.2d 137, 143 (Ind. Ct. App. 2002), aff'd in part, vacated in part, 797 N.E.2d

1 146 (Ind. 2003), reh'g denied (Ind. 2004).

372. Id.



2006] PRODUCT LIABILITY 1195

such as Chapman v. Maytag Corp.,^^^ and Barnard v. Saturn Corp.^^^ have
determined that the degree of a user's or a consumer's misuse is a factor to be

assessed in determining that user's or consumer's "fault," which must then be

compared with the "fault" of the alleged tortfeasor(s). The Indiana Supreme
Court in Morgen v. Ford Motor Co.,^^^ acknowledged the conflicting authority,
but did not address the issue.

The debate is interesting. The 1995 amendments to the IPLA changed
Indiana law with respect to fault allocation and distribution in product liability

cases. Indeed, the Indiana General Assembly provided that a defendant cannot

be liable for more than the amount of fault directly attributable to that defendant,

as determined pursuant to Indiana Code section 34-20-8, nor can a defendant be
held jointly liable for damages attributable to the fault of another defendant.^^^

In addition, the IPLA now requires the trier of fact to compare the "fault" (as the
term is defined by statute) of the person suffering the physical harm, as well as

the "fault" of all others whom caused or contributed to cause the harm.^^^ The
IPLA mandates that

[i]n assessing percentage of fault, the jury shall consider the fault of all

persons who contributed to the physical harm, regardless of whether the
person was or could have been named as a party, as long as the nonparty
was alleged to have caused or contributed to cause the physical harm.^^^

The statutory definition of "misuse" seems to consider only the objective
reasonableness of the foreseeability of the misuse by the seller and not the

character of the misuser's conduct. That would tend to explicitly demonstrate

that "misuse" is not "fault." The districtjudge in Chapman recognized as much.
As he also recognized that the Indiana General Assembly did not specifically
exempt misuse from the scope of the comparative fault requirement.^^^

That the General Assembly may not have overtly indicated that it intended
to exempt misuse from the scope of the comparative fault requirement does not

373. 297 F.3d 682 (7th Cir. 2003). In Henderson, Judge Hamilton cited Chapman for the

proposition that "[t]he misuse defense is not necessarily a complete defense but is an element of

comparative fault." 2005 U.S. Dist. LEXIS 5832, at *10. For a more detailed analysis of

Chapman, see Alberts & Boyers, supra note 35, at 1 196-97.
374. 790 N.E.2d 1023 (Ind. Ct. App. 2003). According to the Barnard court, "the defense of

misuse should be compared with all other fault in a case and does not act as a complete bar to

recovery in a products liability action." Id. at 1029. The Barnard court determined that the 1995

Amendments to the IPLA required all fault in cases to be comparatively assessed. Id. "By

specifically directing that the jury compare all fault in a case, we believe that the legislature

intended the defense of misuse to be included in the comparative fault scheme." Id. at 1030; see

also Alberts & Bria, supra note 26, at 1286-87.
375. 797 N.E.2d 1 146, 1 148 n.3 (Ind. 2003).

376. Ind. Code §34-20-7-1 (2005).

377. Id. § 34-20-8- 1(a).

378. Id. § 34-20-8- 1(b).

379. Chapman v. Maytag Corp., 279 F.3d 682, 689 (7th Cir. 2003).



1 196 INDIANA LAW REVIEW [Vol. 39: 1 145

necessarily mean that it is exempted. After all, it would seem equally likely that
the legislature's silence on the matter indicates an implicit recognition that the
"complete" nature of the pre- 1995 product liability defenses was to remain that
way notwithstanding the introduction of some comparative fault principles vis-a-
vis defendants and non-parties.

^^°

C Modification and Alteration

Indiana Code section 34-20-6-5 provides that

[i]t is a defense to an action under [the IPLA] that a cause of the physical

harm is a modification or alteration of the product made by any person
after the product's delivery to the initial user or consumer if the

modification or alteration is the proximate cause of physical harm where
the modification or alteration is not reasonably expectable to the

seller.^^^

The alteration defense is incorporated into the basic premise for product
liability in Indiana as set forth in Indiana Code section 34-20-2-1. Indeed, the
Indiana Code provides that

a person who sells, leases, or otherwise puts into the stream ofcommerce
any product in a defective condition unreasonably dangerous to any user

or consumer or to the user' s or consumer' s property is subject to liability

for physical harm caused by that product to the user or consumer or to
the user's or consumer's property if . . . the product is expected to and

does reach the user or consumer without substantial alteration in the

condition in which the product is sold by the person sought to be held

liable under this article.^^^

Accordingly, if a claimant cannot establish or if a defendant conclusively proves

that the product underwent some "substantial alteration" between the time of
manufacture or sale and the time the injury occurred, the IPLA simply does not
provide any relief as a threshold matter.

^^^

One decision during the survey period addresses the "alteration" defense.

380. Before the 1995 amendments to the IPLA, misuse was a "complete" defense. E.g.,

Estrada v. Schmutz Mfg. Co., 734 F.2d 1218 (7th Cir. 1984).

381. IND. Code § 34-20-6-5 (2005). Before the 1995 Amendments to the IPLA, product

modification or alteration operated as a complete defense. See Foley v. Case Corp., 884 F. Supp.

313, 315(S.D. Ind. 1994).

382. Ind. Code § 34-20-2-1.

383. Indiana Pattern Jury Instruction 7.05(C) does not correctly reflect Indiana law in this

regard. There is undeniable overlap within the statutory framework in this context. Because the

alteration defense is incorporated directly into the basic premise for product liability in Indiana as

set forth in Indiana Code section 34-20-2-1, there should be little controversy that the

alteration/modification defense is "complete" in nature by the very statute that imposes product

liability in Indiana as a threshold matter.



2006] PRODUCT LIABILITY 1 197

Recall in Henderson, a truck mechanic was injured while either working on or
preparing to work on a Freightliner truck' s air suspension assembly.^^'^ The truck
at issue had an auxiliary axle added to help handle additional weight?^^ The axle
was added sometime after its original manufacture but before Henderson's
injury.^^^ Freightliner did not manufacture, design, or install the auxiliary axle.^^^

Freightliner argued that the addition ofthe auxiliary axle substantially altered

the truck because "it increased the likelihood that a malfunction or failure of the

suspension system or its component parts would occur."^^^ Freightliner
contended that such "a substantial alteration was an unforeseeable intervening
and proximate cause of Henderson's injuries" that entitled it to summary
judgment.^^^ Judge Hamilton disagreed, concluding that Freightliner' s evidence

stopped "well short of claiming that the auxiliary axle actually contributed at all

to the Henderson accident."^^^

Freightliner relied on three cases, Wolfe v. StorkRMS-Protecon, Inc.,^^^ Leon

V. Caterpillar Industrial, Inc.,^^^ and Bishop v. Firestone Tire & Rubber Co.,^^^
in support of the argument that plaintiffs could not meet their burden of proof

with respect to proximate cause.^^"^ Judge Hamilton distinguished all three cases,

pointing out that the alteration at issue in each case "was a direct and undisputed

cause of the injury, and there was no evidence independent of the alteration that
the product was defective when it left the control of the defendant
manufacturer."^^^ According to Judge Hamilton, that was simply not the case in
Henderson, and moreover, plaintiffs came forward with evidence from which "a
jury could infer that the leaf spring and air spring with which the truck left

Freightliner' s control were the sole causes of the injury."^^^ Indeed, the court

wrote that Freightliner did not "come forward with evidence tending to show that
the auxiliary axle contributed to this injury in any way" and that its opinion
witness "testified only vaguely that the alteration 'increased the likelihood' that

some unspecified 'malfunction or failure of the suspension system or its
component parts would occur.

'"^^^

384. Henderson v. Freightliner, LLC, No. l:02-cv-1301-DHF-WTL, 2005 U.S. Dist. LEXIS

5832 (S.D. Ind. Mar. 24, 2005).

385. Mat*7.

386. Id.

387. Id.

388. /J. at*22-23.

389. Mat*23.

390. Id.

39L 683 N.E.2d 264 (Ind. Ct. App. 1997).

392. 69 F.3d 1326 (7th Cir. 1995).

393. 814 F.2d 437 (7th Cir. 1987).

394. Henderson, 2005 U.S. Dist. LEXIS 5832, at *24.

395. Mat*24-25.

396. M at*28-29.
397. Id. at *29. Plaintiffs also pointed to additional evidence that the auxiliary axle was in

place and was supporting part of the weight of the truck's load at the time of the accident, which



1 198 INDIANA LAW REVIEW [Vol. 39: 1 145

The result of the court's ruling in Henderson was that the statutory
"alteration" defense did not preclude recovery as a matter of law.^^^ Freightliner

was free to make its "substantial alteration argument to a jury."^^^

Conclusion

The 2005 survey period once again proved that this is an important and
thought-provoking time for product liability practitioners and judges in Indiana.

tended "to show that the auxiliary axle contributed nothing to the accident." Id.

398. Id.

399. Id.