Opinion
Cause No. IP99-0039-C-D/F
July 27, 2000
PRETRIAL ORDER No 2.
In ruling on summary judgment, the Court made the following assumption:
In addition, we assume for the purposes of this summary judgment motion that a manufacturer may defend on the basis of an adequate warning even if an injury results from a defect or dangerous condition which was unanticipated and against which the warning was not intended to protect but against which compliance with the warning would have protected. Therefore, if Maytag's warnings were adequate, it may assert those warnings as a defense even against manufacturing defects.
Entry and Order of June 9, 2000, p. 14 (doc. no. 73). We made the assumption at the time because neither party had raised or briefed the question directly as an issue in this case and the assumption allowed the summary judgment rulings to be made. The issue has now been raised — in the last pretrial conference and by the parties' proposed final instructions and other trial filings — and, on examination of the issue, the Court concludes that adequate warnings are not a defense to strict liability based on a manufacturing defect.
Maytag does not dispute that the stove at issue in this case had a manufacturing defect; namely, a wire became pinched between a metal housing cover and the metal back of the stove during the assembly process. Stipulations of Fact (doc. no. 79), ¶ 9. There is likewise no dispute that tests conducted after Mr. Chapman's death by the Muncie electrical inspector and licensed electricians under the aegis of the coroner's office identified the stove as the source of the fatal current. Id., ¶ 27.
Although not included as part of the parties' stipulations of fact, Maytag concedes that its stove was the source of the fatal current, Maytag's Trial Brief (doc. no. 75), p. 1 ("The heating duct was energized from electrical current originating in a Magic Chef gas range manufactured by Maytag Corporation. . . ."), p. 3 ("The pinched wire shows evidence of arcing and there is no doubt that the pinched wire in the range was the cause of electrical current flowing to the duct."), p. 5, and that the current originated in the pinched wire, Defendant Maytag Corporation's Memorandum of Law in Support of Motion for Summary Judgment ("Maytag Memo") (doc. no. 31), p. 3-4 ("Over time, the insulation of the wire wore through. At some point, a short circuit was created and current ran from the range . . . to the heating duct. . . ."). Maytag also does not dispute that the current flowing through the duct caused Mr. Chapman's death. Id., p. 5 ("Maytag's experts would agree with Mr. Petry that Mr. Chapman's death was a result of a low current flowing through the duct work in an amount sufficient to cause fibrillation of the heart.").
We encourage the parties to stipulate to these facts in an appropriate form to present to the jury. We see little or no need to spend time at trial proving the defect or that it was the source of the fatal current.
Because we found that there is a significant potential for short circuits not caused by manufacturing or design defects to energize Maytag's stoves, thereby becoming unreasonably dangerous to its expected users or consumers when used in reasonably expectable ways of handling, the Court ruled that Maytag had a duty to warn Mr. Chapman of the risk of shock from ungrounded installations and to instruct him to use a grounded receptacle. Entry and Order, p. 14. Maytag did supply warnings and instructions with the stove regarding the need to use a grounded receptacle, id., p. 14-15, but Mr. Chapman did not plug the stove into a grounded receptacle. E.g., Statement of Material Facts (doc. no. 32), ¶¶ 15, 17; Plaintiff's Response to Defendant's Statement of Material Facts (doc. no. 49), ¶¶ 15, 17.
It is here that the parties' descriptions of the posture of, and burdens in, this case diverge. The plaintiff contends that she is asserting only a manufacturing defect case, not a failure to warn case; therefore, evidence regarding the adequacy of Maytag's warnings goes only to the assessment of comparative fault under Indiana Code Ann. § 34-20-8-1 (Burns 1999 Supp.). See, e.g., Plaintiff's Objections to Maytag's Tender of Proposed Final Instructions, p. 2-4. Maytag's position is more difficult to discern and at times seems inconsistent, but it apparently contends that, if the jury finds that its warnings and instructions accompanying the stove adequately warned and instructed Mr. Chapman to use a grounded plug, then, as a matter of law, the stove was not in a defective condition unreasonably dangerous to Mr. Chapman and therefore Maytag cannot be held liable. In other words, its adequate warnings rendered the stove non-defective or not unreasonably dangerous and Mr. Chapman's failure to heed those warnings constituted misuse under I.C. § 34-20-6-4 which is a complete defense. If this is Maytag's position, we reject it for the following reasons.
On the one hand, Maytag argued that "[m]isuse of a product, not reasonably expected by the manufacturer, is a complete defense in a products liability case," Maytag Memo, p. 8 (citing I.C. § 34-20-6-4), and that Mr. Chapman's "fail[ure] to follow the warnings and instructions provided by Maytag * * * constitutes misuse of the range as a matter of law", id., p. 8-9. In addition, Maytag proposed an instruction containing the following statements:
When the manufacturer of a product warns the user of a specific potential danger, the manufacturer is not liable for the physical harm caused by the product to those persons whom the manufacturer should expect to use the product.
. . . a product bearing such a warning and instruction, which is safe for use if they are followed, is not in a defective condition, nor is the product unreasonably dangerous.
If you find that Maytag either (1) gave reasonable warnings of danger about the product or (2) that Maytag gave reasonably complete instructions on proper use of the gas range, you must find in favor of Maytag, and you need not deliberate further.
Maytag's Tender of Proposed Final Instructions ("Maytag's Finals") (doc. no. 76), p. [10].
On the other hand, Maytag also proposed an instruction stating, "If you find by a preponderance of the evidence that Kyle and Vanessa Chapman's conduct in this case constitutes misuse of the range, such conduct would constitute fault to be assessed against the Chapmans. You must then determine the extent to which the misuse of the product will affect Vanessa's recovery by following the comparative fault instruction" Maytag's Finals, p. [12].
First, we conclude that the defense of misuse provided in I.C. § 34-20-6-4 is not a complete defense but that it shall be compared with all other fault in the case. As part of a substantial amendment of the products liability statute in 1995, the General Assembly required that all fault in a products case be comparatively assessed:
(a) In a product liability action, the fault of the person suffering the physical harm, as well as the fault of all others who caused or contributed to cause the harm, shall be compared by the trier of fact in accordance with IC 34-51-2-7, IC 34-51-2-8, or IC 34-51-2-9 [sections of the comparative fault act].
(b) In 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.
I.C. § 34-20-8-1 (1999 Supp.). For purposes of the product liability statute, the legislature defined "fault" to mean
. . . an act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term includes the following:
(1) Unreasonable failure to avoid an injury or to mitigate damages.
(2) A finding under IC 34-20-2 . . . that a person is subject to liability for physical harm caused by a product, notwithstanding the lack of negligence or willful, wanton, or reckless conduct by the manufacturer or seller.
I.C. § 34-6-2-45(a). It is a defense to a product liability action "that a cause of the 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." I.C. § 34-20-6-4. Misuse is use for a purpose or in a manner not reasonably foreseeable by the manufacturer. Indianapolis Athletic Club, Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1073 (Ind.Ct.App. 1999), trans. denied.
By specifically directing that the jury compare all fault in a case, we conclude that the General Assembly intended that the defense, or "fault", of misuse be compared as well. It might be argued that, because the definition of "misuse" considers only the objective reasonableness of the foreseeability of the misuse and not the character of the misuser's conduct, misuse is not "fault". Cf. Timothy C. Caress, Recent Developments in the Indiana Law of Products Liability, 29 Ind. L. Rev. 979, 1000 (1996) (arguing that incurred risk remains a complete defense because the legislature removed the requirement that plaintiffs' incurrence be unreasonable when it added comparative fault to the statute). However, the legislature did not indicate that it intended to exempt misuse from the scope of the comparative fault requirement and a plaintiff's (mis)use does fall within the statute's definition of fault as an "act . . . that is . . . intentional toward the . . . property of others", regardless of the reasonableness of the act. In addition, the cases on which Maytag relies for its contention that misuse is a complete defense, Indianapolis Athletic Club, Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1072 (Ind.App. 1999), trans. denied; Marshall v. Clark Equipment Co., 680 N.E.2d 1102, 1108 (Ind.Ct.App. 1997), trans. denied, each involve incidents that occurred before comparative fault was added to the product liability statute and thus were decided under contributory negligence principles.
The statute provides that a product is defective if, in part, it is in a condition that will be unreasonably dangerous to expected users or consumers "when used in reasonably expectable ways of handling or consumption", I.C. § 34-20-4-1, and it reiterates that a manufacturer is not liable "[i]f an injury results from handling, preparation for use, or consumption that is not reasonably expectable", I.C. § 34-20-4-3. It is a plaintiff's burden to prove defectiveness, or reasonably expectable handling, see FMC Corp. v. Brown, 551 N.E.2d 444, 448 (Ind. 1990), but a defendant's burden to prove misuse, or reasonably unforeseeable use, I.C. § 34-20-6-2.
Second, we conclude that Maytag's warnings did not prevent its stove from being defective and Mr. Chapman's failure to comply with those warnings (if adequate) did not constitute misuse. There are three ways a product can be in a defective condition: it can have a manufacturing defect or a design defect, or the manufacturer can have failed to warn of the product's inherent dangers. Although we have found no Indiana cases on point, we conclude that adequate warnings will not render a product with a manufacturing defect non-defective, even if a duty to warn exists because of inherent dangers in a product and compliance with the warnings would have prevented the alleged injury. Our review of Indiana law persuades us that warnings are required and will save a product from being deemed "defective" only when a product is without manufacturing or design defects but nonetheless presents residual or inherent hazards that render it unreasonably dangerous. See, e.g., Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1167-68 (Ind.Ct.App. 1988), trans. denied (lack of, or an inadequate, warnings is not a defect, but is merely descriptive of the product's unreasonably dangerous condition). We believe that an Indiana court would follow a policy that emphasizes deterring and compensating injuries resulting from manufacturing defects (the last vestige of strict product liability in the state) over providing a warnings defense to manufacturers. We found persuasive supporting decisions from other jurisdictions. See Glover v. BIC Corp., 6 F.3d 1318, 1322-24 (9th Cir. 1993); Knight v. Just Born, Inc., No. CV-99-606-ST, Findings and Recommendations, 2000 WL 924624, *12 (D.Oregon, March 28, 2000); Harris v. Atlanta Stove Works, Inc., 428 So.2d 1040, 1043-44 (La.Ct.App. 1983), writ denied; Belue v. Uniroyal, Inc., 319 N.W.2d 369, 373 (Mich.Ct.App. 1982); Thorp v. Dayton Fire and Rubber Co., 215 N.W.2d 600, 605-06 (Mich.Ct.App. 1974); Caskey v. Olympic Radio and Television, 343 F. Supp. 969, 977 (D.S.C. 1972).
Maytag concedes that the Chapman's stove had a pinched wire that was the source of the current that killed Mr. Chapman. Maytag concedes that the pinched wire was a manufacturing defect in the product. Therefore, although Maytag had a duty to provide grounding warnings because of the risk of defect-free short-circuits and compliance with adequate grounding warnings might have prevented Mr. Chapman's death, adequate warnings will not render Maytag's stove non-defective or not unreasonably dangerous under I.C. §§ 34-20-2-1, 34-20-4-1, or 34-20-4-3.
We also conclude that Mr. Chapman's failure to heed Maytag's warnings (if adequate) does not constitute misuse under I.C. § 34-2 — 6-4. Maytag relies on decisions holding that a presumption exists that adequate warnings will be read, Dias v. Daisy-Heddon, 180 Ind. App. 657, 662, 390 N.E.2d 222, 225 (Ind.Ct.App. 1979), and that a failure to heed adequate warnings constitutes misuse, Hoffman v. E. W. Bliss Co., 448 N.E.2d 277, 283 (Ind. 1983) (approving holding in Perfection Paint Color Co. v. Konduris, 147 Ind. App. 106, 118-19, 258 N.E.2d 681, 689-90 (Ind.App. 1970)). However, these cases and other similar Indiana decisions that we reviewed do not involve injuries resulting from manufacturing defects, but from a decedent's failure to heed warnings that were required to render a defect-free product not unreasonably dangerous. In addition, Perfection Paints, the seminal case for unheeded warning misuse, declares that "[a] consumer who . . . uses a product in contravention of a legally sufficient warning, misuses the product and, in the context of the defenses of incurred or assumed risk, is subject to the defense of misuse." Perfection Paints, 147 Ind. App. at 119, 258 N.E.2d at 689 (emphasis added). The use of "legally sufficient" rather than "adequate" to describe the unheeded warning that characterizes misuse, indicates, though subtly, that what is intended is the legally required warning that renders an inherently or residually hazardous product not unreasonably dangerous. In addition, Hoffman, Perfection Paints, and Greeno all involve injuries not caused by manufacturing defects. We believe that an Indiana court would interpret the statute and make the policy decision to not allow Maytag to assert the defense of misuse on the basis of Mr. Chapman's failure to comply with its warnings.
Perfection Paints cites in support the Restatement (Second) of Torts, § 402A, cmt. n and Greeno v. Clark Equipment Co., 237 F. Supp. 427 (N.D.Ind. 1965), neither of which mentions that failure to heed warnings constitutes misuse.
Maytag has conceded that the pinched wire was a manufacturing defect in the stove and that this defect was the source of the fatal current. If the plaintiff establishes that the stove with this pinched wire was in a condition not contemplated by reasonable persons among those considered expected users or consumers of the stove and that was unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption, then Maytag will be strictly liable for the stove's defective condition and the plaintiff need not prove Maytag's negligence. Maytag may not assert, prove, or argue that its warnings or Mr. Chapman's failure to comply therewith rendered the stove non-defective or constituted misuse. It may assert, prove, or argue, however, that his failure to heed its warnings constitutes fault that the jury must compare and apportion along with Maytag's own.
The proposed instructions shall be conformed to this Pretrial Order by separate order.
SO ORDERED this 27th day of July, 2000.