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McMahon v. Bunn-O-Matic Corp

United States District Court for the Northern District of Indiana, South Bend Division
Nov 10, 1997
1997 WL 873829 (N.D. Ind. 1997)

Opinion

CAUSE NO. 3:96-cv-538RP

November 10, 1997, Decided . November 10, 1997, Entered

For ANGELINA MCMAHON, JACK MCMAHON, plaintiffs: Edmond W Foley, Foley and Small, South Bend, IN.

For BUNN-O-MATIC CORPORATION, defendant: David Cerven, Burke Murphy Costanza and Cuppy, East Chicago, IN.

For JAMES RIVER PAPER COMPANY, INC, WINCUP HOLDINGS LP, defendants: David P Jones, Newby Lewis Kaminski and Jones, LaPorte, IN.


For BUNN-O-MATIC CORPORATION, defendant: David Cerven, Burke Murphy Costanza and Cuppy, East Chicago, IN.

For JAMES RIVER PAPER COMPANY, INC, WINCUP HOLDINGS LP, defendants: David P Jones, Newby Lewis Kaminski and Jones, LaPorte, IN.

Judges:Robin D. Pierce, U.S. Magistrate Judge.

MEMORANDUM AND ORDER

Plaintiff Angelina McMahon spilled a cup of hot coffee in her lap while she and her husband Jack were driving in their car. The McMahons brought this action under theories of strict products liability and negligence against Bunn-O-Matic Corporation (hereafter "Bunn"), the manufacturer of the coffee maker which brewed the coffee in question. They claim that the coffee maker was defective and unreasonably dangerous because it made coffee at an extremely high temperature and because Bunn failed to warn consumers of this fact. For the reasons which follow, Bunn's motion will be granted.

Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for the motion, and identifying "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

When the nonmoving party would have the burden of proof at trial, the moving party is not required to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S. Ct. at 2553; John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994); Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th Cir. 1990). Rather, the moving party may discharge its "initial responsibility" by simply "'showing' -- that is pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S. Ct. at 2554. Alternatively, the moving party may, if it chooses, "support its motion for summary judgment with affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1439 (11th Cir. 1991); see Celotex, 477 U.S. at 331, 106 S. Ct. at 2557 (Brennan, J., dissenting).

Once a properly supported motion for summary judgment is made, the party that bears the burden of proof on a particular issue at trial cannot resist the motion by merely resting on its pleadings. Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). As Fed.R.Civ.P. 56(e) makes clear, "The adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994); Cleveland v. Porca Co., 38 F.3d 289, 295 (7th Cir. 1994); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994); Roger v. Yellow Freight Systems, 21 F.3d 146, 148-49 (7th Cir. 1994).

"The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23, 106 S. Ct. at 2552; Jean v. Dugan, 20 F.3d 255, 260 (7th Cir. 1994). The nonmoving party must do more than demonstrate "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp, 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "If the evidence is merely colorable, . . . or is not significantly probative, . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511 (citations omitted); Griffin v. Air Line Pilots Ass'n, Intern., 32 F.3d 1079, 1084 (7th Cir. 1994); Bostic v. City of Chicago, 981 F.2d 965, 969 (7th Cir. 1992), cert. denied, 509 U.S. 923, 113 S. Ct. 3038, 125 L. Ed. 2d 725 (1993). Conclusory statements or indications of opinion or belief offered without any factual support are also insufficient to create a genuine issue of fact. Rand v. CF Industries, Inc., 42 F.3d 1139, 1146 (7th Cir. 1994) ("Inferences and opinions must be grounded on more than flights of fancy, speculations, hunches, intuitions, or rumors. . . ."); Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir. 1992); Covalt v. Carey Canada, Inc., 950 F.2d 481 (7th Cir. 1991); Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659-60 (7th Cir. 1991); Davis v. City of Chicago, 841 F.2d 186, 189 (7th Cir. 1988).

In determining whether there is a genuine issue of material fact, the court must construe all facts in the light most favorable to the party opposing the motion and draw all inferences in favor of that party. NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.3d 231, 234 (7th Cir. 1995), cert. denied, 515 U.S. 1104, 115 S. Ct. 2249, 132 L. Ed. 2d 257 (1995); Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). It must be noted, however, that not every factual dispute creates a barrier to summary judgment. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; Tolle, 23 F.3d at 178; Derrico v. Bungee Int'l Mfg. Co., 989 F.2d 247, 250 (7th Cir. 1993); First Indiana Bank v. Baker, 957 F.2d 506, 508 (7th Cir. 1992). Moreover, "[a] genuine issue for trial only exists where there is sufficient evidence favoring the nonmovant for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511; Unterreiner v. Volkswagen of America, 8 F.3d 1206, 1210 (7th Cir. 1993). The inquiry involved in ruling on the motion for summary judgment implicates the substantive evidentiary standard of proof, for example, preponderance of the evidence, that would apply at trial. Anderson, 477 U.S. at 252, 106 S. Ct. at 2512; Jean, 20 F.3d at 263.

"Supporting materials designed to establish issues of fact in a summary judgment proceeding 'must be established through one of the vehicles designed to ensure reliability and veracity -- depositions, answers to interrogatories, admissions and affidavits.'" Friedel v. City of Madison, 832 F.2d 965, 970 (7th Cir. 1987) (quoting Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 139 (7th Cir. 1985)). Supporting materials, in other words, must be "of evidentiary quality -- either admissible documents or attested testimony, such as that found in depositions or in affidavits -- demonstrating the existence of a genuine issue of material fact." Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994). While "the evidence need not be in admissible form, . . . it must be admissible in content, in the sense that a change in form but not in content, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial." Id. at 1267-68 (Emphasis in original); Celotex, 477 U.S. at 324, 106 S. Ct. 2553.

Affidavits presented in opposition to a motion for summary judgment must be based upon personal knowledge; a statement merely indicating that a purported affidavit is based upon "information and belief" is insufficient. Price v. Rochford, 947 F.2d 829, 832-33 (7th Cir. 1991); Visser, 924 F.2d at 659-60; Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir. 1989). Rule 56(e) requires that any such affidavits "set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein." Inadmissible hearsay contained in affidavits or other discovery materials such as interrogatories or depositions may not be considered. Horta v. Sullivan, 4 F.3d 2, 8-9 (1st Cir. 1993) (newspaper article which contained "hearsay within hearsay" could not be considered); Hong v. Children's Memorial Hosp., 993 F.2d 1257, 1264 (7th Cir. 1993) ("We do not consider hearsay statements that are otherwise inadmissible at trial, and this limitation applies to deposition testimony based on inadmissible hearsay."), cert. denied, 511 U.S. 1005, 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994); Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (affidavit which contained nothing more than rumors, conclusory allegations and subjective beliefs could not be considered); Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990) (refusing to consider interrogatory answer which contained hearsay); Pfeil v. Rogers, 757 F.2d 850, 862 (7th Cir. 1985), cert. denied, 475 U.S. 1107, 89 L. Ed. 2d 912, 106 S. Ct. 1513 (1986); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir. 1967) (deposition containing inadmissible hearsay properly disregarded); Amcast Indus. Corp. v. Detrex Corp., 779 F. Supp. 1519, 1526 (N.D. Ind. 1991), aff'd in part, rev'd in part, remanded, 2 F.3d 746 (7th Cir. 1993), and cert. denied, 114 S. Ct. 691 (1994).

Material Facts

On August 16, 1994, plaintiffs, John and Angelina McMahon, were en route to Pittsburgh, Pennsylvania, when they stopped at the Mobile mini mart in Granger, Indiana, and Mr. McMahon went in to buy a cup of coffee for the trip. (J.McMahon Dep. at 10, 18.) Mr. McMahon testified in his deposition that he took a medium-sized Styrofoam cup and filled it with hot coffee within three-quarters of an inch or one inch from the top. (Id. at 10, 18; A.McMahon Dep. at 62.) He noted that he did not fill it to the top, because he did not want to burn himself. (J. McMahon Dep. at 19.) He knew that the coffee could "seep down" or drip off the cup if it were filled to the brim: "If you take the lid off, I don't want it running on my hands because it's too hot. It's scalding." (Id.) He also mentioned that, generally speaking, he never filled coffee cups up to the tiptop at self-service coffee stands. (Id.)

Mr. McMahon noticed nothing unusual about the coffee: "It was hot . . . you don't go in to buy cold coffee." (Id. at 22, 24.) He noted no warnings in the area where the coffee was located in the mini mart, and conceded that the cup he took looked normal and had no apparent cracks. (Id. at 62, 38.) He commented that he poured a cup, put a lid on it, took it, and got in line at the cash register. (Id. at 38.) He testified that "it would have got too hot for me holding in my hand," so he set it down on the counter while the cashier took care of the two people in line ahead of him. (Id. at 22-23.) Mr. McMahon believed that the heat generated from the coffee in this instance seemed comparable to that from cups he had purchased at similar locations: the coffee was always "hot." (Id. at 63.) On this particular occasion, he noticed nothing abnormal about the heat from the beverage and gave it no thought. (Id.)

Mr. McMahon returned to his car, and placed the coffee in the cup holder closest to his wife. (Angelina McMahon Dep. at 22.) They then drove to the toll road. Once they were clear of the gate, Mr. McMahon asked his wife to open the coffee for him. (J. McMahon Dep. at 26.)

The McMahons testified about the particular routine they go through when Mr. McMahon asked for his coffee while the two were traveling. (A. McMahon Dep. at 21; J.McMahon Dep. at 26.) Mrs. McMahon stated that she typically poured coffee while in a moving vehicle. (Id. at 62.) She explained the procedure: she would take the coffee from the car cupholder that is closest to her, would open up the flap on the lid of the cup, would take the empty cup from the cupholder nearest her husband, and would proceed to pour part of the coffee into a six-ounce Styrofoam cup brought from home. (Id. at 21, 54.) She testified that she would fill the smaller cup half full. (Id. at 21-22.) Her husband remarked that this avoided any danger of spilling while he was driving: "Well, hell, I'm not going to drive with a cup that's filled up with scalding coffee. . . ." (J.McMahon Dep. at 26.) In her deposition, Mrs. McMahon acknowledged that she knew the coffee inside the cup was "very hot;" that if the coffee spilled she would burn herself; and that she would not have wanted the coffee to spill.

Mrs. McMahon commented that everything happened so fast when the spill occurred. (Id. at 23.) She explained that she was in the process of opening the flap on the coffee cup lid, when somehow the cup seemed to collapse, the coffee was all over her, and she was screaming. (Id.) Mr. McMahon commented that he immediately stopped the car, turned around, and went to the emergency room at St. Joseph Hospital. (J.McMahon Dep. at 30-31.) Mrs. McMahon stated that she suffered first, second, and third degree burns, and was incapacitated for approximately four months. (A.McMahon Dep. at 28-29; Appendix # 10.)

Mrs. McMahon testified that she had no idea that coffee could be so dangerous, and no idea that it could cause the kind of burns she suffered. (A. McMahon Aff. P 2.) Mr. McMahon noted in his affidavit that he had used the term "scalding" when he referred to the coffee in his deposition. (J. McMahon Aff. P 1.) He acknowledged that he knew water boiled at 212 degrees Fahrenheit. (J.McMahon Dep. at 56.) And he also pointed out that he had no idea coffee spills could cause the kind of damage and injuries his wife suffered in this incident. (J.McMahon Aff. P 1.)

Mr. McMahon's brother-in-law had been burned by a cup of coffee several years ago, but the burn was minor compared with what his wife sustained. (Id. No. 2.) His brother-in-law merely had a small red mark and a blister, which resolved itself in approximately two days. (Id.)

Mr. McMahon testified that neither the coffee maker nor the decanter in which the beverage was kept had warnings of any danger. (Id. No. 5.) He commented that he was totally unaware of the dangers associated with the coffee when he purchased it. (J.McMahon Interrog. No. 4.)

Sarang Honop of the Aetna Insurance Company interviewed the McMahons and inquired if Mr. McMahon ever asked his wife to take precautions like putting a towel on her lap, so as not to get burned while pouring the hot beverage in a moving vehicle. (Appendix # 12 at 24.) He replied that he had never done so, that they had gone through the coffee pouring procedure many times, and that nothing had ever happened. (Id.)

John D. Edie, the manager of customer service for Bunn, stated in his affidavit that his duties and responsibilities have included familiarity with the design, manufacture, assembly, and operation of Bunn-O-Matic coffee makers since 1974. (Edie Aff. P 4.) He remarked that he went to the Mobil mini mart in Granger, Indiana, to inspect and test the coffee makers, in response to a complaint received by the company about the McMahon incident. (Id. P 5.)

He gave the following report on the two Bunn-O-Matic coffee makers at the Mobil mini mart. One is a ST-15, the other is a System III. (Id. P 6.) The ST-15 had a brewing temperature of 188 degrees, and an end cycle temperature of 179 degrees, which remained the temperature of the brewed coffee in the decanter. (Id. P 7.) The System III machine had a brewing temperature of 193 degrees and the same end-of-cycle temperature. (Id.) He explained that he also tested the faucet temperature for hot water on the System III machine and found it to be 193 degrees. (Id.) In his opinion, none of the temperatures exceeded the range of temperatures designed for the respective machines. (Id.) He also found that the mini mart was using original Bunn-O-Matic manufactured equipment and that both machines were operating properly and not exceeding the range of designed temperatures. (Id. P8.)

Kenneth R. Diller, a professor of biomedical and mechanical engineering at the University of Texas, believed that the temperatures at which Bunn brewed and maintained coffee were excessive, that the coffee was not fit for human consumption, and that it posed an unreasonable hazard of severe injury to the user or consumer. (Diller Aff. P 9.) In his opinion, the coffee maker involved in the accident was defective and unreasonably dangerous, (1) because it brewed and maintained coffee at an excessive temperature, (2) because inadequate warnings existed as to the dangers involved and as to appropriate instructions for consumer use, and (3) because it was defectively designed, manufactured, and distributed. (Id. P 13.)

Dr. Miles J. Jones, a forensic pathologist employed by Consultative and Diagnostic Pathology, was of the opinion that people brewing this coffee should be advised, warned, and trained about the dangers involved with the use of such high temperatures. (Jones Aff. P 9.) He felt that the brewer of the coffee should then pass on this information to the consumer so as to minimize the risk of injuries for everyone. (Id.) He noted that he would not expect coffee to be served at temperatures exceeding 170 degrees Fahrenheit. (Id. P 10.)

Discussion

I. Strict Liability in Tort

The main thrust of the plaintiffs' complaint against Bunn involves strict liability in tort. The Indiana Supreme Court refers to the applicable law as the "Strict Product Liability Act" because it only applies to product actions based on strict liability in tort, and not to actions based on negligence. Whitted v. General Motors Corp., 58 F.3d 1200 (7th Cir. 1995); Reed v. Central Soya Co., Inc., 621 N.E.2d 1069, 1071 n.1 (Ind.1993). "Indiana law imposes strict liability in tort on those who place into the stream of commerce products which are in defective condition unreasonably dangerous to a consumer." Whitted, 58 F.3d at 1204; Reed, 621 N.E.2d at 1072; Ind. Code 33-1-1.5-3(a).

Applicable sections of Indiana's Strict Liability in Tort Act provide:

(a) . . . 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 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 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, and if: (1) The seller is engaged in the business of selling such a product; and (2) The product is expected to and does reach the user or consumer without substantial alteration in the condition in which it is sold by the person sought to be held liable under this chapter.

Under Indiana's law, to establish a prima facie case of product liability, the plaintiff must prove that "(1) the defective product was unreasonably dangerous; (2) the defect existed at the time the product left the defendant's control; (3) the product was expected to, and did, reach the consumer without substantial alteration; and (4) the plaintiff's injuries proximately resulted from the defect in the product." Whitted, 58 F.3d at 1204; see Bruther v. General Elec. Co., 818 F. Supp. 1238, 1241 (S.D. Ind.1993); Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind. App. 1993).

In a strict liability action under the Products Liability Act, the plaintiff must prove that product is in a defective condition that renders it unreasonably dangerous; "the requirement that the product be in a defective condition focuses on product itself, while the requirement that the product be unreasonably dangerous focuses on reasonable expectations of the consumer." Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 814 (Ind. App. 1995); see Cox v. American Aggregates Corp., 580 N.E.2d 679, 685 (Ind. App. 1991); Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1167 (Ind. App. 1988). A product must be both "unreasonably dangerous" and "defective" in order for liability to attach. Cox, 580 N.E.2d at 684; see Anderson, 67 F.3d 619, 625; Ind. Code 33-1-1.5-3(a). Thus, initially, the McMahons must prove both the "unreasonably dangerous" and "defective" conditions of the Bunn-O-Matic coffee pots and the hot coffee in order to proceed through the prima facie elements of strict product liability.

A. Unreasonably Dangerous

A product is "unreasonably dangerous" if it "exposes the user or consumer to a risk of physical harm to an extent beyond that contemplated by the ordinary consumer who purchases it with the ordinary knowledge about the product's characteristics common to the community of consumers." Ind. Code 33-1-1.5-2(7). The opposite side of the coin for purposes of strict liability indicates that a product is "not 'unreasonably dangerous' if it injures in a way which, by objective measure, is known to the community of persons consuming the product." Anderson v. P.A. Radocy & Sons, Inc., 865 F. Supp. 522, 530 (N.D.Ind. 1994); Rogers v. R..J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1053 (Ind. App. 1990). In Rogers, the court interpreted the Products Liability Act as providing the user with the "'accident insurance' rationale of strict liability; the injury resulting from the realization of risk the 'ordinary' consumer calculated in his or her decision to use the product is not accidental." Rogers, 557 N.E.2d at 1053. If the ordinary consumer realizes the risk involved in using the product, then strict liability does not attach.

Several recent cases from this court have addressed the issue of "unreasonably dangerousness." In Anderson, 865 F. Supp. at 522, Judge Lee granted summary judgment in favor of the defendants on a claim of strict liability when a journeyman sign electrician standing in a crane truck bucket was electrocuted while repairing an electrical sign. Id. The court found that crane bucket and its boom arm were not "unreasonably dangerous," since "it injures in a way which, by objective measure, is known to the community of persons consuming the product." Id. at 530, (citing Rogers, 557 N.E.2d at 1053.) The court reasoned that people with a background in electricity know that a metal basket having a metal crane arm and no ground fault interrupter provides no protection from electrical current. Id. Mr. Anderson, himself, had received a shock while taking a sign apart shortly before his electrocution. Id. Ordinary users understand the dangers involved. The Seventh Circuit upheld the decision. Anderson, 67 F.3d at 625.

In Moss v. Crosman Corp., 945 F. Supp. 1167 (N. D. Ind. 1996), Judge Miller found summary judgment appropriate on strict product liability claims against K-Mart and the manufacturer of an air gun, after an 11 year old boy shot and killed his 7 year old cousin with the gun. The court found that the air gun was not unreasonably dangerous, because under an objective standard, an ordinary consumer is aware of the danger and possible resulting serious injury that can occur when an air gun is fired. Id. at 1181.

In Welch v. Scripto-Tokai Corp., 651 N.E.2d at 810, the Indiana Court of Appeals held that a butane cigarette lighter was not unreasonably dangerous where a child received severe burns when his pajamas ignited while he was playing with the disposable lighter. The court reasoned that the ordinary consumer, an adult, "contemplates the risks posed by the lighter, including the dangers associated with children who play with lighters. Specifically the ordinary consumer expects a lighter to ignite a flame when operated." Welch, 651 N.E.2d at 814. The court upheld the Superior Court's finding that summary judgment was appropriate on the strict liability and negligence counts.

In Smith v. AMLI Realty Co., 614 N.E.2d 618, 622 (Ind. App. 1993), the court remarked that a weight machine which crushed a small child's hand, although potentially dangerous when used by children, "was not 'unreasonably dangerous' under the Act because it functioned properly as exercise equipment." It also noted that a loaded gun is certainly dangerous in the hands of a child not understanding the full magnitude of its destructive capabilities, but "it may not be 'unreasonably dangerous' for product liability purposes as long as it functions properly." Id.

In the McMahon's case, whether the Bunn-O-Matic coffee makers are "defective" or "unreasonably dangerous" is "an objective inquiry, focusing on the 'product and its manufacturer or seller, as assessed by an objective standard, regarding expected use.'" Moss, 945 F. Supp. at 1181; see Koske v. Townsend Eng'g Co., 551 N.E.2d 437, 440 (Ind. 1990). The plaintiffs' assertion that the McMahons' personal perceptions about burns should come into play is false. The standard is objective and only involves the perceptions of ordinary users.

John Edie, the manager of customer service for Bunn, has had experience with the design, manufacture, assembly, and operation of Bunn-O-Matic products for the past 24 years. Following the incident, he went to the Mobile mini mart in Granger, Indiana, to examine and test Bunn's coffee makers. The ST-15 model was brewing coffee at 188 degrees, and maintaining the brewed coffee in a decanter at the temperature of 179 degrees. The System III machine brewed coffee at 193 degrees and had the same end-of-cycle temperature. The faucet temperature for hot water on the System III machine was 193 degrees. He determined that "both machines were operating properly and not exceeding the range of designed temperatures."

The McMahons retained two experts whose testimony, they claim, creates a genuine issue as to the unreasonable dangerousness of these products for the ordinary consumer. Dr. Kenneth Diller, a professor of biomedical and mechanical engineering at the University of Texas, believes that brewing coffee at 188 degrees Fahrenheit and keeping it in a warmer at 179 degrees Fahrenheit is "excessive," "not fit for human consumption," and "poses an unreasonable hazard of severe injury to the user." He considered the Bunn-O-Matic coffee maker involved in the incident to be defective and unreasonably dangerous, (1) because it brewed and maintained coffee at an excessively hot temperature, (2) because inadequate warnings existed about the unsafe temperature of the coffee, and (3) because it failed to maintain the coffee in a serving decanter at a temperature safe for human consumption. He also maintained that the coffee maker was defective and unreasonably dangerous, because no warnings made consumers aware of the severity of burns they could possibly receive from coffee served at such excessive temperatures. Thus, the gist of his "unreasonably dangerous" claims concern excessive and unsafe temperatures and inadequate warnings.

The McMahon's second expert, Dr. Miles Jones, a forensic pathologist working for Consultative and Diagnostic Pathology in West Frankfort, Illinois, noted in his affidavit that no ordinary consumer "would anticipate that coffee would be served at a temperature which, if spilled, could cause the type of injuries suffered by Mrs. McMahon." His claim, therefore, relates to the unanticipated degree of burn received by the plaintiff.

The McMahons concede that they knew the coffee was hot. Mr. McMahon noted "it was hot . . . you don't go in to buy cold coffee." In general, when purchasing cups of coffee at similar locations he knew that "they are always hot." When standing in line at the cash register, "it would have got too hot for me holding in my hand. So I sat it down while she [cashier] took care of those two [customers] . . ." Mrs. McMahon knew the coffee was hot when she took the Styrofoam cup out of the cup holder in the car: "Yes, it was very hot, yes." These comments could have come from ordinary coffee drinkers.

The McMahons concede that they knew the coffee could burn them. Mr. McMahon only filled his cup up to within three-quarters of an inch from the top of the cup because "I don't want to burn myself." He knew that the coffee could spill over if he filled the cup to the brim: "If you take the lid off, I don't want it running on my hands because it's too hot. It's scalding." When questioned in his deposition about why the couple goes through the process of pouring part of the coffee into another cup, his response was "so I don't have any danger of spilling while I'm driving . . ." because "well, hell, I'm not going to drive with a cup that's filled up with scalding coffee. . . ." Mrs. McMahon testified in her deposition that she certainly would not want to spill the coffee, "oh no, no, no, no," because she knew she could get burned. Ordinary consumers of coffee have similar appreciations for hot beverages.

Mr. McMahon commented that heat generated from the coffee in this instance seemed comparable to that from cups he had purchased at similar locations. On this particular occasion, nothing seemed abnormal about the heat from the beverage: "I didn't give it any thought."

The McMahons reasonably expected, just like ordinary consumers of coffee expect, that the coffee they buy will be hot. Under Indiana's Products Liability Act, the open and obvious danger rule does not apply to strict liability claims. Anderson, 865 F. Supp. at 531; see Miller v. Todd, 551 N.E.2d 1139, 1143 (Ind. 1990); Koske, 551 N.E.2d at 442 (Ind. 1990). But, as the district court in Anderson pointed out, "the relative obviousness" of a defect can be "a factor which further supports the determination that the products were not defective and unreasonably dangerous." Anderson, 865 F. Supp. at 531, aff'd, 67 F.3d at 625; see Welch, 651 N.E.2d at 815; Miller, 551 N.E.2d at 1143. Mr. McMahon noted that he didn't want to spill "scalding" coffee, and that he knew water boiled at 212 degrees Fahrenheit. The general assumption can be made that many coffee drinkers use boiling water when making instant coffee or other types of coffee. "Hot" is an ordinary characteristic of coffee, commonly known to the community of consumers who drink the beverage.

"A product may be 'dangerous' in the colloquial sense, but not 'unreasonably' dangerous for strict liability purposes under the act." Welch, 651 N.E.2d at 813-14; see Meyers v. Furrow Building Materials, 659 N.E.2d 1147, 1148 (Ind. App. 1996); Smith, 614 N.E.2d at 622. Indiana courts have found the following items "dangerous," but not "unreasonably dangerous" as a matter of law under the Indiana Products Liability Act: an air gun, Moss, 945 F. Supp. at 1167; a butane cigarette lighter, Welch, 651 N.E.2d at 810; a metal basket and metal crane arm that lack a ground fault interrupter, Anderson, 67 F.3d at 624; an exercise weight machine, Smith, 614 N.E.2d at 622; and a properly functioning loaded gun, Id. The relative obviousness of the danger associated with these products factored into the determination of the unreasonably dangerous element.

The McMahons maintain, additionally, that reasonable consumers do not conceive of getting first, second, and third degree burns when they purchase and spill a cup of coffee. In Anderson, the plaintiff's estate made a similar contention, claiming that although Mr. Anderson could foresee receiving a shock, he never anticipated the severity of the injury; he misjudged the strength of the electrical shock and never contemplated electrocution. Anderson, 865 F. Supp. at 529. An appropriate response in both cases is: "Plaintiff's admissions are not determinative, but are relevant to what the average consumer knew and whether the products were unreasonably dangerous." Id. at 531; Rogers v. R..J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1053 (Ind. App. 1990).

The real question becomes one of degree. Anderson, 67 F.3d at 625. The McMahons knew coffee could burn, but claim that they never anticipated the severity of the injury. The matter of "degree" of injury "is not a matter of a completely different injury." Id. The focus centers on the relative condition of the product and on the reasonable expectations of the consumer. Id. at 626. Just as Mr. Anderson could have escaped electrocution, Mrs. McMahon could have escaped getting burned. The danger that spilled hot coffee can burn is "a recognized condition whose potential harm could have been avoided . . . with the correct precautions." Id. at 624. The degree of burns is irrelevant.

"If injury results from use 'that is not reasonably expectable, the seller is not liable' under the Act." Moss, 945 F. Supp. at 1176; Ind. Code 33-1-1.5-2.5(c). Manufacturers and sellers, consequently, are liable only for foreseeable handling and use of their products. For purposes of the products liability statute, "misuse" of a product occurs when it is used "for a purpose or in a manner not reasonably foreseeable." Jarrell, 528 N.E.2d at 1168; see Perfection Paint & Color Co. v. Konduris, 147 Ind. App. 106, 258 N.E.2d 681, 688 (Ind. App. 1970); Ind. Code 33-1-1.5-4(b)(2).

Sarang Honop of the Aetna Insurance Company questioned Mrs. McMahon, "Did you think of using a paper or napkin first or putting a paper napkin on your lap or anything like that before you grabbed the cup?" She replied, "No I did not." When Ms. Honop interviewed Mr. McMahon, she asked: "Do you usually ask her to take any precautions or measures not to get burned like put a towel on her lap maybe?" His response, "No, of course not . . . Why should I? We have done this I don't know how many times and nothing has ever happened. . . . I can't pre-think these things."

The McMahons could have avoided potential harm if they had taken reasonable precautions and not "misused" the hot coffee. Ordinary consumers who pour hot coffee in a moving vehicle take precautions to protect themselves against the potentiality of spilling the hot liquid. Manufacturers are not liable for unforeseeable and unsafe handling of their products. Moss, 945 F. Supp. at 1176; see Jarrell, 528 N.E.2d at 1168; Ind. Code 33-1-1.5-4(b)(2).

The McMahons unfortunately misjudged the seriousness of the burns that hot coffee can cause. The court in Anderson reasoned, that "merely because Anderson may have misjudged the strength of the voltage does not mean that he was using the product in a safe way." Anderson, 865 F. Supp. at 529. Anderson thought he would receive a "tingle" due to the condition of the crane, truck, and generator, rather than receive a fatal electric shock. Id. at 529. While Mrs. McMahon misjudged the degree of burns she could receive, she too was not using the coffee in a safe way. The court holds because Mrs. McMahon received her injuries in a manner contemplated by ordinary users of coffee, the coffee pots and hot coffee were not unreasonably dangerous.

B. Defective Condition

A product is defective if "(1) the condition is not reasonably contemplated by the expected user of the product, and (2) the condition will be unreasonably dangerous to the expected user when the product is handled or consumed in foreseeable ways;" Anderson, 67 F.3d at 624; IND. CODE 33-1-1.5-3(a); or (3) "if the seller fails to give reasonable warnings of danger about the product when the seller, by exercising due diligence, could have made the warnings available to the user." Whitted, 58 F.3d at 1205; Moss, 945 F. Supp. at 1175; Ind. Code 33-1-1.5-2.5(b).

Since the McMahons fail to prove that the products were "unreasonably dangerous," the court need not address the element of "defective condition" because both elements must exist for strict liability to attach. Cox, 580 N.E.2d at 684; see Anderson, 67 F.3d at 625.

The plaintiffs also claim that "defectiveness" exists because "the seller fails to give reasonable warnings of danger about the product when the seller, by exercising due diligence, could have made the warnings available to the user." Whitted, 58 F.3d at 1205; see Moss, 945 F. Supp. at 1175; Ind. Code 33-1-1.5-2.5(b). "Liability attaches without proof of some additional 'defective condition.'" Jarrell, 528 N.E.2d at 1166.

C. Warnings

The plaintiffs allege that the Bunn-O-Matic coffee makers had inadequate and unreasonable warnings about the dangerous temperatures at which the coffee was brewed and maintained. "Even if virtually faultless in design, material and workmanship, a product may be deemed defective where the seller fails to discharge its duty to warn or instruct with respect to potential and unknown dangers in the use of the product." Jarrell, 528 N.E.2d at 1166; see Baker v. Monsanto Co., 962 F. Supp. 1143, 1147 (S. D. Ind. 1997). In Indiana, the adequacy of warning with respect to a strict liability claim is governed by the same concepts as a negligence claim. Jarrell, 528 N.E.2d at 1166; see Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 388 N.E.2d 541 (Ind. App. 1979). This fact remains even though the 1983 statutory amendment to Ind. Code 33-1-1.5-1 deleted negligence theory as giving rise to product liability. Jarrell, 528 N.E.2d at 1166. Indiana has codified when a warning is defective:

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.

IND. CODE 33-01-1.5-2.5(b).

The legislature's intent with the enactment of Indiana's Products Liability Act was to "impose liability upon a supplier who puts into the stream of commerce any product without reasonable (adequate) warnings thereby leaving it in a condition unreasonably dangerous to any user, if such warnings could have been given in the exercise of reasonable diligence." Moss, 945 F. Supp. at 1180; Jarrell, 528 N.E.2d at 1166.

Indiana's statute, thus, has "removed the adequacy of warnings from the realm of 'defect' and made it merely descriptive of the unreasonably dangerous product." Jarrell, 528 N.E.2d at 1167. Harm is not actionable in strict product liability, unless the product is "unreasonably dangerous." Bemis Co., Inc. v. Rubush, 427 N.E.2d 1058, 1061 (Ind. 1981), cert. denied, 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61 (1982). "The intended thrust of Bemis was to emphasize that § 402A liability should not be imposed for dangers so obvious that manufacturers could reasonably expect anticipated users to perceive and act to avoid injury." Koske, 551 N.E.2d at 440. Therefore, under Indiana law, to maintain a products liability action based on the manufacturer's failure to warn, the product in question must be "unreasonably dangerous." Whitted, 58 F.3d at 1206.

The warning issue in the McMahon's case revolves around whether consumers have had called to their attention the fact that hot coffee can burn. "The unreasonably dangerous quality of the product focuses in large measure upon the consumer. Therefore, an adequate warning placed on what would otherwise be an unreasonably dangerous product eliminates that essential requirement for recovery in strict liability. The danger of harm has been called to the attention of the consumer. He cannot now claim that the danger was not in his contemplation." Jarrell, 528 N.E.2d at 1168. "Stated somewhat differently, the presence of warnings might be held to render a hidden and specific danger ["defect"] open and obvious." Jarrell, 528 N.E.2d at 1166; see Koske, 526 N.E.2d 985.

If the consumer is aware of the danger involved, the warning is adequate and the product is no longer unreasonably dangerous. Baker, 962 F. Supp. at 1156. A manufacturer has no duty to make known properties of a product of which users are already aware. Burton v. L.O. Smith Foundry Products Co., 529 F.2d 108, 111-112 (7th Cir. 1976). "A duty to warn exists only when those to whom the warning would go can reasonably be assumed to be ignorant of the facts which a warning would communicate. If it is unreasonable to assume they are ignorant of those facts, there is no duty to warn." Id.; see Nissen Trampoline Co. v. Terre Haute First National Bank, 332 N.E.2d 820, 825 (Ind. App. 1975). Additionally, the legislature's mandate in passing Ind. Code 33-1-1.5-2 & -3, deals with the aforementioned, and "the fact that the product could have been made safer does not establish liability." Welch, 651 N.E.2d at 815, n.5.

The McMahons rely on the testimony of their expert witnesses to support their allegations about Bunn's inadequate warnings. However, the Bunn-O-Matic manual has much bold lettering, "warning" and "caution" sections, noticeable boxes labeled "warning," etc. which relate to the operation of the coffee makers. The plaintiffs' allegations concern the alleged lack of warning to consumers about the unreasonably high temperatures of the coffee. No sign needs to be hung to warn ordinary coffee consumers of the qualities "hot" and "possibility of burns." These factors are open and obvious.

"Adequacy of warnings is classically a question of fact reserved to the trier of fact and therefore, usually an inappropriate matter for summary judgment." Jarrell, 528 N.E.2d at 1161. However, in the McMahons' case, the dangers are open, obvious, and the "unreasonably dangerous" element necessary for a strict product liability action is missing. There is no issue of material fact under a strict liability concerning the manufacturer's warning in this case.

II. Negligence Claims

The plaintiffs also seek to hold the defendants liable under a theory of negligence. "To prevail in a negligence action, the plaintiff must establish that the defendant breached a duty owed to him that proximately caused the injury." Cox, 580 N.E.2d at 685 (citing Ogden Estate v. Decatur County Hospital, 509 N.E.2d 901, 902 (Ind. App. 1987)).

Indiana's open and obvious danger rule "bars assessing liability against a manufacturer in product cases based on negligence where defects are latent and normally observable." Anderson, 67 F.3d at 620; Welch, 651 N.E.2d at 814-815; Miller, 551 N.E.2d at 1143. "A manufacturer of a product is liable only for defects which are hidden and not normally observable." Welch, 651 N.E.2d at 815; see Koske, 551 N.E.2d at 440. "The manufacturer has no duty to warn if the danger is open and obvious." Id. Although the rule is not applicable in strict product liability cases ( see Koske, 551 N.E.2d at 442; Anderson, 67 F.3d at 622), it does apply in product cases based on negligence. Anderson, 67 F.3d at 622; Rogers, 557 N.E.2d at 1045; Moore v. Sitzmark Corp., 555 N.E.2d 1305 (Ind. App. 1990); Miller, 551 N.E.2d at 1143. Thus, if the dangers were open and obvious, Bunn cannot be held liable under a negligence theory.

Indiana's open and obvious danger test asks whether the defect is "hidden and not normally observable, constituting a latent danger in the use of the product." Bemis Co. v. Rubush, 427 N.E.2d 1058, 1061 (Ind. 1981); see Anderson, 67 F.3d at 621, (affirming Bemis's holding on open and obvious danger); Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, 938 (Ind. App. 1994). It is an objective test "based on what the reasonable consumer would have known." Anderson, 67 F.3d at 622; Schooley, 631 N.E.2d at 939. An objective standard for expected use considers factors like reasonably anticipated knowledge, perception, appreciation, circumstances, and behavior of expected users. Koske, 551 N.E.2d at 440.

Koske discussed the objective standard as it related to unreasonable dangerousness in strict liability cases.

"Whether a danger is open and obvious depends not just on what people can see with their eyes but also on what they know and believe about what they see." McDonald, 870 F.2d 389, 394 (quoting Kroger Co. Sav-On Store v. Presnell, 515 N.E.2d 538, 544 (Ind. App. 1987)). Public policy behind this test is to provide some protection for the manufacturer: "He is not an insurer against accident and is not obligated to produce only accident-proof machines. The emphasis is on the duty to avoid hidden defects or concealed dangers." Bemis, 427 N.E.2d at 1062 (quoting J. I. Case Company v. Sandefur, 245 Ind. 213, 197 N.E.2d 519, 523 (Ind. 1964)).

Under Indiana law, "summary judgment based on an open and obvious danger is proper . . . only if 'from the uncontested facts no reasonable jury properly instructed in Indiana law could infer that the danger was not open and obvious.'" Ruther v. Robins Eng'g & Constructors, 802 F.2d 276, 278 (7th Cir. 1986)(quoting Estrada v. Schmutz Mfg. Co., Inc., 734 F.2d 1218, 1220 (7th Cir. 1984)). The presumption, therefore, in Indiana is against granting summary judgment on the basis of the open and obvious rule. Anderson, 67 F.3d at 624.

In Anderson v. P.A. Radocy & Sons, 67 F.3d 619 (7th Cir. 1995), the Seventh Circuit upheld the district court's grant of summary judgment on a negligence product liability claim based on the open and obvious danger rule.

"Precluding liability when defects are open and obvious" tends "to obscure or minimize consideration of human factors related to the foreseeable circumstances of expected product use." Koske, 551 N.E.2d at 441.; see Miller v. Todd, 518 N.E.2d 1124. Case law substantiates how courts look objectively at general situations.

In Miller v. Todd, the court determined that summary judgment on a negligence claim was appropriate where Miller chose to ride on the back seat of a motorcycle: the absence of crash bars on a motorcycle was an obvious danger to an ordinary user. Miller, 518 N.E.2d at 1125. In Anderson v. P.A. Radocy & Sons, 865 F. Supp. at 530, the court found summary judgment appropriate on negligence claims and used the open and obvious rule. Journeymen electricians realize that a metal basket, metal crane arm, and the lack of a ground fault interrupter provide no protection from electrical shock. Id.

In Welch v Scripto-Tokai Corp., 651 N.E.2d at 815-816, the court again found summary judgment appropriate on negligence claims. Manufacturers have no duty to warn of inherent dangers and no duty to make a butane cigarette lighter child-proof; the dangers were open and obvious. Id. By way of contrast, the court in Kroger Co. Sav-On Store v. Presnell, 515 N.E.2d at 543, precluded granting summary judgment on negligence claims where the danger was not open and obvious. Consumers could unknowingly injure themselves by failing to secure the legs of a collapsible chair, if they were not properly locked into position. Id.

The McMahons' negligence claim turns on whether the danger that hot coffee can burn would be open and obvious to ordinary consumers. The McMahons concede: the coffee was hot; coffee can "scald;" it can burn; and they had personal knowledge of how coffee can burn, since Mr. McMahon's brother-in-law had been burned by hot coffee. The issue is whether the danger that hot coffee can burn would be open and obvious to ordinary users. The court concludes that it is. From an objective standpoint, reasonable consumers of coffee expect the beverage to be hot. Just as Mr. McMahon acknowledged, ordinary people understand that water boils at 212 degrees Fahrenheit, and that water of a similarly high temperature is generally used to make hot coffee. Reasonable coffee consumers recognize that pouring hot coffee requires a certain degree of caution, particularly to avoid getting burned. Consumers reasonably anticipate the danger, appreciate and perceive such risks. Ordinary users reasonably anticipate that pouring hot coffee in a moving vehicle involves an obvious danger; it requires care and precaution to prevent spills and burns.

The court recognizes that Mrs. McMahon did not intentionally inflict third degree burns upon herself. However, both caution and precautions are necessary when pouring hot beverages in a moving vehicle. Manufacturers have no duty to warn of the open and obvious danger involved in pouring hot coffee. Welch, 651 N.E.2d at 815.

III. Warranty

Plaintiffs allege that an express warranty is created through the documentation in the Bunn-O-Matic operating and service manual. "An express warranty requires some representation, term, or statement as to how the product is warranted." Martin Rispens & Son v. Hall Farms, Inc., 621 N.E.2d 1078, 1081 (Ind. 1993); see Candlelight Homes Inc. v. Zornes, 414 N.E.2d 980, 983 (Ind. App. 1981). In the manuals for the ST-15 and the System III coffee pots, Bunn-O-Matic warrants the equipment to be free from defects. The plaintiffs allege that if the Bunn-O-Matic coffee makers were found to be defective, then Bunn-O-Matic breached its express warranty. The court has found that the coffee makers were not defective, so this line of reasoning fails.

Conclusion

For the foregoing reasons, Bunn's motion for summary judgment is GRANTED.

SO ORDERED.

Dated this 10th day of November, 1997.

Robin D. Pierce, U.S. Magistrate Judge


Summaries of

McMahon v. Bunn-O-Matic Corp

United States District Court for the Northern District of Indiana, South Bend Division
Nov 10, 1997
1997 WL 873829 (N.D. Ind. 1997)
Case details for

McMahon v. Bunn-O-Matic Corp

Case Details

Full title:ANGELINA McMAHON, et al., Plaintiffs, v. BUNN-O-MATIC CORPORATION, et al.…

Court:United States District Court for the Northern District of Indiana, South Bend Division

Date published: Nov 10, 1997

Citations

1997 WL 873829 (N.D. Ind. 1997)
1997 U.S. Dist. LEXIS 22318