ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
JAY CHARON JULIA BLACKWELL
JON S. DISTON NICHOLAS C. PAPPAS
Spanger, Jennigns & Dougherty, P.C. DANIEL D. BOBILYA
Merrillville, Indiana Locke Reynolds, LLP
COURT OF APPEALS OF INDIANA
YVONNE E. BARNARD, Administratrix, )
of the Estate of MARK E. BARNARD, )
Deceased, and YVONNE E. BARNARD, )
vs. ) No. 64A05-0206-CV-291
SATURN CORPORATION, a Division of )
GENERAL MOTORS CORPORATION, )
GENERAL MOTORS CORPORATION, )
and SATURN OF NORTHWEST INDIANA, INC., )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Thomas W. Webber, Sr., Judge
Cause No. 64D04-9804-CT-106
OPINION - FOR PUBLICATION
June 30, 2003
Yvonne E. Barnard, administratrix of the estate of Mark E. Barnard, brought a
wrongful death product liability suit in the Porter Superior Court against Saturn Corporation,
a division of General Motors; General Motors Corporation; Saturn of Northwest Indiana, Inc.
(collectively, General Motors); and Seeburn Division of Ventra Group, Inc. (Seeburn). The
trial court granted both General Motors and Seeburns motions for summary judgment.
Yvonne raises several issues for our review, which we consolidate and restate as
1. Whether the trial court properly granted summary judgment on the basis of
2. Whether the car jacks specific design enhanced Marks injuries;
3. Whether the warnings on the jack were adequate.
Facts and Procedural History
Mark and Yvonne purchased a 1996 Saturn SL1 from Saturn of Northwest Indiana,
Inc. in May of 1996 that came equipped with a Seeburn car jack
in the trunk. A spare-tire cover was located on the floor of
the trunk of the vehicle. In order to reach the jack, a
user of the car jack must physically remove the spare-tire cover. On
the jack itself there were warnings and instructions. In addition, there were
warnings within the Saturn owners handbook and on the spare-tire cover pertaining to
use of the jack. The specific warning on the jack itself stated:
CAUTION! To help avoid personal injury, follow jacking instructions and use this
jack only for changing tires on this vehicle.
Appellee General Motors Appendix at 17. In addition to the warning provided
jack itself, a warning in the vehicle owners handbook stated:
CAUTION! Changing a tire can cause an injury. The vehicle can
slip off the jack and roll over you or other people. You
and the other people could be badly injured.
Appellee General Motors Appendix at 19. Another warning on page 236 of
CAUTION! To be even more certain the vehicle wont move, you can
put blocks at the front and the rear of the tire farthest away
from the one being changed. That would be the tire on the
other side of the vehicle and at the opposite end.
Appellee General Motors Appendix at 19. A warning on page 238 of
CAUTION! Getting under a vehicle when it is jacked up is dangerous.
If the vehicle slips off the jack, you could be badly injured.
Never get under a vehicle when it is supported only by a jack.
Appellee General Motors Appendix at 20. A warning on page 242 of
CAUTION! Getting under the vehicle when it is jacked up is dangerous.
If the vehicle slips off the jack, you could be badly injured.
Appellee General Motors Appendix at 21. Also, a warning on page 266
of the owners
CAUTION! Changing your engines oil can cause injury. Getting under the
vehicle when it is jacked up is dangerous. If the vehicle slips
off the jack or ramps, you could be badly injured. Never get
under a vehicle when it is supported only by a jack.
Appellee General Motors Appendix at 22. Finally, warnings on the spare-tire cover
the trunk stated:
TO HELP AVOID PERSONAL INJURY:
( Follow all jacking and storage instructions.
( Use jack only for lifting this car during tire change.
( Never get under the car or start or run engine while the car
is supported by the jack.
( Before changing tire: Park on a level surface
Appellee General Motors Appendix at 23.
Discussion and Decision
On March 16, 1997, Mark informed his wife that he was going to
change the oil in their Saturn vehicle. Yvonne observed Mark as he
drove the front wheels of the vehicle onto the sidewalk in front of
the family home. While Yvonne was inside cooking dinner she heard a
noise coming from outside the house. When she investigated, she found Mark
pinned underneath the car. The front wheels were no longer on the
sidewalk, but were flush against the sidewalk curb with the passenger side front
wheel off the ground. Further, she observed that the car jack was
leaning to one side, wedged in and stuck on the passenger side of
Yvonne initially attempted to drive the vehicle off of her husband, however the
car would not move. She then attempted to remove the jack from
underneath the car and use it in an attempt to free Mark. The
jack, manufactured by Seeburn, operated in a scissor action. As the center
nut is turned clockwise the jack raises. If the jack reaches its
maximum height and the user continues to turn the center nut with 70
foot pounds, then the center nut will shear off. Once the center
nut shears off, the jack becomes inoperable. When Yvonne applied force to
the handle of the jack in order to try to free Mark the
jacks center nut sheared off, rendering the jack inoperable
Emergency personnel eventually extricated Mark from underneath the vehicle. However, Mark later
died at the hospital on March 21, 1997, from the injuries he sustained.
On April 28, 1998, Yvonne filed suit against General Motors and Seeburn for
damages resulting from Marks death. On March 27, 2002, General Motors moved
for summary judgment. Shortly thereafter, Seeburn filed its own motion for summary
judgment. On May 22, 2002, the trial court conducted a hearing and
granted both General Motors and Seeburns motions for summary judgment. Yvonne filed
her notice of appeal with the trial court on June 17, 2002, and
this appeal ensued.
I. Product Misuse
The trial court found that there were no genuine issues of material fact
and General Motors and Seeburn were entitled to judgment as a matter of
law on the basis of product misuse. Yvonne, however, contends that the
trial court improperly granted summary judgment in favor of General Motors and Seeburn
because Marks misuse was foreseeable to the manufacturers. Thus, she argues, General
Motors and Seeburn are not entitled to summary judgment. We disagree.
A. Standard of Review
In determining the propriety of summary judgment, we apply the same standard as
the trial court. Harris v. Traini, 759 N.E.2d 215, 220 (Ind. Ct.
App. 2001), trans. denied. Summary judgment is proper when there are no
genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Id. We construe all facts and
reasonable inferences to be drawn from those facts in favor of the non-moving
party. Id. The purpose of summary judgment is to terminate litigation
about which there can be no material factual dispute and which can be
resolved as a matter of law. Id.
A trial court's grant of summary judgment is clothed with a presumption of
validity, and the party that lost in the trial court has the burden
of demonstrating that the grant of summary judgment was erroneous. Zemco Mfg.,
Inc. v. Navistar Int'l Transp. Corp., 759 N.E.2d 239, 244 (Ind. Ct. App.
2001), trans. denied. A grant of summary judgment may be affirmed upon
any theory supported by the designated materials. Id. at 244-45.
On appeal, we do not reweigh the evidence, but we liberally construe all
designated evidentiary material in the light most favorable to the nonmoving party to
determine whether there is a genuine issue of material fact for trial.
Id. To be considered genuine for summary judgment purposes, a material issue
of fact must be established by sufficient evidence in support of the claimed
factual dispute to require a jury or judge to resolve the parties differing
versions of the truth at trial. Street v. Shoe Carnival, Inc., 660
N.E.2d 1054, 1056-57 (Ind. Ct. App. 1996).
B. Misuse of the Car Jack
Yvonne contends that the trial court improperly granted summary judgment in favor of
General Motors and Seeburn because Marks misuse was foreseeable to the manufacturers.
Therefore, she contends General Motors and Seeburn are not entitled to summary judgment.
Indiana Code section 34-20-2-1 states the grounds for a products liability action:
[A] person who 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 users or consumers property is subject to liability for physical harm
caused by that product to the user or consumer or to the users
or consumers property if:
(1) 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
(2) the seller is engaged in the business of selling the product; and
(3) 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.
Indiana Code section 34-20-6-4 provides an affirmative defense to a products liability claim
when a product is misused. The statute reads:
1. Misuse As A Complete Defense
It is a defense to an action under this article
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.
Foreseeable use and misuse are typically questions of fact for a jury to
Vaughn v. Daniels Co. (West Virginia), Inc., 777 N.E.2d 1110, 1129
(Ind. Ct. App. 2002) (citing Montgomery Ward & Co. v. Gregg, 554 N.E.2d
1145, 1151-52 (Ind. Ct. App. 1990), trans. denied. However, some courts have
granted summary judgment on the defense of misuse. Vaughn, 777 N.E.2d at
1129 (citing Estrada v. Schmutz Mfg. Co., 734 F.2d 1218, 1221 (7th Cir.
1984) (barring claim of worker who attempted to ink printer by hand where
it was not intended that printer be inked by hand); see also Latimer
v. General Motors Corp., 535 F.2d 1020, 1024 (7th Cir. 1976) (holding manufacturer
had no duty to anticipate misuse). The defendants bear the burden of
proving that plaintiff misused the product in an unforeseeable manner. Marshall v.
Clark Equipment Co., 680 N.E.2d 1102, 1108 (Ind. Ct. App. 1997), trans. denied.
A threshold issue is whether the affirmative defense of misuse acts as a
complete bar to recovery in a products liability action. This court has
stated in dicta in previous cases that misuse is a complete defense to
a products liability claim. See Morgen v. Ford Motor Company, 762 N.E.2d
137, 143 (Ind. Ct. App. 2002), trans. granted, 783 N.E.2d 701 (Ind. 2002);
Indianapolis Athletic Club, Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1072 (Ind.
Ct. App. 1999), trans. denied; Marshall, 680 N.E.2d at 1108. However, we
believe that 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. See Chapman v. Maytag Corp., 297 F.3d
682, 689 (7th Cir. 2002) (stating
the district court did not err when
it determined that the defense of misuse is not a complete defense, but
instead an element of comparative fault.), affirming Chapman v. Maytag Corp., 2000 WL
1038183 (S.D. Ind. 2000).
In 1995, the General Assembly required that all fault in products liability cases
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 [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.
Ind. Code § 34-20-8-1; Bondex Intern v. Ott, 774 N.E.2d 82, 85 (Ind.
Ct. App. 2002). 2. Misuse Of The Jack As A Matter of Law
For purposes of the products liability act, the legislature defined fault as:
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 Ind. Code 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.
Ind. Code § 34-6-2-45(a). As stated above, misuse is a defense to
a products liability
action where a cause of the physical harm is a misuse of the
product by the claimant
not reasonably expected by the seller. Ind. Code §
34-20-6-4. We have further defined misuse as use for a purpose or
in a manner not foreseeable by the manufacturer. Indianapolis Athletic Club, 709
N.E.2d at 1073.
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. See Chapman, 2000 WL 1038183. A plaintiffs
misuse falls within the statutory definition of fault as an act or omission
intentional toward the
property of others, including an unreasonable failure to avoid an injury
or to mitigate damages. Ind. Code § 34-6-2-45(a). There is also
nothing in the comparative fault statute indicating misuse is to be exempted from
the scope of the fault requirement.
In addition, the decisions General Motors and Seeburn cite for the premise that
misuse acts as a complete bar to recovery rely upon a case decided
prior to the legislatures adoption of the comparative fault statute for products liability
cases. See Morgen, 762 N.E.2d at 143 (relying upon Indianapolis Athletic Club,
Inc., 709 N.E.2d at 1072.); Indianapolis Athletic Club, Inc., 709 N.E.2d at 1072
(relying upon Marshall v. Clark Equipment Co., 680 N.E.2d 1102, 1108 (Ind. Ct.
App. 1997)); Marshall, 680 N.E.2d at 1108 (relying upon Underly v. Advance Mach.
Co., 605 N.E.2d 1186, 1189 (Ind. Ct. App. 1993)). We stated in
Underly that misuse is a defense that will completely bar recovery. Id.
However, Underly was decided before comparative fault was added to the products
liability statute and thus was decided under contributory negligence principles. For the
above reasons, we believe the defense of misuse no longer acts as a
complete defense under the comparative fault scheme and we will review any misuse
in this case under principles of comparative fault.
On their motion for summary judgment, General Motors and Seeburn bear the burden
to show that Mark misused the jack in a manner unforeseeable to the
manufacturers. They contend that Mark misused the jack by ignoring the multiple
warnings present, placing the front wheels of the vehicle up on the sidewalk,
failing to block the tires, and getting under the car in order to
change the oil. See supra at 2-3.
As previously discussed, misuse is a defense to a products liability action where
a cause of the physical harm is a misuse of the product by
not reasonably expected by the seller. Ind. Code § 34-20-6-4.
We have further defined misuse as use for a purpose or in a
manner not foreseeable by the manufacturer. Indianapolis Athletic Club, 709 N.E.2d at
1073. In discussing the similar defense of incurred risk, this court stated
[a] consumer who
uses a product in contravention of a legally sufficient warning, misuses
the product, and in the context of the defense of incurred or assumed
risk, is subject to the defense of misuse. Hinkley v. Montgomery Ward, Inc.,
497 N.E.2d 255, 257 (Ind. Ct. App. 1986) (citing Perfection Paint and Color
Company v. Konduris, 258 N.E.2d 681, 689 (Ind. Ct. App. 1970)). In
Dias v. Daisy-Heddon, plaintiff was injured by a pellet from a BB gun
that he thought was unloaded. 390 N.E.2d 222, 224 (Ind. Ct. App.
1979). We determined that where warning is given, the seller may reasonably
assume that it will be read and heeded
Id. at 225. The
court concluded that had the user of the gun followed the instructions, the
gun would not have caused an injury. Id. at 225; See also
Marshall v. Clark Equipment Co., 680 N.E.2d 1102, 1105 (Ind. Ct. App. 1997)
(explaining and approving Dias).
In a similar case, the Seventh Circuit determined that a plaintiff was not
entitled to recovery where he ignored multiple warnings that would have prevented his
injuries that occurred while he was operating a forklift. See Leon v.
Caterpillar Industrial, Inc., 69 F.3d 1326, 1343-44 (7th Cir. 1995). The plaintiff
admittedly ignored the safety warnings and instructions; however, he argued that the manufacturers
of the forklift should have foreseen the misuse. The Seventh Circuit held
that the forklift manufacturer could not reasonably expect that plaintiff would fail to
comply with four independent safety regulations where compliance with one of the instructions
would have prevented the injury. Id.
Here, instead of heeding the multiple warnings and instructions General Motors and Seeburn
provided for proper use of the jack, Mark disregarded them. The undisputed
facts indicate that he parked the vehicle so that the two front wheels
were up on the sidewalk and the car was at an incline, even
though the warnings stated that the car should be parked on a level
surface. Mark then got underneath the vehicle with only the jacks support,
which was also in direct contravention of the safety warnings. Mark did
not place blocks behind the wheels to prevent the car from moving as
the instructions recommended, and there is evidence that a block of wood was
placed underneath the jack as well. Although it is unlikely, in light
of the nature and purpose of a car jack, that General Motors and
Seeburn could not have reasonably foreseen a user ever deciding to get underneath
a vehicle supported solely by a jack, Mark deployed this particular jack in
direct contravention of its reasonably expected permitted use.See footnote
See Dias, at 390
N.E.2d at 225; Leon, 69 F.3d at 1343-44. Thus, we believe Mark
misused the jack.
3. Misuse Under Comparative Fault
Under the comparative fault scheme, the trier of fact shall compare misuse with
all other fault in the case.
See Ind. Code § 30-24-8-1.
Fault allocation may be decided as a matter of law only if the
evidence is undisputed and the fact finder could reach only one conclusion.
Creasy v. Rusk, 696 N.E.2d 442, 448-49 (Ind. Ct. App. 1998). To
allocate fault to a plaintiff as a matter of law on a theory
of misuse, the undisputed evidence must conclusively show that plaintiffs use of the
product was not reasonably expectable to the seller. See id. Under
the comparative fault scheme, Yvonne would be precluded from recovering from General Motors
and Seeburn if the amount of fault attributed to Mark was greater than
the fault attributed to General Motors and Seeburn. See Ind. Code §
As discussed above, we have determined that Mark misused the jack. We
also believe that under these particular circumstances no reasonable trier of fact could
find that Mark was less than fifty percent at fault for the injuries
that he sustained. Because Mark misused the jack and no reasonable trier
of fact could find that Mark was less than fifty percent at fault
for his injuries, we hold that General Motors and Seeburn are entitled to
judgment as a matter of law.
II. Enhancement of Injury
Yvonne contends that the design feature of the jack was a hidden and
dangerous design feature which General Motors and Seeburn never warned about and enhanced
Marks injuries to the point of death.
An enhanced injury action is defined as one brought against a party whose
activity (product) caused the plaintiff's injuries to be exacerbated although the activity was
not a contributing cause of the occurrence from which all the injuries arose....
Masterman v. Veldman's Equip., Inc., 530 N.E.2d 312, 314 (Ind. Ct. App. 1988),
trans. denied. In Indiana, claims of enhanced injury are valid causes of
action. Miller v. Todd, 551 N.E.2d 1139, 1142 (Ind. 1990); Jackson v.
Warrum, 535 N.E.2d 1207, 1212 (Ind. Ct. App. 1989) (noting that enhanced injury
claims are also referred to as enhancement of injury, second collision, or crashworthiness
claims). In Jackson, we set out the plaintiff's burden of proof for
an enhanced injury claim as follows:
First, the plaintiff must prove that the manufacturer placed into the stream of
commerce a defectively designed, unreasonably dangerous product. Second, the plaintiff must prove
that a feasible safer alternative product design existed. Third, the plaintiff must
prove that after the original impact or collision the defectively designed product proximately
caused (i.e. enhanced) the injuries that resulted.
Jackson, 535 N.E.2d at 1220.
Typically, an enhancement of injury claim involves vehicle collisions. See Miller, 551
N.E.2d at 1141 (passenger injured in a motorcycle collision); Marshall, 680 N.E.2d at
1106 (worker injured while backing up a forklift); Jackson, 535 N.E.2d at 1212
(driver and passenger of low-entry design garbage truck sued driver of truck involved
in head-on collision). The doctrine however is merely a variation of the
strict liability theory, extending a manufacturer's liability to situations in which the defect
did not cause the accident or initial impact, but rather increased the severity
of the injury. Jackson, 535 N.E.2d at 1213. In effect, the
doctrine of enhanced injury merely expands the proximate cause requirement to include enhanced
injuries. Marshall, 680 N.E.2d at 1108. Proximate cause is established when
the injury caused by the product is a natural and probable consequence which
was, or should have been, reasonably foreseen or anticipated in light of the
attendant circumstances. Id. An intervening cause, such as a misuse of
the product, will relieve the manufacturer of liability when the manufacturer could not
have reasonably foreseen the intervening acts. Id.
In this case, there were no warnings on the jack or in the
instruction manual informing a user that if the jack reaches its full extension
and an additional 70 foot pounds of torque are applied, the jack nut
will shear off and render the jack inoperable. Yvonne contends that had
the jack nut not sheared Mark may have survived. However, this is
uncertain under the evidence presented. Furthermore, as discussed above, Mark misused the
jack as a matter of law and no reasonable trier of fact could
find him less than fifty percent at fault. The enhancement of injury
doctrine merely expands the proximate cause requirement to include enhanced injuries. Id.
Because we have determined that Mark misused the jack as a matter
of law and is more than fifty percent at fault, Yvonne cannot establish
that the jack proximately caused (enhanced) his injuries. Thus, Yvonnes enhancement argument
III. Adequacy of the Warnings
Yvonne also contends that the warnings were inadequate and designates the testimony of
Dr. Mortimer, an expert in human factors, as evidence. Even if Dr.
Mortimers testimony is admissible as expert testimony, we believe under these facts no
reasonable trier of fact could find Mark less than fifty percent at fault
in light of his particular misuse of the jack.
For the above reasons, we believe General Motors and Seeburn are entitled to
judgment as a matter of law on the issue of misuse. Although
we have determined that misuse is not a complete defense and should be
allocated accordingly under the comparative fault scheme, under these specific facts no reasonable
trier of fact could find that Mark was less than fifty percent at
fault for his injuries. Because there are no genuine issues of material
fact and General Motors and Seeburn are entitled to judgment as a matter
of law, we affirm the trial courts decision granting summary judgment.
KIRSCH, J., and BARNES, J., concur.
We held oral argument in this case on April 14, 2002,
at Ivy Tech State College in Lafayette, Indiana. We thank the university
for its hospitality and extend our appreciation to counsel for their presentations.
Footnote: Yvonne contends the trial court erroneously weighed evidence and improperly decided
material issues of fact in favor of the moving party. In support
of her argument, Yvonne cites to numerous examples of designated evidence and issues
of fact where she believes the trial court misapplied the standard of review,
ignored favorable facts, and improperly resolved conflicting inferences arising from the facts in
favor of the moving party. Appellants Brief at 11-16. Because our
review of a grant of summary judgment is
de novo, we will consider
all of Yvonnes designated evidence anew in the following discussion and determine whether
summary judgment was properly granted. Zemco Mfg., 759 N.E.2d at 244-45.
Thus, separately determining whether the trial court misapplied the standard of review to
particular designated evidence, ignored particular facts, and improperly resolved conflicting inferences in favor
of General Motors and Seeburn is unnecessary here. Those specific issues are
raised in Yvonnes arguments and will be addressed when appropriate.
If a manufacturer could not foresee a particular use, they would
not know to warn against it. Thus, we believe the term reasonably expected
use must include the manufacturers reasonably expected permitted use. If not, the
moment a seller or manufacturer provided a specific warning against a particular use,
they would have admitted to foreseeing use of the product in that proscribed