MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Dec 22 2016, 8:36 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Natalie Shrader                                         Kevin W. Marshall
Burke Costanza & Carberry LLP                           Hobart, Indiana
Merrillville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gasser Chair Company, Inc.,                             December 22, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A05-1606-CT-1226
        v.                                              Appeal from the Lake Superior
                                                        Court
Marlene J. Nordengreen,                                 The Honorable Bruce D. Parent,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45D04-1001-CT-7



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016    Page 1 of 11
                                Case Summary and Issue
[1]   Gasser Chair Co. (“Gasser”) appeals the trial court’s denial of its motion for

      judgment on the evidence in Marlene Nordengreen’s action against it, raising

      the sole issue of whether the trial court abused its discretion in denying its

      motion. Concluding the trial court abused its discretion in denying Gasser’s

      motion for judgment on the evidence, we reverse and remand with instructions.



                            Facts and Procedural History
[2]   Gasser designs and manufactures casino chairs. In July 2008, Gasser sold and

      delivered approximately 3,300 chairs to the Horseshoe Casino (“Casino”) in

      Hammond, Indiana. On September, 27, 2009, Nordengreen visited the Casino

      and pressed her luck at the slot machines. Nordengreen claims she suffered

      physical harm when she sat down in one of the chairs and the chair dropped,

      smashing her leg between the bottom of the chair’s seat and footrest.


[3]   On February 3, 2010, Nordengreen filed a premises liability action against the

      Casino alleging negligence. On June 23, 2010, the Casino filed a third party

      complaint against Gasser. On October 14, 2010, Nordengreen amended her

      complaint to include a products liability claim against Gasser. Appellant’s

      Appendix at 27.


[4]   On May 2, 2012, the Casino and Gasser each filed a motion for summary

      judgment. The trial court entered summary judgment in favor of the Casino,

      but denied Gasser’s motion. Gasser appealed the trial court’s entry of summary

      Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016   Page 2 of 11
      judgment in favor of the Casino and a panel of this court affirmed the entry.

      Gasser Chair Co., Inc. v. Nordengreen, 991 N.E.2d 122, 124 (Ind. Ct. App. 2013).1


[5]   In March 2016, the trial court held a final pre-trial conference with the parties,

      following which it entered a pretrial order. The order noted Nordengreen

      claimed Gasser was liable for manufacturing, selling, and delivering

      unreasonably dangerous chairs and failed to warn consumers about the chairs’

      “propensity to collapse[.]” Appellant’s App. at 146. Beginning May 2, 2016,

      the case was tried to a jury. At the conclusion of Nordengreen’s case-in-chief,

      Gasser moved for judgment on the evidence, arguing Nordengreen failed to

      present sufficient evidence to support her products liability claim. Specifically,

      Gasser claimed Nordengreen failed to present any evidence of a defect in the

      chair. In response, Nordengreen stated she “would withdraw that claim and go

      with negligence only.” Transcript, Volume IV, at 270. The trial court allowed

      Nordengreen to withdraw her products liability claim, explaining to Gasser,

      “Well, I guess technically [Nordengreen has] withdrawn the products liability

      [claim] so it is no longer—you got your way but you’re [sic] motion is now

      moot related to products liability.” Id. Gasser then immediately moved for

      judgment on the evidence again, arguing the remaining “pure negligence” claim

      was no different than Nordengreen’s product liability claim. Id. at 271. The

      trial court denied Gasser’s motion.




      1
        Thereafter, the Casino’s third party complaint against Gasser continued on some claims, Nordengreen’s
      claim against Gasser continued, and the parties prepared for trial.

      Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016       Page 3 of 11
[6]   Prior to submitting the case to the jury, the parties and the trial court discussed

      the jury’s final instructions. Relevant here, the following colloquy occurred in

      regard to Nordengreen’s proposed final instructions:


              [Trial Court:] [Gasser], do you have an objection to
              [Nordengreen’s] number one?
              [Gasser:] Well, I guess this is kind of different now because
              [Nordengreen] dropped h[er] product’s [sic] liability claim.
              [Trial Court:] Correct.
              [Gasser:] I don’t know that—I mean I think all we need are the
              pattern negligence.
              [Trial Court:] Well, I guess you’re right. . . . I like to include
              [instructions on] issues for trial, which is kind of what
              [Nordengreen’s] is, number one, but we would have to clean out
              the stuff about the product’s [sic] liability and just have it be a
              negligence.
              [Nordengreen:] Actually, my instruction one was the res ipsa.
              ***
              [Trial Court:] I honestly thought that that should come in. . . . I
              think the res ipsa is appropriate under these circumstances.
              ***
              [Gasser:] I would object to that because res ipsa, if there is no
              other explanation and there has been another explanation given
              in this case that being the way Ms. Nordengreen had her leg
              positioned under the chair, so I think res ipsa would not be
              appropriate in this case.
              [Nordengreen:] Judge, I believe res ipsa is appropriate based on
              the evidence that Gasser sold the chair knowing that they could
              expire after a year, that this chair failed for no apparent reason, at
              least according to Gasser. So, chairs don’t fall without
              negligence.
              [Trial Court:] Right. I agree. I think that res ipsa . . . should
              come in. Let’s see. Number two.
              [Nordengreen:] Number two is the negligence instruction. . . .
              That covers when someone sells property to another and it deals

      Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016   Page 4 of 11
                 with that property.
                 ***
                 [Gasser:] I guess this is just becoming confusing because
                 [Nordengreen is] saying [she’s] not claiming product’s [sic]
                 liability and this is a—
                 [Trial Court:] I agree with [Gasser]. I don’t think [instruction
                 two] is appropriate for this fact pattern.
                 ***
                 [Trial Court:] [Instruction number three] is a warranty. . . . So,
                 no, this is no longer appropriate . . . . Number four.
                 ***
                 [Gasser:] Number four is again a products.
                 [Trial Court:] Product’s [sic] liability.
                 [Nordengreen:] Okay. Withdraw that.


      Id. at 348-51.2


[7]   Shortly following this discussion, Gasser rested and again moved for judgment

      on the evidence, arguing Nordengreen failed to establish Gasser owed, or

      breached, any duty of care. Nordengreen countered, “It’s res ipsa loquitor and

      there’s an instruction on it. They [sic] jury can find it.” Id. at 358. The trial

      court denied Gasser’s motion.


[8]   On May 4, 2016, the trial court submitted the case to the jury. The jury found

      Gasser 100% at fault and awarded Nordengreen $480,000 in damages.

      Following the jury’s verdict, Gasser renewed its motion for judgment on the

      evidence, which the trial court denied. This appeal ensued.




      2
          The final jury instructions are not included in the record.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016   Page 5 of 11
                                Discussion and Decision
                                     I. Standard of Review
[9]   The purpose of a motion for judgment on the evidence is to test the sufficiency

      of the evidence. Hitachi Constr. Mach. Co., Ltd. v. AMAX Coal Co., 737 N.E.2d

      460, 462 (Ind. Ct. App. 2000), trans. denied. Where all or some of the issues in a

      case tried before a jury are not supported by sufficient evidence, the trial court

      shall withdraw such issues from the jury and enter judgment thereon. Ind. Trial

      Rule 50(A). The grant or denial of a motion for judgment on the evidence is

      within the trial court’s broad discretion and will be reversed only for an abuse of

      that discretion. Hitachi, 737 N.E.2d at 463. In reviewing a trial court’s ruling

      on a motion for judgment on the evidence, we are bound by the same standard

      as the trial court. Kimbrough v. Anderson, 55 N.E.3d 325, 336 (Ind. Ct. App.

      2016).


               We may not substitute our judgment for that of the jury on
               questions of fact nor should a motion for judgment on the
               evidence be granted because the evidence preponderates in favor
               of the moving party. Rather we determine only: (a) whether
               there exists any reasonable evidence supporting the claim; and
               (b) if such evidence does exist, whether the inference supporting
               the claim can be drawn without undue speculation.


      Id. (citations omitted).




      Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016   Page 6 of 11
                            II. Indiana Products Liability Act
[10]   Gasser argues the trial court abused its discretion in denying its motion for

       judgment on the evidence at the close of Nordengreen’s case-in-chief.

       Specifically, Gasser contends Nordengreen voluntarily withdrew her products

       liability claim and did not present sufficient evidence to show Gasser owed her

       a duty of care independent of Gasser’s statutory duty under the Indiana Products

       Liability Act (the “Act”). We agree.


[11]   The Act governs all actions brought by a user or consumer of a product against

       a manufacturer or seller of the product for physical harm caused by the product,

       “regardless of the substantive legal theory or theories upon which the action is

       brought.” Ind. Code § 34-20-1-1. Under the Act,

               [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 . . . is subject to liability for
               physical harm caused by that product to the user or consumer . . .
               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 defective condition;


               (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.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016   Page 7 of 11
       Ind. Code § 34-20-2-1.


[12]   The parties first dispute whether Nordengreen voluntarily dismissed her

       products liability claim. In her amended complaint, Nordengreen’s sole claim

       against Gasser alleged negligence under a products liability theory. At the close

       of Nordengreen’s case-in-chief, Gasser moved for judgment on the evidence,

       claiming Nordengreen failed to present evidence to support her products

       liability claim. Nordengreen then requested to withdraw her products liability

       claim and proceed “with negligence only[,]” which the trial court allowed,

       explaining to Gasser its concern as to Nordengreen’s products liability claim

       was now moot. Tr. at 270. In addition, any confusion regarding

       Nordengreen’s claim for relief at the conclusion of her case-in-chief is made

       clear when viewed in light of the party’s discussions regarding the final jury

       instructions where the trial court withdrew all instructions pertaining to

       Nordengreen’s products liability claim. We conclude the record clearly

       demonstrates Nordengreen withdrew her products liability claim and proceeded

       under a separate and independent negligence claim.3




       3
         Gasser dedicates much of its brief to arguing the trial court erred in allowing Nordengreen to withdraw her
       products liability claim and proceed only on a pure negligence claim. Specifically, Gasser cites to Campbell v.
       Supervalu, Inc., 565 F.Supp.2d 969 (N.D. Ind. 2008), for the proposition a consumer or user of a product
       cannot repackage a products liability claim as an independent negligence claim. Stated differently, Gasser
       claims Nordengreen—as a product user seeking damages against the product’s manufacturer for harm caused
       by the product—is not allowed as a matter of law to bring a common law negligence claim against the
       manufacturer seeking damages suffered as a result of an alleged defect in a product, let alone switch from a
       products liability claim to a pure negligence claim in the midst of trial. In Campbell, a five-year-old child—
       Michael Campbell—consumed tainted meat purchased at a local grocery store. Thirteen years later, Michael
       and his parents filed suit against Supervalu, Inc., alleging “simple” common law negligence. Id. at 974. In
       its motion for summary judgment, Supervalu argued the Indiana Products Liability Act subsumed the

       Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016          Page 8 of 11
[13]   Next, the parties dispute what effect Nordengreen’s withdrawal of her products

       liability claim had on the remainder of her case. As noted above, the Act

       governs all claims brought by consumers and users of a product against

       manufactures or sellers of the product for injuries caused by the product,

       “regardless of the substantive legal theory or theories upon which the action is

       brought.” Ind. Code § 34-20-1-1. Stated differently, the Act subsumes,

       governs, and controls any claim brought by a consumer or user against a

       manufacturer or seller for injuries caused by the product. See Campbell, 565 F.

       Supp.2d at 976. Thus, even assuming the law allows Nordengreen to bring a

       negligence claim independent of her original products liability claim, see supra

       note 3, she was required to establish Gasser owed her a duty of care, Gasser

       breached that duty, and she suffered harm as a result of the breach, see Cook v.

       Ford Motor Co., 913 N.E.2d 311, 319 (Ind. Ct. App. 2009), trans. denied, all of

       which must be independent of her original products liability claim.4 On appeal,




       Campbells’ common law negligence claim, and as a result, the Act’s ten-year statute of repose barred the
       Campbells from seeking relief. The district court agreed the Campbells could not avoid the Act by merely
       labeling the claim as one of “simple negligence,” reasoning the Act governs all actions alleging a product
       caused physical harm regardless of the substantive legal theory or theories upon the action is brought. Id. at
       976; see also Ind. Code § 34-20-1-1. Thus, the district court concluded the Campbells’ claim was time-barred
       under the Act despite the Campbells’ attempts to avoid bringing a claim under the Act. Id.

       We agree Campbell is instructive to an extent and we further agree Gasser’s argument holds some merit.
       However, we note Gasser’s argument in this regard is similar to its argument Nordengreen did not present
       evidence to support an independent claim of negligence and given our ultimate agreement with this
       argument, coupled with the fact Gasser moved for judgment on the evidence for a second time immediately
       after Nordengreen expressed her intent to proceed under an independent negligence theory, we need not
       address whether the trial court erred in this regard.
       4
         At trial, Nordengeen withdrew her products liability claim and argued res ipsa loquitur provided her basis for
       relief. “Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be based upon the
       surrounding facts and circumstances of the injury.” Rector v. Oliver, 809 N.E.2d 887, 889 (Ind. Ct. App. 2004)
       (emphasis added), trans. denied. “The doctrine operates on the premise that negligence, like any other fact or

       Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016           Page 9 of 11
       Nordengreen does not set forth any independent duty owed by Gasser, and

       given our review of the record, namely the evidence presented by Nordengreen

       during her case-in-chief, we conclude Nordengreen did not present sufficient

       evidence to show Gasser owed her any duty of care independent of Gasser’s

       duty under the Act. 5


[14]   In sum, Nordengreen voluntarily withdrew her products liability claim and

       noted her intent to proceed under a theory of negligence independent of a

       theory of negligence under the Act at the close of her case-in-chief. Gasser then

       moved for judgment on the evidence, claiming Nordengreen failed to show any

       other duty of care owed by Gasser independent of its duty under the Act. We

       agree Nordengreen failed to show any duty of care owed by Gasser, and as a

       result, Nordengreen did not present evidence to support a viable claim for relief.

       We therefore conclude the trial court abused its discretion in denying Gasser




       condition, may be proved by circumstantial evidence.” K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct.
       App. 1990), trans. denied. Thus, the doctrine of res ipsa loquitur in products liability cases allows an injured
       consumer or user to rely on circumstantial evidence to prove a defect in a product. See Ford Motor Co. v. Reed,
       689 N.E.2d 751, 753-56 (Ind. Ct. App. 1997) (discussing the applicability of res ipsa loquitor in products
       liability cases). Here, Nordengreen’s contention at trial that res ipsa loquitur supported her claim for relief
       holds no merit given the fact she had already withdrawn her products liability claim and res ipsa loquitur is not
       in itself an independent cause of action.
       5
         Nordengreen argues Gasser has waived this claim on appeal because it did not object to jury instructions
       regarding negligence. Although Nordengreen’s arguments are difficult to follow, we note Gasser
       immediately moved for judgment on the evidence after Nordengreen voluntarily dismissed her products
       liability claim and noted her intention to proceed on a theory of negligence independent of her products
       liability claim. To the extent Nordengreen argues Gasser waived any claim regarding a negligence cause of
       action for failure to object to the final jury instructions, we disagree. See TRW Vehicle Safety Systems, Inc. v.
       Moore, 936 N.E.2d 201, 224 (Ind. 2010) (noting a claim on appeal challenging the sufficiency of the evidence
       is not waived “when a party fails to object to jury instructions informing the jury about the elements of an
       issue and explaining how to proceed upon its findings”).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016            Page 10 of 11
       judgment on the evidence and we reverse and remand to the trial court with

       instructions to enter judgment in favor of Gasser.



                                               Conclusion
[15]   The trial court abused its discretion in denying Gasser’s motion for judgment

       on the evidence. Accordingly, we reverse and remand with instructions for the

       trial court to enter judgment in favor of Gasser.


[16]   Reversed and remanded.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A05-1606-CT-1226 | December 22, 2016   Page 11 of 11
