                                                                                 FILED
                                                                            Apr 13 2020, 8:51 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Bryan H. Babb                                               Christopher A. Pearcy
      Bradley M. Dick                                             Hume Smith Geddes Green &
      Bose McKinney & Evans LLP                                   Simmons, LLP
      Indianapolis, Indiana                                       Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kyle Hackney,                                               April 13, 2020
      Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                                  19A-CT-1080
              v.                                                  Appeal from the
                                                                  Lawrence Circuit Court
      Pendu Manufacturing, Inc.,                                  The Honorable
      Appellee-Defendant.                                         Andrea K. McCord, Judge
                                                                  Trial Court Cause No.
                                                                  47C01-1606-CT-595



      Kirsch, Judge.


[1]   This case involves an action by Kyle Hackney (“Hackney”) against Pendu

      Manufacturing, Inc. (“Pendu”), alleging that a piece of machinery

      manufactured by Pendu contained a design defect that made it unreasonably

      dangerous under the Indiana Product Liability Statute. Hackney appeals the

      trial court’s entry of summary judgment in favor of Pendu and raises several


      Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020                             Page 1 of 20
      issues, of which we find the following issue dispositive: whether the trial court

      erred in granting summary judgment in favor of Pendu because the defense of

      misuse barred any liability by Pendu.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On November 17, 2015, Hackney was an employee of American Fibertech

      (“Fibertech”), working at the Mitchell, Indiana facility that produces boards for

      wooden pallets. Appellant’s App. Vol. II at 12; Appellant’s App. Vol. III at 46. On

      that date, Hackney was working at a machine called the Pendu Edger 3000

      (“the Machine”), which was manufactured by Pendu and had been delivered to

      Fibertech in July or August 2015. Appellant’s App. Vol. II at 12; Appellant’s App.

      Vol. IV at 129. The Machine trimmed edges off the boards that were cut to

      make four-inch and six-inch boards used to build the wooden pallets, and the

      Machine was comprised of three separate components: (1) the infeed; (2) the

      edger itself, and (3) the custom built outfeed (“the Outfeed”). Appellant’s App.

      Vol. III at 13, 49. The Outfeed is the only component at issue in this case.

      Appellant’s App. Vol. IV at 162. The Machine was a part of Fibertech’s much

      larger production line and fed into Fibertech’s main conveyor belt. Id. at 129.


[4]   The Machine was shipped by freight from Pendu to Fibertech. Id. at 98-100.

      Pendu did not accompany the Machine to Fibertech and did not have any

      involvement in the installation and incorporation of the Machine and Outfeed

      into Fibertech’s main production line. Id. at 92-93. After the Machine was

      Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 2 of 20
      delivered, Fibertech did not contact Pendu for any reason regarding the

      Machine. Id. at 129. Included with the Machine was the Pendu Safety Manual

      (“the Safety Manual”), which expressly advised all operators on the safe use

      and operation of the Machine. Id. at 56; Appellant’s App. Vol. II at 53-63. The

      Safety Manual was in Fibertech’s possession at all relevant times, and Fibertech

      testified the Safety Manual was available to any and all operators of the

      Machine, including Hackney. Appellant’s App. Vol. IV at 56-57.


[5]   The Outfeed of the Machine was custom built and its design was based on

      photos provided by Fibertech of an older edger it was using and other custom

      requirements of Fibertech. Appellant’s App. Vol. V at 105-06. Pendu was not

      told how Fibertech intended to incorporate the Outfeed into its main

      production line/conveyor belt. Appellant’s App. Vol. IV at 129; Appellant’s App.

      Vol. V at 125-26. Pendu was not told what the conveyor would look like or

      how the custom Outfeed would be incorporated. Appellant’s App. Vol. IV at 129.

      It was Pendu’s understanding with Fibertech that Fibertech was going to install

      any guarding as part of its incorporation of the Outfeed into its main production

      line. Id. at 95, 129. That understanding/agreement was established by the

      parties’ course of dealing and memorialized by the language on their

      contract/change order. Id. at 95, 100, 129; Appellant’s App. Vol. V at 105-06.

      Fibertech did all installation and configuration of the Outfeed into its

      production line, made several changes, and added guarding to the top of the

      Machine as part of its configuration. Appellant’s App. Vol. IV at 35-42,132-33.




      Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020         Page 3 of 20
[6]   Pendu testified that installing a guard on the Outfeed when it manufactured the

      Machine for Fibertech was not feasible “[b]ecause [Pendu] didn’t know exactly

      what [Fibertech’s] belt conveyor’s going to look like.” Appellant’s App. Vol. V at

      101. Pendu “had no idea what [Fibertech was] putting up for guarding or how

      they’re manufacturing” from where the Outfeed ended. Id. at 130. For those

      reasons, Pendu “built exactly what [Fibertech] wanted[,]” and Fibertech never

      said it wanted any guarding on the Outfeed of the Machine. Id. at 105-06.

      That was done per industry standards for custom machinery, like the Outfeed. 1


[7]   Fibertech was “very capable of doing their own installation” of equipment and

      employed their own riggers and installation personnel or would retain

      contractors to assist them with the install or modifications. Appellant’s App. Vol.

      IV at 66-67, 95. It was common for Fibertech to make modifications to the

      Machine after delivery. Id. at 96-97. Fibertech made at least the following

      known modifications to the Machine since delivery:


               1. Performed or oversaw the entire installation of the Machine
               and incorporation into its production line;


               2. Added an extensive catwalk in front of the Machine, and over
               its main conveyor system, stairs, and countless other
               modifications shown in photos, with some contractor assistance;




      1
        ANSI industry standards 4.3 for custom machinery states that “the user shall communicate its specific
      safety requirements as part of the machinery purchase . . . . The supplier and user shall develop a set of
      specifications suited to the user’s location and application specifics of the machine.” Appellant’s App. Vol. IV
      at 101-02.

      Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020                                   Page 4 of 20
              3. Added a guard on top of the Machine that was in place at the
              time of Hackney’s accident;


              4. Added poles to the side of the Machine;


              5. Removed the guards that surround the chain conveyors on the
              outfeed and replaced them with central chain support;


              6. Altered the shaft involved in Hackney’s accident by damaging
              it with the improper use of a pipe wrench.


      Id. at 132-33.


[8]   Hackney’s normal position while working was at the rear of the Machine at the

      infeed area, where he would feed boards into the Machine, which would be

      edged or trimmed inside the Machine and then come out of the Machine via the

      Outfeed. Id. at 22. Occasionally, while performing this job, Hackney would

      notice scrap wood that would get caught in the Outfeed at the opposite end of

      the Machine, and the scrap wood would need to be removed so it would not

      cause a jam. Id. at 22-23. Both the Safety Manual and Fibertech required a

      person to turn off the Machine before reaching into it or servicing it in any way.

      Appellant’s App. Vol. II at 53-63. On November 17, 2015, the date of the

      incident, Hackney was operating the Machine when he noticed a piece of scrap

      wood standing vertically in the Machine. Appellant’s App. Vol. IV at 20. He

      then walked around to the end of the Machine to remove the piece of wood. Id.

      On his way to remove the scrap wood, Hackney walked past both the E-Stop

      and Main Control box, which both had buttons that would have stopped the

      Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 5 of 20
       Machine; Hackney testified that turning off the Machine first would have

       “obviously” prevented his accident. Id. at 22-23, 28. When Hackney got to the

       end of the Machine, he reached his body over the still-operating Machine while

       balancing on one foot. Ex. H. Seconds later, the shirttail of Hackney’s

       sweatshirt got caught in the Machine and became entangled until the sweatshirt

       was removed from Hackney’s body, causing injury to Hackney’s arm and

       shoulder. Id.


[9]    Fibertech trained Hackney to either use the E-Stop or the lockout/tagout

       procedure to stop the machine before removing scrap wood from the Outfeed.

       Appellant’s App. Vol. IV at 60. Fibertech taught Hackney that failure to follow

       the safety rules could result in serious personal injury. Id. at 58. Hackney

       stated that he was trained to turn off the machine before removing a jam, and if

       he had hit one of those two stop buttons that he walked past, the accident

       would not have happened. Id. at 23, 28. The Safety Manual, the safety training

       Hackney received twice a week and signed attendance forms for attending, and

       the Fibertech Safety Policy, which he signed and initialed, all required him to

       stop the Machine before reaching into the machine to service it, such as

       removing scrap wood. Appellant’s App. Vol. II at 53-63, 95-96; Appellant’s App.

       Vol. IV at 45, 81-90.


[10]   Fibertech testified that the Safety Manual was available to “any and all

       operators” of that same machine. Appellant’s App. Vol. IV at 56. On page two of

       the Safety Manual, under “Introduction,” it reads: “Maintenance personnel

       and operators should read this manual thoroughly and become familiar with the

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020         Page 6 of 20
various assemblies and sub-assemblies. This will be helpful when ordering

replacement parts and reduce the possibility of errors.” Appellant’s App. Vol. II

at 54. On page three of the Safety Manual, it reads in all capital letters and bold

font: “WARNING: FAILURE TO FOLLOW THESE RULES MAY

RESULT IN SERIOUS PERSONAL INJURY.” Id. at 55 (emphasis in

original). On the same page, it states under the heading “SAFETY RULES

FOR ALL MACHINES”: “FOR YOUR OWN SAFETY, READ

INSTRUCTION MANUAL BEFORE OPERATING THE MACHINE.

Learn the machine application and limitations as well as the specific hazards

peculiar to it.” Id. (emphasis in original). It further states on page three:

“WEAR PROPER APPAREL. Loose clothing, gloves, neckties, rings,

bracelets, or jewelry can get caught in moving parts.” Id. (emphasis in original).

On page four of the Safety Manual, it states the OSHA “Lock-Out Standard.”

Id. at 56. Page four also contained the following language: “DO NOT

OVERREACH. Keep proper footing and balance at all times.” Id. On page

five under the heading, “WEAR PROTECTIVE CLOTHING,” it states,

“Wear close-fitting clothing and safety equipment appropriate to the job.” Id.

at 57. On page five, it also reads: “Follow OSHA approved, documented

lockout/tagout procedures when cleaning, servicing, adjusting, or doing any

maintenance on a machine. The lockout/tagout procedures should be

permanently attached to each machine.” Id. Additionally, on page seven of the

Safety manual, it stated that “During operation:”




Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020         Page 7 of 20
               5. Follow the instructions below before performing inspections,
               adjustments, repairs, or removing lodged material:


               a) Push the emergency stop button located on the operator’s
               console,


               b) Turn the key switch to the off position and remove the key.


               c) Follow approved lockout/tagout procedures specific to the
               machine.


               d) Be sure material feed has stopped and the arbors have stopped
               turning.


       Id. at 59.


[11]   Fibertech kept the “lockout/tagout” procedures attached to the Machine, and

       part of the new employee training at Fibertech included instruction on

       lockout/tagout procedures specific to the machines that an employee utilized in

       their job duties. Appellant’s App. Vol. III at 59, 96-97. Employees additionally

       were required to attend safety meetings twice per week at Fibertech where a

       variety of general workplace hazards were discussed. Appellant’s App. Vol. IV at

       49-50, 53-54. Lockout/tagout procedures were listed or discussed in all of the

       bi-weekly safety meetings due to their “paramount” importance. Id. at 50-51,

       81-90. On October 9, 2015, Hackney initialed and signed that he read and

       understood the Fibertech Safety Policy. Appellant’s App. Vol. II at 95-96.

       Hackney testified in his deposition that he understood the lockout/tagout rules



       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 8 of 20
       and that the lockout/tagout rules would have required him to turn the Machine

       off prior to attempting to remove a scrap of wood. Id. at 192, 200, 202, 235.


[12]   After Hackney’s accident and injury, Fibertech investigated and determined the

       accident was caused by Hackney’s behavior, violation of safety rules, and

       failure to first turn off the Machine. Appellant’s App. Vol. III at 81-82; Appellant’s

       App. Vol. IV at 72, 74-77. The report concluded that the “incident’s root cause

       was behavioral in nature.” Appellant’s App. Vol. IV at 77. Additionally, the

       report concluded that Hackney was injured “when his jacket got entangled in a

       shaft at the end of the [M]achine.” Id. (emphasis added).


[13]   When the Machine was shipped from Pendu to Fibertech, the Outfeed had a

       smooth and machine-polished shaft. Appellant’s App. Vol. IV at 130-31. Pendu’s

       expert opinion stated that this would have made the shaft resistant to friction,

       but that the post-accident photos of the Outfeed’s shaft showed that it had been

       damaged and was no longer smooth. Id. at 139-40. The expert stated that the

       damage to the shaft notched and serrated the shaft, enabling it “to grab

       [Hackney’s] loose clothing.” Id. at 141. The expert also opined that it appeared

       that someone had used a pipe wrench on the shaft, causing the damage. Id. at

       122, 139-41.


[14]   Hackney testified that prior to his accident he was told that another employee

       had lost a finger in the Outfeed of the Machine, in the same “roller” and

       location on the Outfeed allegedly involved in Hackney’s accident. Id. at 31-32.

       For such an injury to be possible, that unknown employee would have had to


       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020           Page 9 of 20
       have failed to turn off the machine and put his fingers or body in or near the

       Outfeed. Id. at 141. However, Fibertech denied that anyone else had ever been

       injured using the Machine, and there were no workers compensation claims or

       other evidence to support Hackney’s belief that someone else had been injured.

       Id. at 73.


[15]   On June 8, 2016, Hackney filed his complaint against Pendu, alleging that the

       Machine was negligently designed and that, under Indiana’s Product Liability

       Act (“IPLA”), the Machine was unreasonably dangerous and a defective

       product. Appellant’s App. Vol. II at 12-14. On June 21, 2018, Pendu filed a

       motion for summary judgment, arguing that Hackney’s injuries were caused by

       Hackney’s misuse of the Machine, which included failure to read the Safety

       Manual and failure to follow several safety warnings, that Pendu did not breach

       its duty to Hackney and was not the proximate cause of Hackney’s injuries, and

       Hackney should be barred from recovery because he had prior knowledge of the

       Machine’s danger. Id. at 27-42. Hackney filed his response in opposition to

       Pendu’s motion for summary judgment, contending that summary judgment

       should be denied because material issues of fact existed as to whether Pendu

       acted negligently and whether the Machine had a design defect. Id. at 129-41.

       Pendu filed a response arguing that Hackney’s accident was not caused by a

       design defect, the violation of safety rules and warnings by Hackney was misuse

       that constituted a complete defense under IPLA, alterations to the shaft of the

       Machine constituted a complete defense under IPLA, and Hackney’s incurred




       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020      Page 10 of 20
       risk and knowledge of the danger of reaching into the Machine constituted a

       complete bar to recovery, among other things.


[16]   After a hearing, the trial court issued an order granting summary judgment in

       favor of Pendu on February 1, 2019, and held that the “issues of misuse and

       alterations of the equipment as they relate to the holding in [Campbell

       Hausfeld/Scott Fetzer Co. v. Johnson], 109 N.E.3d 953 (Ind. 2018) are dispositive.”

       Appellant’s App. Vol. V at 153. Hackney filed a motion to correct error, which

       the trial court denied. Hackney now appeals.


                                        Discussion and Decision
[17]   When reviewing the grant of summary judgment, our standard of review is the

       same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

       Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

       the shoes of the trial court and apply a de novo standard of review. Id. (citing

       Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

       review of a summary judgment motion is limited to those materials designated

       to the trial court. Ind. Trial Rule 56(H); Thornton v. Pietrzak, 120 N.E.3d 1139,

       1142 (Ind. Ct. App. 2019), trans. denied. Summary judgment is appropriate only

       where the designated evidence shows there are no genuine issues of material

       fact and the moving party is entitled to judgment as a matter of law. T.R.

       56(C). For summary judgment purposes, a fact is “material” if it bears on the

       ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view the


       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 11 of 20
       pleadings and designated materials in the light most favorable to the non-

       moving party. Id. Additionally, all facts and reasonable inferences from those

       facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

       Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

       denied). The initial burden is on the moving party to demonstrate the absence of

       any genuine issue of fact as to a determinative issue, at which point the burden

       shifts to the non-movant to come forward with contrary evidence showing an

       issue for the trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[18]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Henderson v.

       Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. We will affirm upon any theory or basis supported by the designated

       materials. Id. When a trial court grants summary judgment, we carefully

       scrutinize that determination to ensure that a party was not improperly

       prevented from having his or her day in court. Id.


[19]   Hackney’s complaint claimed that the Machine was unreasonably dangerous

       and a defective product under the IPLA. Pursuant to the IPLA, a plaintiff must

       prove that a product was placed into the stream of commerce in a defective

       condition that was unreasonably dangerous to the user and that plaintiff's

       injuries were caused by this dangerous product. Ind. Code § 34-20-2-1. A

       product can be defective within the meaning of the IPLA because of a

       manufacturing flaw, a defective design, or a failure to warn of dangers while

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020       Page 12 of 20
       using the product. Cook v. Ford Motor Co., 913 N.E.2d 311, 319 (Ind. Ct. App.

       2009), trans. denied. In an action based on an alleged design defect in the

       product or based on an alleged failure to provide adequate warnings or

       instructions regarding the use of the product, the party making the claim must

       establish that the manufacturer or seller failed to exercise reasonable care under

       the circumstances in designing the product or in providing the warnings or

       instructions. Ind. Code § 34-20-2-2. To establish a prima facie case of liability

       under IPLA, the plaintiff must show that (1) the product is defective and

       unreasonably dangerous, (2) the defective condition existed at the time the

       product left the defendant’s control, and (3) the defective condition is the

       proximate cause of the plaintiff’s injuries. Coffman v. PSI Energy. Inc., 815

       N.E.2d 522, 527 (Ind. Ct. App. 2004), trans denied.


[20]   The IPLA provides three non-exclusive defenses to a products liability action:

       incurred risk under Indiana Code section 34-20-6-3; misuse of the product

       under Indiana Code section 34-20-6-4; and modification or alteration of the

       product under Indiana Code section 34-20-6-5. All three statutory defenses act

       as a complete bar to recovery in a products liability action, but all three defenses

       must “be proven.” Campbell Hausfeld/Scott Fetzer Co. v. Johnson, 109 N.E.3d

       953, 959 (Ind. 2018).


[21]   Here, in response to Hackney’s complaint alleging that the Machine was a

       defective product due to an alleged design defect, Pendu filed a motion for

       summary judgment, arguing that, among other reasons, Hackney’s injuries

       were caused by his misuse of the Machine, which included failure to read the

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020       Page 13 of 20
       Safety Manual and failure to follow several safety warnings. After a hearing,

       the trial court issued an order granting summary judgment in favor of Pendu

       and held that the “issues of misuse and alterations of the equipment as they

       relate to the holding in [Campbell Hausfeld/Scott Fetzer Co. v. Johnson], 109

       N.E.3d 953 (Ind. 2018) are dispositive.” Appellant’s App. Vol. V at 153. It

       further concluded, “the undisputed evidence is clear that Hackney misused the

       machine in multiple ways that together could not be reasonably expected by

       Pendu (including failing to follow lockout procedures to turn off the machine

       before he attempted to remove a scrap piece from the machine) and that misuse

       was the cause of his injuries.” Id. at 154.


[22]   Hackney contends on appeal that it was error for the trial court to grant

       summary judgment on the basis of the misuse defense. Specifically, he asserts

       that a jury should decide whether the violations of warnings and instructions

       alleged by Pendu even constitute violations and whether they combine in the

       aggregate to constitute misuse. He also argues that a jury must decide if Pendu

       could have reasonably expected him to reach inside an operating, unguarded

       Machine because the evidence supported that, since the Machine did not

       include guards and Pendu included a warning on the Machine that users not

       operate the Machine without guards, it expected an operator like Hackney to

       fail to follow instructions and reach into the Machine while it was operating.

       Hackney maintains that there is no other reason why Pendu would warn

       against operating the Machine without guards under any circumstances, other




       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 14 of 20
       than that Pendu understood that its other written warnings on how to operate

       the Machine might not be followed.


[23]   Misuse is typically a question of fact for a jury to decide. Campbell, 109 N.E.3d

       at 959. However, summary judgment based on misuse is appropriate when the

       undisputed evidence proves that the plaintiff misused the product in an

       unforeseeable manner. Id. Misuse is established as a matter of law when the

       undisputed evidence proves that plaintiff used the product in direct

       contravention of the product’s warnings and instructions. Id. The misuse

       defense acts as a complete bar to recovery in a products liability action but must

       “be proven.” Id. “[I]n order to successfully employ misuse as a defense, the

       seller must show both that the misuse of the product is: 1) the cause of the

       harm; and 2) not reasonably expected by the seller.” Id. at 957. Therefore, if “a

       plaintiff misuses a product but it is not the cause of the harm and/or the misuse

       can reasonably be expected by the seller, then the misuse would not serve as a

       complete defense and comparative fault principles would apply.” Id. at 959.


[24]   Here, the trial court granted summary judgment in favor of Pendu and held that

       the “issues of misuse and alterations of the equipment as they relate to the

       holding in [Campbell] . . . are dispositive.” Appellant’s App. Vol. V at 153. In

       Campbell, Johnson was seriously injured while using a hand-held grinder

       designed by Campbell Hausfeld. 109 N.E.3d at 954. “The [g]rinder is an

       approximately eight-inch, hand-held, air-powered tool intended for grinding,

       polishing, deburring, and smoothing sharp surfaces.” Id. at 955. Johnson did

       not use the tool for any of those intended purposes and, instead, used it to help

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 15 of 20
       a friend do some work on the friend’s truck by “cut[ting] around the truck’s

       headlight opening to accommodate larger headlights.” Id. Johnson “took the

       [g]rinder and attached a cut-off disc to it using a mandrel. Johnson’s friend

       expressed concern about him using the cut-off disc, which was rated lower than

       25,000 RPM, but Johnson used the cut-off disc anyway.” Id. Johnson wore his

       prescription glasses as he cut around the headlights with the grinder, believing

       they were sufficient to serve as safety glasses. Id. While using the grinder, the

       cut-off disc came apart and a piece struck him in the left side of his face,

       breaking his eyeglasses and causing serious injuries to his cheek and eye. Id.


[25]   Johnson sued Campbell Hausfeld, alleging the tool was defective in its design

       and that the manufacturer failed to provide adequate warnings, and Campbell

       Hausfeld sought summary judgment, contending, among other things, that

       Johnson had misused the tool by failing to follow its instructions. Id.

       Specifically, Campbell Hausfeld alleged that Johnson “misused the [g]rinder in

       three ways [in violation of its instructions]: he did not wear proper safety

       glasses; he attached and used a cut-off disc without a safety guard in place; and

       the cut-off disc had an inadequate RPM rating.” Id. at 959.


[26]   Our Supreme Court determined that the misuse statutory defense turned on

       “whether Johnson’s failure to follow the instructions was reasonably expected

       by Campbell Hausfeld.” Id. The Court found, “while Campbell Hausfeld

       could have perhaps reasonably expected a user to not use proper eyewear or for

       a user to attach a cut-off disc without a guard, or for a user to attach something



       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020        Page 16 of 20
       with an improper RPM rating, it was not reasonably expected for a user to

       disregard the safety instructions in all three of these ways.” Id. at 960.


[27]   Here, Pendu alleges that Hackney committed multiple violations of the

       warnings and instructions for the Machine and misused the Machine in several

       ways. Specifically, Pendu asserts that: (1) Hackney failed to turn off the

       Machine before reaching into it; (2) Hackney overreached and did not maintain

       proper balance and footing when he reached into the Machine; (3) Hackney

       leaned over and in front of the Machine, putting his body in front of the

       Outfeed, which was not otherwise accessible due to the placement of the

       conveyor belt; (4) Hackney failed to wear proper apparel by wearing a baggy

       sweatshirt; (5) Hackney ignored his training about the nip points of the

       Machine and his belief that someone had previously lost a finger on the

       Machine; (6) Fibertech failed to ensure that Hackney reviewed the Safety

       Manual, contrary to the warnings that all operators must review it; and (7)

       Fibertech damaged the shaft by using a pipe wrench on it.


[28]   The designated evidence showed that Hackney testified that turning off the

       Machine first would have “obviously” prevented his accident and that he was

       trained to turn off the Machine before removing a jam, and if he had hit one of

       those two stop buttons that he walked past on the way to remove the scrap of

       wood, the accident would not have happened. Appellant’s App. Vol. IV at 22-23,

       28. Evidence also showed that the Safety Manual, the safety training Hackney

       received twice a week and signed attendance forms for attending, and the

       Fibertech Safety Policy, which he signed and initialed, all required him to stop

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020           Page 17 of 20
       the Machine before reaching into the machine to perform service on it, such as

       removing scrap wood. Appellant’s App. Vol. II at 53-63, 95-96; Appellant’s App.

       Vol. IV at 45, 81-90. The evidence further showed that, on the day of the

       accident, Hackney left his normal position at the infeed area of the Machine

       and walked to the end of the Machine where the Outfeed was located to remove

       the scrap wood and reached his body over the still-operating Machine while

       balancing on one foot. Ex. H. As he leaned over the moving Machine, the

       shirttail of Hackney’s loose-fitting sweatshirt got caught in the Machine and

       became entangled. Id. After Hackney’s accident and injury, Fibertech

       investigated and determined the accident was caused by Hackney’s behavior,

       violation of safety rules, and failure to first turn off the Machine. Appellant’s

       App. Vol. III at 81-82; Appellant’s App. Vol. IV at 72, 74-77. The report concluded

       that the “incident’s root cause was behavioral in nature.” Appellant’s App. Vol.

       IV at 77. Additionally, the report concluded that Hackney was injured “when

       his jacket got entangled in a shaft at the end of the [M]achine.” Id. (emphasis

       added).


[29]   The evidence therefore showed that the accident would not have occurred if, by

       Hackney’s own admission, he had turned the Machine off before going to

       remove the scrap wood. Further leading to the accident was the fact that

       Hackney leaned over the moving Machine while not being properly balanced

       on two feet and allowed his sweatshirt to come in contact with the shaft of the

       Machine. It is clear that if Hackney had turned off the Machine, the accident

       would not have occurred, and even if he had not done so, the accident may

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020         Page 18 of 20
       have been avoided if he did not lean directly across the moving Machine, had

       maintained proper footing, and was not wearing a loose-fitting shirt that easily

       caught in the moving shaft. Thus, Hackney’s failure to follow the instructions

       and warnings was the cause of his injuries.


[30]   We must then determine whether Hackney’s failure to follow the instructions

       and warnings was reasonably expected by Pendu. The trial court found that

       “the undisputed evidence is clear that Hackney misused the [M]achine in

       multiple ways that together could not be reasonably expected by Pendu

       (including failing to follow lockout procedures to turn off the [M]achine before

       he attempted to remove a scrap piece from the [M]achine) and that misuse was

       the cause of his injuries.” Appellant’s App. Vol. V at 154. Hackney argues that

       because Pendu included a warning on the Machine that stated “DO NOT

       OPERATE WITHOUT GUARDS,” Appellant’s App. Vol. II at 137, it expected

       an operator like Hackney to fail to follow instructions and reach into the

       Machine while it was operating. He claims that there is no other reason why

       Pendu would include such a warning against operating the Machine without

       guards, other than that Pendu understood that its warnings and instructions on

       how to operate the Machine might not be followed.


[31]   We find the present case to be similar to Campbell, where our Supreme Court

       found that Johnson’s multiple failures to follow the grinder’s instructions were

       the cause of his injuries and taken together, could not be reasonably expected

       by a seller. 109 N.E.3d at 960. Here, Hackney also had multiple failures to

       follow the Machine’s warnings and instructions that were the cause of his

       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020     Page 19 of 20
       accident and injury. While Pendu could have perhaps reasonably expected an

       operator to not follow one of the warnings or instructions, it could not have

       reasonably expected an operator to disregard the safety warnings and

       instructions in all of the ways that Hackney did. Hackney could have avoided

       injury if he had shut the Machine off before reaching into it to remove the piece

       of scrap wood or if he not leaned directly in front of the moving Machine or

       maintained proper footing or worn proper attire that would not have gotten

       caught in the Machine. His multiple failures to follow the Machine’s warnings

       and instructions were the cause of his injuries and taken together, could not be

       reasonably expected by Pendu. We, therefore, conclude that the trial court did

       not err in granting summary judgment in favor of Pendu.


[32]   Affirmed.


       Vaidik, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CT-1080 | April 13, 2020     Page 20 of 20
