                                                                        FILED
                                                                   Nov 01 2018, 11:46 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




                                IN THE

       Indiana Supreme Court
                  Supreme Court Case No. 18S-CT-548

      Campbell Hausfeld/ Scott Fetzer Company
                        Appellant (Defendant below)

                                    –v–

                             Paul Johnson
                         Appellee (Plaintiff below)


            Argued: June 7, 2018 | Decided: November 1, 2018

                  Appeal from the Porter Superior Court
                          No. 64D05-1407-CT-5893

              The Honorable Kathleen B. Lang, Senior Judge

         On Petition to Transfer from the Indiana Court of Appeals
                          No. 64A03-1705-CT-984



                         Opinion by Justice David
Chief Justice Rush, Justice Massa, Justice Slaughter, and Justice Goff concur.
David, Justice.

       Plaintiff was seriously injured after using a tool designed by the
manufacturer. He alleges the tool was defective in its design and that the
manufacturer failed to provide adequate warnings. The manufacturer
argues, among other things, that plaintiff misused the tool by failing to
follow its directions. Today we address whether such misuse serves as a
complete defense for the manufacturer. We find that it does. Under the
facts and circumstances of this case, plaintiff’s misuse is the cause of his
injuries and could not have been reasonably expected by the
manufacturer. Accordingly, we affirm the trial court.


Facts and Procedural History
   Campbell Hausfeld/Scott Fetzer Co. designs power tools that it sells to
consumers through retailers in the United States. It designed a mini air
die grinder, the TL1120 (“the Grinder”). The Grinder is an approximately
eight-inch, hand-held, air-powered tool intended for grinding, polishing,
deburring, and smoothing sharp surfaces. It comes in a box with
wrenches to loosen the metal receiver at the end and to add and remove
different attachments. It does not include a safety guard and such a guard
would prevent use in tight areas and obscure a user’s view.

   The Grinder comes with various warnings and instructions. For
instance, the instruction manual states “[r]ead carefully,” “[p]rotect
yourself . . . by observing all safety information,” that “[f]ailure to comply
with instructions could result in personal injury,” and to “read all
manuals included with this product carefully.” (Appellant’s App. Vol. 2
at 224.) The instructions further state that the user should retain the
instructions for future reference.

   The instructions contain a warning that “[s]afety glasses and ear
protection must be worn during operation.” (Id.) Further, the instructions
tell the user to not use a cut-off disc mandrel on the Grinder unless a
safety guard is in place.




Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018       Page 2 of 12
   On the packaging it is stated in two places that the Grinder “[p]roduces
25,000 RPM” (Appellant’s App. Vol. 3 at 34.) The user is warned to use
only attachments rated for a minimum of 25,000 RPM.

   Plaintiff, Paul Johnson, purchased the Grinder and read its instructions.
He decided to use the Grinder to help a friend do some work on that
friend’s truck headlights. That is, they planned to cut around the truck’s
headlight opening to accommodate larger headlights. Johnson took the
Grinder 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.

   Johnson wore his prescription glasses as he cut around the headlights
with the Grinder. He believed these glasses were sufficient to serve as
safety glasses. 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. Johnson ultimately lost his
left eye.

   Johnson sued Campbell Hausfeld for damages asserting failure to warn
and defective design claims under the Indiana Products Liability Act.
Thereafter, Campbell Hausfeld filed a motion for summary judgment
wherein it argued, among other things, that the designated evidence
established each of the three defenses provided by the Act: misuse,
alteration and incurred risk, and that further, no reasonable jury could
find Johnson less than 51% at fault for his injuries.

   The trial court found that Johnson misused the Grinder by failing to use
safety glasses and that he was at least 51% responsible for his injuries. It
granted summary judgment in favor of Campbell Hausfeld on the
defective design claim but denied summary judgment with respect to the
failure to warn claim. Campbell Hausfeld moved to certify the order for
interlocutory appeal. The Court of Appeals affirmed in part, reversed in
part and remanded finding that Campbell Hausfeld’s motion for
summary judgment should have been denied in its entirety.




Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018     Page 3 of 12
Standard of Review
   When reviewing a summary judgment order, we stand in the shoes of
the trial court. Matter of Supervised Estate of Kent, 99 N.E.3d 634, 637 (Ind.
2018) (citation omitted). Summary judgment is appropriate “if the
designated evidentiary matter shows 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.” Ind. Trial Rule 56(C).


Discussion and Decision
   Under the Indiana Products Liability Act (IPLA), a plaintiff must prove
that a product was placed into the stream of commerce in a defective
condition 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 Act because of a
manufacturing flaw, a defective design or a failure to warn of dangers
while using the product. Baker v. Heye-Am., 799 N.E.2d 1135, 1140 (Ind. Ct.
App. 2003).


      [I]n 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.


   The IPLA provides three non-exclusive defenses to a products liability
action: incurred risk (Ind. Code § 34-20-6-3); misuse of the product (Ind.
Code § 34-20-6-4); and modification or alteration of the product (Ind.
Code § 34-20-6-5). Additionally, comparative fault principles apply in
products liability cases. (Ind. Code § 34-20-8-1). That is, the fault of the



Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018        Page 4 of 12
person harmed as well as the fault of all others who caused or contributed
to the harm shall be compared by the trier of fact in accord with the
comparative fault statutes. Ind. Code § 34-20-8-1(a). The term “fault”
means an act or omission that is negligent, willful, wanton, reckless, or
intentional toward the person or property of others and includes the
“[u]nreasonable failure to avoid an injury or to mitigate damages.” Ind.
Code § 34-6-2-45(a).

   Johnson alleges that the Grinder’s instructions failed to warn him
regarding the dangers of using the Grinder with a cut-off disc but without
a safety guard, and that the Grinder was defective in its design because it
was sold without a safety guard and no information on how to obtain or
use a safety guard. Campbell Hausfeld has alleged all three defenses:
incurred risk, misuse and alteration of the Grinder.

   Today we address whether the affirmative defense of misuse serves as
a complete bar to recovery in a products liability action in light of
inclusion of comparative fault principles in the IPLA, a question this
Court left open in Morgen v. Ford Motor Co., 797 N.E.2d 1146, 1148 n. 3
(Ind. 2003) (“At least two recent decisions have held that under Indiana
products liability law, the defense of misuse is not a complete defense, but
instead an element of comparative fault. . .The parties [ ] make no
argument along these lines and we express no opinion on it.”) We hold
that misuse is a complete defense, but it has to be proven. In this case,
Johnson misused the Grinder in multiple ways that together could not be
reasonably expected by Campbell Hausfeld and that misuse was the cause
of his injuries. Thus, we affirm the trial court’s summary judgment order.


I. Indiana’s Product Liability Law.
     Prior to 1978, Indiana imposed strict liability on manufacturers and
sellers for injuries caused by unreasonably dangerous products based on
the Restatement (Second) of Torts § 402A. See J. I. Case Co. v. Sandefur,
(1964) 245 Ind. 213, 197 N.E.2d 519; Bemis Co., Inc. v. Rubush, 427 N.E.2d
1058 (Ind. 1981), reh’g denied; Reed v. Central Soya Co., Inc., 621 N.E.2d 1069
(Ind. 1993), modified on reh’g. In 1978, the Indiana legislature passed the
IPLA to govern products liability claims under both strict liability and


Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018        Page 5 of 12
negligence theories. See Ind. Code §§ 33-1-1.5-1 through 33-1-1.5-8 (1978).
In 1983, the IPLA was amended to apply to only strict liability actions.

     In 1995, several significant amendments were made to the IPLA. See
Ind. Code §§ 33-1-1.5-1 through 33-1-1.5-10 (1995). For instance, the 1995
Amendments eliminated joint or shared liability, limited strict liability
claims to manufacturing defect claims, and provided that actions against
sellers based on design defects or based on failure to provide adequate
warnings/instructions are to be decided using a negligence standard. Ind.
Code § 33-1-1.5-1 (1995); § 33-1-1.5-3 (1995). The amendments also
adopted comparative fault principles to govern product liability actions.
Ind. Code § 33-1-1.5-10 (1995). In 1998, the IPLA was recodified but no
substantive revisions were made. Ind. Code §§ 34-20-1-1 through 34-20-9-
1.

    When the IPLA was enacted in 1978, it provided four statutory
defenses: 1) incurred risk; 2) product misuse; 3) product alteration; and 4)
conformity with state-of-the-art. Ind. Code § 33-1-1.5-4(b) (1975). Three of
these defenses—incurred risk, product misuse and product alteration—
were retained with the 1995 amendments and remain in effect today. See
Ind. Code § 33-1-1.5-4(b) (1978); Ind. Code § 33-1-1.5-4(b) (1995); Ind.
Code §§ 34-20-6-3 through 34-20-6-5 (2018).


II. Like the other statutory defenses, misuse is a
    complete defense—but it has be proven.
   The misuse defense under the IPLA provides:


      It is a defense to an action under this article (or IC 33-1-1.5
      before its repeal) 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.


Ind. Code § 34-20-6-4.




Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018      Page 6 of 12
   Johnson argues and the Court of Appeals found that this defense is not
a complete one, but rather it is considered with all other fault in the case
under the comparative fault scheme. It is true that since the 1995
Amendment of the IPLA, all fault in products liability cases must be
comparatively assessed. Also, since the Amendment, both our Court of
Appeals and the Seventh Circuit have held that the misuse does not
operate as a complete defense to bar recovery. See Chapman v. Maytag
Corp., 297 F.3d 682, 689 (7th Cir. 2002) (determining that “misuse” falls
within the definition of “fault”); Barnard v. Saturn Corp., a Div. of Gen.
Motors Corp., 790 N.E.2d 1023 (Ind. Ct. App. 2003); Wiegle v. SPX Corp., 729
F.3d 724 (7th Cir. 2013). However, in at least one case, Indianapolis Athletic
Club, Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999),
our Court of Appeals came to the opposite conclusion: that misuse of a
product is a complete defense. This Court has not yet addressed how the
1995 Amendments to the IPLA, which include the addition of comparative
fault principles, impact the statutory defense of misuse.

   Prior to the 1995 Amendments, this Court held that misuse would bar
recovery. Hubbard Mfg. Co., Inc. v. Greeson, 515 N.E.2d 1071, 1073 (Ind.
1987). The reasoning for that defense is because misuse “is considered an
intervening cause that relieves the manufacturer of liability where the
intervening act could not have been reasonably foreseen by the
manufacturer.” Indianapolis Athletic Club, 709 N.E.2d at 1072. This logic is
no less true today, even after the amendments that adopted comparative
fault. Additionally, this Court must presume that the General Assembly
was aware of the common law prior to the 1995 Amendments and did not
intend to change it beyond the express terms of its enactments and the
implications that follow. Johnson v. Wysocki, 990 N.E.2d 456, 466 (Ind.
2013).

   Prior to and since the 1995 Amendments, the other two statutory
defenses that remain—incurred risk and alteration—have been
treated as complete ones. See Vaughn v. Daniels Co. (West Virginia),
Inc., 841 N.E.2d 1133, 1146 (Ind. 2006) (“Incurred risk acts as a
complete bar to liability with respect to negligence claims brought
under the [IPLA].”); Koske v. Townsend Eng’g Co., 551 N.E.2d 437, 441


Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018      Page 7 of 12
(Ind. 1990) (“recovery will be denied an injured plaintiff who had
actual knowledge and appreciation of the specific danger and
voluntarily accepted [incurred] the risk”); Hall v. Graco Inc., 2004 WL
2137655 at *5 (S.D. Ind. 2004 ) (“product alteration is a complete
defense” to a products liability claim); Foley v. Case Corp., 884 F.Supp.
313, 315 (S.D. Ind. 1994) (“Modification or alteration of a product is a
complete defense to certain product liability actions.”) It does not
make sense that these two defenses are complete bars, even after the
amendments, but that misuse is only a consideration after the
amendments. This would violate the doctrine of in pari materia—that
statutes relating to the same subject matter should be construed
together to produce a “harmonious statutory scheme.” Bonnell v.
Cotner, 50 N.E.3d 361, 367 n. 5 (Ind. 2016).


   Further, it would not make sense to retain the statutory defenses at all if
they were only considerations. Statutes are not to be construed in a way
that renders them meaningless. City of Carmel v. Steele, 865 N.E.2d 612, 618
(Ind. 2007). The legislature could have either eliminated the statutory
defenses (it eliminated one of them in 1995: compliance with state-of-the-
art), modified the language of the defenses or explicitly included misuse
in the definition of fault or as part of the comparative fault provision. It
did not. When we interpret statutes, we are mindful of both what they do
say and what they do not say. ESPN, Inc. v. Univ. of Notre Dame Police
Dep't, 62 N.E.3d 1192, 1195 (Ind. 2016) (internal citations omitted).

  Other states have expressly incorporated misuse as part of the
definition of fault under their comparative fault schemes. For example,
Arizona’s statutory definition of fault includes “products liability and
misuse, modification or abuse of a product.“ Ariz. Rev. Stat. § 12-2506(F).
Similarly, Iowa defines fault to include “misuse of a product for which the
defendant would otherwise be liable” Iowa Code § 668.1(1) and
Washington includes “misuse of a product” in its definition of fault.
Wash. Rev. Code § 4.22.015. However, Indiana has not explicitly included
misuse in its definition of fault. The IPLA also omits Model Uniform
Product Liability Act language that makes the misuse defense “subject to




Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018       Page 8 of 12
reduction or apportionment to the extent that the misuse was a cause of
the harm.” MODEL UNIF. PROD. LIAB. ACT. § 112(C).

   The majority view among jurisdictions is that “misuse operates as a
complete bar to recovery, and that misuse of a product, irrespective of the
existence of a product defect, will preclude the manufacturer’s or seller’s
liability for injury or death resulting from use of the product. “ Randy R.
Koenders, Products Liability: Product Misuse Defense, 65 A.L.R. 4th 263
(1988). We see no clear indication in the IPLA that the legislature
intended to adopt the minority approach for Indiana.

   While we acknowledge that the IPLA definition is broad and seems like
it could encompass the definition of misuse, it falls short of actually doing
so. To engraft misuse into the comparative fault section of the statute
would violate the doctrine of in pari materia and render the misuse defense
meaningless. Accordingly, we hold that the misuse defense, like the
alteration and incurred risk defenses, is a complete one.

   This is not to say that any allegation on the part of a seller that a
plaintiff misused the product will suffice. The misuse defense is qualified
by the plain language in the statute. That is, in 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. 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.


III. Johnson’s injuries could have been avoided had
   he followed the instructions, and Campbell
   Hausfeld could not reasonably expect that a
   consumer would misuse the Grinder in three
   distinct ways.
  Misuse is typically a question of fact for a jury to decide. Morgen, 797
N.E.2d at 1149. However, summary judgment based on misuse is


Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018        Page 9 of 12
appropriate when the undisputed evidence proves that the plaintiff
misused the product in an unforeseeable manner. Barnard, 790 N.E.2d at
1029. 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. at 1030-31.

   Campbell Hausfeld alleges that Johnson misused the Grinder in three
ways: 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. As for not wearing safety glasses, Johnson claims
he believed his prescription eyeglasses were sufficient. As for using the
cut-off disc without a guard, the instructions provide: “Do not use a cut-
off disc mandrel on this tool unless a safety guard is in place.”
(Appellant’s App. Vol. III at 201.) Johnson attached a cut-off disc but did
not use a guard. Finally, the instructions on the grinder warn users to use
attachments rated for a minimum of 25,000 RPM and Johnson disregarded
this warning as the cut-off disc he used was rated for 19,000 RPM.

   Johnson admitted he would not have been injured had he followed the
Grinder’s instructions about not using a guard. Safety eyeglasses may not
have prevented all injury caused when the disc broke loose and struck
Johnson in the face, but they would have more adequately protected
Johnson’s eye. With regard to the RPM rating, it is not clear that this
factored into Johnson’s injuries in light of testimony by experts on both
sides acknowledging that under the particular circumstances of the case, it
may not have mattered that the cut-off disc was not the rating called for in
the Grinder’s instructions. In any case, had Johnson used a guard and
safety glasses, his injuries would have been avoided. Thus, his failure to
follow the instructions is the cause of his injuries.

   At issue then is whether Johnson’s failure to follow the instructions was
reasonably expected by Campbell Hausfeld. The trial court concluded
that the safety glasses instruction was a “clear warning and visual
definition of safety glasses that can be understood by a user in any
country, speaking any language.” (Appellant’s App. Vol II. at 21-22.)
However, Johnson argues, and the Court of Appeals found that there was
an issue of material fact regarding whether Campbell Hausfeld could



Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018    Page 10 of 12
foresee a user not using safety glasses. The parties also disagree about
whether the instruction about not using a cut-off disc without a guard
indicates that Campbell Hausfeld could foresee a user not using a guard.

   We find that 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 with an improper
RPM rating, it was not reasonably expected for a user to disregard the
safety instructions in all three of these ways.

   Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, 1344 (7th Cir. 1995), amended
Nov. 13, 1995, amended Nov. 22, 1995 is instructive. There, plaintiff
admittedly ignored 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 at 1343-44. Similarly, in
Barnard, 790 N.E.2d at 1031, our Court of Appeals applied this reasoning
to find a plaintiff who failed to heed multiple warnings misused the
product and that under the circumstances no reasonable trier of fact could
find he was less than fifty percent at fault for his injuries.

   Here, Johnson could have avoided injury had he not used the cut-off
disc or worn safety glasses. He did not do so. His 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.


Conclusion
  We affirm the trial court’s grant of summary judgment for Campbell
Hausfeld and we remand for proceedings consistent with this opinion.


Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018        Page 11 of 12
ATTORNEYS FOR APPELLANT


Peter J. Rusthoven
J. Curtis Greene
Mark J. Crandley
Meredith Thornburgh White
J.T. Larson
BARNES & THORNBURG LLP
Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE,
DEFENSE TRIAL COUNSEL OF INDIANA

Julia Blackwell Gelinas
Robert B. Thornburg
Maggie L. Smith
FROST BROWN TODD LLC
Indianapolis, Indiana

Lucy R. Dollens
QUARLES & BRADY, LLP
Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE,
THE INDIANA LEGAL FOUNDATION

Anne Cowgur
TAFT STETTINIUS & HOLLISTER LLP
Indianapolis, Indiana

ATTORNEY FOR APPELLEE


Theodore L. Stacy
Valparaiso, Indiana

ATTORNEYS FOR AMICUS CURIAE,
INDIANA TRIAL LAWYERS ASSOCIATION
Nicholas C. Deets
Frederick R. Hovde
HOVDE DASSOW & DEETS LLC
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018   Page 12 of 12
