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.
Indiana Supreme Court | Case No. 18S-CT-548 | November 1, 2018 Page 2 of 12

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. 
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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. 
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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 5 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 
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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. 
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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 
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(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-theart), 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 
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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 
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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 cutoff 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 cutoff 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 
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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 12 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 APPELLE E

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