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

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- 984

Opinion by Justi ce David Chief Justice Rush, Justice Massa, Justice Slaughter, and Justice Goff concur.Indiana Suprem e Court | Ca se No. 18S

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- 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 misu s ed the tool by failing to follow its directions. Today we address whether such misuse serves as a complete defen se 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 expect ed by the manufacturer

. Accordingly, we affirm the trial court.



## Fact s 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 incl ude a safety guard and such a guard would prevent use in tight areas and obscure a user’s view.
The Gri n der comes with various warnings and instructions

. For instance, the instruction manual state s “[r]ead carefully,” “ [ p ] rotect yourself

. . . by observing all safety info rmation,” that “ [ f ] ailure to comply with inst ructions 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 instr uctions 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 guar d is in place

.Indiana Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 3 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 Gr inder 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 he adlight opening to accommodate larger headlight s

. 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 us ed the cut

- off disc anyway. Johnson wore his prescription glasses as he cut around the headlights with the Gr i nder. He believed the se 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 che e k 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 f or 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 desi gn claim but denied summary judgment with respect to the failure to warn claim. Campbell Hausfeld moved to certify the order for interlocutory appeal. T he 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 Suprem e Court | Ca se No. 18S

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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 om itted)

. 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 Decisi on 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 dangerou s pro duct. 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. 200 3).
[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 fa iled 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 alter ation 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 theIndiana Suprem e Court | Ca se No. 18S

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- 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 instruc tions 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 inf ormation on how to obtain or use a safe ty guard. Campbell Hausfeld has alleged all three defenses : incurred risk, misuse a nd 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 (In d. 2003) ( “At least two r e cent decisions have held that under Indiana products liability law, the defense of m isuse is not a complete defense, but instead an element of comparative fault. . . The parties [ ] make no argument along these l i nes and we express no opinion on it.”) We hold that mi s use is a complete defense, but it has to be proven. In this case, Johns on 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. T hus, 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 selle r s for injuries caused by unreasonably dangerous pro ducts 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), r eh’ 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 liabilit y andIndiana Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 6 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 am endments 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. In d. Code § 33

- 1

- 1.5

- 1 (1995) ; § 33

- 1

- 1.5

- 3 (1995)

. The amendments also adopted comparative fault pri nc iples to govern product liability actions. Ind. Code § 33

- 1

- 1.5

- 10 (1995). In 1998, the IPL A was recodified but no substantive revisions were made. Ind. Code § § 3 4

- 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 a lteration ; and 4) conformity with state

- of

- the

- art. Ind. Code § 33

- 1

- 1.5

- 4(b) (1975)

. T h ree 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 Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 7 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 unde r the comparative fault scheme. It is true that sin ce the 1995 Amendment of the IPLA, all fault in products liability cases must be comparatively assessed. Also, s ince the Amendment, both our Court of Appeals and the Seventh Circuit have h eld that the misuse does not operate as a complete defense to bar r ecovery. See Chapman v. Maytag Corp., 297 F.3d 682 , 689 (7 th Cir. 2002) ( determin ing 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. S PX Corp ., 729 F.3d 724 (7 th 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 mi s use of a product is a complete defense

. T his Court has not yet addressed how the 1995 Amendments to the IPL A , which include the addition of comparative fault principles , impact the statutory defense of misuse

. Prior to t he 1995 Amendments, this Court held that misu s e would bar recovery. Hubbard Mfg. Co., Inc. v . Greeson , 515 N.E.2d 1071, 1073 (Ind. 1987). The reasoning for that defense is because mi suse “is considered an intervening cause that relieves the manufacturer of liability where the intervening act could n ot 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 Ass embly 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 A mendments , 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 negl igence claims brought under the [IPLA ] .”); Koske v. Townsend Eng ’ g Co., 551 N.E.2d 437, 441Indiana Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 8 of 12 (Ind. 1990) (“ recovery will be denied an injured plaintiff who had actual knowledge and appreciation of the specific dan g er and voluntarily acc epted [incurred] the ri sk ” ); 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 complet e defense to certain product liability actions .”) It does not make sense that these two defenses are complete bar s , even after the amendments , but that misuse is only a consideration after the amendment s . This would violate the doctrine of in par i materi a

— 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 t o retain the statutory defenses at all if they were only considerations . Statutes are not to be const rued 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. “ A riz. Rev. St at . § 12

- 2506 (F)

. Similarly , I owa defines fau lt 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 toIndiana Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 9 of 12 reduction or apportionment to the extent that the misuse was a cause of the harm.” M ODEL U NIF

. P RO D

. L IAB

. A CT . § 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 o r death resulting from use of the product. “ Randy R. Koenders, Products Liability: Product Misuse Defense , 65 A.L.R. 4 th 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

. T o engraft misuse in to the comparative fault section of the statute would violate the doctrine of in par i materi a 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 m isuse defense is qualified by the plain language in the statute

. That is, in order to successfully

em ploy misuse as a defense, the seller must show both that the misuse of the product is : 1) the cause of the harm ; and 2) no t 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 wo uld apply.



## III. Johnson’s injur ies could have been avoided had he followed the instructions , and Campbell Hausfeld could not reasonably expect that a consumer would mi s use the Grinder in three distinct ways.
Misuse is typically a question of fact for a jury to decide. Morge n , 797 N.E.2d at 1149. However, summary judgment based on mi s use isIndiana Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 10 of 12 appropriate when the undisputed evidence proves that the plaintiff misused the product in an unforeseeable manner. Barn ard , 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 10 30

- 31

. Campbell Hausfeld alleges that J ohnson 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 b elieved 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 a t 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 admit ted he would not have been injured ha d 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 mor e 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 ha ve 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 avoid ed

. Thus, his failure to follow the instructions is the cause of hi s 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 tha t can be understood by a user in any country, speaking any language.” (Appellant’s App. Vol II. at 2 1

- 22 .) However, J oh nson argues, and the Court of Appeals found that there was an issue of material fact regarding whether Campbell Hausfeld couldIndiana Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 11 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 indicat es that Campbell Hausfeld could foresee a user not using a guard.
We find that while Campbell Hausfeld could h ave perhaps reasonably expected a user to not us e 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 instru ctions 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 wo uld 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 pla intiff 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 c ut

- 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 Suprem e Court | Ca se No. 18S

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- 548 | November 1, 2018 Page 12 of 12 ATTORNEYS FOR APPELL ANT
Peter J. Rusthoven J. Curtis Green e Mark J. Crandley Meredith Thornburgh White J.T. Larson BARNES & THORNBURG LLP Indianapolis, Indiana

ATTORNEYS FOR A MICUS CURIAE, DEFENSE TRIAL COUNSE L 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 A MICUS CURIAE, THE INDIANA LEGAL FO UNDATION
Anne Cowgur TAFT STETTINIUS & HOLLISTER LLP Indianapolis, Indiana

ATTORNEY FOR APPELLE E
Theodore L. Stacy Valpa raiso, Indiana

ATTORNEYS FOR A MICUS CURIAE, INDIANA TRIAL LAWYER S ASSOCIATION Nicholas C. Deets Frederick R. Hovde HOVDE DASSOW & DEETS LLC Indianapolis, Indiana