Court of Appeals of Indiana | Memorandum Deci sion 45A05

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Natalie Shrader Burke Costanza & Carberry LLP Merrillville, Indiana A TTORNEY S FOR A PPELLEE Kevin W. Marshall Hobart, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Gasser Chair Company, Inc. , Appellant

- Defendant,

v. 

### Marlene J. Nordengreen , Appellee

- Plaintiff

. December 22, 2016 Court of Appeals Ca se No. 45A05

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- 1226 Appeal from the Lake Superior Court The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D04

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Robb , Judge
.Court of Appeals of Indiana | Memorandum Deci sion 45A05

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# Case Summary and Issue

[1] Gasser Chair Co. (“Gasser”) appeals the trial court’s denial of its motion for judgment on the evidence in Marlene Norde n green’s action against it , raising the sole issue of whether the trial court abused its discretion in denying its motion. Concluding the trial court abused its discretion in denying Gasser’s motion for judgment on the evidence , we reverse and remand with instructions

.



# Facts and Procedural History

[2] Gasser designs and manufactures casino chairs. In July 2008, Gasser sold and delivered approximately 3,300 chairs to the Horseshoe Casino (“Casino”) in Hammond, Indiana. On September, 27, 2009, Nordengreen visited the Casino and pressed her luck at the slot machines. Nordengreen claims she suffered physical harm when she sat down in one of the chairs and the chair dropped , smashing her leg between the bottom of the chair’s se a t and footrest

.

[3] On February 3, 2010, Nordengreen filed a premises liability action against the Casino alleging negligence . On June 23, 2010, the Casino filed a third party complaint against Gasser. On October 14, 2010, Nordengreen amended her complaint to include a products liability claim against Gas ser . Appellant’s Appendix at 27.

[4] On May 2, 2012, the Casino and Gasser each filed a motion for summary judgment. The trial court entered summary judgment in favor of the Casino, but denied Gasser’s motion. Gasser appealed the trial court’s entry of summaryCourt of Appeals of Indiana | Memorandum Deci sion 45A05

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judgment in favor of the Casino and a panel of this court aff irmed the entry

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

[5] In March 2016, t he trial court held a final pre

- trial confer ence with the parties, following which it entered a pretrial order. The order note d Nordengreen claim ed Gasser was liable for manufacturing, selling, and delivering unreasonably dangerous chairs and failed to warn consumers about the chairs’ “propensity t o collapse[.]” Appellant’s App. at 146. Beginning May 2, 2016, the case was tried to a jury. At the conclusion of Nordengreen’s case

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- chief, Gasser moved for judgment on the evidence, arguing Nordengreen failed to present sufficient evidence to suppor t her product s liability claim

. Specifically, Gasser claimed Nordengreen failed to present any evidence of a defect in the chair

. In response, Nordengreen stated she “would withdraw that claim and go with negligence only.” Transcript, Volume IV, at 270. The trial court allowed Nordengreen to withdraw her products liability claim , explaining to Gasser, “Well, I guess technically [Nordengreen has] withdrawn the products liability [claim] so it is no longer

— you got your way but you’re [sic] motion is now

m oot related to products liability.” Id

. Gasser then immediately moved for judgment on the evidence again, arguing the remaining “pure negligence ” claim was no different than Norden green’s product liability claim. Id . at 271. The trial court denied Gass er’s motion.

1 Thereafter, the Casino’s third party complaint against Gasser continued on some claims , Nordengreen’s claim against Gasser continued , and the parties prepared for trial.Court of Appeals of Indiana | Memorandum Deci sion 45A05

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[6] Prior to submitting the case to the jury, the parties and the trial court discussed the jury’s final instructions. Relevant here, the following colloquy occurred in regard to Nordengreen’s proposed final instructions :
[Trial Court:] [ Gasser], do you have an objection to [Nordengreen ’s ] number one? [Gasser:] Well, I guess this is kind of different now because [Nordengreen] dropped h[er] product’s [sic] liability claim. [Trial Court:] Correct. [Gasser:] I don’t know that

— I mean I thin k all we need are the pattern negligence. [Trial Court:] Well, I guess you’re right. . . . I like to include [instructions on] issues for trial, which is kind of what [Nordengreen’s] is, number one, b ut we would have to clean out the stuff about the prod uct’s [sic] liability and just have it be a negligence. [Nordengreen:] Actually, my instruction one was the res ips a. * * * [Trial Court:] I honestly thought that that should com e in. . . . I think the res ips a is appropriate under these circumstances. * * * [Gasser:] I w ould object to that b ecause res ips a, if there is no other explanation and there has been another explanation given in this case that being the way Ms. Nordengreen had her leg positioned under the chair, so I think res ipsa would not be appropriate in this case. [Norden green:] Judge, I believe res ips a is appropriate based on the evidence that Gasser sold the chair knowing that they could expire after a year, that this chair failed for no apparent reason, at least according to Gasser. So, chairs don’t fall without negligence. [Trial Court:] Right. I agree. I think that res ipsa . . . should come in. Let’s see. Number two. [Nordengreen:] Number two is the negligence instruction. . . . That covers when someone sells property to ano ther and it dealsCourt of Appeals of Indiana | Memorandum Deci sion 45A05

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with that property. * * * [Gasser:] I guess this is just becoming confusing because [Nordengreen is] saying [s he’s ] not claiming product’s [sic] liability and this is a

— [Trial Court:] I agree with [Gasser]. I don’t think [instruction two] is appropriate for this fact pattern. * * * [Trial Court:] [Instruction number three] is a warranty. . . . So, no, this is no longer appropriate . . . . Number four. * * * [Gasser:] Number four is again a products. [Trial Court:] Product’s [sic ] liability. [Nordengreen:] Okay. Withdraw that.

Id . at 348

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[7] Shortly following this discussion, Gasser rested and again moved for judgment on the evidence, arguing Nordengreen failed to establish Gasser owed, or breached, any duty of care . Nordengre en countered, “It’s res ipsa loqu i tor and there’s an instruction on it. They [sic] jury can find it.” Id . at 358. The trial court denied Gasser’s motion.

[8] O n May 4, 2016, the trial court submitted the case to the jury. The jury found Gasser 100% at f

ault and awarded Nordengreen $480,000 in damages. Following the jury’s verdict, Gasser renewed its motion for judgment on the evidence, which the trial court denied. This appeal ensued.

2 The final jury instructions are not included in the record.Court of Appeals of Indiana | Memorandum Deci sion 45A05

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# Discussion and Decision
I

. Standard of Review

[9] The purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence. Hitachi Const r
. Mach

. Co., Ltd. v. AMAX Coal Co. , 737 N.E.2d 460, 462 (Ind. Ct. App. 2000), trans. denied . Where all or some of the issues in a case tried before a jury are not supported by sufficient evidence, the trial court shall withdraw such issues from the jury and enter judgment thereon. Ind. Trial Rule 50(A). The grant or denial of a motion for judgment on the evidence is within the trial court’s broad discretion a nd will be reversed only for an abuse of that discretion. Hitachi , 737 N.E.2d at 463. In reviewing a trial court’s ruling on a motion for judgment on the evidence, we are bound by the same standard as the trial court. Kimbrough v. Anderson , 55 N.E.3d 32 5, 336 (Ind. Ct. App. 2016).
We may not substitute our judgment for that of the jury on questions of fact nor should a motion for judgment on the evidence be granted because the evidence preponderates in favor of the moving party. Rather we determine on ly: (a) whether there exists any reasonable evidence supporting the claim; and (b) if such evidence does exist, whether the inference supporting the claim can be drawn without undue speculation.

Id . (citations omitted).Court of Appeals of Indiana | Memorandum Deci sion 45A05

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## II . Indiana Products Liability Act

[10] Gasser argues the trial court abused its discretion in denying its motion for judgment on the evidence at the close of Nordengreen’s case

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- chief. Specifically, Gasser contends Nordengreen voluntarily withdrew her products liability claim and did not pre sent sufficient evidence to show Gasser owed her a duty of care independent of Gasser’s statutory duty under the Indiana Products Liability Act ( the “Act”) . We agree.

[11] The Act governs all actions brought by a user or consumer of a product against a manufac ture r or seller of the product for physical harm caused by the product, “regardless of the substantive legal theory or theories upon which the action is brought.” Ind. Code § 34

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- 1. Under the Act,
[A] person who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer

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

. . . if:
(1) that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition;
(2) the seller is engaged in the business of selling the product; and
(3) the product is exp ected to and does reach the user or consumer without substantial alteration in the condition in which the product is sold by the person sought to be held liable under this article.Court of Appeals of Indiana | Memorandum Deci sion 45A05

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Ind. Code § 34

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.

[12] The parties first dispute whether Nordengreen voluntarily dismissed her products liability claim. In her amended complaint, N ordengreen’s sole claim against Gasser alleged negligence under a products liability theory

. A t the close of Nordengreen’s case

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- chief , Gasser moved for judgment on the evi dence , claiming Nordengreen failed to present evidence to suppo rt her products liability claim

. Nordengreen then requested to withdraw her products liability claim and proceed “ with negligence only [,] ” which the trial court allowed , explaining to Gasser i ts concern as to Nordengreen’s products liability claim

was now moot

. Tr. at 270

. In addition, any confusion regarding Nordengreen’s claim for relief at the conclusion of her case

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- chief is made clear when viewed in light of the party’s discussions reg arding the final jury instructions where the trial court withdrew all instructions pertaining to Nordengreen’s products liability claim . We conclude the record clearly demonstrates Nordengreen withdrew her products liability claim and proceeded under a separate and independent negligence claim

. 3

3 Gasser dedicates much of its brief to arguing the trial court erred in allowing Nordengreen to withdraw her products liabil ity claim and proceed only on a pure negligence claim. Specifically, Gasser cites to Campbell v. Supervalu, Inc. , 565 F.Supp.2d 969 (N.D. Ind. 2008) , for the proposition a consumer or user of a product cannot repackage a products liability claim as an ind ependent negligence claim. Stated differently, Gasser claims Nordengreen

— as a product user seeking damages against the product’s manufacturer for harm caused by the product

— is not allowed as a matter of law to bring a common law negligence claim against t he manufacturer seeking damages suffered as a result of an alleged defect in a product, let alone switch from a products liability claim to a pure negligence claim in the midst of trial. In Campbell , a five

- year - old child

— Michael Campbell

— consumed tainted meat purchased at a local grocery store. Thirteen years later, Michael and his parents filed suit against Supervalu, Inc., alleging “simple” common law negligence. Id . at 974. In its motion for summary judgment, Supervalu argued the Indiana Products Li ability Act subsumed theCourt of Appeals of Indiana | Memorandum Deci sion 45A05

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[13] Next, the parties dispute what effect Nordengreen’s withdrawal of her product s liability claim had on the remainder of her case. As noted above, the A ct governs all claims brought by consumers and users of a product against manufactures or sellers of the product for injuries caused by th e product , “regardless of the substantive legal theory or theories upon which the action is brought.” Ind. Code § 34

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- 1. Stated differently, the Act subsumes , governs, and controls any claim brought by a consumer or user against a manufacturer or seller for injuries caused by the product. See Campbell , 565 F. Supp.2d at 976. Thus, even assuming the law allows Nord engreen to bring a negligence claim independent of her original product s liability claim, see supra note 3, s he was required to establish Gasser owed her a duty of care, Gasser breached that duty, and she suffered harm as a result of the breach , s ee Cook v

. Ford Motor Co. , 913 N.E.2d 311, 319 (Ind. Ct. App. 2009), trans. denied , all of which must be independent of her original products liability claim

. 4 On appeal,

Campbells’ common law negligence claim, and as a result, the Act’s ten

- year statute of repose barred the Campbells from seeking relief. The district court agreed the Campbells could not avoid the Act by merely labeling the claim a s one of “simple negligence,” reasoning the Act governs all actions alleging a product caused physical harm regardless of the substantive legal theory or theories upon the action is brought. Id . at 976; see also Ind. Code § 34

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- 1. Thus, the district court concluded the Campbells’ claim was time

- barred under the Act despite the Campbells’ attempts to avoid bringing a claim under the Act. Id

. We agree Campbell is instructive to an extent and we further agree Gasser’s argument holds some merit. However , we note Gasser’s argument in this regard is similar to its argument Nordengreen did not present evidence to support an independent claim of negligence and given our ultimate agreement with this argument, coupled with the fact Gasser moved for judgment on the evidence for a second time immediately after Nordengreen expressed her intent to proceed under an independent negligence theory, we need not address whether the trial court erred in this regard.

4 At trial, Nordengeen withdrew her products liability c laim and argued res ip s a loquitur provided her basis for relief

. “ Res ipsa loquitur is a rule of evidence which permits an inference of negligence to be based upon the surrounding facts and circumstances of the injury.” Rector v. Oliver , 809 N.E.2d 887, 889 (Ind. Ct. App. 2004) (emphasis added) , trans. denied

. “The doctrine operates on the premise that negligence, like any other fact orCourt of Appeals of Indiana | Memorandum Deci sion 45A05

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Nordengreen does not set forth any independent duty owed by Gasser, and
g iven our review of t he record, namely the evidence presented by Nordengreen during her case

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- chief, we conclude Nordengreen did not present sufficient evidence to show Gasser owed her any duty of care independent of Gasser’s duty under the Act. 5

[14] In sum, Nordengreen voluntarily withdrew her products liability claim and noted her intent to proceed under a theory of negligence independent of a theory of negligence under the Act at the close of her case

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- chief. Gasser then moved for judgment on the evidence, claiming Nordengreen failed to show any other duty of care owed by Gasser independent of its duty under the Act. We agree Nordengreen failed to show any duty of care owed by Gasser , and as a result, Nordengreen did not present evidence to support a viable claim f or relief

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

condition, may be proved by circumstantial evidence.” K

- Mart Corp. v. Gipson , 563 N.E.2d 667, 669 (Ind. Ct. App. 1990) , trans. denied

. Thus, the doctrine of res ipsa loquitur in products liability cases allows an injured consumer or user to rely on circumstantial evidence to prove a defect in a product. See Ford Motor Co. v. Reed , 689 N.E.2d 751, 753

- 56 (Ind. Ct. App. 19 97) (discussing the applicability of res ipsa loquitor in products liability cases). Here, Nordengreen’s contention at trial that res ipsa loquitur supported her claim for relief holds no merit given the fact she had already withdrawn her products liabilit y claim and res ipsa loquitur is not in itself an independent cause of action.

5 Nordengreen argues Gasser has waived this claim on appeal because it did not object to jury instructions regarding negligence . Although Nordengreen’s arguments are difficult to follow, we note Gasser immediately moved for judgment on the evidence after Nordengreen voluntarily dismissed her products liability claim and noted her intention to proceed on a theory of negligence independent of her products liability claim. To the extent Nordengreen argues Gasser waived any claim regarding a negligence cause of action for failure to object to the final jury instructions, we disagree. See TRW Vehicle Safety Systems, Inc. v. Moore , 936 N.E.2d 201, 224 (Ind. 2010) (noting a claim on a ppeal challenging the sufficiency of the evidence is not waived “when a party fails to object to jury instructions informing the jury about the elements of an issue and explaining how to proceed upon its findings”).Court of Appeals of Indiana | Memorandum Deci sion 45A05

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judgment on the evidence and we reverse and remand to the trial court with instructions to enter judgment in favor of Gasser.



# Conclusion

[15] The trial court abused its di scretion in denying Gasser’s motion for judgment on the evidence. Accordingly, we reverse and remand with instructions for the trial court to enter judgment in favor of Gasser.

[16] Reversed and remanded.

M ath ias, J., and Brown, J., concur.