Products Liability

Caution tape on burnt itemsProducts liability is a cause of action which entitles users of defective products to recover for injuries they receive from their use of the products. The law may hold the manufacture of the product strictly liable for injuries that are caused by the product; however, expert testimony is almost always necessary to prove the claim and the manufacturer will often argue that the injured party misused their product which can be a defense. The following is a brief discussion of the state of the law in the Indiana.

The Indiana Products Liability Act (“Act”) governs all actions brought by a user or consumer of a product, “regardless of the substantive legal theory upon which the action is brought.” Ind.Code § 34-20-1-1. Indiana Code section 34-20-2-1 of the Act provides as follows:

[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 or to the user’s or consumer’s property is subject to liability for physical harm caused by that product to the user or consumer or to the user’s or consumer’s property….

“Physical harm” is defined as: bodily injury, death, loss of services, and rights arising from any such injuries, as well as sudden, major damage to property. The term does not include gradually evolving damage to property or economic losses from such damage.

Ind.Code § 34-6-2-105. For purposes of the Act, “consumer” includes “any bystander injured by the product who would reasonably be expected to be in the vicinity of the product during its reasonably expected use.” Id. § 34-6-2-29. Who qualifies under this statutory definition is a legal question, to be decided by the court.

Indiana Code section 34–20–2–1 states the grounds for a products liability action:

[A] person who leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer or to the user’s or consumer’s property is subject to liability for physical harm caused by that product to the user or consumer or to the user’s or consumer’s property 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 expected 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.

Indiana case law has further come to define “sudden, major damage” as damage which is quick, unexpected and of a calamitous nature. However, a person may not recover for “sudden, major damage,” “caused by a defective product unless the product also damages other property or injures a person.” “Other property” is that which is “wholly outside and apart from the product itself.” Moreover, “the Act does not use the terms ‘product’ and ‘property’ interchangeably,” as “[t]he language of the Act contemplates the defective product acting on some other property causing some harm to it.” Accordingly, a person may not recover under the Act when only the product itself has been destroyed.

Indiana Code section 34–20–6–4 provides an affirmative defense to a products liability claim when a product is misused. The statute reads:

It is a defense to an action under this article … 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.

Foreseeable use and misuse are typically questions of fact for a jury to decide. However, some courts have granted summary judgment on the defense of misuse. A threshold issue is whether the affirmative defense of misuse acts as a complete bar to recovery in a products liability action. This court has stated in dicta in previous cases that misuse is a complete defense to a products liability claim. However, the Indiana courts believe that the defense of misuse should be compared with all other fault in a case and does not act as a complete bar to recovery in a products liability action.

In 1995, the Indiana General Assembly required that all fault in products liability cases be comparatively assessed:

(a) In a product liability action, the fault of the person suffering the physical harm, as well as the fault of all others who caused or contributed to cause the harm, shall be compared by the trier of fact in accordance with [the comparative fault act].

(b) In assessing percentage of fault, the jury shall consider the fault of all persons who contributed to the physical harm, regardless of whether the person was or could have been named as a party, as long as the nonparty was alleged to have caused or contributed to cause the physical harm.

Ind.Code § 34–20–8–1.

For purposes of the products liability act, the legislature defined “fault” as:

… an act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term includes the following:

(1) Unreasonable failure to avoid an injury or to mitigate damages.

(2) A finding under Ind.Code 34–20–2 … that a person is subject to liability for physical harm caused by a product, notwithstanding the lack of negligence or willful, wanton, or reckless conduct by the manufacturer or seller.

Ind.Code § 34–6–2–45(a). As stated above, misuse is a defense to a products liability action where “a cause of the physical harm is a misuse of the product by the claimant … not reasonably expected by the seller.” Ind.Code § 34–20–6–4. The Indiana Courts have further defined misuse as use for a purpose or in a manner not foreseeable by the manufacturer. By specifically directing that the jury compare all “fault” in a case, we believe that the legislature intended the defense of misuse to be included in the hoses comparative fault scheme. A plaintiff’s misuse falls within the statutory definition of “fault” as an “act or omission … that is … intentional toward the … property of others,” including an “unreasonable failure to avoid an injury or to mitigate damages.” Ind.Code § 34–6–2–45(a). There is also nothing in the comparative fault statute indicating misuse is to be exempted from the scope of the fault requirement. Thus, the Indiana Courts hold that the defense of misuse no longer acts as a complete defense under the comparative fault scheme and will review any misuse under principles of comparative fault.

Attorney Gladish has been involved in a number of products cases, including the pedicle screw federal multi-district litigation. Another example is of a products case handled by Attorney Gladish is when a hydraulic hose exploded in the hand of a worker resulting in the working losing a portion of his hand. Attorney Gladish was able to get $(Rule 7.2 does not allow Attorney Gladish to list this amount) for the worker. The hose is shown in the above picture.