# Bemis Co., Inc. v. Rubush

> Indiana Supreme Court · November 12, 1981 · 427 N.E.2d 1058

URL: https://www.frixlaw.com/law-library/cases/9721496

## Case

- **Full name:** BEMIS COMPANY, INC., and Wabash Products, Division of Bemis Co., Inc., Appellants, v. Gerald G. RUBUSH and Phyllis C. Rubush, Appellees
- **Court:** Indiana Supreme Court
- **Decided:** November 12, 1981
- **Citations:** 427 N.E.2d 1058; 1981 Ind. LEXIS 897
- **Precedential status:** Published
- **Opinion:** Dissent by DeBRULER
- **Judges:** Pivarnik, Givan, Prentice, Hunter, Debruler
- **Cited by:** 63 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9721496

## How later opinions describe it (automated extraction)

- holding that a manufacturer has “no duty to warn if the danger is open and obvious”
- discussing common-law principles of strict liability that predated the IPLA and related to the expectations of an ordinary consumer

## Opinion text

DeBRULER, Justice
dissenting.
The Court of Appeals concluded that the trial judge correctly instructed the jury on the strict liability claim. I agree. The Products Liability Act was not in existence at the time of the trial below. J. I. Case Co. v. Sandefur, (1963) 245 Ind. 213 , 197 N.E.2d 519 , had held that privity of contract between the manufacturer and injured user was no longer a necessary element in a suit by the latter against the former for negligent manufacture of a product with hidden defects. Ayr-Way Stores, Inc. v. Chitwood, (1973) 261 Ind. 86 , 300 N.E.2d 335 , following its predecessor cases in the Courts of Appeal, had held that the negligence of a manufacturer need not be proven in a suit against it by one injured through use of its product, and also changed the formulation of the basic duty of the manufacturer towards users of its product. J. I. Case Co. v. Sandefur, supra, regarded the legal duty of the manufacturer to be to avoid hidden defects and concealed dangers in its products. Ayr-Way Stores, Inc. v. Chitwood, supra, requires the manufacturer to avoid defective conditions unreasonably dangerous to users. The question of the *1065 manner in which courts should deal with evidence that the defective condition of a product would be open and obvious to the average user in the aftermath of Ayr-Way Stores, Inc., was not addressed by this Court. The trial judge below responded in substance by instructing the jury that it was authorized to consider evidence of the fact that any defective condition was open, apparent, and obvious to the user, in determining whether the machine was defective and unreasonably dangerous in having no guard system or in providing no adequate warnings but that a finding of the open and obvious defect would not in and of itself necessarily preclude recovery. Thus, in the trial court’s mind, and I think correctly so, “hidden defects and concealed dangers” was subsumed within the new standard, “defective condition unreasonably dangerous”, and the new focus was no longer upon whether the defects and dangers of the product were hidden and concealed, but upon whether they were unreasonable. Hidden and concealed defects and dangers may be unreasonable, and again they may not be. Open and obvious dangers may be reasonable, and again they may not be. Dangers in machines like the batt packer can, where the machine is started and stopped many times within the space of an hour in an assembly-line, mind-dulling fashion, under the standard applicable here, be both open and obvious and unreasonable, since knowledge of them would not arm the user to avoid injury.
The operator of this machine activated two phases by a single manual button. A button was also provided at the same location to shut the machine off. Upon activation, the clamps closed, thereby securing the paper bag to the spout and simultaneously the shroud descended. During normal operation it was sometimes necessary to hold the paper bag with the hand until the bag clamp set. Bemis concedes this hands-on necessity. Obviously, given this necessity, it was often necessary for the operator to hold the bag on the spout with one hand and activate the clamp with the other, while still in a position to be struck by the descending shroud. There was no safety device which would automatically stop the descent of the shroud in the event that the operator was caught in the machine and the shroud met resistance. One could only shut the machine down manually in such emergency circumstances.
A reasonable trier of fact could look to this evidence and reasonable inferences therefrom, and reasonably conclude that it is more probable than not that this machine as manufactured was in a defective condition unreasonably dangerous to the user. Any power-driven machine which is designed so as to require the operator to keep a part of the body in a position to be cut, mashed, or struck, until the power is engaged and its operation commenced, presents a case for the jury, on this element of the strict liability claim. In operation, this bagging machine required the operator to keep his hand and arm at the spout, under the arc traveled by the shroud, when activating the machine.
In order to prove a strict liability claim, the plaintiff • must also present evidence that he has been injured by the product. Cornette v. Searjeant Metal Products, Inc., (1970) 147 Ind.App. 46 , 258 N.E.2d 652 . The above-mentioned evidence and reasonable inferences therefrom is sufficient to warrant the trier of fact in concluding that it is more probable than not that plaintiff was injured by the product. He was required on occasion to use his hands to hold the bag on the spout so that it would be caught under the clamp. His hand was in fact caught under the clamp during operation, and he was held close to the machine and crushed by the descending shroud on it. The sufficiency of evidence on other elements of the claim is not in issue. I believe, therefore, that the trial court correctly put this case to the jury, and must therefore dissent to the result reached by this Court.
HUNTER, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721496. Public record. Not legal advice.