# Bemis Co., Inc. v. Rubush

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

URL: https://www.frixlaw.com/law-library/cases/9721497

## 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 Hunter
- **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/9721497

## 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

HUNTER, Justice
dissenting.
I must respectfully dissent from the majority opinion. While references to erroneous instructions, improperly admitted evi *1066 dence, and conflicting testimony occur throughout the opinion, the remedy granted by the majority reveals the rule of law laid down therein. That the majority directs the trial court to “enter judgment for defendants-appellants Bemis Company, Inc., and Wabash Products, Division of Bemis Company, Inc.” (emphasis added) unmistakably indicates its decision rests on a singular proposition: recovery for injuries suffered at the hands of an “open and obvious danger” are barred as a matter of law under this jurisdiction’s interpretation of Section 402A of the Restatement (Second) of Torts (1965). Erroneous instructions or improperly admitted evidence would warrant only a new trial, while the standard of review incumbent upon us — in view of the fact the jury found for plaintiff Rubush— would require us to affirm the judgment entered against Bemis Company, Inc., and its subdivision (hereinafter collectively referred to as “Bemis Company”).
Numerous considerations not discussed by the majority surround the issue before us. Those concerns were recognized by the Court of Appeals which, based on its extensive analysis, rejected the broad and sweeping rule the majority adopts today as the law of this jurisdiction. For the unanimous Court of Appeals, Judge Neal defined the more moderate stance prevalent among jurisdictions which have considered the question before us:
“The proper role of the open and obvious rule is that it is but one of the factors which must be considered in determining whether a product is in a defective condition unreasonably dangerous. This, like the determination of negligence, requires judgment in a given situation. This is a question for the determination of the jury under proper instructions in any given case. Gilbert [v. Stone City Const. Co., Inc. (1976) 171 Ind.App. 418 , 357 N.E.2d 738 ] supra. The trier must determine from the evidence, including a consideration of evidence of any open and obvious dangerous characteristics of a product, along with other factors, the ultimate question of whether the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer, with the ordinary knowledge common to the community.” Bemis Co., Inc. v. Rubush, (1980) Ind.App., 401 N.E.2d 48, 57 ; [emphasis added].
Similarly, the extensive analysis of the precise question before us in Note, Indiana’s Obvious Danger Rule for Products Liability, 12 Ind.L.Rev. 397 (1979) culminates in the conclusion that the position adopted by the majority is a “harsh and anachronistic rule” which defies the considerations underlying the law of products liability. Id. at 398. In virtually prescient fashion, the commentator has contemplated and decided the possibility that dictum contained in our federal diversity case law would lead us to the position the majority adopts today. Id.
Other jurisdictions, however, have rejected outright the notion that under the law of products liability, recovery for injuries sustained at the hands of an “open and obvious” or “patent” danger should be barred as a matter of law. See, e. g., Byrns v. Riddell, Inc., (1976) 113 Ariz. 264, 267 , 550 P.2d 1065, 1068 (“We do not subscribe to this ‘patent-latent’ distinction.... ”); Pike v. Hough Co., (1970) 2 Cal.3d 465, 474 , 85 Cal.Rptr. 629, 635 , 467 P.2d 229, 235 (“. . . the modern approach does not preclude liability solely because a danger is obvious.”); Auburn Mach. Works Co., Inc. v. Jones, (1979) Fla., 366 So.2d 1167 (“We reject the [patent danger] doctrine.... ”); Byrnes v. Economic Machinery Company, (1972) 41 Mich.App. 192, 202 , 200 N.W.2d 104, 109 (“. . . awareness alone does not preclude negligence.”); Brown v. North Am. Mfg. Co., (1978) 176 Mont. 98, 106 , 576 P.2d 711, 717 (“We reject such a rule [open and obvious danger].”); Bexiga v. Havir Mfg. Co., (1972) 60 N.J. 402, 412 , 290 A.2d 281, 286 (“It would be anomalous to hold that defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.”); Micallef v. Miehle Co., (1976) 39 N.Y.2d 376, 379 , 384 N.Y.S.2d 115 , 348 N.E.2d 571, 573 (“The time has come to depart from the patent danger rule.... ”); Dorsey v. Yoder Com *1067 pany, (E.D.Pa.1971) 331 F.Supp. 753, 759 (applying Pennsylvania law) (“. . . even though the danger of unguarded rotary blades was obvious to plaintiff, this does not ipso facto preclude recovery.”); Palmer v. Massey-Ferguson, Inc., (1970) 3 Wash. App. 508, 517 , 476 P.2d 713, 719 (“The law, we think ought to discourage misdesign rather than encouraging it in its obvious form.”).
In Micallef v. Miehle Co., supra, New York’s highest Court overruled Campo v. Scofield, (1950) 301 N.Y. 468 , 95 N.E.2d 802 , which has long been recognized as the landmark decision in support of the “open and obvious” or “patent” danger rule. Not insignificantly, Campo was relied upon by this Court in J. I. Case Company v. Sandefur, (1964) 245 Ind. 213 , 197 N.E.2d 519 , wherein we rejected the rule that privity of contract is necessary to maintain a cause of action against the manufacturer of a product. In Sandefur , we cited Campo in the following context:
“As stated by the leading authorities, public policy has compelled this gradual change in the common law because of the industrial age where there is no longer the usual privity of contract between the user and the maker of a manufactured machine. On the other hand, there must be reasonable freedom and protection for the manufacturer. He is not an insurer against accident and is not obligated to produce only accident-proof machines. The emphasis is on the duty to avoid hidden defects or concealed dangers. Campo v. Scofield (1950), 301 N.Y. 468 , 95 N.E.2d 802 .” Id., 245 Ind. at 222 , 197 N.E.2d at 523 .
It is this citation to Campo , together with the emphasis in Sandefur on the concealed danger at issue there, that prompted the dictum in our federal diversity cases from which the majority extracts its extreme position. See, e. g., Posey v. Clark Equipment Co., (7th Cir. 1969) 409 F.2d 560 (citing Sandefur for the proposition that “the defect must be hidden”); Schemel v. General Motors Corp., (7th Cir. 1967) 384 F.2d 802 (relying on Sandefur and Campo for the proposition that a manufacturer’s duty is to avoid “latent or concealed dangers”); Evans v. General Motors, (7th Cir. 1966) 359 F.2d 822, 824-5 (quoting Campo for the proposition that a manufacturer need not “render” a product “more safe where the danger is obvious”). The origin, development, and limitations of our federal case law are fully analyzed in Note, Indiana’s Obvious Danger Rule for Products Liability, supra, and for purposes of brevity, need not be discussed in the context of this dissenting opinion. It is conceded the language of these decisions provides support for the “open and obvious” bar, as the majority has stated; it is also acknowledged the federal diversity authority is not binding on us insofar as the point of law at issue is concerned. Chaffin v. Nicosia, (1974) 261 Ind. 698 , 310 N.E.2d 867 .
So it is appropriate and prudent that we assess the validity of the “open and obvious danger” rule in the light of the rationale upon which other jurisdictions have rejected it. Those analyses rest on a common premise: prohibiting recovery as a matter of law for injuries sustained at the hands of an open and obvious danger defeats the most fundamental considerations which prompted recognition and implementation of Section 402A in our courts of law.
Section 402A embodies the concept of “strict liability” in tort. First embraced in this jurisdiction in Cornette v. Searjeant Metal Products, Inc., (1970) 147 Ind.App. 46 , 258 N.E.2d 652 ; Perfection Paint & Color Co. v. Konduris, (1970) 147 Ind.App. 106 , 258 N.E.2d 681 ; and Ayr-Way Stores, Inc. v. Chitwood, (1973) 261 Ind. 86 , 300 N.E.2d 335 , the concept rests on twin propositions: (1) the manufacturer of a product sold on the open market undertakes and assumes a responsibility to the public to produce a reasonably safe product; and (2) the public justifiably relies on the expertise of the manufacturer in its expectation that the product is designed to afford reasonable safety in its foreseeable and intended uses. Restatement (Second) of Torts, § 402A, Comment c. These bedrock considerations are supplemented with the policy that primary responsibility for product safety must *1068 lie with the manufacturer who, in addition to his expertise, is in the position to distribute the engineering and production costs of making products safe for their reasonably foreseeable and intended uses. Id.
It is these considerations which have prompted our courts to remove products liability from the realm of general negligence principles into the arena of strict— but not absolute — liability. It has never been nor should it ever become the rule that a manufacturer is liable for each and every injury suffered in connection with a product; that would clearly be illogical, for the manner in which a product is used must inevitably bear on the question of fault for any injury.
But while absolute liability is not imposed on manufacturers, their responsibilities are elevated beyond the scope of negligence principles. The concept of strict liability in tort places special emphasis on “fault” liability without “connotation of moral blame,” as Dean Prosser has explained:
“There is a broader sense in which ‘fault’ means nothing more than a departure from a standard of conduct required of a man by society for the protection of his neighbors; and if the departure is an innocent one, and the defendant cannot help it, it is none the less a departure, and a social wrong. The distinction still remains between the man who has deviated from the standard, and the man who has not. The defendant may not be to blame for being out of line with what society requires of him, but he is none the less out of line.
“In this broader sense there is ‘fault’ in much innocent conduct. Tort liability never has been inconsistent with the ignorance which is bliss, or the good intentions with which hell is said to be paved.
A trespasser is not excused by the honest, reasonable belief that the land is his own; .... There are many situations in which a careful person is held liable for an entirely reasonable mistake. In all this there is nothing new. Socially, and legally, these defendants are at fault; whether they are individually so, in spite of the fact that they are blameless, appears to be entirely a matter of definition, rather than substance, and the argument leads only to a pointless dispute over the meaning of a word.” Prosser, Law of Torts, ch. 13, p. 493-4 (4th Ed. 1971) [footnotes omitted].
What is demanded of manufacturers by the strictures of Section 402A is that products must not be “unreasonably dangerous” as employed in their reasonably foreseeable or intended use. Restatement (Second) of Torts, § 402A(1).
Whether a manufacturer has satisfied the standard is dependent on the facts of each case; the duty may be violated in various ways, as the Court of Appeals summarized in the instant case:
“In addition to the open and obvious rule, various other rules and concepts have been developed by the courts in the application of § 402A. At least three types of unreasonably dangerous defects may exist under § 402A. A product may be defective because of (1) manufacturing flaws, (2) defective designs, and (3) failure to supply complete information about the product’s dangers. Burton [v. L. O. Smith Foundry Products Co. 529 F.2d 108 (7th Cir. 1976)] supra. Restatement (Second) of Torts § 402A, Comments j and k. A product, although virtually faultless in design, material and workmanship, may be considered defective so as to impose strict liability where the manufacturer fails to discharge a duty to warn or instruct with respect to potential dangers in the use of the product. Nissan Trampoline Company [v. Terre Haute First Nat’l Bank (1975) Ind.App., 332 N.E.2d 820 ] supra. A product may fail to meet reasonable safety expectations by failing to cope with foreseeable mishaps, by lacking feasible safety devices. Gilbert v. Stone City Construction Company, Inc., (1976) [ 171 Ind.App. 418 ] 357 N.E.2d 738 . Misuse of a product and incurred risk are defenses. Dias v. Daisy-Heddon, (1979) Ind.App., 390 N.E.2d 222 . Unavoidably dangerous, but useful and desirable, products exist and are marketed, *1069 but liability does not attach if adequate warning and instructions are given. Restatement (Second) of Torts § 402A, Comment k.” Bemis Co., Inc. v. Rubush, supra, 401 N.E.2d at 56 .
Here, as the majority has acknowledged, the allegation faced by Bemis Company is that their product, the batt-packer, was defective in its design. The response of Bem-is Company, which is adopted by the majority, is that a product designed so that its danger is “open and obvious” is necessarily not “unreasonably dangerous.”
It is a proposition replete with irony. Whereas Section 402A has universally been interpreted to require manufacturers to avoid latent dangers, they are nonetheless told all they need do to escape liability is to make those dangers patent. It is to say that a manufacturer should refrain from installing protective guards on a product, for those guards might only serve to make the danger less “open and obvious.” The rule ignores the focus of Section 402A— whether the manufacturer, without impairing the functional capacities of the product and with reasonable additional costs — could have rendered the product reasonably safe. The rule, in short, as many jurisdictions have expressly recognized, encourages misdesign in its obvious form. Palmer v. Massey-Ferguson, Inc., supra; Brown v. North Am. Mfg. Co., supra; Dorsey v. Yoder Company, supra; Auburn Mach. Works Co., Inc. v. Jones, supra; Micallef v. Miehle Co., supra; Pike v. Hough Co., supra.
Courts and commentators have elaborated on the considerations surrounding products liability which weigh against a flat bar to recovery for injuries suffered at the hands of an open and obvious danger. It has been recognized that notwithstanding the patent nature of a danger, the user of a product may not recognize every risk which his actions entail, nor fully appreciate the gravity of the harm which may follow. Similarly, it has been acknowledged that the gravity of harm which may follow must be assessed with recognition that momentary lapses, whether mental or physical, are part and parcel of the human experience; that is noteworthy in circumstances such as those present here, where Rubush’s assembly-line duties included double duty on two batt-packing machines, each operating on a four to five second time frame. Concomitantly, it has been recognized that employee-users of a product cannot purely be characterized as voluntarily assuming each and every risk they encounter on the job, for their only option to exposing themselves to an obvious danger may be to foresake the employment. That dubious prospect is exacerbated by the continued and unyielding application of the employment at will doctrine in this jurisdiction. See, e. g., Campbell v. Eli Lilly & Co., (1980) Ind.App., 413 N.E.2d 1054 (Ratliff, J., dissenting in part), trans. denied (1981) Ind., 421 N.E.2d 1099 (Hunter, J., dissenting); Martin v. Platt, (1979) Ind.App., 386 N.E.2d 1026 .
For these various reasons, the jurisdictions cited herein have recognized that manufacturers must bear responsibility to insure that the technology of complicated machinery be not “unreasonably dangerous.” To make the danger “open and obvious” does not per se satisfy the responsibility, as explained in 2 Harper & James, The Law of Torts § 28.5 p. 1543 (1956): *1070 As indicated by Harper and James in their concluding sentence, and as the jurisdictions cited herein have held, the openness and obviousness of the danger should be but one factor in the question whether a product was designed in an unreasonably dangerous manner. As explained in Micallef v. Miehle Co., supra, the ultimate question of whether a manufacturer has exercised due care must be resolved on a case-by-case basis:
*1069 “[T]he bottom does not logically drop out of a negligence case against the maker when it is shown that the purchaser knew of the dangerous condition. Thus if the product is a carrot-topping machine with exposed moving parts, or an electric clothes wringer dangerous to the limbs of the operator, and if it would be feasible for the maker of the product to install a guard or a safety release, it should be a question for the jury whether reasonable care demanded such a precaution, though its absence is obvious. Surely reasonable men might find here a great danger, even to one who knew the condition; and since it was so readily avoidable they might find the maker negligent. Under this analysis the obviousness of a condition will still preclude liability if the obviousness justifies the conclusion that the condition is not unreasonably dangerous; otherwise it would simply be a factor to consider on the issue of negligence.” (Footnotes omitted.)
*1070 “What constitutes ‘reasonable care’ will, of course, vary with the surrounding circumstances and will involve ‘a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.’ (2 Harper & James, Torts, § 28.4; see Pike v. Hough Co., 2 Cal.3d 465 , 85 Cal.Rptr. 629 , 467 P.2d 229 , supra.) Under this approach, ‘the plaintiff endeavors to show the jury such facts as that competitors used the safety device which was missing here, or that a “cotter pin costing a penny” could have prevented the accident. The defendant points to such matters as cost, function, and competition as narrowing the design choices. He stresses “tradeoffs”. If the product would be unworkable when the alleged missing feature was added, or would be so expensive as to be priced out of the market, that would be relevant defense matter’ (Rheingold, Expanding Liability of the Product Supplier: A Primer, 2 Hofstra L.Rev., 521, 537; see Wirth v. Clark Equip. Co., 457 F.2d 1262 , 9 Cir.; Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313 , 281 N.E.2d 749 ).” Id., 39 N.Y.2d at 386 , 384 N.Y.S.2d at 121 , 348 N.E.2d at 577-78 .
With specificity, Dean Wade, in his persuasive and widely-quoted article, has outlined the particular factors which the fact-finder must weigh in the final balance:
“(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.” J. Wade, Strict Liability of Manufacturers, 19 Sw. L.J. 5 (1965).
The efficacy of Dean Wade’s approach was delineated by the Florida Supreme Court in Auburn Mach. Works Co., Inc. v. Jones, supra:
“ ‘Taking the Harper and James formulation as expanded by Dean Wade, it becomes understandable why the plaintiff accidentally injured by a knife does not recover from the manufacturer. The product is not unreasonably dangerous and no duty arises because (1) everyone realizes the dangers; (2) by definition a guard over the blade (the part that causes danger) would eliminate its utility; (3) the cost of a “safe” knife might be prohibitive. Balancing the likelihood and gravity of harm against the burden of protection, a manufacturer should not be liable for a slip of the knife.
“ ‘But consider the Yoder machine. Certainly Dorsey knew the danger of unguarded cutters. On the other hand, a guard would not eliminate the machine’s usefulness, nor would the cost of $200 to $500 on an $8,000 machine be unreasonable . . . . ’ 331 F.Supp. at 759-60 .
“The patent danger doctrine encourages manufacturers to be outrageous in their design, to eliminate safety devices, and to make hazards obvious. For example, if the cage which is placed on an electric fan as a safety device were left off and someone put his hand in the fan, under this doctrine there would be no duty on the manufacturer as a matter of law. So long as the hazards are obvious, a product could be manufactured without any consideration of safeguards. This example of the fan differs from the example of the knife in Dorsey v. Yoder Co., supra, wherein the court explained that the utility of the knife would be eliminated by placing a guard over the blade. As the *1071 New York court in Micallef pointed out in discussing reasonable care, the defendant may show as relevant defensive matter the cost, function, and competition as narrowing design choices, the unworkability of the product when the alleged missing feature is added, or that the product would be so expensive as to price it out of the market.
“The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable dangers to their users. It puts the entire accidental loss on the injured plaintiff, notwithstanding the fact that the manufacturer was partly at fault.” Id. at 1170-71.
Here, the Court of Appeals correctly held that the fact the danger was open and obvious was, in view of the nature of the product at issue, only one factor for the jury to consider. As Judge Neal explained for the unanimous Court: “We are of the opinion that the foregoing application of the open and obvious rule will afford some flexibility in meeting the variety of situations which may present themselves.” Bemis Co., Inc. v. Rubush, supra, 401 N.E.2d at 57-58 .
This more moderate rule does not, as the majority states, convert the strict liability imposed on manufacturers into absolute liability. Brown v. North Am. Mfg. Co., supra. Proof that an accident occurred does not trigger liability of the manufacturer. Neither, however, should the fact that a danger is open and obvious operate as an absolute defense to liability.
Finally, I would note that in enacting our Products Liability Act, which took effect after the date on which this action was conceived, the legislature rejected by implication the rule adopted here by the majority. See Ind.Code § 34-4-20A — 1 et seq. (Burns 1981 Supp.). The defense outlined in Section 4(b)(1) of the act rests on whether the user’s conduct was unreasonable in light of the open danger. That question will, with rare exceptions, be a factual matter for the jury to resolve, as are the applicability of the defenses of incurred risk and assumption of risk in negligence actions. See generally, Memorial Hospital of South Bend, Inc. v. Scott, (1973) 261 Ind. 27 , 300 N.E.2d 50 ; Kroger Co. v. Haun, (1978) Ind.App., 379 N.E.2d 1004 .
In Justice DeBruler’s dissenting opinion, which I join, he has laid out the evidence from which the jury, pursuant to the rule of law explained by the Court of Appeals, could have concluded Bemis Company violated its responsibilities in designing the batt-packer. While the record does reveal conflicts in the evidence and the experts’ opinions, we cannot, of course, subjectively evaluate the record and overturn the jury’s conclusion, even though we might have reached the opposite result had we been the triers of fact. Meehan v. Meehan, (1981) Ind., 425 N.E.2d 157 . With respect to the instructions and expert testimony the majority has mentioned, the Court of Appeals fully addressed and correctly decided those issues.
For all the foregoing reasons, Bemis Company, Inc.’s petition to transfer should be denied.
I dissent.
DeBRULER, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9721497. Public record. Not legal advice.