In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3024
SCOTT WEIGLE and APRIL WEIGLE,
Plaintiffs‐Appellants,
v.
SPX CORPORATION,
Defendant‐Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10‐cv‐01400‐LJM‐MJD — Larry J. McKinney, Judge.
No. 12‐3025
JOHN MOORE, II and CORINNE MOORE,
Plaintiffs‐Appellants,
v.
SPX CORPORATION,
Defendant‐Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:11‐cv‐00822‐LJM‐MJD — Larry J. McKinney, Judge.
2 Nos. 12‐3024 & 12‐3025
ARGUED FEBRUARY 12, 2013 — DECIDED SEPTEMBER 6, 2013
Before RIPPLE and TINDER, Circuit Judges, and ZAGEL,
District Judge.*
TINDER, Circuit Judge. This suit under the diversity jurisdic‐
tion stems from an incident in which a semi‐truck trailer fell off
of its support stands and on top of Scott Weigle and John
Moore, the two mechanics who were working on the trailer.
Weigle and Moore each sued SPX Corporation, the designer of
the support stands, asserting claims of inadequate warnings
and defective design under the Indiana Product Liability Act
(IPLA), Ind. Code § 34‐20‐1‐1 et seq. The district court granted
summary judgment for SPX on all claims, finding that the
warnings were adequate as a matter of law and that, as a
result, the support stands were not defective under Indiana
law. We affirm the district court’s judgments on the
inadequate‐warnings claims, but we vacate the judgments on
the defective‐design claims and remand for further proceed‐
ings.
I.Background
A. Accident & Nature of Support Stands
At the time of the underlying incident, Weigle and Moore
were professional mechanics employed by Truckers 24‐Hour
*
The Honorable James B. Zagel of the Northern District of Illinois, sitting
by designation.
Nos. 12‐3024 & 12‐3025 3
Road Service, Inc., in Indianapolis, Indiana. Both had consider‐
able experience: Weigle had been a mechanic at Truckers since
1997, and Moore had been a mechanic at Truckers since 2001.
On July 31, 2009, Weigle and Moore undertook a job to
rebuild the braking system on a semi‐truck trailer. In prepara‐
tion, Weigle used an airlift to raise the rear portion of the trailer
and then lowered the trailer onto two support stands; the front
of the trailer was supported by the trailer’s built‐in dolly legs.
Weigle had already begun working on the trailer when Moore
came over to assist. The trailer somehow moved as both
mechanics were working underneath it, causing the support
stands to tip over and the trailer to come crashing down.
It is undisputed that the two support stands were OTC
Tools 1779A support stands designed by SPX. These support
stands consist of a conical base, an extension tube, and a
support pin:
(Though omitted from this diagram, the support pin is tethered
to the base by a chain and “S” hook.) These are heavy‐duty
support stands; the conical base is approximately 16¾ inches
tall and approximately 15d inches in diameter, the extension
4 Nos. 12‐3024 & 12‐3025
tube is approximately 33¼ inches tall and approximately 2f
inches in diameter, and the stand has a capacity rating of 12
tons when used properly. There are eight holes along the
extension tube, each of which is roughly ¾ inch in diameter. To
adjust the height, the user places the support pin into the
appropriate hole and allows the pin to rest on top of the base.
The base lacks a bottom, so if the support pin is not used the
extension tube will touch the ground. When this happens, the
support stand becomes unstable because the weight of the load
is not distributed to the broad conical base but instead rests
almost entirely on the narrow extension tube.
The “Parts List and Operating Instructions” accompanying
the support stands contains the following relevant safety
precautions and operating instructions:
Safety Precautions
CAUTION: To prevent personal injury,
… .
Always use the support pin, which must be
completely inserted through the support
stand extension tube.
… .
The load and support stand(s) must be stable
before beginning any repairs underneath the
load.
Nos. 12‐3024 & 12‐3025 5
Operating Instructions
… .
4. Insert the support pin … completely through
both walls of the extension tube.
IMPORTANT: Always check the placement of
the support pin before lowering a load onto a
support stand.
… .
CAUTION: To prevent personal injury, the
load and support stand(s) MUST be stable
before any work begins underneath the load.
(For the full set of safety precautions and operating instruc‐
tions, see Appendix A, infra.) On the left side of the safety
precautions are three pictograms: one shows a person reading
instructions; one shows debris bouncing off of a person’s
protective eyewear; and one shows a load falling on a person.
Also, affixed to the base of each support stand is a decal,
which in relevant part provides:
WARNING
To prevent personal injury,
… .
Always use the support pin; insert support
pin completely through extension tube.
… .
… . Load and support stand(s) must be stable
before working beneath vehicle.
6 Nos. 12‐3024 & 12‐3025
(For the full decal, see Appendix B, infra.) The warning decal
also includes three pictograms, and each appears to the left of
one of the first three bulleted instructions: the pictogram
showing a person reading instructions appears next to the
instruction that the user follow all instructions; the pictogram
showing debris bouncing off of a person’s safety goggles
appears next to the instruction to wear eye protection; and the
pictogram showing a load falling on top of a person appears
next to the instruction not to exceed the capacity rating. No
pictograms appear before the remaining four bulleted instruc‐
tions, including the support‐pin instruction, but those instruc‐
tions are positioned below the pictogram illustrating a load
falling on a person.
It is undisputed that Weigle and Moore did not use the
support pin on the day of the incident. Weigle took care of
situating the trailer onto the support stands, and he admitted
that he never read the “Parts List and Operating Instructions”
or the decal affixed to each support stand. Moore, on the other
hand, had previously read all the instructions and warnings,
but he did not inspect the support stands to see if the support
pins were in place.
B. Summary Judgment Proceedings
Weigle and Moore sued SPX in state court, asserting claims
of inadequate warnings and defective design under the IPLA,
and SPX removed both cases to the Southern District of
Indiana, see 28 U.S.C. §§ 1332, 1441.2 At the close of discovery,
2
April Weigle and Corinne Moore each joined their respective husband’s
(continued...)
Nos. 12‐3024 & 12‐3025 7
SPX filed near‐identical motions for summary judgment in
both cases. See Fed. R. Civ. P. 56.
In opposition to SPX’s motions for summary judgment,
Weigle and Moore designated evidence that, according to
industry custom, it is safest to operate support stands in their
lowest possible position. Weigle testified in his deposition that
the lowest position is the safest because it minimizes the
distance that the mechanics have to lift the heavy tires when
removing and reinstalling them. Similarly, Moore testified that
he had been taught that support stands must be operated in the
lowest possible position to ensure maximum stability. Roger
Tapy, the owner and president of Truckers at the time of the
incident, also noted that “in standard business, the lowest part
of the stand is the safest height.”
Weigle and Moore also presented evidence that the SPX
support stands are unlike most (if not all) other support stands
on the market. Moore testified that other support stands are
designed such that the center column cannot touch the ground
even when a pin is not used, and for this reason, Moore was
under the impression that the pin was merely used to adjust
the support stands’ height. Tapy also testified that in his 25
years with Truckers, the SPX support stands were the only
2
(...continued)
complaint and asserted derivative claims for loss of consortium. Addition‐
ally, Guarantee Insurance Company, Truckers’ worker’s compensation
carrier, intervened to protect its lien under the Indiana Worker’s Compensa‐
tion Act, see Ind. Code § 22‐3‐2‐13. Neither the wives’ loss‐of‐consortium
claims nor the intervener’s interests have any independent bearing on this
appeal.
8 Nos. 12‐3024 & 12‐3025
ones in which the center column could touch the ground when
the pin was not used; the other approximately 60 stands with
which he had experience were designed so that the center
column could never touch the ground.
They also designated the report and deposition testimony
of William Dickenson, a professional engineer. Dickenson
opined that the SPX support stands were defective and
unreasonably dangerous because the column is permitted to
pass through the plane of the base in the unpinned position. In
his view, the support stands do not satisfy the requirements for
the design of the central column set forth in Part 4 of the
American Society of Mechanical Engineers’s Portable Automo‐
tive Lifting Device standards (“ASME PALD‐4”). As relevant
here, the section of ASME PALD‐4 in both the 1993 and 2005
standards addressing columns provides: “In the fully retracted
position, the lower end of the column shall not extend below
the plane made where the base contacts the ground.”
Dickenson interprets the term “fully retracted position” to refer
to the lowest position of the column without use of the pin. He
bases this interpretation on the fact that the 1993 and 2005
standards departed from the term “lowest operating position”
(i.e., the lowest position with the pin) used in the 1991 stan‐
dard.
Dickenson opined that utilizing the support stands without
the support pin was foreseeable. In his opinion, SPX “could
have designed the column of the stand with a stop that
prevented the column from retracting into the stand beyond its
lowest operating position. This could have been accomplished
by simply permanently installing a pin in the hole that estab‐
lishes the lowest operating position of the vehicle stands.”
Nos. 12‐3024 & 12‐3025 9
Dickenson acknowledged the warnings against not using the
support pin, but he explained that “[a] warning is not an
adequate solution because warnings are not as effective at
removing hazards as designing the system so that the hazard
would be eliminated. Warnings rely upon human actions,
which are often not reliable.” He admitted that he had not
conducted a statistical or financial analysis respecting his
proposed alternative, but he testified that it cost him only
about $10 to alter the support stands. He also noted in his
report that after reviewing the descriptions of other support
stands that are similar to the SPX support stands, the SPX
stands appear to be the only ones on the market that fail to
satisfy ASME PALD‐4. Finally, Dickenson noted that based on
all the materials he had reviewed it did not appear that the
designers had conducted “any failure modes and effects
analysis, any hierarchy of design analysis, [or] any application
of safety through design in this product”; in his view, not only
did the designers not exercise reasonable care, they exercised
no care at all.
Weigle and Moore also designated the deposition of
Michael Schoenoff, Manager of Mechanical Engineering at
SPX, whom SPX had designated both as an expert witness and
as its representative under Federal Rule of Civil Procedure
30(b)(6). In Schoenoff’s view, the support stands were not
defectively designed and were misused by the plaintiffs. He
explained that Dickenson’s interpretation of the ASME PALD‐4
standard was in error because “fully retracted position” refers
to the lowest position of the stand when the pin is used.
Schoenoff also testified that SPX was aware in 1985 that the
support stand was unstable without the pin. He also agreed
10 Nos. 12‐3024 & 12‐3025
that there is no evidence that SPX considered alternative
designs. Nor is there any evidence that SPX conducted a
hazard‐risk or failure‐mode analysis on the support stand.
Lastly, Weigle and Moore designated the deposition of
Larry Betcher, Manager of Product Innovation at SPX, who
designed the SPX support stand at issue. Like Schoenoff,
Betcher disagreed with Dickenson’s interpretation of ASME
PALD‐4 and interpreted “fully retracted position” to refer to
the lowest pinned position. Betcher also testified that use of the
support stand without the support pin is inherently dangerous
because the load is likely to come crashing down. He admitted
that it was foreseeable that a user might operate the support
stand without the pin, which is why the instruction that the pin
should always be used was included. Betcher also testified that
no alternative designs had been considered, no field studies
had been conducted to determine whether the support stand
was being operated without the pin, and the effectiveness of
the warnings never had been tested.
The district court granted summary judgment for SPX on
all claims. It first concluded that the instructions and warnings
were adequate as a matter of law. As to the defective‐design
claims, the court did not address the sufficiency of Weigle’s
and Moore’s designated evidence. Instead, relying on Marshall
v. Clark Equipment Co., 680 N.E.2d 1102, 1106 (Ind. Ct. App.
1997), it concluded that because the warnings were adequate,
the support stands were neither defective nor unreasonably
dangerous. Weigle and Moore now appeal.
Nos. 12‐3024 & 12‐3025 11
II. Discussion
We review a district court’s grant of summary judgment de
novo, Abbott v. Sangamon County, Ill., 705 F.3d 706, 713 (7th Cir.
2013), construing all facts and inferences in favor of the
nonmovants, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986).
The IPLA “imposes liability upon sellers of a product in a
defective condition unreasonably dangerous to any user or
consumer.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 809
(Ind. 2007) (citation omitted); see Ind. Code § 34‐20‐2‐1. A
plaintiff bringing an action under the IPLA must establish that
(1) the product was in a defective condition; (2) the product
was unreasonably dangerous; (3) the plaintiff was a foreseeable
user or consumer; (4) the defendant was in the business of
selling the product; (5) the product was expected to and did
reach the user or consumer without substantial alteration; and
(6) the defect in the product caused the plaintiff’s injury. See
Ind. Code § 34‐20‐2‐1; Bourne v. Marty Gilman, Inc., 452 F.3d
632, 635–36 (7th Cir. 2006); Koske v. Townsend Eng’g Co., 551
N.E.2d 437, 440–41 (Ind. 1990). In this case there is no dispute
that Weigle and Moore were foreseeable users of the support
stands, that SPX was in the business of selling the support
stands, and that the support stands had not been substantially
altered.
12 Nos. 12‐3024 & 12‐3025
A product can be defective because of a manufacturing
defect, a design defect, or a lack of adequate instructions and
warnings. See Ind. Code §§ 34‐20‐2‐1 to ‐3; Hoffman v. E.W. Bliss
Co., 448 N.E.2d 277, 281 (Ind. 1983). Inadequate‐warning and
defective‐design claims both sound in negligence. See Ind.
Code § 34‐20‐2‐2. To prevail on a negligence claim a plaintiff
must establish “(1) a duty owed by the defendant to the
plaintiff; (2) a breach of that duty by the defendant; and (3) an
injury to the plaintiff proximately caused by the breach.”
Rushford, 868 N.E.2d at 810 (citation omitted).
A. Inadequate‐Warnings Claims
A product is defective under the IPLA “if the seller fails to:
(1) properly package or label the product to give reasonable
warnings of danger about the product; or (2) give reasonably
complete instructions on proper use of the product; when the
seller, by exercising reasonable diligence, could have made
such warnings or instructions to the user or consumer.” Ind.
Code § 34‐20‐4‐2; see also Rushford, 868 N.E.2d at 810 (“This
duty is twofold: (1) to provide adequate instructions for safe
use and (2) to provide a warning as to dangers inherent in
improper use.”). A “‘product label must make apparent the
potential harmful consequences. The warning should be of
such intensity as to cause a reasonable man to exercise for his
own safety caution commensurate with the potential danger.’”
Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1162 (Ind. Ct. App.
1988) (citation omitted). A warning’s adequacy is measured by
its factual content, the manner in which it is expressed, and the
method of conveying these facts. Id. at 1162–63. The adequacy
of a warning (i.e., whether the defendant breached its duty to
warn) is generally a question of fact, but it can be decided as a
Nos. 12‐3024 & 12‐3025 13
matter of law when the facts are undisputed and only one
inference can be drawn from those facts. Cook v. Ford Motor Co.,
913 N.E.2d 311, 327 (Ind. Ct. App. 2009).
SPX argues that the district court’s judgment should be
affirmed because the warnings and instructions clearly
informed users that the support pins are always to be used and
that failure to use them can result in personal injury. Alterna‐
tively, SPX contends that, even if the warnings are not suffi‐
cient as a matter of law, the district court’s judgment should
still be affirmed because any alleged defect in the warnings
could not have been the proximate cause of Weigle’s and
Moore’s injuries because Weigle did not read the warnings and
Moore did not inspect the stands to ensure that the pins were
in place. We need not reach the issue of proximate cause
because we agree with SPX and the district court that the
warnings are sufficient as a matter of law, hence Weigle and
Moore have failed to establish that SPX breached its duty to
warn.
Weigle and Moore acknowledge that the “Parts List and
Operating Instructions” and the decal affixed to the stands
both provide instructions for safe use (“[a]lways use the
support pin; insert support pin completely through extension
tube”) and warnings about the dangers inherent in improper
use (“personal injury” accompanied by a pictogram showing
a load falling on top of a person), but they contend that this is
not sufficient. According to them, the warnings are inadequate
because they do not warn “that the jack stand is unstable when
the bottom of the extension column touches the ground when
the pin is not inserted,” that is, “the warnings’ content was
deficient because it failed to explain the significance of the
14 Nos. 12‐3024 & 12‐3025
support pin in maintaining the stability of the jack stand.”
They reaffirmed their position at oral argument when they
unequivocally stated that the warnings must provide not only
the consequences of not using the pin but also the mechanics
of the pin (e.g., use the pin or the stand will not be stable).
Weigle and Moore cite only Cook, 913 N.E.2d 311, in
support of their position. Cook arose from a car accident in
which an eight‐year‐old child, who had not been wearing a
seatbelt, was severely injured when the front passenger‐seat
airbag deployed. Id. at 315–17. The owner’s manual accompa‐
nying the vehicle indicated that the airbag (which could be
deactivated) should always be on “unless there is a rear‐facing
infant seat installed in the front seat” and that turning off the
passenger airbag “increases the likelihood of injury to forward
facing occupants in the passenger seat.” Id. at 316, 326. The
plaintiffs had designated expert testimony that airbags pose a
risk to all children in the front passenger seat, not just children
in rear‐facing child seats. Id. at 326. The Indiana Court of
Appeals reversed the trial court’s grant of summary judgment,
explaining that the warnings were not adequate as a matter of
law because, based on the wording of the owner’s manual and
the expert testimony, there was “a question of fact as to
whether a reasonable person would have understood from
Ford’s instructions that injury could occur under these circum‐
stances.” Id. at 327. One judge dissented on grounds that the
Cooks had failed to comply with Ford’s other instructions to
place children in the backseat and to wear seatbelts. Id. at
334–35 (Brown, J., concurring in part and dissenting in part).
The majority rejected the dissent’s reasoning because “the
language selected by Ford with respect to the additional
Nos. 12‐3024 & 12‐3025 15
warnings was permissive; that is, it equivocally instructed to
place children in the backseat ‘if possible,’ ‘suggested’ that
children are safer there, and that occupants ‘should’ always
wear seat belts.” Id. at 328 (majority opinion). The warnings
also failed to provide “that one of the risks from which
children are possibly safer is injury from deployment of the
front seat passenger airbag.” Id. The court concluded that there
was a question of fact as to whether Ford’s warnings were
“strong and specific enough to warn the Cooks that the
additional instructions [on placing children in the backseat and
wearing seatbelts] were linked to danger from the airbag.” Id.
Like the district court, we are unable to see how Cook
supports Weigle’s and Moore’s argument that SPX’s warnings
are inadequate because they fail to explain the mechanics of
the support pin. Unlike the instructions in Cook, the instruc‐
tions here provide that the support pin “always” must be used
by placing it all the way through the column and that the risk
of not using the support pin is personal injury; in other words,
the warnings here cannot be construed as permissive or
equivocal.
Moreover, SPX’s instruction that the support pin must
always be used is linked to the risk of personal injury and is
accompanied by a pictogram illustrating a load falling on top
of a person. Weigle and Moore suggest that the placement of
the pictogram on the decal affixed to the support stands is
confusing because it is placed next to the instruction not to
exceed the capacity rating and not next to the instruction
regarding the support pin. See Appendix B, infra. They claim
that Betcher testified in his deposition that the pictogram was
intended to apply only to the warning that appears immedi‐
16 Nos. 12‐3024 & 12‐3025
ately following the picture. We are not persuaded that this
raises an issue of triable fact. For one thing, Betcher actually
testified that the pictogram applied to the capacity‐warning
rating and to all subsequent warnings and instructions on the
decal. In addition, immediately following the instruction in the
“Parts List and Operating Instructions” related to insertion of
the support pin is a bolded instruction, preceded by “IMPOR‐
TANT,” that the user should “[a]lways check the placement of
the support pin before lowering a load onto a support stand.”
See Appendix A, infra. In short, the instructions and warnings
convey to a user that failure to use the support pin may result
in personal injury caused by the load falling. No additional
warnings need to be furnished where such warnings would
not supplement the user’s understanding of the nature and
characteristics of the product. See Shanks v. A.F.E. Indus., Inc.,
416 N.E.2d 833, 837 (Ind. 1981); Birch v. Midwest Garage Door
Sys., 790 N.E.2d 504, 518 (Ind. Ct. App. 2003).
What Weigle and Moore really desire is a physics lesson to
accompany the support stands. We have been unable to find
any Indiana authority supporting their view (which invariably
would lead to claims that the warnings are too technical and
confusing). Indeed, we rejected a similar argument in
McMahon v. Bunn‐O‐Matic Corp., 150 F.3d 651 (7th Cir. 1998).
In McMahon, the plaintiff had been badly burned by coffee
purchased from a gas station and had sued the manufacturer
of the coffee maker under Indiana law, claiming that it had
“failed to warn consumers about the severity of burns that hot
coffee can produce.” Id. at 654. The plaintiff argued that the
warnings should have indicated that hot coffee can cause third‐
degree burns. We rejected her argument:
Nos. 12‐3024 & 12‐3025 17
Bunn can’t deliver a medical education with each
cup of coffee. Any person severely injured by
any product could make a claim, at least as
plausible as the McMahons’, that they did not
recognize the risks ex ante as clearly as they do
after the accident.
Insistence on more detail can make any
warning, however elaborate, seem inadequate.
Indiana courts have expressed considerable
reluctance to require ever‐more detail in warn‐
ings. See Meyers v. Furrow Building Materials, 659
N.E.2d 1147 (Ind. Ct. App. 1996); Welch v. Scripto‐
Tokai Corp., 651 N.E.2d 810 (Ind. Ct. App. 1995).
For good reasons, laid out in Todd v. Societe BIC,
S.A., 9 F.3d 1216, 1218–19 (7th Cir. 1993) (en
banc) (Illinois law): “Extended warnings present
several difficulties, first among them that, the
more text must be squeezed onto the product,
the smaller the type, and the less likely is the
consumer to read or remember any of it. Only
pithy and bold warnings can be effective. Long
passages in capital letters are next to illegible,
and long passages in lower case letters are
treated as boilerplate. Plaintiff wants a warning
in such detail that a magnifying glass would be
necessary to read it. Many consumers cannot
follow simple instructions (including pictures)
describing how to program their video cassette
recorders.” Indiana has the same general under‐
standing … .
18 Nos. 12‐3024 & 12‐3025
McMahon, 150 F.3d at 656–57 (citation omitted). SPX was not
required to explain the physics of the support stands to satisfy
its duty to provide adequate instructions and warnings.
Rather, it is enough that SPX instructed users on how to use
the stand properly (“[a]lways use the support pin”) and
warned users of the inherent dangers of not following those
instructions (“personal injury” with a pictogram of a load
falling on a person). We thus agree with the district judge that
Weigle and Moore have failed to demonstrate a genuine issue
of material fact as to the adequacy of the warnings.
B.Defective‐Design Claims
A second way that a product can be in a defective condition
under the IPLA is “if, at the time it is conveyed by the seller to
another party, it is in a condition: (1) not contemplated by
reasonable persons among those considered expected users or
consumers of the product; and (2) that will be unreasonably
dangerous to the expected user or consumer when used in
reasonably expectable ways of handling or consumption.” Ind.
Code § 34‐20‐4‐1. As noted earlier, defective‐design claims
sound in negligence, so a party alleging a design defect “must
establish that the manufacturer or seller failed to exercise
reasonable care under the circumstances in designing the
product.” Ind. Code § 34‐20‐2‐2; see TRW Vehicle Safety Sys., Inc.
v. Moore, 936 N.E.2d 201, 209 (Ind. 2010). A plaintiff alleging
defective design as a result of negligence must demonstrate
that the defendant failed “to take precautions that are less
expensive than the net costs of accidents.” McMahon, 150 F.3d
at 657; see also Bammerlin v. Navistar Int’l Transp. Corp., 30 F.3d
898, 902 (7th Cir. 1994); Miller v. Todd, 551 N.E.2d 1139, 1141,
1143 (Ind. 1990). In other words, to establish that the defendant
Nos. 12‐3024 & 12‐3025 19
was negligent the plaintiff must establish B < PL, where B is the
cost of the precaution (i.e., the “burden” of avoiding the
accident), P is the probability of the accident that the precau‐
tion would have prevented, and L is the loss if there is an
accident that the precaution could have prevented. Bourne, 452
F.3d at 637; Mesman v. Crane Pro Servs., 409 F.3d 846, 849 (7th
Cir. 2005); Bammerlin, 30 F.3d at 902; see also United States v.
Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.).
Consequently, “the fact that the probability of a particular
failure is low is no defense if the costs of protecting against it
are even lower.” Bammerlin, 30 F.3d at 902 (citing Restatement
(Third) of Torts: Products Liability § 2(b) & reporters’ notes, at
40–45, 123–25 (Tentative Draft No. 1, 1994)).2
2
In TRW Vehicle Safety Systems, the Indiana Supreme Court dropped a
somewhat confusing footnote in which it explained that the Indiana
Legislature had adopted a negligence standard for defective‐design claims,
instead of the strict‐liability standard articulated in Restatement (Third) of
Torts: Products Liability § 2(b), at 14 (1998) (hereinafter Products Liability). 936
N.E.2d at 209 n.2. The reason this is confusing is that § 2(b) does not
articulate a strict‐liability standard; it articulates a risk‐utility standard,
similar to B < PL, by providing that a product “is defective in design when
the foreseeable risks of harm posed by the product could have been reduced
or avoided by the adoption of a reasonable alternative design … and the
omission of the alternative design renders the product not reasonably safe.”
See also Products Liability, supra, § 2 cmt. a, at 16 (noting that § 2(b)
“achieve[s] the same general objectives as liability predicated on negli‐
gence”); id. § 2 cmt. d reporters’ note II‐A, at 49 (citing cases and observing
that while Indiana statute articulates a reasonable‐consumer‐expectations
test, Indiana courts and federal courts applying Indiana law have required
proof of a reasonable alternative design in defective‐design cases). Adding
further confusion is the fact that the Indiana Supreme Court went on to
(continued...)
20 Nos. 12‐3024 & 12‐3025
In addition to establishing that the product was in a
defective condition due to negligence, a defective‐design
plaintiff must establish that the defective condition rendered
the product “unreasonably dangerous.” See Ind. Code § 34‐20‐
2‐1; Bourne, 452 F.3d at 635–36; McMahon, 150 F.3d at 651. The
“requirement that the product be in a defective condition
focuses on the product itself while the requirement that the
product be unreasonably dangerous focuses on the reasonable
expectations of the consumer.” Baker v. Heye‐America, 799
N.E.2d 1135, 1140 (Ind. Ct. App. 2003) (citations omitted); see
also Moss v. Crossman Corp., 136 F.3d 1169, 1174 (7th Cir. 1998).
For purposes of the IPLA, “unreasonably dangerous” “refers
to any situation in which the use of a product exposes the user
or consumer to a risk of physical harm to an extent beyond that
contemplated by the ordinary consumer who purchases the
product with the ordinary knowledge about the product’s
2
(...continued)
hold that there was sufficient evidence to support the jury’s verdict for the
plaintiff because, among other things, there was testimony that the
defendant had been aware of the problem and that an alternative, safer
design was both technologically and economically feasible. TRW Vehicle
Safety Sys., 936 N.E.2d at 210. The parties do not quarrel over the proper
standard to apply to defective‐design claims, so we need not attempt to
decipher what the Indiana Supreme Court was attempting to say—i.e.,
whether the court meant to disapprove of the requirement that a defective‐
design plaintiff show that the defendant failed to take precautions that are
less expensive than the net costs of accidents, cf. Bammerlin, 30 F.3d at 902
(“Our court has applied Judge Hand’s approach in many kinds of negli‐
gence actions, and as the definition of a product defect in Indiana depends
on general principles of negligence, we have no reason to think that state
would see things otherwise.” (internal citations omitted)).
Nos. 12‐3024 & 12‐3025 21
characteristics common to the community of consumers.” Ind.
Code § 34‐6‐2‐146.
A reasonable fact finder could determine from Weigle’s and
Moore’s designated evidence that the SPX support stands at
issue were in a defective condition that was unreasonably
dangerous. That the SPX support stands differ from most (if
not all) others on the market (in allowing the center column to
drop all the way to the ground) tends to show that their design
is not contemplated by reasonable persons among those
considered expected users. Additionally, because the SPX
stands are inherently unstable when used without the pin, but
other available stands are not (because of built‐in safeguards),
a fact finder could find that the stands are unreasonably
dangerous. The risk that the stands would be used without the
pin was concededly foreseeable, and a fact finder could
determine that failure to take the minor precaution of building
in a safeguard, such as a permanent pin in the lowest operating
position or some other type of barrier preventing the extension
tube from dropping below that position, demonstrates that
SPX failed to exercise reasonable care under the circumstances.
A fact finder might also conclude that the lack of any evidence
that SPX undertook a hazard‐risk or failure‐mode analysis on
the support stand demonstrates negligence. Finally, a fact
finder could find a lack of reasonable care under the circum‐
stances because the support stands fail to comply with ASME
PALD‐4. To be sure, there is a dispute over the meaning of the
standard and whether the support stands satisfy it, but this
merely establishes a genuine issue of material fact; unlike the
interpretation of an ambiguous state or federal regulation, see,
e.g., Bammerlin, 30 F.3d at 900, the meaning of an industry
22 Nos. 12‐3024 & 12‐3025
standard is a factual issue to be resolved by the fact finder. In
any event, even if we were to accept SPX’s interpretation of
ASME PALD‐4, Weigle and Moore have designated sufficient
evidence to withstand summary judgment because compliance
with an industry standard does not necessarily defeat a
defective‐design claim under the IPLA. See Ind. Code § 34‐20‐5‐
1(1).
The district court never addressed the plaintiffs’ designated
evidence because, relying on Marshall v. Clark Equipment Co.,
680 N.E.2d 1102, 1106 (Ind. Ct. App. 1997), it concluded that
the presence of adequate warnings rendered the support
stands nondefective and not unreasonably dangerous. This
was SPX’s primary argument in the district court, but it does
not mount much of a defense of the district court’s rationale in
its brief to this court. At oral argument, however, SPX made
clear its belief that a manufacturer is not required to design a
safer product in anticipation of users ignoring adequate
warnings. Effectively, the position taken by SPX and adopted
by the district court is that adequate instructions and warnings
amount to a complete defense to a defective‐design claim.
Weigle and Moore do not dispute that the district court
properly applied Marshall, but they argue that Marshall is
inconsistent with current Indiana law.3 As an alternative
3
Though they developed their arguments that there are triable issues of
fact, it does not appear that Weigle and Moore argued below that Marshall
is inconsistent with current law. Perhaps this is because they also main‐
tained that the warnings were inadequate, as Marshall would not have come
into play had the district court been unable to find that the warnings were
adequate as a matter of law. We need not decide whether Weigle’s and
(continued...)
Nos. 12‐3024 & 12‐3025 23
ground for affirmance, SPX argues that the defense of misuse
entitles it to summary judgment on the defective‐design
claims. See Ind. Code § 34‐20‐6‐4. Though presented below, the
district court did not address this argument because it had no
need to do so. We address each defense in turn.
1. Adequate Warnings “Defense”
In Marshall, a plaintiff who had been injured while operat‐
ing a forklift appealed from an adverse judgment on the
ground that the trial court had erred in refusing his tendered
jury instruction, which in relevant part provided that “[i]f the
product can be made reasonably safe by selecting an available
alternative design, the manufacturer must do so rather than
merely place a warning on the product.” Id. at 1104 (internal
quotation marks omitted). The Indiana Court of Appeals
rejected the plaintiff’s argument, finding that the tendered
instruction had not correctly stated Indiana law. Id. at 1104–06.
The court explained that “[w]hile warnings cannot make a
dangerous product safe, such warnings may avert liability.” Id.
at 1105 (citing Jarrell, 528 N.E.2d at 1166). Relying almost
exclusively on Dias v. Daisy‐Heddon, 390 N.E.2d 222, 225 (Ind.
Ct. App. 1979), which in turn had relied on Comment j to the
Restatement (Second) of Torts § 402A (1965), the court held that
“a manufacturer may avoid liability by placing adequate
warnings on a product even when there is evidence of a ‘safer’
alternative design.” Marshall, 680 N.E.2d at 1106.
3
(...continued)
Moore’s failure to raise their argument below amounts to waiver because
SPX has not claimed on appeal that they waived it.
24 Nos. 12‐3024 & 12‐3025
Contrary to SPX’s assertion in its brief, the Indiana Su‐
preme Court has not addressed the issue. In Rushford, a duty‐
to‐warn case, the court held that, “absent special circum‐
stances, if the manufacturer provides adequate warnings of the
danger of its product and the seller passes this warning along
to the buyer or consumer, then the seller has no obligation to
provide additional warnings.” 868 N.E.2d at 811. It is true that
the Rushford court found support for its holding in Dias,
specifically, Dias’s quotation of § 402A, Comment j. 868 N.E.2d
at 811 (quoting Dias, 390 N.E.2d at 225). But the court’s citation
of Dias was not necessary to determining the issue before
it—whether a seller has a duty to provide warnings to supple‐
ment the warnings provided by the manufacturer where the
product has not been altered. And “statements not necessary
in the determination of the issues presented are obiter dictum.
They are not binding and do not become the law.” Koske, 551
N.E.2d at 443 (citations omitted); see also Ind. Harbor Belt R.R.
Co. v. Am. Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir. 1990)
(“No court is required to follow another court’s dicta.” (citation
omitted)).
As this is a diversity case, we are bound to apply Indiana
law as we predict it would be applied by the Indiana Supreme
Court. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938);
State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir.
2001). Where, as here, the Indiana Supreme Court has not
squarely addressed the issue, we will follow the decisions of
the Indiana Court of Appeals unless there are persuasive
reasons to believe that the high court would disagree with
them. Gutierrez v. Kermon, No. 12‐2934, 2013 WL 3481359, at *7
n.2 (7th Cir. July 12, 2013); see Ind. Harbor Belt R.R. Co., 916 F.2d
Nos. 12‐3024 & 12‐3025 25
at 1176 (“We are not required to follow even the holdings of
intermediate state appellate courts if persuaded that they are
not reliable predictors of the view the state’s highest court
would take.” (citations omitted)). For several reasons, we are
persuaded that the Indiana Supreme Court would not apply
Marshall to the defective‐design claims in this case.
It is helpful to begin with a brief review of the development
of products‐liability law in Indiana. Prior to the enactment of
the IPLA in 1978, the Indiana Supreme Court had adopted the
doctrine of strict products liability set forth in § 402A. Dias, 390
N.E.2d at 224; see Ayr‐Way Stores, Inc. v. Chitwood, 300 N.E.2d
335, 339–40 (Ind. 1973). In 1978, the Indiana Legislature
codified most aspects of § 402A into the IPLA, but it left claims
based on negligence to the common law. See Miller, 551 N.E.2d
at 1143; Koske, 551 N.E.2d at 442–43. The Indiana Supreme
Court made this clear in Koske, where it held that the “open
and obvious danger” rule did not apply to strict liability
claims, as it had not been included in the IPLA, but remained
applicable to negligence claims because the IPLA had not at
that time been extended to negligence. 551 N.E.2d at 442–43. In
1995, the Indiana Legislature amended the IPLA to apply to all
products‐liability actions, regardless of the substantive legal
theory, Ind. Code § 34‐20‐1‐1, and provided that defective‐
design and inadequate‐warnings claims are to be governed by
negligence principles rather than strict liability, § 34‐20‐2‐2. See
Bourne, 452 F.3d at 635. Because the IPLA had codified the
entire field of products liability, we held in Mesman that the
“open and obvious danger” rule no longer applied to
defective‐design claims because the legislature had omitted
that defense. 409 F.3d at 850. Another important feature of the
26 Nos. 12‐3024 & 12‐3025
1995 amendments was the addition of the requirement that
liability under the IPLA “be determined in accordance with the
principles of comparative fault.” Green v. Ford Motor Co., 942
N.E.2d 791, 794 (Ind. 2011).
Notably absent from the current statute is a defense or
presumption that adequate warnings render a product not
defective and not unreasonably dangerous. The statute
provides only three defenses: incurred risk, misuse (not
reasonably foreseeable), and modification. Ind. Code §§ 34‐20‐
6‐3 to ‐5. These are the only defenses available in an action
under the IPLA. See McGraw‐Edison v. Ne. Rural Electric
Membership Corp., 678 N.E.2d 1120, 1123–25 (Ind. 1997) (hold‐
ing that disclaimer in purchase agreement purportedly limiting
seller’s liability was no defense to action under IPLA); see also
Mesman, 409 F.3d at 850. The statute does supply a rebuttable
presumption that a product is not defective if it either “was in
conformity with the generally recognized state of the art
applicable to the safety of the product” or “complied with
applicable codes, standards, regulations, or specifications
established, adopted, promulgated, or approved” by a federal
or Indiana governmental body or agency. Ind. Code § 34‐20‐5‐
1. This presumption is not applicable here, and there are no
other presumptions delineated in the IPLA.
To be sure, the statute provides that a product is in a
defective condition if not accompanied by adequate instruc‐
tions and warnings, so if a product bears adequate instructions
and warnings it is not in a defective condition under § 34‐20‐4‐
2. But the statute also provides an alternative basis for finding
a product in a defective condition, § 34‐20‐4‐1, and that section
determines whether a product has a design defect or a manu‐
Nos. 12‐3024 & 12‐3025 27
facturing defect. Nothing in the IPLA indicates that the lack of
a defect under § 34‐20‐4‐2 precludes a finding of a defect under
§ 34‐20‐4‐1. It is true that “[a] product is not defective … if it is
safe for reasonably expectable handling and consumption. If an
injury results from handling, preparation for use, or consump‐
tion that is not reasonably expectable, the seller is not liable
under this article.” § 34‐20‐4‐3. But in this case, Weigle and
Moore have come forth with evidence that it was reasonably
expectable that the support stands would be used sans support
pin and that using the stands in that manner was not safe. They
have also designated evidence that the support stands are not
incapable of being made safe. Cf. § 34‐20‐4‐4.
Moreover, SPX’s view that a manufacturer should not have
to design safer products if it provides adequate warnings is
inconsistent with the standard of care for product design set
forth in § 34‐20‐2‐2. A product designer must exercise reason‐
able care under the circumstances, and it is unreasonable to
omit from a product an easily installed and inexpensive
safeguard that would prevent potentially fatal accidents and
rely simply on the users’ ability and willingness to read,
comprehend, and follow all instructions and warnings on all
occasions. See Koske, 551 N.E.2d at 441 (criticizing “open and
obvious” rule as obscuring or minimizing “consideration of
human factors related to the foreseeable circumstances of
expected product use” (citations omitted)); see also Mesman, 409
F.3d at 849–52. The American Law Institute has explained:
In general, when a safer design can reasonably be
implemented and risks can reasonably be designed out
of a product, adoption of the safer design is required
over a warning that leaves a significant residuum of
28 Nos. 12‐3024 & 12‐3025
such risks. For example, instructions and warn‐
ings may be ineffective because users of the
product may not be adequately reached, may be
likely to be inattentive, or may be insufficiently
motivated to follow the instructions or heed the
warnings. However, when an alternative design
to avoid risks cannot reasonably be
implemented, adequate instructions and warn‐
ings will normally be sufficient to render the
product reasonably safe. Warnings are not, how‐
ever, a substitute for the provision of a reasonably safe
design.
Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998)
(emphases added) (hereinafter Products Liability). The Re‐
porter’s Note to Comment l explains that the contrary
rule—applied in Marshall—is based on the “unfortunate
language” of § 402A Comment j, and notes that Comment j
“has elicited heavy criticism from a host of commentators.” Id.
§ 2 cmt. l reporters’ note, at 101; see Howard Latin, Good
Warnings, Bad Products, and Cognitive Limitations, 41 U.C.L.A.
L. Rev. 1193, 1206–07 (1994); A.D. Twerski et al., The Use and
Abuse of Warnings in Products Liability—Design Defect Litigation
Comes of Age, 61 Cornell L. Rev. 495, 506 (1976). The Reporter’s
Note goes on to explain that “Comment j of the Restatement,
Second, is inconsistent with the judicial abandonment of the
patent danger rule.” Products Liability, supra, § 2 cmt. l report‐
ers’ note, at 101; cf. Mesman, 409 F.3d at 850 (explaining that
Indiana has abandoned the patent‐danger rule).
Nos. 12‐3024 & 12‐3025 29
This is not to say that the provision of adequate instructions
and warnings is irrelevant to a defective‐design claim. The
IPLA expressly requires that liability be determined under
principles of comparative fault. Ind. Code § 34‐20‐8‐1; Green,
942 N.E.2d at 794. Indiana law allows a fact finder to consider
a wide variety of factors in the allocation of fault. Green, 942
N.E.2d at 794–95. A defendant in a defective‐design case can
argue to the fact finder that the plaintiff’s failure to read and
heed adequate warnings and instructions was itself negligent
and that fault should be allocated accordingly. If the fact finder
allocates more than 50% of the total fault to the plaintiff, then
the defendant will avoid liability. Ind. Code §§ 34‐51‐2‐7 & ‐20‐
8‐1.
In sum, we predict that the Indiana Supreme Court would
not apply Marshall’s holding to bar Weigle’s and Moore’s
defective‐design claims. The current version of the IPLA
furnishes no basis for SPX’s adequate‐warnings defense, and
that defense is inconsistent with the standard of care required
of product designers. At most, a plaintiff’s failure to read and
heed adequate instructions and warnings is something for the
fact finder to consider in allocating fault.
2. Misuse
The IPLA recognizes a defense “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 (emphases added); see, e.g., Leon v. Caterpillar
Indus., Inc., 69 F.3d 1326, 1341–44 (7th Cir. 1995). “Foreseeable
use and misuse are typically questions of fact for a jury to
30 Nos. 12‐3024 & 12‐3025
decide.” Barnard v. Saturn Corp., 790 N.E.2d 1023, 1028 (Ind. Ct.
App. 2003). Misuse is not a complete defense but is considered
an aspect of comparative fault. See Chapman v. Maytag Corp.,
297 F.3d 682, 689 (7th Cir. 2002); cf. Morgen v. Ford Motor Co.,
797 N.E.2d 1146, 1148 n.3 (Ind. 2003) (declining to decide
whether misuse is a complete defense).
SPX relies on Barnard in arguing that it is entitled to
summary judgment. In that case, contrary to the instructions
and warnings, the decedent had used a jack that was intended
to be used only to change tires to prop up his car for an oil
change on an uneven surface, and while he was working the
car fell on top of him. 790 N.E.2d at 1031. The court found that
no reasonable jury could find the decedent to have been less
than 50% at fault. Id.
Despite the similarities between Barnard and the present
case, we conclude that SPX is not entitled to summary judg‐
ment on the defense of misuse. Weigle and Moore have
designated evidence from which a fact finder could determine
that use of the support stands without the pin was reasonably
foreseeable. Betcher admitted as much, which is why the
instructions and warnings stressed that the pin must always be
used.4 Moreover, the allocation of fault is classically a determi‐
nation for the fact finder. Green, 942 N.E.2d at 795.
4
In a footnote the Barnard court suggested that the term “reasonably
expected use” actually means “reasonably expected permitted use” because
otherwise the inclusion of a specific warning would amount to an admis‐
sion that a use contrary to that warning was foreseeable. 790 N.E.2d at 1031
n.3.
(continued…)
Nos. 12‐3024 & 12‐3025 31
III. Conclusion
For the foregoing reasons, the district court’s judgments are
AFFIRMED in part, VACATED in part, and the causes are RE‐
MANDED for further proceedings consistent with this opinion.
4
(…continued)
We do not think the Indiana Supreme Court would so brazenly insert addi‐
tional words into a statute. See State v. Am. Family Voices, Inc., 898 N.E.2d
293, 297 (Ind. 2008) (“The plain meaning of the statute … must be given
effect.”); Grody v. State, 278 N.E.2d 280, 285 (Ind. 1972) (“It is not within the
province of this Court to expand or contract the meaning of a statute by
reading into it language which will, in the opinion of the Court, correct any
supposed omissions or defects therein.” (citation omitted)).
32 Nos. 12‐3024 & 12‐3025
Appendix A
Nos. 12‐3024 & 12‐3025 33
Appendix B