Morgen v. Ford Motor Co.

Attorneys for Appellant Attorneys for
Appellee

Thomas A. Clements Julia Blackwell
Gelinas
David M. Hamacher Nelson D.
Alexander
Hammond, Indiana Allison S. Avery
Indianapolis, Indiana
James L. Gilbert
Paul J. Komyatte
Arvada, Colorado

Attorneys for Amicus Curiae

Indiana Trial Lawyers Association

David V. Scott
New Albany, Indiana

Thomas C. Doehrman
Indianapolis, Indiana
____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 71S03-0211-CV-00593

Monterey P. Morgen,
Appellant (Plaintiff below),

v.

Ford Motor Company,
Appellee (Defendant below).
_________________________________

Appeal from the St. Joseph County Superior Court, No. 71D07-9405-CT-00130
The Honorable William C. Whitman, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 71A03-0003-
CV-00108
_________________________________

October 29, 2003

Sullivan, Justice.

A jury rejected Monterey P. Morgen’s claim that Ford Motor Company was
responsible for the serious injuries he suffered as a back seat passenger
in an automobile accident. The Court of Appeals ordered a new trial on the
ground that the jury had been improperly instructed on Morgen’s failure to
use his seat belt. We find that the instruction was not erroneous, and
even if it were, it did not affect the jury’s verdict.

Background

On November 14, 1993, Monterey P. Morgen sat in the passenger-side
rear seat of a 1984 Ford Escort Station Wagon, Morgen’s girlfriend Kristy
Snyder sat in the front passenger-side seat, and her mother Janet Snyder
was driving. Morgen was not wearing the seat belt provided in the back
seat.

The Escort was stopped at an intersection in Mishawaka when a 1991
Honda Accord hit the vehicle in the rear. Ford’s expert estimated that the
Honda Accord was traveling at 33 to 35 miles per hour but Morgen’s expert
estimated that it was traveling at 24 to 28 miles per hour. Regardless,
the impact of the rear-end collision caused the Escort to crash into an
Oldsmobile Cierra in front of it. The back of the Escort suffered
substantial damage. Morgen sustained a spinal cord injury in the accident
and is now quadriplegic.

Morgen filed a products liability suit against Ford Motor Company
claiming that the Escort was defective and unreasonably dangerous. The two
parties offered conflicting expert testimony to explain how Morgen was
injured. Morgen’s experts testified that the injury was caused when the
rear seat deformed upward during the crash, reducing the occupant survival
space and causing Morgen’s head to strike the roof of the car. Morgen’s
experts further testified that the structural design of the Escort was
defective and that a flaw in the manufacturing process created structural
weakness in the vehicle.

Ford denied that the Escort was improperly designed and disputed
Morgen’s theory. Ford’s experts testified that Morgen’s neck was broken
because the horizontal forces moving the vehicle launched him into the roof
of the Escort. Ford pointed to evidence of rear-end crash tests showing
that an unbelted back seat passenger’s head does not move appreciably in a
vertical direction in accidents of the type that happened here. Rather,
Ford’s experts testified, when the Escort was rear-ended, the car moved
forward but Morgen did not. Instead, Morgen’s torso remained in place as
the seatback compressed and moved to a reclined position. The seatback
then pushed him forward and as his torso was driven forward, his head and
neck, which were above the seat, flexed backward. Ford claimed that
Morgen’s spinal injury occurred when he ramped up and over the seatback as
the Escort moved forward. Ford also asserted that Morgen’s decision not to
wear a seat belt constituted a misuse of the Escort.

The trial court rejected jury instructions tendered by Morgen
regarding the duty to warn of latent defects but it gave an instruction on
misuse. The jury returned a verdict in favor of Ford. The Court of
Appeals reversed and remanded on the ground that the trial court abused its
discretion in giving an instruction on misuse. Morgen v. Ford Motor Co.,
762 N.E.2d 137, 140-44, 147 (Ind. Ct. App. 2002). We granted transfer.
783 N.E.2d 701 (table).

Additional facts will be discussed as necessary.

Discussion

I

“Indiana’s Product Liability Act imposes strict liability in tort
upon sellers of a product in a defective condition unreasonably dangerous
to any user or consumer.” Hinkle v. Niehaus Lumber Co., 525 N.E.2d 1243,
1244 (Ind. 1988) (citing Ind. Code § 33-1-1.5-3[1]). The Act also provides
that a misuse of the product can be a defense. Ind. Code § 33-1-1.5-
4(b)(2) (1993).[2],[3]
Ford argued at trial that Morgen’s failure to use the seat belt
provided in the back seat constituted a “misuse” within the meaning of the
Act; no other misuse was alleged. Over Morgen’s objection, the court read
the following instruction on misuse to the jury:

With respect to any product liability action based on strict liability
in tort . . . . It is 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.

(R. at 1101.)

The Court of Appeals determined that the trial court committed
reversible error by giving this instruction. The court said that it had
“repeatedly held that it is ‘clearly foreseeable’ that a passenger might
fail to wear a safety belt,” and that Indiana law does not require back
seat passengers in automobiles to wear one. Morgen, 762 N.E.2d at 142.
Given that failure to wear a seat belt was reasonably expected and that
there was no clearly enumerated duty to do otherwise, the court concluded
that failure to wear a seat belt could not constitute a misuse. Id. at 142-
43.

We believe the instruction was properly given here. We see the
essential question to be whether it was within the province of the fact
finder to determine if the plaintiff’s failure to utilize a safety device
provided by the manufacturer constituted misuse of the manufacturer’s
product. While we agree with Morgen that his failure to use the seat belt
did not constitute a misuse as a matter of law, so too do we agree with
Ford that the question of misuse was a matter for the jury, not the court,
to decide. We believe this result serves to encourage manufacturers to
equip their products with safety devices irrespective of whether the
devices’ use is mandatory or even widespread.

When a manufacturer does not reasonably expect it, a plaintiff’s
failure to use available safety devices can constitute misuse in a
crashworthiness case. See Leon v. Caterpillar Indus., Inc., 69 F.3d 1326,
1344 (7th Cir. 1995) (applying Indiana law, the court stated “a person who
disregards manufacturer safety devices raises an issue of misuse and,
further, that evidence of such is sufficient to justify an inference of
misuse”) (citations omitted).[4] “Foreseeable use and misuse are typically
questions of fact for a jury to decide.” Vaughn v. Daniels Co. (W. Va.),
777 N.E.2d 1110, 1129 (Ind. Ct. App. 2002) (citation omitted), trans.
pending; Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind. Ct. App.
1993) (“The foreseeability of an intervening misuse is usually a question
for the jury.”) (citation omitted), trans. denied. A number of other
jurisdictions have reached this same result in similar cases. Melia v.
Ford Motor Co., 534 F.2d 795, 797, 799 (8th Cir. 1976) (stating that under
Nebraska law it was proper for the jury to determine whether the decedent
misused the product by failing to use a safety belt); General Motors Corp.
v. Walden, 406 F.2d 606, 609 (10th Cir. 1969) (holding that under Arizona
law the court properly instructed the jury that the plaintiff's failure to
wear a safety belt could be a misuse); Brown v. Ford Motor Co., 67 F. Supp.
2d 581, 582, 584-87 (E.D. Va. 1999) (finding that under Virginia law
evidence of pickup driver's failure to wear a safety belt was admissible in
an action against the manufacturer as it relates to product misuse), aff'd,
10 Fed. Appx. 39 (4th Cir. 2001).

It is true that the statute provides that the misuse defense is only
available to the seller when the misuse was not reasonably foreseeable from
the seller's perspective at the time the product was sold. Underly, 605
N.E.2d at 1189. When the Court of Appeals said that it had repeatedly held
that it is “clearly foreseeable” that a passenger might fail to wear a
safety belt, it was referring to three criminal cases. In each, the
defendants sought to avoid liability for deaths caused by their driving on
the ground that the victims were not wearing seat belts. See Green v.
State, 650 N.E.2d 307, 309-10 (Ind. Ct. App. 1995); Warner v. State, 577
N.E.2d 267, 270 (Ind. Ct. App. 1991); Bowman v. State, 564 N.E.2d 309, 310
(Ind. Ct. App. 1990), rev'd and remanded on other grounds, 577 N.E.2d 569
(Ind. 1991). Not surprisingly, their claims were rejected on the basis
that, because the failure to wear a seat belt was reasonably foreseeable,
such failure was not an intervening cause sufficient to absolve the
defendants of criminal responsibility.

We think the court’s reliance on these cases proves too much. If it
is so “clearly foreseeable” that a passenger will not wear a seat belt, it
is difficult to see any harm from the instruction given here. The jury was
told that the misuse defense was only available if Ford did not reasonably
expect the alleged misuse. If a passenger’s failure to wear a seat belt is
as “clearly foreseeable” as the Court of Appeals says it is, we think that
would be just as clear to a jury and it could not render a verdict for the
defense because there would be no misuse.[5] If, on the other hand, there
was some genuine question about Ford’s expectation of Morgen’s failure to
wear his seat belt, then this was a most appropriate question to submit to
the jury, as the cases make clear. See Leon, 69 F.3d at 1344; Vaughn, 777
N.E.2d at 1129; Underly, 605 N.E.2d at 1189.

II

Morgen tendered two jury instructions (nos. 6 and 13) that the trial
court declined to use. Morgen contends that this constituted reversible
error.

Morgen’s proposed instruction no. 6 read:

You may find that Ford Motor Company, because of its technical
knowledge as a designer, manufacturer and distributor, knew or should
have known of the dangers posed by the 1984 Escort in reasonably
foreseeable rear end collisions and also knew that consumers such as
Morgen, without the benefit of such technical information, could not
have known of those dangers. If you so find, then you may find that
Ford Motor Company owed the duty to warn of such dangers posed by the
1984 Escort.

(R. 1204.)
Morgen’s proposed instruction no. 13 read: “Although a manufacturer is
under no duty to warn of apparent dangers, a manufacturer has the duty to
guard against hidden defects and give notice of concealed dangers.” (R. at
1118.)

Rather than use Morgen’s tendered instructions, the trial court used
the text of the Product Liability Act. In relevant part, the jury was
instructed as follows:

A product is in a defective condition if, at the time it is conveyed
by the seller to another party, it is in a condition:

Not contemplated by reasonable persons among those considered
expected users or consumers of the product; and
That will be unreasonably dangerous to the expected user or
consumer when used in reasonably expectable ways of handling or
consumption.

A product is defective under this chapter 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 available to the
user or consumer. . . .

“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
it with the ordinary knowledge about the product’s characteristics
common to the community of consumers.

(R. at 465-66.)

The Court of Appeals held the trial court’s instruction inadequate.
First, it found that the instruction “did not inform the jury of the
information Ford needed to possess about defects in its product to trigger
a duty to warn.” Morgen, 762 N.E.2d at 146. In contrast, the Court of
Appeals said that Morgen’s tendered instructions “explained that Ford had a
duty to warn consumers of hidden dangers Ford knew or should have known
about, but that a consumer could not have known about.” Id. On this
basis, it concluded that Morgen’s tendered instructions were not covered by
the instruction given to the jury. Id.

Second, the Court of Appeals found that “Morgen’s substantial rights
were prejudiced by the failure to instruct the jury on the duty to warn
regarding hidden defects” because this apparent disparity left the jury “to
speculate as to what knowledge Ford needed before its duty to warn
consumers arose.” Id.

The instruction given at trial informed the jury that Ford had a duty
to warn of “danger[s] about the product.” Morgen’s tendered instructions
also instructed the jury that Ford had a duty to warn. However, Morgen’s
instructions focused on “hidden defects” and “concealed dangers.” In so
doing, we acknowledge that they more narrowly described the scope of Ford’s
duty to warn than did the trial court’s instruction. But the trial court’s
instruction allowed the jury to find that Ford had a duty to warn of any
“danger about the product.” As a matter of logic, this included “hidden
defects” and “concealed dangers.” Accordingly, we believe the substance of
Morgen’s tendered instructions were covered by the instruction given at
trial. For this reason, Morgen’s substantial rights were not adversely
affected by the trial court’s refusal to read his tendered instructions.

Even if Morgen’s instructions were not encompassed by the trial
court’s instruction, we do not find the record sufficient to warrant giving
Morgen’s tendered instructions on failure to warn.

The primary evidence supporting Morgen’s tendered warning
instructions is three-fold. First, Morgen provided evidence suggesting
that Ford knew that the Escort was dangerous in rear-impact collisions and
that consumers would not be aware of the danger. Second, Janet Snyder
testified at trial that she “would not have purchased the car,” and
“wouldn’t have let [Morgen] be in the back seat,” had she been warned that
danger to back seat passengers was a possibility. (R. at 3251-52.)
Finally, Morgen testified that he would not have gotten in the Escort had
he known of the potential danger.

There was, however, no testimony or evidence presented at trial on the
content or placement of a warning that would have prevented the danger
posed by the alleged defect. In Nissen Trampoline Co. v. Terre Haute First
Nat’l Bank, 265 Ind. 457, 463-64, 358 N.E.2d 974, 978 (1976), this Court
said that “supporting and opposing evidence relevant to a determination of
what a proper warning should state . . . . [is] indispensable to a rational
conclusion that the product was defective and unreasonably dangerous to the
user without warnings, and to a rational conclusion that such unreasonably
dangerous condition was the proximate cause of the accident and injury.”
Without such evidence, the parties and appellate courts are required to
hypothesize as to specific warnings that would meet muster. Id.

The concern we expressed in Nissen applies equally here. As in that
case, the jury here was instructed in such a way that it could determine
Ford to be liable on the basis of a failure to provide an adequate warning.
Morgen did present some evidence showing that the issue of warnings was a
legitimate concern. However, as was also true in Nissen, neither party
presented evidence as to what a warning could have said or where it could
have been placed. Without this evidence we are left to hypothesize as to
what specific warnings would have made the Escort reasonably safe. We will
not find the trial court’s instructions inadequate without more.

III

Morgen contends that the trial court committed reversible error in
its jury instruction on proximate cause. The Court of Appeals found no
reversible error in this regard, Morgen, 762 N.E.2d at 147, and we
summarily affirm its conclusion on this issue, Ind. Appellate Rule 58(A).

IV

Morgen contends that the trial court committed reversible error when
it denied his request to present rebuttal testimony from two witnesses whom
he claims would have provided additional analysis of crash tests performed
by Ford in June, 1999.

“‘Rebuttal evidence is evidence that tends to explain, contradict, or
disprove an adversary’s evidence.’ Trial courts may exclude testimony
offered in rebuttal that should have been presented in the party’s case in
chief. However, such a decision is left to the sound discretion of the
trial court.” McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.
1993) (quoting Watkins v. State, 528 N.E.2d 456, 459 (Ind. 1988))
(citations omitted). We review for an abuse of discretion.

Morgen maintains that Dr. Joseph Burton should have been allowed to
testify that Ford’s June, 1999, crash test film shows that the test dummy
began moving up with the seat early in the crash, thereby implying that
Morgen’s injury was a result of a product defect and not the force of the
crash. He also urges that deposition testimony of Jack Ridenour should
have been allowed arguing that the film analysis of the tests should
control over the electronic data generated during the tests. Relying on
McCullough, Morgen asserts that the excluded rebuttal testimony, “if
believed by the jury, would likely have produced a different result” and
therefore requires a new trial. (Br. of Appellant at 37 (quoting
McCullough, 605 N.E.2d at 181).)

In McCullough, we clarified a rule that requires known and
anticipated witnesses to be identified pursuant to a court order or to a
proper discovery request. 605 N.E.2d at 179. After finding a violation of
this rule, we noted that the trial court could properly have excluded
testimony from unidentified witnesses as a sanction. We nonetheless
remanded the case to the trial court because we found that it had been
unclear whether it was necessary to identify known and anticipated
witnesses in light of a tradition of nondisclosure of rebuttal witnesses
among Indiana lawyers and in light of the fact that the excluded testimony
would likely have produced a different result at trial. Id. at 181.

In contrast, Morgen does not suggest that Ford intentionally failed
to disclose a known or anticipated witness in violation of a court order or
of a proper discovery request. In fact, Morgen and Ford had agreed to
allow Ford to introduce into evidence the disputed June, 1999, crash test
data in return for Morgen being permitted to introduce computer animated
drawings and a “surrogate” study.

Morgen further argues that his rebuttal testimony should have been
admitted against Ford’s expert witness, Dr. Roberts, because Morgen “did
not have the luxury of knowing in advance of trial how Roberts intended to
rely upon the . . . tests” and that rebuttal was his “only opportunity to
address this key testimony.” (Br. of Appellant at 37.) Specifically,
Morgen maintains that Dr. Roberts’s testimony “that the dummy’s head did
not move upward until after the seat deformed” came as a complete surprise
because Ford’s opening statement led Morgen to assume that Dr. Roberts
would testify that Morgen’s head collided with the roof of the car before
the floor pan was pushed upward. (Id. at 35.)

As already noted, Morgen and Ford had an agreement that allowed Ford
to present the data from the June, 1999, crash tests about which Dr.
Roberts testified. Morgen claims that Dr. Roberts’s testimony was a
“surprise.” However, Morgen had full access to Ford’s crash test data
before it was used at trial. In fact, the opinion Dr. Roberts expressed at
trial was consonant with his opinion expressed in a pre-trial deposition.
The trial court could have concluded that Morgen was not unfairly surprised
by Dr. Roberts’s testimony at trial and, as such, it was well within its
discretion to deny Morgen permission to call these witnesses.

Conclusion

Having previously granted transfer, we now affirm the judgment of the
trial court.

Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.

Dickson, Justice, dissenting.

In addition to concurring with Justice Rucker's dissent, I write to
emphasize the point upon which I most strenuously disagree with the
majority.

It is unquestionably error for a trial court to give an instruction
on a proposition of law about which there was no evidence. Mullins v.
Bunch, 425 N.E.2d 164, 165-66 (Ind. 1981); Dahlberg v. Ogle, 268 Ind. 30,
40, 373 N.E.2d 164, 165-66 (Ind. 1978); Wylie v. Myers, 238 Ind. 385, 391,
150 N.E.2d 887, 890-91 (1958); Birdsong v. ITT Continental Baking Co., 160
Ind. App. 411, 415, 312 N.E.2d 104, 107 (1974); Summers v. Weyer, 141 Ind.
App. 176, 179-80, 226 N.E.2d 904, 907 (1967). Here the jury was
instructed, over the plaintiff's objection, that "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" is a defense to the plaintiff's claim. R. at 1101 (emphasis added).
For this instruction to have been proper, it was thus necessary that there
be evidence not only that the plaintiff misused the product, but also that
such misuse was not reasonably expected by Ford Motor Company at the time
it sold the 1984 Ford Escort.

There was absolutely no evidence at trial to establish that Ford
Motor Company reasonably expected every rear seat passenger to always wear
a seat belt. Such contention defies common sense. Not only in 1984, but
even today, it is common knowledge that significant numbers of automobile
passengers fail to wear their seat belts. The Indiana statute requiring
the use of seat belts was not enacted until 1985 and it applied then, and
today still applies, only to front seat occupants. Indiana Code § 9-19-10-
2. It is preposterous to claim that Ford Motor Company did not reasonably
expect some rear seat passengers in Ford automobiles occasionally to ride
without buckling their seat belts. Because of the total lack of evidence
establishing that the failure to wear rear seat belts was unforeseeable to
Ford, the trial court clearly erred in giving the misuse instruction.

The erroneous giving of an instruction that is not based on the
evidence is reversible error unless it clearly appears that no harm
resulted. Summers, 141 Ind. App. at 180, 226 N.E.2d at 907. As noted in
Justice Rucker's dissent, throughout the trial, Ford focused on the
plaintiff's failure to wear a seatbelt. Given the jury's verdict favoring
Ford, it cannot reasonably be claimed that no harm resulted from the
erroneous misuse instruction. I would reverse the judgment of the trial
court.

Rucker, Justice, dissenting.

I respectfully dissent from that portion of the majority opinion
declaring the trial court properly gave to the jury a product misuse
instruction. “Misuse” is considered an “unforeseeable intervening cause”
that relieves a manufacturer of liability. Indianapolis Athletic Club,
Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999),
trans. denied. It is a defense when a consumer’s decisions and conduct are
not “reasonably expected” from the standpoint of the manufacturer at the
time of sale. Ind. Code § 34-20-6-4;[6] Underly v. Advance Mach. Co., 605
N.E.2d 1186, 1189 (Ind. Ct. App. 1993), trans. denied.

I agree that whether a consumer’s conduct is reasonably foreseeable or
expected falls “peculiarly within the province of the jury.” Short v.
Estwing Mfg. Corp., 634 N.E.2d 798, 801 (Ind. Ct. App. 1994), trans.
denied. However, that is not the end of the matter. Rather, the burden is
on the manufacturer to introduce evidence in support of its defense. See,
e.g., Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1108-09 (Ind. Ct. App.
1997) (noting that the manufacturer’s product safety director testified
that plaintiff operated machinery “in an unforeseeable manner”), trans.
denied. As applied to the facts here, Ford had the burden of proving that
it did not reasonably expect or reasonably foresee that Morgen, or any
other back seat passenger for that matter, would fail to wear a seat belt
in Ford’s 1984 Escort wagon.

Tacitly acknowledging that it introduced no evidence on this point,
Ford cites Leon v. Caterpillar Indus., Inc., 69 F.3d 1326 (7th Cir. 1995)
for the proposition that “a person who disregards manufacturer safety
devices raises an issue of misuse and, further, that evidence of such is
sufficient to justify an inference of misuse.” Id. at 1344. Ford’s
apparent position is that because there was testimony introduced at trial
that Morgen was not wearing a seat belt at the time of the collision that
alone was enough to raise a jury question on the issue of misuse.

In Leon, a disabling switch on a forklift malfunctioned and did not
put the machine in neutral when the operator rose from his seat. After
stepping down from the forklift and standing in close proximity thereto,
the operator was severely injured when the forklift suddenly lunged forward
striking him. The operator filed suit against the forklift manufacturer
under theories of strict products liability, negligence, and breach of
express and implied warranties. Ultimately the case went to the jury on
the products liability claim only. The jury returned a verdict for the
manufacturer and the operator appealed. Among other things he alleged
trial court error in giving a jury instruction on misuse of the equipment.
According to the forklift operator, “the jury should have been instructed
that, as a matter of law, there was no evidence of product misuse, because
one of [the manufacturer’s] representatives . . . testified that [the
forklift operator] was using the forklift for an intended and appropriate
purpose at the time of the accident . . . .” Id. at 1341-42.

Disagreeing with this argument and affirming the judgment of the
District Court, the Seventh Circuit recounted the “ample evidence”
introduced at trial to support giving the instruction, which included the
operator’s violation of “four independent safety violations.” Id. at 1342-
43. The Court continued: “[I]f [the forklift operator] had followed any
one of the precautions listed above, he would not have been injured. We
refuse to hold [the manufacturer] to a standard of liability that results
in it being held responsible for the kind of gross carelessness and
disregard for the safety rules and regulations exhibited by [the forklift
operator].” Id. at 1343-44. It was in this context the Court went on to
say:

Our holding that there was sufficient evidence of product misuse
to support a jury instruction and finding on the issue also
finds support in this court’s holding that a person who
disregards manufacturer safety devices raises an issue of misuse
and, further, that evidence of such is sufficient to justify an
inference of misuse.

Id. at 1344. The case before us is readily distinguishable. The only
“evidence” introduced at trial on the question of alleged misuse was
testimony that Morgen was not wearing a seat belt at the time of the
collision. This is insufficient to show Ford reasonably expected that
Morgen would do otherwise. Ford contends that over the last twenty years
or so state and federal governments, traffic safety organizations, as well
as car manufacturers, have been “trumpeting the necessity of wearing seat
belts.” Ford’s Pet. for Trans. at 5. Ford may be correct. However, this
does not answer the question of whether in the early stages of the
campaign, in particular in 1983 when Ford placed its 1984 Escort wagon on
the market, Ford expected that drivers or their passengers would
necessarily heed the advice to wear seat belts. In fact the record shows
Ford absolutely did not expect the vast majority of people to wear seat
belts. In documents submitted to the National Highway Traffic Safety
Administration (NHTSA) during the period Ford was selling first generation
Escorts to the public, Ford commented on seat belt use of automobile
occupants. More specifically, in one document a Ford senior executive
referred to the “low rear safety belt usage rates of about 10 percent
versus 38 percent for front seats.” See Ford’s July 1987 comments to
Docket 87-08, Notice 1, R. at 473. Although this document was not part of
the evidence presented to the jury,[7] it nonetheless belies the inference
now made on appeal that Ford reasonably expected occupants of its
automobiles to wear seat belts. The record is clear that when Ford sold
the 1984 Escort wagon, Ford knew that 90% of rear seat occupants would not
utilize seat belts.

Again, misuse is a defense when a consumer’s decisions and conduct are
not reasonably expected from the manufacturer’s perspective at the time the
product was sold. Here, there was simply no evidence introduced at trial
from which the jury could infer Ford’s reasonable expectation either at the
time of sale or at any other time.

An instruction given to the jury must be a correct statement of the
law and be supported by evidence adduced at trial. Elmer Buchta, Inc. v.
Stanley, 744 N.E.2d 939, 944 (Ind. 2001). Because Ford introduced no
evidence at trial on whether it reasonably expected Morgen to wear a seat
belt, the trial court erred in giving a product misuse instruction.

An erroneous instruction requires reversal if it could have formed the
basis for the jury’s verdict. This court will assume the erroneous
instruction influenced the jury’s verdict unless the evidence of record
shows the verdict could not have differed even with a proper instruction.
Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990). The record shows
that at various points throughout the trial Ford focused on Morgen’s
failure to wear a seat belt. For example, during opening statements
counsel for Ford declared, “[y]ou will also hear Dr. Roberts among others
say very candidly to you they cannot tell you with engineering certainty
that had this young man been wearing his seat belt at the time[,] this
injury would have been avoided. Dr. Roberts will tell you that had this
young man been wearing his lap belt he may have avoided this injury or
certainly reduced the potential for the injury.” R. at 2781-82. Dr.
Roberts elaborated on this point during direct examination.[8] When
questioning one of its design engineer witnesses, Thomas Tiede, Ford
brought home the point of the importance of wearing a seat belt.[9] The
record also shows that through both direct and cross-examination of
witnesses, Ford reminded the jury that Morgen was not wearing a seat belt
at the time of the accident. See id. at 3258 (cross-examination of Janet
Snyder, the driver of the car in which Morgen was passenger), 3351 (cross-
examination of Morgen), 3837 (re-direct examination of Patrolman Daniel
Huffman, first law enforcement officer to arrive at the scene of the
accident).

This case was vigorously contested. Among other things the parties
offered conflicting expert testimony to explain how Morgen was injured as
well as conflicting expert testimony on whether the Escort was improperly
designed. Given the emphasis Ford placed on Morgen’s failure to wear a
seat belt, coupled with the trial court’s instruction on a point about
which there was no evidence, I cannot share the majority’s conclusion that
“the instruction was not erroneous, and even if it were, it did not affect
the jury’s verdict.” Slip op. at 2. To the contrary, I am compelled to
assume the erroneous instruction did indeed influence the jury’s verdict.
Canfield, 563 N.E.2d at 1282. I therefore dissent. The judgment of the
trial court should be reversed and this cause remanded for a new trial.

Dickson, J., concurs.

-----------------------
[1] The Product Liability Act was recodified in 1998 at Ind. Code § 34-20
et seq. by P.L. 1-1998, § 15. Section 33-1-1.5-3 was recodified at Ind.
Code § 34-20-6-1 (1998).

[2] “It is 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. Where the physical harm to the claimant is caused jointly
by a defect in the product which made it unreasonably dangerous when it
left the seller’s hands and by the misuse of the product by a person other
than the claimant, then the conduct of that other person does not bar
recovery by the claimant for the physical harm, but shall bar any right of
that other person, either as a claimant or as a lienholder, to recover from
the seller on a theory of strict liability.” Ind. Code § 33-1-1.5-4(b)(2)
(1993). This section was recodified at Ind. Code § 34-20-6-4 (1998).

[3] At least two recent decisions have held that under Indiana products
liability law, the defense of misuse is not a complete defense, but instead
is an element of comparative fault pursuant to Ind. Code § 34-20-8-1.
Chapman v. Maytag Corp., 297 F.3d 682, 689 (7th Cir. 2002); Barnard v.
Saturn Corp., 790 N.E.2d 1023, 1030 (Ind. Ct. App. 2003), trans. pending.
The parties in this case make no argument along these lines and we express
no opinion on it.
[4] Cf. Hopper v. Carey, 716 N.E.2d 566, 576 (Ind. Ct. App. 1999) (“the
lack of a safety device cannot be the cause of the injuries if other
adequate but unused safety devices were available to the plaintiff” (citing
DePaepe v. General Motors Corp., 33 F.3d 737, 746 (7th Cir. 1994))), trans.
denied, 735 N.E.2d 227 (Ind. 2000) (table).
[5] Cf. Indianapolis Athletic Club, Inc. v. Alco Standard Corp., 709 N.E.2d
1070, 1073 (Ind. Ct. App. 1999), trans. denied, 726 N.E.2d 304 (Ind. 1999),
where the court found the giving of a misuse instruction to be harmless
error where there was no evidence that the product had been misused. In
the absence of any such evidence, it was unlikely that the jury could have
based its defense verdict on misuse.
[6] Specifically the statute provides:
It is a defense to an action under this article (or I.C. § 33-1-1.5 before
its repeal) 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.
[7] Prior to trial Ford filed a motion in limine to exclude as evidence any
reference to this and other documents submitted to the NHTSA. According to
Ford these documents represented comments on proposed federal regulatory
changes. Thus, Ford argued, introducing them into evidence would infringe
upon its exercise of a First Amendment right to express views to public
officials regarding the passage or enforcement of law and regulations. R.
at 832. The trial court granted the motion. R. at 1074-78. And Morgen
did not challenge the ruling on appeal. Although not presented to the
jury, the documents remain a part of the record before us and cannot be
ignored.
[8] [Counsel for Ford]: Now, as far as seat belts are concerned. Do you
have an opinion based on a reasonable degree of mechanic engineering
certainty as to whether the use by Mr. Morgen of his seat belt would have
prevented his injuries?
[Dr. Roberts]: I do.
[Counsel for Ford]: And what is your opinion, sir?
[Dr. Roberts]: I couldn’t say it would have prevented them. I think it
would have modified and moderated them. You should always have [the] belt.
Particularly when you are being pushed from the rear by the seat back.
That belt is going to help. To say he would have had no injury, I couldn’t
do that. But I think the belts help. They do help. You ought to wear
them. I think they have some effect but complete elimination I couldn’t
say that. R. at 4209A-10.

[9] [Counsel for Ford]: From a design engineering standpoint what is it we
know about or what is it you know, I should say, about kinematics in the
rear?
[Mr. Tiede]: For rear seats we know that the – and I’m talking rear seats
like in a wagon or rear seats in a passenger car where it’s got – where
it’s more rigid, where you have a bulk head there, our early testing showed
that – that’s where we really decided early on our lap belts were kind of
important for rears too especially in that case. I run rear tests for
front seat occupants where I’ve conducted them for litigation purposes to
show lap belt helps there to [sic].
[Counsel for Ford]: Specifically in the rears - -
[Mr. Tiede]: But for the rears we know that package back there because of
the stiffness of the back and because of the configuration that what
happens in the back is you are sitting lower, your knees come up higher so
in that configuration that lap belt becomes even more important because of
the way your kinematics, as you load into the seat and as you ramp up the
back the lap belt is helpful in that scenario.” Id. at 3489-90.