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. *1155Clark 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"), trons. 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 1826 (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 1841-42.
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 1842-48. 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 1348-44. 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 *1156answer 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 Trucking, 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, "[ylou 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.8 R. at 2781-82. Dr. Roberts elaborated on this point during direct examination. *1157When 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 8258 (cross-examination of Janet Snyder, the driver of the car in which Morgen was passenger), 3851 (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." Op. at 1147. 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.
. Specifically the statute provides:
It is a defense to an action under this article (or LC. § 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.
. 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.
. [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?
*1157[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.
. [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.