dissenting.
While I concur as to all other issues, I respectfully dissent as to the majority's holding FMC Corporation did not bear the burden of proving the danger was "open and obvious." In my opinion, FMC was required to plead it as an affirmative defense, then bore the burden of proving that defense at trial.
By statute, all statutory or common law defenses that may be raised in a products liability action other than mere denials of the elements of a plaintiff's cause of action, must be raised as affirmative defenses. IND.CODE 33-1-1.5-4(a) at the time this case was tried provided
(a) The defenses in this chapter are defenses to actions in strict liability in tort. The burden of proof of any defense raised in a product liability action is on the party raising the defense. (Emphasis supplied).
The plaintiff in a products liability action makes out a prima facie case when he proves (a) he purchased a defective product from a seller engaged in the business of selling such product, (b) the product reached the user or consumer without substantial change in its condition, and (c) the product caused physical harm to the user or consumer because of such defect. Senco Products, Inc. v. Riley (1982), Ind.App., 434 N.E.2d 561; Ortho Pharmaceutical Corp. v. Chapman (1979), Ind.App., 388 N.E.2d 541. Plaintiff is not, required to *732prove any additional elements to establish his cause of action, specifically in this case the danger was not "open and obvious." Such an element is a matter of defense.
Once plaintiff presents evidence establishing the three elements of his cause of action above-mentioned, the burden of going forward with the evidence shifts to the defendant seller. He may either (a) contest the elements of plaintiff's cause of action, or (b) prove by a preponderance of the evidence any affirmative defense he may have, either those statutorily created by 1.C. 88-1-1.5-4(b), or any available common law defenses, such as the open and obvious defense in this case. The defendant may dispute any element of the plaintiff's cause of action under a general denial, but he must specially plead any other defense whether statutory or arising at common law as an affirmative defense and has the burden of proof thereon at trial, ef. I.C. 88-1-1.5-4(a), quoted above.
1 believe the legislature intended to eliminate "surprise" as a weapon of attack and defense in the trials of products liability cases, as did the courts generally when the current rules of procedure were adopted. Discussing Trial Rule 16, the Civil Code Study Commission commented
While opinions may vary as to the degree of its effectiveness, the pre-trial is generally thought to improve trials in the following respects: (1) it promotes lawyer preparedness; (2) it develops a clearer presentation of the opposing theories of the case; (8) it eliminates improper gaps and repetition in the evidence; and (4) it curbs the incidents of tactical surprise.
2 Harvey, INDIANA PRACTICE, Rule 16, p. 103, West Publ. Co. (1987). The legislature had the same intent when it enacted our Products Liability statute, I believe.
For those reasons it is my opinion FMC Corporation was required to specially plead and had the burden of proving at trial the danger was "open and obvious," as an affirmative defense under I.C. 838-1-1.5-4(a). Thus, the trial court did not err either by denying FMC the right to voir dire jurors on that issue, or by giving the instruction which placed the burden of proof of that issue on FMC.
For those reasons, I would affirm the trial court in all things.