dissenting
I believe that the Lantis Corporation was entitled to summary judgment under the doctrine of incurred risk and therefore respect*201fully dissent from the majority’s reversal of summary judgment.
Ind.Code Ann. § 34-20-6-3 (West Supp. 1998) (formerly Ind.Code Ann. § 33-1-1.5-4 (repealed 1998)), codifies the statutory equivalent of the defense of incurred risk, as follows:
It is a defense to an action under this article (or IC 33-1-1.5-before its repeal) that the user or consumer bringing the action:
(1) knew of the defect;
(2) was aware of the danger in the product; and
(3) nevertheless proceeded to make use of the product and was injured.
The defense of incurred risk is applicable to negligence claims brought under the Products Liability Act, i.e., IC § 34-20-1-1 et seq. Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932 (Ind.Ct.App.1994). The defense applies when the evidence establishes that the plaintiff knew and appreciated the danger caused by the alleged negligence, but nevertheless accepted the danger voluntarily. Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind.Ct.App.1990), trans. denied.
The majority concludes that Lantis is not entitled to summary judgment because there remains a question of fact regarding whether Cole’s acceptance of the risk was voluntary. The majority cites in support of this view several cases involving employees who, like Cole in the instant case, were injured on the job. Two of those cases, Richardson v. Marrell’s, Inc., 539 N.E.2d 485 (Ind.Ct.App.1989) and Meadowlark Farms, Inc. v. Warken, 176 Ind.App. 437, 376 N.E.2d 122 (1978), involved employees who were injured on the defendant’s business premises. In those cases, this court concluded that the voluntariness of the acceptance of the risk was in question because the plaintiff arguably was under some sort of compulsion to accept the risk. As the Meadowlark Farms, Inc. court phrased it, there was a question “whether he had no real choice as a result of ‘influence, circumstances, or surroundings which (were) a real inducement to continue.’ ” Id. at 134 (source of internal quotation not provided in original). The “influence” to which the court alluded in both cases came from the employer/defendant. In this context, there is no doubt that the “inducement” to which the court referred was continuance of the business relationship or employment. Here, on the other hand, Lantis did not have a business relationship with Cole and thus was unable to exert any influence with regard to the risk posed by using the K-Loader. As a result, Lantis could not offer an inducement to Cole to accept the risk, certainly not the inducement that in this context affects the voluntariness of accepting the risk, i.e., continued employment.
In summary, I would not extend the principles that were applied in Meadowlark Farms and Richardson, concerning the voluntariness of the acceptance of a known risk, beyond the context in which they were applied in those cases, i.e., when a plaintiffiemployee sues his employer or a party with whom he has a business relationship for injuries suffered while on the defendant’s premises. I believe that if the relationship between the employee and the defendant is not such that the defendant can exert influence over the plaintiff and offer inducements (in this case, pecuniary), then the rationale that gave rise to the rule is not present and the rule does not apply. This view is buttressed by Comment (b) to § 496 E of the Restatement (Second) of Torts, concerning the necessity of a voluntary assumption of risk. That comment states:
The plaintiffs acceptance of the risk is to be regarded as voluntary even though he is acting under the compulsion of circumstances, not created by the tortious conduct of the defendant, which have left him no reasonable alternative. Where the defendant is under no independent duty to the plaintiff, and the plaintiff finds himself confronted by a choice of risks, or is driven by his own necessities to accept a danger, the situation is not to be charged against the defendant.
Simply put, Lantis neither exerted influence over, nor offered an inducement to, Cole such that the voluntariness of Cole’s decision, with respect to this particular defendant, was called into question.
*202The third case cited by the majority, Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, is distinguishable for a different reason. As noted by the majority, the Schooley court stated that “the issue of whether an employee has incurred the risk of an activity incidental to his or her employment is a question of fact for the jury to decide.” Id. at 940. However, the court went on to acknowledge, “We have also recognized that prior knowledge of specific dangers of a job and acceptance of these dangers warrants a finding of incurred risk as a matter of law.” Id. The court concluded that the question of whether Schooley voluntarily incurred the risk of her injuries was to be determined by a jury because the evidence revealed that “she was not aware of the specific risk of using a product which was lacking a safety device. Furthermore, she was not aware of the risk that a 1500 pound plate would fall to the side in the manner in which it did.” Id. In other words, the evidence revealed that the plaintiff in that case was not aware of the specific risk to which she subjected herself. The same cannot be said in Cole’s case.
In Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379, a worker was injured when he fell off of a ladder that was affixed to the side of a grain storage bin. He sued the owner of the bin on which the ladder was located, the company that manufactured the ladder, and the company that constructed the bin. His claim of negligence centered upon the fact that there was not a protective cage around the ladder. At the time of his fall, the worker was climbing the ladder using one hand, while holding conduit in the other. He testified that he had climbed the same ladder on a least twenty previous occasions, including five times earlier that day. He testified that he knew the ladder was un-caged, and he was aware of a risk of falling any time one climbs a ladder using only one hand. He also stated that he accepted the risk that he would fall off of a ladder as a part of his job. In affirming summary judgment in favor of the defendants, the court stated: “[Ojur record unmistakably shows [the worker] actually knew of the dangers he faced by climbing the ladder with one hand.” Id. at 1382. In my view, the relevant facts in the case before us are strikingly similar to those in Ferguson.
Cole was injured when he fell through a gap between the handrails of the K-Loader and the airplane. Cole testified in a deposition that he noticed on his first day on the job with Evergreen’s that the K-Loaders had a smaller platform and smaller rails than he was accustomed to. He also testified that he knew the handrails were not allowed to touch the airplane, thereby evincing knowledge that there was always a gap between the airplane and the K-Loader. He testified that it was apparent to him from the time that he commenced employment with Evergreen that this was a “dangerous condition.” Record at 239. Specifically, he testified:
Q: You had been at Evergreen then for a full year anyway?
A: Correct.
Q: And then noticed this—
A: Correct.
Q: —business with the rails for a full year?
A: Correct.
****:}«
Q: Did you regard this as some sort of a dangerous condition?
A: Yes.
Q: And that was right from the first time you saw it?
A: Correct.
* ‡ ‡ ‡
Q: And the business that you are talking about, the positioning of the rails and so forth, this was something that was open and obvious that you could see readily?
A: Exactly, correct.
Record at 238-39.
I believe that the designated materials demonstrate that Cole was aware of the specific risks posed by the allegedly dangerous condition of which he complained, and that he voluntarily exposed himself to those risks without inducements or influence on the part of Lantis. See Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379. I would *203affirm the trial court’s grant of summary judgment in favor of Lantis upon my view that Cole incurred the risk posed by the allegedly dangerous condition as a matter of law.