DTCI: Using Misuse as a Defense

Indiana’s state and federal courts have long held that the incurred risk and product alteration defenses under Indiana’s Product Liability Act (IPLA) constitute “complete defenses.” This means that, if a defendant can prove one of these defenses, the plaintiff is barred from recovering from the defendant for any injuries suffered from the product. Misuse of a product, however, has not traditionally been a complete defense, instead having been considered as part of a comparative fault analysis. That changed with the Indiana Supreme Court’s recent opinion in Campbell Hausfeld/Scott Fetzer v. Johnson, where it held that misuse of a product constituted a complete defense. 109 N.E.3d 953 (Ind. 2018). Campbell has predictably been celebrated by the defense bar as a win — and for good reason. But applying the misuse doctrine, particularly as a complete defense, is nuanced and requires a more thorough understanding of Campbell and related law than the headlines might suggest.

History of the Misuse Defense

The misuse defense is expressly codified under the IPLA:

It is a defense to an action … 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. Misuse of a product is typically a question of fact. However, summary judgment based on misuse is appropriate when the undisputed evidence proves that the plaintiff or another person misused the product in an unforeseeable manner. Campbell, 109 N.E.2d at 959. Misuse is established as a matter of law when the undisputed evidence proves that the product was used in direct contravention of the product’s warnings and instructions. Id. To employ the misuse defense as a complete defense, a defendant must show both that the misuse of the product (1) caused the harm and (2) the misuse was not reasonably expected by the seller. If this cannot be shown, the misuse cannot serve as a complete defense and comparative fault principles would apply.

Overview of Campbell

In Campbell, the plaintiff was injured when the cutoff disc of a hand-held grinder came loose and struck him in the eye. The grinder came with an instruction manual that stated the grinder should be used only (1) with safety glasses and ear protection, (2) with an appropriate safety guard, and (3) with a cutoff disc that is “rated for a minimum of 25,000 RPM.” While the plaintiff was using the grinder, he failed to use a safety guard, wear protective glasses, or use the properly rated cutoff disc and was severely injured. He then sued the manufacturer of the grinder under the IPLA. The trial court granted the manufacturer’s motion for summary judgment on the grounds that the plaintiff misused the product and was at least 51 percent responsible for his injuries as a matter of law.

The Indiana Supreme Court held that misuse is a complete defense for claims brought under the IPLA and affirmed the entry of summary judgment for the grinder manufacturer. The court reasoned that, had the plaintiff used a safety guard, safety glasses, and an appropriate cutoff disc, he would not have been injured. Therefore, the court held that the plaintiff’s failure to follow the instructions was the cause of his injuries, and the manufacturer satisfied the first prong of the test.

Next, the Campbell court evaluated whether the plaintiff’s misuse of the product was reasonably expected by the manufacturer. The court concluded that, while the manufacturer “could have perhaps reasonably expected a user” to ignore one of the warnings, it was “not reasonably expected for a user to disregard the safety instructions in all three of these ways.” Ultimately, the court noted that plaintiff’s failure to heed and follow numerous warnings all at once rendered his misuse of the product unforeseeable, and therefore the manufacturer was entitled to summary judgment.

Questions Left by Campbell

The holding in Campbell presents several issues regarding the misuse defense. Let’s start with an easy one: What if the injured party had no idea the product was being misused at the time of injury? Instead, it was his employer or another third party whose misuse of the product caused the injury. Although an Indiana court has yet to address this issue, we believe the answer can be found in the IPLA itself. Specifically, the IPLA states that misuse is a defense if it is done by “the claimant or any other person.” Ind. Code Section 34-20-6-4 (emphasis added). In addition, most courts that have addressed “third party” misuse have adopted the same view; that is, the misuse by a party other than the person who was injured or suffered death from use of the product could provide a basis for the product misuse defense.

A second interesting question arises when there is evidence that plaintiff’s harm was caused jointly by a defect in the product combined with another party’s misuse. This issue was addressed before Campbell in Beird v. Figg & Muller Engineers, Inc., 516 N.E.2d 1114, 1117 (Ind. Ct. App. 1987). In Beird, the Indiana Court of Appeals held that the trial court erred by denying a jury instruction that stated misuse of a product could not bar recovery when the harm resulted jointly from another person’s misuse of the product, as well as the defective nature of the product. But with misuse available as a complete defense under Campbell, the holding of Beird is questionable.

Campbell also makes clear that the misuse doctrine is limited by the requirement that the misuse not be “reasonably expected” by the manufacturer or seller. Therefore, the misuse defense is, presumably, highly fact-sensitive. For example, how many instructions or warnings related to the product were present at the time of the accident? Were they clear and easy to understand? Known by those using the product? Followed? If not, how many were not followed?

Determining what constitutes a reasonably expected use is key. In Campbell, the Indiana Supreme Court noted that if a product is misused but its misuse can reasonably be expected by the seller, the misuse “would not serve as a complete defense and comparative fault principles would apply.” Id. at 959. Indeed, in Campbell, the Indiana Supreme Court strongly suggested if the plaintiff had disregarded only one of the instructions, that alone would have likely prevented summary judgment for the seller. But the Campbell court held that it was not reasonably expected that the plaintiff would disregard three separate warnings, and therefore summary judgment was appropriate.

More questions from Campbell: What if your client manufactures a product that has only one critical warning and that one warning is not followed? Does that constitute misuse under Campbell? Consider the following: Your client manufacturers a carabiner keychain. On the packaging for the keychain it states that the product should not be used for climbing and several other instructions and warnings. A customer purchases the keychain and, contrary to the instruction, uses it in climbing. During the climb, the keychain breaks and the customer falls to the ground and is hurt. Recall, in Campbell, the Indiana Supreme Court indicated that had the plaintiff ignored only one of the three warnings, summary judgment likely would not have been entered. So, in our hypothetical, if the customer ignored only one instruction — albeit a critical one — is that insufficient to establish misuse? Further, has the seller, by including a warning about using the product in climbing, implicitly conceded its reasonable expectation that the product will be used in climbing? Is it, then, worse off for including the instruction? (Of course, for purposes of this article, we are ignoring the other potential defenses to such a claim, such as incurred risk.)

Before Campbell, the Indiana Court of Appeals in Barnard v. Saturn Corp., 790 N.E.2d 1023 (Ind. Ct. App. 2003), provided some guidance concerning foreseeable uses. Notably, though, Campbell is shown to have abrogated Barnard because Barnard did not hold that misuse was a complete defense. Still, we expect that the other portions of Barnard remain good law. In Barnard, a widow sued General Motors after her husband died when his car fell off a car jack he was using to change the car’s oil. The undisputed evidence showed that the husband had violated numerous manufacturer warnings (e.g., parking the car with the two front wheels on the sidewalk; using only one jack instead of two; leaving the car inclined), and the Court of Appeals found these violations constituted misuse of the product. The Barnard court noted sellers or manufacturers may reasonably assume warnings or instructions will be followed and rejected the argument that, because a product warned against using a product in a certain unintended way, the seller reasonably expected or foresaw the misuse simply because it warned against it. The Barnard court held that “reasonable foreseeable use” must also include “reasonable permitted use,” otherwise “the moment a seller or manufacturer provided a specific warning against a particular use, they would have admitted to foreseeing use of the product in that proscribed manner.” Id. at 1031 n.3 (emphasis added).

Clearly, while Campbell provides for a potentially useful outcome (i.e., misuse as a complete defense), it also begs several questions. Stay tuned; more opinions are sure to follow. But don’t look past the basics. If your client’s product is not defective in the first place (i.e., no design or manufacturing defects or no inadequate warnings), you, and the court, need not reach the issue of misuse.•

Janelle P. Kilies is a partner in the Indianapolis firm of Lewis Wagner and is a member of the DTCI. Opinions expressed are those of the author.