Opinion
CAUSE NO. IP 01-123-CH/G, CAUSE NO. IP 01-123-CH/K
November 7, 2003
ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Plaintiff William Rodefer was injured when an automatic "rapid-roll" door closed on him. He has sued the manufacturer of the door, defendant Rytec Corporation, and the owner of the premises where the door was located, defendant Hill's Pet Nutrition, Inc. Rodefer relies on the expert opinions of John F. Podojil to support his action. Defendants have moved for summary judgment, challenging the admissibility of Podojil's opinions. As explained below, Podojil's opinions in this case are neither reliable nor relevant, and are therefore inadmissible under the Federal Rules of Evidence. Because Rodefer's action cannot be maintained in the absence of expert testimony, defendants' motions for summary judgment are granted.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate when there are no genuine issues of material fact, leaving the moving party entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). On a motion for summary judgment, the moving party must first come forward and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which the party believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).Where the moving party has met the threshold burden of supporting the motion, the opposing party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Local Rule 56.1 requires the party opposing a motion for summary judgment to identify specific and material factual disputes. The non-moving party "may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits." Chemsource, Inc. v. Hub Group, Inc., 106 F.3d 1358, 1361 (7th Cir. 1997).
In reviewing the parties' submissions, the court must consider the evidence in the light reasonably most favorable to the non-moving party. However, the existence of some metaphysical doubt does not create a genuine issue of fact. "A party must present more than mere speculation or conjecture to defeat a summary judgment motion." Sybron Transition Corp. v. Security Ins. Co. of Hartford, 107 F.3d 1250, 1254 (7th Cir. 1997). The issue is whether a trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. The court should neither "look the other way" to ignore genuine issues of material fact, nor "strain to find" material factual issues where there are none. Mechnig v. Sears, Roebuck Co., 864 F.2d 1359, 1363-64 (7th Cir. 1988). Where expert opinions are employed to oppose summary judgment, the proffered opinions must be "admissible or usable at trial." See Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir. 2001) ("In granting summary judgment, a court may consider any material that would be admissible or usable at trial.") (citations omitted); Erickson v. Baxter Healthcare, Inc., 151 F. Supp.2d 952, 959 (N.D. 111. 2001) (interpreting Smith to apply to evidence offered by experts).
Undisputed Facts
From approximately 1995 to late 1999, plaintiff William Rodefer was employed by Electrical Control Technology (ECT), an independent contractor that performs work at the Hill's Pet Nutrition production plant and maintains an office there. Because the Hill's plant produces pet food, it has implemented a number of environmental controls within the plant. One of these controls is the use of "rapid-roll" doors to help control air flow and contamination between different sections of the plant.
The rapid-roll door at issue in this case was designed and manufactured by defendant Rytec. It is fourteen feet high by eight feet wide, made of vinyl fabric with a metal bar at its base. When opening or closing, it moves along a track. There are three ways to trigger the door. First, the door can be opened or closed manually by pushing a button located near the door. Second, either of two electronic "photo eye" sensors, which are trained across the threshold of the door can trigger the door to open. Light beams from both sides of the door cross the front of the door and are reflected back to the source. If either beam is interrupted, the door opens and remains open until the connection is re-established. The eye sensors are 45 inches above the floor and the reflectors are 33 and 38 inches above the floor. Finally, the door can also be triggered by two magnetic loop sensors that are installed in the floor in front of the door. When equipment passes over the sensors, the door opens and remains open until the sensors no longer detect the presence of the equipment.
On October 19, 1999, Rodefer was driving an aerial boom lift through one of the plant's rapid-roll doors. The lift is a four-wheeled vehicle with a boom and basket attached to it. The telescoping boom is capable of extending so that a person riding in the basket can reach and work in high areas. The boom also can be lowered and retracted. At its most compact position, the basket rests four inches off the ground and next to the body of the lift. Stockberger Aff. ¶ 6. The lift may be piloted from the basket. All ECT employees, including Rodefer, were trained not to drive the lift with the boom extended. Rodefer Dep. at 75.
Jeremy Powell, another ECT employee, was walking in front of Rodefer's lift as they went through the door. Powell testified that Rodefer was piloting the lift from the basket and that the boom was extended and raised so that Rodefer was high enough to reach the top of the door frame. Powell Aff. ¶ 4. As the basket in which Rodefer was riding passed underneath the door, the door closed, coming down on Rodefer's neck. After the accident, Rodefer initially indicated that he was uninjured. A short time later, though, he reported to the hospital, accompanied by a co-worker. He was diagnosed with a cervical spine injury.
Later in the day, Powell and several other ECT employees attempted to reenact the accident. They positioned the lift and boom in the same manner in which Rodefer had driven it through the rapid-roll door, with the boom extended and raised. In this configuration, the wheels of the lift were away from the floor sensors and the basket was above the light beam sensors. As a result, the door came down on the basket. Powell Aff. ¶ 7; Butler Aff. ¶ 4; Elleman Aff. ¶ 4. The employees could find no other way for the door to come down. Both the electronic eye beam detectors and the light sensors were functioning properly. There is no history of similar incidents involving the door, and no incidents have been reported since. Stockberger Aff. ¶ 7; Rodefer Dep. at 64, 85, 180. Additional facts are noted below, keeping in mind the standard that applies on a motion for summary judgment.
Discussion
Rodefer filed this action in the Circuit Court of Wayne County, Indiana. Defendants removed to this court. Rodefer retained John F. Podojil as an expert witness and arranged for him to visit Hill's plant on November 21, 2002 to inspect the door. This visit, however, never took place because Rodefer's counsel thought that it was not "economically wise" to conduct the on-site investigation since "the case is not a big dollar case." See Docket No. 71, Def. Resp. to Pl. Motion to Inspect Items on Hill's Premises, Ex. D. On March 21, 2003, after defendants had taken Podojil's deposition and had then moved for summary judgment, Rodefer's counsel apparently changed their minds and filed a motion to allow Podojil to inspect Hill's plant. On April 21, 2003, this motion was denied by Magistrate Judge Baker on the grounds that plaintiffs counsel had failed to follow Local Rule 37.1, Podojil had already been given a fair opportunity to inspect the premises in November 2002, and — most important — Podojil had already filed his Rule 26(a)(2) report and had been deposed.
Rodefer alleges that Hill's and Rytec were negligent in: (1) failing to maintain the door in a reasonably safe condition; (2) failing to warn Rodefer of the dangerous and hazardous condition of the door; (3) permitting Rodefer to work around the door when they knew or should have known that the area was dangerous; and (4) failing to inspect and discover the dangerous condition of the door. With respect to the claim against Hill's, the law of Indiana consolidates all of these allegations under the theory of premises liability. Rodefer's legal theory against Rytec sounds in strict product liability.
Rodefer also alleges in his complaint that "defendants carelessly and negligently installed a garage door in a dangerous and defective condition." Defendants have proffered that the door was actually installed by Clarklift of Indiana. Rytec Br. at 1. Since Rodefer does not dispute this fact, the court accepts it as admitted. Local Rule 56.1(e). Clarklift is not a defendant in this case.
I. Premises Liability Claim Against Hill's
A landowner in Indiana is subject to liability for an invitee's injuries resulting from a condition on the land if the landowner: (1) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (2) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (3) fails to exercise reasonable care to protect them against the danger. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991). Because an independent contractor enters onto land for the landowner's benefit, he is considered an invitee. See Parojcic v. Bethlehem Steel Corp., 128 F.3d 601, 603 (7th Cir. 1997). "While a landowner is not under a duty to provide an independent contractor with a safe workplace, landowners must warn independent contractors of latent or concealed perils on the premises." Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994), citing McClure v. Strother, 570 N.E.2d 1319, 1321 (Ind.App. 1991). Thus, Hill's owed Rodefer a duty to exercise reasonable care to protect him against known dangerous conditions in the plant.
That the rapid-roll door presented an unreasonable risk of harm is therefore an essential element of Rodefer's causes of action against Hill's, and one on which he bears the burden of proof. Accordingly, Hill's is entitled to summary judgment if Rodefer is unable to come forward with evidence that would allow a reasonable jury to find that the door was unreasonably dangerous. Lockwood v. Bowman Constr. Co., 101 F.3d 1231, 1234 (7th Cir. 1996). Defendants argue that Rodefer has failed to present admissible evidence that would tend to show that the rapid-roll door constituted an unreasonable risk of harm. The court agrees. Further, even if the door could meet this threshold requirement, Rodefer's claim still fails because he was aware of the door's allegedly dangerous properties.
There are two ways in which the door could be considered a hazardous and dangerous condition as Rodefer alleges. First and most obvious, if the door suffered from some kind of malfunction or manufacturing defect that caused it to close spontaneously on Rodefer, the door could fairly be characterized as constituting an unreasonable risk of harm. Second, for the sake of argument, the court assumes that the door could be considered inherently dangerous, in which case it is necessary for the court to consider the remaining elements of Rodefer's premises liability claim. In either case, Rodefer's claim against Hill's fails because he has not come forward with evidence necessary to establish the essential elements of a premises liability action.
A. Door Malfunction
Rodefer has failed to come forward with any evidence suggesting that the door malfunctioned. He has presented no evidence that suggests a malfunction or manufacturing defect. Rodefer himself used the door in question "30, 40 times a day" and never experienced any problem until his accident. Rodefer Dep. at 62, 82-83. His conclusion that it "malfunctioned" is based entirely on the fact that it closed on him, id. at 155-56, and he is unable to identify or even speculate on any specific defect that was present in the door.
In his brief, Rodefer mentions in passing that the door was designed to retract if it met resistance while it was closing. Pl. Br. at 10-11. The mechanism that controls this feature is called the "reversing arm." If Rodefer had offered evidence that this safety feature failed, he might have presented an issue sufficient to survive summary judgment. However, no such substantiating evidence was presented, and the court is left with nothing more than counsel's argument. In fact, Rodefer's expert testified that he had no opinion as to whether there was a defect in the reversing arm. Podojil Dep. at 282-83. His only opinion with respect to the "reversing arm" was that it should be "evaluated." Pl. Ex. 7 at 4. By the time an expert witness files a report and is deposed, the opposing party is entitled to a definitive opinion on such matters if they are to become the basis of the case.
"It is axiomatic that in order to show that a product is defective, the plaintiff must be able to point to a defect." Ford Motor Co. v. Reed, 689 N.E.2d 751, 753 (Ind.App. 1997). The unrebutted evidence presented by Hill's tends to show the absence of a mechanical malfunction. The informal accident reenactment staged by Powell and other ECT employees found that the photo eye and weight sensors, which controlled when the door closed, were functioning properly. The door has continued to operate correctly in the time since Rodefer's accident. Stockberger Aff. ¶ 7.
The expert proffered by Rodefer, John Podojil, lends nothing to support the theory that the door malfunctioned. He has no opinion with respect to the existence of any possible manufacturing defect; he does not know whether there was a defect in the reversing arm of the door, Podojil Dep. at 282-83; and he has no opinion as to whether the light beam or floor sensors functioned properly. Id. at 182, 313. Indeed, even if one had been offered, an opinion by Podojil as to the existence of a manufacturing defect would be unreliable because Podojil never used his opportunity to examine the door in question.
Rodefer nonetheless argues that Podojil's expert opinion raises a triable issue regarding whether the door malfunctioned. The report Podojil prepared for plaintiffs counsel contains the statement: "Note: it is obvious that this reversing [arm] edge malfunctioned, since the door did not retract as designed by the manufacturer." Pl. Ex. 7 at 9. He hypothesized that the door's malfunction was the result of Hill's failure to properly inspect the reversing arm and the photo eye sensors. Id. at 8-10. Defendants contend that these opinions amount to mere speculation and are inadmissible under the Federal Rules of Evidence. The court agrees.
The admissibility of expert opinions in federal court is governed by Rule 702 of the Federal Rules of Evidence and the guiding principles declared by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert requires that admissible expert testimony be both relevant and reliable. 509 U.S. at 589. Evidence is relevant under Daubert if it is "helpful" to the trier of fact and "fits" the issues in the case. Evidence is reliable if it is "genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir. 1996). In assessing the reliability of an opinion offered by an expert, the focus is on the expert's methodology, not his or her conclusions. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000), citing Daubert, 509 U.S. at 595. The Daubert Court identified several factors that lower courts may consider in evaluating an expert's methods: (1) whether the expert's theory can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the technique; and (4) the technique's general acceptance among the relevant scientific or technical community. 509 U.S. at 593-94. These factors are not exclusive, however, and the court should tailor its analysis to the issues in the specific case. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).
Podojil's conclusion that the door malfunctioned rests solely on his selective review of documents pertaining to the incident. Even under the most liberal view of Daubert, Podojil's methodology is unreliable. His entire report was based on nothing but the documents that plaintiffs counsel supplied him. Podojil Dep. at 39, 56, 70. He performed no tests, id. at 84, conducted no interviews with witnesses to the incident, id., and made no visits to the site of the accident. Id. at 38, 84, 215. This last fact is particularly troubling. It borders on the ridiculous for an expert to testify that he found a manufacturing defect in a product that he has not examined, especially when that product was available for examination.
Podojil's theory that Hill's failed to routinely inspect the door is also complete speculation. This theory is based solely on the fact that he reviewed no documents indicating that such inspections were performed. Id. at 13. This opinion suffers from the same methodological deficiencies. Podojil conducted no interviews with anyone at Hill's or ECT to ascertain the company's inspection practices. Further, the limited document review he did perform was not exhaustive. Most significantly, his theory presupposes that which is at issue: the existence of a defect that would have been discovered by proper inspection. See Smith v. Michigan Beverage Co., 495 F.2d 754, 757 (7th Cir. 1974) (failure to inspect bottle did not create liability for injury to consumer when bottle exploded unless inspection would have disclosed a harmful defect). Even if Podojil's opinion that Hill's failed to inspect the door were admissible, it is not proof that a defect in fact existed.
Podojil reviewed only the set of documents provided to him by plaintiffs counsel. At his deposition, it became clear that this set was only a portion of the documents relevant to the accident. Notably absent from the documents Podojil relied upon in generating his report were the statements of the witnesses to the initial accident and the later accident reenactment. Podojil Dep. at 217. Podojil also was not given the affidavit of Fred Stockburger, Hill's maintenance team leader, who reported that the rapid-roll door in question had not been involved in any similar incidents either before or after the alleged malfunction. Id. at 148.
Recognizing the weaknesses in his expert's methodology, Rodefer contends that Daubert significantly relaxed the requirement that an expert have firsthand knowledge of the event about which he testifies. This is true but beside the point. Daubert teaches that a judge's overriding concern in evaluating an expert's opinion should be reliability. The "gatekeeping" responsibility imposed by the Supreme Court requires that district judges ensure that experts offering opinions in court are "adher[ing] to the same standards of intellectual rigor that are demanded in their professional work." Rosen, 78 F.3d at 318; see also Daubert, 509 U.S. at 597. In many cases, an expert's opinion will be reliable despite the lack of firsthand observation. In other types of cases, however, hands-on examination is essential.
Rodefer argues that this incident falls in the former category, but even his expert disagrees. Podojil repeatedly warned plaintiffs counsel that he could not give an opinion as to the cause of the accident unless he conducted an on-site inspection. In a letter to plaintiffs counsel, Podojil wrote: "I will need to visit the site of the accident and film and photograph the door for myself and my report. If I did not go to the site, then I could not possibly testify or give a statement." Hill's Ex. K. He elaborated on the importance of a firsthand examination at his deposition.
Q: What was your response [to being told by plaintiffs counsel not to conduct a site inspection]?
A: That if I would have to go to court, I would like to see the door. I would like to run the aerial lift through its motions to see what the range of motions were. Then I could validate whether basically it was in an up position, if the photo cells would have caught it; if the machine moved off the floor loop because of the boom length, if that would have triggered . . .
Q: Without visiting the plant and conducting those tests or experiments, you can't validate those things you just talked about, correct?
A: That is correct.
Podojil Dep. at 56-57. By his own admission, the limited document review Podojil conducted was insufficient without an accompanying on-site investigation. Id. at 222. Far from being generally accepted among the accident investigation community, the methodology employed by Podojil in this case does not even appear to be acceptable to Podojil.
Rodefer correctly points out that under Daubert the "general acceptance" test is but one of several factors that courts should consider when examining the reliability of an expert's opinion. But this again misses the point. Where the expert himself will not vouch for the propriety of his own methods, the court's decision is an easy one. This decision is made even easier when the court considers the remaining Daubert factors: Podojil was unable to cite any peer-reviewed articles recommending his methodology, Podojil Dep. at 222, did not conduct any tests to confirm his opinions, id. at 84, and cannot identify the error rate of his methodology, id. at 219.
Moreover, the conditional nature of Podojil's opinions renders them unhelpful for the trier of fact. His testimony demonstrates that he assumed the very thing that he was to prove: that the door malfunctioned.
Q: What hazards are you talking about?
A: The hazards of the door.
Q: What hazards are those?
A: That the door came down and pinned the worker.
Q: Any other hazards in the door?
A: I didn't inspect the door.
Q: Again, that's an assumption, right?
A: That's correct.
Id. at 249. "Simply put, an expert does not assist the trier of fact in determining whether a product failed if he starts his analysis based upon the assumption that the product failed (the very question that he was called upon to resolve)." Clark v. Takata Corp., 192 F.3d 750, 757 (7th Cir. 1999).
In the end, Podojil found defective a product that he had not examined and unsafe a property that he had not visited. Because Podijil's opinions regarding the defectiveness of the rapid-roll door and the dangerousness of Hill's manufacturing plant are both unreliable and unhelpful, they are inadmissible. Rodefer may not rely upon them in attempting to establish that the door constituted an unreasonable hazard.
B. Rodefer's Awareness of the Danger
Even assuming for the sake of argument that the rapid-roll door was inherently dangerous (despite the absence of evidence of a defect), Rodefer still must establish that Hill's should have expected that Rodefer would not have discovered the danger on his own. See Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991). The undisputed evidence before the court demonstrates that Rodefer was fully aware of the dangers of the door, its safety features, and those features' limitations. Because no reasonable jury could find differently, Rodefer has not met his burden on this element of his premises liability claim.
Rodefer testified that he went through the door in question thirty to forty times a day over the course of his four-year employment with ECT, and he was well acquainted with its operation. Rodefer Dep. at 62. At the time of the accident, Rodefer was familiar with both of the door's safety features: the photo eyes and the floor sensors. Id. at 63, 85. He knew the location and approximate weight threshold of the floor sensors. Id. at 64. Most important, Rodefer testified that he knew that the door would come down if he cleared the photo eyes and no weight was on the floor sensors. Id. at 64, 110.
In his brief, Rodefer cites his interrogatory responses where he apparently denied ever being trained in the proper use and operation of the door and the aerial lift. Pl. Br. at 9. These interrogatories have not been submitted to the court and may not be considered as evidence. In any event, his deposition — which is before the court — flatly contradicts this perspective. Rodefer testified that he had received training in the operation and safety precautions of the aerial lift. Rodefer Dep. at 75. He was given hands-on training in the lift, and he reviewed the operating instructions, which were attached to the machine. Id. at 75, 82.
In support of his inadequate training theory, Rodefer points to the fact that there is no record of his having signed the "Hill's Pet Nutrition Safety Manual," indicating that he had received the appropriate training relating to his job activities. Pl. Ex. 7 at 7. "Thus he was unaware that the lift basket was too high to be sensed by the electronic eye." Pl. Br. at 9. It is unnecessary to consider the strength of this reasoning because Rodefer testified in his deposition that he had in fact been fully trained on the aerial lift and that he knew he was supposed to go through the rapid-roll doors with the lift in its most compact position. Rodefer Dep. at 75, 110. He even testified that he was aware that if he tried to pass through the door when the boom of the lift was not in its most compact position, the door would close on the basket. Id. at 110.
Plaintiff has failed to come forward with any evidence suggesting that he was not aware of the dangers he contends were inherent to the door. On the contrary, the overwhelming evidence before the court compels the conclusion that Rodefer was well versed in the door's operation and safety features. Nothing in the record indicates that Hill's should have anticipated that Rodefer would fail to appreciate whatever dangers might have been inherent in the door's normal operation. As a result, even if the door might be considered to have posed "an unreasonable risk of harm" absent evidence of a manufacturing defect, Rodefer has not raised a triable issue as to the second element of his premises liability claim: that Hill's should have expected that Rodefer would fail to realize the dangerous properties of the door that caused his injury. See Parojcic v. Bethlehem Steel Corp., 128 F.3d 601, 604 (7th Cir. 1997) (reversing verdict for the plaintiff; finding as a matter of law that plaintiff should have discovered defectively hung pipe and appreciated the danger it posed); Salima v. Scherwood South, Inc., 38 F.3d 929, 932-33 (7th Cir. 1994) (affirming district court's grant of summary judgment for defendant; finding that defendant should have been able to rely on plaintiff to recognize and guard against the inherent dangers of electricity). And as discussed previously, Rodefer has presented no admissible evidence that the door, as a result of a manufacturing defect, behaved in a manner contrary to what Rodefer should have expected. Accordingly, Hill's is entitled to summary judgment.
II. Products Liability Claim Against Rytec
It is unclear from the pleadings whether Rodefer is alleging either a manufacturing or design defect claim against Rytec. The only allegation in the complaint that clearly supplies a cause of action against Rytec as the manufacturer of the door is the allegation that defendants failed to warn Rodefer of the dangerous condition of the door. Whatever the specific claim Rodefer wishes to pursue, Indiana law directs that it be brought under the state's product liability act since, under the terms of the statute, Rytec is the manufacturer of the door and Rodefer was a user. See Ind. Code § 34-20-1-1. Under the Indiana Products Liability Act, a plaintiff must prove: (1) the product was "defective", and as a result, "unreasonably dangerous"; (2) the defect existed at the time the product left the defendant's control; (3) the product was expected to, and did, reach the consumer without substantial alteration; (4) the plaintiff's injuries were proximately caused by the defect in the product. Moss v. Crosman Corp., 136 F.3d 1169, 1171 (7th Cir. 1998).
In 1998, the Act was amended and recodified as Ind. Code § 34-20-1-1 et seq. The new Act continues to subject to liability a person "who sells . . . any product in a defective condition unreasonably dangerous to any user or consumer . . ." Ind. Code § 34-20-2-1.
Rytec argues that Rodefer has not made a showing sufficient to establish that the rapid-roll door was "defective". The court agrees.
To establish that a product is "defective" within the meaning of Indiana's Product Liability Act, a plaintiff must show either: (1) a manufacturing defect; (2) a design defect; or (3) a failure to warn. Id. Rodefer has failed to come forward with evidence that would support a finding in his favor on any of these bases.
A. Manufacturing Defect
As the discussion regarding Rodefer's claim against Hill's makes clear, Rodefer has not presented admissible evidence to sustain a manufacturing defect theory.
B. Design Defect
Rodefer argues that the door was defective in that it lacked several "key safety features." Pl. Br. at 10. Presumably, Rodefer is referring to several safety devices that Podojil opined in his report might have prevented the accident. These include: a microwave sensor that could have detected the lift's movement even if its wheels were away from the floor sensor and the basket was above the photo eyes; yellow flashing lights that could have alerted Rodefer to the fact that the door was closing; and an extra set of photo eyes, which would have expanded the range of detection. Pl. Ex. 7 at 15, 17.
A product suffers from a design defect under Indiana law if it performs in a manner not contemplated by a reasonable consumer. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 1995). "The question is not whether it is `possible' for something untoward to occur during an accident but whether the `design creates unreasonable danger' according to `general negligence principles.'" Pries v. Honda Motor Co., 31 F.3d 543, 545 (7th Cir. 1994) (applying Indiana law; citations omitted). "A safety precaution is not defective merely because it fails to prevent an accident." Richardson v. Gallo Equip. Co., 990 F.2d 330, 332 (7th Cir. 1993). Expert testimony is generally required to establish a design defect because the plaintiff must show not only that another design could have prevented the accident but also that the benefits of the alternative design outweighed its costs. See Whitted, 58 F.3d at 1206; Pries, 31 F.3d at 546.
Podojil's opinion with regard to the rapid-roll door's possible design defects suffers from the same deficiencies as his opinions regarding the door's alleged manufacturing defects. First, it is the product of an unreliable methodology. Podojil performed no tests and consulted no studies that support his opinion that his suggested design alterations would have prevented the accident. The fact that he never visited the site of the accident casts further doubt on his ability to divine what went wrong and how best to prevent such accidents.
More to the point, even if Podojil's proposed safety features might have prevented the accident, more is required to establish the existence of a design defect. Rodefer must show that another design was "cost-effective under general negligence principles." Pries, 31 F.3d at 546. This he has not even attempted to do; Podojil's opinion offers nothing in the way of a cost-benefit analysis.
Finally, Rodefer's design defect claim is unsupportable because whatever "dangerous properties" may have resulted from the door's alleged defective design were obvious to Rodefer. As discussed previously, Rodefer was fully aware of the door design's safety features and limitations. He knew that the door would close if neither the floor nor photo eye sensors were triggered. Rodefer has not come forward with any evidence that would allow a reasonable jury to find that the door suffered from a design defect.
C. Failure to Warn
A manufacturer has a duty to warn a user of an unreasonably dangerous product of any hazards that the user could not reasonably be expected to discover on his own. See Columbian Rope Co. v. Todd, 631 N.E.2d 941, 946-47 (Ind.App. 1994). "Absent proof of a dangerous instrumentality, or proof of a defect or improper design making an otherwise harmless instrument dangerous, there is no duty to warn of product connected dangers." American Optical, 457 N.E.2d at 187. "For one to be liable for a failure to warn, the product in question must be unreasonably dangerous." Whitted, 58 F.3d at 1206.
There is no duty to warn of known or obvious risks. See, e.g., McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 655 (7th Cir. 1998) (applying Indiana law, no duty to remind consumers of known danger, such as fact that coffee is served hot); American Optical Co. v. Weidenhamer, 457 N.E.2d 181, 188 (Ind. 1983) (no duty to warn where "the risk of injury from the breaking of the lens [of safety glasses] through some fortuitous event is obvious to all"). This concept has been described as the "open and obvious" rule or defense. See Bemis Co. v. Rubush, 427 N.E.2d 1058, 1061 (Ind. 1981) (no duty to warn where danger is "open and obvious to all"); Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 815 (Ind.App. 1995) (no duty to warn of the obvious risks inherent in butane cigarette lighter).
Though often merged into the question of whether a product is defective, the requirement that a product be "unreasonably dangerous" is a separate element of a products liability claim, and Rytec is entitled to summary judgment unless Rodefer can establish it. See Moss, 136 F.3d at 1174. He cannot.
"The requirement that the product be in a defective condition focuses on the product itself while the requirement that the product be unreasonably dangerous focuses on the reasonable expectations of the consumer." Welch v. Scripto-Tokai Corp., 651 N.E.2d 810, 814 (Ind.App. 1995). A product is not unreasonably dangerous if it "injures in a way which, by objective measure, is known to the community of persons consuming the product." Anderson v. P.A. Radocy Sons, Inc., 865 F. Supp. 522, 531 (N.D. Ind. 1994), aff'd, 67 F.3d 619 (7th Cir. 1995).
Thus, a product "may be `dangerous' in the colloquial sense but not `unreasonably dangerous' . . . under the Act." Welch, 651 N.E.2d at 814-15 (affirming summary judgment; although a cigarette lighter may be dangerous in the hands of a child, it is not "unreasonably dangerous" because an adult, the ordinary consumer, contemplates the risks posed by a lighter, including flame ignition and the dangers associated with children who play with lighters); accord, Moss, 136 F.3d at 1175 (as a matter of law, BB gun was not "unreasonably dangerous" because people in the community knew it could cause serious physical injury); Smith v. AMLI Realty Co., 614 N.E.2d 618, 622-23 (Ind.App. 1993) (although weight machine was potentially dangerous when used by children, it was not "unreasonably dangerous" under the Act because it functioned properly as exercise equipment).
Rodefer's claim fails as a matter of law because his injury was caused by the known risk of physical injury from being struck by a closing automatic door. The door did not place Rodefer at risk "of injuries different in kind from those the average [user] might anticipate." See Moss, 136 F.3d at 1175 (affirming summary judgment on failure to warn claim). Rodefer was injured by the very risk that a reasonable user of the door would have anticipated: that it would close if the photo eye and floor sensors were not triggered. The rapid-roll door was not unreasonably dangerous, and therefore no duty to warn existed.
III. Res Ipsa Loquitur
Finally, Rodefer adopts a res ipsa loquitur argument. "The door dropped when a human being was directly underneath it; clearly something went wrong." Pl. Br. at 10. Rodefer contends it is enough for him to show that the accident happened, and that his expert need not explain how or why. The res ipsa loquitur doctrine, however, is not applicable to the facts of this case.
A plaintiff is entitled to an inference of negligence under Indiana law if he can demonstrate: (1) that the accident was of a kind that does not ordinarily occur absent negligence; and (2) that the injuring instrumentality was in the exclusive control of the defendant. Newell v. Westinghouse Elec. Corp., 36 F.3d 576, 579 (7th Cir. 1994), citing K-MartCorp. v. Gipson, 563 N.E.2d 667, 669 (Ind.App. 1990). A plaintiff need not rule out every other possible cause of the accident for the inference to attach, but must show that the accident is unlikely to have occurred unless the defendant was negligent. Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th Cir. 1994).
Rodefer cannot make this showing. On the contrary, the undisputed evidence before the court compels the conclusion that the accident resulted from Rodefer's negligence and not any negligence on the part of defendants. Several witnesses to the accident have stated that Rodefer piloted the aerial lift through the door in a manner he knew was unsafe, with the boom raised and extended. Rodefer Dep. at 75. Hill's has offered evidence that the door would close on the occupant of the basket when the lift was in this configuration; the photo eye would not detect the passenger basket and the lift's wheels would be away from the floor sensors before the basket cleared the door.
Rodefer has offered nothing to contradict this. In fact, Podojil, Rodefer's own expert, believes that this is exactly what happened:
My experience with the boom type lift vehicles is that the boom and basket may be operated at an angle and height greater than the 36" sensing field. Thus, as the main portion of the [aerial] lift left the sensing zone of the floor loop system and the body of the lift passed the photocells, the sensors may not pick up the extended boom portion of the lift and allow the door to close. It is my belief that this is what happened.
Pl. Ex. 7 at 16. Nor is this a "fantastic or remote" explanation for the accident; Hill's explanation for the accident has been successfully tested and verified. See Powell Aff. ¶ 7; Butler Aff. ¶ 4; Elleman Aff. ¶ 4. Cf. Welge, 17 F.3d at 211-212 (finding that plaintiff was entitled to res ipsa loquitur inference; where glass jar shattered during ordinary use, plaintiff was not required to exclude remote possibility that jar was damaged while sitting unattended on refrigerator).
It is true that this scenario would not be inconsistent with an inference of negligent training or maintenance under the doctrine of res ipsa loquitur. But to invoke the doctrine, Rodefer must offer admissible evidence that circumstantially demonstrates a "probability of negligence" on the part of defendants. Newell, 36 F.3d at 579. This burden is not met merely by suggesting possible theories of defendants' negligence. Aside from the fact of the accident itself, the only evidence submitted by Rodefer are the inadmissible opinions of Podojil. Rodefer therefore has not met his burden and is not entitled to the res ipsa loquitur inference. These same considerations apply with equal force to Rodefer's claim against Rytec. Therefore, because it is quite possible that this accident occurred without any negligence on Hill's or Rytec's part, res ipsa loquitur-is not applicable.
Even were the facts different, the holding in Whitted v. General Motors Corporation, 58 F.3d 1200, 1209 (7th Cir. 1995), precluding the use of res ipsa loquitur in claims under Indiana's Strict Product Liability Act, would prevent the court from applying the doctrine to the claim against Rytec. Because Rytec is a "manufacturer or seller" of the rapid-roll door, Rodefer's claim against it falls under the statute. Ind. Code § 34-20-1-1.
It is important to be clear that the court takes no position on the factual question of whether Rodefer's lift was in an extended position when it passed through the rapid-roll door. It is inappropriate for a court to weigh the evidence at summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Any genuine material dispute is sufficient to stave off summary judgment. Res ipsa loquitur, however, reverses the tables on a party seeking to utilize the doctrine to avoid summary judgment. Because under the doctrine an inference of negligence will be appropriate only where no other reasonable cause can be found, the proponent of summary judgment need only come forward with reasonable alternative explanations for the plaintiffs injury to take the case outside of res ipsa loquitur. Defendants have done so by presenting evidence that Rodefer was driving the aerial lift in a such a way that would have triggered the closure of even a perfectly functioning door. Res ipsa loquitur thus does not apply here.
It is unclear from the parties' submissions whether this fact is in dispute. It is included within defendant Hill's "statement of facts not in dispute," Hill's Br. at 5, and is not included within plaintiffs "statement of material facts in dispute." Further, both Rodefer's brief and Podojil's report seem to assume that the lift's boom was raised and extended when it passed through the door. See Pl. Br. at 9; Pl. Ex. 7 at 16.
Conclusion
Rodefer's claims against both Hill's and Rytec require him to show that the door was defective in some way. In attempting to make this showing, Rodefer relies on (1) the inadmissible opinions of an expert who never actually examined the door; and (2) the fact of the accident itself. Neither of these is sufficient to demonstrate that the rapid-roll door suffered from a defect.
Without this showing, Rodefer cannot establish that the door presented "an unreasonable risk of harm" or that it was "defective" and "unreasonably dangerous". Accordingly, both Hill's and Rytec are entitled to summary judgment. The court will enter final judgment in favor of both defendants.
So ordered.