TINDER, Circuit Judge.
This suit under the diversity jurisdiction stems from an incident in which a semi-truck trailer fell off of its support stands and on top of Scott Weigle and John Moore, the two mechanics who were working on the trailer. Weigle and Moore each sued SPX Corporation, the designer of the support stands, asserting claims of inadequate warnings and defective design under the Indiana Product Liability Act (IPLA), Ind.Code § 34-20-1-1 et seq. The district court granted summary judgment for SPX on all claims, finding that the warnings were adequate as a matter of law and that, as a result, the support stands were not defective under Indiana law. We affirm the district court's judgments on the inadequate-warnings claims, but we vacate the judgments on the defective-design claims and remand for further proceedings.
At the time of the underlying incident, Weigle and Moore were professional mechanics
On July 31, 2009, Weigle and Moore undertook a job to rebuild the braking system on a semi-truck trailer. In preparation, Weigle used an airlift to raise the rear portion of the trailer and then lowered the trailer onto two support stands; the front of the trailer was supported by the trailer's built-in dolly legs. Weigle had already begun working on the trailer when Moore came over to assist. The trailer somehow moved as both mechanics were working underneath it, causing the support stands to tip over and the trailer to come crashing down.
It is undisputed that the two support stands were OTC Tools 1779A support stands designed by SPX. These support stands consist of a conical base, an extension tube, and a support pin:
(Though omitted from this diagram, the support pin is tethered to the base by a chain and "S" hook.) These are heavy-duty support stands; the conical base is approximately 16¾ inches tall and approximately 15% inches in diameter, the extension tube is approximately 33¼ inches tall and approximately 2 7/8 inches in diameter, and the stand has a capacity rating of 12 tons when used properly. There are eight holes along the extension tube, each of which is roughly ¾ inch in diameter. To adjust the height, the user places the support pin into the appropriate hole and allows the pin to rest on top of the base. The base lacks a bottom, so if the support pin is not used the extension tube will touch the ground. When this happens, the support stand becomes unstable because the weight of the load is not distributed to the broad conical base but instead rests almost entirely on the narrow extension tube.
The "Parts List and Operating Instructions" accompanying the support stands contains the following relevant safety precautions and operating instructions:
(For the full set of safety precautions and operating instructions, see Appendix A, infra.) On the left side of the safety precautions are three pictograms: one shows a person reading instructions; one shows debris bouncing off of a person's protective eyewear; and one shows a load falling on a person.
Also, affixed to the base of each support stand is a decal, which in relevant part provides:
(For the full decal, see Appendix B, infra.) The warning decal also includes three pictograms, and each appears to the left of one of the first three bulleted instructions: the pictogram showing a person reading instructions appears next to the instruction that the user follow all instructions; the pictogram showing debris bouncing off of a person's safety goggles appears next to the instruction to wear eye protection; and the pictogram showing a load falling on top of a person appears next to the instruction not to exceed the capacity rating. No pictograms appear before the remaining four bulleted instructions, including the support-pin instruction, but those instructions are positioned below the pictogram illustrating a load falling on a person.
It is undisputed that Weigle and Moore did not use the support pin on the day of the incident. Weigle took care of situating the trailer onto the support stands, and he admitted that he never read the "Parts List and Operating Instructions" or the decal affixed to each support stand. Moore, on the other hand, had previously read all the instructions and warnings, but he did not inspect the support stands to see if the support pins were in place.
Weigle and Moore sued SPX in state court, asserting claims of inadequate warnings and defective design under the IPLA, and SPX removed both cases to the Southern District of Indiana, see 28 U.S.C. §§ 1332, 1441.
In opposition to SPX's motions for summary judgment, Weigle and Moore designated evidence that, according to industry custom, it is safest to operate support stands in their lowest possible position. Weigle testified in his deposition that the
Weigle and Moore also presented evidence that the SPX support stands are unlike most (if not all) other support stands on the market. Moore testified that other support stands are designed such that the center column cannot touch the ground even when a pin is not used, and for this reason, Moore was under the impression that the pin was merely used to adjust the support stands' height. Tapy also testified that in his 25 years with Truckers, the SPX support stands were the only ones in which the center column could touch the ground when the pin was not used; the other approximately 60 stands with which he had experience were designed so that the center column could never touch the ground.
They also designated the report and deposition testimony of William Dickenson, a professional engineer. Dickenson opined that the SPX support stands were defective and unreasonably dangerous because the column is permitted to pass through the plane of the base in the unpinned position. In his view, the support stands do not satisfy the requirements for the design of the central column set forth in Part 4 of the American Society of Mechanical Engineers's Portable Automotive Lifting Device standards ("ASME PALD-4"). As relevant here, the section of ASME PALD-4 in both the 1993 and 2005 standards addressing columns provides: "In the fully retracted position, the lower end of the column shall not extend below the plane made where the base contacts the ground." Dickenson interprets the term "fully retracted position" to refer to the lowest position of the column without use of the pin. He bases this interpretation on the fact that the 1993 and 2005 standards departed from the term "lowest operating position" (i.e., the lowest position with the pin) used in the 1991 standard.
Dickenson opined that utilizing the support stands without the support pin was foreseeable. In his opinion, SPX "could have designed the column of the stand with a stop that prevented the column from retracting into the stand beyond its lowest operating position. This could have been accomplished by simply permanently installing a pin in the hole that establishes the lowest operating position of the vehicle stands." Dickenson acknowledged the warnings against not using the support pin, but he explained that "[a] warning is not an adequate solution because warnings are not as effective at removing hazards as designing the system so that the hazard would be eliminated. Warnings rely upon human actions, which are often not reliable." He admitted that he had not conducted a statistical or financial analysis respecting his proposed alternative, but he testified that it cost him only about $10 to alter the support stands. He also noted in his report that after reviewing the descriptions of other support stands that are similar to the SPX support stands, the SPX stands appear to be the only ones on the market that fail to satisfy ASME PALD-4. Finally, Dickenson noted that based on all the materials he had reviewed it did not appear that the designers had conducted "any failure modes and effects analysis, any hierarchy of design analysis, [or] any application of safety through design in this product"; in his view, not only did the
Weigle and Moore also designated the deposition of Michael Schoenoff, Manager of Mechanical Engineering at SPX, whom SPX had designated both as an expert witness and as its representative under Federal Rule of Civil Procedure 30(b)(6). In Schoenoff's view, the support stands were not defectively designed and were misused by the plaintiffs. He explained that Dickenson's interpretation of the ASME PALD-4 standard was in error because "fully retracted position" refers to the lowest position of the stand when the pin is used. Schoenoff also testified that SPX was aware in 1985 that the support stand was unstable without the pin. He also agreed that there is no evidence that SPX considered alternative designs. Nor is there any evidence that SPX conducted a hazard-risk or failure-mode analysis on the support stand.
Lastly, Weigle and Moore designated the deposition of Larry Betcher, Manager of Product Innovation at SPX, who designed the SPX support stand at issue. Like Schoenoff, Betcher disagreed with Dickenson's interpretation of ASME PALD-4 and interpreted "fully retracted position" to refer to the lowest pinned position. Betcher also testified that use of the support stand without the support pin is inherently dangerous because the load is likely to come crashing down. He admitted that it was foreseeable that a user might operate the support stand without the pin, which is why the instruction that the pin should always be used was included. Betcher also testified that no alternative designs had been considered, no field studies had been conducted to determine whether the support stand was being operated without the pin, and the effectiveness of the warnings never had been tested.
The district court granted summary judgment for SPX on all claims. It first concluded that the instructions and warnings were adequate as a matter of law. As to the defective-design claims, the court did not address the sufficiency of Weigle's and Moore's designated evidence. Instead, relying on Marshall v. Clark Equipment Co., 680 N.E.2d 1102, 1106 (Ind.Ct. App.1997), it concluded that because the warnings were adequate, the support stands were neither defective nor unreasonably dangerous. Weigle and Moore now appeal.
We review a district court's grant of summary judgment de novo, Abbott v. Sangamon County, Ill., 705 F.3d 706, 713 (7th Cir.2013), construing all facts and inferences in favor of the nonmovants, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The IPLA "imposes liability upon sellers of a product in a defective condition unreasonably dangerous to any user or consumer." Ford Motor Co. v. Rushford, 868 N.E.2d 806, 809 (Ind.2007) (citation omitted); see Ind.Code § 34-20-2-1. A plaintiff bringing an action under the IPLA must establish that (1) the product was in a defective condition; (2) the product was unreasonably dangerous; (3) the plaintiff was a foreseeable user or consumer; (4) the defendant was in the business of selling the product; (5) the product was expected to and did reach the user or consumer without substantial alteration; and (6) the defect in the product caused the
A product can be defective because of a manufacturing defect, a design defect, or a lack of adequate instructions and warnings. See Ind.Code §§ 34-20-2-1 to -3; Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind.1983). Inadequate-warning and defective-design claims both sound in negligence. See Ind.Code § 34-20-2-2. To prevail on a negligence claim a plaintiff must establish "(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach." Rushford, 868 N.E.2d at 810 (citation omitted).
A product is defective under the IPLA "if the seller fails to: (1) properly package or label the product to give reasonable warnings of danger about the product; or (2) give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions to the user or consumer." Ind.Code § 34-20-4-2; see also Rushford, 868 N.E.2d at 810 ("This duty is twofold: (1) to provide adequate instructions for safe use and (2) to provide a warning as to dangers inherent in improper use."). A "`product label must make apparent the potential harmful consequences. The warning should be of such intensity as to cause a reasonable man to exercise for his own safety caution commensurate with the potential danger.'" Jarrell v. Monsanto Co., 528 N.E.2d 1158, 1162 (Ind.Ct.App. 1988) (citation omitted). A warning's adequacy is measured by its factual content, the manner in which it is expressed, and the method of conveying these facts. Id. at 1162-63. The adequacy of a warning (i.e., whether the defendant breached its duty to warn) is generally a question of fact, but it can be decided as a matter of law when the facts are undisputed and only one inference can be drawn from those facts. Cook v. Ford Motor Co., 913 N.E.2d 311, 327 (Ind.Ct.App.2009).
SPX argues that the district court's judgment should be affirmed because the warnings and instructions clearly informed users that the support pins are always to be used and that failure to use them can result in personal injury. Alternatively, SPX contends that, even if the warnings are not sufficient as a matter of law, the district court's judgment should still be affirmed because any alleged defect in the warnings could not have been the proximate cause of Weigle's and Moore's injuries because Weigle did not read the warnings and Moore did not inspect the stands to ensure that the pins were in place. We need not reach the issue of proximate cause because we agree with SPX and the district court that the warnings are sufficient as a matter of law, hence Weigle and Moore have failed to establish that SPX breached its duty to warn.
Weigle and Moore acknowledge that the "Parts List and Operating Instructions" and the decal affixed to the stands both provide instructions for safe use ("[a]lways use the support pin; insert support pin completely through extension tube") and warnings about the dangers inherent in improper use ("personal injury" accompanied by a pictogram showing a load falling on top of a person), but they contend that this is not sufficient. According to them,
Weigle and Moore cite only Cook, 913 N.E.2d 311, in support of their position. Cook arose from a car accident in which an eight-year-old child, who had not been wearing a seatbelt, was severely injured when the front passenger-seat airbag deployed. Id. at 315-17. The owner's manual accompanying the vehicle indicated that the airbag (which could be deactivated) should always be on "unless there is a rear-facing infant seat installed in the front seat" and that turning off the passenger airbag "increases the likelihood of injury to forward facing occupants in the passenger seat." Id. at 316, 326. The plaintiffs had designated expert testimony that airbags pose a risk to all children in the front passenger seat, not just children in rear-facing child seats. Id. at 326. The Indiana Court of Appeals reversed the trial court's grant of summary judgment, explaining that the warnings were not adequate as a matter of law because, based on the wording of the owner's manual and the expert testimony, there was "a question of fact as to whether a reasonable person would have understood from Ford's instructions that injury could occur under these circumstances." Id. at 327. One judge dissented on grounds that the Cooks had failed to comply with Ford's other instructions to place children in the backseat and to wear seatbelts. Id. at 334-35 (Brown, J., concurring in part and dissenting in part). The majority rejected the dissent's reasoning because "the language selected by Ford with respect to the additional warnings was permissive; that is, it equivocally instructed to place children in the backseat `if possible,' `suggested' that children are safer there, and that occupants `should' always wear seat belts." Id. at 328 (majority opinion). The warnings also failed to provide "that one of the risks from which children are possibly safer is injury from deployment of the front seat passenger airbag." Id. The court concluded that there was a question of fact as to whether Ford's warnings were "strong and specific enough to warn the Cooks that the additional instructions [on placing children in the backseat and wearing seatbelts] were linked to danger from the airbag." Id.
Like the district court, we are unable to see how Cook supports Weigle's and Moore's argument that SPX's warnings are inadequate because they fail to explain the mechanics of the support pin. Unlike the instructions in Cook, the instructions here provide that the support pin "always" must be used by placing it all the way through the column and that the risk of not using the support pin is personal injury; in other words, the warnings here cannot be construed as permissive or equivocal.
Moreover, SPX's instruction that the support pin must always be used is linked to the risk of personal injury and is accompanied by a pictogram illustrating a load falling on top of a person. Weigle and Moore suggest that the placement of the pictogram on the decal affixed to the support stands is confusing because it is placed next to the instruction not to exceed the capacity rating and not next to the instruction regarding the support pin. See Appendix B, infra. They claim that
What Weigle and Moore really desire is a physics lesson to accompany the support stands. We have been unable to find any Indiana authority supporting their view (which invariably would lead to claims that the warnings are too technical and confusing). Indeed, we rejected a similar argument in McMahon v. Bunn-O-Matic Corp., 150 F.3d 651 (7th Cir.1998). In McMahon, the plaintiff had been badly burned by coffee purchased from a gas station and had sued the manufacturer of the coffee maker under Indiana law, claiming that it had "failed to warn consumers about the severity of burns that hot coffee can produce." Id. at 654. The plaintiff argued that the warnings should have indicated that hot coffee can cause third-degree burns. We rejected her argument:
McMahon, 150 F.3d at 656-57 (citation omitted). SPX was not required to explain the physics of the support stands to satisfy its duty to provide adequate instructions and warnings. Rather, it is enough that SPX instructed users on how to use the stand properly ("[a]lways use the support pin") and warned users of the inherent
A second way that a product can be in a defective condition under the IPLA is "if, at the time it is conveyed by the seller to another party, it is in a condition: (1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and (2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption." Ind.Code § 34-20-4-1. As noted earlier, defective-design claims sound in negligence, so a party alleging a design defect "must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product." Ind.Code § 34-20-2-2; see TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 (Ind.2010). A plaintiff alleging defective design as a result of negligence must demonstrate that the defendant failed "to take precautions that are less expensive than the net costs of accidents." McMahon, 150 F.3d at 657; see also Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 902 (7th Cir.1994); Miller v. Todd, 551 N.E.2d 1139, 1141, 1143 (Ind.1990). In other words, to establish that the defendant was negligent the plaintiff must establish B<PL, where B is the cost of the precaution (i.e., the "burden" of avoiding the accident), P is the probability of the accident that the precaution would have prevented, and L is the loss if there is an accident that the precaution could have prevented. Bourne, 452 F.3d at 637; Mesman v. Crane Pro Servs., 409 F.3d 846, 849 (7th Cir.2005); Bammerlin, 30 F.3d at 902; see also United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.). Consequently, "the fact that the probability of a particular failure is low is no defense if the costs of protecting against it are even lower." Bammerlin, 30 F.3d at 902 (citing Restatement (Third) of Torts: Products Liability § 2(b) & reporters' notes, at 40-45, 123-25 (Tentative Draft No. 1, 1994)).
A reasonable fact finder could determine from Weigle's and Moore's designated evidence that the SPX support stands at issue were in a defective condition that was unreasonably dangerous. That the SPX support stands differ from most (if not all) others on the market (in allowing the center column to drop all the way to the ground) tends to show that their design is not contemplated by reasonable persons among those considered expected users. Additionally, because the SPX stands are inherently unstable when used without the pin, but other available stands are not (because of built-in safeguards), a fact finder could find that the stands are unreasonably dangerous. The risk that the stands would be used without the pin was concededly foreseeable, and a fact finder could determine that failure to take the minor precaution of building in a safeguard, such as a permanent pin in the lowest operating position or some other type of barrier preventing the extension tube from dropping below that position, demonstrates that SPX failed to exercise reasonable care under the circumstances. A fact finder might also conclude that the lack of any evidence that SPX undertook a hazard-risk or failure-mode analysis on the support stand demonstrates negligence. Finally, a fact finder could find a lack of reasonable care under the circumstances because the support stands fail to comply with ASME PALD-4. To be sure, there is a dispute over the meaning of the standard and whether the support stands satisfy it, but this merely establishes a genuine issue of material fact; unlike the interpretation of an ambiguous state or federal regulation, see, e.g., Bammerlin, 30 F.3d at 900, the meaning of an industry standard is a factual issue to be resolved by the fact finder. In any event, even if we were to accept SPX's interpretation of ASME PALD-4, Weigle and Moore have designated sufficient evidence to withstand summary judgment because compliance with an industry standard does not necessarily defeat a defective-design claim under the IPLA. See Ind.Code § 34-20-5-1(1).
The district court never addressed the plaintiffs' designated evidence because, relying on Marshall v. Clark Equipment Co., 680 N.E.2d 1102, 1106 (Ind.Ct.App.1997), it
In Marshall, a plaintiff who had been injured while operating a forklift appealed from an adverse judgment on the ground that the trial court had erred in refusing his tendered jury instruction, which in relevant part provided that "[i]f the product can be made reasonably safe by selecting an available alternative design, the manufacturer must do so rather than merely place a warning on the product." Id. at 1104 (internal quotation marks omitted). The Indiana Court of Appeals rejected the plaintiff's argument, finding that the tendered instruction had not correctly stated Indiana law. Id. at 1104-06. The court explained that "[w]hile warnings cannot make a dangerous product safe, such warnings may avert liability." Id. at 1105 (citing Jarrell, 528 N.E.2d at 1166). Relying almost exclusively on Dias v. Daisy-Heddon, 180 Ind.App. 657, 390 N.E.2d 222, 225 (1979), which in turn had relied on Comment j to the Restatement (Second) of Torts § 402A (1965), the court held that "a manufacturer may avoid liability by placing adequate warnings on a product even when there is evidence of a `safer' alternative design." Marshall, 680 N.E.2d at 1106.
Contrary to SPX's assertion in its brief, the Indiana Supreme Court has not addressed the issue. In Rushford, a duty-to-warn case, the court held that, "absent special circumstances, if the manufacturer provides adequate warnings of the danger of its product and the seller passes this warning along to the buyer or consumer, then the seller has no obligation to provide additional warnings." 868 N.E.2d at 811. It is true that the Rushford court found support for its holding in Dias, specifically, Dias's quotation of § 402A, Comment j. 868 N.E.2d at 811 (quoting Dias, 390 N.E.2d at 225). But the court's citation of Dias was not necessary to determining the issue before it — whether a seller has a duty to provide warnings to supplement the warnings provided by the manufacturer where the product has not been altered. And "statements not necessary in the determination
As this is a diversity case, we are bound to apply Indiana law as we predict it would be applied by the Indiana Supreme Court. See, e.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir.2001). Where, as here, the Indiana Supreme Court has not squarely addressed the issue, we will follow the decisions of the Indiana Court of Appeals unless there are persuasive reasons to believe that the high court would disagree with them. Gutierrez v. Kermon, 722 F.3d 1003, 1011 n. 2 (7th Cir.2013); see Ind. Harbor Belt R.R. Co., 916 F.2d at 1176 ("We are not required to follow even the holdings of intermediate state appellate courts if persuaded that they are not reliable predictors of the view the state's highest court would take." (citations omitted)). For several reasons, we are persuaded that the Indiana Supreme Court would not apply Marshall to the defective-design claims in this case.
It is helpful to begin with a brief review of the development of products-liability law in Indiana. Prior to the enactment of the IPLA in 1978, the Indiana Supreme Court had adopted the doctrine of strict products liability set forth in § 402A. Dias, 390 N.E.2d at 224; see Ayr-Way Stores, Inc. v. Chitwood, 261 Ind. 86, 300 N.E.2d 335, 339-40 (1973). In 1978, the Indiana Legislature codified most aspects of § 402A into the IPLA, but it left claims based on negligence to the common law. See Miller, 551 N.E.2d at 1143; Koske, 551 N.E.2d at 442-43. The Indiana Supreme Court made this clear in Koske, where it held that the "open and obvious danger" rule did not apply to strict liability claims, as it had not been included in the IPLA, but remained applicable to negligence claims because the IPLA had not at that time been extended to negligence. 551 N.E.2d at 442-43. In 1995, the Indiana Legislature amended the IPLA to apply to all products-liability actions, regardless of the substantive legal theory, Ind.Code § 34-20-1-1, and provided that defective-design and inadequate-warnings claims are to be governed by negligence principles rather than strict liability, § 34-20-2-2. See Bourne, 452 F.3d at 635. Because the IPLA had codified the entire field of products liability, we held in Mesman that the "open and obvious danger" rule no longer applied to defective-design claims because the legislature had omitted that defense. 409 F.3d at 850. Another important feature of the 1995 amendments was the addition of the requirement that liability under the IPLA "be determined in accordance with the principles of comparative fault." Green v. Ford Motor Co., 942 N.E.2d 791, 794 (Ind. 2011).
Notably absent from the current statute is a defense or presumption that adequate warnings render a product not defective and not unreasonably dangerous. The statute provides only three defenses: incurred risk, misuse (not reasonably foreseeable), and modification. Ind.Code §§ 34-20-6-3 to -5. These are the only defenses available in an action under the IPLA. See McGraw-Edison v. Ne. Rural Electric Membership Corp., 678 N.E.2d 1120, 1123-25 (Ind.1997) (holding that disclaimer in purchase agreement purportedly limiting seller's liability was no defense to action under IPLA); see also Mesman, 409 F.3d at 850. The statute does supply a rebuttable presumption that a product is
To be sure, the statute provides that a product is in a defective condition if not accompanied by adequate instructions and warnings, so if a product bears adequate instructions and warnings it is not in a defective condition under § 34-20-4-1. But the statute also provides an alternative basis for finding a product in a defective condition, § 34-20-4-1, and that section determines whether a product has a design defect or a manufacturing defect. Nothing in the IPLA indicates that the lack of a defect under § 34-20-4-2 precludes a finding of a defect under § 34-20-4-1. It is true that "[a] product is not defective ... if it is safe for reasonably expectable handling and consumption. If an injury results from handling, preparation for use, or consumption that is not reasonably expectable, the seller is not liable under this article." § 34-20-4-3. But in this case, Weigle and Moore have come forth with evidence that it was reasonably expectable that the support stands would be used sans support pin and that using the stands in that manner was not safe. They have also designated evidence that the support stands are not incapable of being made safe. Cf. § 34-20-4-4.
Moreover, SPX's view that a manufacturer should not have to design safer products if it provides adequate warnings is inconsistent with the standard of care for product design set forth in § 34-20-2-2. A product designer must exercise reasonable care under the circumstances, and it is unreasonable to omit from a product an easily installed and inexpensive safeguard that would prevent potentially fatal accidents and rely simply on the users' ability and willingness to read, comprehend, and follow all instructions and warnings on all occasions. See Koske, 551 N.E.2d at 441 (criticizing "open and obvious" rule as obscuring or minimizing "consideration of human factors related to the foreseeable circumstances of expected product use" (citations omitted)); see also Mesman, 409 F.3d at 849-52. The American Law Institute has explained:
Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998) (emphases added) (hereinafter Products Liability). The Reporter's Note to Comment l explains that the contrary rule — applied in Marshall — is based on the "unfortunate language" of § 402A Comment j, and notes that Comment j "has elicited heavy criticism from a host of commentators." Id. § 2 cmt. l reporters' note, at 101; see Howard Latin, Good Warnings, Bad Products, and Cognitive Limitations, 41
This is not to say that the provision of adequate instructions and warnings is irrelevant to a defective-design claim. The IPLA expressly requires that liability be determined under principles of comparative fault. Ind.Code § 34-20-8-1; Green, 942 N.E.2d at 794. Indiana law allows a fact finder to consider a wide variety of factors in the allocation of fault. Green, 942 N.E.2d at 794-95. A defendant in a defective-design case can argue to the fact finder that the plaintiff's failure to read and heed adequate warnings and instructions was itself negligent and that fault should be allocated accordingly. If the fact finder allocates more than 50% of the total fault to the plaintiff, then the defendant will avoid liability. Ind.Code §§ 34-51-2-7 & -20-8-1.
In sum, we predict that the Indiana Supreme Court would not apply Marshall's holding to bar Weigle's and Moore's defective-design claims. The current version of the IPLA furnishes no basis for SPX's adequate-warnings defense, and that defense is inconsistent with the standard of care required of product designers. At most, a plaintiff's failure to read and heed adequate instructions and warnings is something for the fact finder to consider in allocating fault.
The IPLA recognizes a defense "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 (emphases added); see, e.g., Leon v. Caterpillar Indus., Inc., 69 F.3d 1326, 1341-44 (7th Cir. 1995). "Foreseeable use and misuse are typically questions of fact for a jury to decide." Barnard v. Saturn Corp., 790 N.E.2d 1023, 1028 (Ind.Ct.App.2003). Misuse is not a complete defense but is considered an aspect of comparative fault. See Chapman v. Maytag Corp., 297 F.3d 682, 689 (7th Cir.2002); cf. Morgen v. Ford Motor Co., 797 N.E.2d 1146, 1148 n. 3 (Ind.2003) (declining to decide whether misuse is a complete defense).
SPX relies on Barnard in arguing that it is entitled to summary judgment. In that case, contrary to the instructions and warnings, the decedent had used a jack that was intended to be used only to change tires to prop up his car for an oil change on an uneven surface, and while he was working the car fell on top of him. 790 N.E.2d at 1031. The court found that no reasonable jury could find the decedent to have been less than 50% at fault. Id.
Despite the similarities between Barnard and the present case, we conclude that SPX is not entitled to summary judgment on the defense of misuse. Weigle and Moore have designated evidence from which a fact finder could determine that use of the support stands without the pin was reasonably foreseeable. Betcher admitted as much, which is why the instructions and warnings stressed that the pin must always be used.
For the foregoing reasons, the district court's judgments are AFFIRMED in part, VACATED in part, and the causes are REMANDED for further proceedings consistent with this opinion.
