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11/17/87 KROGER COMPANY SAV-ON STORE v. JACQUELINE

Filed: November 17, 1987.

THE KROGER COMPANY SAV-ON STORE, APPELLANT,
v.
JACQUELINE PRESNELL, APPELLEE



APPEAL FROM THE VIGO SUPERIOR COURT, DIVISION, The Honorable Charles K. McCrory, Judge, Cause No. S-C-80-1070.

Miller, P.j., Neal, J., and Conover, J., Concur.

Author: Miller

MILLER, P.J.

Jacqueline Presnell purchased an outdoor chaise lounge chair from the Kroger Sav-On Store in Terre Haute, Indiana. She took it home to her cement patio, set it up, and attempted to sit in the chair when it collapsed. Presnell fell to the patio floor and she sustained neck, spine, back and shoulder injuries which constitute a 30 % permanent partial disability to her body as a whole. Presnell brought a strict products liability suit against Kroger, and after jury trial, was awarded $485,000.00 in damages. Kroger now appeals claiming multiple errors.

We affirm.

FACTS

On May 5, 1980 Jacqueline Presnell, 42 years old, purchased an outdoor lounge chair from The Kroger Company Sav-On Store located at Plaza North, Terre Haute, Indiana. No instructions for use were included with the chair. Presnell took the lounge chair home and later that evening placed the chair on the cement patio of her home. The chaise lounge chair is constructed so that when not in use, the supports for the user's back and legs fold upon the seat, and the chair legs fold underneath the seat. The leg and back supports are constructed so that either may be used to support the user's legs of back depending upon the height to which the supports are elevated and latched by means of ratchet mechanisms. In her first attempt to use the chair, Presnell placed the chair on its side, unfolded it, opened the legs until resistance was met in a vertical position, turned the chair upright, and, while she was in the process of sitting down, the chair collapsed. Presnell fell approximately nine inches and struck the cement floor of the patio.

Presnell experienced excruciating pain, crawled into her home and remained on the floor for two hours. The next day Presnell went to work at Columbia Record, where she was employed full-time as a mail sorter, and reported her injury. She was sent to the factory dispensary, then to the doctor, and finally to the hospital where x-rays and a myelogram were taken. Presnell had herniated discs and a laminectomy was later performed on both sides of her spine. Continued medical problems involving Presnell's neck, spine, back, and shoulder occurred over the next three years. Presnell sustained a fifteen percent permanent partial disability to her body as a whole from the neck condition and another fifteen percent permanent partial disability to her body as a whole from the back injury. In addition, Presnell developed epilepsy and experienced numerous emotional problems resulting in several hospitalizations and a suicide attempt.

Presnell filed a products liability suit[Footnote 1] against Kroger on July 18, 1980 claiming the lounge chair she purchased was defective and unreasonably dangerous because of Kroger's failure to give any instructions or warnings specifically about how to open the lounge chair to ensure that the locking devices were properly engaged before use and that without proper instructions or warnings the danger of the chair's collapse was not apparent to the uninformed user of the chair. Presnell also alleged she suffered permanent personal injuries and damages as a result of the chair's collapse, and that Kroger's acts were the proximate cause of the lounge chair's collapse.

Kroger's answer claimed Presnell misused the product by failing to put the legs of the chair in the proper position before sitting down on it. Kroger also alleged the danger of the chair's collapse and the manner and method of opening the chair, were open and obvious and therefore Kroger was under no duty to warn or instruct Presnell how to open the chair. In addition, Kroger contended that the accident occurred on May 5, 1980 and that the statutory provision of the Products Liability Act providing a product is defective for a failure to warn was an amendatory provision effective in 1983, after Presnell's accident occurred.

Presnell's jury trial was scheduled for May 14, 1985. Before trial on that morning, Presnell moved to strike the words "of negligence" from the title of her contentions and to proceed to trial solely under the "strict liability" section of the Indiana statute. Presnell's motion was granted over Kroger's objections that her theory had changed from negligence to strict liability and that her motion was not timely. The trial court denied Kroger's motion for continuance. After a one week trial, the jury returned a verdict in favor of Presnell and against Kroger in the amount of $485,000.00. On May 23, 1985, the trial court entered judgment on the verdict.

ISSUES

Kroger raises the following issues for our consideration on appeal:

I. Whether the trial court erred in permitting Presnell to strike the words "of negligence" from the title of her contentions on the morning of trial and in denying Kroger a continuance because Presnell changed her theory from negligence to strict liability.

II. Whether the trial court erred in overruling Kroger's objections to questions permitting Presnell's expert design engineer to give his opinion that Kroger should have included, as part of the lounge chair's design, instructions on how to open the chair for use.

III. Whether the trial court erred in denying Kroger's Motion for Judgment on the Evidence at either the close of Presnell's evidence or the close of all the evidence.

IV. Whether the trial court erred in giving the jury Presnell's tendered instructions numbers 1, 2, 5, and 8 because the language of these instructions were similar to the language of the 1983 amendments to the Indiana Products Liability Act which was not in effect on the date of Presnell's accident.

V. Whether the jury's verdict is supported by sufficient evidence or is excessive.

VI. Whether the trial court erred in refusing to grant Kroger a new trial.

DECISION

I. Change of Theory from Negligence to Strict Liability

Kroger argues the trial court erred in permitting Presnell, immediately before trial, to strike the words "of negligence" from the title of her contentions because this changed Presnell's theory from negligence to strict liability. Kroger claims it was prejudiced because it prepared its defense on the theory of negligence and the trial court's action denied Kroger the defense of contributory negligence. Presnell responds that the theory of strict liability was tried by consent and the record clearly reveals Kroger had known for four years before trial that Presnell was relying on both Section 402A of the Restatement of Torts, Second, and negligence theories. Presnell asserts the removal of the negligence issue ...


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