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Terex-Telelect, Inc. v. Wade

Court of Appeals of Indiana

August 29, 2016

Terex-Telelect, Inc., Appellant-Defendant,
v.
Anthony Wade, Appellee-Plaintiff.

         Appeal from the Hamilton Superior Court The Honorable Steven R. Nation, Special Judge Trial Court Cause No. 29D01-1004-CT-445

          ATTORNEYS FOR APPELLANT Kevin C. Schiferl Darren A. Craig Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE John F. Townsend, III Indianapolis, Indiana W. Scott Montross Indianapolis, Indiana

          ALTICE, JUDGE.

         Case Summary[1]

         [1] In a previous appeal in these proceedings, this court reversed a jury verdict in favor of Terex-Telelect, Inc. (Terex)[2] based on an erroneous jury instruction. See Wade v. Terex-Telelect, Inc., 966 N.E.2d 186 (Ind.Ct.App. 2012), trans. denied.[3] (Terex I). Specifically, the majority held that evidence of Terex's compliance with American National Standards Institute Standard A92.2 (ANSI A92.2)[4] in the design of the bucket at issue was irrelevant to the defect alleged by Wade, and thus, did not support the giving of a jury instruction regarding a rebuttable presumption that the bucket at issue was not defective.[5] The case was remanded to the trial court.

         [2] In advance of the third trial, Wade filed a motion in limine seeking to exclude evidence of Terex's compliance with ANSI A92.2 and the design specifications found in ANSI A92.2. The trial court granted Wade's motion, finding that this court's decision in Terex I established the law of the case with regard to relevancy and therefore required such exclusion. Terex moved to certify the matter for interlocutory appeal, which request the trial court granted. This court accepted jurisdiction over this interlocutory appeal on December 18, 2015. There are two issues presented for our review:

1. Under the law of the case doctrine, does this court's prior opinion in Terex I require exclusion of evidence pertaining to ANSI A92.2 and Terex's compliance therewith in a subsequent trial?
2. Is evidence relating to ANSI A92.2 and Terex's compliance therewith relevant?

         [3] We affirm.

         Facts & Procedural History

         [4] The underlying facts, taken from this court's opinion following the second trial, follow:

Terex is the manufacturer of buckets and booms used by utilities and construction companies to access elevated work areas. The buckets and booms allow linemen to work on utility lines and equipment that could not be reached from standing on the ground. A bucket is attached by a retractable boom to a truck, and the bucket is cradled on top of the truck for transport. When cradled, the bucket is approximately twelve feet above the ground.
In 1994, Richmond Power & Light ("Richmond Power") purchased a double-man bucket truck ("Truck 32"). After reviewing brochures regarding the products available, Richmond Power prepared detailed specifications for the type of truck desired. A bid was submitted by a distributor that complied with the specifications and included an aerial lift and bucket manufactured by Terex. This distributor was ultimately awarded the contract. Richmond Power specified that the bucket in Truck 32 contain a polypropylene dielectric/insulating liner. The use of a dielectric liner is very important for utility companies purchasing bucket trucks because of the danger of a lineman being electrocuted by power lines. To maintain dielectric integrity, holes or openings in the liner are avoided because they would expose the occupant to electrical contact.
Richmond Power's specifications included an exterior step, and the bucket produced to meet these specifications had a molded exterior step with an interior recess that extended into the hollowed out portion of the exterior step. Richmond Power's specifications did not include an interior step for the bucket or the liner. The interior recess for the exterior step was completely covered by the dielectric liner requested by Richmond Power. A molded interior step or a portable interior step were available options, but Richmond Power did not specify that it desired either.
On August 25, 1997, Wade was employed by Richmond Power as an apprentice lineman. As part of his employment, Wade installed various types of equipment for Richmond Power, which sometimes involved the use of a bucket truck. When working in the bucket, linemen were attached to the bucket through the use of a lanyard and harness. The reason for wearing the lanyard is to ensure that the lineman does not fall to the ground if he were to lose his balance and fall. On the date at issue, Wade was working on the installation of a transformer approximately thirty feet off the ground. He was working from inside a double-man bucket attached to Truck 32. After finishing the installation, the bucket was lowered to the cradling position on top of the truck, with the top of the bucket approximately twelve feet above the ground. When the bucket was cradled, Wade replaced his tools in a tool apron that hung inside the bucket, removed his safety goggles, detached his lanyard, and prepared to exit the bucket. While attempting to exit the bucket, Wade missed the exterior step completely and fell twelve feet to the ground. As a result of this fall, Wade was rendered quadriplegic.
On July, 9, 1999, Wade filed a complaint against Terex and Dueco, Inc. ("Dueco"), a distributor of Terex products, alleging that Terex was negligent under the Indiana Product Liability Act in the design of the bucket, which injured Wade. Wade contended that the interior recess for the exterior step was in fact an interior step and that the lack of a molded interior step on the insulating dielectric liner caused this interior step to be covered up, which led to his fall. Wade alleged that, because Terex had sold liners with molded interior steps to other ...

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