Is the Danger Really Open and Obvious
![handle is hein.journals/indilr19 and id is 395 raw text is: Is the Danger Really Open and Obvious?
ROGER L. PARDIECK*
SHARON L. HULBERT**
I. INTRODUCTION
Several states use variations of open and obvious danger concepts
to determine the duties of manufacturers and injured parties involved
in product liability actions.' The application of the concept varies from
state to state. The more recent trend considers the obviousness of the
danger as only one factor in determining whether a plaintiff has assumed
the risk of injury.2 The minority approach looks only at the obviousness
of the danger and bars a plaintiff's recovery if it is determined that the
danger was obvious.3
*Attorney, Law Offices of Roger L. Pardieck, Seymour Indiana. B.A., Indiana
University, 1959; International Graduate School, University of Stockholm, Sweden; LL.B.,
Indiana University-Bloomington, 1963.
**Attorney, Law Offices of Roger L. Pardieck, Seymour, Indiana. B.A., Purdue
University, 1981; J.D., Indiana University-Indianapolis, 1984.
'See, e.g., Turner v. Machine Ice Co., 674 P.2d 883 (Ariz.App. 1983); Brown v.
Sears, Roebuck & Co., 667 P.2d 750 (Ariz.App. 1983); Union Supply Co. v. Pust, 196
Col. 162, 583 P.2d 276 (1978); Miscevich v. Commonwealth Edison Co., 110 I11. App. 3d
440, 442 N.E.2d 338 (1982); Hoffman v. E.W. Bliss Co., 448 N.E.2d 277 (Ind. 1983);
Holm v. Sponco Mfg., Inc., 324 N.W.2d 207 (Minn. 1982); Brown v. North American
Manufacturing Co., 176 Mt. 98, 576 P.2d 711 (1978). For a general discussion of this
area of law, see Phillips, Products Liability: Obviousness of Danger Revisited, 15 IND. L.
REv. 797 (1982).
'See, e.g., Miller v. Utica Mill Specialty Machinery Co., 731 F.2d 305 (6th Cir.
1984); Banks v. Iron Hustler Corp., 59 Md. App. 408, 475 A.2d 1243 (1984); Holm v.
Sponco Mfg., Inc., 324 N.W.2d 207 (Minn. 1982); Berg v. Sukup Mfg. Co., 355 N.W.2d
833 (S.D. 1984).
'See, e.g., Miscevich v. Commonwealth Edison Co., 110 IIl. App. 3d 400, 442 N.E.2d
338 (1982); Bryant-Poff, Inc. v. Hahn, 454 N.E.2d 1223 (Ind. Ct. App. 1982). The open
and obvious danger rule gained momentum as a complete bar to recovery in Campo v.
Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). In Campo, the court stated, [T]he
manufacturer of a machine or any other article, dangerous because of the way it functions,
and patently so, owes to those who use it a duty merely to make it free from latent
defects and concealed dangers. Id. at 471, 95 N.E.2d at 803. Campo was later overruled
by the New York Court of Appeals in Micallef v. Miehle Co., 39 N.Y.2d 376, 348
N,E.2d 571, 384 N.Y.S.2d 115 (1976). In place of the rigid no-duty rule, the Micallef
court adopted a reasonable care test. Under the test, the manufacturer's actions would
be reasonable if the cost of installing safety devices outweighed the benefit resulting from
their installation. Id. at 386, 348 N.E.2d at 578, N.Y.S. 2d at 121. The openness and ob-
viousness of a danger was a factor considered in determining whether the plaintiff exercised
that degree of care as was required under the circumstances. Id. at 387, 348 N.E.2d at
578, 384 N.Y.S. 2d at 122.
Courts following the more recent trend have noted that the no-duty and obvious
danger rule protects manufacturers who sell products with dangerous, but obvious, design
defects, encourages manufacturers to be outrageous in their design and to eliminate safety
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Is the Danger Really Open and Obvious
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