ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID M. HAMACHER JULIA BLACKWELL GELINAS
THOMAS A. CLEMENTS NELSON D. ALEXANDER
Ruman, Clements & Holub, P.C. ALLISON S. AVERY
Hammond, Indiana Locke Reynolds LLP
JAMES L. GILBERT
PAUL J. KOMYATTE JOHN A. KRIVICICH
Gilbert, Frank, Ollanik & Komyatte, P.C. Donahue, Brown, Mathewson &
Arvada, Colorado Chicago. Illinois
COURT OF APPEALS OF INDIANA
MONTEREY P. MORGEN, )
vs. ) No. 71A03-0003-CV-108
FORD MOTOR COMPANY, )
APPEAL FROM THE ST. JOSEPH COUNTY SUPERIOR COURT
The Honorable William C. Whitman, Judge
Cause No. 71D07-9405-CT-00130
January 28, 2002
OPINION - FOR PUBLICATION
Appellant, Monterey P. Morgen, appeals four issues arising out of a
verdict against him in a products liability suit he filed against Ford
Motor Company. First, he contends that the trial court erred by giving a
jury instruction on the defense of product misuse solely because he did not
wear his seat belt at the time of his injuries. He also argues that the
trial court erroneously refused to give the jury instructions regarding
Ford’s duty to warn and an instruction stating that there could be more
than one proximate cause of his injury. Finally, Morgen asserts that the
trial court erred by refusing to allow him to rebut testimony from Ford’s
expert regarding injury causation. Because we find that the trial court
erroneously instructed the jury on the misuse defense, we reverse and
Facts and Procedural History
On November 14, 1993, Morgen, who is six feet tall, sat in the rear
seat passenger side of a 1984 Ford Escort L 4-door Wagon. Morgen did not
wear the lap belt provided in the backseat. Kristy Snyder, his girlfriend,
was the front seat passenger. Janet Snyder, his girlfriend’s mother, drove
the Escort. While the Escort was stopped at an intersection, a Honda
Accord driven by Kim Possinger struck the Escort from behind. Morgen’s
expert estimated that the Honda Accord was traveling at 24 to 28 miles per
hour at the time of impact while Ford’s expert estimated that the Honda was
traveling at 33 to 35 miles per hour. Due to the impact of Possinger’s
Accord from behind, the Escort hit an Oldsmobile Cierra in front of it.
The back of the Escort was damaged. As a result of a spinal cord injury
sustained in the accident, Morgen is a quadriplegic. Morgen filed a
products liability suit against Ford claiming that the Escort was defective
and that Ford failed to provide reasonable warnings.
Each side offered expert testimony to explain how Morgen was injured.
Morgen’s experts testified that he was injured when the rear seat deformed
upward during the crash making his head strike the roof of the car, thereby
causing his spinal cord injury. Morgen’s experts testified that he hit the
roof because of vertical seat movement. A dent in the roof above the
backseat was created when Morgen’s head struck the roof. Essentially,
Morgen’s experts claimed that the structural design of the car reduced the
occupant survival space or headroom in the Escort.
Ford denied that any rear seat deformity causing the seat to move
upward during the crash was responsible for Morgen’s injuries. Instead,
Ford asserted that Morgen ramped up the seat and struck his head on the
roof before or after, but not during the buckling of the floor pan. Ford’s
experts testified that when the Escort was rear-ended, initially the car
moved forward, but Morgen did not move with the car. Instead, Morgen’s
torso remained in place as the seatback compressed and moved to a reclined
position. The seatback then pushed Morgen forward. As his torso was
driven forward, Morgen’s head and neck, which were above the seat, flexed
backward. Thus, Ford claims that Morgen’s spinal injury occurred when he
ramped up and over the seatback as the Escort moved forward. In addition,
Ford relied on the defense of misuse of the product. Specifically, Ford
maintained that it is not liable because Morgen misused the Escort by
failing to wear the safety belt provided in the automobile.
At trial, Janet Snyder and Morgen testified that if they had known
that the backseat would buckle upward in rear impact collisions, Morgen
would not have ridden in the rear seat. Nonetheless, the trial court
rejected jury instructions tendered by Morgen regarding the duty to warn of
latent defects. The court also refused an instruction informing the jury
that there can be more than one proximate cause of Morgen’s injury.
However, the trial court instructed the jury on Ford’s misuse defense.
The jury returned a general verdict for Ford. The trial court entered
judgment in favor of Ford and against Morgen upon the verdict. This appeal
Discussion and Decision
Standard of Review
The decision to give or deny a tendered jury instruction is largely
left to the sound discretion of the trial court. Hagerman Constr., Inc. v.
Copeland, 697 N.E.2d 948, 959 (Ind. Ct. App. 1998), trans. denied. We
review the trial court’s decision only for abuse of that discretion. Id.
An instruction given to the jury must be a correct statement of the law, be
applicable to the evidence adduced at trial, and be relevant to the issues
the jury must decide in reaching its verdict. Kelley v. Watson, 677 N.E.2d
1053, 1056 (Ind. Ct. App. 1997).
On review, we will reverse the trial court’s refusal to give a
tendered instruction when (1) the instruction is a correct statement of
law, (2) it is supported by the evidence, (3) it does not repeat material
adequately covered by other instructions, and (4) the substantial rights of
the tendering party would be prejudiced by the failure to give the
instruction. Marshall v. Clark Equip. Co., 680 N.E.2d 1102, 1104 (Ind. Ct.
App. 1997), trans. denied. A party is entitled to have his theory of the
case and the applicable law properly presented to the jury in the
instructions. City of Indianapolis Hous. Auth. v. Pippin, 726 N.E.2d 341,
349 (Ind. Ct. App. 2000). The purpose of an instruction is to inform the
jury of the law applicable to the facts without misleading the jury and to
enable it to comprehend the case clearly and arrive at a just, fair, and
correct verdict. Centennial Mortgage, Inc. v. Blumenfeld, 745 N.E.2d 268,
278 (Ind. Ct. App. 2001). Where the verdict would not have differed had
the jury been properly instructed, any error in the giving of the
instruction is harmless. Id.
I. The Misuse Instruction
At trial, the court instructed the jury that:
The Defendant, Ford Motor Company, contends that the plaintiff misused
the product by not using the seat belt . . . .
With respect to any product liability action based on strict liability
and tort it is a defense [that] the 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.
Record at 4625, 4629.
Morgen contends that the trial court erred in giving this instruction
because neither Indiana common law nor statutory law requires a backseat
passenger to wear a safety belt. He points to the fact that although
Indiana has adopted a safety belt statute that requires occupants in the
front seat of a vehicle to wear a safety belt, Indiana does not have a
statute requiring occupants in the rear seat of a vehicle to wear a safety
belt. Morgen argues further that the failure to wear a safety belt in the
backseat of a car is foreseeable as a matter of law based on prior Indiana
cases and, therefore, failure to wear a safety belt is not a misuse.
Furthermore, Morgen asserts that since the verdict was general in nature,
the jury’s verdict must be reversed because it could have been based on the
On the other hand, Ford contends that the question of whether it is
foreseeable a passenger might not wear a safety belt is a question for the
jury to decide. Ford argues that there is a continuum between consumer
conduct that is “not reasonably expected” and consumer conduct that is
“reasonably expected” and it is for a jury to determine when behavior
passes from “reasonably expected” to “not reasonably expected.” Appellee’s
Br. at 18. Ford also contends that Morgen waived the argument that he had
no duty to wear a seat belt because he did not raise this argument at
We initially address Ford’s waiver argument. Our review of the record
shows that Morgen objected to the instruction at trial on the grounds that
failure to wear a safety belt is foreseeable and that Ford failed to prove
that the failure to wear a safety belt caused Morgen’s injury. The issue
of duty is included in the issue of foreseeability because without a duty
to wear a safety belt in the backseat, it is foreseeable that passengers in
the rear seat will not engage their safety belts. This objection was
preserved for appeal. Accordingly, we address the merits.
As Morgen indicates, in Indiana there is no common law duty for an
occupant of a vehicle to wear a safety belt. Hopper v. Carey, 716 N.E.2d
566, 575 (Ind. Ct. App. 1999), trans. denied. There is also no statutory
duty for a backseat passenger to wear a safety belt. Indiana Code § 9-19-
10-2 provides that:
Each front seat occupant of a passenger motor vehicle that is equipped
with a safety belt meeting the standards . . . shall have a safety
belt properly fastened about the occupant’s body at all times when the
vehicle is in forward motion.
However, there is no statute mandating that a backseat passenger wear a
safety belt. The Indiana Legislature could have established a duty that
passengers sitting in the rear seat of a vehicle also wear safety belts.
Nevertheless, they have not done so. Thus, passengers in the backseat do
not have a statutory duty to wear a safety belt and we are unwilling to
institute such a requirement in the common law. See State v. Ingram, 427
N.E.2d 444, 448 (Ind. 1981) (examining the law before the current provision
created a duty that front seat occupants wear safety belts and stating
that, “[a]bsent a clear mandate from the legislature to require Indiana
automobile riders to wear seat belts, we are not prepared to step into the
breach and judicially mandate such conduct”).
Furthermore, it is foreseeable that automobile passengers may not wear
safety belts. We have repeatedly held that it is “clearly foreseeable”
that a passenger might fail to wear a safety belt. See Green v. State, 650
N.E.2d 307, 310 (Ind. Ct. App. 1995); Warner v. State, 577 N.E.2d 267, 270
(Ind. Ct. App. 1991); Bowman v. State, 546 N.E.2d 309, 310 (Ind. Ct. App.
1990), rev’d on other grounds, 577 N.E.2d 569 (Ind. 1991). In Bowman v.
State, the defendant was the driver in a one-car accident in which his
passenger, who was not wearing a safety belt, sustained injuries. Bowman
was convicted of operating a vehicle while intoxicated, causing death and
operating a vehicle with blood alcohol level of .10% or more, resulting in
death. In part, he challenged his convictions on the grounds that the
trial court erroneously denied a jury instruction on causation that
informed the jury to find him not guilty if his passenger’s failure to wear
a safety belt was the cause of her death. On appeal, we held that the
trial court properly denied the instruction because it was “clearly
foreseeable” that a passenger might fail to wear a safety belt and,
therefore, it was not an intervening and superseding cause. Id. at 313.
We reiterated this holding when faced with similar arguments in Green v.
State and Warner v. State. Accordingly, under Indiana law, it is clearly
foreseeable that a passenger in a motor vehicle might not wear a safety
Despite the Bowman line of cases, Ford claims that use of the misuse
instruction is supported in a products liability case based on our holding
in Hopper v. Carey. In Hopper, Bernard Hopper was driving a fire truck on
a non-emergency run. His son, George, was a passenger in the truck.
Although the fire truck was equipped with safety belts, they were not
wearing them. An accident occurred injuring both Bernard and George. They
filed a complaint with a products liability claim against the manufacturer
of the fire truck. A motion in limine was filed seeking an order to
support the admission of Bernard and George’s failure to wear the safety
belts in order to show fault. The trial court granted the motion. On
appeal, we reviewed the motion in limine. Id. at 570. We were unable to
determine whether the evidence of the failure to use a seat belt was
admissible in a products liability claim. Id. at 576. However, we stated
that it could be admissible to demonstrate incurred risk or to negate the
element of causation. Id. at 577. Thus, in Hopper we were examining the
admission of seat belt evidence and the incurred risk defense in a products
Here, by contrast, the admission of the evidence that Morgen was not
wearing his safety belt is not being challenged and we are examining the
safety belt evidence in the light of the misuse defense, not the incurred
risk defense. The misuse defense and the incurred risk defense are two
distinct defenses. Each defense is established in a separate code section.
Indiana Code § 34-20-6-3 addresses incurred risk while Indiana Code §
34-20-6-4 addresses misuse. Based on these statutory definitions, the
two defenses are distinguishable because knowledge of a product’s defect is
an essential element of establishing incurred risk, but is not necessary to
establish misuse. Accordingly, Hopper is distinguishable from the current
case and is inapplicable to our precise issue.
Ford also cites cases from other jurisdictions, which have concluded
that a plaintiff’s failure to wear a safety belt may be a misuse presented
to a jury. See e.g., Brown v. Ford Motor Co., 67 F. Supp. 2d 581, 582
(E.D. Va. 1999), aff’d, 246 F.3d 663 (4th Cir. 2001) (finding that under
Virginia law evidence of pickup driver’s failure to wear a safety belt was
admissible in an action against the manufacturer as it relates to product
misuse); Melia v. Ford Motor Co., 534 F.2d 795, 797 (8th Cir. 1976)
(stating that under Nebraska law it was proper for the jury to determine
whether the decedent misused the product by failing to use a safety belt);
Gen. Motors Corp. v. Walden, 406 F.2d 606, 609 (10th Cir. 1969) (holding
that under Arizona law the court properly instructed the jury that the
plaintiff’s failure to wear a safety belt could be a misuse); Roberts v.
May, 583 P.2d 305, 307 (Colo. Ct. App. 1978) (concluding that under
Colorado law where the manufacturer claimed misuse, the plaintiff’s
voluntary choice of accepting the risk associated with not wearing a safety
belt was for the jury to determine).
However, we are not bound by decisions from other jurisdictions
especially when we have previously held that not wearing a safety belt is
foreseeable. Moreover, we note that in Arizona and Colorado product misuse
is part of a comparative fault system. See Jimenez v. Sears, Roebuck &
Co., 904 P.2d 861, 871 (Ariz. 1995); States v. R.D.Werner Co., Inc., 799
P.2d 427, 430 (Colo. Ct. App. 1990). Thus, in these jurisdictions the jury
may use the misuse evidence in determining the fact and amount of a
plaintiff’s recovery. We are not persuaded by these cases because in
Indiana misuse of a product is a defense that completely bars a products
liability claim. Indianapolis Athletic Club, Inc. v. Alco Standard Corp.,
709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999), trans. denied. This is so
because it is considered an unforeseeable intervening cause that relieves
the manufacturer of liability. Id. We, therefore, conclude that the trial
court erred by giving the misuse instruction because under Indiana law
Morgen did not have a duty to wear a safety belt in the backseat and it is
foreseeable that a passenger might not wear a safety belt.
Finally, Ford contends that giving this instruction merely resulted
in harmless error. Ford relies on Indianapolis Athletic Club to illustrate
the harmless error doctrine with respect to the misuse defense. In
Indianapolis Athletic Club, a fire occurred at the Indianapolis Athletic
Club. Although investigators were unable to determine the cause of the
fire, they found that the fire originated behind a refrigerator that had
been manufactured by Alco Standard Corporation. The Athletic Club filed a
claim against Alco alleging a defect in the refrigerator’s electrical cord
caused the fire. Alco relied on the misuse defense, claiming that the
refrigerator could have been moved causing a crimping of the electrical
cord. During the trial, no direct evidence was introduced that crimping
occurred to the cord. The jury found in favor of Alco.
On appeal, the Athletic Club argued that the trial court erred by
instructing the jury on the misuse defense because there was no evidence
introduced at trial to support the instruction. We concluded that there
was insufficient evidence to support the instruction because there was no
evidence that the cord was crimped and moving a refrigerator cannot be
considered a misuse of the product. Id. at 1073. Although we determined
the instruction was given in error, we held that it was a harmless error
because the instruction correctly stated the law and no prejudice resulted
from the giving of the instruction where no evidence supported it. Id.
This case can be distinguished from Indianapolis Athletic Club. In
Indianapolis Athletic Club, there was no direct evidence presented of the
alleged misuse. Because no evidence was presented that could mistakenly be
viewed as misuse, the instruction could not have influenced the jury. In
this case, however, evidence was presented to the jury of the alleged
misuse when evidence that Morgen was not wearing a safety belt was admitted
at trial. Thus, Indianapolis Athletic Club is not controlling.
Despite an erroneous instruction, there is no cause to reverse a case
for a new trial where the verdict of the jury was correct. Hoffman v. E.W.
Bliss Co., 448 N.E.2d 277, 284 (Ind. 1983). In order to determine if the
error of giving an instruction is cured by the verdict, we must examine the
record and evidence to see if the verdict could have been based on the
erroneous instruction. Id. When there is only a general verdict and there
is conflicting evidence, it is impossible to tell which facts the jury
believed existed. Id. In such cases, the possibility that the verdict was
premised on the erroneous instruction precludes application of the “error
cured by the verdict” rule. Id.
In this case, the jury returned a general verdict. It is not possible
to hold that the erroneous instruction was harmless error because the
verdict may have been based on the jury’s finding that the product was not
defective or, in the alternative, the verdict may have been based on
Morgen’s misuse of the Escort by failing to wear his safety belt. It is,
therefore, possible that the verdict could have differed without this
instruction. Thus, we reverse and remand for a new trial.
Although this issue is dispositive, we address the other jury
instruction issues as they are likely to arise on retrial.
II. The Duty to Warn Jury Instruction
Morgen contends that the trial court erroneously refused to instruct
the jury that Ford had a duty to warn of latent dangers. Morgen offered
the following jury instructions, which the trial court denied because in
the court’s opinion this was not a warning case, but rather a design defect
case. Record at 4460-61.
Instruction No. 6
You may find that Ford Motor Company, because of its technical
knowledge as designer, manufacturer and distributor, knew or should
have known of the dangers posed by the 1984 Escort in reasonably
foreseeable rear end collisions and also knew that consumers such as
Morgen, without the benefit of such technical information, could not
have known of those dangers. If you so find, then you may find that
Ford Motor Company owed the duty to warn of such dangers posed by the
Record at 1204.
Instruction No. 13
Although a manufacturer is under no duty to warn of apparent dangers,
a manufacturer has the duty to guard against hidden defects and give
notice of concealed dangers.
Record at 1118. This is a pattern instruction. See Ind. Pattern Jury
Instruction 7.34 (2d ed. 1989).
Again, we will reverse a trial court’s refusal to give a tendered
instruction when (1) the instruction is a correct statement of the law, (2)
it is supported by the evidence, (3) it does not repeat material adequately
covered by other instructions, and (4) the substantial rights of the
tendering party would be prejudiced by the failure to give the instruction.
Marshall, 680 N.E.2d at 1104.
Morgen asserts that these instructions correctly state the law, and
Ford does not dispute this claim. Rather, Ford maintains that the
instructions “literally turn every design defect case into a warnings
case.” Appellee’s Br. at 24. In making this argument, Ford relies on
American Motors Corp. v. Ellis, 403 So. 2d 459 (Fla. Dist. Ct. App. 1981),
rev. denied. In Ellis, the Court of Appeals of Florida addressed whether
the trial court erred in instructing the jury as to American Motor’s
failure to warn of a defect in an AMC automobile. The Florida court held
that there was no causal relationship between breach of a duty to warn and
the injury sustained without evidence that a warning would have prevented
the owner of the car from purchasing or driving the vehicle. Id. at 466.
The court stated, “only if we were to engage in the speculation that the
owner, properly warned, would not have purchased the car, or would not have
allowed it to be driven on interstate highways, could we recognize a causal
relationship between breach of a duty to warn and the instant injury.” Id.
The current case is distinguishable from Ellis. In this case, we have
evidence that Morgen would not have sat in the backseat of the Escort if a
warning had been provided. Specifically, Janet Snyder, the owner of the
Escort testified that if she had known that in a rear impact the backseat
might raise five inches, she would not have purchased the car, nor would
she have let Morgen sit in the backseat of the Escort. Moreover, Morgen
testified that if he had been warned of any possible defect or problem in
the rear seat of the Escort he would not have ridden in the vehicle.
Accordingly, unlike in Ellis, the testimony of Snyder and Morgen provides
the causal relationship between the breach of the duty to warn and the
injury sustained to support giving the warning instruction. Thus, we are
not persuaded by Ford’s argument that the instructions turn every design
defect case into a warning case.
Ford also argues that there was no evidence that Ford knew or should
have known of a danger and, thus, the instructions are not supported by the
evidence. Morgen relies on Ford’s FMVSS 301 testing of the pre-production
Escorts to show that Ford had knowledge the Escort posed a risk of serious
head and neck injuries to rear seat passengers. However, Ford asserts that
the results of the FMVSS 301 test fail to provide this evidence because it
is a fuel integrity test, not an occupant protection test. However,
Morgen’s expert, Stephen Syson, testified that crash tests run on the first
generation Escort revealed that there was vertical movement of seven to
eight inches of the gas tank in the thirty-five mile hour test and about
three to four inches in the thirty mile an hour test. In addition,
Morgen’s expert, Robert J. Caldwell, testified that the structure of the
car buckles into an inverted V shape causing it to intrude directly into
the occupant space and directly affect any rear seat occupant. Therefore,
the evidence supported these instructions.
Despite the fact that the instruction correctly stated the law and
there was evidence to support the giving of the instruction, Ford argues,
nonetheless, that the substance of the instruction was covered by another
instruction and, therefore, the trial court did not err in refusing
Morgen’s duty to warn instructions. In particular, the trial court
instructed the jury that:
A product is defective under this chapter 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 available to the user or
Record at 465. This instruction did not inform the jury of the information
Ford needed to possess about defects in its product to trigger a duty to
warn. However, this information was provided by Morgen’s proposed
instructions which explained that Ford had a duty to warn consumers of
hidden dangers Ford knew or should have known about, but that a consumer
could not have known about. Accordingly, Morgen’s proposed instructions
were not covered by the instruction given to the jury.
In addition, Morgen’s substantial rights were prejudiced by the
failure to instruct the jury on the duty to warn regarding hidden defects.
Without the instruction, the jury was left to speculate as to what
knowledge Ford needed before its duty to warn consumers arose. In
conclusion, the tendered instructions were a correct statement of the law,
were supported by the evidence, were not covered by other instructions the
trial court gave the jury, and without the tendered jury instructions
Morgen’s substantial rights were prejudiced. Upon retrial, the trial court
should instruct the jury that Ford had a duty to warn of latent defects.
III. Proximate Cause Jury Instruction
Next, Morgen argues that the trial court erred when it refused to
instruct the jury that the accident could have had several proximate
causes. The trial court refused the following instruction tendered by
The term “proximate cause” means that cause which, in natural and
continuous sequence, produces the injury complained of, and without
which the result would not have occurred. The acts of the defendant,
Ford Motor Company, need not be the sole proximate cause in order for
Ford to be responsible for a result. There may be more than one
proximate cause of an injury and a result.
Record at 1123, 1205. Instead, the trial court instructed the jury that:
Proximate cause is that act or omission which in natural and
continuous sequence, unbroken by any efficient intervening cause
produces the injury complained without which the result would not have
If the evidence shows the injuries were caused solely by the conduct
of Kim Possinger in driving the 1991 Honda Accord, Monterey Morgen
cannot recover from Ford Motor Company for his injuries.
Record at 4630.
Specifically, Morgen contends that the instruction was erroneously
excluded because the jury was not instructed that there can be more than
one proximate cause and that it could find for Morgen even if it found that
Kim Possinger and Ford were both causes of Morgen’s injury. Morgen
correctly points out that in Jackson v. Warrum, 535 N.E.2d 1207 (Ind. Ct.
App. 1989), we held that the plaintiff need not prove that the defective
product was the sole proximate cause of the injury. Under concurrent
tortfeasor liability more than one cause can proximately lead to an injury
and the defendant’s act need not be the sole proximate cause. Id. at 1220
Ford argues that the instruction given by the trial court implicitly
contains the concepts Morgen sought to introduce through his instruction
and, therefore, sufficiently addressed the proximate cause issue so as to
inform the jury that there could be more than one proximate cause. In
support thereof, Ford cites Conder v. Hull Lift Truck, Inc., 435 N.E.2d 10
(Ind. 1982). In Conder, the court instructed the jury that if the
plaintiff’s injuries were solely and proximately caused by the conduct of
defendant Hull Lift Truck, Inc., or the plaintiff himself or that of his
employer or any combination of these, then the verdict should be for the
defendant, Allis-Chalmers Corporation. The plaintiff argued that the
instruction told the jury that contributory negligence was a defense to a
strict liability theory of products liability. However, the court also
instructed the jury that contributory negligence was not a defense to a
defective product theory of recovery. The supreme court found that the
jury instruction properly instructed the jury when read with the other
instruction. Id. at 17. In reaching this conclusion, the supreme court
acknowledged that the instruction informed the jury that if the sole
proximate cause of the accident was from sources other than Allis-Chalmers,
then the verdict should be in favor of Allis-Chalmers. Id.
Here, the court instructed the jury that Morgen could not recover
from Ford if the evidence showed his injuries were caused “solely” by the
conduct of Kim Possinger. The use of the word “solely” in this specific
instruction informed the jury that there could be more than one proximate
cause. Similar to the instruction used in Conder, the instruction in this
case informed the jury that if the only proximate cause of the accident was
from a source other than Ford, namely Possinger’s driving, then Morgen
could not recover from Ford.
However, although the instruction may have been adequate under Conder
and implicitly advised the jury that there could be more than one proximate
cause, it would be clearer if the jury instruction said so in the manner
set forth in Morgen’s proposed instruction. Therefore, although the trial
court did not erroneously instruct the jury in this case, it would be
preferable, at the future trial, to specifically instruct the jury that
there can be more than one proximate cause of an injury.
Judgment reversed and remanded.
DARDEN, J., and MATHIAS, J., concur.
 We note that the instruction was worded differently when it was
given by the court as a preliminary instruction. As a preliminary
instruction, it read:
With respect to any product liability action based on strict liability
It is 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.
Record at 1101 (emphasis added).
 Ind. Code § 34-20-6-3 states:
It is a defense to an action under this article (or Ind. Code 33-1-1.5
before its repeal) that the user or consumer bringing the action:
(1) knew of the defect;
(2) was aware of the danger in the product; and
(3) nevertheless proceeded to make use of the product and was injured.
 Ind. Code § 34-20-6-4 states:
It is a defense to an action under this article (or Ind. Code 33-1-1.5
before its repeal) that a cause of the physical harm is a misuse of
the product by 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.
 Morgen also argues that the trial court erred by refusing to
allow him to rebut testimony from Ford’s expert regarding injury causation.
However, this issue is not likely to reoccur at trial. Therefore, we do
not reach this issue on appeal.