Individual States 

INDIANA

ASSUMPTION OF RISK

Implied assumption of risk is part of comparative fault and will diminish recovery. Ind. Code Ann. §34-6-2-45(b) .

In a product liability action, it may be completely bar recovery if the user or consumer knew of the defect; was aware of the danger in the product; and nevertheless proceeded to make use of the product and was injured. Ind. Code Ann. §34-20-6-3 .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

In an action for personal injury or wrongful death, proof of collateral source payments is allowed except for: (A) life insurance or other death benefits; (B) insurance benefits which the plaintiff or family members have paid for directly; (C) payments that have been made before trial, made by the state or the United States, or any agency, instrumentality, or subdivision of the state or the United States. Evidence is also admissible to show how much money the plaintiff is required to repay and the cost to plaintiff or members of plaintiff's family of the collateral sources received. Ind. Code Ann. §34-44-1-2 .

COMPARATIVE FAULT

A claimant's contributory fault diminishes proportionately the amount awarded as compensatory damages, but does not bar recovery unless claimant's contributory fault is greater than the fault of all persons whose fault proximately contributed to the claimant's damages. Ind. Code Ann. §§34-51-2-5 and 6 .

In a product liability action, the fault of the person suffering the physical harm, as well as the fault of all others (including nonparties) who caused or contributed to the harm, shall be compared by the trier of fact in accordance with the comparative fault statutes (§§34-51-2-5 to 7). Ind. Code Ann. §34-20-8-1 .

ECONOMIC LOSS

Economic losses are not recoverable in a negligence action premised on the failure of a product to perform as expected unless such failure causes personal injury or physical harm to property other than the product itself. Martin Rispens & Son v. Hall Farms, Inc., 621 N.E.2d 1078 (Ind.1993) .

Physical harm is defined as follows: "Bodily injury, death, loss of services, and rights arising from any such injuries, as well as sudden, major damage to property. This does not include gradually evolving damage to property or economic loss from such damage." Ind. Code §33-1-1.5-2 .

JOINT & SEVERAL LIABILITY

In 1985, Indiana's comparative fault system replaced joint and several liability with several liability, leaving each defendant responsible only for his share of the total liability. R.L. McCoy, Inc. v. Jack, 772 N.E.2d 987, 989 (Ind. 2002) ; Ind. Code Ann. §34-20-7-1 .

PUNITIVE DAMAGES

Punitive damages must be proven by clear and convincing evidence. Nominal damages are sufficient to support a punitive damage award. However, by statute, punitive damages may not exceed the greater of three times compensatory damages or $50,000. Ind. Code Ann. §§34-51-3-2, 34-51-3-4 .

Punitive damages may not be awarded for wrongful death, or against any governmental entity or an employee of a governmental entity acting within the scope of employment. Ind. Code Ann. §§34-23-1-2, 34-13-3-4 .

RIGHT TO CONTRIBUTION

There is no right to contribution, but this section does not affect any rights to indemnity. Ind. Code Ann. §34-51-2-12 .

Right to contribution provides for a nonparty defense whereby a defendant may reduce his liability by claiming that some amount of fault is attributable to a person who is not a party to the lawsuit, subject to certain conditions. Ind. Code Ann. §§34-51-2-6 to 34-20-8-1 (strict liability).

SPECIAL DEFENSES

In a product liability action, misuse of a product acts as a complete bar to recovery. Burt v. Makita USA, Inc., 212 F. Supp. 893 (N.D. Ind. 2002) .

A manufacturer is not liable when a substantial change has occurred to the product between the time the product left the manufacturer's hands and the time of the accident if the change was not reasonably foreseeable. Bishop v. Firestone Tire & Rubber Co., 814 F.2d 437 (7th Cir. 1987) .

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. Ind. Code Ann. §34-20-4-3 .

A product is not defective if it is incapable of being made safe for its reasonably expectable use, when manufactured, sold, handled, and packaged properly. Ind. Code Ann. §34-20-4-4 .

In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product (1) conformed with the "state of the art" at the time it was designed, manufactured, packaged, and labeled; or (2) complied with applicable codes, standards, regulations, or specifications established by the United States, Indiana, or any agencies thereof. Ind. Code Ann. §34-20-5-1 .

In actions brought to recover damages for personal injury, property damage and wrongful death, evidence of "advance payment" by defendant of defendant's insurance company shall not be construed as an admission of liability, and shall not generally be admissible for any purpose. This chapter does not apply where there is more than one defendant. Ind. Code Ann. §§34-44-2-1 to 34-44-2-3 .

If it is determined that a plaintiff is entitled to recovery, a defendant may introduce evidence of "advance payment" and the court shall reduce the award. Ind. Code Ann. §34-44-2-3 .

STATUTES OF LIMITATION

Product liability actions based on strict liability or negligence, as well as any wrongful death actions, shall be brought within two years. Ind. Code Ann. §34-20-3-1 .

STATUTES OF REPOSE

Product liability actions based on strict liability or negligence shall be brought within ten years of from the date the product was delivered to the initial consumer or user. However, if the cause of action accrues between before ten years have past, the claimant still has a full two years to commence the action. Ind. Code Ann. §34-20-3-1 .

STRUCTURED SETTLEMENT

There are no exclusive Products Liability statutes under this category.