Indiana Law Review


Survey of Recent Developments in
Indiana Product Liability Law

Joseph R. Alberts*
James M. Boyers"

Introduction

The 2002 survey period was another busy one for Indiana judges and
practitioners in the area of product liability law.

1

During the survey period,

October 1, 2001, to September 30, 2002,
2
state and federal courts in Indiana

continued to refine the scope and meaning of the Indiana Product Liability Act

("IPLA").

This survey does not attempt to address in detail all of the cases applying

Indiana product liability law that courts decided during the survey period.

Rather, it examines selected, representative cases.
3

This survey also provides

* Senior Litigation Attorney, Dow AgroSciences LLC, Indianapolis; B.A., cum laude,
1991, Hanover College; J.D., magna cum laude, 1994, Indiana University School of

Law—Indianapolis; Chairman, Product Liability Section, Defense Trial Counsel of Indiana (1999-
2001); Chairman, Corporate Counsel Section, Indiana State Bar Association (2001-2002);

Chairman, In-House Counsel Section, Defense Trial Counsel of Indiana (2002-Present).
** Attorney, Wooden & McLaughlin LLP, Indianapolis; B.A., 1994, Hanover College;

J.D., 1998, Indiana University School of Law—Bloomington; Vice Chairman, Product Liability
Section, Defense Trial Counsel of Indiana, Courts Monitoring (2001 -Present); Chairman-Elect,

Product Liability Section, Defense Trial Counsel of Indiana (2002-Present).

The authors thank Brenda Ferguson, Jon Phillips, and Jeremy Johnson for their contributions.

1. This survey article follows the lead of the Indiana General Assembly and employs the

term "product liability" (not "products liability") when referring to actions governed by the Indiana

Product Liability Act ("IPLA").

2. Three important cases decided in 2002 after the survey period expired are In re

Bridgestone/Firestone, Inc., No. IP 000-9373-CB/S, 2002 U.S. Dist. LEXIS 24954 (S.D. Ind. Dec.

19, 2002); Miller v. Honeywell International, Inc., No. IP 98-1742-CM/S, 2002 U.S. Dist. LEXIS

20478 (S.D. Ind. Oct. 1 5, 2002) and Vaughn v. Daniels Co., Ill N.E.2d 1 1 10 (Ind. Ct. App. 2002).

All three cases should be reviewed in next year's survey article.

3. Although they are not addressed in detail in this article, at least two additional cases are

worthy of note here. The first case, In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir.

2002), is not discussed in detail in this article because it does not deal with substantive issues of

Indiana product liability law. It is, nevertheless, a decision that Indiana practitioners may be

interested in from a procedural standpoint. The case involves numerous claimants who allege

liability as a result of defective tires. The Seventh Circuit Court of Appeals reversed the district

court's order certifying two nationwide class actions, holding that the claimants could not satisfy

the commonality and superiority requirements of Rule 23 ofthe Federal Rules of Civil Procedure.

Mat 1020-21.
The second case, Holt v. Quality Motor Sales, Inc., 116 N.E.2d 361 (Ind. Ct. App. 2002),

likewise does not deal with substantive issues of Indiana product liability law. It does, however,

involve a claim alleging negligent repair of a vehicle's brakes and a failure to warn of the alleged

unsafe condition ofthe brakes. Indiana practitioners may be interested in this case in a general tort

sense because it includes an interesting discussion about duties of care and foreseeability when an



1 166 INDIANA LAW REVIEW [Vol. 36:1 165

background information and context where appropriate and addresses some
important issues that the decisions raise.

I. The Scope of the IPLA

The Indiana General Assembly first enacted the IPLA in 1978. It originally
governed claims in tort utilizing both negligence and strict liability theories. In

1983, the General Assembly amended the IPLA to apply only to strict liability
actions.

4
In 1995, the General Assembly amended it to once again encompass

tort theories of recovery based on both strict liability and negligence theories.
5

In 1998, the General Assembly repealed the entire IPLA and recodified it.6

The 1998 recodification did not make substantive revisions; it merely
redesignated the statutory numbering system to make the IPLA consistent with
the General Assembly's reconfiguration ofthe statutes governing civil practice.

The current version ofthe IPLA, Indiana Code section 34-20-1-1 to section
34-20-9-1, governs and controls all actions that are: "(1) brought by a user or

consumer; (2) against a manufacturer or seller; and (3) for physical harm caused

by a product," regardless of the theory of liability.
7

The IPLA imposes liability when

a person who sells, leases, or otherwise puts into the stream ofcommerce
any product in a defective condition unreasonably dangerous to any user

or consumer or to the user's or consumer's property if: (1 ) that user or

consumer is in the class of persons that the seller should reasonably

foresee as being subject to the harm caused by the defective condition;

(2) the seller is engaged in the business of selling the product; and (3)
the product is expected to and does reach the user or consumer without

substantial alteration in the condition in which the product is sold by the

person sought to be held liable under this article.
8

This first section discusses the scope of the IPLA, and more specifically
addresses what kinds of cases the IPLA governs.

A. ". . . brought by a user or consumer ..."

As noted above, the IPLA governs all claims users or consumers file in
Indiana against manufacturers and sellers for physical harm a product causes.
Just who are "users" and "consumers" in Indiana? Specific statutory definitions

allegedly defective product is repaired or maintained by a person or entity that did not manufacture

the product. Id. at 366-67.

4. IPLA, Pub. L. No. 297-1983, § 1, 1983 Ind. Acts 1815.

5. IPLA, Pub. L. No. 278-1995, § 1, 1995 Ind. Acts 4051. See Progressive Ins. Co. v.

General Motors Corp., 749 N.E.2d 484, 487n.2 (Ind. 2001).

6. The current version of the IPLA is found at Indiana Code sections 34-20-1-1 to -9-1

(1998).

7. Ind. Code §34-20-1-1.

8. Id. §34-20-2-1.



2003] PRODUCT LIABILITY 1 1 67

and recent cases help answer that question.

For purposes of the IPLA's application, "consumer" means:

( 1 ) a purchaser; (2) any individual who uses or consumes the product;
(3) any other person who, while acting for or on behalf of the injured

party, was in possession and control of the product in question; or (4)
any bystander injured by the product who would reasonably be expected
to be in the vicinity of the product during its reasonably expected use.

9

For purposes of this statute, "user" has the same meaning as "consumer."
10

Even if a claimant falls within one ofthose statutorily-defined groups, he or

she also must satisfy another statutorily-defined threshold before proceeding with

an IPLA claim. That additional threshold is found in Indiana Code section 34-
20-2- 1(1), which requires the "user" or "consumer" to be "in the class ofpersons

that the seller should reasonably foresee as being subject to the harm caused by

the defective condition."

The Indiana Supreme Court decided three cases during the survey period
concerning who qualifies as "users" and "consumers" for purposes ofthe IPLA. 11

Each of those three cases, Stegemoller v. ACandS, Inc.,
12
Martin v. ACandS,

Inc.,
13
and Camplin v. ACandS, Inc.,

H
has nearly identical operative facts. In all

of those cases, the plaintiffs were the wives or the estates of wives whose
husbands claimed to have worked around or near asbestos-containing products.

The wives claimed that asbestos dust remained on their husbands' work clothes,
and that they inhaled the dust brought home from the various workplaces while
laundering those work clothes. The wives claimed various illnesses, all allegedly

caused by inhalation of asbestos fibers.
15

Plaintiff sued several entities alleged

9. Id § 34-6-2-29.

10. Id. §34-6-2-147.

1 1

.

Those three casesjoin two other cases the Indiana Supreme Court decided during the last

few years on the subject of "users" and "consumers" under the IPLA. See, e.g., Butler v. City of

Peru, 733 N.E.2d 912, 919 (Ind. 2000) (dismissing negligence claim filed before the 1995 IPLA

revision, but finding that a maintenance worker could be considered a "user or consumer" of

electrical transmission system because his employer was the ultimate user and he was an employee

of the "consuming entity"); Estate of Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 279-80

(Ind. 1999) (extending definition of "user or consumer" to include a distributor who uses the

product extensively for demonstration purposes).

1 2. 767 N.E.2d 974 (Ind. 2002).

13. 768 N.E.2d 426 (Ind. 2002).

1 4. 768 N.E.2d 428 (Ind. 2002).

15. Lee Stegemoller worked for several years as a union insulator for many different

companies and during the course of his career worked with asbestos products. He and his wife,

Ramona, contended that some ofthe asbestos dust remained on his clothes when he left the various

jobsites and that she inhaled the dust that he brought home from his workplace. Ramona was

diagnosed with colon cancer, pulmonary fibrosis, and pleural thickening, which she alleged was

caused by inhalation ofasbestos fibers, specifically as the result ofinteracting with her husband and

laundering his work uniforms. See Stegemoller v. ACandS, Inc. , 749 N.E.2d 1 2 1 6, 1 2 1 8 (Ind. Ct.



1 1 68 INDIANA LAW REVIEW [Vol. 36: 1 1 65

to be responsible for the wives' conditions, either because they were involved in

the manufacture or sale ofasbestos-containing products, they were the successors

in interest to such entities, or because they had some other responsibility for the
alleged physical conditions. The trial court dismissed the claims, finding that
they were not "users" or "consumers" as defined by the IPLA because they were
not in the vicinity of the allegedly defective products during their reasonably

expected uses and, accordingly, could not be considered "bystanders."
16

Thus,

the trial courts held that the wives could not sustain causes of action under the

IPLA or at common law. 17 The appellate court affirmed. 18

The Indiana Supreme Court reversed. The defendants argued that the wives
who claimed exposure to asbestos dust while at home laundering clothing simply
were not in the vicinity of the finished insulation products during the

"reasonably expectable use" ofthose products as insulation material at industrial

job sites.
19
The Stegemoller court reasoned that such a view was "too narrow."20

"The normal, expected use ofasbestos products entails contact with its migrating

and potentially harmful residue. We conclude that divorcing the underlying
product from fibers or other residue it may discharge is not consistent with the
[IPLA]."

21

It is difficult to gaugejust what practitioners in prospective cases should take

from Stegemoller, Camplin, and Martin. The decisions either broaden the term
"vicinity" or they broaden the term "reasonably expectable use," or perhaps they

do both. On the one hand, there does not appear to be any evidence that the
wives in these three cases were in the "vicinity" of the end-use insulation

products as they were insulating pipes at the industrial jobsites where the

husbands worked. On the other hand, it is difficult to argue with the supreme
court's logic that the "reasonably expectable" use of asbestos insulation

App. 2001), rev 'd by 767 N.E.2d 974 (Ind. 2002).

16. The Stegemollers, for example, sued several entities believed to be responsible for

Ramona's condition, either because they were involved in the manufacture or sale of asbestos-

containing products, they were the successors in interest to such entities, or they had some other

alleged responsibility for her physical condition. Several ofthose entities filed motions to dismiss,

asserting that Ramona was not a "user or consumer" as defined by the IPLA and, therefore, she had

no cause of action. The trial court agreed and dismissed her claims because she did not fall within

the IPLA and, further, because there is no common law negligence claim for a user or consumer

who sues a seller or a manufacturer separate from that which the IPLA contemplates and governs.

Stegemoller, 161 N.E.2d at 975-76. The court ofappeals affirmed the trial court's decision on both

grounds. Stegemoller, 749 N.E.2d at 1220.

1 7. Stegemoller, 767 N.E.2d at 975.

18. Id. The only published court of appeals opinion was Stegemoller, 749 N.E.2d 1216. In

an unpublished opinion, the court of appeals in Martin followed the analysis put forth in

Stegemoller. In Camplin, the court ofappeals requested the supreme court to take the case directly

because it had already granted transfer in Stegemoller and Martin. Camplin, 768 N.E.2d at 429.

19. Stegemoller, 767 N.E.2d at 976.

20. Id.

21. Id.



2003
]

PRODUCT LIABILITY 1 1 69

necessarily entails contact with migrating fibers and that it is sometimes difficult

for purposes of liability imposition to divorce those fibers from the asbestos-

containing end-use products.

The problem for practitioners in light of Stegemoller, Camplin, and Martin

is determining how large the "vicinity" of the "reasonably expectable use" is.
The supreme court aptly recognizes that maintenance may be part ofa product's
reasonably expected use because many products require some amount ofclean-up
and maintenance attendant to their reasonably expectable use.

22
However, most

reasonably anticipated maintenance and clean-up associated with a reasonably

expectable use is undertaken where the product is located and, thus, within the

"vicinity" of the product during what both manufacturers and intended users

would consider to be its "reasonably expected use." That was not the case with

the plaintiffs in Stegemoller, Camplin, and Martin because the wives' residential

laundry areas were nowhere near the vicinity of the reasonably expected use of

the insulation products when the clean-up (washing the clothes) occurred.
Just how practitioners should interpret Stegemoller, Camplin, and Martin in

connection with non-asbestos cases seems open to debate. The brevity ofthese

decisions may indicate that the Indiana Supreme Court was willing to interpret
the statute a certain way to apply only to the unique problems associated with
asbestos exposure. Time will tell.

B. ". . . against a manufacturer or seller ..."

As is the case with users and consumers, statutory definitions and recent
cases may help practitioners understand which entities can be defendants in an
action under the IPLA by virtue of their status as either "manufacturers" or
"sellers."

For purposes ofthe IPLA, "manufacturer" means "a person or an entity who
designs, assembles, fabricates, produces, constructs, or otherwise prepares a

product or a component part of a product before the sale of the product to a user

or consumer."
23 A "seller" means "a person engaged in the business of selling

or leasing a product for resale, use, or consumption."
24

Chapter 2 of the IPLA
employs nearly identical language when addressing the threshold requirement
that liability under the IPLA will not attach unless the "seller" is "engaged in the
business of selling the product."

25

Sellers also can be manufacturers. The definition of "manufacturer"

expressly includes a seller who:

(1) has actual knowledge of a defect in a product; (2) creates and

furnishes a manufacturer with specifications relevant to the alleged

defect for producing the product or who otherwise exercises some
significant control over all or a portion ofthe manufacturing process; (3)

22. Id. (citing Butler v. City of Peru, 733 N.E.2d 912, 914, 919 (Ind. 2000)).

23. Ind. Code §34-6-2-77 (1998).

24. Id. § 34-6-2-136.

25. Id. § 34-20-2-1(2).



1 1 70 INDIANA LAW REVIEW [Vol. 36:1165

alters or modifies the product in any significant manner after the product
comes into the seller's possession and before it is sold to the ultimate

user or consumer; (4) is owned in whole or significant part by the
manufacturer; or (5) owns in whole or significant part the name of the
actual manufacturer.

26

A seller also may be held liable to the same extent as a manufacturer in one
other limited circumstance: if the court is "unable to hold jurisdiction over a

particular manufacturer" and the seller is the "manufacturer's principal

distributor or seller."
27

There is one other important provision about which practitioners should be

aware when it comes to liability of "sellers" under the IPLA. When the theory
of liability is based on "strict liability in tort,"

28
Indiana Code section 34-20-2-3

makes it clear that an entity that is merely a "seller" and cannot be deemed a
"manufacturer" is not liable and is not a proper IPLA defendant.

In Williams v. REP Corp.,29 plaintiff injured his hand in July 1995 while
using a rubber injection molding machine.

30
Plaintiff sued defendant REP

Corporation in state court. REP removed the case to federal court, where the
district court granted summaryjudgment to the defendant because plaintifffailed
to produce any evidence that REP Corporation ever sold, leased, or otherwise put
into the stream ofcommerce the allegedly defective machine.

31
Before granting

summary judgment, however, the district court allowed plaintiff to amend his
complaint to include a claim against REP France because evidence produced in
discovery showed that REP France was the manufacturer of the molding
machine.

32 The caption was thereafter modified to show the proper defendant as
REP International.33 The district court ultimately dismissed REP International
after determining that the court did not have personal jurisdiction over it.

34

On appeal, plaintiff argued that REP Corporation could be considered a
"manufacturer" pursuant to what is now Indiana Code section 34-6-2-77 because
it owned REP International and because REP Corporation was a principal
distributor for an entity over which the court could not holdjurisdiction pursuant

26. Id § 34-6-2-77(a).

27. Id § 34-20-2-4.

28. The phrase "strict liability in tort," to the extent that the phrase is intended to mean

"liability without regard to reasonable care," appears to encompass only claims that attempt to

prove that a product is defective and unreasonably dangerous by utilizing a manufacturing defect

theory. Indiana Code section 34-20-2-2 makes it clear that cases utilizing a design defect or a

failure to warn theory are judged by a negligence standard and not a "strict liability" standard.

29. 302 F.3d 660 (7th Cir. 2002).

30. Mat 661.
31. Id.

32. Id. at 662.

33. REP Corporation later acknowledged that REP France did not exist and that REP
International was the proper entity. Id.

34. Id.



2003] PRODUCT LIABILITY 1171

to Indiana Code section 34-20-2-4.
35
The Seventh Circuit rejected this argument

and affirmed, recognizing that, by its own plain language, Indiana Code section
34-20-2- 1 imposes a threshold requirement that an entity must have sold, leased,

or otherwise placed a defective and unreasonably dangerous product into the

stream of commerce before IPLA liability can attach and before that entity can
be considered a "manufacturer" or "seller" of a product in Indiana.

36
That

threshold requirement applies regardless ofwhether REP Corporation owned part
ofREP International or whether REP Corporation was a principal distributor for
REP International.37

In Del Signore v. Asphalt Drum Mixers,3 * defendant Asphalt Drum Mixers
("ADM") manufactured stationary and portable asphalt plants.39 Plaintiff was
injured when he fell into a pond of very hot water while shooting a promotional
video for ADM at an ADM designed plant in Mexico that was owned and
operated by Abraham Martel. ADM's involvement in the design and
construction of MartePs plant involved preparation of "a concrete foundation

drawing for the customer and elevations depicting the layout of ADM's
equipment, together with some suggested pond dimensions."

40 The foundation
drawing is merely a footprint of ADM's plant "so the customer will know how
much space will be needed."41 The ultimate layout ofthe facility and the size of
the ponds are left to the owner/customer. Plaintiff sued ADM claiming that it
was a "manufacturer" for purposes of liability pursuant to the IPLA because
ADM was "a designer ofa component part (i.e., the wetwash pond of its product
(i.e., the asphalt plant)."

42

Judge Cosbey granted summaryjudgment to ADM. After an examination of
the Restatement (Third) of Torts, Judge Cosbey recognized that liability only

attaches when the manufacturer "substantially participates in the integration of
the component into the design of the product."

43 The Restatement (Third) also
states that "providing mechanical or technical services or advice concerning a

component part does not, by itself, constitute substantial participation."44

According to Judge Cosbey:

[I]t cannot be inferred that ADM designed Martel' s pond or any part of
his complex, except perhaps, providing a footprint layout for its own
equipment .... ADM had no control, and indeed very little interest in,
where Martel would put his pond, how it would be constructed, or even

35. Id. at 664.

36. Id. (citing Ind. Code § 33-l-1.5-3(a) (West 1996)).

37. Id.

38. 182 F. Supp. 2d 730 (N.D. Ind. 2002).

39. Id. at 733.

40. Id. at 735.

41. Id.

42. Id. at 734.

43. Id. at 745 (quoting RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY § 5(b)(1)

(1998)).

44. Id. (quoting Restatement (Third) of Torts: Product Liability § 5 cmt. e (1998)).



1 172 INDIANA LAW REVIEW [Vol. 36: 1 165

whether he was using a pond as opposed to some other water source.
While ADM did provide Martel with some technical guidance or advice
as to the water volume ofthe pond, its maximum distance from the plant,
and perhaps some dimensions, this did not constitute substantial
participation in the integration ofthe plant with the pond as a matter of
law Consequently, ADM was not a 'manufacturer' ofMartel' s pond
under the IPLA.

45

In Kennedy v. Guess, Inc.,46 one of the plaintiffs was injured on May 22,
1998, by an umbrella received as a free gift with the purchase of a watch from a
Lazarus Department Store.

47
The plaintiffs alleged both negligence and strict

liability theories against the watch manufacturer, the umbrella and watch

distributor, as well as the alleged umbrella manufacturer (a Hong Kong
corporation) and its domestic affiliate.

48
Plaintiffs attempted to serve the Hong

Kong address ofthe alleged manufacturer, but were unsuccessful. The trial court
granted summary judgment to the watch manufacturer and to the distributor,
apparently finding that neither ofthem could be considered a "manufacturer" for

purposes of IPLA liability.49

The Indiana Court of Appeals reversed, holding that none of the parties
sufficiently designated evidence to establish the application of Indiana Code
section 34-20-2-4.

50
Plaintiffs argued that the watch manufacturer and the

distributor could be liable under the IPLA because the court could not "hold
jurisdiction" over the alleged Hong Kong manufacturer and because those two
entities could be considered the "principal distributor or seller" ofthe umbrella.

51

Defendant watch manufacturer and distributor countered that neither ofthem was
the "principal distributor or seller," and attempted to so demonstrate by

designating statements based on the personal knowledge of their own
employees.

52
Citing the proof requirement for summary judgment under Trial

Rule 56, the court determined that the defendants had to designate evidence

showing more than just that they were not the principal distributor.53 Without
evidence tending to show who actually was the principal distributor, the Indiana
Court of Appeals refused to apply Indiana Code section 34-20-2-4 to bar
liability.

54

The Indiana Supreme Court has granted transfer in Kennedy and thereby
vacated the decision ofthe court ofappeals. Perhaps the Indiana Supreme Court

45. Id (quoting RESTATEMENT (Third) OF Torts § 5 cmt. e (1998) (citation omitted)).

46. 765 N.E.2d 213 (Ind. Ct. App. 2002), trans, granted, vacated by No. 29S02-021 1-CV-

594, 2002 Ind. LEXIS 83 1 (Ind. Nov. 1 , 2002).

47. Id at 215.

48. Mat 215-16.
49. Id. at 219.

50. Id. at 220.

51. Id. at 218.

52. Id. at 219.

53. Id.

54. Id at 220.



2003] PRODUCT LIABILITY 1 1 73

will weigh in on what it means to "hold jurisdiction" for purposes ofapplication

of Indiana Code section 34-20-2-4.

In Goines v. Federal Express Corp.,
55

the plaintiff was injured while
fabricating and installing conveyors at the Federal Express terminal in

Indianapolis.
56

Plaintiff alleged that a nylon strap used to hold a section of the

conveyor bed snapped causing it to fall on him, resulting in injury. The opinion
does not indicate when the injury occurred. Plaintiffbrought general negligence
and strict liability claims against a Minnesota company (Fastenal), which was
allegedly the strap manufacturer.

57
Both claims, although designated as separate,

alleged warning and design defects and were based on the same underlying

alleged misconduct.
58

Fastenal filed a cross-claim against a Pennsylvania

company (Lift-All), which it claimed manufactured the nylon strap that was sold
to Fastenal.

59

Fastenal filed a motion for summaryjudgment claiming that it was not liable
under the IPLA because it was the manufacturer of the product, but merely a
seller with no ability to be deemed liable.

60
Under the IPLA, "a mere distributor

may not be held liable under either strict products liability or negligence."61 The
plaintiff responded by arguing that under the exception found at Indiana Code
section 34-20-2-4, the court could hold Fastenal liable because the court could

not "hold jurisdiction over" the actual manufacturer (Lift-All) and because

Fastenal was the principal distributor for Lift-All.
62

According to the court, both

parties failed to demonstrate why the court would be unable to "hold jurisdiction
over" Lift-All.

63
Plaintiff assumed that "jurisdiction . . . refers to the power [of

the court] to hear a particular case." Fastenal argued that the phrase equates to

"personal jurisdiction."
64

Because Fastenal failed to convince "the court that

application of the IPLA entitles it to summary judgment," the court refused to
resolve the issue deciding instead to deny the motion for summary judgment.65

In Ritchie v. Glidden Co.,
66

the plaintiffwas an employee of a company that
painted the inside of modular homes before assembling them. Plaintiffs left

55. No. 99-CV-4307-JP6, 2002 U.S. Dist. LEXIS 5070 (S.D. 111. Jan. 8, 2002)(applying

Indiana law).

56. Id. at *4.

57. Mat**4-5.

58. /«/.at*5.

59. Id.

60. Id. at*6.

61. Id.

62. Mat*9.

63. Id. at*12.

64. Id.

65. Id. at**14-15.

66. 242F.3d713 (7th Cir. 2001). The court's decision in Ritchie was issued before the 2002

survey period. However, because of the significance of the case to Indiana practitioners and

because issues decided in that case dovetail nicely with points made in this section, the Ritchie

decision is discussed at length.



1174 INDIANA LAW REVIEW [Vol. 36:1165

index finger had to be amputated after it was accidentally injected with paint
while she was checking one of the spray pumps for a possible malfunction.
Plaintiffsued two defendants, the manufacturer ofthe pump (Graco, Inc.) and the
supplier of the pump (Glidden Company).67

The trial court granted summary judgment to both defendants, and plaintiff
appealed to the Seventh Circuit.

68 The court first determined that summary
judgment was inappropriate with regard to the IPLA claim against the
manufacturing defendant because there were genuine issues of material fact

about whether the pump in question contained a warning.69 The court next
examined the IPLA claims against Glidden, the seller/supplier. In that
connection, the Ritchie court cited what is now Indiana Code section 34-20-2-3
for the proposition that sellers in a product liability action may not be liable
unless the seller can be deemed a manufacturer of the product.

70
Applying

interpretation, the court held that Glidden could not be liable under the IPLA
because the plaintiff failed to designate sufficient facts to demonstrate that

Glidden had actual knowledge of the alleged product defect (lack of warning

labels) and because Glidden did not meet any ofthe other statutory requirements

by which it could be deemed a manufacturer.
71

There is an omission in the Ritchie court's citation to what is now Indiana
Code section 34-20-2-3 that may be quite significant. The statutory provision
quoted in Ritchie leaves out the following important highlighted language: "A
product liability action [based on the doctrine of strict liability in tort] may not
be commenced or maintained . . . ."72 Recall that the Ritchie case involved a
failure to warn claim against Glidden under the IPLA. As alluded to above, and
as will be discussed in more detail below, Indiana Code section 34-20-2-2 makes
it clear that "strict liability in tort" now applies only to IPLA cases in which a
manufacturing defect is theory supporting why the product was defective and
unreasonably dangerous.

73
Indiana Code section 34-20-2-2 unequivocally

provides that liability, regardless ofthe exercise ofreasonable care, simply does

not apply to warning or design claims, which are controlled by a negligence

standard.
74

Thus, if indeed the phrase "strict liability" means "liability without

67. Id. at 716.

68. Id.

69. Id. at 125.

70. Id. (The court cites to Ind. CODE § 33-1-1 .5-3(c) which was later repealed and recodified

as Ind. Code § 34-20-2-3).

71. Id. at 725-26.

72. Id. at 725 (emphasis added) (quoting Ind. Code § 33-1-1-5.3, repealed by Ind. Code §
34-20-2-2).

73. Ind. Code § 34-20-2-2 (1998).

74. See, e.g., Timothy C. Caress, Recent Developments in the Indiana Law of Products

Liability, 29 Ind. L. Rev. 979, 999 (1996) ("The effect of [Indiana Code § 34-20-2-3 and Indiana

Code § 34-20-2-4] is to prevent the user or consumer injured by a product with a manufacturing

defect from suing the local retail seller of the product on a strict liability theory unless, for some

reason, the court cannot get jurisdiction over the manufacturer.") (emphasis added); see also Burt



2003] PRODUCT LIABILITY 1 1 75

regard to the exercise of reasonable care," then the only theory to which such a

standard applies is a manufacturing defect theory. That principle has been

recognized in several contexts since 1995. Accordingly, the Ritchie court seems

to be applying a provision of the IPLA intended, as written, to apply only to
sellers in manufacturing defect cases in a negligent failure to warn case.

At least three other decisions since Ritchie, involving injuries that appear to

have accrued after the 1 995 amendments to the IPLA became effective, have
interpreted what is now Indiana Code section 34-20-2-3 in the same way as did
Ritchie. The court in Kennedy

15
accepted this interpretation as correct without

much discussion of the proposition that Indiana Code section 34-20-2-3 bars
claims against sellers even when the allegations involve design defect theories.76

Indeed, the Kennedy decision turned on application of Indiana Code section 34-
20-2-4 after the court concluded that section 34-20-2-3 "generally restricts the

imposition of strict product liability to the manufacturer."
77

Because Kennedy

involved both design and manufacturing claims, one has to conclude that the

court reached the same decision as Ritchie; namely that application of Indiana

Code section 34-20-2-3 is not limited to cases involving only manufacturing
defects.

The court in Goines
1
* reached the same conclusion discussed above. There,

the plaintiff alleged both negligence and strict liability claims that relied on

warning and design theories.
79

Despite the "based on the doctrine of strict

liability" language in Indiana Code section 34-20-2-3, the plaintiffconceded that
the provision "applies, in general, to products liability negligence claims."

80

Interestingly, the Goines decision does not indicate when the injury occurred.
Based upon the factual circumstances of the case, the authors assume that the

injury occurred after June 30, 1995, and that the 1995 amendments to the IPLA
control the case.

Although much less clear than in Ritchie and Goines, it appears as though the
court in Williams*

1 may be saying something similar: "Indiana Code section 34-
20-2-3 exempts sellers from liability (except when a seller is also the
manufacturer) . . . ."

82
Although that language is not quite the ringing

endorsement of the position offered by the courts in Ritchie and Goines, the

Williams court does not include any limitation to the foregoing language

indicating that the seller's "exemption" applies only in manufacturing defect

v. Makita USA, Inc., 212 F. Supp. 2d 893 (N.D. Ind. 2002).

75. Kennedy v. Guess, Inc., 765 N.E.2d 213, 217-18 (Ind. Ct. App. 2002). See supra note

46 and accompanying text.

76. Kennedy, 765 N.E.2d at 2 1 7- 1 8.

77. Mat 217.
78. Goines v. Fed. Express Corp., No. 99-CV-4307-JP6, 2002 U.S. Dist. LEXIS 5070 (S.D.

111. Jan. 8, 2002). See supra note 55 and accompanying text.

79. Goines, 2002 U.S. Dist. LEXIS 5070 at *9.

80. Id. (emphasis added).

81. Williams v. REP Corp., 302 F.3d 660 (7th Cir. 2002).
82. Id. at 664.



1176 INDIANA LAW REVIEW [Vol. 36:1165

Q-5

cases.

It is possible, of course, that the Indiana General Assembly really intended
Indiana Code section 34-20-2-3 to exclude sellers who could not otherwise be
deemed manufacturers from cases involving all three product defect theories. If
that is true, it is certainly possible that the legislature simply did not realize that

the phrase "based on the doctrine of strict liability in tort" should have been

rephrased in light of the new statutory scheme. It is equally likely that the
legislature intended the statute to be applied exactly as written. Either way, there

are at least four recent decisions that have brought the issue to the forefront. It

is now up to practitioners, judges, and, perhaps, the Indiana General Assembly
to resolve the issue.

C. ". . . forphysical harm ..."

For purposes of application of the IPLA, "physical harm" means "bodily
injury, death, loss of services, and rights arising from any such injuries, as well

as sudden, major damage to property."
84

It does not include "gradually evolving

damage to property or economic losses from such damage."
85

Research does not reveal any published opinions during the survey period

concerning the "physical harm" requirement.
86

D. "... caused by aproduct ..."

For purposes of the IPLA, "product" means "any item or good that is

personalty at the time it is conveyed by the seller to another party."
87

The term

"product" does not include a "transaction that, by its nature, involves wholly or

predominantly the sale of a service rather than a product."
88

In this context, practitioners should be aware of one federal decision made
during the survey period. In Great Northern Insurance Co. v. Buddy Gregg
MotorHomes, Inc. ,

89
the plaintiffpurchased a used motor home from defendant'

s

83. Id.

84. Ind. CODE § 34-6-2-105 (1998) (internal quotes omitted).

85. Id

86. In the last couple of years, courts in Indiana have issued some important rulings

concerning the "physical harm" requirement. See, e.g., Progressive Ins. Co. v. General Motors

Corp., 749 N.E.2d 484, 487 (Ind. 2001) (no recovery under the IPLA where the claim is based on

damage to the defective product itself); Fleetwood Enters., Inc. v. Progressive N. Ins. Co., 749

N.E.2d 492, 495 (Ind. 2001) (personal injury and property damage to other property caused by a

defective product are actionable under the IPLA, but their presence does not create a claim for

damage to the product itself); Miceli v. Ansell, Inc., 23 F. Supp. 2d 929, 933 (N.D. Ind. 1998) (in

a case brought by a couple against a condom manufacturer, court denied a motion to dismiss,

determining that Indiana recognizes that pregnancy, in certain instances, may be considered a

"harm").

87. Ind. Code §34-6-2-1 14(a) (1998).

88. Id.

89. No. IP-00-1378-CH/K, 2002 U.S. Dist. LEXIS 7830 (S.D. Ind. Apr. 29, 2002).



2003] PRODUCT LIABILITY 1 1 77

dealership. The motor home was destroyed in a fire allegedly caused by a
defective wire in the engine compartment.

90
The plaintiffs' insurance company,

as subrogee, sued the dealership for the value of the motor home.
91

The court
denied recovery for damage to the motor home in light of the Indiana Supreme
Court's decision in Progressive Insurance Co. v. General Motors Corp.

92 The
insurance company also attempted to state a claim for negligent inspection
against the defendant that was separate and apart from the IPLA.

93
The court

rejected the negligence claim, determining that no reasonable juror could find

that the allegedly negligent inspection occurred as part of a transaction for

services separate and apart from the purchase of the motor home.
94

E. "... regardless ofthe theory ofliability ..."

In the wake of the 1995 amendments to the IPLA, practitioners and
sometimesjudges have appeared to struggle with what the IPLA covers, and what
it does not. Indiana Code section 34-20-1-1 provides that the IPLA governs and
controls all actions brought by users and consumer against manufacturers or

sellers (under the right circumstances) "for physical harm caused by a product

regardless of the substantive theory of liability:"
95

Accordingly, theories of

liability based upon breach of warranty, breach of contract, and common law
negligence against entities that are outside ofthe IPLA' s statutory definitions are

not governed by the IPLA.
96

At the same time, however, the Indiana Code provides that the "[IPLA] shall

90. Id. at *4.

91. /</at*l.

92. Id. at *8 (citing Progressive Ins. Co. v. Gen'l Motors Corp., 749 N.E.2d 484, 487 (Ind.

2001)).

93. A/. at*l.

94. Id. at ** 14-1 5. A few other recent Indiana decisions are important in this context. See,
e.g., R.R. Donnelley & Sons Co. v. N. Tex. Steel Co., 752 N.E.2d 1 12, 122 (Ind. Ct. App. 2001),
trans, denied, 174 N.E.2d 508 (Ind. 2002) (manufacturer ofcomponent parts of a steel rack system

sold a product and did not merely provide services because it modified raw steel to produce the

component parts and, in doing so, transformed the raw steel into a new product that was

substantially different from the raw material used); New Hampshire Ins. Co. v. Farmer Boy AG,
Inc., No. IP98-0031-CT/G, 2000 U.S. Dist. LEXIS 19502 (S.D. Ind. Dec. 19, 2000) (installation

of a custom-fit electrical system into a hog barn involved wholly or predominately the sale of a

service rather than a product); Marsh v. Dixon, 707 N.E.2d 998, 1002 (Ind. Ct. App. 1999) (an

amusement ride involved the provision of a service and not the sale of a product); Lenhardt Tool

& Die Co. v. Lumpe, 703 N.E.2d 1079, 1085 (Ind. Ct. App. 1999) (defendant provided products
and not merely services it transformed metal block into "new" products and because it repaired

damaged products, thus creating "new," substantially different work product).

95. Ind. Code § 34-20-1-1 (1998) (emphasis added).

96. E.g., New Hampshire Ins. Co., 2000 U.S. Dist. LEXIS 19502, ** 10-1 1 (claim alleging
breach of implied warranty in tort is a theory of strict liability in tort and, therefore, has been

superceded by the theory of strict liability; plaintiff could proceed on a breach of warranty claim

so long as it was limited to a contract theory).



1178 INDIANA LAW REVIEW [Vol. 36:1 165

not be construed to limit any other action from being brought against a seller of

a product."
97

That language, when compared with the "regardless of the legal
theory upon which the action is brought" language found in Indiana Code section
34-20-1-2 raises an interesting question: whether alternative claims against

product sellers or suppliers that fall outside the reach ofthe IPLA are still viable
when the "physical harm" suffered is the very type ofharm the IPLA otherwise
would cover.

The courts in Ritchie,
98
Kennedy," and Goines,

m
all seem to assume, without

hesitation, that claimants in Indiana are free to assert separate "negligence" and

"strict liability" claims against "sellers," and that claimants can utilize warning

and design theories in each claim. In Ritchie, recall that the plaintiff failed to

designate sufficient facts to demonstrate that the seller of a paint spray gun had

actual knowledge of alleged product defect (lack of warning labels).
101

Accordingly, the court held that the seller could not be considered a

"manufacturer" under the IPLA and thus, could not be held liable under the
IPLA.

102
Regardless, the Ritchie court went on to address the plaintiffs

allegation that she could nevertheless recover from the seller based on a common
law negligence claim rooted in Section 388 of the Restatement (Second) of

Torts.
103

That section contemplates liability for suppliers ofgoods "known to be
dangerous for an intended use if the supplier does not use reasonable care to

warn the consumer of the dangers of the chattel."
104

In response to that

allegation, the seller argued that the plaintiffhad failed to demonstrate a material

issue offact with respect to whether it, in fact, supplied the sprayer.
105 The court

found that genuine issues of material fact precluded summary judgment on that
issue.

106

In Kennedy, after determining that the "sellers" involved were not entitled to

summaryjudgment pursuant to Indiana Code section 34-20-2-4, the court refused
to dismiss a common law "negligence" claim against those "sellers" based upon
pre- 1995 case law and the Restatement of Torts (Second) Section 400.

107
That

section ofthe Restatement (Second) contemplates liability for a seller who "puts
out as his own product a chattel manufactured by another ... as though he were

97. Ind. Code § 34-20-1-1 (1998).

98. Ritchie v. Glidden Co., 242 F.3d 713 (7th Cir. 2001).

99. Kennedy v. Guess, 765 N.E.2d 213 (Ind. Ct. App. 2002).

1 00. Goines v. Fed. Express Corp., No. 99-CV-4307-JP6, 2002 U.S. Dist. LEXIS 5070 (S.D.

111. Jan. 8, 2002).

101. See supra note 71 and accompanying text.

102. Ritchie, 242 F.3d at 713. Whether that decision is consistent with Indiana Code section

34-20-2-3 is addressed supra.

1 03. Ritchie, 242 F.3d at 726.

1 04. Id. (citing Restatement (Second) of Torts § 388 (1965)).

105. Id.

106. Id.

1 07. Kennedy v. Guess, 765 N.E.2d 2 1 3, 2 1 1 -22 (Ind. Ct. App. 2002), trans, granted, vacated

by No. 29502-021 l-CV-594, 2002 Ind. LEXIS 831 (Ind. Nov. 1, 2002).



2003
]

PRODUCT LIABILITY 1 1 79

its manufacturer."
108

Both of the Indiana cases cited by the Kennedy court to
support the existence of a separate common law "negligence" action were 1990
cases

109
(Koske v. TownsendEngineering Co.

1 10
and Moore v. SitzmarkCorp. 1

l

*).

Similarly, the Indiana cases cited in support ofthe Restatement Second both pre-

date the 1995 amendments to the IPLA 112 (Dudley Sports Co. v. Schmittm and
Lucas v. Dorsey

] ,4
).

Goines is strikingly similar to Kennedy. In Goines, the plaintiffbrought what

were called "general negligence" and "strict liability" claims against an entity

that was a "seller" under the IPLA. 115 The claims, although designated as
separate, each alleged warning and design defects and both were based on the

same underlying alleged misconduct.
116 The court held that the "seller" was not

entitled to summary judgment pursuant to Indiana Code section 34-20-2-4 with
respect to the IPLA/strict liability claims.

117
However, the court went on to treat

the "negligence" claims separately.
118

It granted summaryjudgment with regard
to the design and manufacturing claims because the seller had no duty in light of
its lack of knowledge of the alleged defect and its lack of involvement in the

manufacturing process.
119

The court refused to grant summary judgment with
respect to the failure to warn claim, basing its decision upon the "common law"
duty to warn as set forth in the 1993 Indiana Court of Appeals decision in Lucas
v. Dorsey Corp. 12°

In Ritchie, Kennedy, and Goines, it is clear that the courts were subjecting

"sellers" to potential liability based on common law negligence theories for the
very same "physical harm" covered by the IPLA. In doing so, those courts seem
to believe that common law "negligence" claims based upon design and warning
theories still exist separate and apart from the IPLA. In support ofthat belief, the

courts routinely cite to cases that were decided before the 1995 amendments to
the IPLA and at a time when Indiana still recognized dual-track strict liability and
negligence claims. As has been noted above, the 1995 amendments impose
negligence standards for design and warning claims and retain strict liability only

for manufacturing claims.

The very real question arising out of those cases is whether courts have the

1 08. Id. at 220-2 1 (quoting RESTATEMENT (SECOND) OF TORTS § 400 ( 1 965)).

109. Id at 220.

1 10. 551 N.E.2d 437, 443 (Ind. 1990).

111. 555 N.E.2d 1305, 1308 (Ind. Ct. App. 1990).

1 12. Kennedy, 765 N.E.2d at 221

.

113. 279 N.E.2d 266, 273 (Ind. App. 1972).

1 14. 609 N.E.2d 1 191, 1201 (Ind. Ct. App. 1993).

1 15. Goines v. Fed. Express Corp., No. 99-CV-4307-JP6, 2002 U.S. Dist. LEXIS 5070, at
**4-5 (S.D. 111. Jan. 8, 2002).

116. A/. at*5.

117. A*at**14-15.

118. A/. at*15.

119. A/, at* 16.

120. Id. at **16-17 (citing Lucas v. Dorsey, 609 N.E.2d 1 191, 1 198 (Ind. Ct. App. 1993)).



1 180 INDIANA LAW REVIEW [Vol. 36:1 165

power to impose common law negligence liability against "sellers" when the
harm allegedly suffered is the same "physical harm" covered by the IPLA. If a
"seller" cannot be held liable for "physical harm" that is clearly within the
purview of IPLA (e.g., a manufacturing defect theory when the seller has no
actual knowledge of the defect and cannot otherwise be deemed a manufacturer
pursuant to Indiana Code section 34-20-2-4 or Indiana Code section 34-6-2-77),
how can the same entity be liable for the same "physical harm" outside the
purview of the IPLA? That idea seems to run contrary to the Indiana General
Assembly's policy determination that the IPLA covers all actions for "physical
harm" "regardless of the substantive theory of liability."

121
It appears to be an

open question whether and to what extent such a common law negligence claim
for the same "physical harm" covered by the IPLA is an "other action" that
Indiana Code section 34-20-1-2 confirms is not limited by the IPLA.

II. Theories of Liability and Related Issues

The IPLA, through Indiana Code section 34-20-2-1, imposes liability when

a person who sells, leases, or otherwise puts into the stream ofcommerce
any product in a defective condition unreasonably dangerous to any user
or consumer or to the user's or consumer's property ... if: (1) that user

or consumer is in the class of persons that the seller should reasonably

foresee as being subject to the harm caused by the defective condition;

(2) the seller is engaged in the business of selling the product; and (3)
the product is expected to and does reach the user or consumer without

substantial alteration in the condition in which the product is sold by the

person sought to be held liable under this article.
122

That rule of liability is true even though: "(1) the seller has exercised all

reasonable care in the manufacture and preparation of the product; and (2) the

user or consumer has not bought the product from or entered into any contractual

relation with the seller."
123

However, the very next paragraph of Indiana Code
section 34-20-2-2 takes away what was deemed to be true by subsection (1)
(liability without regard to "fault" or reasonable care) with respect to design and

warning claims:

However, in an action based on an alleged design defect in the product

or based on an alleged failure to provide adequate warnings or

instructions regarding the use ofthe product, the party making the claim

must establish that the manufacturer or seller failed to exercise
reasonable care under the circumstances in designing the product or in

providing the warnings or instructions.
124

Indiana Code section 34-20-2-2 eliminates the privity requirement between

121. IND.CODE § 34-20-1-1 (1998).

122. Id. §34-20-2-1.

123. Id. §34-20-2-2.

124. Id.



2003] PRODUCT LIABILITY 1181

buyer and seller for imposition of liability and confirms that a manufacturer's or

seller's exercise ofreasonable care does not eliminate liability except in cases in

which the theory of liability is design defect or warning defect. Indiana courts

routinely have recognized that the IPLA imposes a negligence standard in design
and warning cases, while retaining strict liability for manufacturing defect

cases.
125

Thus, just as in any other negligence case, a claimant in a design or

warning case must prove: (a) duty; (b) breach ofthat duty; and (c) injury caused

by the breach.

Unfortunately for practitioners, some courts have not yet fully grasped the
fact that because "strict liability" in its common usage means "liability without
regard to reasonable care" in a Restatement of Torts (Second) section 402A
sense, use of that term no longer makes sense when dealing with cases alleging
design or warning claims. Even though Indiana is years removed from the 1995
amendments to the IPLA, many courts continue to fall into the trap of using
"strict liability" when referring to proof requirements in design and warning
claims brought under the IPLA.

126

In Chapter 4 of the IPLA, the focus returns to the IPLA's threshold

requirement that only products that are in a "defective condition" are products

for which liability may attach pursuant to the IPLA. For purposes of the IPLA,
a product is in a "defective condition" if

at the time it is conveyed by the seller to another party, it is in a

condition: (1) not contemplated by reasonable persons among those
considered expected users or consumers ofthe product; and (2) that will

be unreasonably dangerous to the expected user or consumer when used
in reasonably expectable ways of handling and consumption.

127

Claimants in Indiana prove that a product is in a "defective condition" by

asserting one or a combination ofthree theories: ( 1 ) the product has a defect that

is the result of a malfunction or impurity in the manufacturing process; (2) the

product has a defect in its design; or (3) the product lacks adequate or appropriate

warnings.
128

There is a specific statutory provision covering the warning defect

theory. It states that:

A product is defective . . . 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

125. See, e.g., Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 899-900 (N.D. Ind. 2002).

126. See, e.g., Smock Materials Handling Co. v. Kerr, 719 N.E.2d 396, 405-06 (Ind. Ct. App.

1999) (court found no error in the trial court's use ofthe term "strict liability" in its instructions to

the jury in a case that was not limited to manufacturing defects).

127. Ind. Code § 34-20-4-1 (1998).
128. E.g., id. § 34-20-2; Burt, 212 F. Supp. 2d at 899-900.



1182 INDIANA LAW REVIEW [Vol. 36:1165

consumer."
129

The IPLA also provides two specific provisions defining when a product is
not defective. Indiana Code section 34-20-4-3 provides that "[a] product is not
defective under [the IPLA] 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 under [the

IPLA]."
130

Indiana Code section 34-20-4-4 provides that "[a] product is not
defective under [the IPLA] if the product is incapable of being made safe for its
reasonably expectable use, when manufactured, sold, handled, and packaged
properly."

131 Those two statutes are consistent with the two requirements for

liability set forth in Indiana Code section 34-20-4-1.

The statutes that comprise chapter 4 make it clear that the IPLA requires that
the product at issue be both in a condition "not contemplated by expected users

or consumers" and "unreasonably dangerous to the expected user or consumer

when used in reasonably expectable ways." 132 Sections 3 and 4 of chapter 4
solidify that fact, as does recent case law.

133 A product is "unreasonably
dangerous" if its use "exposes the user or consumer to a risk ofphysical harm to
an extent beyond that contemplated by the ordinary consumer who purchases the
product with the ordinary knowledge" about the product common to consumers
in the community.

134 "A product is not unreasonably dangerous if it 'injures in
a way which, by objective measure, is known to the community of persons
consuming the product."

135

A. Warning Defect Cases

The duty to warn in Indiana consists oftwo duties: "(1) to provide adequate
instructions for safe use, and (2) to provide a warning as to dangers inherent in

improper use."
136

Pre-IPLA cases extended the duty to warn to all persons who
may reasonably be foreseen as coming in contact with a dangerous product. 137

129. Ind. Code §34-20-4-2 (1998).

130. Id. § 34-20-4-3.

131. Id. §34-20-4-4.

132. Id. §34-20-4-1.

133. See, e.g., In re Inlow, Accident Litigation, No. IP99-0830-CH/K, 2002 U.S. Dist. LEXIS

8318, at **66-67 (S.D. Ind. Apr. 16, 2002) ("Although closely related to the question of whether

a product is defective because of a failure to warn, a plaintiff must show that the product was

unreasonably dangerous as a separate element of a product liability claim."); Moss v. Crosman

Corp., 136 F.3d 1 169, 1 174 (7th Cir. 1998) (a product may be "dangerous" in the colloquial sense,

but not "unreasonably dangerous" for purposes of IPLA liability).

134. In re Inlow, 2002 U.S. Dist. LEXIS 8318, at *66 (quoting IND. CODE § 33-1-1.5-2(7)).

135. Id. at *67 (quoting Anderson v. P.A. Radocy & Sons, Inc., 865 F. Supp. 522, 531 (N.D.
Ind. 1994), aff'd, 67 F.3d 619 (7th Cir. 1995)).

136. E.g., Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind. Ct. App. 1997).

137. E.g., Jarrel! v. Monsanto Co., 528 N.E.2d 1 158, 1 162 (Ind. Ct. App. 1988).



2003] PRODUCT LIABILITY 1 1 83

The published opinion in Burt v. Makita USA, Inc.
138

is the trial court's order

granting summary judgment to defendants. In that case, plaintiff was injured
when a blade guard on a circular table saw struck him in the eye. 139 The saw was
manufactured by Makita Corp. and distributed by Makita USA, Inc. Plaintiffs
co-worker noticed that the blade guard of the saw involved in the accident was
not installed, so he found the blade guard and set about to install it. Realizing

that he did not have either a screwdriver or the wrenches needed to complete the

installation, the co-worker left the guard on the saw while he went to retrieve the
tools. The guard was left in what appeared to be the installed position. 140

However, the bolts needed to secure the guard firmly in place had not been

tightened. While the co-worker was away, the plaintiff approached the saw.
Plaintiff believed that the guard was in place and that the saw had recently been
used. When he began to saw, the guard was thrown off the saw and hit him in
the eye.

Plaintiff asserted both design and warning claims. With respect to his

warning claims, plaintiffs expert suggested that the saw have warning labels that
would make it more difficult for the guard to be left in a position where it
appeared installed when in fact it was not. 141 The court rejected those claims
recognizing that the scope of the duty to warn is determined by the foreseeable

uses of the product and that there was no evidence that the circumstances of

plaintiffs injuries were foreseeable such that defendants had a duty to warn

against those circumstances.
142

In the case ofIn re Lawrence W. Mow, AccidentLitigation^ a Conseco Inc.
executive, Lawrence C. Inlow, was killed when he was hit in the head by a
rotating helicopter rotor blade after he disembarked from the helicopter.

144 The

Inlow Estate filed suit against, among others, several corporate entities involved
in the manufacturing and distribution ofthe helicopter.

145 The claims against the
manufacturer and distributor defendants alleged liability based upon their failure

to warn the executive and/or the Conseco pilots of the risks associated with

disembarking from the helicopter while the blades were slowing down.
146

Judge Hamilton granted summary judgment to the manufacturer and
distributor defendants with regard to all of the Estate's claims against them,

including claims for negligence, product liability, fraud, and constructive

fraud.
147

The court first determined that, as a matter of law, the manufacturer and
distributor defendants did not have a duty to warn helicopter operators or

138. 212 F. Supp. 2d 893 (N.D. Ind. 2002).

139. Id. at 895.

140. Id.

141. Id.

142. Id. at 899.

143. No. IP99-0830-CH/K, 2002 U.S. Dist. LEXIS 8318, at *1 (S.D. Ind. Apr. 16, 2002).

144. Id. at*l.

145. Mat** 1-2.
146. /</. at*3.

147. /</. at*69.



1 184 INDIANA LAW REVIEW [Vol. 36: 1 165

passengers "about known, open, and obvious dangers that moving and
decelerating rotor blades pose for exiting or boarding passengers."

148
The court

also determined that "the fact that decelerating rotor blades pose a greater risk is

obvious to trained pilots," who are qualified as "sophisticated intermediaries"
under Indiana law such that the "manufacturer [had] no duty to warn helicopter
passengers about that specific risk" of greater danger as the blades are

decelerating.
149

The court next pointed out that the Estate's claim also failed because the
helicopter, "although dangerous, was not 'unreasonably dangerous' under the
IPLA."

150 On this point, the court held that the Estate's claim failed because
Inlow's death was "caused by the known risk ofphysical injury from being struck
by a decelerating rotor blade."

151
The helicopter simply did not place Inlow "at

risk 'of injuries different in kind from those the average [user] might

anticipate.'"
152

In Morgen v. FordMotor Co., 153 a pre-IPLA case (accrual in 1993), Morgen
was severely injured in a rear-end collision while riding in the rear seat ofa Ford
Escort.

154 He sued Ford, claiming that the Escort was defective and that Ford
failed to provide reasonable warnings.

155 Morgen' s experts claimed that the

structural design ofthe car reduced occupant survival space or headroom.
156 The

trial court refused to read an Indiana Pattern Jury Instruction to the effect that

Ford had a duty to warn about latent defects, deciding that the case was not a
warning defect case but rather a design defect case.

157
The court of appeals

reversed, pointing out that there was testimony that Morgen would not have sat
in the backseat of the Escort if a warning had been provided and that a warning

would have caused the car's owner not to have purchased it and not to have
allowed Morgen to ride in the backseat. 158 Thus, according to the court, such
testimony "provides the causal relationship between the breach of the duty to

warn and the injury sustained to support giving the warning instruction."
159

The
Morgen court also concluded that other tendered instructions simply did not
properly inform thejury about the information that Ford needed to possess about

defects in its product to trigger a duty to warn.
160

The Indiana Supreme Court has

148. /dat**3-4.

149. Id at H.

150. Id. at*66.

151. /</. at*68.

152. Id.

153. 762N.E.2d 137(Ind.Ct. App. 2002), reh'gdenied, 2002 Ind. App. LEXIS 791 (Ind. Ct.

App. Apr. 22, 2002), trans, granted, vacated by 2002 Ind. LEXIS 852 (Ind. Nov. 1, 2002).

154. Id. at 139.

155. Id.

156. Id. at 140.

157. Mat 144.
158. Id. at 145.

159. Id.

160. Id. at 146.



2003] PRODUCT LIABILITY 1 1 85

granted transfer in Morgen, and thereby vacated the decision. Indiana

practitioners look forward to the court's pronouncements.

In McClain v. Chem-Lube Corp.,
161

a welder sued the manufacturer and seller

of anti-spatter compound, claiming injuries as a result of exposure to fumes and
vapors associated with use ofthe compound.

162
The trial court granted summary

judgment because the manufacturer and seller designated evidence that the

compound complied with OSHA standards for formaldehyde emission. 163 The
plaintiffs' duty to warn claim was not addressed. According to the court,
however, the designated evidence showed that both defendants knew that the
product was to be used in conjunction with high temperatures that occurred as a
result of the hot welding process.

164 The McClain court held that the trial court
should have addressed the issue, and that genuine issues of material fact existed

with respect to whether the risks inherent in the use of the anti-spatter product

were unknown or unforeseeable and whether or not the defendants had a duty to
warn of the dangers inherent in the use of the product.

165

B. Design Defect Cases

Indiana courts have required plaintiffs in design cases to prove what

practitioners and judges often refer to as a "feasible alternative design."
166

Plaintiffs must demonstrate that another design not only could have prevented the

injury but that the alternative design was effective, safer, more practicable, and
more cost-effective than the one at issue.

16?
Judge Easterbrook has described that

a design claim in Indiana is a "negligence claim, subject to the understanding that

negligence means failure to take precautions that are less expensive than the net
costs of accidents."

168

In addition to the failure to warn claim, the Burt case discussed above also

involved design defect allegations. Recall that the plaintiff in Burt was injured
when a blade guard on a circular table saw struck him in the eye after one of his
co-workers left the guard in what appeared to be the installed position. With

respect to his design claims, plaintiffs expert suggested that the saw could be
designed so that the guard could be attached without tools or that the tools could

be physically attached to the saw.
169 The court rejected the claim, holding that

the plaintiff has "wholly failed to show a feasible alternative design that would
have reduced the risk of injury."

170

161. 759N.E.2d 1096 (Ind. Ct. App. 2001).

162. Id. at 1099.

163. Id. at 1100.

164. Mat 1104.
165. Id.

166. Burt v. Makita USA, Inc., 212 F. Supp. 2d 893, 900 (N.D. Ind. 2002).

167. Id; Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 1995).

168. McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 657 (7th Cir. 1998).
169. 212 F. Supp. 2d at 895.

170. A/, at 900.



1 1 86 INDIANA LAW REVIEW [Vol. 36: 1 1 65

C Manufacturing Defect Cases

In Chapman v. Maytag Corp.,
m

Kyle Chapman was electrocuted when he
came into contact with some ductwork in the crawl space of a home at which
family members were sustaining minor electrical shocks.

172 The special
representative of Kyle's estate sued Maytag, the manufacturer of a stove that

allegedly contained a defective wire.
173 The district court denied Maytag'

s

motion for summary judgment and its efforts to exclude the testimony of the
plaintiffs' purported expert witness.

174
Thereafter, the parties tried the case to a

jury, which returned a verdict and substantial damages in favor of the

plaintiffs.
175 The Seventh Circuit reversed, determining that the district court

failed to properly apply Daubert principles
176 when considering the admissibility

ofthe testimony ofplaintiff's purported expert.
177

With respect to two other key

product liability issues, the Seventh Circuit affirmed the district judge.
178

One of those other two key issues involved Maytag's ability to "warn" its
way ofout of a manufacturing defect claim. The parties did not dispute that the
stove had a manufacturing defect in that it contained a wire that had become
pinched between a metal housing cover and the metal back of the stove during

the assembly process.
179 Maytag nevertheless argued that the range was

delivered with a host ofwarnings advising consumers that the failure to plug the

range into a properly grounded three-hole receptacle in compliance with local

rules and the NEC could result in a shock hazard. 180 Kyle Chapman had
incorrectly installed the outlet into which the range was plugged, which rendered

that outlet devoid of a grounding wire and, therefore, contrary to the foregoing

product warnings.
181

The Seventh Circuit agreed with the district judge that "'adequate warnings

will not render a product with a manufacturing defect non-defective,' regardless

of whether compliance with the warnings would have rendered the product

safe."
182

"Accordingly, it was well within the discretion of the district court to
hold that warnings will save a product from being defective only when a product
is without manufacturing defects."

183

171. 297 F.3d 682 (7th Cir. 2002)

172. Id. at 685.

173. Id.

174. Id. at 687.

175. Id.

176. Id. at 686-87.

177. Id. at 687.

178. Id. at 689.

179. Id at 685.

180. Id. at 684-85.

181. Id. at 685.

182. Id. at 689.

183. Id.



2003] PRODUCT LIABILITY 1 1 87

D. Duty & Proximate Causation

In City ofGary v. Smith & Wesson Corp.,m the City of Gary and its mayor
sued several handgun manufacturers, distributors, and retailers, alleging

negligent marketing, distribution, sale, and failure to warn. Allegations included:

(1) breach of duty for creating and supplying and supporting an illegitimate

secondary market for handguns; (2) failure to exercise reasonable care in

marketing, manufacture, distribution, and sale of guns; and (3) negligent design,

manufacture, distribution, and sale of guns with inadequate, incomplete, or

nonexistent warnings regarding the risks of harm.
185 The city alleged a separate

design defect claim against the manufacturers for failure to include adequate

safety devices.
186 The court rejected all such bases of liability, holding that no

duty of care existed between the parties because the attenuated relationship

between the city and the defendants rendered the connection between the harm
alleged by the city and the conduct ofthe defendants tenuous and remote.

187 The
court concluded that the city simply was not a reasonably foreseeable plaintiff
injured in a reasonably foreseeable manner.

188

The Morgenm case discussed above also involves duty and proximate
causation questions. Recall that the case involved a plaintiff who was severely
injured in a rear-end collision while riding in the rear seat of a Ford Escort. He
sued Ford, claiming that the Escort was defective and that Ford failed to provide
reasonable warnings.

190
The trial court refused to instruct the jury that the

accident could have had several proximate causes.
191

Instead, the trial court

instructed the jury that Morgen could not recover from Ford if the evidence
showed that his injuries were caused solely by the conduct of the driver who
collided with the car in which Morgen was riding. 192 According to the Morgen
court, there can be more than one proximate cause in a product liability case and,
therefore, a plaintiff need not prove that the defective product was the sole
proximate cause of the injury.

193
Ultimately, because the use of the word

"solely" in the instruction given informed the jury that there could be more than
one proximate cause, the trial court did not err in giving the instruction.

194

However, the court admonished the parties that it would be preferable to

"specifically instruct thejury that there can be more than one proximate cause of

1 84. 776 N.E.2d 368 (Ind. Ct. App. 2002).

185. Mat 384.
186. Id.

187. Id. at 388.

188. Id.

1 89. Morgen v. Ford Motor Co., 762 N.E.2d 1 3 7 (Ind. Ct. App. 2002), reh 'g denied, 2002 Ind.

App. LEXIS 791 (Ind. Ct. App. Apr. 22, 2002), trans, granted, vacated by 2002 Ind. LEXIS 852

(Ind. Nov. 1,2002).

190. Id. at 139.

191. Id. at 140.

192. Mat 147.
193. Id.

194. Id.



1188 INDIANA LAW REVIEW [Vol. 36:1 165

an injury."
195

III. Limitations and Repose Issues

A. Statute ofLimitations

The IPLA provides, in relevant part, that "a product liability action must be
commenced within two (2) years after the cause of action accrues or within ten
(10) years after the delivery of the product to the initial user or consumer."

196

Practitioners and judges alike generally refer to the first clause of that statute as

the statute of limitations and to the latter as the statute of repose.

The IPLA does not define the meaning of "accrues" for purposes of fixing
the two-year statute of limitations generally applicable to all product liability

actions in Indiana. However, Indiana courts have adopted a discovery rule for

the accrual oftort-based damage claims caused by an allegedly defective product.
Indeed, in Degussa Corp. v. Mullens,

191
the Indiana Supreme Court made it clear

that the date upon which a product liability claim accrues depends upon a
subjective analysis of a patient's communications with his or her doctor about

when a causal link between a disease and the defendant's product is established.
"Once a plaintiffs doctor expressly informs the plaintiff that there is a
'reasonable possibility, if not a probability' that an injury was caused by an act
or product, then the statute of limitations begins to run and the issue may become
a matter of law."

198 "When a doctor so informs a potential plaintiff, the plaintiff
is deemed to have sufficient information such that he or she should promptly seek
'additional medical or legal advice needed to resolve any remaining uncertainty

or confusion' regarding the cause of his or her injuries, and therefore be able to

file a claim within two years ofbeing informed ofa reasonably possible or likely
cause."

199

195. Id

196. IND. CODE § 34-20-3-1 (1998).

197. 744 N.E.2d 407 (Ind. 2001).

198. /</. at411.

199. Id. In addition,

[a]n unexplained failure to seek additional information should not excuse a plaintiffs

failure to file a claim within the statutorily defined time period. . . . Although "events

short of a doctor's diagnosis can provide a plaintiff with evidence of a reasonable

possibility that another's' product caused his or her injuries, a plaintiffs mere suspicion

or speculation that another's product caused the injuries is insufficient to trigger the

statute."

Id. See also Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87-88 (Ind. 1985) (a cause of action

accrues when the claimant knew or should have discovered that he or she "suffered an injury or

impingement, and that it was caused by the product or act of another"). See also Nelson A. Nettles,

When Does A Product Liability Claim "Accrue"? When Is It "Filed"?, IND. LAW., May 9, 2001,
at 23.



2003] PRODUCT LIABILITY 1 1 89

The Seventh Circuit followed Degussa Corp. in Nelson v. Sandoz
Pharmaceuticals Corp.

200
In that case, the trial court granted summaryjudgment

to a pharmaceutical manufacturer based on the IPLA statute of limitations.201

After concluding that Indiana law applied, the Seventh Circuit reversed.202 The
court first cited Degussa Corp. for the proposition that the statue of limitations

"begins to run from the date that the plaintiff knew or should have discovered
that she suffered an injury or impingement and that it was caused by the product
or act of another."

203
According to the Seventh Circuit, the plaintiffs suspicion,

standing alone, was insufficient to trigger the limitations period. That period
begins to run if a physician suggests a reasonable possibility, if not a probability,

of a causal connection between the illness alleged and the product involved.
204

B. Statute ofRepose

Indiana Code section 34-20-3-1 provides, in relevant part, that "a product
liability action must be commenced within . . . ten (10) years after the delivery
of the product to the initial user or consumer."

205
The statute of repose gets a

little more complicated in the last two years of the 10-year period mentioned
above. Indiana Code section 34-20-3- 1(b) provides that "if the cause of action
accrues at least eight (8) years but less than ten (10) years after that initial

delivery, the action may be commenced at any time within two (2) years after the
cause of action accrues."

206
Practitioners should be wary here in light of some

very specific statutory language. Note that subsection (b) grants the full two-year

period after accrual ifthe cause ofaction accrues at least eight years but less than

ten years after initial delivery. If accrual occurs ten years to the day after the

initial delivery, it would appear as though suit must be filed that day because the
additional two-year period only applies ifaccrual occurs at any time less than ten

years after initial delivery.

Recent case law confirms that there are at least two situations in which a

manufacturer can be liable even beyond ten years after delivery to the initial user

or consumer: (1) when the manufacturer supplies replacement parts for the
product and the replacement parts are the cause of the plaintiffs' injury; and (2)
when the manufacturer rebuilds the product, such that the rebuild significantly
extends the life of the product and thereby restores it to like-new condition.

The Indiana Supreme Court has recognized the utility and underlying policy
justifications for the existence of a statute of repose and has reaffirmed that the

wisdom ofthe policy underlying a product liability statute ofrepose is a question

200. 288 F.3d 954 (7th Cir. 2002).

201. Mat 958.
202. Id at 965.

203. Id. at 966 (quoting Degussa, 744 N.E.2d at 410).

204. Id at 966-67.

205. Ind. Code § 34-20-3- 1(b)(2) (1998).

206. Id § 34-20-3- 1(b).



1190 INDIANA LAW REVIEW [Vol. 36:1165

for the legislature.
207

Moreover, the Indiana Supreme Court in Mcintosh v.
Melroe Co.

208
has held that application of the statute of repose does not violate

article I, sections 12 or 23 of the Indiana Constitution.
209

During the survey period, the Seventh Circuit recognized the existence and

implications ofMcintosh. In Landv. Yamaha Motor Corp.
,

210
the estate ofa man

killed in an explosion while trying to start a WaveRunner sued the manufacturer.
The WaveRunner involved was first sold or delivered to a consumer on July 28,
1987, more than ten years before the explosion, which occurred on June 25,
1 998.

21 x
After determining that Indiana law applied, the trial judge held that the

IPLA's ten-year statute ofrepose barred the claim.
2 ' 2

In doing so, the trial judge

rejected plaintiffs' attempt to circumvent the statute of repose by arguing that
defendants breached duties to warn users of dangerous defects in the
WaveRunner long after the original sale.213 The Seventh Circuit affirmed,
concluding that the statute ofrepose cannot be circumvented by claiming that the

manufacturer continued its negligence after the initial sale by failing to warn
customers of known dangers.214 The Seventh Circuit also concluded that post-
sale failure-to-warn claims merge with the underlying product liability claims
that are barred, in their entirety, by the statute of repose.

215
In response to an

argument that the statute of repose was unconstitutional, the Seventh Circuit
noted that Mcintosh already had conclusively addressed that issue.

216

In Menchhofer v. Honeywell, Inc.,
211

the plaintiffs business facilities were

destroyed in a fire that plaintiffs claimed was not timely detected by an alarm
system purchased from and monitored by Honeywell.

218
Plaintiffs purchased the

system from Honeywell in 1980.
219 The fire occurred in 1998. Accordingly,

Honeywell moved for summaryjudgment, arguing that the IPLA statute ofrepose
barred plaintiffs from maintaining a product liability action against it.

220

Plaintiffs responded by arguing that their claims were based on Honeywell's

ongoing monitoring, supervision, and maintenance of the alarm system.
221

Because those claims sound in negligence and because it was clear that the
product was sold to its initial user more than ten years before the fire, Judge

207. Estate of Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 278 (Ind. 1999).

208. 729 N.E.2d 972 (Ind. 2000).

209. Id at 913.

210. 272 F.3d 514 (7th Cir. 2001).

211. Mat 515-56.
212. Id. at 517.

213. Id. at 518.

214. Id.

215. Id.

216. Id.

217. No. IP-99-1674-CB/S, 2002 U.S. Dist. LEXIS 260 (S.D. Ind. Jan. 7, 2002).

218. Id. at*4.

219. Id. at*l.

220. /</. at**5-6.

221. Id. ax (6.



2003] PRODUCT LIABILITY 1191

Barker granted summaryjudgment to Honeywell to the extent that plaintiffs were
attempting to make a product liability claim.

222

C. Statute ofRepose in Asbestos Exposure Cases

Indiana Code section 34-20-3-2 provides that "[a] product liability action that
is based on: (1) property damage resulting from asbestos; or (2) personal injury,
disability, disease, or death resulting from exposure to asbestos must be

commenced within two (2) years after the cause of action accrues."
223

That

exception regarding asbestos applies, however, "only to product liability actions

against (1) persons who mined and sold commercial asbestos; and [to product
liability actions against] funds that have, as a result of bankruptcy proceedings

or to avoid bankruptcy proceedings, been created for the payment of asbestos

related disease claims or asbestos related property damage claims."224

The crux ofthe continuing controversy is the phrase, "[pjersons who mined
and sold commercial asbestos."225 Plaintiffs argue that the and should be read
as an or, while defendants contend that the statute applies to create an exception

to the limitations and repose periods only for claims against those entities that

both mined and sold commercial asbestos. There is also a debate about the

intended meaning of the term "commercial asbestos."

The survey period decision in Harris v. ACandS, Inc.
226

joins at least seven

other appellate opinions handed down in the last four years interpreting the
asbestos statute of repose. Each of those cases involved damages allegedly

caused by inhalation of dust after working with or around asbestos-containing

products. In five ofthose cases, a majority of the appellate panels held that the

Indiana Code section 34-20-3-2 exception to the IPLA repose period applies to
entities that mined commercial asbestos, even if they did not sell it, and to

entities that sold commercial asbestos, even if they did not mine it.
227

In one of

222. Id.

223

.

IND. CODE 34-20-3-2(a) ( 1 998).

224. Id. § 34-20-3-2(d).

225. Id. (emphasis added).

226. 766 N.E.2d 383 (Ind. Ct. App. 2002).

227. See Black v. ACandS, Inc., 752 N.E.2d 148 (Ind. Ct. App. 2001); Poirier v. A.P. Green

Servs., Inc., 754 N.E.2d 1007 (Ind. Ct. App. 2001); Fulk v. Allied Signal, Inc., 755 N.E.2d 1 198

(Ind. Ct. App. 2001); Parks v. A.P. Green Indus., Inc., 754 N.E.2d 1052 (Ind. Ct. App. 2001);

Allied Signal, Inc. v. Estate of Herring, 757N.E.2d 1030 (Ind. Ct. App. 2001).

Clearly, the intent of the legislature in enacting § 34-20-3-2 was at least in part to

acknowledge the long latency period ofasbestos-related injuries. Without the § 34-20-

3-2 exception, the statute of limitations and statute of repose would be meaningless for

the vast majority of people harmed by exposure to asbestos. Asbestos-related injuries

would truly be a wrong without a remedy. Equally clear is that the legislature thus

could not have intended by enacting § 34-20-3-2 to so severely limit the means of

recovery.

Black, 752N.E.2datl54.
.



1 192 INDIANA LAW REVIEW [Vol. 36:1 165

those cases, Estate ofJurich v. Garlock, Inc.
22* the panel concluded that the

defendants sold asbestos-containing products, not "commercial asbestos," but

nevertheless held that the defendants could not use the IPLA's statute ofrepose

to bar the claim because the statute violates article 1, section 12 of the Indiana

Constitution. In another ofthese cases, Sears RoebuckandCo. v. Noppert 229 the
panel concluded as a matter of law that the exception to the ten-year product

liability statute of repose contained in Indiana Code section 34-20-3-2 applies
only to claims against persons who mined and sold commercial asbestos and
against funds described in that section.

230

On November 20, 2001, the Indiana Supreme Court, in the case of Allied
Signal, Inc. v. Ott

231
granted emergency transfer of a direct appeal of an Allen

Superior Court interlocutory order denying motions for summaryjudgment after
finding, as did Jurich, that Indiana Code section 34-20-3-2 violates article I,
sections 12 and 23 of the Indiana Constitution.

232
The Indiana Supreme Court

heard oral argument in Ott on May 16, 2002.233

IV. The State Of The Art and Governmental
Compliance Presumption

The IPLA, by Indiana Code section 34-20-5-1, entitles a manufacturer or
seller to a presumption that the product causing the physical harm is not defective
and that the product's manufacturer or seller is not negligent if,

before the sale by the manufacturer, the product: ( 1 ) was in conformity
with the generally recognized state of the art applicable to the safety of

the product at the time the product was designed, manufactured,

228. 759 N.E.2d 1066 (Ind. Ct App. 2001).

229. 705 N.E.2d 1065 (Ind. Ct. App.), trans, denied, Sears v. Noppert, 726 N.E.2d 300 (Ind.

1999).

230. Id. at 1068. The court in Noppert made its decision in the context of whether the

Nopperts had a meritorious claim in the context of a motion brought pursuant to Rule 60(B) ofthe

Indiana Rules of Trial Procedure. In doing so, the Noppert court concluded that, "while courts in

Indiana have on occasion construed an 'and' in a statute to be an 'or,' we find that there is no

ambiguity in this statute requiring such an interpretation." Id. (footnotes omitted).

23 1

.

Supreme Court Cause Number 02S04-0 1 1 0-CV-599 (decision pending).

232. Id.

233. On March 25, 2003, the Indiana Supreme Court reversed the trial court in Ott, concluding

that Indiana Code section 34-20-3-2 did not apply to entities which merely incorporated asbestos

into finished products and did not mine and sell commercial asbestos. See Allied Signal, Inc. v. Ott,

785 N.E.2d 1068 (Ind. 2003), reh 'g denied. Indiana Code section 34-20-3-1 withstood a facial

challenge to its constitutionality under article 1, section 12 and article 1, section 23 ofthe Indiana

Constitution. The supreme court remanded the case to determine ifIndiana Code section 34-20-3-1

violates article 1, section 12 as applied to the Otts. The supreme court also reversed the Indiana

Court of Appeals decisions discussed above. See, e.g., Jurich v. Garlock, 785 N.E.2d 1093 (Ind.

2003); Allied Signal, Inc. v. Herring, 785 N.E.2d 1090 (Ind. 2003); Harris v. AC & S, Inc., 785
N.E.2d 1087 (Ind. 2003); Black v. AC & S, Inc., 785 N.E.2d 1084 (Ind. 2003).



2003] PRODUCT LIABILITY 1 1 93

packaged, and labeled; or (2) complied with applicable codes, standards,

regulations, or specifications established, adopted, promulgated, or

approved by the United States or by Indiana, or by any agency of the

United States or Indiana.
234

Recent case law demonstrates that the rebuttable presumptions established

in Chapter 5 ofthe IPLA do not shift the burden ofproof, but rather they impose
upon the opposing party a burden of producing evidence sufficient to rebut the

presumption.
235 The quality ofthe evidence necessary to rebut the presumption

remains something that trial judges should decide on a case-by-case basis as a

matter of law.

The case ofMcClain v. Chem-Lube Corp.,
236

discussed above in the context

of warning defects, also involved passages addressing the presumption. Recall

in that case that a welder sued the manufacturer and seller of anti-spatter

compound, claiming injuries as a result of exposure to fumes and vapors

associated with use of the compound.
237

The trial court granted summary
judgment because the manufacturer and seller designated evidence that the

compound complied with OSHA standards for formaldehyde emission.238 The
court of appeals reversed, concluding, in part, that: (1) the trial court failed to

address whether there was sufficient evidence designated to rebut the "safety
state of the art" presumption

239
with respect to whether OSHA compliance is

proofthat the anti-spatter compound is not defective and that the defendants are
not negligent; and (2) the plaintiff sufficiently rebutted the "governmental

compliance" presumption because there was sufficient evidence designated to
create a factual dispute with regard to whether the OSHA standard concerning
formaldehyde emission had been met.

240

In Cansler v. Mills,
241

the plaintiffs car rear-ended another car, which had

veered into plaintiffs lane of traffic. The plaintiff was injured when his airbag
failed to deploy.

242 The plaintiff testified that he was traveling at a speed of

forty-five to fifty miles per hour when the accident occurred. Plaintiffs vehicle
sustained significant front-end damage.

243 The trial court granted summary
judgment to the car' s manufacturer, finding first that plaintiffs mechanic was not
qualified to render an admissible opinion concerning the air bag's failure to

234. Ind. CODE § 34-20-5-1 (1998).

235. See Cansler v. Mills, 765 N.E.2d 698 (Ind. Ct. App. 2002); McClain v. Chem-Lube

Corp., 759N.E.2d 1096 (Ind. Ct. App. 2001).

236. 759 N.E.2d 1096.

237. Id. at 1099.

238. Mat 1100.
239. Ind. Code §34-20-5-1(1) (1998).
240. Id. at 1102-03.

241

.

765 N.E.2d 698 (Ind. Ct. App. 2002).

242. Mat 701.
243. Id.



1 194 INDIANA LAW REVIEW [Vol. 36: 1 165

deploy.
244

Because the mechanic's opinion was deemed inadmissible, the trial
court determined that the plaintifffailed to rebut the presumption that the car was
not defective by virtue of the manufacturer's compliance with a Federal Motor
Vehicle Safety Standard.

245

The Indiana Court ofAppeals reversed, holding that the trial court abused its
discretion in disregarding the mechanic's testimony and in determining that

plaintiffhad failed to rebut the presumption ofnon-defectiveness.
246

With regard

to the rebuttable presumption issue, the court first determined that the designated

evidence established compliance with FMVSS 208, which entitled the
manufacturer to a presumption that the airbag was not defective.

247
However, the

Cansler court held that the plaintiff designated evidence of a sufficient quality

to rebut the presumption.
248 The mechanic's skilled lay opinion about the extent

of damage to the car and the plaintiffs testimony about speed at impact,
combined with passages in the car's owner's manual concerning the

circumstances under which the airbag should inflate (moderate to severe frontal

or near-frontal crashes) was sufficient "circumstantial evidence" to support the

inference that the airbag was defective because it did not deploy despite the

presence of all the necessary elements outlined in the owner's manual.
249

Accordingly, the court held that the presumption had been rebutted.
250

V. Defenses

A. Use With Knowledge ofDanger (Incurred Risk)

Indiana Code section 34-20-6-3 provides that "[i]t is a defense to an action
under [the IPLA] that the user or consumer bringing the action: (1 ) knew ofthe
defect; (2) was aware of the danger in the product; and (3) nevertheless
proceeded to make use of the product and was injured."251 Incurred risk is a
defense that "involves a mental state ofventurousness on the part ofthe actor and

demands a subjective analysis into the actor's actual knowledge and voluntary
acceptance of the risk."

252
At least one Indiana court has held in the summary

judgment context that application ofthe incurred risk defense requires evidence

without conflict from which "the sole inference to be drawn is that the plaintiff

had actual knowledge of the specific risk and understood and appreciated that

244. Id.

245. Id.

246. Id. at 705.

247. Id.

248. Id. at 706.

249. Id. at 707.

250. Id.

251. Ind. Code § 34-20-6-3 (1998).
252. Cole v. Lantis Corp..,714N.E.2dl94, 200 (Ind. Ct. App. 1999).



2003] PRODUCT LIABILITY 1195

risk."
253

This survey article does not address in detail any incurred risk cases.
254

B. Misuse

Indiana Code section 34-20-6-4 provides that "[i]t is a defense to an action
under [the IPLA] that a cause ofthe physical harm is a misuse ofthe 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."
255

Knowledge of a product's defect is not an essential element of establishing the
misuse defense.

The facts necessary to prove the defense of "misuse" many times will be
similar or identical to the facts necessary to prove either that the product is in a

condition not contemplated by reasonable users or consumers
256

or the injury

resulted from handling, preparation for use, or consumption that is not reasonably

expectable,
257

or both. Thus, there are in Indiana at least three separate statutory

standards that might bar liability when injury results from a set ofcircumstances
related to use that is not reasonably expectable or foreseeable. Burt v. Makita

USA, Inc.,
25* illustrates how a set of facts can be analyzed to deny recovery using

Indiana Code section 34-20-4-1(1), Indiana Code section 34-20-4-3, or Indiana
Code section 34-20-6-4. Recall that the Burt case is the one in which the plaintiff
was injured by a circular saw's blade guard. The district court held that there
was

no evidence that the defendants should have foreseen that someone

would leave the blade guard in an incompletely installed position, or that

someone would attempt to use the saw with the blade guard improperly

253. Id. (citing Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, 940 (Ind. Ct. App. 1994).

254. Indiana courts have decided some important incurred risk cases in the last few years. See,

e.g. , Smock Materials Handling Co. v. Kerr, 7 1 9 N.E.2d 396 (Ind. Ct. App. 1 999) (finding no basis

for the incurred risk defense under the facts of that case; plaintiff had no knowledge of the fact that

the manufacturer had changed the design of the lift so as to eliminate pins that would have

prevented rods from falling unexpectedly from the lift cups underneath the lift platform); Hopper

v. Carey, 716 N.E.2d 566 (Ind. Ct. App. 1999) (holding that because the plaintiffs did not

adequately specify the basis oftheir claim, the court was unclear whether the defect in the fire truck

was open and obvious or whether warnings were placed on the truck informing the passengers of

the specific risk from which the Hoppers' injuries resulted and the court was unable to determine

the applicability of the incurred risk defense); Cole v. Lantis Corp., 714 N.E.2d 194 (Ind. Ct. App.

1999) (finding that because plaintiff s job necessarily entailed moving containers across gap

between aircraft and aircraft loading equipment and his apparent beliefthat he had to somehow find

a way to work around the known danger posed by the gap, the majority concluded that whether

plaintiff voluntarily incurred the risk of falling through the gap is a fact question for the jury's

resolution).

255. Ind. CODE §34-20-6-4 (1998).
256. Id § 34-20-4-1(1).

257. Id. § 34-20-4-3.

258. 212 F. Supp. 2d 893 (N.D. Ind. 2002).



1 196 INDIANA LAW REVIEW [Vol. 36:1 165

attached. To the contrary, the evidence suggests that the accident was
unforeseeable, caused by a very unusual set of factual circumstances.

259

Accordingly, the defendants were not liable because the manner in which the
injury occurred was not reasonably foreseeable as a matter of law.

260
That being

the case, the statutory definition in Indiana Code section 34-20-4-1(1) had not
been met and the defense of "misuse" in Indiana Code section 34-20-6-4 had
been established.

261

In addition to the several other product liability issues addressed in the

opinion, the court in Morgen v. Ford Motor Co.,262 dealt with a jury instruction
about misuse. Morgen is a pre-IPLA case (accrual in 1993), in which Morgen
was severely injured in a rear-end collision while riding in the rear seat ofa Ford
Escort.

263 He sued Ford, claiming that the Escort was defective and that Ford
failed to provide reasonable warnings.

264
Morgen' s experts claimed that the

structural design of the car reduced occupant survival space or headroom.
265

Ford argued that Morgen's injuries occurred because of his failure to wear a

seatbelt, which Ford contended was a product misuse.
266 The trial gave Ford's

tendered jury instruction on misuse, after which the jury returned a general

verdict for Ford.
267 The Indiana Court of Appeals reversed, determining that a

misuse instruction was improper because there is no common law or statutory
duty for an occupant ofa vehicle to wear a seat belt, because there is no statutory

duty for a backseat passenger to wear a seat belt, and because it is foreseeable

that automobile passengers may not wear seat belts.268

The Seventh Circuit's opinion in Chapman v. Maytag Corp.269 also must be
considered in connection with the "misuse" defense. Recall that the parties in

Chapman did not dispute that the stove involved had a manufacturing defect in
that it contained a wire that had become pinched between a metal housing cover
and the metal back of the stove during the assembly process.

270 Maytag

nevertheless argued that the stove was delivered with a host ofwarnings advising
consumers that the failure to plug the range into a properly grounded three-hole

receptacle in compliance with local rules and the NEC could result in a shock
hazard.

271 The decedent had incorrectly installed the outlet into which the stove
was plugged, which rendered that outlet devoid of a grounding wire, thus

259. Id. at 898.

260. Id. at 899.

261. Id. at 898.

262. See supra note 153.

263. Id at 139.

264. Id.

265. Id. at 139-40.

266. Id. at 140.

267. Id.

268. Id at 142.

269. 297 F.3d 682 (7th Cir. 2002)

270. Id. at 685.

271. Id. at 684-85.



2003] PRODUCT LIABILITY 1 1 97

contrary to the foregoing product warnings.
272 Maytag argued that plugging the

stove into an inadequate outlet contrary to label warnings amounted to a misuse

of the product that completely barred plaintiffs' action against it.
273

The Seventh Circuit determined that the district court did not abuse its
discretion in determining that any "misuse" ofthe product falls within the scope

of the IPLA's definition of "fault."
274

Because a jury is directed to compare all
"fault" in a case, the district court did not abuse its discretion in determining that

the IPLA requires "misuse" be part of the comparative fault analysis and not a
complete defense.

275

The Seventh Circuit also determined that the district court did not abuse its
discretion in determining that the decedent's failure to heed Maytag's warnings,

even if assumed adequate, would not constitute "misuse."
276

The fundamental
reason why the Seventh Circuit deferred to the district judge's discretion on this
point appears to be the fact that the case involved a manufacturing defect and that

failure to follow label warnings could not be considered a "misuse" in the

presence of such a manufacturing defect.
277

Indeed, the Seventh Circuit noted

that Maytag cited in support of its position only Indiana cases that did not involve
manufacturing defects.

278

C. Modification and Alteration

Indiana Code section 34-20-6-5 provides that "[i]t is a defense to an action
under [the IPLA] that a cause ofthe physical harm is a modification or alteration

ofthe product made by any person after the product's delivery to the initial user
or consumer ifthe modification or alteration is the proximate case ofthe physical

harm where the modification or alteration is not reasonably expectable to the

seller."
279

Although this survey article does not address in detail any modification or

alteration cases, practitioners should recognize that the alteration defense is also

incorporated into the basic premise for product liability in Indiana as set forth in

Indiana Code section 34-20-2- 1.280 Indeed, Indiana Code section 34-20-2-1

provides that

a person who sells, leases, or otherwise puts in to the stream of
commerce any product in a defective condition unreasonably dangerous
to any user or consumer or to the user's or consumer's property is
subject to liability for physical harm caused by that product to the user

272. Id. at 685.

273. Id. at 688.

274. Id. at 689.

275. Id.

276. Id.

277. Id.

278. Id.

279. Ind. Code § 34-20-6-5 (1998)
280. Id. §34-20-2-1.



1 198 INDIANA LAW REVIEW [Vol. 36:1 165

or consumer or to the user's or consumer's property if . . . (3) the product

is expected to and does reach the user or consumer without substantial

alteration in the condition in which the product is sold by the person

sought to be held liable under this article.
281

Accordingly, ifa claimant cannot establish the absence ofa substantial alteration,

or if a defendant conclusively proves that the product underwent some of
substantial alteration between the time of manufacture or sale and the time the

injury occurred, the IPLA simply does not provide any relief as a threshold
matter.

D. Other Defenses

Although it does not directly address any provisions of the IPLA, Chief

Judge McKinney's order in Miller v. Honeywell International Inc.
1*2

affirms

another defense available to product manufacturers in Indiana under certain

limited circumstances. In Miller, the manufacturer of an oil debris detection

system ("ODDS") incorporated into an Army helicopter that crashed at Camp
Atterbury filed a motion for summaryjudgment based on the "military contractor
defense" in a wrongful death action in which the plaintiffs asserted that the

ODDS was defectively designed.283 The court applied the "military contractor
defense" recognized by the United States Supreme Court in Boyle v. United
Technologies Corp.

294
Chief Judge McKinney granted summary judgment

concluding that the manufacturer ofthe ODDS had established each ofthe three
required elements of the military contractors defense: the United States Army
approved reasonably precise specifications for the equipment; the equipment

conformed to those specifications; and the contractor had warned the United

States about any dangers known to the contractor but not to the United States. 285

VI. Comparative Fault and Nonparty Issues

The 1 995 amendments to the IPLA changed Indiana law with respect to fault
allocation and distribution in product liability cases. The Indiana General
Assembly made it clear that a defendant cannot be liable for more than the
amount of fault directly attributable to that defendant, as determined pursuant to
Indiana Code section 34-20-8, nor can a defendant be held jointly liable for
damages attributable to the fault of another defendant.

286

The IPLA now requires the trier of fact to compare the fault of the person
suffering the physical harm, as well as the fault of all others whom caused or

281. Id.

282. 2002 U.S. Dist. LEXIS 20474 (S.D. Ind. Sept. 30, 2002).

283. Id. at**2-4.

284. 487 U.S. 500, 503-06(1988).

285. Miller, 2002 U.S. Dist. LEXIS 20474, at **71-72. The ODDS had been subjected to over
five years of scrutiny and testing by U.S. Army engineers who made discretionary decisions as to

all three alleged design defects based on their own tests. See id. at **49-52.

286. Ind. Code § 34-20-7-1 (1998).



2003] PRODUCT LIABILITY 1 1 99

contributed to cause the harm.
287

The statute requires that the trier of fact
compare such fault "in accordance with" Indiana Code sections 34-51-2-7

to -9.
288 The IPLA mandates that

[i]n assessing percentage of fault, the jury shall consider the fault of all

persons who contributed to the physical harm, regardless ofwhether the
person was or could have been named as a party, as long as the nonparty
was alleged to have caused or contributed to cause the physical harm.289

A. Are the Defenses "Complete "?

Incurred risk, misuse, and alteration/modification all were "complete"

defenses to IPLA claims before the 1995 amendments because they served to
relieve a defendant of liability, ifthe defendant was able to plead and prove any
one of them.

290
In light of the introduction of fault allocation principles into

product liability cases in Indiana in 1995, there appears to be some question
about whether the statutory defenses remain complete defenses or whether they

are simply arguments that affect the level or percentage offault to be placed upon

a particular claimant.

That the alteration or modification defense is "complete" may be the least
controversial because the alteration defense is incorporated directly into the basic

premise for product liability in Indiana as set forth in Indiana Code section 34-
20-2-1

,

291
Indeed, Indiana Code section 34-20-2-1 provides that

a person who sells, leases, or otherwise puts into the stream ofcommerce
any product in a defective condition unreasonably dangerous ... is

subject to liability for physical harm caused by that product . . . if . . . (3)
the product is expected to and does reach the user or consumer without

substantial alteration in the condition in which the product is sold by the

person sought to be held liable under this article.
292

Accordingly, the "alteration" defense is "complete" by the very statute that

imposes product liability in Indiana as a threshold matter. If a claimant cannot

establish that the product was not substantially altered or if a defendant
conclusively proves that the product underwent some of "substantial alteration"
between the time of manufacture or sale and the time the injury occurred, the
IPLA simply does not provide any relief.

287. Id § 34-20-8- 1(a).

288. Id. §§34-51-2-7 to -9.

289. Id § 34-20-8- 1(b).

290. E.g., Perdue Farms, Inc. v. Pryor, 646N.E.2d 715 (Ind. Ct. App. 1995) (holding incurred

risk a complete defense to strict product liability claims); Estrada v. Schmutz Mfg. Co., 734 F.2d

1218 (7th Cir. 1 984) (holding nonforeseeable misuse a complete defense to product liability claim);

Foley v. Case Corp., 884 F. Supp. 313 (S.D. Ind. 1994) (holding modification or alteration a

complete defense to certain product liability actions).

291

.

Ind. Code § 34-20-2 (1998).
292. Id.



1200 INDIANA LAW REVIEW [Vol. 36:1 165

Incurred risk may remain a complete defense, although that question seems
to be the most intriguing. The Indiana General Assembly amended what is now
Indiana Code section 34-20-6-3(3) to eliminate the word "unreasonably" from the
phrase that previously read "nevertheless proceeded 'unreasonably' to make use
ofthe product."

293
The language used is significant because it lends support for

the proposition that incurred risk is not subject to fault apportionment.
294

In

addition, the definition of "fault" for purposes of Indiana's Comparative Fault

Act
295

includes "incurred risk," whereas the definition of "fault" for purposes of

the IPLA does not.296 The IPLA "fault" definition does, however, include the
"[unreasonable failure to avoid an injury or to mitigate damages.

297
Whether

that language, in effect, means the same thing as "incurred risk" seems to be an
open question.

At least one Indiana appellate decision seems to provide support for the

proposition that incurred risk remains a complete defense in Indiana. In Hopper
v. Carey,

299,
the Indiana Court ofAppeals recognized that IPLA claims are subject

to specifically enumerated defenses, including the "incurred risk"
299

defense.

The Hopper court pointed out that "even if a product is sold in a defective
condition unreasonably dangerous, recovery will be denied an injured plaintiff

who had actual knowledge and appreciation of the specific danger and
voluntarily [incurred] the risk."

300 The court makes no mention of comparing
fault if there is a determination that the plaintiff had actual knowledge and

appreciated the specific danger involved.

There is a conflict between two recent Indiana Court ofAppeals panels and

one federal decision with respect to whether "misuse" is a complete defense.

The two cases that have held the defense of misuse under the IPLA to be a

293. Id. § 34-20-6-3(3) (formerly Ind. CODE § 33-1-1 .5-4(b)(l) (repealed 1998)).

294. See Timothy C. Caress, Recent Developments in the Indiana Law ofProducts Liability,

29 Ind. L. Rev. 979, 1000 (1996).

295. Ind. Code §34-51-2 (1998).

296. Compare id. § 34-6-2-45(a), with id. § 34-6-2-45(b). Unlike the definition used for cases

governed by the Comparative Fault Act, the IPLA "fault" definition does not include the

"unreasonable assumption ofrisk not constituting an enforceable express consent, incurred risk, and

unreasonable failure to avoid an injury or to mitigate damages." Id. § 34-6-2-45(b). For purposes

of the IPLA, the legislature defined "fault" to mean: "an act or omission that is negligent, willful,

wanton, reckless, or intentional toward the person or property of others." The term includes

"[unreasonable failure to avoid an injury or to mitigate damages" and "[a] finding under IC 34-20-

2 . . . that a person is subject to liability for physical harm caused by a product, notwithstanding the

lack of negligence or willful, wanton, or reckless conduct by the manufacturer or seller." Id. § 34-

6-2-45(a).

297. See id.

298. 716 N.E.2d 566 (Ind. Ct. App. 1999).

299. Id. at 570.

300. Id. at 576 (quoting Koske v. Townsend Engineering Co., 551 N.E.2d 437, 441 (Ind.

1990)).



2003] PRODUCT LIABILITY 1201

"complete" defense are Indianapolis Athletic Club, Inc. v. Alco StandardCorp.
301

and Morgen v. FordMotor Co. 302 Indiana courts view the "misuse" defense as
"complete" because the existence offacts giving rise to the defense amount to an
unforeseeable intervening cause that relieves the manufacturer of liability as a

matter oflaw.
303

The federal decision, Chapman v. Maytag Corp. 304 held that the
district judge did not abuse his discretion in determining that any "misuse" of a

product falls within the scope of the IPLA's definition of "fault."
305

Because a

jury is directed to compare all "fault" in a case, the district court did not abuse

his discretion in determining that the IPLA requires "misuse" be part of the
comparative fault analysis and not a complete defense.

306

The debate is interesting. To be sure, the statutory definition of "misuse"
seems to consider only the objective reasonableness of the foreseeability of the

misuse by the seller and not the character of the misuser's conduct. That would
tend to explicitly demonstrate that "misuse" is not "fault." The districtjudge in
Chapman recognized as much. As the district judge also recognized, however,
it is also true that the Indiana General Assembly did not specifically exempt
misuse from the scope of the comparative fault requirement and a plaintiffs

misuse arguably falls within Indiana Code section 34-6-2-45(a)'s definition of
"fault."

307
However, that the General Assembly may not have overtly indicated

that it intended to exempt misuse from the scope of the comparative fault

requirement does not necessarily mean that it is exempted. After all, it would
seem equally as likely that the legislature's silence on the matter would indicate

an implicit recognition that the "complete" nature of the pre- 1995 product

liability defenses was to remain that way notwithstanding the introduction of
some comparative fault principles vis-a-vis defendants and non-parties.

B. Non-Party Practice

Recent case law holds that Indiana Code section 34-51-2-16 governs the
amendment of a pleading to assert a nonparty defense in a product liability
case.

308
Parties must plead the nonparty defense with "reasonable

promptness."
309

In McClain v. Chem-Lube Corp.
310

a welder sued the

manufacturer and seller ofan anti-spatter compound, claiming injuries as a result

of exposure to fumes and vapors associated with use ofthe compound. Among

301

.

709 N.E.2d 1070, 1072 (Ind. Ct. App. 1999).

302. 762N.E.2d 137, 143 (Ind. Ct. App. 2002), reh 'g denied2002 Ind. App. LEXIS 791 (Ind.

Ct. App. Apr. 22, 2002), trans, granted, opinion vacated by 2002 Ind. LEXIS 852 (Ind. Nov. 1,

2002).

303. Id.

304. 297 F.3d 682 (7th Cir. 2002).

305. Mat 689.
306. Id.

307. IND. CODE § 34-6-2-45(a) (1998).
308. Id §34-51-2-16.

309. Id.

310. 759N.E.2d 1096 (Ind. Ct. App. 2001).



1202 INDIANA LAW REVIEW [Vol. 36:1165

the many issues in that case was one that involved the nonparty defense.311 The
manufacturer named the welder's employer as a non-party by way of a motion
to amend pleadings six months after the expiration ofthe statute oflimitations.312

The McClain court concluded that the manufacturer defendant had ample
opportunity before the expiration ofthe limitations period to name the employer
as a nonparty, and that its failure to do so resulted in the manufacturer's inability

to assert a nonparty defense against the employer.
313

Thus, the McClain court
held that the trial court abused its discretion in allowing the manufacturer to

amend the pleadings.
In Bondex v. Otf,

314
four defendant product manufacturers appealed an

interlocutory order by the trial court that precluded them from naming several
bankrupt entities as nonparties.

315 The trial court had concluded that allowing the
defendants to name bankrupt entities as nonparties would be a violation of the
automatic stay provision of the Bankruptcy Code found at 1 1 U.S.C. § 362.

316

The Indiana Court of Appeals reversed holding that an allocation of fault to a
nonparty through the comparative fault provision of the IPLA was not an
imposition of liability against the nonparty.

317 The appellate court reached its
conclusion by applying the language of Indiana Code section 34-51-2-8 which
makes clear that a jury may assess a judgment for damages against only
defendants, not against non-parties.

318

Conclusion

The 2002 survey period was yet another one in which Indiana practitioners
challenged each other and Indiana courts to define and refine Indiana product

liability law in light of the 1995 amendments to the IPLA. The professional
integrity, spirit, and scholarship exhibited as part of that process makes us all
proud to be advocates.

311. Mat 1104-06.
312. Mat 1104-05.
313. Mat 1106.
314. 774 N.E.2d 82 (Ind. Ct. App. 2002).

315. Mat 83.
316. Mat 84.
317. Mat 87.
318. Mat 86.