258 N.E.2d 681 (Ind.App. 1970), 669 A 101, Perfection Paint & Color Co. v. Konduris

Docket Nº669 A 101.
Citation258 N.E.2d 681, 147 Ind.App. 106
Party NamePERFECTION PAINT & COLOR COMPANY, Appellant, v. Kosmos Alexander KONDURIS, Special Administrator of the Estate of Kosmos Kountouris, Deceased, Appellee.
Case DateJune 02, 1970
CourtCourt of Appeals of Indiana

Page 681

258 N.E.2d 681 (Ind.App. 1970)

147 Ind.App. 106

PERFECTION PAINT & COLOR COMPANY, Appellant,

v.

Kosmos Alexander KONDURIS, Special Administrator of the

Estate of Kosmos Kountouris, Deceased, Appellee.

No. 669 A 101.

Appellate Court of Indiana, Division No. 2.

June 2, 1970

Page 682

Page 683

[147 Ind.App. 108] Floyd W. Burns, Douglas J. Hill, Indianapolis, for appellant; Cadick, Burns, Duck & Neighbours, Indianapolis, of counsel.

C. Warren Holland, Howard J. DeTrude, Jr., Indianapolis, for appellee; Kightlinger, Young, Gray & Hudson, Indianapolis, of counsel.

PFAFF, Judge.

The plaintiff-appellee, Kosmos Alexander Konduris, instituted this action on behalf of his deceased father, Kosmos Kountouris, who died from burns inflicted in a fire in the plant of his employer, Alrimo Pizza, Inc. (Alrimo). The defendant-appellant, Perfection Paint & Color Company (Perfection), furnished Alrimo with a lacquer reducer for the purpose of removing a paint film on Alrimo's storage room floor. The lacquer reducer proved to be highly flammable and when applied to the storage room floor was ignited by an operative gas hot water heater in one corner of the storage room. This fire resulted in the death of Kosmos Kountouris.

Plaintiff-appellee's complaint contained four separate theories of recovery, (1) breach of implied warranty; (2) breach of express warranty; (3) negligence; and (4) strict liability in tort. Interrogatories to the jury disclosed that the jury found for the defendant-appellant on the first three theories, but on the fourth theory, strict liability in tort, the plaintiff-appellee was awarded the sum of $25,000.00 in damages. The jury's award of damages was based solely upon the theory of strict liability in tort as derived from 2 Restatement of Torts, 2d, § 402A at 347 (1964).

In this appeal, appellant-Perfection argues that the judgment of the Marion Superior Court, Room No. 7, should be reversed by reason of the fact that the jury's verdict was [147 Ind.App. 109] contrary to law and not supported by sufficient evidence. Appellant's motion for new trial and its argument on appeal focus upon two separate arguments in seeking a reversal of the judgment in this cause.

1. Appellant first contends that the theory of strict liability in tort, the basis of the jury's verdict, is not a recognized legal theory in this jurisdiction and that, therefor, the jury's verdict is contrary to law. This court has recently examined the legal theory of strict liability in tort and in the decision in the case of Cornette v. Searjeant Metal Products, Inc. (1970) Ind.App., 258 N.E.2d 652, the court expressly recognized and adopted the theory of strict liability in tort as embodied in § 402A, supra, as the law of Indiana. The statement of strict liability in tort which we adopt reads as follows:

' § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer.

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm hereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

'(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

Page 684

2. Under this contention appellant asserts what it believes to be two defenses to the imposition of strict liability in tort which may, in summary, be stated as follows: (a) There was no sale of the lacquer reducer; and (b) the lacquer reducer [147 Ind.App. 110] was misused. A recital of the facts is necessary prior to a determination of the applicability of these defenses.

The appellee's decedent, Kosmos Kountouris, was an employee of Alrimo, a corporation engaged in the pizza manufacturing business. In the late spring of 1965 Alrimo was engaged in the preparation and construction of new manufacturing facilities. Alrimo was remodeling an existing building as well as adding a new connecting structure which was to contain storage, cooler and freezer rooms. The new portions of the manufacturing facility were constructed of concrete blocks with poured concrete floors. Certain Federal regulations concerning design and construction specifications of food manufacturing facilities prescribed that the interior walls and floors of such food manufacturing facilities be covered with a highly durable, washable and chip-resistant paint.

During an early phase of construction one of appellant-Perfection's salesmen, Richard Francis, called on the job site to solicit a sale of Perfection's paint to Alrimo. As a result of this and other calls, it was agreed that Perfection was to supply the paint for Alrimo's manufacturing facility. At the time of sale, Mr. Francis was advised of the Federal standards applicable to the quality of paint to be applied to the interior walls of the building. It was suggested that Perfection's epoxy paint be used because of its hard finish and capability of withstanding repeated washings without chipping or pelling. At the time of this recommendation, however, Perfection had no prior experience in the use or application of its epoxy paint on concrete floors. Alrimo followed Perfection's advice and purchased Perfection's epoxy paint for use on the building's interior surfaces.

Subsequently Perfection delivered its epoxy paint and instructed Alrimo's employees on the proper application of the paint. The walls and ceilings of the cooler, freezer and storage rooms were painted first and Perfection's epoxy paint proved to be entirely satisafctory. However, when the epoxy [147 Ind.App. 111] paint was applied to the concrete floors in the cooler, freezer and storage rooms it was found that the epoxy paint would not properly adhere to the floor surface and, consequently, would not dry. Appellee, Kosmos Alexander Konduris, 1 called Perfection and advised Mr. Francis of the drying problem. A Mr. Walker, a Perfection employee and its plant chemist, called at Alrimo's plant and subsequently advised that the epoxy paint applied to the floors would have to be removed. Mr. Walker advised Alrimo that Perfection would remedy the problem. Thereafter, Perfection furnished Alrimo with a paint remover manufactured by Perfection and instructed Alrimo's employees on the use of the paint remover. The paint remover was first applied in the cooler and freezer rooms and Alrimo's employees manually 'scraped up' the epoxy paint. After the paint was removed, mineral spirits were used to wash away the residue. However, the use of mineral spirits did not prove to be entirely satisfactory in dissolving a film left from the application of the paint remover. Perfection then suggested that its (Perfection's) lacquer reducer be used to remove the film. Lacquer reducer was applied in the cooler and freezer rooms without incident and the floors were fully cleaned and readied for repainting. There remained, however, the preparation of the storage room floor. Again the same procedure was followed. Paint remover was applied to the floor and the film left from the application

Page 685

of the paint remover necessitated the application of appellant's lacquer reducer in order to remove the film. Mr. Walker examined the storage room prior to the aforesaid process, and with the exception of a gas hot water heater in one corner of the room, there was nothing in the room. Perfection again furnished the necessary removal materials and instructed Alrimo's employees on the use of said materials.

Appellee's decedent, Kosmos Kountouris, an employee of [147 Ind.App. 112] Alrimo, took no part in any of the prior paint removing operations in the cooler and freezer rooms, but he was to participate in removing the epoxy paint from the storage room floor. The decedent, additional employees of Alrimo, and Perfection's salesman, Mr. Francis, participated in the use of the paint remover. After stripping the epoxy paint, Mr. Francis telephoned Perfection and requested delivery of the lacquer reducer in order that the film could be removed from the floor. Perfection delivered the lacquer reducer and Mr. Francis demonstrated how to use it. He poured approximately one and one-half gallons of lacquer reducer on the floor and was spreading it when it was ignited by the gas hot water heater. The burns suffered by Kosmos Kountouris resulted in his death.

(a) Appellant contends that § 402A, supra, is not applicable to this occurrence because the record fails to disclose that Perfection sold its lacquer reducer to Alrimo, and, further, that the record establishes that the lacquer reducer was furnished free of charge. The Restatement imposes liability on '(o)ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property * * *'.

Appellant urges us to adopt the position that in every instance of consumer injury an actual sale of the product which produces the injury is an absolute prerequisite to imposition of strict liability. In short, it is contended that the mere 'furnishing' of a product is not a sale and that Perfection's gratuitous furnishing of the lacquer reducer did not constitute a transaction capable of satisfying the alleged § 402A, supra, 'sells' requirement.

The Restatement does not attempt to define those commercial transactions which may or may not constitute a 'sale' for purposes of imposing strict liability. Rather, the Restatement Comments (see 2 Restatement of Torts, 2d, § 402A at...

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