357 N.E.2d 738 (Ind.App. 1 Dist. 1976), 1--875A149, Gilbert v. Stone City Const. Co., Inc.

Docket Nº:1--875A149.
Citation:357 N.E.2d 738, 171 Ind.App. 418
Party Name:Michael R. GILBERT, Appellant (Plaintiff below), v. STONE CITY CONSTRUCTION COMPANY, INC., and W. L. Thomas, Inc., Appellees(Defendants below).
Case Date:December 08, 1976
Court:Court of Appeals of Indiana

Page 738

357 N.E.2d 738 (Ind.App. 1 Dist. 1976)

171 Ind.App. 418

Michael R. GILBERT, Appellant (Plaintiff below),



Inc., Appellees(Defendants below).

No. 1--875A149.

Court of Appeals of Indiana, First District.

December 8, 1976

Rehearing Denied Jan. 20, 1977.

Page 739

Page 740

[171 Ind.App. 419] Donald L. Tunnell, Richard W. Yarling, John W. Hammel, Indianapolis, for appellant.

Lawrence H. Hinds, Martz, Beattey, Hinds & Wallace, Indianapolis, Roy A. Pope, Pope, Pope & Clayton, Indianapolis, Richard H. Montgomery, Montgomery, Elsner & Pardieck, Seymour, Ruel W. Steele, Steele, Steele & Steele, Bedford, for appellees.



Plaintiff-appellant Michael R. Gilbert appeals from a judgment and verdict denying his claim for relief against defendants-appellees Stone City Construction Company, Inc., (Stone City) and W. L. Thomas, Inc. (Thomas). At the close of all the evidence,

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the trial court entered judgment on the evidence against Gilbert on his products liability claim but submitted his negligence claim to the jury, who found against Gilbert.

We reverse.


This case arose out of a construction accident in which Gilbert was severely injured when a road roller struck him from behind and ran over the lower part of his body. At the time, he was a highway construction inspector of the State of Indiana and was working at a construction project on which Stone City was a contractor.

He was standing beside and near the rear of a spreader which had been putting down stone on the shoulder of a traffic lane under construction. Gilbert had been collecting the receipts taken from the drivers of trucks dumping stone into the spreader.

Behind the spreader, Stone City operator Ricky Strunk was compacting the stone with the roller, which Stone City [171 Ind.App. 420] had leased from Thomas eight to ten weeks prior to the mishap. Gilbert had his back to the roller.

Because the dump trucks had cut ruts in front of the spreader, Strunk was told to drive the roller around to the front of the spreader in order to smooth out the grade. As Strunk was driving the roller around the spreader, he ran over Gilbert without seeing him.


1. Whether the trial court erred in entering judgment on the evidence against Gilbert on his products liability claim.

2. Whether the trial court erred in refusing to give the jury Gilbert's tendered instructions number two, eight, and nine.



Gilbert contends that the trial court erred in granting judgment on the evidence against him on his products liability claim.

A trial court may grant judgment on the evidence against a plaintiff at the close of all the evidence only if there is no reasonable evidence of probative value, or a reasonable inference therefrom, upon one or more of the factual issues necessary to recovery by the plaintiff. Ind. Rules of Procedure, Trial Rule 50; Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 704; Smith v. Chesapeake and Ohio Railroad Company (1974), Ind.App., 311 N.E.2d 462.

In ruling on a defendant's motion for judgment on the evidence a trial court must determine if some evidence supporting the plaintiff exists on each issue. Mamula v. Ford Motor Company (1971), 150 Ind.App. 179, 275 N.E.2d 849. The trial court must view the evidence and the inferences therefrom most favorably to the plaintiff. Smith, supra.

[171 Ind.App. 421] Where reasonable men might differ about the evidence or where the determination of liability depends upon resolving conflicting evidence, the issue is one for a jury. Therefore, a trial court may properly grant judgment on the evidence against a plaintiff only where the evidence on one or more issues is without conflict and is susceptible of only an inference in favor of the defendant. Mamula, supra.

Inasmuch as this court must apply the same standard in reviewing the trial court's decision, Smith, supra, we will examine the requirements for recovery under the products liability theory set forth in Restatement (2d) of Torts § 402A (1965), which has been adopted as they law of this state. Ayr-Way Stores,

Inc. v. Chitwood (1973), 261 Ind. 86, 300 N.E.2d 335

. § 402A states: '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 thereby 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

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(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.'


At first glance, § 402A would appear to be inapplicable to the instant case because of the status of Thomas, who only leased the roller to Stone City, and Gilbert, who was not a consumer or user, but was only a bystander.


However, in Indiana a commercial sale is not an essential element of recovery under § 402A. See J. Vargo, Products Liability, Survey of Recent Developments in Indiana Law, 9 Ind.L.Rev. 270, 275 (No. 1, 1975). The test is whether a defendant injected a harmful defective product into the stream of commerce. Link v. Sun Oil Company (1974), Ind.App., 312 N.E.2d 126. Therefore, liability under § 402A will attach to one who places such a product in the stream of commerce by sale, lease, bailment, or other means. Perfection Paint & Color Company v. Konduris (1970), 147 Ind.App. 106, 258 N.E.2d 281, n. 2. See Annot., 52 A.L.R.3d 121, § 3 (1973).

Thomas' status as a lessor was thus irrelevant. But for § 402A to apply it was necessary to show that Thomas was engaged in the business of providing construction equipment to others--even if the corporation pursued other businesses as well. § 402A, comment f. The rationale for this requirement is stated as:

'. . . The basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third person, or even to his buyer, in the absence of his negligence. . . .' Id.

In Price v. Shell Oil Company (1970), 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722, the court held that there was sufficient evidence for a jury to find that Shell was in the business of leasing oil trucks where Shell had entered into more than a single lease transaction, the leasing was part of an organized and continuing operation, and trucks had been leased to other lessees.

In Bachner v. Pearson (Alaska 1970), 479 P.2d 319, 328, a [171 Ind.App. 423] lessor was held liable under § 402A where the lease of the defective product was an 'essentially commercial transaction falling within the scope of the defendant's usual course of business.'

In the instant case, W. L. Thomas testified that he had worked in the construction business all of his life and that his corporation routinely leased equipment which it was not presently using to other construction companies. He stated that the roller in question had been leased to three or four contractors other than Stone City.

We conclude that there was some evidence produced which tended to show that Thomas was engaged in the leasing business. This issue was one about which reasonable men could differ.


In Idniana, bystanders 'whom the . . . supplier should reasonably foresee as being subject to the harm caused by the defect' may recover under § 402A for injury caused by a defective product. Chrysler Corporation v. Alumbaugh (1976), Ind.App., 342 N.E.2d 908, 917. E.g. Ayr-Way Stores, supra; Perfection Paint, supra. See Pike v. Frank G. Hough Company (1970), 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (construction worker on foot struck from behind

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by heavy equipment); Annot., 33 A.L.R.3d 415, § 5 (1970).

W. L. Thomas testified that through his experience he was aware of the congestion of equipment and pedestrians which occurs when dump trucks haul stone into a spreader which is used in conjunction with a roller.

We conclude that there existed some evidence that Thomas should reasonably have foreseen that a construction worker on foot could be harmed by a defective roller. Reasonable men could also differ on this issue.

[171 Ind.App. 424] B--NECESSARY PROOF

For a plaintiff to establish a products liability claim, it must be shown (1) that he was injured by the product, (2) because it was defective and unreasonably dangerous, (3) that the defect existed at the time the product left the hands of the defendant, and (4) the product was expected to and did reach the consumer without substantial change in its condition. § 402A, supra; W. Prosser, Torts § 103 (4th Ed. 1971).

It is not disputed that the roller injured Gilbert.

Gibert argues that the roller was defective in two respects. First, he notes that the clutch on the roller slipped so that the operator had to hold the clutch lever in position in order to run the machine. He contends that this was...

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