407 N.E.2d 1173 (Ind.App. 1 Dist. 1980), 1-1079A268, Lane v. Barringer

Docket Nº:1-1079A268.
Citation:407 N.E.2d 1173
Party Name:Margaret A. LANE, Appellant, v. Gerald L. BARRINGER and Iva Barringer, d/b/a Handi Foods, Holloway House Industrial Products, a Division of Chemical Corporation of America, Owens- Illinois, Inc. and Venus Laboratories, Inc., Appellees.
Case Date:July 24, 1980
Court:Court of Appeals of Indiana
 
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Page 1173

407 N.E.2d 1173 (Ind.App. 1 Dist. 1980)

Margaret A. LANE, Appellant,

v.

Gerald L. BARRINGER and Iva Barringer, d/b/a Handi Foods,

Holloway House Industrial Products, a Division of Chemical

Corporation of America, Owens- Illinois, Inc. and Venus

Laboratories, Inc., Appellees.

No. 1-1079A268.

Court of Appeals of Indiana, First District.

July 24, 1980

Page 1174

William F. Marshall, Dalmbert & Marshall, Columbus, for appellant.

Don M. Robertson, Joseph D. O'Connor, III, Bunger, Harrell & Robertson, Bloomington, for appellees, Gerald L. Barringer and Iva Barringer, d/b/a Handi Foods.

John P. Price, Robert G. Weddle, Daniel R. Fagan, Bingham, Summers, Welsh & Spilman, Indianapolis, for Holloway House Industrial Products.

Leon D. Cline, Cline, King & Beck, Columbus, for appellee, Owens-Illinois, Inc.

Peter B. Stewart, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellee, Venus Laboratories, Inc.

ROBERTSON, Presiding Judge.

Margaret A. Lane brought a personal injury suit against multiple defendants who were involved with the manufacture, packaging, distribution and retail sale of a liquid drain cleaner, Industrial Drain Opener. The trial court granted a motion to dismiss, for failure to state a claim upon which relief could be granted, in favor of Venus Laboratories, Inc., the manufacturer of the cleaner. The trial court also granted motions for summary judgment in favor of Owens-Illinois, Inc., who supplied the container for the cleaner: Holloway House Industrial Products, the distributor of the cleaner: and Gerald and Iva Barringer, managers of the retail store, Handi Foods, which offered the cleaner for sale. Margaret A. Lane now appeals the granting of these various motions.

We affirm.

The relevant facts are that in the late evening of April 27, 1974, the appellant, Margaret A. Lane (Lane) accompanied her daughter to a Handi Foods store in Columbus, Indiana. The daughter intended to purchase a drain opener to unclog a toilet in her home. She was seeking a strong drain cleaner because the toilet was clogged with beef bones. After examining several products, the daughter took a container of Industrial Drain Opener from the shelf, placed it under her arm, and began to leave the display area. The container fell to the floor, broke open, and the cleaner splashed onto Lane's legs injuring her.

Lane initiated this suit on May 14, 1976. Her complaint, as amended, sought relief under three different legal theories. Two of the claims sounded in tort; one based upon negligence and one based upon strict liability in tort. The third theory sounded in contract for breach of implied warranty. As to the claims sounding in tort, the applicable two year statute of limitations had run when the complaint was filed thus barring any recovery. See Ind.Code 34-1-2-2. Therefore, the essential issue before the trial court in ruling on the various motions, which are now the subject of this appeal, was whether or not Lane could maintain a contract action for breach of implied warranty, pursuant to Ind.Code 26-1-2-314 and Ind.Code 26-1-2-318, against the various defendants.

IC 26-1-2-314 specifies that there is an implied warranty that goods are merchantable in a contract for sale of goods when the seller is a merchant who regularly sells such goods. IC 26-1-2-318 extends the protection of an implied warranty, pursuant to section 314, to third party beneficiaries in certain instances. Lane seeks to bring herself within the scope of the third party beneficiary provision. By doing so, she also seeks the benefit of the four year statute of

Page 1175

limitations applicable to a breach of contract for sale of goods. Ind.Code 26-1-2-725.

Given this basis for review, we turn to the question of whether or not the trial court properly granted the motions for summary judgment in favor of Owens-Illinois, Inc., the container supplier, and Holloway House Industrial Products, the distributor.

The granting of a motion for summary judgment is of course only proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C); Stuteville v. Downing (1979) Ind.App., 391 N.E.2d 629. A fact is "material" if it tends to facilitate resolution of any of the issues for or against the party having the burden of proof on the issue. Stuteville v. Downing, supra; Brandon v. State, (1976) 264 Ind. 177...

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