Bloemker v. Detroit Diesel Corp.

• Decision Date: 20 December 1999
• Docket Number: No. 85A02-9901-CV-19.,85A02-9901-CV-19.
• Citation: 720 N.E.2d 753
• Parties: Bob Allen BLOEMKER, Appellant-Plaintiff, v. DETROIT DIESEL CORPORATION, PTI Industries, Incorporated, and North Manchester Foundry, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

720 N.E.2d 753

Bob Allen BLOEMKER, Appellant-Plaintiff, v. DETROIT DIESEL CORPORATION, PTI Industries, Incorporated, and North Manchester Foundry, Inc., Appellees-Defendants.

No. 85A02-9901-CV-19.

Court of Appeals of Indiana.

December 20, 1999.

Harry A. Wilson, Jr., Wilson Kehoe & Winingham, John A. Payton, Lehman Payton, Indianapolis, Indiana, Attorneys for Appellant.

Sydney L. Steele, Jon K. Stowell, Lowe Gray Steele & Darko, LLP, Indianapolis, Indiana, Edward L. Murphy, Jr., Tina M. Yordy, Miller Carson Boxberger & Murphy LLP, Fort Wayne, Indiana, Attorneys for Appellees.

OPINION

RILEY, Judge

STATEMENT OF THE CASE¹

Plaintiff-Appellant Bob Allen Bloemker (Bloemker) appeals the trial court's entry of summary judgment in favor of Detroit Diesel Corporation (Detroit Diesel) and North Manchester Foundry, Inc. (North Manchester) on Bloemker's negligence claim.²

We affirm.

ISSUE

Bloemker raises several issues for our review, one of which we find dispositive of the issues in this case, and restate as follows:

Whether Detroit Diesel and North Manchester were suppliers under either section 388 or 392 of the Restatement (Second) of Torts which impose a duty upon those who supply chattels to others.

FACTS AND PROCEDURAL HISTORY

Because a decision has already been rendered in this case by this court on different issues, we find the facts as outlined in that case to be controlling in this case as well. Bloemker v. Detroit Diesel Corp., 655 N.E.2d 117 (Ind.Ct.App.1995), trans. granted.

Bloemker is an experienced journeyman pattern maker employed by Allen Pattern Works in Fort Wayne, Indiana. A pattern is a master model used to make a mold into which molten iron is poured to form a casting. On September 19, 1990, Bloemker was making two modifications to a particular pattern as directed by his employer. In order to make the modifications, Bloemker heated the pattern. During the heating process, the pattern exploded. Bloemker was injured, losing his right arm.

A post-explosion inspection revealed that the pattern had a sealed cavity that contained a mixture of sand and moisture. When Bloemker heated the pattern, the mixture expanded, resulting in the explosion. Core material such as sand and moisture is typically removed from pattern cavities. The pattern in question, however, contained only one vent hole which was inadequate to remove the core material. Patterns with cavities of the size involved here normally have more than one vent hole or access point.

Detroit Diesel owned the pattern that injured Bloemker. Prior to the incident involving Bloemker, the pattern was used to make cast iron thermostat housing covers for use on Detroit Diesel's Series 149 diesel engine. PTI Industries was the direct supplier of the thermostat housing covers to Detroit Diesel. When the need for the covers arose, Detroit Diesel would contact PTI Industries who would then contact North Manchester to make the covers. North Manchester would use the pattern to make the covers and then send the covers to PTI for finishing work. PTI would then deliver the completed housing covers to Detroit Diesel.

Although Detroit Diesel owned the pattern, North Manchester retained it to make the thermostat housing covers when requested. Prior to the explosion, PTI Industries contacted North Manchester requesting two modifications to the pattern. North Manchester contracted with Allen Pattern Works, Bloemker's employer, to perform the modifications. Detroit Diesel did not request the modifications and had no knowledge that the modifications were being sought or performed. None of the defendants inspected the pattern before it was delivered to Allen Pattern Works.

The identity of the pattern's original manufacturer is unknown. The designated summary judgment materials establish that the pattern was first placed into the stream of commerce more than ten years before Bloemker's accident, although the exact date is also unknown.

Bloemker filed a two-count complaint against Detroit Diesel, Penske Corporation, PTI Industries, and North Manchester. Count I alleged negligence. Count II alleged that the defendants created and maintained a nuisance. Defendant Penske Corporation was subsequently dismissed from the action, with prejudice, pursuant to Bloemker's motion. The trial court also granted Bloemker's motion to dismiss PTI Industries, with prejudice, over the remaining defendants' objection.

Detroit Diesel and North Manchester each filed a motion for summary judgment, claiming that: 1) the pattern did not constitute a nuisance; 2) the statute of repose contained in Indiana's Product Liability Act (the Act) barred any claim based upon a defect in the pattern; and, 3) they did not owe Bloemker a duty upon which to base a negligence action. In response to the defendants' motions, Bloemker voluntarily dismissed the nuisance action. With respect to the negligence count, Bloemker argued that his claim was not subject to the statute of repose because the claim was not a product liability action, and that each defendant owed him a duty to inspect the pattern and to warn him of the defect in the pattern's core, which duty arose out of the defendants' bailment of the pattern to Bloemker's employer. The trial court granted Detroit Diesel's and North Manchester's motions without stating the theory or theories upon which its judgment was based.

Bloemker, 655 N.E.2d at 118-119.

The Indiana Supreme Court granted transfer to consider the case in conjunction with McGlothlin v. M & U Trucking, Inc., 649 N.E.2d 135 (Ind.Ct.App.1995), trans. granted, which presented the same issue of whether a supplier of a chattel has a duty of reasonable care to inspect and discover latent as well as patent defects in the chattel. Bloemker v. Detroit Diesel Corp., 687 N.E.2d 358 (Ind.1997). The Supreme Court rejected the latent/patent distinction that would impose no duty to inspect, discover, and warn of latent defects, and stated that the proper consideration was to look to the Restatement (Second) of Torts Sections 388 and 392 to guide the resolution of these issues. McGlothlin v. M & U Trucking, Inc., 688 N.E.2d 1243, 1245 (Ind.1997), reh'g denied. For this reason, the Court vacated the trial court's entry of summary judgment in Bloemker and remanded the case to the trial court to reconsider the case in light of McGlothlin.

On September 1, 1998, North Manchester filed its second Motion for Summary Judgment contending that it owed no duty to Bloemker. On September 4, 1998, Detroit Diesel filed its second Motion for Summary Judgment contending that it owed no duty to Bloemker under either section 388 or section 392 of the Restatement (Second) of Torts. On December 9, 1998, the trial court granted summary judgment in favor of North Manchester and Detroit Diesel. Bloemker now appeals.

DISCUSSION AND DECISION

I. Supplier under §§ 388 & 392

Initially, we note our standard of review. The purpose of summary judgment is to terminate litigation which can be determined as a matter of law. Funk v. Funk, 563 N.E.2d 127, 129 (Ind.Ct.App.1990), trans. denied. When reviewing the propriety of the grant of summary judgment, we stand in the same position as the trial court. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), reh'g denied, trans. denied. Summary judgment is only appropriate when the moving party demonstrates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). Once the movant has sustained this initial burden, the opposing party must respond by designating all parts of pleadings, depositions, answers to interrogatories, admissions, and any other matters on which it relies which demonstrate that a genuine issue exists for trial. Id. We consider the facts in the light most favorable to the nonmoving party. Id. However, we may sustain the trial court's decision upon any theory supported by the designated materials. T.R. 56(C).

The tort of negligence consists of three elements: 1) a duty owed to the plaintiff by the defendant; 2) a breach of that duty by the defendant; and 3) injury to the plaintiff proximately caused by that breach. J.A.W. v. Roberts, 627 N.E.2d 802, 808 (Ind.Ct.App.1994). The first element, the existence of a duty owed to the plaintiff, is usually a question of law for the court's resolution. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994),trans. denied. Although summary judgment is rarely appropriate in a negligence action, Osmulski v. Becze, 638 N.E.2d 828, 838 (Ind.Ct.App.1994), it may be suitable to determine the legal question of whether a duty exists. Brewster v. Rankins, 600 N.E.2d 154, 156 (Ind.Ct.App.1992). Absent a duty, there can be no breach, and thus, no basis for recovery under a negligence theory. Hawn v. Padgett, 598 N.E.2d 630, 632 (Ind.Ct.App.1992). Therefore, the threshold issue to be determined in this case is whether Detroit Diesel and North Manchester were "suppliers" of the injury-causing pattern in order to impose a duty under either §§ 388 or 392 of the Restatement (Second) of Torts.

Restatement § 388 provides:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Restatement § 392 provides:

One who supplies to another, directly or through a third person, a

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