Crist v. K-Mart Corp.

• Citation: 653 N.E.2d 140
• Decision Date: 24 July 1995
• Docket Number: K-MART,No. 09A02-9412-CV-742,09A02-9412-CV-742
• Parties: Prod.Liab.Rep. (CCH) P 14,290 Elmer CRIST and Patsy Crist, Appellants-Plaintiffs, v.CORPORATION, Appellee-Defendant.
• Court: Court of Appeals of Indiana

Page 140

653 N.E.2d 140

Prod.Liab.Rep. (CCH) P 14,290

Elmer CRIST and Patsy Crist, Appellants-Plaintiffs, v. K-MART CORPORATION, Appellee-Defendant.

No. 09A02-9412-CV-742.

Court of Appeals of Indiana.

July 24, 1995.

Rehearing Denied Sept. 12, 1995.

Robert Leirer Justice, Logansport, for appellant.

Lynne D. Lidke, Robert L. Browning, Scopelitis, Garvin, Light & Hanson, Indianapolis, for appellee.

OPINION

KIRSCH, Judge.

Elmer and Patsy Crist brought product liability and negligence claims against K-Mart Corporation for injuries Elmer suffered while delivering K-Mart merchandise. The trial court granted summary judgment to K-Mart on the product liability claims, and entered judgment for K-Mart following a bench trial on the negligence claims. The Crists appeal, raising the following issues:

I. Whether Crist was a user or consumer within the meaning of Indiana's Product Liability Act.

II. Whether K-Mart owed Crist a duty to protect him from harm.

We affirm.

FACTS AND PROCEDURAL HISTORY

Elmer Crist is a truck driver who was employed by Hi-Way Dispatch, Inc. Hi-Way is an independent trucking company hired by K-Mart to transport K-Mart's merchandise from its distribution centers to its retail stores. Crist was assigned to transport K-Mart merchandise in a Hi-Way tractor-trailer from a distribution center in Ohio to various retail stores in West Virginia and Virginia. K-Mart's employees loaded the trailer at the distribution center and sealed it prior to transferring it to Crist for transportation to the retail stores. K-Mart employees would then break the seal when Crist arrived at a retail store. Once the seal was broken, Crist would unload the trailer. Hi-Way paid Crist additional compensation for the unloading.

On April 23, 1991, Crist was injured while unloading K-Mart's merchandise at one of the retail stores. Crist was standing on a box inside the trailer, attempting to reach another box located at the top of a stack, when the box upon which Crist was standing collapsed. Crist fell to the floor of the trailer and sustained injury.

The trial court granted K-Mart partial summary judgment on the Crist's product liability claims, finding that Crist was not a "user or consumer" as that term is defined in Indiana's Product Liability Act (the Act), and that K-Mart was entitled to judgment as a matter of law. Following a bench trial on the negligence claims, the court entered judgment in K-Mart's favor with specific findings of fact and conclusions of law.

DISCUSSION AND DECISION

I. PRODUCT LIABILITY

Crist argues that the trial court erred by determining that he was not a user or consumer of the box. The Act defines "user or consumer" as:

"[A] purchaser, any individual who uses or consumes the product, or 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 any bystander injured by the product who would reasonably be expected to be in the vicinity of the product during its reasonably expected use."

IC 33-1-1.5-2 (1988 Ed.). The trial court determined that this definition, as interpreted in Thiele v. Faygo Beverage, Inc. (1986), Ind.App., 489 N.E.2d 562, trans. denied, warranted a summary judgment in K-Mart's favor.

When reviewing a decision on a summary judgment motion, this court applies the same standard as the trial court. Selleck v. Westfield Ins. Co. (1993), Ind.App., 617 N.E.2d 968, 970, trans. denied. Summary judgment shall be granted if the designated evidentiary matter demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Indiana Dep't of Pub. Welfare v. Murphy (1993), Ind.App., 608 N.E.2d 1000, 1002. All facts and reasonable inferences must be construed against the moving party. Sizemore v. Arnold (1995), Ind.App., 647 N.E.2d 697, 699. We will affirm a summary judgment ruling on any legal theory which is consistent with the designated evidence in the record. Wickey v. Sparks (1994), Ind.App., 642 N.E.2d 262, 265, trans. denied.

In Thiele, the plaintiff, a Kroger employee, was injured while handling a case of Faygo soda pop. As Thiele was lifting the case, a piece of glass flew up and struck his eye. Thiele sued Faygo on a product liability theory, alleging that the design of the soda pop case, a cardboard box open on the top with plastic wrapped around it, was defective because it created a "trampoline effect" which caused the glass to fly off the plastic into Thiele's eye.

In affirming the entry of summary judgment in Faygo's favor, this court held that Thiele was not a "user or consumer" within the meaning of the Act. We determined that as a " 'middle man' employee at the distribution level of his employer's business who handled Faygo's product as it flowed through the stream of commerce toward the retail purchaser[,]" id., 489 N.E.2d at 585, Thiele was not within the class of plaintiffs intended to be protected by the Act. Id. at 588. Rather, "[i]t appears the legislature intended 'user or consumer' to characterize those who might foreseeably be harmed by a product at or after the point of its retail sale or equivalent transaction with a member of the consuming public." Id. at 586 (emphasis in original; footnote omitted). Ultimately, we determined that "our legislature has required a 'sale' to a 'first consuming entity' before the protection afforded by the Act is triggered[.]" Id. at 588.

Crist suggests that we revisit the analysis developed in Thiele. Indeed, as K-Mart conceded in oral argument, the principles espoused in Thiele are overly broad. Even the author of Thiele, Judge Miller, recognized the difficulty inherent in the result reached in that case when he discussed the amendment adding bystanders to the Act, ¹ stating:

"We note that the rationale behind extending the protection of strict liability theory to bystanders seems equally applicable to the employees of those entities in the distributive chain preceding the sale of a product to the 'first consuming entity.' Such an employee and such bystander are both foreseeably subject to harm caused by a defective product; neither is able to protect himself from such harm by choosing to deal with only reputably safe products. Thus, it would seem that a person in Robert Thiele's position in the chain of distribution of a product from manufacturer to consuming entity is as deserving of the protection of our Product Liability Act as any bystander."

Id. While we believe that the same logical inconsistency continues to exist, we need not resolve it here because there is an alternative basis for affirming the summary judgment in favor of K-Mart. See Wickey, 642 N.E.2d at 265 (summary judgment ruling may be affirmed on any legal theory which is consistent with the designated evidence in the record).

The alternative basis is that K-Mart was not a seller of the boxes. K-Mart asserts that, if anything, it is an "occasional seller" of the boxes and is not engaged in the business of selling the boxes as the Act requires. ² The Act defines a seller as "a person engaged in business as a manufacturer, a wholesaler, a retail dealer, a lessor, or a distributor." IC 33-1-1.5-2 (1988 Ed.). In Lucas v. Dorsey Corp. (1993), Ind.App., 609 N.E.2d 1191, trans. denied, we considered the question of who qualifies as a seller within the meaning of the Act. As stated in Lucas:

"The Products Liability Statute applies to a seller of a defective product provided the seller is 'engaged in the business of selling such a product.' See IND.CODE § 33-1-1.5-3(a)(1). However, the occasional seller who is not engaged in that activity as part of his business is not liable in products liability. Perfection Paint [& Color Co.] v. Konduris [1970], 147 Ind.App. 106, 117, 258 N.E.2d 681, 686."

Id., 609 N.E.2d at 1202.

In support of its summary judgment motion, K-Mart designated the affidavit of its transportation manager, Joseph Lody. Mr. Lody averred that the trailer Crist was transporting was loaded at the distribution center with boxes containing K-Mart products. He stated that "The boxes were not for sale, either on a wholesale or retail basis; rather, it was the products within the boxes that were to be sold." Record at 35 (emphasis in original). Further, Mr. Lody stated that K-Mart was not in the business of selling the boxes; instead, it was in the business of selling the products contained in those boxes.

Mr. Lody's affidavit was sufficient to satisfy K-Mart's burden, as the moving party, of demonstrating "the absence of any genuine issue of fact as to a determinative issue[.]" Jarboe v. Landmark Community Newspapers of Indiana, Inc. (1994), Ind., 644 N.E.2d 118, 123. See also Green v. Whiteco Industr., Inc. (7th Cir.1994), 17 F.3d 199 (affidavit stating defendant was not a manufacturer, retailer or wholesaler of sound systems, but was in the business of outdoor advertising and ownership of hotels, restaurants, and entertainment centers, was sufficient in summary judgment proceedings to establish the absence of any credible evidence that defendant was a seller under Indiana's Product Liability Act). In other words, K-Mart established the absence of any genuine issue of fact as to whether it was a seller of the boxes.

It was then Crist's burden, as the non-moving party, to come forward with contrary evidence. Jarboe, 644 N.E.2d at 123. Crist failed in this burden. He asserted that a genuine issue of material fact existed as to whether K-Mart was a seller of the boxes because it would sell certain products in the original box, such as a case containing several cans of motor oil. K-Mart would also gratuitously provide boxes upon its customers' request for their use in transporting goods they had purchased. These types of sporadic and isolated dealings do not constitute the type of regular business activity necessary to classify K-Mart as a seller of boxes. See Keen v....