Masterman v. Veldman's Equipment, Inc.
| Decision Date | 21 November 1988 |
| Docket Number | No. 71A03-8707-CV-192,71A03-8707-CV-192 |
| Citation | 530 N.E.2d 312 |
| Court | Indiana Appellate Court |
| Parties | Prod.Liab.Rep. (CCH) P 12,015 Hugh L. MASTERMAN, Jean Masterman, Plaintiffs-Appellants, v. VELDMAN'S EQUIPMENT, INC. and Veldman's Lawn & Garden, Defendants-Appellees. VELDMAN'S EQUIPMENT, INC. and Veldman's Lawn & Garden, Third-Party Plaintiffs, Appellees, v. FISHER ENGINEERING, INC., Third-Party Defendant, Appellee. |
Catherine M. Rohrs, Matthews-Rohrs & Associates, South Bend, for plaintiffs-appellants.
Robert J. Palmer, John J. Lorber, May, Oberfell & Lorber, South Bend, for defendants-appellees.
Mastermans commenced this action to recover for personal injuries they sustained in an automobile collision which occurred on Grape Road in St. Joseph County on April 9, 1982. Grape Road is five lanes wide where the collision occurred. Two lanes are northbound, two are southbound and the center lane is available for motorists traveling in either direction who wish to make a left turn.
The undisputed facts disclose that a northbound pickup truck driven by James D. Reynolds collided with a northbound auto driven by Tennie Lee Bowman. The pickup then veered left across the southbound lanes and collided with Masterman's car which was southbound in the outside southbound lane. At the time of the collision there was attached to the front of the pickup a snowplow mount which had been manufactured by Fisher Engineering, Inc. and which had been sold to Reynolds and installed by Veldman's Equipment, Inc. and Veldman's Lawn & Garden.
Mastermans brought suit against Reynolds, the other driver, and against Veldman's, the seller, alleging negligence and strict liability. The seller filed a third party complaint against the manufacturer for indemnity, and on plaintiffs' motion the action against the driver, Reynolds, was dismissed. Subsequently, the seller and the manufacturer sought summary judgment. Their motions were granted and this appeal followed.
The claims against the seller and manufacturer are based upon negligence and strict liability in tort. In essence they contend that the snowplow mount affixed to the front of the pickup truck which struck their car was a dangerous instrumentality and that its presence on the pickup truck caused them to suffer more serious injuries than would have occurred had the mount not been there or had a safer mount been there instead. They concede that the mount in no way contributed to causing the collision to have occurred.
The complaint filed by Mastermans alleged negligence, strict liability and breach of implied warranty. In addition, and although the parties have ignored any distinction for their purposes, we note that prior to the 1983 amendments 1 the Indiana product liability statute, IC 33-1-1.5-1 et seq., provided:
Sec. 1. This chapter shall govern all products liability actions, including those in which the theory of liability is negligence or strict liability in tort; provided however, that this chapter does not apply to actions arising from or based upon any alleged breach of warranty.
As a preliminary matter we will briefly consider the various theories of liability for the sake of clarity.
The assertion of breach of implied warranty sounding in tort does not state a basis for liability distinct from what we may refer to as the strict liability now imposed by statute and formerly imposed through Indiana's adoption of Sec. 402A of the Restatement of Torts (Second). 2 Corbin v. Coleco Industries, Inc. (7th Cir.1984), 748 F.2d 411; Thiele v. Faygo Beverage, Inc. (1986), Ind.App., 489 N.E.2d 562.
Secondly, we hold that the version of the statute applicable to Mastermans' claim does not recognize a distinction between theories of strict liability and negligence where the basis for liability asserted is that a product was sold, leased or otherwise put into the stream of commerce in a defective condition unreasonably dangerous to the user or consumer, etc. (Compare Baker v. Midland-Ross Corp. (1987), Ind.App., 508 N.E.2d 32 recognizing a distinct claim for post-delivery negligence.) This is simply to say that under the original version of the act, proof of liability as therein defined may include a provable act of negligence or not. It does not matter.
The first portion of Mastermans' argument addresses whether Indiana does, or should, recognize an action for "enhanced injuries." Such an action is defined as one brought against a party whose activity (product) caused the plaintiff's injuries to be exacerbated although that activity was not a contributing cause of the occurrence from which all the injuries arose, i.e. the collision. The term, along with "second collision" (referring to the collision of the injured party with the inside of the vehicle in which he is riding) and "crashworthiness" have occasionally been used to surmount the requirement in a common law action that causation must relate to the occurrence which produces the injuries, especially in states that have not adopted a theory of strict liability akin to Sec. 402A. See, e.g., Seese v. Volkswagenwerk A.G. (3rd Cir.1981), 648 F.2d 833. 3
In Miller v. Todd (1988), Ind.App., 518 N.E.2d 1124 the court noted that in Indiana the doctrine is merely a variation of strict liability theory. 518 N.E.2d 1126. We agree with this assessment, at least concerning claims within the ambit of the product liability statute. The liability provision, IC 33-1-1.5-3, 4 in force in 1982 stated:
The common law of this state with respect to strict liability in tort is codified and restated as follows:
(a) One who sells any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm thereby caused to the user or consumer or to his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and, if:
(1) the seller is engaged in the business of selling such a product, and
(2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(b) The rule stated in Subsection (a) applies although
(1) the seller has exercised all possible care in the preparation and sale of this product, and
(2) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
We first note the legislative declaration that it was codifying and restating the common law of the state. Under such circumstances the legislature is presumed to know the common law and to have intended to carry it into the statute except where it expressly indicates otherwise. Miles v. State (1920), 189 Ind. 691, 129 N.E. 10; Chicago & E.R. Co. v. Luddington (1910), 175 Ind. 35, 93 N.E. 273. See also Berlin v. Nathan (1978), 64 Ill.App.3d 940, 21 Ill.Dec. 682, 381 N.E.2d 1367; 26 I.L.E. Statutes Sec. 128, p. 339; 2A Sutherland's Statutory Construction (Sands 4th Ed.) Sec. 50.01, 50.02. The rule is a corollary to the rule that statutes in derogation of the common law are to be strictly construed.
Prior to enactment of the statute Indiana had expressly adopted the statement of liability contained in Sec. 402A, Restatement of Torts, Second, which also provided liability "for physical harm thereby caused to the ultimate user or consumer, or to his property." Ayr-Way Stores, Inc. v. Chitwood (1973), 261 Ind. 86, 300 N.E.2d 335.
Considering both the common law and the plain language of the statute, the statement of liability simply "for harm caused" imposes no requirement like that of negligence law that the defective/dangerous condition of the product must be a cause of some occurrence, or collision, without which no injuries would have occurred. We, therefore, conclude that Mastermans may state a claim under IC 33-1-1.5-3 for their injuries specifically and additionally caused by the product even though that product did not contribute to causing the collision to occur. Accord Miller v. Todd, supra.
We turn then to the specifics of their claim and whether summary judgment was appropriately entered against them.
Concerning summary judgment, it is sufficient to note that it is inappropriate if the materials before the court show the existence of a genuine issue of fact for trial that may be outcome determinative, or if the moving party fails to otherwise establish that it is entitled to judgment as a matter of law. However, the party opposing the motion must come forward with probative evidence to controvert a showing by the movant that no genuine issue exists. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51.
Did the Mastermans properly qualify as plaintiffs in an action invoking IC 33-1-1.5-3? (See Thiele, supra, part that employees of a wholesale distributor are not.) The question is occasioned by the fact that the 1983 amendments to the act added to the definition of "user or consumer" set out in IC 33-1-1.5-2 the phrase, "or any bystander injured by the product during its reasonably expected use." Since the legislature is ordinarily presumed to intend to change the law when it amends a statute, it is arguable that the amendment is evidence that bystanders were not protected under the original version of the act applicable to Mastermans.
That argument fails in this case. At times a legislative amendment that adds language to a section merely declares expressly what was always intended and was merely implied in a prior version. H.W.K. v. M.A.G. (1981), Ind.App., 426 N.E.2d 129; Bowman v. State (1979), Ind.App., 398 N.E.2d 1306.
As we have already determined, the product liability statute expressly declared that it was intended to codify Indiana common law and the legislative intent was to carry that law into the statute. The Indiana common law had recognized that a seller, etc. of an unreasonably dangerous defective...
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