McGlothlin v. M & U Trucking, Inc.

• Decision Date: 02 December 1997
• Docket Number: No. 53S05-9510-CV-1217,53S05-9510-CV-1217
• Citation: 688 N.E.2d 1243
• Parties: Robert McGLOTHLIN, Appellant (Plaintiff Below), v. M & U TRUCKING, INC., Transamerica Leasing, Inc. and Southern Pacific Transportation Company, Appellees (Defendants Below).
• Court: Indiana Supreme Court

Page 1243

688 N.E.2d 1243

Robert McGLOTHLIN, Appellant (Plaintiff Below), v. M & U TRUCKING, INC., Transamerica Leasing, Inc. and Southern Pacific Transportation Company, Appellees (Defendants Below).

No. 53S05-9510-CV-1217.

Supreme Court of Indiana.

Dec. 2, 1997.

Bruce A. MacTavish, Pardieck, Gill & Vargo, Seymour, John H. Shean, Bloomington, for Appellant.

Stephen R. Pennell, Brent W. Huber, Stuart & Branigin, Lafayette, for appellees Transamerica Leasing, Inc. and Southern Pacific Transportation Company.

Thomas J. Belcher, Kelley Belcher & Brown, Bloomington, for appellee M & U Trucking, Inc.

ON PETITION TO TRANSFER

DICKSON, Justice.

When a defective chattel causes personal injury, should the legal duty owed by a supplier of the chattel rest upon whether the defect is considered "latent" rather than "patent"? We granted transfer to address the continued viability of the latent/patent distinction.

On February 26, 1990, the plaintiff, Robert McGlothlin, an employee of Thomson Consumer Electronics in Bloomington, Indiana, was injured while loading televisions into a semi-trailer when its landing gear ¹ collapsed. The semi-trailer, owned by defendant Transamerica Leasing, Inc. ("Transamerica"), was provided on February 3, 1990, to defendant Southern Pacific Transportation Company ("Southern Pacific"), which transported it by railroad car to Texas, Arkansas, and Missouri. Defendant M & U Trucking, Inc. ("M & U"), took possession of the semi-trailer on February 20, 1990, and transported it to the Thomson Consumer Electronics site. The plaintiff's complaint alleges that each of the defendants "negligently owned, operated and maintained" the trailers, and that their breach of that duty caused the plaintiff's injuries. Record at 24. The plaintiff's expert, in an affidavit, stated that the defendants' repair and inspection procedures for latent defects were inadequate and that the inadequacy "contributed to the collapse of trailer landing gear." Record at 388. Although the plaintiff claimed that "Transamerica's inspection and repair policies did not provide procedures to find latent defects in the landing gear," Record at 367, the trial court entered summary judgment against the plaintiff, concluding, inter alia, that "Indiana law does not impose a duty on [the defendants] to discover latent defects." Record at 1593. McGlothlin is appealing only the grant of summary judgment favoring Transamerica and Southern Pacific. ²

The Court of Appeals, although noting that the affidavit of the plaintiff's experts raised a genuine issue of fact concerning whether there existed a latent defect in the landing gear, nevertheless affirmed because it found, as a matter of law, that no duty existed. The court stated, "[n]o Indiana court has addressed directly the question of a supplier's liability for injury cased by a latent defect in a chattel furnished for the use of another," and concluded that the defendants "did not owe McGlothlin a duty to detect a latent defect in the landing gear." McGlothlin v. M & U Trucking, Inc., 649 N.E.2d 135, 139-40 (Ind.Ct.App.1995).

Shortly after McGlothlin, the Court of Appeals was again faced with this issue in Bloemker v. Detroit Diesel Corp., 655 N.E.2d 117 (Ind.Ct.App.1995), which acknowledged that McGlothlin had analyzed the scope of the duty owed "in terms of the facts and circumstances surrounding the inspection, including the nature of the defect," and held that the duty to inspect, discover, and warn of a defect depends upon whether the defect is patent or latent. Id. at 122-23. However, the Bloemker court was critical of the rationale employed in McGlothlin.

Defining the duty owed in terms of the nature of the defect overlooks the distinction between the existence of a duty and the breach of that duty. The duty would appear to be one of inspection in the first instance because there is no way of knowing the nature of the defect as latent or patent without inspection. The nature of the defect becomes relevant only when determining whether the duty to inspect was breached. Breach of the duty would arise where a supplier of a chattel fails, upon reasonable inspection, to discover a patent defect. Where a latent defect exists, there would be no breach for failing to discover the defect so long as a reasonable inspection was performed.

Id. at 123.

In light of analogous contemporary jurisprudence from this Court, the Bloemker court disagreed with the McGlothlin latent/patent distinction. However, notwithstanding its disagreement, the Bloemker court acknowledged the existence of controlling precedent consistent with McGlothlin, precedent which held that "[t]he duty to inspect arises from knowledge of possible defects or their reasonable probability." Id. (citing Evansville Am. Legion Home Ass'n v. White, 239 Ind. 138, 141, 154 N.E.2d 109, 111 (1958)). We agree with the concerns expressed by the Bloemker court and overrule White.

During the forty-nine years that have elapsed since White, especially in recent years, this Court has discussed the role of duty as one of the elements of the tort of negligence and explored the factors courts use in determining whether a duty exists in a particular case, noting as significant among these considerations the relationship of the parties, the reasonable foreseeability of harm to the person injured, and public policy concerns. See, e.g., Perdue Farms, Inc. v. Pryor, 683 N.E.2d 239, 241 (Ind.1997); Cram v. Howell, 680 N.E.2d 1096, 1097 (Ind.1997); Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d...