Stapinski v. Walsh Const. Co., Inc.

Citation383 N.E.2d 473,178 Ind.App. 623
Decision Date27 December 1978
Docket NumberNo. 3-376A48,3-376A48
PartiesMichael L. STAPINSKI, Plaintiff-Appellant, v. WALSH CONSTRUCTION CO., INC., Defendant-Appellee.
CourtCourt of Appeals of Indiana

Saul I. Ruman, Hammond, for plaintiff-appellant.

Robert P. Kennedy, Larry Evans, Valpariso, Richard R. McDowell, James S. Downing, Cadick, Burns, Duck & Neighbours, Indianapolis, for defendant-appellee.

STATON, Judge.

On September 5, 1972, Michael Stapinski sustained serious personal injuries while driving his automobile. Stapinski was injured when a portion of the front drive shaft of a 1964 Ford truck broke loose and flew through the windshield of his car. At the time of the accident, the truck was owned and operated by Security Fence Co., Inc. ("Security"). Security had purchased the truck some fifteen months earlier from Walsh Construction Company ("Walsh"). Walsh had purchased the truck new from a dealer in 1964.

Stapinski's amended complaint named Walsh as one of the defendants. The trial court, in granting a motion by Walsh for summary judgment, entered the following order:

"Court now finds:

"That Walsh Construction sold the truck in question to Security Fence as is with no warranties for a little over $600;

"That Security Fence inspected and examined said truck prior to purchase. The truck had been used for several years by Walsh Construction on their private property and had not been licensed;

"That Security Fence had the truck licensed and inspected and used it on the public highways in this state;

"That approximately 15 months after the sale from Walsh to Security Fence, an accident occurred with the truck which was attributable to the lack of lubrication to one of the universal joints. Lack of lubrication was attributable to a grease fitting;

"That prior to the accident Security Fence knew the grease fitting was missing;

"No steps were taken by Security Fence to replace it;

"That Security Fence used the truck on the highway knowing the fitting was missing;

"Court finds that the law is with the Defendant, Walsh Construction Company, and against the Plaintiff, Michael L. Stapinski.

"IT IS THEREFORE, ORDERED that Judgment be entered in favor of the Defendant, Walsh Construction and against Plaintiff Stapinski.

"ALL OF WHICH IS ORDERED, ADJUDGED AND DECREED by the Court this 19th day of September, 1975."

In his appeal to this Court, Stapinski challenges the propriety of summary judgment under the aforementioned facts.

We reverse.

Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56. In determining whether a genuine issue exists, the facts set forth by the affidavits filed in opposition to the motion for summary judgment must be taken as true, and any doubt must be resolved against the party seeking summary judgment. Union State Bank v. Williams (1976), Ind.App., 348 N.E.2d 683.

It is not disputed that Walsh was the seller of a used motor vehicle and that Stapinski was injured subsequent to the sale as a result of the defective condition of the motor vehicle. Additionally, Stapinski concedes that Walsh was not in the business of selling used motor vehicles. If, under these facts and as a matter of law, there can be no liability on Walsh's part, then the order of summary judgment should be affirmed.

Our courts have not yet decided this precise issue. A number of jurisdictions have imposed liability on used care dealers for injuries caused by vehicles which were defective at the time of the sale. 1 Annot., 53 A.L.R.3d 337 (1973). Those jurisdictions have proceeded on the theory of strict liability as it is embodied in the Restatement (Second) of Torts, § 402A (1965), 2 which reads as follows:

" § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer.

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

"(a) the seller is engaged in the business of selling such a product, and

"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although

"(a) the seller has exercised all possible care in the preparation and sale of his product, and

"(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

Walsh contends that since it is not in the business of selling motor vehicles, it cannot be held liable to Stapinski's injuries. However, § 402A does not stand for the proposition that Only those persons engaged in the business of selling are subject to liability for damages caused by defective products. Rather, it stands for the proposition that only those persons engaged in the business of selling are subject to Strict liability. Comment f to § 402A recognizes the proposition that an "ordinary person" (i. e., one who is not in the business of selling) who makes an isolated sale will be held liable to the buyer or third person for his negligence. Thus, the fact that Walsh is not in the business of selling motor vehicles does not preclude liability. Instead, that fact merely forces Stapinski to prove an additional element, to-wit: negligence on Walsh's part, before he can recover from Walsh.

In order to establish actionable negligence, Stapinski must show: (1) that Walsh owed him a duty; (2) that Walsh breached that duty; and (3) that Walsh's breach was the proximate cause of the damages suffered by Stapinski. Taylor v. Indiana Bell Telephone Company (1970), 147 Ind.App. 507, 262 N.E.2d 399. If, as a matter of law, we find that there was no duty, or if the undisputed facts show that there was no breach or that, if there was a breach, the breach was not the proximate cause of the injuries, then we must affirm the judgment of the trial court.

Walsh contends that it owed no duty to Stapinski. We disagree. The law requires every person to exercise due care to avoid foreseeable injury to others. Lake Shore & M. S. Ry. Co. v. Brown (1908), 41 Ind.App. 435, 84 N.E. 25. Because it is foreseeable that defective motor vehicles could cause injuries to people using the highways in close proximity to the defective vehicle, persons who are aware of the defect are under a duty to exercise due care and to take reasonable precautions to avoid the injuries. The duty to take reasonable precautions is not limited to the owner of the defective vehicle. Ownership is merely one factor to be considered in determining what measures constitute "reasonable precautions."

In reference to the matter before us, we hold that, as a general rule, a non-dealer who sells a used motor vehicle is not under a duty, as part of the sale, to repair any defects which might exist in the vehicle at the time of the sale. 3 This is true of even those defects which make the vehicle dangerous for use on the highways. The duty to make the vehicle safe for use on the highways has been statutorily imposed upon the owner and driver of the vehicle. 4

Implicit in the duty to make the vehicle safe for use on the highways is the duty to make a reasonable inspection of the vehicle to determine if it is defective. However, some defects which make a vehicle dangerous are not discoverable even upon a reasonable inspection. Where a seller is aware of such a defect, public policy demands that we impose upon him a duty of disclosure. To hold otherwise would allow a seller, through his intentional concealment of a dangerous defect, to jeopardize the safety and health of the many people who use our roads and highways.

We therefore adopt, as the law of Indiana, the Restatement, (Second) of Torts, § 388 (1965), which reads as follows:

" § 388 Chattel Known To Be Dangerous For Intended Use. 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."

The authors of § 388 have adopted a very broad definition of "supplier" so as to include "any person, who for any purpose or in any manner gives possession of a chattel for another's use. . . ." § 388, comment c. § 388 does not limit the liability to suppliers of new chattel, nor do we.

Our decision today does not impose upon the seller of a used motor vehicle the duty to disclose all defects existing at the time of the sale. The implied duty placed upon the owner and driver to make a reasonable inspection will provide the seller, in most instances, with sufficient reason to believe that the owner or driver will discover any patent defects prior to operating the vehicle. Thus the seller need not inform the buyer of any patent defects. Nor is the seller obligated to disclose those defects which are "non-dangerous" in their nature. Instead, our holding requires the seller to disclose those defects which make the vehicle dangerous and which the seller has no reason to believe the buyer will discover.

As noted earlier, in determining the propriety of summary judgment, all factual disputes must be resolved in favor of the party opposing the judgment. Resolving the disputed matters in favor of Stapinski, we are...

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    • United States
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    ...Robert Thiele. "The law requires every person to exercise due care to avoid foreseeable injury to others." Stapinski v. Walsh Construction Co. (1978), Ind.App., 383 N.E.2d 473, 476, vacated on other grounds, (1979) 272 Ind. 6, 395 N.E.2d 1251 (vacated on grounds of intervening cause); see L......
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