FILED
Mar 27 2018, 8:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John P. Daly, Jr. Jeffrey J. Mortier
Jared Harts Maggie L. Smith
Golitko & Daly, P.C. Blake N. Shelby
Indianapolis, Indiana Frost Brown Todd, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Brewer, Individually and March 27, 2018
as Personal Representative of the Court of Appeals Case No.
Estate of Rickey A. Brewer, 55A05-1709-CT-2168
Deceased, Appeal from the Morgan Circuit
Appellants, Court
The Honorable Matthew G.
v. Hanson, Judge
Trial Court Cause No.
PACCAR, Inc. d/b/a 55C01-1605-CT-691
PETERBILT MOTORS CO.,
Appellee.
Barnes, Judge.
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Case Summary
[1] Angela Brewer, individually and as personal representative of the Estate of
Rickey Brewer, appeals the grant of summary judgment in favor of PACCAR,
Inc., d/b/a Peterbilt Motors Company (“PACCAR”). She also appeals the
denial of her motion for partial summary judgment. We reverse and remand.
Issue
[2] The primary issue before us is whether, as a matter of law, PACCAR cannot be
held liable for providing parts of a semi-tractor that lacked allegedly necessary
safety features, where the semi-tractor ultimately was assembled by another
company and the semi-tractor caused Rickey’s death.
Facts
[3] W&W Transport (“W&W”) is an Ohio-based trucking company that owns and
operates a number of semi-tractors and trailers. Rather than purchase whole,
newly-constructed semi-tractors, W&W often elects instead to assemble its own
vehicles. It does so by combining pre-existing engines, transmissions, and
exhaust systems with a “glider kit” manufactured by PACCAR. A glider kit
generally consists of a semi-tractor cab and chassis but no powertrain.
PACCAR also constructs entirely new semi-tractors, complete with engines and
transmissions.
[4] In February 2015, W&W ordered a Peterbilt (PACCAR) glider kit from a
Peterbilt dealer in Ohio, using specifications similar to other glider kits W&W
had purchased in the past. PACCAR then constructed the glider kit according
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to those specifications. This glider kit consisted of a cab, chassis, wiring, drive
axles, suspension system, and partial braking and steering systems. The cab did
not have a rear window; W&W could have requested PACCAR include such a
window as an optional feature but it was not a standard feature. W&W
subsequently added a “headache rack” to the rear of the cab, which is a
bulkhead intended to prevent any cargo behind the cab from crashing into the
cab in the event of an accident. PACCAR contends this “headache rack”
would have obscured a rear window in the cab if one had been installed. The
glider kit also did not come with a backup alarm; again, W&W could have
ordered such an alarm as an optional feature, but it was not standard on
PACCAR glider kits. W&W did request that the glider kit have wiring to
install a beacon/strobe light, but it ultimately did not install such a light when it
assembled the semi-tractor. PACCAR did not offer rearview cameras as either
a standard or optional feature on its glider kits. Such cameras could have been
installed after-market if a customer ordered a “SmartNav” dash screen display
from PACCAR, but the “SmartNav” system was not compatible with the older
engine W&W intended to use with the glider kit that it ordered. The glider kit
also did not come with any warning labels regarding the danger of backing up
the semi-tractor.
[5] When PACCAR delivered the glider kit to W&W, it also sent a standard
“Information Letter,” explaining that the glider kit was not a complete motor
vehicle and that whoever added a powertrain to the glider kit was “responsible
for understanding and ensuring the completed vehicle is in compliance with
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regulations regarding certification, VIN assignment, and registration before
placing the vehicle in service.” App. Vol. II p. 168. The letter also stated that
the glider kit was in conformance with certain federal motor vehicle safety
standards, including those governing rearview mirrors. It also stated that the
glider kit was not in conformance with certain other safety standards and that
the final vehicle assembler was responsible for ensuring compliance with those
standards. None of the mentioned standards appear to govern the safety of
backing up a semi-tractor without a trailer attached.
[6] W&W combined the glider kit with an engine, transmission, and exhaust
system. The engine and transmission had been salvaged from an older semi-
tractor. W&W then obtained a certificate of title for the semi-tractor from the
Ohio State Highway Patrol so it could be placed into operation.
[7] On March 2, 2016, Rickey was working for his employer, Chicago Bridge &
Iron, as a construction foreman at an Indianapolis Power & Light (“IPL”) plant
that was under construction in Martinsville. W&W employee Raymond Miller
was onsite making a delivery, operating the semi-tractor W&W had constructed
using the PACCAR glider kit. Rickey was standing behind the semi-tractor,
which did not have a trailer attached at the time, when Miller began to back up.
Miller did not see Rickey, and Rickey was pinned between the semi-tractor and
a detached trailer, killing him. Miller later stated that the semi-tractor had a
forty-foot blind spot behind it. After the accident, W&W began installing
backup alarms on all its semi-tractors and was researching how to install
rearview cameras on them as well.
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[8] Angela, Rickey’s widow, sued IPL, W&W, Miller, and PACCAR for wrongful
death. She subsequently reached settlements with W&W and Miller, and they
were dismissed from the case. IPL also was granted summary judgment
without opposition from Angela, leaving PACCAR as the only remaining
defendant. The complaint as to PACCAR alleged that the glider kit it provided
W&W was unreasonably dangerous and defective because it lacked safety
features for backing up the completed semi-tractor.
[9] PACCAR moved for summary judgment, arguing that it did not manufacture
the semi-tractor and that the component part or parts it made—the glider kit—
was not defective or unreasonably dangerous. In response, Angela designated a
report prepared by and parts of a deposition given by Bryan Bloch, an expert in
motor vehicle safety. Bloch opined that the Peterbilt 389 model manufactured
by PACCAR was defective in several respects: for not having as standard
features a backup alarm, a rearview camera, a better mirror system, flashing
backup lights, and warning labels regarding the dangers of backing up the semi-
tractor.1 Moreover, Bloch believed that the presence of these safety features
would have prevented Rickey’s death. Angela also cross-moved for partial
summary judgment on the issue of whether PACCAR owed a duty to Rickey as
a bystander and not as the ultimate purchaser or consumer of the glider kit.
1
It appears Bloch may have specifically analyzed a Peterbilt 389 semi-tractor that had been fully constructed
by PACCAR, not the glider kit itself. However, the completed 389 semi-tractor had the same cab and other
features as the glider kit W&W used to construct its semi-tractor.
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[10] On September 11, 2017, the trial court granted PACCAR’s motion for
summary judgment and denied Angela’s motion for partial summary judgment.
On September 15, 2017, Angela filed a motion to correct error, along with a
boilerplate order for the trial court to sign to set a hearing on the motion.
Instead, the trial court stamped this order “DENIED” on the same day it was
filed. App. Vol. II p. 19. The trial court did not enter a separate order denying
the motion to correct error, and the CCS only states that it issued an “Order
Denying . . . Setting Hearing Date.” Id. at 15. Angela filed a notice of appeal
on September 20, 2017. On September 28, 2017, the trial court clerk filed its
notice of completion of the clerk’s record for Angela’s appeal. On September
29, 2017, PACCAR filed a motion with the trial court reserving its right to file a
response to Angela’s motion to correct error should it become necessary in the
future. The case is now before this court for decision.
Analysis
[11] Before turning to the merits, we note a procedural issue that PACCAR hints at
but neither party explores. That is, it is possible that Angela’s notice of appeal
was prematurely filed. PACCAR suggests that the trial court’s September 15,
2017 order only denied Angela’s request for a hearing on her motion to correct
error and was not a ruling on the merits of that motion; the trial court never
clarified whether its September 15, 2017 order was intended to be a final ruling
on the motion to correct error. The time period for a deemed denial of the
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motion to correct error had not yet passed when Angela filed her notice of
appeal on September 20, 2017.2
[12] Our supreme court has made clear that an appellate court “is not deprived of
jurisdiction if the notice is untimely—meaning belated or premature.” In re D.J.
v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017). The only two
requirements for appellate jurisdiction are “(i) the trial court must have entered
an appealable order, and (ii) the trial clerk must have entered the notice of
completion of clerk’s record on the CCS.” Both requirements have been met
here. An appellant who files a premature notice of appeal technically forfeits
his or her right to appeal and it would not be erroneous to dismiss the appeal,
but this court “has jurisdiction to disregard the forfeiture and resolve the
merits.” Id. at 579. At oral argument, counsel for PACCAR requested that this
court resolve this case on the merits. In light of that request, we will do so.
I. Summary Judgment
[13] We review a grant of summary judgment de novo. Hughley v. State, 15 N.E.3d
1000, 1003 (Ind. 2014). “Drawing all reasonable inferences in favor of . . . the
non-moving parties, summary judgment is appropriate ‘if the designated
2
A motion to correct error is deemed denied if it is not set for hearing within forty-five days, or if it is not
ruled on within thirty days of a hearing, or if it is not ruled on within forty-five days after the motion was
filed “if no hearing is required . . . .” Ind. Trial Rule 53.3(A). Additionally, Trial Rule 59(E) allows an
opposing party fifteen days to respond to a motion to correct error. Opinions from our supreme court and
this court have addressed the appellate effect of belated grants of motions to correct error after they have been
deemed denied. See, e.g., Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000). That line of cases has
not addressed the effect of filing a notice of appeal before a motion to correct error is either expressly or
deemed denied.
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evidentiary matter shows 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.’” Williams
v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is
‘material’ if its resolution would affect the outcome of the case, and an issue is
‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of
the truth, or if the undisputed material facts support conflicting reasonable
inferences.” Id.
[14] A summary judgment movant bears the initial burden of demonstrating the lack
of any genuine issue of fact on a dispositive issue; if the movant does so, the
nonmovant then must come forward with contrary evidence showing an issue
for trial. Hughley, 15 N.E.3d at 1003. This court must carefully assess the grant
of summary judgment in order to ensure that Angela was not improperly denied
her day in court. See id. Although summary judgment is desirable for disposing
of cases where only legal issues exist, it is not the same as a summary trial and
it should not be granted even if it appears the nonmovant is unlikely to prevail
at trial. Id. “Indiana consciously errs on the side of letting marginal cases
proceed to trial on the merits, rather than risk short-circuiting meritorious
claims.” Id. “Summary judgment should not be granted when it is necessary to
weigh the evidence.” Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d
282, 285 (Ind. 1991).
[15] The Indiana Product Liability Act (“IPLA”) governs all actions brought against
a manufacturer or seller of a product for physical harm caused by the product,
“regardless of the substantive legal theory or theories upon which the action is
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brought.” Ind. Code §§ 34-20-1-1; 34-6-2-115. A plaintiff in a strict product
liability case must prove: “(1) the product was defective and unreasonably
dangerous; (2) the defective condition existed at the time the product left the
defendant’s control; and (3) the defective condition was the proximate cause of
the plaintiff’s injuries.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.
2007).
[16] However, Angela does not claim the glider kit was manufactured in a defective
way—i.e., it was constructed exactly as it was designed and intended to be
constructed. Rather, Angela’s claim is that the glider kit was defectively
designed because it lacked a number of safety features. In such a case, the
IPLA specifies that a negligence standard applies, not a strict liability standard.
TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 n.2 (Ind. 2010).
Specifically,
in an action based on an alleged design defect in the product or
based on an alleged failure to provide adequate warnings or
instructions regarding the use of the product, the party making
the claim must establish that the manufacturer or seller failed to
exercise reasonable care under the circumstances in designing the
product or in providing the warnings or instructions.
I.C. § 34-20-2-2 (emphasis added). Besides the different standard of care, a
plaintiff is not required to present any additional proof in a defective design case
based on negligence than in a strict liability case. See TRW, 936 N.E.2d at 209.
[17] The IPLA also states in part:
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A product is in a defective condition under this article if, at the
time it is conveyed by the seller to another party, it is in a
condition:
(1) not contemplated by reasonable persons among those
considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or
consumer when used in reasonably expectable ways of handling
or consumption.
I.C. § 34-20-4-1. “Unreasonably dangerous has been defined as dangerous to
an extent beyond that which would be contemplated by the ordinary consumer
with the ordinary knowledge common to the community as to its
characteristics.” Baker v. Heye-Am., 799 N.E.2d 1135, 1140 (Ind. Ct. App.
2003), trans. denied; see also I.C. § 34-6-2-146. “A product may be dangerous in
the ordinary sense but not ‘unreasonably dangerous’ for product liability
purposes under the IPLA.” Baker, 799 N.E.2d at 1140.
[18] The question of whether a product is unreasonably dangerous usually is a
question of fact for trial. Id. “Moreover, reasonably expectable use, like
reasonable care, involves questions concerning the ordinary prudent person, or
in the case of products liability, the ordinary prudent consumer.” Id. The
manner of use required to establish “reasonably expectable use” under the
circumstances of each case is a matter peculiarly within the province of a fact-
finder. Id.
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[19] There is no dispute that the PACCAR glider kit was a component part of the
semi-tractor ultimately assembled by W&W by adding an engine, transmission,
and exhaust system. The IPLA applies not only to manufacturers of a final
product, but also manufacturers of a component part of a product where there is
proof that the part itself was defective. I.C. §§ 34-20-2-3; 34-6-2-77. PACCAR
notes, in part, that because W&W, not PACCAR, was the final manufacturer
of the semi-tractor, responsibility for compliance with various federal
registration, certification, and safety requirements for the semi-tractor fell to
W&W. See 49 C.F.R. § 567.5(d)(1). However, federal motor vehicle safety
regulations do not preempt state law product liability claims, unless a state
standard directly conflicts with federal objectives. See Cook v. Ford Motor Co.,
913 N.E.2d 311, 320-21 (Ind. Ct. App. 2009), trans. denied. Even if the glider kit
complied with all federal safety regulations, it would only create a rebuttable
presumption that the product was not defective. See I.C. § 34-20-5-1. Angela
designated sufficient evidence to rebut any such presumption, if one even
existed, through her expert Bloch’s deposition and report, identifying several
safety features that he says should have been standard on semi-tractors such as
the one W&W ultimately assembled using PACCAR’s glider kit. Although
Bloch apparently analyzed a completed Peterbilt 389 semi-tractor and not the
glider kit itself, all of the missing safety features he identified were integral to
the glider kit, not the engine, transmission, and exhaust system that W&W
installed to complete the semi-tractor.
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[20] PACCAR also does not dispute that if it was the final manufacturer of the
completed semi-tractor, Angela would have presented sufficient evidence for
summary judgment purposes—through Bloch’s deposition and report—to
sustain a claim against PACCAR that the semi-tractor was defectively designed
and unreasonably dangerous under the IPLA. This court has held, “A product
may be unreasonably dangerous due to the failure to provide feasible safety
features to protect the user from foreseeable mishaps.” FMC Corp. v. Brown, 526
N.E.2d 719, 726 (Ind. Ct. App. 1988), adopted in relevant part, 551 N.E.2d 444
(Ind. 1990). FMC, however, is distinguishable from this case because it was a
suit against the final manufacturer of a product, not the maker of a final
product’s component part.
[21] The essence of PACCAR’s argument is that, as component part manufacturer,
it was entitled to leave responsibility for the ultimate safety of the completed
semi-tractor in the hands of W&W, or in other words that it was entirely up to
W&W to order those safety features it felt was necessary for the glider kit. If
W&W did not order those features, PACCAR contends, it was entirely
W&W’s fault for not doing so. PACCAR argues that it had no obligation to
include safety features on the glider kit because it could not foresee precisely
how W&W intended to use the completed semi-tractor or in what environment
it would be used.
[22] There is little case law from Indiana state courts that addresses the scope of a
component part manufacturer’s liability under the IPLA for a completed
product’s lack of safety features. One that does so, though without using the
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phrase “component part manufacturer,” is Shanks v. A.F.E. Industries, Inc., 275
Ind. 241, 416 N.E.2d 833 (1981). There, A.F.E. manufactured a grain dryer
that could be used either manually, or automatically “in conjunction with other
auxiliary equipment, which auxiliary equipment could assume a variety of
forms and functions, depending upon the desires of the owner.” Shanks, 275
Ind. at 245, 416 N.E.2d at 835. After the grain dryer was automated and
incorporated into a grain elevator complex, a high school student was injured
by a part of the grain dryer while working in the complex. The student sued
A.F.E. under the IPLA, alleging: (1) A.F.E. had failed to give adequate
warnings regarding the dangers of the grain dryer; and (2) the grain dryer was
defectively designed because it was not equipped with safety features that
allegedly could have prevented the accident. As in this case, there was no claim
that the grain dryer was defectively manufactured.
[23] On appeal from a grant of judgment on the evidence in favor of A.F.E., our
supreme court affirmed. Regarding the failure to warn claim, the court held
that A.F.E. only had a duty to instruct and warn the owner/constructor of the
grain complex, Whittington, about any inherent dangers of the grain dryer,
because Whittington was a sophisticated purchaser who designed the grain
complex and was fully aware of the grain dryer’s operations and dangers. Id. at
249, 416 N.E.2d at 837-38. Any responsibility for warning the high school
student, the “ultimate user” of the grain dryer, was Whittington’s, not A.F.E.’s.
See id.
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[24] The court also held that, as a matter of law, A.F.E. could not be held liable for
not incorporating additional safety features into the grain dryer. The court
explained:
Because the dryer could be used as a component in a
multifaceted complex such as the one created here by
Whittington, to allow a jury to examine, in retrospect, the
wisdom of A.F.E.’s incorporating some lights or bells into the
dryer is to permit nothing more than speculation. A complex
operation such as this one could have taken many forms,
depending on the needs of the owner and the imagination of the
designer. Here, Grammer [the company managed by
Whittington that operated the grain elevator complex], through
Whittington, solicited four different plans before finally selecting
the one to be used. The need for any warning devices, and the
circumstances surrounding their use, would, of course, depend
upon the operation of the whole complex, based upon the
features of its design. Thus, because the dryer could be
incorporated into a variety of grain handling systems, the
desirability or need for such devices could be determined only
after any given type of complex had been chosen and created. Of
course, A.F.E. here had no way of knowing exactly how
Whittington would employ its dryer and, hence, the specific
context in which such warning devices could or should be used
relative to the operation of an elevator leg. By contrast,
Grammer, through Whittington, had extensive knowledge of
these factors, not only concerning the dryer, but concerning the
entire grain handling operation.
Id. at 249-50, 416 N.E.2d at 838. The court also observed that the injury to the
student was the result “of a situation which was especially unforeseeable to
A.F.E.” and there was no probative evidence that anything A.F.E. did or did
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not do proximately caused or contributed to the student’s injury. Id. at 250-51,
416 N.E.2d at 838.
[25] We conclude the evidence here is much different than in Shanks. Unlike the
grain dryer there that could be used in a variety of unforeseeable configurations,
the PACCAR glider kit was basically a complete semi-tractor that lacked only a
powertrain. In other words, it is difficult if not impossible to conceive of any
possible use of the glider kit that would not involve it being given a powertrain
and regularly driven in reverse; and, in any conceivable use, the completed
semi-tractor would have a large blind spot directly behind it that foreseeably
could lead to precisely the type of tragedy that occurred here.
[26] There are several federal court cases purporting to apply the IPLA in diversity
jurisdiction cases; one upon which PACCAR heavily relies is Anderson v. P.A.
Radocy & Sons, Inc., 865 F. Supp. 522 (N.D. Ind. 1994), aff’d 67 F.3d 619 (7th
Cir. 1995). In that case, an electrician was electrocuted while working in a
crane manufactured by Radocy that had a metal working bucket, an
uninsulated crane arm, and a generator without a ground fault interrupter. The
electrician’s widow sued Radocy, arguing that the crane was defective under
the IPLA, in part because the crane did not have a fiberglass bucket, which
could have prevented the electrocution. The electrician’s employer could have
purchased a fiberglass bucket for the crane from Radocy as an option but chose
not to do so.
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[27] The federal district court granted Radocy’s motion for summary judgment,
which was affirmed by the Seventh Circuit. In part, the district court held that
“a party cannot be liable for failing to equip its products with an optional device
that the employer of the plaintiff knowingly rejected.” Anderson, 865 F. Supp.
at 531 (citing Scallan v. Duriron Co., Inc., 11 F.3d 1249, 1254 (5th Cir. 1994)).
Additionally, the district court held “a product is not defective for failing to do
that which it was not designed to do.” Id. (citing Cox v. American Aggregates
Corp., 580 N.E.2d 679, 685 (Ind. Ct. App. 1991), trans. denied). Thus, according
to the court, “the metal basket, metal arm, and generator were not intended to
prevent electrical shock or fatal electrocution, and therefore, the products are
not defective.” Id.
[28] We first note that the district court’s holding that “a product is not defective for
failing to do that which it was not designed to do” is an incorrect or incomplete
statement of current Indiana law. Clearly, under Indiana Code Section 34-20-2-
2, a product may be designed in such a way that it is unreasonably unsafe and
defective for the product’s intended or expected use. See Hoffman v. E.W. Bliss
Co., 448 N.E.2d 277, 281 (Ind. 1983) (holding that a “defect” for purposes of
IPLA “can be that the product was defectively designed, defectively
manufactured, or that the manufacturer failed to supply adequate warnings or
instructions as to the dangers associated with its use”). That is the nature of
Angela’s claim against PACCAR.
[29] As for the court’s holding regarding optional safety features, Anderson
specifically involved an injury to an employee of the company that bought the
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product at issue. Rickey was not an employee of W&W and did not have a
direct relationship with the company that ordered the glider kit. Moreover,
even if we assume that W&W knowingly rejected optional safety features for
the glider kit, we are not convinced that this necessarily absolves PACCAR of
all responsibility for the lack of safety features. In other words, it should be a
question of fact as to whether it was reasonable for PACCAR to put a product
into the stream of commerce that lacked one or several or all of those features.
[30] We find support for this proposition in Bexiga v. Havir Mfg. Corp., 290 A.2d 281
(N.J. 1972). In that case, the plaintiff was injured by a punch press that lacked
any safety features, and he sued the punch press manufacturer. The defendant
argued that it was customary in the trade for any safety devices on a punch
press to be installed by its purchaser. The New Jersey Supreme Court
nonetheless held that the manufacturer could be held liable for its failure to
design and install at least one safety feature that would have been appropriate
for any normal operation of the machine. Bexiga, 290 A.2d at 285. Of
particular interest here, the court stated:
Where a manufacturer places into the channels of trade a
finished product which can be put to use and which should be
provided with safety devices because without such it creates an
unreasonable risk of harm, and where such safety devices can
feasibly be installed by the manufacturer, the fact that he expects
that someone else will install such devices should not immunize him.
The public interest in assuring that safety devices are installed
demands more from the manufacturer than to permit him to
leave such a critical phase of his manufacturing process to the
haphazard conduct of the ultimate purchaser. . . .
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We hold that where there is an unreasonable risk of harm to the
user of a machine which has no protective safety device, as here,
the jury may infer that the machine was defective in design unless
it finds that the incorporation by the manufacturer of a safety
device would render the machine unusable for its intended
purposes.
Id. (emphasis added). We are persuaded by this reasoning that if it was feasible
for PACCAR to install as a standard feature any of the several safety measures
Angela claims should have been installed in the glider kit, and such feature or
features would not have detracted from the glider kit’s use in any conceivable
configuration, a fact-finder may decide PACCAR is liable to Angela for a
failure to include it or them, rather than leaving the safety of a completed semi-
tractor entirely to the “haphazard” choices of companies like W&W. 3 It would
all depend upon a fact-finder’s determination of whether PACCAR’s decision
to make a certain feature optional rather than standard was a reasonable
decision under the circumstances.
3
Our supreme court also has stated, “Certainly the manufacturer of a product may not design or
manufacture a product with a latent flaw therein but escape liability for an injury attributable to that flaw
simply by selling the product to an intermediate party, such as an employer who intends to use the product in
a manufacturing operation.” Hoffman, 448 N.E.2d at 282. The court also disapproved of allowing a
manufacturer of a product to escape liability for injuries caused by its defectively designed or manufactured
product by selling it to “an intervening employer and leaving that party with the duty to correct the defect . . .
.” Id. Hoffman specifically dealt with an injury to an employee of a company that bought an allegedly
defective product and not component manufacturer liability. Nevertheless, the language of the opinion
strongly suggests the court also would not have approved of a component part manufacturer attempting to
foist all responsibility for a final product’s safety onto the final manufacturer, where an injury was caused that
could have been avoided but for a design defect in the component part.
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[31] By comparison, we note the case of Verge v. Ford Motor Co., 581 F.2d 384 (3rd
Cir. 1978). There, the plaintiff was injured when a garbage truck backed into
him. The plaintiff sued Ford, the manufacturer of the truck’s cab and chassis,
alleging it was unsafe because it lacked a backup alarm. A different entity had
converted the cab and chassis into a garbage truck. The court held that Ford
was entitled to judgment notwithstanding the verdict. The court concluded that
the company that converted the cab and chassis into a garbage truck, and not
Ford, was responsible for the lack of a backup alarm. Id. at 388-89. It noted
that the cab and chassis design was general purpose and could be used in
various ways by purchasers of the cab and chassis, including in configurations
where there was no obstruction of the driver’s rear view (such as for a flatbed
truck) and thus no need for a backup alarm. Id. Here, the designated evidence
indicates that there was inevitably a significant blind spot behind any semi-
tractor constructed using PACCAR’s glider kit, regardless of its ultimate use.
[32] PACCAR also relies heavily upon Section 5 of the Restatement (Third) of
Torts, Product Liability, and commentary to that provision and cases cited
therein. This section governs the liability of manufacturers of component parts
and largely parallels the language of the IPLA regarding component parts. The
Restatement drafters observed in part,
[C]omponent sellers should not be liable when the component
itself is not defective as defined in this Chapter. If the component
is not itself defective, it would be unjust and inefficient to impose
liability solely on the ground that the manufacturer of the
integrated product utilizes the component in a manner that
renders the integrated product defective.
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Restatement (Third) of Torts: Product Liability § 5 cmt. (a) (1998).
[33] The drafters also stated,
Product components include products that can be put to different
uses depending on how they are integrated into other products.
For example, the chassis of a truck can be put to a variety of
different uses. A truck chassis may ultimately be used with a
cement mixer or a garbage compaction unit or in a flat-bed truck.
Similarly, an engine for industrial machines may be adapted to a
variety of different industrial uses. A seller ordinarily is not liable
for failing to incorporate a safety feature that is peculiar to the
specific adaptation for which another utilizes the incomplete
product. A safety feature important for one adaptation may be
wholly unnecessary or inappropriate for a different adaptation.
Id., cmt. (d) (emphasis added). Again, however, the designated evidence
indicates that there are no “peculiar” adaptations of the PACCAR glider kit in
which there would not be a significant danger associated with it with respect to
the event that occurred here. The glider kit was intended for use in motorized
vehicles that would be repeatedly backed up; Angela has designated evidence
that its design was lacking with respect to backup safety, and that defect or
defects proximately caused Rickey’s death. Also, there is no evidence that
W&W modified or altered the glider kit to adapt it to a use not contemplated by
PACCAR; it was used precisely as intended.
[34] We find the following Restatement illustration interesting and more parallel to
this case than the above comment:
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ABC Vinyl, Inc., sells vinyl swimming-pool liners for use in
above-ground swimming pools. ABC manufactures the liners
without depth markers. XYZ Pools, Inc., manufactures and sells
above-ground swimming pools. XYZ installs a pool with an
ABC liner at the home of Roberta. Jack, while visiting Roberta,
dives into the shallow portion of the pool that appears to him to
be eight feet deep. In reality the water is only four feet deep.
Jack hits his head on the bottom and suffers harm. If a court
finds that the absence of the depth markers renders the design of
the liner defective . . ., ABC is subject to liability to Jack. The
fact that the liner is a component of the above-ground swimming
pool and has been integrated into a specific swimming pool does
not insulate ABC from liability for selling a component product
that is defectively designed for all swimming-pool installations.
XYZ is also subject to liability to Jack as the seller of a pool with
a defectively designed liner.
Id., illustration (3). In this scenario, PACCAR is an analogous position to ABC
because it designed and constructed a glider kit that was defective for all
possible uses, and W&W is in the same position as XYZ for integrating that
part into a completed semi-tractor.4 The Restatement does not support
PACCAR’s case.
4
This illustration seems to be based on Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3rd Cir. 1992), cert.
denied. The court there also observed:
Moreover, we are not persuaded by the contention that a pool liner is an inert, innocuous thing
simply because by itself, it is physically incapable of injuring a consumer. To hold otherwise
implies that “unreasonably dangerous” . . . requires that the product itself actually exert the
injury-causing, physical force. But even dynamite is inert, unless ignited. Although a
replacement pool liner does not explode, crush, drive, or exert any other physical force, it may
through a chain of not so remarkable events cause serious injuries.
Fleck, 981 F.2d at 119. Here, likewise, the glider kit standing alone is not dangerous, but “it may through a
chain of not so remarkable events” become that way—namely, when a powertrain is added to it and it
becomes an operational semi-tractor.
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[35] We also note the Restatement illustration’s observation that both ABC and XYZ
could be liable for the plaintiff’s injuries. Such a result would be consistent with
the Indiana Comparative Fault Act, which applies to actions under the IPLA.
See I.C. § 34-20-8-1; Green v. Ford Motor Co., 942 N.E.2d 791, 794 (Ind. 2011).
“The legislature has thus directed that a broad range of potentially causative
conduct initially may be considered by the fact-finder but that the jury may
allocate comparative fault only to those actors whose fault was a proximate
cause of the claimed injury.” Green, 942 N.E.2d at 795. In a comparative fault
case,
“the jury is first required to decide whether an actor’s negligence
was a proximate cause of the plaintiff's injury.” [Control
Techniques, Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind. 2002)].
“Whether or not proximate cause exists is primarily a question of
foreseeability.” Id. at 108. The fact-finder must evaluate whether
the injury “is a natural and probable consequence, which in the
light of the circumstances, should have been foreseen or
anticipated.” Id. (quoting Bader v. Johnson, 732 N.E.2d 1212,
1218 (Ind. 2000)). Fault may not be imposed “on an original
negligent actor who sets into motion a chain of events if the
ultimate injury was not reasonably foreseeable as the natural and
probable consequence of the act or omission.” Id. The
determination and allocation of each party’s proportionate fault
“is a question for the trier of fact, except where there is no
dispute in the evidence and the fact finder could come to only
one conclusion.” Walters v. Dean, 497 N.E.2d 247, 254 (Ind. Ct.
App. 1986).
Id.
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[36] Although Green was a case involving the alleged comparative fault of the
plaintiff in a product liability case, there is no bar to applying the Comparative
Fault Act in a case involving a component part manufacturer and a final
product manufacturer. As such, there is no inherent reason why the fault or
responsibility for the semi-tractor’s safety must fall exclusively either to
PACCAR or to W&W, or why they cannot both be liable for Rickey’s death
with respect to the semi-tractor’s safety. The question would be whether
PACCAR was an original negligent actor in the glider kit’s design and set in
motion a chain of events that led to a foreseeable injury as a natural and
probable consequence of that design. See id. The issue of proximate cause
ordinarily is one for the jury to decide. Id.
[37] Angela designated evidence, through Bloch, of several alleged design flaws in
the glider kit PACCAR sold. Our holding today is that it was then incumbent
upon PACCAR to designate undisputed evidence that it would have not been
feasible, or that it would have been unreasonable, for PACCAR to have
addressed any of those flaws in the glider kit, rather than leaving it entirely for
W&W to address. PACCAR failed to do so and, therefore, failed to negate all
elements of Angela’s product liability cause of action. Thus, PACCAR was not
entitled to summary judgment. See Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d
1184, 1189 (Ind. 2016) (noting that under Indiana law, summary judgment
movant has the burden of affirmatively negating an opponent’s claim).
[38] With respect to making an audible backup alarm a standard feature on its glider
kits, PACCAR claims that an audible backup alarm might not be feasible or
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desirable in all environments. It directs us to a statement by the federal Mine
Safety and Health Administration (“MSHA”) that conventional backup alarms
in a mining environment might be too common “and therefore be less
noticeable and effective as a warning.” SAFETY STANDARDS FOR
LOADING, HAULING, AND DUMPING AND MACHINERY AND
EQUIPMENT AT METAL AND NONMETAL MINES, 53 Fed. Reg.
32,496, 32,513 (1988). PACCAR seems to imply that if its glider kit was used
to construct semi-tractors frequently used in a mining environment, which is
something PACCAR would be unaware of when it made the glider kit, it would
be inadvisable to equip it with a standard backup alarm. However, the MSHA
was not recommending that trucks in a mining environment not have backup
alarms. Rather, it was suggesting (but not requiring) the installation of more
advanced backup alarms, ones that would be triggered only if something was
detected behind the truck, for example, by an infrared sensor. See id. Also, just
because backup alarms might become “less effective” in a mining environment
does not mean that they are entirely ineffective, or that one should not be
installed if a truck is to be used in a mining environment. There is a question of
fact as to whether PACCAR should have made a backup alarm a standard
feature in its glider kits.
[39] Regarding rearview cameras, PACCAR states, “it is well known in the trucking
industry that the best place to put the camera is on the trailer—not the cab” and
that it did not construct or provide any parts for W&W’s trailers. Appellee’s Br.
p. 33. PACCAR does not cite any part of the record for this assertion regarding
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what is “well known in the trucking industry.” Placing a rearview camera only
on a trailer would not address the common problem of backing up a semi-
tractor to be attached to a trailer, as happened here. PACCAR did designate
evidence that its optional “SmartNav” dash screen display system, which could
be used with a rearview camera in some configurations, was in fact not
compatible with the engine W&W intended to and did install with the glider kit
it ordered. However, this does not necessarily answer the question of whether it
was feasible for PACCAR to develop and install a rearview camera system for
all of its glider kits, independent of the “SmartNav” system.
[40] As for a backup strobe light, PACCAR notes that the glider kit came with
wiring to allow W&W to install such a light, but W&W did not do so. Again,
however, the fact question here is whether it was unreasonable for PACCAR to
design, construct, and put into the stream of commerce a glider kit that lacked
backup lights as a standard feature, rather than leaving it to chance and the final
semi-tractor manufacturer’s whim to decide whether to install them. Similarly,
it is a question of fact as to whether it was unreasonable for PACCAR to not
include warning labels in the glider kit cab alerting whoever was driving the
semi-tractor to the dangers of backing it up.
[41] It is possible that PACCAR designated sufficient evidence that its failure to
include a standard rear window in its glider kit cabs was not a proximate cause
of Rickey’s death. That is because of the “headache rack” W&W installed on
the cab, which would have blocked a rear window and negated its benefit as a
safety feature. However, that would still leave at least four safety features on
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which there is conflicting evidence and inferences as to whether PACCAR
should have installed them as standard parts of the glider kit and whether its
failure to do so was a proximate cause of Rickey’s death. Consequently, the
trial court erred in granting PACCAR’s motion for summary judgment.
II. Cross-Motion for Partial Summary Judgment
[42] Angela also contends the trial court erred in denying her cross-motion for
partial summary judgment. Specifically, her cross-motion sought a declaration
that PACCAR owed Rickey a duty to design and manufacture a safe product.
The IPLA provides that it applies to any action brought by a “consumer”
against a product manufacturer, regardless of the substantive legal theory
underlying the claim. I.C. § 34-20-1-1. It also includes within the definition of
“consumer” “any bystander injured by the product who would reasonably be
expected to be in the vicinity of the product during its reasonably expected use.”
I.C. § 34-6-2-29. PACCAR concedes in its brief that Rickey is a “consumer” for
purposes of the IPLA. There is no dispute that he falls within the “bystander”
provision of the IPLA and that he was injured during the glider kit’s reasonably
expected use after its final delivery and integration into the semi-tractor. Cf.
Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1142-43 (Ind. 2006)
(holding IPLA does not apply to person injured before final delivery of product
in a state contemplated by buyer and seller). Thus, although it may be
unnecessary on remand for the trial court to enter partial summary judgment,
there should be no dispute that the IPLA applies to Angela’s claims against
PACCAR.
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Conclusion
[43] PACCAR’s position as a component manufacturer and not the final
manufacturer of the semi-tractor that killed Rickey does not immunize it from
liability under the IPLA; nor may PACCAR automatically transfer all
responsibility for the semi-tractor’s safety to W&W. Angela has designated
sufficient evidence for summary judgment purposes that there were several
safety features PACCAR reasonably could have incorporated into its glider kits
that might have prevented Rickey’s death. There also is no dispute that Rickey
was a “consumer” of PACCAR’s product for purposes of the IPLA. We
reverse the grant of summary judgment in favor of PACCAR and remand for
further proceedings consistent with this opinion.
[44] Reversed and remanded.
Vaidik, C.J., concurs.
Mathias, J., concurs with separate opinion.
Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018 Page 27 of 29
IN THE
COURT OF APPEALS OF INDIANA
Angela Brewer, Individually and Court of Appeals Case No.
as Personal Representative of the 55A05-1709-CT-2168
Estate of Rickey A. Brewer,
Deceased,
Appellant-Plaintiff,
v.
PACCAR, Inc. d/b/a
PETERBILT MOTORS CO.,
Appellee-Defendant.
Mathias, Judge, concurring.
[45] While I agree with my colleagues that Angela has designated sufficient
evidence for summary judgment purposes, I write to express my reservations
about the broad legal discussion that reaches this result. W&W, a sophisticated
trucking company, explicitly ordered the glider kit from PACCAR without the
optional rear window or backup alarm. Moreover, W&W ordered the glider kit
with wiring to install a backup strobe light, but the strobe light was never
installed. Thus, in my view, W&W, a sophisticated user, was well aware of any
potential danger posed by PACCAR’s glider kit when it assembled the semi-
tractor. And on appeal, the core of PACCAR’s arguments is a thinly disguised
sophisticated user defense.
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[46] Our court has consistently held that the question of whether or not a
manufacturer has discharged its duty under the sophisticated user exception is
appropriately a question for the trier of fact. See, e.g., Natural Gas Odorizing, Inc.
v. Downs, 685 N.E.2d 155, 164 (Ind. Ct. App. 1997), trans. denied. Accordingly, I
agree that summary judgment was inappropriate here, and the matter should be
remanded to the trial court where PACCAR can appropriately make its
sophisticated user argument before a jury.
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