Crawfordsville Town & Country Home Center, Inc. v. Odilon Elias Cordova, Jamie Busse, and Do It Best Corp

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Caren L. Pollack Timothy F. Devereux
Zachary J. Stock Indianapolis, Indiana
FILED
Indianapolis, Indiana Jan 24 2019, 8:59 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

IN THE
COURT OF APPEALS OF INDIANA

Crawfordsville Town & Country January 24, 2019
Home Center, Inc., Court of Appeals Case No.
Appellant-Defendant, 18A-CT-314
Appeal from the Allen Superior
v. Court
The Honorable David J. Avery,
Odilon Elias Cordova, Jamie Judge
Busse, and Do It Best Corp, Trial Court Cause No.
Appellees-Plaintiffs/Defendant. 02D09-1512-CT-543

Tavitas, Judge.

Case Summary
[1] Crawfordsville Town & Country Home Center, Inc. (“Town & Country”)

appeals the trial court’s denial of its motion for summary judgment in

proceedings brought by Odilon Elias Cordova (“Cordova”) and Jamie Busse

(“Busse”). We reverse and remand.

Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019 Page 1 of 20
 Issue
[2] Town & Country raises two issues. We find the following issue dispositive:

Whether the trial court properly denied Town & Country’s motion for

summary judgment based on lack of duty.

Facts
[3] The parties’ designated evidence demonstrates that, in August 2014, the owners

of a Mexican restaurant in Crawfordsville hired Rogelio Barcelata to paint the

rear exterior wall of the restaurant. Barcelata asked Cordova and Rutelio

Gonzales to assist and split the payment for the work. To remove the old paint,

the men decided to rent a pressure washer and an aerial lift. Barcelata and

Cordova 1 went to Town & Country, where Corey Perigo, the rental department

manager, assisted them.

[4] Barcelata, Gonzales, and Cordova speak limited English. Barcelata and

Cordova testified in depositions that they cannot read English. Perigo testified

in a deposition that Barcelata spoke fluent English and that he did not know if

the other men spoke English. Cordova is married to Busse, and they

communicate in English.

1
In a deposition, Corey Perigo testified that three men were at Town & Country. Cordova testified that
Gonzales stayed in the van as Cordova and Barcelata went inside.

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[5] Perigo rented the equipment to Barcelata. According to Perigo, he explained

the operation of the aerial lift to Barcelata. According to Cordova, however,

Perigo explained how to use the aerial lift to Cordova, who spoke more English

than Barcelata. Perigo also showed Cordova where the operator’s manual was

located. The operator’s manual and the warning labels on the aerial lift are all

written in English. Cordova did not ask for the instructions or safety

information to be provided in Spanish. Perigo spent fifteen to twenty minutes

giving an operation and safety orientation. Perigo conceded, however, most of

that time was spent on operation of the aerial lift, not safety. Perigo did not

review the operator’s manual with Cordova or Barcelata.

[6] The aerial lift had multiple warning labels with diagrams placed on the aerial

lift by the manufacturer that directed users not to use the lift within ten feet of a

high-voltage line. See Figure 1 (Appellant’s App. Vol. II p. 135); Figure 2

(Appellant’s App. Vol. II p. 136). Perigo testified in his deposition that he

explained the electrocution warning sticker and that he said “to stay away from

the power lines at least 10 feet.” Appellant’s App. Vol. III p. 151. Barcelata,

however, testified that Perigo did not point out the warning labels.

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 Figure 1

Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019 Page 4 of 20
 Figure 2

[7] The operator’s manual further directed operators to avoid power lines. See

Figure 3 (Appellant’s App. Vol. II p. 239). The operator’s manual provided:

“Inexperienced users should receive instruction by a qualified instructor before

attempting to operate or maintain the aerial work platform.” Appellant’s App.

Vol. II p. 237. Perigo is not “certified” to “provide training or instruction” on

the aerial lift. Appellant’s App. Vol. III p. 151.

[8] The men then took the aerial lift to the jobsite. After they arrived at the jobsite,

however, the men had problems operating the aerial lift. Cordova called

Perigo, who came to the jobsite and corrected the problem. There is a dispute

as to whether the aerial lift was in the parking lot or in position next to the

building when Perigo arrived. Perigo testified that, when he arrived, the

equipment was parked in the parking lot away from the restaurant. According

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 to Perigo, the men did not explain what they were doing with the aerial lift, and

they told Perigo that they needed a “heavier duty pressure washer.” Id. at 152.

[9] Cordova, however, Figure 3

stated that, when he

and Barcelata arrived

at the site with the

aerial lift, they

immediately placed

the aerial lift next to

the restaurant’s back

wall and leveled it.

Barcelata also testified

that the aerial lift had

been placed “where

we were going to

work” and that

Cordova had leveled

it before discovering

that it would not

work; the men placed

the aerial lift between

the back wall of the building and power lines that were a few feet away. Id. at

159.

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[10] According to Cordova and Barcelata, the aerial lift was already in position

when Perigo arrived to fix it. Barcelata testified that he assumed Perigo “would

have said something” if the aerial lift could not be operated in its location when

Perigo repaired the aerial lift and saw its position. Id. at 167. Cordova testified

that Perigo saw their small pressure washer and told Cordova that it was too

small for the job. Perigo recommended that the men use a more powerful

pressure washer, and the men followed Perigo back to Town & Country to rent

a different pressure washer.

[11] Barcelata was aware that “nobody should get close to electric cable[s],” but he

admitted he thought they had enough room to do the job without touching the

power lines. Id. at 161. Barcelata understood that they needed to stay away

from the power lines. Barcelata was not concerned about using water near the

power lines because they “were spraying the wall, not the lines.” Appellant’s

App. Vol. II p. 81. Cordova testified that he knew the power lines were “bad”

and that they tried to stay away from the lines. Appellant’s App. Vol. III p.

178. Cordova also testified, however, that they were not paying attention to the

power lines while they were in the basket because they “were working.” Id.

[12] The next day, Cordova and Gonzales were in the basket of the aerial lift using

the power washer. Cordova was at the controls, and Gonzales was spraying

water to remove old paint from the wall. The aerial lift was positioned between

the building and power lines. The aerial lift was less than ten feet away from

the power lines. According to Cordova, the aerial lift did not touch the power

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 lines. Cordova, however, was electrocuted and sustained severe injuries,

including the amputation of his left hand.

[13] Emergency personnel at the scene and Town & Country’s corporate

representative, John Whitecotton, testified that the aerial lift was less than ten

feet away from the power lines. See Appellant’s App. Vol. III p. 187 (aerial lift

was “within a foot of the power lines”); p. 194 (aerial lift was “approximately 2

feet from the energized power line”); p. 196 (aerial lift was “close to 2 feet”

from the power lines); p. 200 (aerial lift was “within 6 inches of the power

lines”). Whitecotton was asked in a deposition, “Is there any way that that lift

could have been safely used to power wash that wall?” Id. at 188. Whitecotton

responded, “No. There’s power lines within ten feet of there. I actually believe

the power lines are too low to the ground to begin with, and the pole’s leaning

toward the building.” Id. Whitecotton also testified, “If we knew at the time

that the customer was going to do something near power lines, and we’re

talking within 25 feet or less, we would say, you can’t do that. And if they say,

we’re going to do it anyway, we would refuse rental.” Id. at 181.

[14] In December 2015, Cordova and his wife, Busse, filed a complaint for damages

against Town & Country and Do It Best Corp. (“Do It Best”) after Cordova

was electrocuted and seriously injured in the aerial lift rented from Town &

Country. Cordova and Busse alleged that Town & Country and Do It Best

were: (1) negligent in renting the aerial lift; (2) negligent for failing to provide

sufficient warnings, training, and instructions; and (3) negligent because they

knew or should have known that the aerial lift created an unreasonable risk of

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 harm when used in a manner reasonably foreseeable to Town & Country and

Do It Best.

[15] Town & Country filed a motion for summary judgment and alleged that: (1)

Town & Country did not have a duty to Cordova; (2) Town & Country’s

conduct was not the proximate cause of Cordova’s injuries; and (3) Cordova’s

fault was greater than the fault of any other person who contributed to

Cordova’s damages. Cordova filed a response to Town & Country’s motion for

summary judgment and argued that, under Section 388 of the Restatement

(Second) of Torts, Town & Country owed a duty to Cordova. Town &

Country then filed a reply and additional designation of evidence.

[16] After a hearing, the trial court denied Town & Country’s motion for summary

judgment and issued the following order: 2

As to Town & Country’s contention that no legal duty was
breached, Town & Country cites Ford Motor Co. v. Rushford, 868
N.E.2d 806 (Ind. 2007) for the proposition that a retail merchant
has no duty to provide additional warning of a danger to a buyer
of a product being sold if the retailer passes on the adequate
warnings of the danger provided by the manufacturer. In
Rushford, the plaintiff was claiming that the defendant dealership
had a duty to direct her to the airbag warnings in the
manufacturer’s owner’s manual which had been provided to her
by the dealership. The holding in Rushford does not alleviate the
duty to warn users of dangers in the use of a product.

2
The trial court granted Do It Best’s motion for summary judgment.

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 Section 388 of the Restatement (Second) of Torts, adopted by our
courts in Indiana, creates a duty on the supplier of a chattel to
exercise reasonable care to inform anyone whom the supplier
expects to use the chattel that “the chattel is or is likely to be
dangerous for the use for which it is supplied”, “has no reason to
believe that those for whose use the chattel is supplied will realize
its dangerous condition” and “to exercise reasonable care to
inform [the user] of its dangerous condition or of the facts which
make [the chattel] likely to be dangerous”. The Court finds that
this duty applied to Town & Country as the rental agent for the
Lift in this case.

Town & Country also contends that it complied with its legal
duty. Town & Country points to the warnings contained on the
stickers on the Lift and the warnings contained in the owner’s
manual, a copy of which was given to Cordova and/or Barcelata
and the verbal instructions and warnings that Perigo gave to
Cordova at the time of the rental. However, Town & Country
does not take into consideration (1) that Perigo testified that at
the time of the rental at the Town & Country building he only
spoke to Barcelata; (2) there is a question as to how well
Barcelata and Cordova would have understood the language
contained in the stickers or owner’s manual or Perigo’s verbal
instructions which were in English and not in Spanish and while
Cordova spoke and understood some degree of English, his
primary language appears to have been Spanish and Barcelata’s
understanding of English was less than that of Cordova’s; (3) in
addition to the language issue, there is a question as to whether
the warnings adequately warned Cordova that the danger arising
from [] using the Lift in close proximity to power lines resulted
not only from direct contact with a power line but also from the
phenomena of arcing. There is an issue of fact as to whether
Cordova made direct contact with the power line or not. These
issues preclude the Court from granting Town & Country’s
Motion for Summary Judgment.

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 In addition, there is the undisputed fact that Perigo went to the
jobsite where the men intended to use the Lift as a result of the
inability of the men to get the Lift to operate. There is a question
of fact whether Perigo knew that the men intended to use the lift
to power wash the building because while at the jobsite there was
a discussion and suggestion that the men needed a more powerful
power washer, which the men proceeded to rent from Town &
Country. If Perigo knew that the men intended to set up the Lift
between the building and the power lines in order to power wash
the upper story of the building then an issue arises whether
Perigo complied with the Section 388 duty to “inform [the men]
of the dangerous condition or of the facts which make [the Lift]
likely to be dangerous.” The Court finds that Town & Country
has failed to carry its burden of showing that the undisputed
material facts demonstrate that Town & Country is entitled to
summary judgment as a matter of law. Accordingly, Town &
Country’s Motion for Summary Judgment should be denied.

Appellant’s App. Vol. II pp. 24-25. The trial court certified the decision for

interlocutory appeal pursuant to Indiana Appellate Rule 14, and this court

accepted the appeal.

Analysis
[17] Town & Country appeals the trial court’s denial of its motion for summary

judgment. Summary judgment is appropriate only when the moving party

shows there are no genuine issues of material fact for trial and the moving party

is entitled to judgment as a matter of law. Erie Indem. Co. for Subscribers at Erie

Ins. Exch. v. Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g

denied; see also Ind. Trial Rule 56(C). Once that showing is made, the burden

shifts to the nonmoving party to designate appropriate evidence to demonstrate

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 the actual existence of a genuine issue of material fact. Schoettmer v. Wright, 992

N.E.2d 702, 705-06 (Ind. 2013). When ruling on the motion, the trial court

construes all evidence and resolves all doubts in favor of the non-moving

party. Id. at 706. We review the trial court’s ruling on a motion for summary

judgment de novo, and we take “care to ensure that no party is denied his day

in court.” Id. “We limit our review to the materials designated at the trial

level.” Gunderson v. State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind.

2018).

[18] Cordova brought a negligence action against Town & Country. “To prevail on

a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the

defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an

injury to the plaintiff proximately caused by the breach.” Ford Motor Co. v.

Rushford, 868 N.E.2d 806, 810 (Ind. 2007). Town & Country argues that the

trial court should have granted its motion for summary judgment because Town

& Country had no duty to Cordova.

[19] According to Town & Country, the aerial lift’s manufacturer’s warnings were

sufficient, and it was not required to provide additional warnings to Cordova.

Cordova argues that the warnings were provided in English and that his English

is limited; Cordova also contends that Town & Country had a duty because

Perigo allegedly was aware of where Cordova was using the aerial lift.

“[W]hether a duty exists is a question of law for the court to decide.” Rogers v.

Martin, 63 N.E.3d 316, 321 (Ind. 2016). “Although the adequacy of warnings,

which implicates breach of duty, is generally a question of fact for the trier of

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 fact to resolve, the nature of the duty to provide warnings is a question of law to

be decided by the court.” Rushford, 868 N.E.2d at 810.

[20] Although neither party cites the Indiana Product Liability Act, we note that the

Act “governs all actions that are: (1) brought by a user or consumer; (2) against

a manufacturer or seller; and (3) for physical harm caused by a product;

regardless of the substantive legal theory or theories upon which the action is

brought.” Ind. Code § 34-20-1-1. Under the Act, “[a] product is defective

under this article if the seller fails to . . . properly package or label the product

to give reasonable warnings of danger about the product . . . when the seller, by

exercising reasonable diligence, could have made such warnings or instructions

available to the user or consumer.” I.C. § 34-20-4-2.

[21] Town & Country argues that Rushford is controlling here. In Rushford, the

plaintiff and her husband purchased a car from a Ford dealer. A few weeks

later, the plaintiff, who was a passenger in the vehicle, was injured by the air

bag during a crash. The plaintiff brought a product liability action against the

dealer and the manufacturer and alleged that they failed to provide reasonable,

adequate warnings regarding the air bags. According to the plaintiff, the dealer

should have given her additional warnings because it was aware she did not

drive and saw her short stature. The trial court denied the dealer’s and

manufacturer’s motions for summary judgment. On appeal, this court reversed

the denial of the manufacturer’s motion for summary judgment but affirmed the

denial of the dealer’s motion for summary judgment.

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[22] Our supreme court then considered the denial of the dealer’s motion for

summary judgment. Although this court had analyzed the issue in the context

of breach of duty, our supreme court considered the issue of whether a duty

existed at all:

Rather than focusing upon the breach of a preexisting duty, we
see this case as presenting the question of whether a duty existed
in the first instance. That is to say, what duty to warn of dangers
does a retail seller owe to a user or consumer of a product when
such dangers already have been communicated by the product’s
manufacturer. Stated somewhat differently, once the
manufacturer has warned a user or consumer of a particular
danger, what duty do we impose on the retail seller to give
additional warnings of the same danger.

Rushford, 868 N.E.2d at 810-11. The court concluded:

We acknowledge that the seller of a product that, to its
knowledge, involves danger to users has a duty to give a warning
of such danger at the time of sale and delivery. See Natural Gas
Odorizing, Inc. v. Downs, 685 N.E.2d 155, 162 (Ind. Ct. App.
1997) (“[T]he manufacturer, seller or distributor of a product has
a duty to warn those persons it should reasonably foresee would
be likely to use its product or who are likely to come into contact
with the danger inherent in the product’s use.”) (citing 63A
Am.Jur.2d Products Liability § 1188 (1997)). But in the absence of
any evidence that the product has been modified in some fashion
and that the seller knew or should have known of any such
modification, its duty to warn is discharged where the seller
provides the buyer with the manufacturer’s warning of the danger
at issue. In other words absent special circumstances, if the
manufacturer provides adequate warnings of the danger of its product
and the seller passes this warning along to the buyer or consumer, then
the seller has no obligation to provide additional warnings.

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 Id. at 811 (emphasis added). The court emphasized: “‘Where warning is given,

the seller may reasonably assume that it will be read and heeded; and a product

bearing such a warning, which is safe for use if it is followed, is not in defective

condition, nor is it unreasonably dangerous.’” Id. (quoting Dias v. Daisy-

Heddon, 180 Ind. App. 657, 662, 390 N.E.2d 222, 225 (1979)).

[23] The court in Rushford noted that the air bag warnings in the owner’s manual

were adequate, the owner’s manual was provided to the plaintiff, and there was

no claim of a modification. The court, thus, concluded that, “having provided

Rushford with the manufacturer’s warning, [the dealer] was under no duty to

give Rushford additional warnings, including advising Rushford to read the

manufacturer’s warnings based on [the dealer’s] knowledge of ‘Rushford’s

peculiar characteristic.’” Id. “To conclude otherwise would place retail sellers .

. . in the position of attempting to determine which particular manufacturer

warnings may be of unique importance to an individual consumer and then

direct the consumer’s attention to those warnings.” Id. at 811-12. The court

concluded that requiring sellers to give additional warnings would be “an

untenable position and an unnecessary burden” and, thus, reversed the denial

of the dealer’s motion for summary judgment. Id. at 812.

[24] Town & Country argues that, based on Rushford, it had no obligation to give

Cordova warnings in addition to the warnings provided by the manufacturer.

Town & Country also contends that Cordova’s limited grasp of the English

language is a unique characteristic analogous to the plaintiff’s short stature in

Rushford, which did not require additional warnings. Cordova, however, argues

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 that Town & Country’s argument would favor English speakers and non-

English speakers would not be “entitled to receive critical safety information

and/or warnings in a form that they can understand.” Appellee’s Br. p. 19.

[25] Additionally, Cordova argues that Town & Country had actual knowledge and

notice that Cordova was not following the manufacturer’s warnings. Cordova

argues that Dutchmen Manufacturing, Inc. v. Reynolds, 849 N.E.2d 516 (Ind.

2006), is controlling. In Dutchmen, an employee of Keystone RV was injured

when scaffolding broke loose and struck him. The scaffolding had been

installed by Dutchmen, the prior lessee of the facility. The employee filed a

complaint against Dutchmen and the landlord of the premises. The trial court

granted in part and denied in part Dutchmen’s motion for summary judgment,

and this court reversed and ordered that Dutchmen’s motion for summary

judgment be granted in full.

[26] Our supreme court accepted transfer and considered the applicability of Section

388 of the Restatement (Second) of Torts, which provides:

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

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 (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.

Dutchmen, 849 N.E.2d at 519.

[27] The court noted:

Section 388 imposes liability on a supplier of a chattel for
physical harm caused by the supplier’s “failure to exercise
reasonable care” to provide to any expected user of the chattel
any information as to the “character and condition of the chattel
... which [the supplier] should recognize as necessary to enable
[the user] to realize the danger of using it.” Restatement
(Second) Torts § 388 cmt. b. A supplier of a chattel has no duty to
warn of an obvious hazardous condition which a “mere casual looking
over will disclose.” Id. at cmt. k. . . .

Id. at 522 (emphasis added). The court concluded that “[t]he evidence viewed

in a light most favorable to [the employee] permits the inference that Dutchmen

negligently welded the scaffolding, and also failed to conduct a reasonable

inspection of the scaffolding and ensure adequate lubricant. This is sufficient to

deny summary judgment on the ground that Dutchmen had no knowledge of

the defect.” Id. at 523.

[28] In this case, warnings were given by the manufacturer and were clearly visible

on the aerial lift. Cordova cites no authority that Indiana law imposes a duty to

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 provide bilingual warnings on a product or that the “reasonable warning”

requirement includes an obligation to provide bilingual warnings. 3 Other courts

considering this issue have analyzed whether the product was specifically

marketed to non-English speakers, and there is no evidence of such here. See

Farias v. Mr. Heater, Inc., 684 F.3d 1231 (11th Cir. 2012) (holding that the

warnings on a heater were adequate even though they were not provided in

Spanish where the product was not specifically marketed to Spanish-speaking

customers).

[29] We conclude that the Rushford analysis is more applicable and persuasive here.

Under Rushford, Town & Country had no duty to provide additional warnings

to Cordova. In Rushford, the seller had no obligation to provide additional

warnings regarding the airbags even though it was aware of the plaintiff’s short

stature. Rushford, 868 N.E.2d at 811. Town & Country, similarly, had no

obligation to provide Cordova with additional warnings regardless of Cordova’s

limited English skills.

[30] Further, under Rushford, we do not believe that Perigo’s visit to the jobsite

changes the outcome here. We acknowledge that the parties have differing

accounts of whether Perigo witnessed the aerial lift’s location between the

3
Cordova also argues that Town & Country’s argument “flies in the face of the principles” discussed in
Escamilla v. Shiel Sexton Company, Inc., 73 N.E.3d 663 (Ind. 2017). Appellee’s Br. p. 19. Escamilla concerned
an undocumented immigrant’s access to the courts after he was injured while working and the admissibility
of his immigration status at the trial. We do not find Escamilla persuasive here.

Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019 Page 18 of 20
 restaurant’s back wall and the power lines. 4 Even if Perigo did see the final

location of the aerial lift, however, under Rushford, Town & Country was not

required to provide additional warnings. Furthermore, both Cordova and

Barcelata admitted during their depositions that they were aware of the dangers

of the power lines.

[31] Moreover, even if Dutchmen is applicable here, Cordova’s argument fails.

Under Dutchmen, Section 388 of the Restatement (Second) of Torts requires a

consideration of whether the seller “has no reason to believe that those for

whose use the chattel is supplied will realize its dangerous condition.”

Dutchmen, 849 N.E.2d at 519. Here, the danger of using the aerial lift near

power lines was well documented through the warnings, illustrations, and

owner’s manual, and Cordova was well aware of the obvious dangers of power

lines. Town & Country had “no duty to warn of an obvious hazardous

condition” which a “mere casual looking over” would disclose. Id. at 522.

Given the manufacturer-provided warnings, Town & Country had reason to

believe that Cordova would heed the multiple written and illustrated warnings

and realize the danger of operating the aerial lift near power lines.

[32] Under either the Dutchmen or Rushford analysis, Town & Country prevails. The

warnings were placed on the aerial lift and in the operating manual by the

manufacturer, and Town & Country passed on these warnings to Cordova.

4
Perigo did not witness Cordova actually using the power washer and aerial lift.

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 Having considered the written warnings and illustrations and our supreme

court’s opinions in Rushford and Dutchmen, we conclude that there is no genuine

issue of material fact regarding whether the manufacturer-provided warnings

and illustrations supplied adequate warnings of danger about the risks of

electrocution when using the aerial lift. Town & Country had no duty to

provide additional warnings to Cordova. Accordingly, Town & Country was

entitled to judgment as a matter of law. The trial court erred by denying Town

& Country’s motion for summary judgment. 5

Conclusion
[33] The trial court erred by denying Town & Country’s motion for summary

judgment. We reverse and remand.

[34] Reversed and remanded.

Brown, J., and Altice, J., concur.

5
Given our resolution of this issue, we need not address Town & Country’s comparative fault argument.

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