ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Tracy D. Knox Patrick F. O’Leary
D. Michael Anderson Goshen, Indiana
South Bend, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 20S05-0506-CV-292
DUTCHMEN MANUFACTURING, INC.,
Appellant (Defendant below),
v.
CHAD REYNOLDS AND DON REYNOLDS,
Appellees (Plaintiffs below).
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Appeal from the Elkhart Superior Court, No. 20D04-0011-CP-171
The Honorable Olga H. Stickel, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 20A05-0404-CV-202
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June 22, 2006
Boehm, Justice.
We hold that tort liability of a tenant who leaves a dangerous item on the leased premises
at the expiration of a lease is not extinguished by reason of the expiration of the lease. We also
hold that a provision in a lease to a successor tenant that the item is acquired “as is” does not of
itself bar a tort claim asserted by a non-contracting party.
Facts and Procedural History
Dutchmen Manufacturing, Inc., is a manufacturer of recreational vehicle travel trailers
and fifth wheels. From April 1992 until February 1999 Dutchmen leased a facility in Goshen,
Indiana, from Chapman Realty, Inc. At some point during its tenancy, Dutchmen employees in-
stalled scaffolding which was affixed to the ceiling beams without Chapman’s knowledge or
consent. The identities of the employees who performed the assembly and the time it was done
are not known according to Dutchmen.
Dutchmen’s lease required that it remove all personal property and trade fixtures before
vacating the premises. Any property not removed would become the property of Chapman, and
the lease also gave Chapman the right to require removal at Dutchmen’s expense.
Chapman had initially told Dutchmen to remove the scaffolding or pay for its removal,
which was estimated to cost $4,200. Shortly before the lease expired, Chapman began negotiat-
ing to lease the premises to Keystone RV, Inc., a manufacturer of travel trailers and Keystone
expressed a desire that the scaffolding be left in the building. Dutchmen first offered to sell the
scaffolding to Keystone, and when that proposal was rejected offered to give the scaffolding to
Keystone if Chapman would not charge Dutchmen for its removal.
Dutchmen vacated the premises on February 28, 1999 leaving the scaffolding in place.
Two weeks later, Keystone signed a lease with Chapman and took possession of the premises on
May 3. Under its lease, Keystone accepted the premises from Chapman “AS IS.” Keystone’s
chairman supplied an affidavit that it was his understanding that Keystone “accepted and took
possession of the scaffolding . . . at its own risk, regardless of whether the scaffolding contained
defects or deficiencies.”
In December 1999, Chad Reynolds, a Keystone employee, was installing electric wiring
in a trailer under assembly. Scaffolding broke loose from its mounting and struck Reynolds ren-
dering him paralyzed below the neck. According to Keystone’s employee injury report, a weld
in the scaffolding had failed. Keystone’s engineers determined that an inner steel tube had frac-
tured due to lack of lubricant and “improper welding procedure.” The inner tube was concealed
from view by an outer tube and an end cap when the unit was assembled.
2
In November 2000, Reynolds 1 filed a complaint against Chapman and Dutchmen, alleg-
ing, among other things, that Dutchmen was liable for the injuries because it had constructed and
installed defective scaffolding in the building that it had formerly leased from Chapman.
Dutchmen moved for summary judgment, arguing that it did not owe Reynolds any duty and was
not negligent per se. At the hearing on that motion, Reynolds filed a supplemental memorandum
of law, alleging for the first time that Dutchmen was liable as a supplier of a defective chattel
under section 388 of the Restatement (Second) of Torts. Dutchmen responded that the scaffold-
ing was not a chattel, and that Keystone was aware of the dangers of the scaffolding and had ac-
cepted the premises and scaffolding “as is.” The trial court granted Dutchmen’s motion for
summary judgment with respect to Reynolds’ negligence per se claim and all theories of negli-
gence except for the section 388 claim. On interlocutory appeal, the Court of Appeals reversed
and remanded to the trial court with direction to enter summary judgment for Dutchmen on all
theories, including the section 388 claim. Dutchmen Mfg., Inc. v. Reynolds, 819 N.E.2d 529,
533 (Ind. Ct. App. 2004). The Court of Appeals held that the scaffolding had merged into the
real estate at the expiration of Dutchmen’s lease, and Reynolds therefore could not recover on
the theory that Dutchmen had supplied a defective chattel. Id. at 532. We granted transfer.
Dutchmen Mfg., Inc. v. Reynolds, 831 N.E.2d 750 (Ind. 2005).
Standard of Review
Reynolds’ section 388 claim is the only issue in this interlocutory appeal. Dutchmen ar-
gues that the trial court erred in denying its motion for summary judgment and the Court of Ap-
peals agreed. On review of a trial court’s decision to grant or deny summary judgment, we apply
the same standard as the trial court: we must decide whether there is a genuine issue of material
fact that precludes summary judgment and whether the moving party is entitled to judgment as a
matter of law. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). We will construe the
designated evidence in a light most favorable to the non-moving party. Id.
I. Restatement (Second) Torts Section 388
1
Chad was nineteen years old when the complaint was filed, and Don Reynolds was a named plaintiff in
his capacity as Chad’s father. See Ind. Code § 34-23-2-1 (2004). For simplicity, we refer to the plaintiffs
collectively as “Reynolds.”
3
Section 388 of the Restatement (Second) of Torts 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
(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.
A. Merger of the Scaffolding into the Real Estate
A “chattel” is “movable or transferable property; personal property.” Black’s Law Dic-
tionary 251 (8th ed. 2004). The parties agree that the scaffolding is a trade fixture. A “trade fix-
ture” is “personal property put on the premises by a tenant which can be removed without sub-
stantial or permanent damage to the premises.” 14 Ind. Law Encyclopedia, Fixtures § 14 at 137
(West 2004). Thus, the scaffolding was a chattel at the time of Dutchmen’s occupancy.
Dutchmen argues, however, that the scaffolding merged into the realty and title to the
scaffolding vested in Chapman when Dutchmen vacated the premises and Keystone had not yet
signed its lease with Chapman. Therefore, Dutchmen reasons, the scaffolding was realty and not
a “chattel” at the time of the accident and section 388 is inapplicable. Reynolds responds that
Dutchmen did not abandon the scaffolding, so it remained a chattel at the expiration of Dutch-
men’s lease. Reynolds argues, that Dutchmen transferred ownership of the scaffolding to Key-
stone with the consent of Chapman in order to avoid incurring the expense of its removal, and
this arrangement was consummated before Dutchmen vacated the premises.
The parties discuss this issue in terms of ownership of the asset, citing cases dealing with
title to fixtures and similar property where the landlord and the tenant dispute ownership after
expiration of a lease. It is true, as the Court of Appeals held in this case, that a trade fixture in-
stalled by a tenant merges with the realty and thereby becomes the property of the landlord if it is
left on the premises after the tenant leaves the premises. The cases cited by the parties typically
4
deal with a situation where the tenant has enhanced the real estate and the landlord claims title by
“merger” to structures or improvements that the tenant had not removed. Chapman apparently
viewed the scaffolding as a liability, not an asset, because it demanded removal and claimed a
right to charge Dutchmen with the cost of removal if Dutchmen did not remove it at the expira-
tion of the lease. Chapman then located a prospective tenant that affirmatively wanted the scaf-
folding. At least one inference is that Chapman had no interest in obtaining title to the scaffold-
ing and intended to demand removal when Dutchmen vacated the premises, but then arranged for
Dutchmen to transfer the scaffolding to Keystone to avoid the cost of removal.
The documents before us make no specific reference to the scaffolding in the arrange-
ment between Keystone and Chapman, and in particular do not specifically address interest in
the scaffolding. It is clear, however, that Chapman disclaimed ownership of the scaffolding and
demanded its removal which, if not done, would be performed at the tenant’s expense.
A tenant may remove buildings or improvements pursuant to the terms of its lease, but
failure to do so ordinarily causes title to the improvements to merge into the real estate. Merrell
v. Garver, 54 Ind. App. 514, 525, 101 N.E. 152, 156 (1913). See also William M. Howard, Time
Within Which Tenant’s Right to Remove Trade Fixtures Must Be Exercised, 109 A.L.R. 5th 421
(West 2003). However, a landlord may expressly or implicitly allow a tenant an extension of
time beyond the term expressed in contract for the removal of improvements without forfeiture.
Merrell, 54 Ind. App. at 525, 101 N.E. at 156. A landlord’s consent that trade fixtures may re-
main on the premises after the expiration of the lease causes ownership of them to remain pre-
served in the tenant, and the tenant has the right to remove the fixtures from the leased premises
within a reasonable time after termination of the tenancy. 2 This is an application of the general
2
See Revzen Bus. Interiors, Inc. v. Carrane, 391 N.E.2d 24, 26 (Ill. App. Ct. 1979) (former tenant was
allowed a reasonable time after its tenancy expired to recover an air conditioning unit it had installed dur-
ing its tenancy because of representations by the landlord that arrangements would be made with a subse-
quent tenant for the purchase of the air conditioning unit); Yorkshire Ice Co. v. Flanagan, 163 N.Y.S. 212,
213-14 (N.Y. App. Div. 1917) (tenant had right to remove trade fixtures shortly after the expiration of its
lease because the landlord had consented to the fixtures being left); Finley v. West, 467 P.2d 169, 172
(Okla. 1970) (ownership of trade fixtures remained with former tenant because landlord implicitly con-
sented to the fixtures being left on the premises after the lease terminated when the landlord stated that the
next tenant would like the fixtures to remain and would be willing to pay for them); Stopper v. Kantner,
29 Pa. Super. 48, 56 (Pa. Super. Ct. 1905) (tenant had the right to remove his trade fixtures after the ter-
mination of his tenancy when the landlord had given the tenant permission to remove his trade fixtures
during the three days immediately following the expiration of his term, but forcibly prevented him from
5
proposition that “performance within the time specified by a contract may be waived by the con-
duct of the other party.” Kenefick v. Schumaker, 64 Ind. App. 552, 560, 116 N.E. 319, 322
(1917).
We think a fair inference from this evidence is that Chapman consented to Dutchmen’s
leaving the scaffolding in the building after the lease expired. If so, title to the scaffolding never
vested in Chapman and was transferred directly from Dutchmen to Keystone. Indeed, the affida-
vit of Keystone’s chairman refers to Keystone’s taking “ownership” of the scaffolding at the time
it occupied the building. If the scaffolding had passed to Chapman and was governed by the
lease to Keystone, Keystone would be its lessee, not its owner. Given that Dutchmen left the
scaffolding at Chapman’s request to accommodate Keystone’s desires and to avoid the cost of
removal, we think that view of these facts is plausible and, if so, no merger occurred.
In any event, we do not regard the legal title to fixtures to be the controlling consideration
for purposes of section 388 tort liability. One who supplies a chattel for purposes of section 388
has liability whether or not the chattel is incorporated into the real estate. Dutchmen was a “sup-
plier” as that term is used in section 388, and Dutchmen does not contend otherwise. Comment c
of section 388 defines a “supplier” as “any person who for any purpose or in any manner gives
possession of a chattel for another’s use. . . . These rules, therefore, apply to sellers, lessors, do-
nors, or lenders.” Dutchmen was not only the manufacturer of the scaffolding, it also turned the
scaffolding over for Keystone’s “use” in return for consideration (avoiding the cost of removal).
The scaffolding therefore was not simply abandoned property at the expiration of Dutchmen’s
lease, which we assume, without deciding, would not ordinarily render an exiting tenant a “sup-
plier.”
Section 388 sets out a tort doctrine that places a loss on the party who caused it. The ni-
ceties of real estate title—specifically incorporation into realty–produce no different result. A
supplier of a chattel is not freed from section 388 liability because the chattel is incorporated into
another chattel. See, e.g., McGlothlin v. M & U Trucking, Inc., 688 N.E.2d 1243, 1245 (Ind.
doing so); Merriam v. Ridpath, 47 P. 416, 417 (Wash. 1896) (despite explicit language in the lease to the
contrary, the tenant was allowed a reasonable time to remove his fixtures from the leased premises be-
yond the expiration of the lease because negotiations between the landlord and current and future tenants
regarding transferred ownership of the fixtures began before the lease expired).
6
1997) (possible section 388 liability whether or not added landing gear was incorporated into
semi-trailer). Similarly, a supplier of defective electrical wiring cannot be immunized from li-
ability because the wiring is installed in a building and becomes realty for purposes of property
law.
Because we draw factual inferences in favor of the non-moving party, summary judgment
for Dutchmen cannot be affirmed on the merger theory. The designated evidence permits the
inference that the intention of all three parties involved was that Keystone would obtain owner-
ship of the scaffolding if and when it signed its lease with Chapman. The arrangement effec-
tively allowed Dutchmen an extension of time past the conclusion of the lease for removing the
scaffolding and was for the benefit of all three. Had the lease between Keystone and Chapman
not been consummated, Dutchmen would have had a reasonable time to remove the scaffolding
or pay for its removal. Merrell, 54 Ind. App. at 526, 101 N.E. at 157 (when the time for removal
is not clear, the removal should be “effected within a reasonable time”). Under that view, the
scaffolding did not merge into the real estate and was Dutchmen’s chattel until Keystone signed
its lease with Chapman. But whether or not the scaffolding merged into the real estate, it was a
chattel at the time it was supplied to Keystone and is susceptible to a section 388 claim.
B. Elements of a Section 388 Claim
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 rec-
ognize 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 condi-
tion which a “mere casual looking over will disclose.” Id. at cmt. k; R. D. Hursh, Manufac-
turer’s or Seller’s Duty to Give Warning Regarding Product as Affecting His Liability for Prod-
uct-Caused Injury, 76 A.L.R. 2d 9, 28 (1961). Moreover, a supplier is not required “to warn a
person who in his occupation or profession regularly uses the product against any risk that
should be known to such a regular user.” 63 Am. Jur. 2d Products Liability § 51, at 61 (1972).
However, in McGlothlin, we held that section 388 imposes a duty on the supplier of a chattel to
conduct a proper inspection which would disclose the existence of a defect. 688 N.E.2d at 1245.
7
Comment m of section 388 states that subsection (c) of that section imposes a duty on the sup-
plier to inspect the materials and parts out of which the chattel is made and conduct a reasonable
inspection of the finished chattel.
Dutchmen argues that Reynolds’ section 388 claim fails because Dutchmen had no rea-
son to know the weld on the scaffolding was defective and had no reason to believe that those
using the scaffolding would fail to realize its dangerous propensities. Reynolds does not deny
that Keystone and its employees knew of the potential dangers generally associated with the use
of scaffolding. However, Reynolds contends that despite Keystone’s inspections of the scaffold-
ing, because an outer tube and end cap were placed over the defective weld, Keystone was un-
aware of that defect and the lack of adequate lubricant in the joints. Reynolds contends that only
the designers and constructors of the scaffolding, who were Dutchmen employees, could have
known of the improper weld and thus the particular associated danger.
The trial court found that “there has been no evidence designated establishing that
Dutchmen had actual knowledge of the alleged welding defects in the scaffolding.” However,
Reynolds provided expert opinion that the defect in the weld that led to the collapse was so poor
in appearance that the allegedly defective weld “should have been visibly obvious” to the welder
at the time of manufacture when the inner tube was still visible.
A negligence claim under section 388 may be based upon the supplier’s actual or con-
structive knowledge of the danger. Bogard v. Mac’s Rest., Inc., 530 N.E.2d 776, 780 (Ind. Ct.
App. 1988), trans. denied (claimant must show supplier knew or had reason to know chattel was
dangerous for its intended use); Lamb v. Manitowac Co., Inc., 570 N.W.2d 65, 68 (Iowa 1997)
(same); Hanlon v. Lane, 648 N.E.2d 26, 28 (Ohio Ct. App. 1994) (same). Dutchmen argues that
its only duty was to warn Keystone of the scaffolding’s general dangers, and since it did not
know of any danger that was not already apparent to Keystone, this duty was not breached. The
evidence viewed in a light most favorable to Reynolds permits the inference that Dutchmen neg-
ligently welded the scaffolding, and also failed to conduct a reasonable inspection of the scaf-
folding and ensure adequate lubricant. This is sufficient to deny summary judgment on the
ground that Dutchmen had no knowledge of the defect.
II. Assumption of Risk
8
Dutchmen argues that section 388 does not impose liability on it because Keystone con-
tractually accepted the premises, which included the scaffolding, “as is” and contractually as-
sumed any risks associated with the scaffolding. There was no written contract between Key-
stone and Dutchmen. Keystone’s lease with Chapman provided that Keystone acquired the
premises “as is.” The “as is” language in Keystone’s lease with Chapman is contained in the
section of the lease entitled “Lessee’s Examination of Premises, Maintenance and Repair,” which
is also found in Dutchmen’s lease with Chapman.
Based on the “as is” clause, Dutchmen argues that Keystone “contractually assumed any
risks associated with the scaffolding.” There are several reasons why this contention does not
support summary judgment. First, if the scaffolding passed directly from Dutchmen to Key-
stone, it was not a part of “the premises” leased by Chapman to Keystone and was not the subject
of the “as is” clause. Second, in order to effectuate an exemption from liability for the conse-
quences of negligence, a provision for such an exemption must clearly express an intention to
exclude liability for any and all harms however caused. Arthur Linton Corbin, 6A Corbin on
Contracts § 1472 (1962). The “as is” language in the lease between Chapman and Keystone
serves to disclaim any implied warranty from Chapman to Keystone. “As is” means “in the ex-
isting condition without modification.” Black’s Law Dictionary 121 (8th ed. 2004). “Generally,
a sale of property ‘as is’ means that the property is sold in its existing condition,” and use of the
phrase “as is” relieves the seller from liability to the purchaser for defects in that condition. Id.
at 122. Expressions such as “as is” or “with all faults” are commonly understood to exclude im-
plied warranties. See Warner v. Design & Build Homes, Inc., 114 P.3d 664, 668 (Wash. Ct.
App. 2005); 17A C.J.S. Contracts § 359 at 403 (1999). The implications of such a disclaimer as
to third party tort claims are not clearly spelled out and as elaborated below, are not made clear
by settled judicial precedent.
More, importantly, even if we construe the “as is” clause as an attempt to bar such
claims, an agreement between Keystone and Chapman or Keystone and Dutchmen does not bar
Reynolds’ tort claim against Dutchmen. Dutchmen is correct that contracting parties are free to
allocate risks as they choose. But that freedom extends only to allocation of risk as among the
parties to the agreement. Parties cannot by agreement transfer risk from themselves to non-
9
parties. 3 Keystone could indemnify Dutchmen against third party claims, but Keystone cannot
waive its employees’ rights against Dutchmen. 4 Keystone can agree to indemnify Dutchmen
against claims by Keystone employees. 5 Even if we take the agreement to lease the premises “as
is” to imply such an indemnity as to the scaffolding, an employer’s decision to indemnify a third
party does not limit an employee’s tort claim against the third party. See, e.g., Waters v. Puget
Sound Power & Light Co., 924 P.2d 925, 926 (Wash. Ct. App. 1996) (employer’s agreement to
indemnify a third party is not enforceable to bar tort claims brought by its employees against the
third party); 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, §
121.04D (2005).
We find little case law on the effect of an “as is” clause on tort liability to third parties.
Dutchmen cites this Court’s decision in Stapinski v. Walsh Construction Co., Inc., 272 Ind. 6,
395 N.E.2d 1251 (1979) for the proposition that one who sells “as is” has no duty to an injured
bystander. In Stapinski an employee was injured when the drive shaft of an automobile broke
loose and flew through the windshield. The employer had purchased the automobile fifteen
months prior to the incident and signed a contract stating that it was purchasing the vehicle “as
is, where is.” Id. at 1252. The injured employee sued the former owner of the automobile under
section 388 and alleged that the shaft broke because of failed maintenance by the former owner.
Id. We held that section 388 did not impose liability on the former owner because the purchaser
used the trucks on the highways with knowledge that it had never been on public highways and
had been responsible for maintenance of the automobile for over a year before the injury, and
3
See Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004) (“A person cannot limit his or her tort law duty
to third parties by contract.”); Young v. Tri-Etch, Inc., 790 N.E.2d 456, 459 (Ind. 2003); Morris v.
McDonald’s Corp., 650 N.E.2d 1219, 1221-23 (Ind. Ct. App. 1995) (plaintiff injured at a franchised
McDonald’s restaurant could sue McDonald’s despite waiver and indemnity clauses in contract between
McDonald’s and franchise operator because injured plaintiff was not a party to that contract).
4
See, e.g., Folstad v. Eder, 467 N.W.2d 608, 612 (Minn. 1991) (Employer waived its right to sue third
party when it settled a subrogation claim with the third party prior to the commencement of trial in the
employee’s direct tort suit. The employer’s waiver did not affect the employee’s right to bring the tort
claim against the third party).
5
See, e.g., Borroel v. Lakeshore, Inc., 618 F. Supp. 354, 358-59 (D. Colo. 1985) (an express contract of
indemnity is an exception to the rule that the employer is immune from suits by a third party who is held
liable for an employee’s workplace injury); Gen. Tel. Co. of the S.E. v. Trimm, 311 S.E.2d 460, 462 (Ga.
1984) (an express contract of indemnity can be enforced by a third party against an employer who has
paid workers’ compensation benefits to an employee); Rucker Co. v. M & P Drilling Co., 653 P.2d 1239,
1241 (Okla. 1982) (an injured employee filed an action against his employer’s supplier and the supplier
cross-petitioned for indemnity from the employer); Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex. 1990)
(same); 7 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 121.04D[2] (2005).
10
had purchased the vehicle “as is.” Id. at 1254. We upheld summary judgment for the former
owner, citing an Ohio case which held that an owner of a used truck who sold the same “as is” to
a dealer is not ordinarily liable for injuries to a purchaser from the dealer. Id. at 1253 (citing
Thrash v. U-Drive-It Co., 110 N.E.2d 419, 423 (Ohio 1953)). Although Stapinski did not in-
volve a sale by a dealer who may be expected to inspect and repair before reselling, we found
that the former owner was not liable essentially based on the proposition that where there is
‘“another conscious and responsible agency which could and should have eliminated the hazard,
the original agency is relieved from liability.’” Id. (citing Thrash, 110 N.E.2d at 422).
Dutchmen is correct in pointing out that Stapinski noted the employer’s agreement to
purchase the vehicle “as is.” But this factor was cited among others and in isolation Stapinski
did not find it sufficient to eliminate any liability of the seller to bystanders, employees or other
third parties in the scope of the risk. To the contrary, we think the holding in Stapinski is
grounded largely on the employer’s obligation to maintain the vehicle coupled with the em-
ployee’s use of the truck on public highways, both of which amounted to intervening circum-
stances.
Dutchmen’s reliance on landlord-tenant cases is also misplaced. It is true, as Dutchmen
contends, that a landlord under many circumstances has no liability to tenants or others for inju-
ries on the property when the tenant is in full control of the leased premises. But the case
Dutchmen cites for this proposition deals with injuries due to snow removal that was the tenant’s
obligation. See Smith v. Standard Life Ins. Co., 687 N.E.2d 214, 217 (Ind. Ct. App. 1997).
Dutchmen does not address Reynolds’ claim that the concealed defect in the scaffolding was not
susceptible of discovery by Keystone or Reynolds in the ordinary course of maintenance.
Finally, Dutchmen also cites the affidavit of Keystone’s chairman that:
Keystone’s understanding was that, if it accepted the Scaffolding from
Dutchmen or Chapman, Keystone would be accepting and taking possession of
the Scaffolding on an “AS IS” basis.
More specifically, Keystone’s understanding was that, if it accepted and
took possession of the Scaffolding, it was doing so at its own risk, regardless of
whether the Scaffolding contained defects or deficiencies.
11
Reynolds responds that the chairman was not present during the lease and scaffolding negotia-
tions and that acceptance of the scaffolding “as is” was never discussed in the negotiations. But
even if we take the chairman’s affidavit as reflecting some form of agreement between Chapman
and Keystone or Keystone and Dutchmen, it does not support summary judgment as to Reynolds.
The affidavit is ambiguous and may be construed as either a disclaimer of warranties, an indem-
nity of Chapman and/or Dutchmen, or an effort to bar third party claims. For reasons already
given, none of these would bar Reynolds’ claim.
Conclusion
The ruling of the trial court denying Dutchmen’s summary judgment motion on Rey-
nolds’ section 388 of the Restatement (Second) of Torts claim is affirmed. This case is re-
manded to the trial court.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.
12