dissenting.
A bystander’s common law right to maintain a products liability action was well settled in the State of Indiana prior to the 1978 enactment of the Products Liability *120Act.1 Peck v. Ford Motor Co. (7th Cir. 1979), 603 F.2d 1240, 1244 (applying Indiana law); Sills v. Massey-Ferguson, Inc. (N.D. Ind. 1969), 296 F. Supp. 776, 780-82 (applying Indiana law); Gilbert v. Stone City Constr. Co., Inc. (1976), 171 Ind.App. 418, 423, 357 N.E.2d 738, 742; Chrysler Corp. v. Alumbaugh (1976), 168 Ind.App. 363, 373, 342 N.E.2d 908, 915-17, trans. denied, 168 Ind.App. 363, 348 N.E.2d 654. The majority opinion correctly notes that the fundamental rules of common law may be modified by statute only in clear and concise expression or by unmistakable implication. Grusin v. Stutz Motor Car Co. (1933), 206 Ind. 296, 303, 187 N.E. 382, 385; Nicholas v. Baldwin Piano Co. (1919), 71 Ind.App. 209, 211, 123 N.E. 226. The majority then holds that the legislature’s failure to specifically include the term “bystander” or words to that effect in the recovery limitation clause of the 1978 Products Liability Act is sufficient to reflect an intent by this State’s legislature to abrogate the prior common law in this area. I disagree.
The 1978 Act limits recovery under the act to “users or consumers”.2 The act then defines “users and consumers” as follows:
“‘User or consumer’ shall include: a purchaser; any individual who uses or consumes a product; or any other person who, while acting for or on behalf of the injured party, was in possession and control of the product in question.” (emphasis added.)
Indiana Code section 33-1-1.5-2 (1978). Clearly, this language does not expressly exclude bystanders in clear and concise language. Nor can it be said that the words “shall include” constitute an unmistakable implication that the legislature meant to exclude bystanders.
I do not share the reluctance of the majority of this court to consider the 1983 amendment of the Products Liability Act as evidence of the legislature’s intent regarding the present issue. In 1983, I.C. § 33-1-1.5-2 was amended to read:
“ ‘User or consumer’ means a purchaser, any individual who uses or consumes the product, or any other person who, while acting for or on behalf of the injured party, was in possession and control of the product in question, or any bystander injured by the product who would normally be expected to be in the vicinity of the product during its reasonably expected use.” (emphasis added.)
The subsequent use of the term “means” as opposed to “shall include” reflects the legislature’s understanding, that the language “shall include” was not exclusionary. In adopting the common law rule, the legislature used the more limiting language provided by the term “means” and essentially equated the phrase “users and consumers” with the individuals listed in I.C. § 33-1-1.5-2 (1983), bystanders expressly included. This express and restrictive adoption of the common law rule allowing bystanders a cause of action under a products liability theory seems to me to be indicative of the fact that the legislature never intended to abrogate the common law rule. Therefore, the language employed in the 1978 Products Liability Act was clearly insufficient to constitute an abrogation of the common law by unmistakable implication or by clear and concise expression. I must dissent from the majority opinion and state that a bystander’s cause of action under a products liability theory of recovery was never interrupted in the State of Indiana.
. Indiana Code section 33-1-1.5-1 et seq.
. Indiana Code section 33-1-1.5-3(a) (1978).