concurring as to issue V and dissenting as to issues I, II, III, and IV.
I concur with the majority’s conclusion under issue V that Daniels and Solar neither owed nor assumed a duty to Vaughn under a common-law negligence theory. However, I respectfully dissent from the *1140majority’s conclusion that Vaughn may proceed against Daniels and Solar under the Indiana Products Liability Act. In my view, Vaughn cannot recover under the Act for the simple reason that he is not a “user” or “consumer” of a product. I would therefore affirm the trial court’s grant of Daniels’s and Solar’s motions for summary judgment on Vaughn’s claims under the Act.
For purposes of the Act, Indiana Code Section 34-6-2-29 defines “consumer” as:
(1) a purchaser;
(2) any individual who uses or consumes the product;
(3) 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
(4) any bystander injured by the product who would reasonably be expected to be in the vicinity of the product during its reasonably expected use.
See also Ind.Code § 34-6-2-147 (providing that “ ‘[u]ser’, for purposes of [the Act], has the same meaning as the term ‘consumer’, which is set forth in section 29 of this chapter”). Clearly, Vaughn does not fit within definitions one, three, or four. As the majority notes, he may recover under the Act only if he is an “individual who [was] us[ing] ... the product[.]” Op. at 1124. The majority relies on our supreme court’s statement in Stegemoller that “maintenance may be part of a product’s reasonably expected use”13 in concluding that “[i]t is a logical extension of the supreme court’s analysis to include in the definition of user or consumer a person who is injured while installing a product[.]” Op. at 1127. While I agree that current precedent supports the conclusion that maintenance of a product may be part of that product’s “reasonably expected use” under certain limited circumstances, it simply does not follow that installation of the product itself, without more, confers “user” status on the individual performing the installation.
The verb “use” may be defined as “[t]o employ or make use of (an article, etc.), especially] for a profitable end or purpose[.]” The Compact OxfoRD English DICTIONARY 2204 (J.A. Simpson & E.S.C. Weiner, eds., 2nd ed.1991). The verb “install” may be defined as “[t]o place (an apparatus, a system of ventilation, lighting, heating, or the like) in position for service or use[.]” Id. at 857. Quite simply, installation of a product occurs before use of the product has even begun and therefore cannot be part of a product’s use. Consequently, one who installs a product cannot be a user under the Act.
In the instant case, the coal sump’s reasonably expected use was to separate certain materials generated in the coal mining *1141process, and it had not yet been put to that use when Vaughn was injured. Therefore, Vaughn could not possibly have been an “individual who [was] us[ing] ... the product!.]” Ind.Code § 34^-6-2-29(2).14 I would hold on that ground that Vaughn cannot maintain an action against Solar or Daniels under the Act and would therefore affirm the trial court’s judgment in all respects.
. The Stegemoller court, in turn, cited to Butler for this proposition. The holding in Stegemoller was not, in fact, based on maintenance of the product. Rather, it was based on the plaintiff’s bystander status under Indiana Code Section 34-6-2-29(4), see Steg-emoller, 767 N.E.2d at 974, and our supreme court's underlying conclusion that "[t]he normal and expected use of asbestos products entails contact with its migrating and potentially harmful residue.” Id, at 976.
It is also worth noting that the Butler court’s conclusion that Butler could seek recovery under the Act was not based on the fact that he was performing maintenance on a product but rather on the fact that he was an employee of the "consuming entity[.]” See Butler, 733 N.E.2d at 919 ("As an employee of the 'consuming entity,’ Butler falls under the definition of 'user or consumer[.]' ”). In summary, our supreme court has never held that maintenance by itself can be considered part of a product's use. Current precedent holds only that a person injured while performing maintenance on a product can recover under the Act if he is an employee of the consuming entity.
. The majority distinguishes the instant case from Thiele, 489 N.E.2d 562. In that case, a panel of this court held that the phrase " 'user or consumer’ ... does not include intermediaries in the distributive chain” and that "it appears our legislature has required a 'sale' to a ‘first consuming entity' before the protection afforded by the Act is triggered!.]” Id. at 588. I agree with the majority that Thiele is factually distinguishable from the instant case, in that the Thiele court addressed the status of an intermediary in the product’s distribution chain while we address the status of a person installing a product after its sale to the first consuming entity.
In my view, the Thiele court interpreted the plain language of Indiana Code Section 34-6-2-29 too narrowly. As previously mentioned, Section 34-6-2-29 recognizes four general types of consumers: purchasers, individuals who use or consume the product, persons who are in possession and control of the product while acting for or on behalf of the injured party, and bystanders. Only under the first category is a person a "consumer” by virtue of a sale; I cannot see that any sale is required under the other categories. I believe that the Thiele court was incorrect in concluding that Thiele was not a user or consumer because there had been no sale to a first consuming entity. In my view, Thiele could not seek recovery under the Act for precisely the same reason that Vaughn should not be able to: the handling of cases of soda within a warehouse, like the installation of a coal sump, is not part of a product's use.