concurring.
I fully concur in the opinion of the majority which holds that the ten year statute of repose is not applicable to the case before us. I further agree with Part II of the opinion to the extent that it observes that there is a decided distinction between the existence, under the cireumstances, of a duty to inspect and a breach of that duty. As noted, a failure to discover a defect which is not discoverable by reasonable inspection does not constitute breach of the duty of reasonable care.
The dissenting opinion by Judge Riley prompts some additional observations. In Indiana, we do not seem to agree upon any focused test to determine whether a tort duty exists with respect to a given defendant vis a vis a given plaintiff, Most frequently it is stated that whether a given defendant owes a duty to a given plaintiff depends upon the relationship between the two. See, e.g., Stump v. Commercial Union (1992) Ind., 601 N.E.2d 327, 332; Webb v. Jarvis (1991) Ind., 575 N.E.2d 992, 995, reh'g denied ; Gariup Construction Co., Inc. v. Foster (1988) Ind., 519 N.E.2d 1224, 1227. In Gariup, however, Justice Dickson speaking for the Court, noted that the duty determination is "not without difficulty" and in quoting from a well-regarded treatise concluded that " '[nlo better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists"" 519 N.E.2d at 1227. Buch rationale virtually defies application with any degree of accuracy or predictability. See Jay Tidmarsh, Tort Law: The Languages of Duty, 25 Ind.L.Rev. 1419 (1992). Perhaps it is for this reason that we have in the past articulated the principle that:
"The law imposes but one common law duty and that duty is to use due care (citation omitted). The duty is the same for all relations, without regard to the facts of the case."
South Eastern Indiana Natural Gas Co., Inc. v. Ingram (1993) 1st Dist.Ind.App., 617 N.E.2d 943, 953. As a corollary to this premise we have said:
"[The substantive law establishes the standard of care which must be met, ie., reasonable care. The standard is a fixed one and is independent of the conduct of others but the conduct required of the individual to measure up to the fixed standard varies depending upon the nature of the duty owed and the surrounding circumstances." Walters v. Kellam & Foley (1977) 2d Dist., 172 Ind.App. 207, 360 N.E.2d 199, 214, reh'g denied.
Be that as it may, and couched in whatever terminology one may choose, the failure to discover a defect in a product, not discoverable by the exercise of reasonable care under the cireumstances does not give rise to liability under a theory of common law negligence.
I am unable, however, to fully subscribe to the majority's analogy to premises liability on the part of a landowner. I recognize that the Webb v. Jarvis test focuses upon the relationship of the parties, as does the test for the landlord-invitee duty. However, I see no reason to make such analogy except to the extent that Hability upon the part of a landowner arising out of some "defect" existent upon the land bears some superficial relationship to the rationale which would impose liability upon the part of one who delivers a defective chattel to a person for a *125business purpose. As noted by Tidmarsh, supra, 25 Ind.L.Rev. 1419, 1428;
"[Tlhis [landlord lability] status-driven test has come under increasing attack for its arbitrary character and its finespun distinctions. Consequently, it has been replaced in a substantial number of jurisdictions with a general duty of reasonable care under the cireumstances."
Our Supreme Court's decision in Evansville American Legion Home Association v. White (1958) 239 Ind. 138, 141, 154 N.E.2d 109, 111, is wholly compatible with the "reasonable care under the circumstances" test. That decision need not have been couched in terms of "no independent duty to make inspection[.]"
In any event, I fully concur in the decision which affirms the summary judgment.