concurring in part and dissenting in part.
I concur on Issue I and dissent on Issue II. To define standards of conduct in terms of "duty" pigeonholes the concept of negligence-a concept which by its very definition, depends entirely on the relationship of the parties and the facts of each case. Instead, it seems more logical to define "duty" in terms of the relationship of the parties and the legal obligation or standard that is required to meet that obligation. In other words, "duty" is a question of whether the defendants, Detroit Diesel and North Manchester are under any obligation for the benefit of Bloemker.
Courts have generally recognized that pub-lie policy and social considerations, as well as foreseeability, are important factors in determining whether a duty will be held to exist in a particular situation ... In fixing the bounds of duty, not only logic and science but also policy play an important role, for, as it has been said, the imposition of a duty is an exercise of judicial policy making.
57A Am.Jur.2d Negligence § 87.
The late Dean Prosser expressed this view as follows:
There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question ... The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none.
Sinn v. Burd (1979), 486 Pa. 146, 404 A.2d 672, 681-682, (citing, Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 14-15 (1958)).
In light of the wisdom of Dean Prosser's viewpoint, I find Sections 388 and 392 of the Restatement (Second) of Torts to be applicable to the instant case. These sections ree-ognize the relationship between the injured party and the supplier of chattels as the basis for imposition of a duty to use due care.
In Mitchell v. Smith (1965), Ind.App., 211 N.E.2d 809, we recognized the duty to inspect as part of the due care required in providing instrumentalities for doing work. We concluded in that case that recovery should be denied because a reasonable inspection would not have revealed the dangerous condition which caused the plaintiff's injuries. This is not the case here, however, because there is evidence contained in the record that a reasonable inspection of the pattern by the defendants could have revealed its dangerous condition.
In order to find the defendants negligent in the present case, there must be evidence that the defect which caused the injury was known to the defendants prior to the accident, or that, in the exercise of ordinary or reasonable care, they ought to have known of the defect. It is a material question of fact whether the explosion was occasioned by a defect which a reasonable and proper inspection would have disclosed and that ordinary and reasonable care required an inspection to be made. Because a material question of fact exists, the summary judgment should be reversed.