dissenting.
The nature of the legal duty imposed on the gas company is a keystone of this case. It is not a duty arising from general principles of the common law or from a contract. It arises instead from a public law, a plumbing code. Elder v. Fisher (1966), 247 Ind. 598, 217 N.E.2d 847.
The misconduct of the gas company in installing this water heater is not a failure to properly perform according to the terms of a contract or a warranty. The misconduct of the gas company is instead the failure to conform to the mandate of the plumbing code. Prest-O-Lite Company v. Skeel (1914), 182 Ind. 593, 106 N.E. 365.
The purpose of the plumbing code is not just to protect persons like the Barneses who contracted with the gas company to install the water heater. The plumbing code has instead the broader goal of protecting persons such as the Atkinses who may later use the water heater and have property in its proximity.
The gas company stipulated to the existence of its public law duty, to its actual negligent conduct in violation of the duty, and to the consequent injury befalling the Atkinses. Liability in this case is based upon negligence. The contract between the Barneses and the gas company is merely incidental. Consequently the legal concept of privity is totally irrelevant. Judge Ryan's determination of liability, based as 'it is upon the stipulation, should be affirmed.