*1 329 Stetina to seek the assistance of a licensed warrant issued in this accomplished case purpose. attorney. finally challenges Stetina the sei Issue Seven papers zure of her being a violation of Finally, argues Stetina that certain her right against fifth amendment self-in and, evidence was illegally obtained there crimination. These were apparently pre fore, should have been excluded.8 Stetina pared voluntarily Therefore, however. initially challenges the electronic surveil they subject were pursuant seizure to a during lance undertaken Alder's valid search warrant. Andersen Mary v. 29, Smith's visit to her home on March 463, 473-74, land 427 U.S. 96 S.Ct. Apparently, 1984. either Alder or Smith 2737, 2747, 627, 638; 49 L.Ed.2d see also
wore a concealed permit transmitter which United States v. Doe 605, 465 U.S. ted two other officers to monitor the con -, 104 1241-42, 1245, S.Ct. 79 Alder, versations between Smith and Steti- 552, 559-60, L.Ed.2d 563. However, na. gained through no evidence judgment of the trial court is re- the use of this device was offered at the versed and the cause remanded to allow hearing. court, consequently, The trial had appellee an opportunity her evi- opportunity apply exclusionary dence. rule to that evidence. appears argue Stetina also NEAL, J., ROBERTSON, J., concur. entry that the of Smith and Alder into her home constituted a violation of the fourth They
amendment. were invited into the
home, however, by Thus, Stetina. she con governmental
sented to the intrusion. The
mere fact that Stetina was unaware of the
agents' not, itself, true identities does vitiate that consent. Lewis v. United CITIZENS GAS COKE 206, 207, 385 States U.S. 87 S.Ct. UTILITY, Appellant, 424, 425, 312, 314; 17 L.Ed.2d Stinchfield 423, 431, Ind.App. v. State 174 N.E.2d 1156. AMERICAN ECONOMY CO., Appellee. INSURANCE challenges
Stetina validity also of the search warrant obtained the State 2-1084A301.* No. for the search of her home. The warrant Indiana, Appeals Court of, among authorized the seizure other First District. items, "medical files". Stetina contends that the specified warrant should have April 1985. names of the medical files to be seized. In 29,May Rehearing Denied instance, least, this such was not re quired. brief, As the points State out its specificity required for a valid search pre
warrant is that is which sufficient to general fishing expedition by police.
clude a (7th Cir.1977),
United States v. Prewitt
F.2d cert. denied 434 U.S.
98 S.Ct.
Harry Peak, V. Terrence F. Indianapolis, appellant. Wray, Donn H. Stewart Irwin Gilliom Guthrie,
Meyer Indianapolis, appel- lee.
RATLIFF, Presiding Judge. STATEMENT OF THE CASE (Citizens Utility Citizens Gas & Coke Gas) appeals judgment, the trial court's facts, in favor of American Eeon- (American omy Company Insurance Econo- $12,077.83 my) plus prejudgment inter- est. We affirm.
FACTS April Citizens Gas sold a water heater George Mr. and Mrs. Barnes and installed it in their residence. replacement The water heater included a (also pressure relief valve known T as a valve). and P Plumbing Uniform Code required that a drain be constructed near the valve and extend to the outside of the building. purpose The obvious of the drain disperse might was to water which leak out of the valve under three different circum- stances. Water would be released from overheated, the valve if the water heater over-pressured, it or if the relief valve mal- functioned. heater, installing
While the water Citi- explained zens Gas of a drain to Mr. and Mrs. Barnes. The cost installing the drain was estimated to ex- ceed the cost of the water heater itself. DISCUSSION AND DECISION Although Citizens Gas fully explained the Issue One
potential danger to the contents of the drain, house without the spe- Mrs. Barnes At the outset par we note that cifically told Citizens Gas to install ties have significantly ques narrowed the water heater without the drain. In re- *3 appeal. tion on Citizens Gas does not chal sponse, required Citizens Gas Mrs. Barnes lenge the lower court's determination of to execute a by writing waiver on the ser- negligence. Instead, it only raises the is vice contract that she assumed the cost of sue of whether privity lack of shields it all if the valve malfunc- from liability. Furthermore, this action Although tioned. stipulated was tried stipulated Thus, facts. that their installation of the water heater presumptions indulged are in favor of the code, in violation of the it was also trial court as good position we are in as a stipulated that such a pose violation did not as the trial applying in the facts to any personal threat of injury. our determination privity issue. years Some later Mr. and Mrs. Barnes General Asbestos Supply & Co. v. Aetna sold their Mary home to John and Atkins. Casualty Surety Co. 101 Ind. In July of away the Atkins were from 207, 212, App. 198 N.E. 815. valve, their fact, home when the T P and in single malfunctioned. As a result the sto Although the case involves ry concrete slab residence was flooded a contractorowner relationship a discus causing personal substantial sion of concerning recent cases privity in property and damage. structural The At- products the liability area is useful. Tradi king filed a claim under their home owner's tionally privity has been a barrier to suits policy insurance with American Economy. against remote contractors and remote sell This claim was settled when American products. ers of Hiatt v. Brown $12,077.38 Economy paid to the Atkins.1 Ind.App., 422 N.E.2d trons. de 28, 1980, July Economy filed products In liability area, nied. the re subrogation their claim to recover the quirements privity have been abolished paid amount it its complaint insured. The under certain In circumstances. Lane v. alleged Gas, contractor, Citizens negli as a Barringer Ind.App., 407 N.E.2d gently installed the water heater in viola denied, trans. the court stated: tion of the plumbing parties code. The "Clearly, privity longer of contract is no pertinent facts and the required a action for a trial court judgment against entered Citi product tort; defective sounds in either in $12,077.33 plus zens Gas for prejudgment negligence theory or theory on the of strict interest. appeals. Citizens Gas now Habilityin tort." See J.I. Case v. Sandefur 519; 245 Ind. 197 N.E.2d see ISSUES 34-4-20A-8(a) also Indiana Code section 1. Is a Contractor in liable tort to third (Burns Supp.1984). However, privity is parties non-inherently dangerous for prop- still a substantial in warranty barrier ac erty damages job at acceptance a site after 1175; tions. Lane at contra Lane at 1176 of the work the owner? (Ratliff, J., dissenting).2 The rationale for retaining 2. Is privity warranty interest allowable un- in actions is due parties' der Agreed Statement of privity warranty to the fact that and Facts? concepts. both contractual Lone 1. This included the loss sustained from 2. The dissent would abolish of ver- amount cases, privity and tical in such structural and reloca- but concurred in privity living require- result because the horizontal expenses during repair tion and incurred ments of the Indiana version of the Uniform replacement. Commercial Code were not met. adjacent land- privity years in suits eco- firmed later an
Retention of to recover when Es- against in owner succeeded a suit compelling nomic loss is more since even sued Essexes quiet title The deeply sexes remedy such a rooted contract their eco- Ryan to recover principles. held, despite nomic loss. The court par- "Generally extends to the in re- the diminution of the barrier ties to the contract of sale. It relates to cases, preclud- cent the Essexes' action was bargained expectations with they ed because were not buyer Accordingly, and seller. when reviewing Ryan. Essex at 871-78. After cause of action arises out economic concerning is- number of cases bargain loss related the loss of or sue, court that because concluded profits consequential damages relat- Ryan's negligent survey pose the did not thereto, bargained expecta- ed personal injury, privity threat of remained buyer and seller tions of are relevant and *4 a barrier and the Essexes could not recover privity required. them between is still their economic loss. Id. [Citations omitted.]" case falls somewhere be- Motors, Goerg v. Richards Boat & Inc. Ind.App., Although Hiatt and the de- 384 N.E.2d tween Essex. of did products denied. The trend in liabil- fective installation the water heater trams. pose safety hazard, injury not a the sus- ity privity actions seems to to the be retain merely not tained was economic loss. suits, barrier in actions akin to contract and privity in dispense with Rather, suits akin to tort the failure to install the water according in heater to code resulted exten- actions. property damage; precise sive reason products liability, in the As area of urged privies their to allow plaintiffs not in with a contractor installation of the drain. Citizens ar- Gas may negligent performance not sue for of gues personal inju- that no because risk of However, just services. Hiott at 789. as existed, ry supports Essex reversal. How- products liability, exceptions in the area of ever, adopting reasoning in this we would to the of contractor-owner have to draw a distinction between a con- Hiatt, developed. have In an archi negligently creating a risk of immi- tractor design in tect was sued for injury creating immi- nent and an vehicular/pedestrian and construction of a danger property damage. nent a Such ramp airport plaintiff at an from which the very easy make it distinction would for a The court fell. held the architect liable plaintiff to sue a remote contractor to re- fitting existing privity the case into an ex impossible cover medical costs and almost ception. "[PJrivity was no if at the bar plaintiff repair- a to cost of recover the accepted time the owner the work the con ing property by a remote danger tractor knew it was in a condition negligence. Despite per- contractor's defective, ously Bridge Travis v. Rochester appellant's argument, suasiveness 1, 188 Ind. 122 N.E.2d Co. [sic] believe the line is better drawn we completed inherently or the work was by distinguishing suits to recover economic dangerous imminently dangerous. or Hol per- to loss from actions recover either (1938) Nauracaj, Furnace 105 land Co. damage. injury property sonal or Ind.App. 14 N.E.2d 339." Hiatt However, mainly in Ryan Essex v. Our conclusion based on the Ind.App., premise recovery injury person 446 N.E.2d the court that to was given completely injury property are on the same opportunity to abolish or foot- privity requirement negli in contractor ing. injuries Both are tortious nature. § Ryan gence actions but declined to do so. (1960). LLE. 6 We discern Torts performed suing compensat- to be negligently survey in 1955 on difference between subsequently personal injury proper- ed for or purchased land the Essex- ty. In court Hiott the noted that the archi- inaccuracy survey es. The was con- negligence posed tect's $12,077.33. a threat of In judgment the trial property person. both Eiatt at 740. prejudgment awarded July interest from Furthermore, in the area of strict tort lia 28, 1980; the date Economy's bility, legislature's our adoption of Indiana complaint was filed. Citizens Gas contends (Burns Code section 34-4-20A-8 Supp. prejudgment award of interest was er- 1984) abolished the barrier ac roneous. tions for either per or Citizens argues that, Gas first while the injury.3 sonal facts of the stipulated, case were neither In contrast a discernable distine party agreed interest tion exists between suits for economic loss appropriate. Indiana law sets out the and those of a more tortious nature. Ac circumstances where prejudgment interest loss, Essex, tions for economic such as is to be awarded. "Interest is recoverable closely much more related to the contractu in actions in tort damages where al link between contractor and owner which sought to be complete recovered are justification was the traditional ap for the particular ascertainable as of a time and in plication of the principle contractual accordance with fixed rules of evidence and privity. Hiott at 789. A suit for economic known standards of value. omit- [Citations loss of the bargain value of the is better Wayne Fort ted.]" National Bank v. restricted parties between whom the Scher Ind.App., 419 N.E.2d bargain was struck. Richords at 1092. CJL present case, trans. denied. In the When an individual is dissatisfied that he damages prayed for American Eeon- *5 did not receive value of paid what he omy paid was the amount it out to its for, dispute should be left to the con was, insureds. therefore, The amount com- tracting parties. Id. Accordingly, because plete as of the date complaint. of the present case is an property action for Clearly, the amount was ascertainable be- loss, and not economic the contrac cause stipulated Citizens Gas to it. The principle tual should not be a proper eight percent provided rate is by barrier. statute. Indiana Code section 24-4.6-1- holding Our logical is a extension of the 103. Since the elements of an award of exception applied in Hictt Because no present, interest reasonable distinction per- exists between by only award the trial prop- was not property sonal damage caused er, required. it was Prejudg- Id. at 1812. by a contractor's ex- properly ment interest was awarded. ception plaintiff which enabled in Hiatt Judgment affirmed. applies sue the architect equal with force in the case. Citizens Gas knew ROBERTSON, J., concurs. that the installation of the water heater in posed violation of the code an imminent NEAL, J., separate opinion. dissents with threat of property to the occupants home's and lack of will NEAL, Judge, dissenting. liability. not shield it from respectfully I following dissent for the
Issue Two holding reasons. The here is an extension In the of the rule regarding privity. facts The existing exception agreed abolishment of paid as to the by amount Economy to its insureds. This amount was injuries where are concerned is (Burns Indiana product Code section 34-4-20A-3 to the user or consumer or to Supp.1984) pertinent part: reads in property his if that user or consumer is in the "(a) sells, leases, puts persons One who or otherwise class of that the seller should reason- any product into the stream of commerce ably being subject in a foresee as to the harm unreasonably dangerous defective condition the defective condition.... [Em- any user or consumer or to Ais phasis supplied.]" subject liability physical harm caused principles. based in humanitarian Fault in Barnes, directly
this case is traced requested precise
who installation and
even executed a release therefor. The
manner of the installation was for their benefit, hidden,
own it neither
inherently dangerous, nor health- or life- later,
threatening. years Over seven after others,
the home was sold valve
failed, causing damage. Responsibility,
any, Barnes, for the rests with not protesting justifiable workman. No exception
reason exists to extend the
the facts of this case. PHARMS, Appellant Edward
James (Defendant-Petitioner Below), Indiana, Appellee
STATE of
(Plaintiff-Respondent Below).
No. 3-1084A293PS. Appeals Indiana,
Court of
Third District.
May 1, 1985. Pharms, pro
James Edward se. Pearson, Linley Ind., E. Atty. Gen. of Alford, Deputy Gen., Richard Atty. Albert Indianapolis, appellee.
STATON, Presiding Judge. (Pharms) James Pharms pled Edward guilty in robbery. 1977 to one count of appeal petition belated from denial of his post-conviction relief he raises two is- sues: