OPINION AND ORDER
Defendant Cintas Corporate Services #2 d/b/a Cintas Corporation (“Cintas”) has moved for summary judgment on Counts I, II, and III of plaintiffs’ complaint. (DE # 105.) For the following reasons, that motion is granted in part and denied in part.
I. Facts and Procedural History
Plaintiff Rex Hathaway was employed as a welder/plasma torch operator at Quik Cut, Inc. (“Quik Cut”), a welding/plasma cutting company located in Allen County, IN. On February 12, 2009, Mr. Hathaway was operating a Pro Cut 80 plasma cutter, which was manufactured by defendant Lincoln Electric Company (“Lincoln”). The Pro Cut 80 plasma cutter (“the plasma cutter”) is a machine that is used to cut through metal and steel. The plasma cutter emits sparks when used to cut metal.
While using the plasma cutter on February 12, Mr. Hathaway’s shirt caught on fire, which resulted in Mr. Hathaway suffering serious burns to a substantial portion of his body. The fire was started when sparks from the plasma cutter contacted the shirt Mr. Hathaway was wearing at the time. The shirt Mr. Hathaway was wearing at the time of the accident was a 100% cotton shirt (“the shirt”) provided to Quik Cut by defendant Cintas Corporate Services #2 d/b/a Cintas Corporation (“Cintas”).
Thе relationship between Quik Cut and Cintas was governed by a uniform rental agreement. (DE # 105-1 at 3.) Under that agreement, Cintas provided Quik Cut employees with work clothes, and also provided laundering and repair services for those clothes. (Id.)
Mr. Hathaway and his wife, Tammy Hathaway, brought suit against several defendants, including Cintas. (DE # 1.) In their complaint, plaintiffs brought three Counts against Cintas: negligence (Count I), breach of warranty (Count II), and products liability (Count III). (Id.) Plaintiffs also brought a loss of consortium claim against all defendants (Count VIII). (Id.) Cintas has now moved for summary judgment on Cоunts I, II, and III.
II. Legal Standard
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
The moving party bears the initial burden of demonstrating that these requirements have been met; it may discharge this responsibility by showing that there is an absence of evidence to support the non-moving party’s case. Carmichael v. Village of Palatine, Ill.,
The court’s role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50,
III. Count II: Breach of Warranties
Cintas begins its brief in support of its motion for summary judgment by arguing that Count II of plaintiffs’ complaint is superseded by plaintiffs’ product liability claims, and therefore Count II should be dismissed as duplicative. (DE # 106 at 7.) Plaintiffs do not respond to this argument.
“When interpreting state law, a federal court’s task is to determine how the state’s highest court would rule.” Rodas v. Seidlin,
The Indiana Supreme Court discussed, but ultimately did not decide, this issue in Kovach v. Caligor Midwest,
The court agrees with the cases cited above, and concludes that plaintiffs’ breach of implied warranty claims have been subsumed by their IPLA claim. See Henderson v. Freightliner, LLC, No. 1:02-CV-01301DFH,
IV. Count III: Products Liability
The Indiana Products Liability Act (“IPLA”), Indiana Code sections 34-20-1-1 through 34-20-9-1, governs all actions brought by a user or consumer against a manufacturer or seller for physical harm caused by a product, regardless of the legal theory upon which the action is brought. See Ind.Code § 34-20-1-1.
To succeed in an action under the IPLA, a plaintiff must prove the following elements:
(1) he or she was harmed by a product; (2) the product was sold “in a defective condition unreasonably dangerous to any user or сonsumer”; (3) the plaintiff was a foreseeable user or consumer; (4) the defendant was in the business of selling the product; and (5) the product reached the consumer or user in the condition it was sold.
Bourne v. Marty Gilman, Inc.,
Defendant Cintas has moved for summary judgment on plaintiffs’ product liability claims. (DE # 106 аt 14.) The court will address all three possible theories of defect in turn.
A. Manufacturing Defect
Plaintiffs allege that Cintas is liable under the IPLA due to a manufacturing defect in the shirt. (DE # 1 at 9.) Cintas argues that plaintiffs have provided no evidence that the shirt had a manufacturing defect. (DE # 106 at 17.)
“A product contains a manufacturing defect when it deviates from its intended design.” Westchester Fire Ins. Co. v. Am. Wood Fibers, Inc., No. 2:03-CV-178-TS,
In this case, plaintiffs argue that the shirt suffered from a manufacturing defect because Cintas intended to design a “heavy shirt” and the shirt that Mr. Hathaway was wearing on the day of the accident was not a “heavy shirt.” (DE # 115 at 13.) Additionally, plaintiffs argue that the shirt suffеred from a manufacturing defect because there were alternative designs available. (Id.)
As to the first theory, Cintas argues that plaintiffs have produced no evidence that the shirt varied in any way from the 100% cotton shirt it intended to produce. (DE # 106 at 18.) Thus, defendants have met their initial burden on summary judgment. In response, plaintiffs argue that Cintas intended to make a 100% cotton shirt that was a heavy shirt, and according to Dr. Walter Thomas, one of plaintiffs’ experts, the shirt at issue in this case was not a “heavy shirt.” (DE #115 at 13.) Plaintiffs, however, cite no evidencе that Cintas intended to make the shirt at issue a “heavy shirt,” and thus, have provided no evidence that the shirt deviated from its intended design. Therefore, plaintiffs have not produced any evidence upon which a reasonable jury could find for them, Carmichael,
Plaintiffs also argue that the existence of alternative designs provide evidence of a manufacturing defect. Plaintiffs do not cite any precedent indicating that an alternative design can provide the basis for a manufacturing defect claim, and the only case the court could find on this issue indicates the opposite is true. See Westchester Fire Ins. Co.,
B. Design Defect
Plaintiffs also аllege that the shirt was defectively designed. (DE # 1 at 11, 12.) Cintas makes several arguments why it is entitled to summary judgment on plaintiffs’ design defect claim. Each argument will be addressed in turn.
In TRW Vehicle Safety Systems, Inc. v. Moore, the Indiana Supreme Court discussed the appropriate standard for a design defect claim under the IPLA:
[I]n product liability claims alleging a product design defect, the Indiana Product Liability Act substitutes a negligence standard for strict liability and prescribes the applicable standard of care. Ind.Code § 34-20-2-2. To recover damages, a plaintiff asserting a claim of defective product design “must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product.” Id.
“Manufacturers have a duty to design products that are free of flaws which cause injury in the product’s use.” Whit-ted v. General Motors Corp.,
As Cintas points out in its brief, the Seventh Circuit, аnd other courts, have granted summary judgment against plaintiffs that have failed to demonstrate the cost effectiveness of alternative designs. In this case, although plaintiffs have submitted testimony indicating that the shirt would not have caught on fire if it had been treated with some sort of flame retardant (DE # 116-4 at 6), plaintiffs have submitted no evidence indicating the cost effectiveness of treating 100% cotton shirts with a flame retardant substance. This failure entitles Cintas to summary judgment on plaintiffs’ design defect claim. Lapsley v. Xtek, Inc.,
C. Failure to Warn
Finally, plaintiffs argue that the shirt was defective because the shirt did not have a warning “regarding the potential for injury related to using 100% cotton clothing while performing welding or plasma cutting.” (DE # 115 at 10.) Cintas argues that it is entitled to summary judgment because it relied on Quik Cut to warn Mr. Hathaway of the dangers associated with its product and Mr. Hathaway’s work environment. (DE # 106 at 22.) For the reasons outlined below, Cintas is entitled to summary judgment on plaintiffs’ failure to warn theory.
Under Indiana law, the duty to warn is twofold: “(1) to provide adequate instructions for safe use and (2) to provide a warning as to dangers inherent in impropеr use.” Rushford,
The sophisticated intermediary doctrine is aрplicable if: “(1) the product is sold to an intermediary with knowledge or sophistication equal to that of the manufacturer; (2) the manufacturer adequately warns this intermediary; and (3) the manufacturer can reasonably rely on the intermediary to warn the ultimate consumer.” First Nat. Bank and Trust Corp. v. Am. Eurocopter Corp.,
[T]he likelihood or unlikelihood that harm will occur if the intermediary does not pass on the warning to the ultimate user, the [] nature of the probable harm, the probability or improbability that the particular intermediary will not pass on the warning!,] and the ease or burden of the giving of the warning by the manufacturer to the ultimate user. Ritchie,242 F.3d at 724 (quotation omitted).
Id. at 691-92; see also Natural Gas Odorizing, Inc.,
“Whether a manufacturer has discharged its duty under the sophisticated intermediary doctrine is almost always a question for the trier of fact.” Downs,
In this case, Cintas argues that it discharged its duty under the sophisticated intermediary doctrine. (DE # 106 at 22-23.) Cintas directs the court to the Standard Uniform Rental Service Agreement (“the rental agreement”) between Cintas and Quik Cut. That document, which was signed sometime in 2004,
Unless specified otherwise, the garments supplied under this agreement are not flame retardant or acid resistant and contain no special flame retardant or acid resistant features. Flame retardant and acid resistant garments are available from Company upon request. Customer agrees to notify its employees that their garments are not designed for use in areas of flammability risk оr where contact with hazardous materials is possible. Customer warrants that none of the employees for whom garments are supplied under this agreement required flame retardant or acid resistant clothing.
(DE # 105-1 at 3.)
Cintas argues that this agreement shows three things: (1) Quik Cut agreed to warn its employees that the clothing was not to be used in areas with a flammability risk; (2) Quik Cut affirmed that its employees did not need flame retardant clothing; and (3) Quik Cut knew that the clothing was not flame retardant. (DE # 106 at 13.) Additionally, Cintas argues that Quik Cut was in a better position to know how the
Plaintiffs argue that the sophisticated intermediary doctrine is not applicable in this case. (DE # 115 at 11-13.) Plaintiffs argue that between Quik Cut and Cintas, Cintas had the greater level of sophistication about the uniforms. (Id. at 12.) Plaintiffs also argue that Cintas was in a position to recognize the need for flame retardant gear at Quik Cut and should not have sold 100% cotton shirts to a company that employed welders and plasma cutters. (Id.) Additionally, plaintiffs point out that none of the employees at Quik Cut knew that 100% cotton shirts could ignite. (Id.) Finally, plaintiffs argue that the rental agreement did not specifically warn that 100% cotton shirts could ignite when contacted by sparks. (Id.)
Although, as noted above, the question of whether a manufacturer has discharged its duty to warn under the sophisticated intermediary doctrine is usually a question of fact, this is a case that justifies application of that rule as a matter of law.
The first element of the sophisticated intermediary doctrine requires that the intermediary have “knowledge or sophistication equal to that of the manufacturer.” Am. Eurocopter Corp.,
The second element of the sophisticated intermediary doctrine, that “the manufacturer adequately warns this intermediary[,]” has also been met in this case. Am. Eurocopter Corp.,
Finally, the last element of the sophisticated intermediary doctrine requires that “the manufacturer can reasonably rely on the intermediary to warn the ultimate consumer.” Am. Eurocopter Corp., 378 F.3d
Although some of the other factors noted above weigh in favor of plaintiffs’ argument that the sophisticated intermediary doctrine does not apply, all three primary elements have been met in this case. Cintas warned Quik Cut that the shirts Cintas was providing were not flame retardant and should not be used in areas with a flammability risk. Additionally, Quik Cut agreed both that none of its employees needed flame retardant clothing and that it would warn its employees that the non-flame retardant clothing could not be warn in areas that have a flammability risk. “Delegation of the duty to warn makes particular sense[,]” as in this case, “where the manufacturer cannot control how the intermediary will use the product....” Monsanto Co.,
V. Count I: Negligence
Plaintiffs argue that even if their products liability claims should be dismissed, their case should move forward because the IPLA does not govern their negligence claim, as that claim is not subsumed by the IPLA because the relationship between Cintas and Quik Cut was primarily a service relationship, with goods only incidentally involved. (DE # 115 at 21.) Plaintiffs make no argument that the IPLA does not subsume negligence actions, and thus seem to concede that if the Cintas-Quik Cut relationship primarily involved a product, and not a service, Cintas is entitled to summary judgment. See Henderson v. Freightliner, LLC, No. 1:02-cv-1301,
“The IPLA does not apply to transactions that involve wholly or predominantly the sale of a service rather than a product.” Baker v. Heye-America,
The Indiana Supreme Court considers several factors when determining whether a transaction is predominately for a product or for services:
1) the language of the contract; 2) the circumstances of the parties and the primary reason they entered into the contract; 3) the final product the purchaser bargained to receive, and whether it may be described as a good or a service; and 4) the costs involved, and whether the purchaser was charged only for goods or a price based on both goods and services.
Pentony v. Valparaiso Dep’t of Parks and Recreation,
In Hill, one of the рlaintiffs was injured after the car she was driving veered off the road, hit the guardrail, and flipped over onto its side. Id. at 942. The plaintiffs, the injured driver and her husband, sued the defendants, an independent contractor and a sub-contractor that had been hired by the state to resurface a section of roadway and the roadway’s shoulder. The project required the defendants to remove and reset portions of the guardrail. Id. The plaintiffs sued defendants under the IPLA. Id. at 943. The defendants argued that they were not liable under the IPLA because they were service providers, and had not provided any product that would fall under the IPLA. Id. Specifically, defendants argued that removing and resetting guardrail was a service, and not a product. Id. Plaintiffs argued that the installation of new concrete plugs and the possible replacement of rusted rails created a factual issue of whether the defendants were sellers of a product. Id. The Indiana Court of Appeals disagreed, noting that “[t]he incidental installation of the new concrete plugs and rails does not change the predominatе thrust of this contract from the provision of a service into a product contract.” Id.
Great Northern Ins. Co. v. Buddy Gregg Motor Homes, Inc., a case from the Southern District of Indiana, is also instructive on this issue. No. IP 00-1378-C-H/K,
In the case at hand, Cintas argues that this relationship was clearly for the provision of a product, and argues that the laundering service was something that customers could but were not required to use. (DE # 199 at 10.) The evidence Cintas cites for this proposition, however, does not indicate that Quik Cut employees could launder their own clothes.
Additionally, Cintas put forth evidence outlining the extensive process that the clothing Quik Cut employees used went through after being returned to Cintas each week. (DE # 115 at 22.) Unlike the service aspects of the transactions in the Great Northern Ins. Co. and Hill cases, the service aspect of the relationship between Quik Cut and Cintas was not incidental. It made up a substantial portion of the relationship. (See DE # 116-15 at 5, 13-20.)
In sum, unlike the transaction in Great Northern Ins. Co., a reasonable jury could find that the relationship in this case was predominantly for the sale of a service. Therefore, Cintas has not met its initial burden and is not entitled to summary judgment on Count I of plaintiffs’ complaint.
VI. Conclusion
For the foregoing reasons:
1. Defendant Cintas’s motion for summary judgment is GRANTED as to Counts II and III, and DENIED as to Count I. (DE # 105.)
2. Defendant Cintas’s motion for oral argument (DE # 120) is DENIED AS MOOT.
SO ORDERED.
Notes
. The facts that follow are construed most favorably to plaintiffs, the non-moving party. Chmiel v. JC Penney Life Ins. Co.,
. Although plaintiffs did not respond to Cintas’s argument regarding the IPLA subsuming tort breach of implied warranty claims, they have agreed with that conclusion in a different brief in this case. (See DE # 53 at 2-3.)
. The other two arguments as to why the shirt was defective are not persuasive. First, plaintiffs argue "Cintas should not have used 100% cotton for welder and plasma cutter work shirts.” (DE #115 at 5-6.) This argument has nothing to do with the design of the shirt, and is not persuasive.
Second, plaintiffs’ argue that the shirt was defectively designed because "the 100% cotton work shirts should have included a warn-mg as to the flammability characteristics of 100% cotton.” Id. at 6. Plaintiffs also bring a failure to warn claim, which will be addressed later. A plaintiff does not have to show a design defect to prove a failure to warn claim. Ritchie,
. There are two different dates on the document. Although it is not clear the exact date the document was signed, both dates are from 2004. (DE# 105-1.)
. Plaintiffs also appear to argue that because the rental agreement did not warn that 100% cotton shirts will ignite when contacted by sрarks, Quik Cut was not adequately warned. (See DE #115 at 13.) This argument is not persuasive. The rental agreement warned that the clothing provided by Cintas was not flame retardant and did not have any flame retardant features. This language adequately warned Quik Cut that the shirt could catch on fire.
. Cintas cites testimony from the deposition of Rex Hathaway:
Q: Did you ever launder those clothes yourself?
A: No.
Q: And I presume they didn't want you to; is that right?
A: I was paying for a service. I didn’t think I had to.
(DE# 119-1 at 3.)
. Cintas also argues that plaintiffs’ failed to follow the local rules in their response brief, and requests that its statement of material facts be treated as undisputed. (DE # 119 at 1.) The court need not address that argument, as the only issue that precluded summary judgment, the product/service distinction, was not addressed in Cintas's statement of material facts.