*1 The true of same is not the erroneous given at HINKLE,
instruction William’s trial. The Kelly Appellant, E. have jury instruction could misled the into incorrectly recommending penal- the death NIEHAUS LUMBER ty. The error related to an instruction in COMPANY, Appellee. penalty against favor death and not inas Burris. it instruction directed No. 63S04-8807-CV-637. jury to return a recommendation Supreme Court of Indiana. jury death even the felt the sentence inappropriate. jury July return a recommendation for the death penalty proves even if the State
aggravating outweigh mitigat- factors
ing circumstances. 35-50-2-9(e). “may” jury While the rec- penalty, it have
ommend death import do so. The
Burris is that the erroneous instruction
requires sentencing hearing. a new judgment post-conviction part
court affirmed in and reversed in
part. The habitual offender determination The find- enhancement reversed. imposing penalty and order the death
are vacated. The of the trial imposing
court consecutive sentences
thirty years conspiracy and thirty robbery
for armed are affirmed.
This cause is remanded to the trial court impo- penalty hearing
for new death
sition new sentence. DICKSON, GIVAN and
JJ., concur. except
finding by that a new death
penalty hearing required. af- He would Even
firm this issue.
though improper, the word “should” was capable weighing
factors and imposed the sentence. *2 Smith, long run deteriorate fast- Washington, appel- because it would
Bruce A. er. lant. Thomas, Hensleigh Stephen Statham roofing workmen in- contractor’s Krohn, Evansville, for
McCray Thomas &
roofing
stalled this sheet metal
over the
appellee.
storage
gauge
A heavier
metal
area.
job.
would have been more suitable
Fisher,
Clemens,
Robert B.
Ice
James R.
purchased
from Nie-
material
Ryan, Indianapolis, amici
Donadío &
Miller
warnings or in-
haus contained no written
Inc.,
Council,
curiae, for Indiana Retail
kind.
stallation instructions
Ass’n,
Supply
Indiana Lumber & Builders
Indiana.
and Ins. Institute of
installed,
As
the metal sheets on the roof
overlapped approximately 18 inches at ev-
PETITION TO TRANSFER
ON CIVIL
thought
ery
purlin.2
While it was
DICKSON, Justice.
strength,
in
overlap
add extra
would
fact it caused more serious corrosion
Defendant-appellee Niehaus Lumber
deterioration.
(Niehaus)
Company
obtained a
products
in
case
later, Hinkle,
employee of
months
Six
Kelly E. Hin-
brought by plaintiff-appellant
Alumax,
repairs
to make
on
was ordered
(Hinkle).
Appeals re-
kle
The Court of
over the dross shed. When
the
roof
versed,
carry
finding that Niehaus failed to
job,
to do his
the
Hinkle walked on the roof
summary judgment to show
its
at
burden
collapsed
of excessive corro-
roof
upon the factual
an absence of evidence
purlin
in
Hinkle was
sion
one of the
areas.
Niehaus had a
question of whether
severely injured.
Lumber Co.
warn. Hinkle v. Niehaus
Act
Indiana’s Product
198. We
prod-
sellers of a
affirm the trial court.
grant transfer and
unreasonably
condition
uct
a defective
Appeals,
As summarized
consumer.
Ind.
user or
In
underlying facts are as follows.
the
prod-
33-1-1.5-3. The definition of
Code §
(Alu-
Recycling
Alumax Aluminum
provided by
condition is
uct
a defective
max)
replace the roof over a
needed to
33-1-1.5-2.5:
salt
storage shed where corrosive
“dross”1
(a)
A
A
con-
compounds were stored.
if,
it is
under this
at the time
roofing job
the
submitted a bid for
tractor
party,
conveyed by the seller to another
fiberglass
upon the cost of labor and
based
it is
a condition:
Fiberglass
materials.
(1)
contemplated by
reasonable
rode.
among
considered ex-
persons
those
manager
plant
Alumax’s
want-
prod-
pected
consumers of the
users or
cheaply
possible.
job
ed to do
uct; and
fiberglass
too
Determining a
roof would be
(2)
danger-
that will be
original
contractor’s
costly,
rejected
or consumer
expected
ous to the
user
job
him to rebid the
and asked
bid
expectable
so,
did
only.
the contractor
labor
When
ways of
or
bid,
manager accepted the labor
plant
(b)
under this
is defective
gauge
sheet metal
then ordered
chapter if
seller fails to:
directly from Niehaus. Before
(1)
prod-
or
properly package
label
mainte-
placed,
Alumax’s
that order
warnings of
give reasonable
plant manager
uct
supervisor told the
nance
danger
product;
or
costly in the
about
more
metal would be
sheet
(1)
as "a horizontal member
2. "Purlin” is defined
"the scum that forms
is defined as
1. "Dross"
metal;” (2)
supporting
"waste or
Webster’s New
of molten
roof
the rafters.”
on the surface
New
foreign
Dictionary, supra,
Webster's
Collegiate
matter:
IMPURITY."
(1980).
Dictionary
Collegiate
(2) give reasonably complete
instruc-
support
material would
a man’s
proper
product;
use of
weight
tions
under normal use.
deposition
seller,
superintendant
Alumax maintenance
exercising
describes the extent of
diligence,
knowledge
could have
warn-
and ex-
made such
pectations by
instructions
Niehaus as
available to
or consumer.
your knowledge
To
was Niehaus
(c)
is not defective under this
Lumber
involved in the de-
*3
if
chapter
reasonably
it is safe for
ex-
by
put
par-
cision Alumax to
on the
pectable handling
and
type
ticular
of roof that Mr. Hinkle
If
handling,
injury
prep-
results
through?
fell
from
use,
consumption
aration
that is
for
A.
Niehaus Lumber
was not
reasonably expectable,
not
the seller is
in involved
decisions
when
...
chapter.
not liable under this
selected,
was
we were
(d)
is not
defective
this
[by
told ...
personnel]
Alumax
incapable
if the
is
what
order. And that’s what we
being
made safe for its
ex-
ordered.
use,
manufactured,
pectable
sold,
Q.
your
knowledge,
And
did Niehaus
handled,
packaged properly,
and
[em-
even know for
building
sure what
phasis added]
going
go
this was
on?
ques
Identifying the “threshold
have,
they
A.
I don’t see how
could
arose,”
duty
tion”
“whether a
as
to warn
because we weren’t
dealing
Appeals
that Nie
concluded
as
any-
Niehaus
a subcontractor or
haus
to warn
certain
had
else. All
thing
we
for
asked them
dangers
unreasonable
were un
claimed
material,
supply
was to
this
just
purchaser
known to the
Alumax. How
buying
if I was
a bolt or a
“I
nut.
ever,
purchaser’s
the extent of a
knowl
type
this
want
of bolt.”
“I want
edge
giving
is not the sole criteria
rise to a
type of
this
nut.” And
it.
that’s
duty to warn. There must
that
be evidence
really
that’s all
And
Niehaus
did.
supplier
knew or had
to know
reason
They had no decision at all into
likely
that the
to be
going,
where
material was
what
manner.
foreseeable
going
for, anything
it was
to be used
Optical Co. v.
American
Weidenkamer
they
[sic],
As far
else.
we
know
Ind.,
(1983),
World Inc. common law Tort. The Strict vice, (1968), Ind.App. 240 N.E. Inc. strict liabili- respect of this state party opposing 2d 552. restated as ty in tort codified and judgment must “come forth with ....” showing issue facts there is liability” in The use of the term “strict Ind., Bitzegaio trial.” Criss v. corruption is a misnomer and a this statute 1221; Dickey Whipple N.E.2d term, for what in the statute follows N.E.2d 787. legislative actually a of what statement in the record that constitutes under certain acts We find no evidence negligence. corruption legal dan- termi- roofing sheets were “reasonably expecta- nology has for some unknown reason be- gerous when used in widespread throughout the case law consumption.” come *4 ble 33-l-1.5-2.5(c). products liability. concerning trial court was and treatises granting summary judgment. rect anomaly properly characterized Appeals in by the United States also contends that (3d Cir. Design LaRossa Co. facts, failing to issues or erred in state the Scientific 1968), 937, F.2d 29 A.L.R.3d findings on which its was based. (1970). Although the court observed: 56(C) requires Jersey “In cases recent the New upon “designate the or claims to issues liable, either have held the manufacturer no issue as to which it finds implied liability warranty or strict appellant facts.” tort, loss, property for direct as well concedes, find- failure to make injury....” personal Id. at regard summary judgment will ings in at 1421. A.L.R.3d necessarily reversal if the rea- mandate say: The Court went appar- summary judgment sons Shortridge v. Platis ent the record. “In all the cases the New decided find Ind.App., N.E.2d 301. We Jersey courts there existed a defect judgment, as that the basis for which caused the record, above, is apparent discussed Even when de- the ultimate consumer. ground. and decline reverse on this as strict in tort the un- scribed analogized to derlying has been summary judg- grant The trial court’s goods.” 29 A.L.R. the sale Id. at affirmed. ment is at 1421. 3d nothing in statute I see the Indiana J., SHEPARD, C.J., liability- In actually which concur. instances, case law and both under the GIVAN, J., opinion result state, statutory law of some act of PIVARNIK, J., concurs. in which impose liability. negligence is not transcend The result case does GIVAN, Justice, concurring in result. principle. majority I concur in the result. I concur result therefore however, cannot, I opinion case.
agree statement: concurs. impos- Liability Act
“Indiana’s Product sellers
es strict in a unrea- or con-
sonably
sumer.”