*1 future, her own motion right, in to file argument is that final Colleen's custody. change examining its find the trial court erred hearing. previous ings orders from a is affirmed. Judgment of the trial court hearing on Col At the conclusion judg the default leen's motion to set aside J., YOUNG, P.J., con- and CONOVER, following judge ment the trial made cur. statement: the matter "Well, going take I'm notice Mrs. what

under advisement on had, other issues Bays and all Sullivan I'm direct- advisement.

involved under prepare a tran-

ing my Reporter Court findings and Orders script of the of the last made at the conclusion

Court Bays Mrs. Sulli- hearing I had at which Thiele, and Doris A. L. THIELE (Plaintiffs Below), I know that present was because van Appellants findings and orders were direct there did not given to her at time BEVERAGE, INC., and FAYGO entry, I order up in a formal wind Inc., Dugan-Doss, Appellees my if they are to see to see what wanted Below). (Defendants accurate." memory of them is fact 812). (Tr. p. No. 4-1284A349. judge improperly argues the trial Colleen Indiana, Appeals of Court of hearings. from earlier

considered evidence District. Fourth judge's remarks examination of the Our Feb. asking judge merely was indicates findings and orders. of earlier verification 18, 1986. Rehearing April Denied notice of its judicial take A court case and the made in the same records establish, they Apple v. facts (1971),255 Banking Company Greenfield 13; Kelly Graves Ind. If 112 N.E. 899. seeking verification judge trial pro- given at earlier

the orders to Colleen case, may very well

ceedings in this she had a issue of whether

bear on the denying visitation defense to meritorious trial court's not find the

Jeffrey. We do improper.

actions 1) publication was hold notice

We 2) its court was within the trial

proper, had not finding Colleen discretion defense; 8) there a meritorious

presented indicating the trial court

is no evidence simply punish Colleen

changed custody actions; 4) judge did the trial her findings and considering earlier err in case. in the same

orders opinion

Finally, nothing in this deny Colleen

should be deemed

564

566

MILLER, Judge. plaintiffs-appellants, Thiele, the trial court's appeal and Doris judgment to the defend summary grant Beverage, (Fay-g Inc. ant-appellee, eye Thiele suffered a severe o).1 Robert handling Faygo pop a case of injury while his employment in the course bottles Kroger worker for the grocery order stores) (a grocery Company chain Wayne, Indiana. in Fort their warehouse liability for alleged The Thicles injury Doris's loss of consor Robert's complaint in a four count and services tium express negligence, breach based on warranties, Magnuson- the federal Act, Fay- liability in tort. and strict Moss complaint generally de go's answer to allegations and asserted the Thieles' nied contributory defenses the affirmative risk, misuse, and fail negligence, incurred which relief could be a claim on ure to state *5 parties filed and answered granted. The supporting and submitted interrogatories affidavits, deposition of Faygo took the and support it in and submitted Thiele summary judgment. The for of the motion summary judgment to granted trial court Thoma, Terrill, A. Peters Mark Philip R. counts of the com as to all four Faygo (plain- Terrill, appellants Wayne, for Fort & appeal, alleging the plaint, and the Thicles below). tiffs of material fact genuine issues existence grant count, rendering the of sum Hunt, Suedoff, each on Belleperche, W. Thomas We affirm in erroneous. appel- mary judgment Eilbacher, Wayne, for Fort Borror & part.2 reverse below) Beverage, part Inc. and (defendant lee 2. 1. The gan-Doss, Inc. grant but Thieles' mary judgment, which ry judgment Appellate Rule effect, firming in part: relief. We believe ment We note that "(N) versed order whole all or did not move even Thieles do not granting Order or some of the complaint. We or issues, or in as to some or summary judgment part though Faygo judgment on part. The 15(N), each of the Relief Faygo partial separately we are reversing parties order: moved upon appeal Granted on all of the the trial court recognize authorized to court, never appeal may for four counts for states, to upon summary judg- part, partial requested defendant complete sum- parties trial court's Appeal. that, all or some in relevant we respect do so granted, summa- and in are, by af- be re- such Du- An by Very recently Ind. Appellate The court (6) (3) without entered make relief (2) rection, tion; tators as shown to be should direct a final law and pure question "This rule has been Rules of Correction Entry of final Grant parties ^[*] # Rule alteration, or shall order fact, a new trial unless indicating any shall direct final or subject to Procedure, t te impracticable our 15(N): but aof other otherwise supreme should refer judgment; law or a mixed # # amendment judgment judgment with that a court interpreted appropriate conditions. Appellate Rule the error corrected ¥ # or unfair to improper...." court judgment cases subject such relief w # or modifica- by has said of question of relief, of review respect involving commen- ^[*] # to cor- 15(N). to be and

567 Weston, (1980) secondary STANDARD OF REVIEW issue. Lee v. 402 N.E.2d 23. factual Ind.App., reviewing grant When of a genuine issue is if it cannot be summary judgment, motion for this court foreclosed applies applied by by undisputed facts, the same standard as reference but ruling trial motion in court on the requires rather a trier of fact to resolve (1983), first instance. Barnes Wilson opposingparties' differing versions. App., Ind. 450N.E.2d1030. (1979) Downing, Ind.App., Stuteville v. [181 197]391N.E.2d629. must determine whether there is "[Wle fact, any genuine issue of material word, In we are reverse if there is correctly applied. whether the law was any genuine issue for the trier of fact to (1976) Peabody Company, Hale v. Coal determine." 336, Ind.App., 168 343 N.E.2d 316. The Perry v. Northern Indiana Public Service moving party has the burden of estab Ind.App., Co. lishing genu that no material facts are in 4 determining the existence vel nronr of a ine issue. All doubts and inferences are fact, genuine issue of material this court non-moving par resolved in favor of the pleadings, depositions, will examine "the ty. Podgorny v. Great Central Insur interrogatories, Co., (1974) answers to Ind.App., and admissions ance file, together N.E.2d 640. on with the affidavits and testimony, any," if Ind. Rules of A fact is material if its resolution is Proce dure, 56(C) decisive of either the action or a relevant Trial Rule and construe these Here, law.") disputed judgment although resolution of material facts back to as a matter of hearing the trial court on the grant evidence. the relief we favor is less than Stroud, Bagni, Giddings trial, 4A Indiana Prac- complete requested relief it our (1979)." tice Sec. 130 approach decision-examining to the each Services, B & R Farm Inc. v. Farm Bureau Mutu- complaint determining count of the under Ind., al Ins. Co. appropriate summary standard whether (vacating grant summary trial court's appropriate exactly as to cach-is ordering entry partial defendant and summa- parties approach taken both in their ry judgment plaintiff, par- whose motion for summary judgment on the memoranda motion summary judgment tial was denied the trial appeal. Clearly parties both and their briefs court.) partial The basis for our affirmance of address, adequate opportunity had an have *6 pure questions judgment the trial court's are separate complaint, to each count of the wheth- complaint law-whether the count of the genuine er there was a issue of material fact warranty merged breach of in tort is Faygo judgment and whether was entitled to as liability in with the count for strict tort and a matter of law. whether Robert Thiele was a "user or consum- Finally, grant relief we is not more than the phrase Faygo's product er" of as that is defined granted by could have been the trial court. "In Liability portion Act. in our Product The of the case, proper may grant partial the court a a reverse, being we based on a distinct summary judgment though party even the asks complaint and count of the is an "inde- complete Summary for a one." 73 Am.Jur.2d entitly], pendant easily distinct severable and (1974) (citing Judgment 41 at 770 Sumitomo § judgment," of the from the remainder and is York, (1965), New Inc. v. Isbrandtsen Co. Shofi subject partial proper a thus the reversal. 752, App.Div.2d (per 258 N.Y.S.2d 1020 cu 23 BAGNI, STROUD, 4A GIDDINGS & INDIANA riam); Gaylord Gaylord App.Div. v. 271 (1979). PRACTICE Sec. 130 at 1045, curiam)); (per see TR. Furthermore, 68 N.Y.S.2d this case does not the present 56(C) ("A summary judgment may be rendered danger appel- present where an in the situation claims, including upon less than all the issues or summary judgment for one late court reverses summary judgment liability party, then orders limitation the issue of or dam entered without ages although genuine as alone there is a issue though opponent the latter did for the even not be.") damages may summary judgment. to or as the case file a cross motion for See KANE, WRIGHT, MILLER & FEDERAL 10A Appendix 3. The Thieles an have included 2720 at § PRACTICE AND PROCEDURE Brief, (1) Appellant's their contains: a ("[Wlhenever (1983) [appellate] the court be- by opthalmologist who exam- letter written non-moving party lieves that is entitled to the (2) injury; judgment, great care must be exercised to as- ined and Robert Thiele's treated eye photographs depicting pop cases of original three movant has had an ade- sure that the warehouse; Kroger genu- setting quate opportunity bottles in their at the to show that there is a (3) opponent photostatic opinion copy is not to of the ine issue and that his entitled a on the were received non-mov stores Kroger in favor of the retail liberally materials NIPSCO, the inside supra. and then moved v. dock Perry warehouse ing party. warehouse, stored goods were where the FACTS with aligned in rows pallets on wooden Rule Trial in the contained The evidence running the rows between open aisles indicates 56(C) in this case materials job grocery order inventory. Robert's was em- 1981, Thiele 22, on June various order for was to receive an worker in the worker grocery order a ployed as to warehouse shipped from the items to be cen- and distribution warehouse Kroger Co. up Kroger to walk store and particular a ware- At the Indiana. Wayne, in Fort ter aisles, ordered picking the the and down to be sold items house, quantities of bulk (D) by Mail. of Time for Service Extension Mississippi Brew- Supreme Court Falstaff Miss., motions, So.2d and all cases where petitions, In ing Corp. Williams any upon papers the served other are briefs and state- sworn were neither materials These 620. by with party mail or opposing or his counsel during Robert as exhibits introduced ments nor carrier, period time any properly the bonded determining a whether deposition. Thiele's filing answers specified briefs pur- exists for material fact genuine issue response shall be thereto the clerk in motion, summary judgment deciding a poses of automatically order of and without extended rely supporting materials may not a court days period of five for an additional court by Trial the form intended than those other deposit in the United of such the date from (1985), Ind.App., 474 Waugh 56. Conard Rule any properly bonded Mail or with States HARVEY, 130, (citing INDI- 3 W. 133-34 added.) (Emphasis carrier." Thus, (1970)). at 556 56.6 § PRACTICE ANA that, reply brief argue because their Thicles The represent- alleged or facts not consider we mail, they to an by are entitled served was photo- letter or the opthalmologist's ed in the filing days for the of five extension automatic Appel- Appendix graphs included 12(D). Adding this Appellate Rule under brief items, Brief, of those two the extent and to lant's Ap- fifteen-day period of period five-day to the Appendix from Faygo's to strike motion 9,May 8.1(A), measuring from pellate Rule copy granted. The Appellant's is Brief day Faygo's Appellee's Brief was 1985-the Mississippi, Supreme Court of opinion of the Reply {iled-the Brief was Thicles contend however, attempt present facts that does not twenty-day peri- resulting timely within the filed the exist- determination would influence 29, 1985, was May brief ending when the od rather genuine issue, but factual ence emphasized lan- As the deposited in the mail. argument Thicles believe legal presents a however, indicates, clearly guage above such, not be it need As helpful case. to their misinterpreted Appellate Rule have Thieles Appellant's Brief. struck 12(D). extension does automatic five-day mail, by a motion to strike also filed has party a brief apply who serves not ground the brief Reply responds Brief on a brief party Thicles' who rather but Proce- timely Rules of not Indiana Thieles do filed. mail. The not served that was indicate, 8.1(A) dure, requires Appellate does not allege, Rule the record mail; days reply fifteen served Faygo's Appellee's brief within Brief was appellant his file therefore, Faygo's five-day extension does appellee's filing brief. automatic after the "response May thereto"-the file-stamped apply Thieles' to the Appellee's Brief thus, was, twenty filed five file-stamped Reply the brief Reply Brief-and Brief Thicles' Reply Thus, to strike later, days motion on the face late. May days *7 granted. matter, brief was Brief is appears the Thieles' it appellate rule. of the filed a motion limits Thieles have the time filed within Finally, Faygo's of Facts section Statement of motion to strike the attempt avoid the The Thieles Faygo has ground that Appellee's Brief on the however, provisions of strike, relying on the intermingled argument with improperly (D), 12(C) which, in relevant and Rule Appellate "our is true that facts. While it of statement state: part, argu Motions, of the inclusion [appellate] rules forbid Serving Filing "(C) and of Method facts," Lafayette Bank Donahue v. in the ment Proceedings, of the Record Petitions, Briefs, briefs, Ind.App., Motions, Trust Co. petitions, and Papers. Other and 1; 8.3(A), do not we Appellate see Rule papers 1157 n. and other proceedings, of record Faygo's of entirety Statement find or served the clerk filed with deemed will be argument it with upon Facts is so infected party counsel opposing or his upon the whole section appropriate to strike that United States deposit of the same of that carrier, paragraph Appellee's Brief. The last any properly bonded with Mail or addressed, argument, and to the to the properly section, however, is pure charges prepaid, motion paragraph, Thieles' extent of that party counsel or his opposing or to clerk granted. strike is may be.... case as the goods pallets from the placing them on bottles, case of then heated to shrink (similar forklift) a machine to a known as a package. around the plastic final cov- pallet jack. bottles, goods top ers the Before the were loaded of the the sides of the pallets pallet jack, from the line of to the carton, together cardboard and comes grocery order worker was to stick a case, the underside of the virtually enclos- goods picked, coded label on each case of ing package the entire in plastic. Robert order, indicating type, the date of the Thiele deposition pallet stated in his that a quantity price goods, of the and their Faygo pop cases of approxi- consists of shipment destination. mately layers six top of cases stacked on that, most, Faygo one pop

Cases of were delivered in another and two or three bulk, pallets, Kroger pallets on wooden might together. to the be stacked Robert did not know pallets Faygo whether other cases or warehouse in Kroger trucks. A em- ployee pallets unloaded the from the truck had ever top been stacked on case to the using warehouse dock a forklift. Faygo pop allegedly injury. caused his Spear, Kroger employee Robert who At the injury, time of his Robert was dock, worked on the warehouse swore an picking an order for a pop case of support affidavit that was filed in shipment Kroger to a retail store. The opposition Thieles' motion for pop question case of top was stacked on affidavit, summary judgment. Spear In his cases, of other pallet, resting on a at about many stated that on June 1981 and for Standing waist level. a bit in back of the thereto, years prior his duties at the Kro- Faygo pop case of in order to stick the ger unloading Faygo warehouse included side, coded label on the Robert bent over to trucks; pop always that he lift storage pallet the case from the onto Faygo pop pallets unloaded the in bulk on pallet jack. deposition, his forklift; with aid of a and that testified injury to the occurrence of his as performing duty, always he used due follows: way care no mishandled the cases Q. [by attorney Faygo) you Were pallets Faygo pop way in such a doing [moving it pop] the case of any pop to cause bottles to break or ex- your bare hands? plode. pallets Other evidence indicated the Faygo pop would remain on the dock for A.[byRobert Yes. Thiele] no more than an hour before another Kro- Q. Didyou lift this case? ger employee them-again, moved A. Yes. proper bulk-into area the ware- Q. It cardboard, was I take it? house, pop where the cases of would re- main until picked by individual cases were A. Yes. grocery order worker to fill an order for Q. Whenyou lift one these card shipment Kroger to a retail store. As cases, concave, board does it become might elapse much as a month between the or does it move at all? Is there particular Faygo pop time a case of arrived flexibility to that cardboard case? Kroger at the warehouse and the time it A. Some. picked shipment Kroger to a store. Q. Am saying correctly? I Does it deposition, In his Robert Thiele stated he looser, become a little bit how long particular did not know how case does it work? pop allegedly injury caused his had been the warehouse at the time of his A. Yeah.It's a cardboard box that's injury. *8 open why top. That's it's wrapped in sides of plastic. But the Faygo pop twenty- A case of consists of are, four 16-ounce bottles that sit a card- say, roughly maybe the case I'd four that's the high. inches And board carton covers lower one-half then piece point to two-thirds of the bottles. A cutoff And there. in this setting bottles are case down polyethelene plastic top is laid on more put it on the machine and down plastic. natu- wrapped in So that's else, anything because gently than as a going as firm rally, its not to be glass. And that's you know it's flex some- It does closed-in case. didn't throw it down about it. I what. hard, gently. just Q. Do Q. And opposed down as you place it it from move you going to were dropping it? your left? your right to No, you can't you place it because A. Yes. got to just anywhere. You've put it Q. And you over you reached pallet, so of stuff on one put a lot picked you first picked up. it When you the order you've got to watch your eye would up, it how far certain, different There's put it on. this case be? items. ways you put some A A. FP Oh, two feet. say I'd about this, because it's respect With Q Q. you anything unusual Is there gen though, you put it down glass, you the case when noticed about tly. up? picked it A Uh-huh (affirmative). A. No. Q correctly? saying Am I Q. Didyou at it? look A Yes. A. No. Q put gently, it you when down Now unusual Q. Nothing it seemed about case, in the give is there how much you? you Do re particular, this case? A No. member? Q. Have or cans you moved a case ever A.Well, up, it you're picking you anything in boxes of or said, some, you but might like flex problems, any kind of noticed load, if put it down on a you when anything else? something else top of you put it on A. No. flat, set flat. it'll that's Q. over you reached when So insofar as Q. And it, way you're from the I take pop, up the case of picked way you placed it describing the okay, am I to be everything seemed down, not have been would there right? movement, or way of much A. Yes. been, in terms there have would Q. And place your left you turned bot being flexible and the sides the machine. it on top be moving around and the tles coming looser? A. Yes. me, what

Q. Now, A. Not a whole you proba- tell would lot. It would machine? put it on the you did force move some. bly-it would did gently, very down you put it Did 274-78) (R. there, or it over you kind of throw Q. you over you reached When does it work? how pop onto placed the case along up A. Well, machine pull our we the ma did reach the machine-It orders, we work go, to as we chine, didn't it? away two feet keep it about roughly A Yes. between room to walk you've got so Q you noticed time -when is the first you're and the the machine eye? your any problem in there I-You can stand picking, and A After I put it down. item to turn from spot and in one Q you first it when you Were still over two about item, roughly. But it's problem? felt some kind of just a turn you make away, and feet *9 A. down, just like Yes. pieces broke into Q And about how settled. your eye far from would the case be then? Q. Where was glass? Oh, A about two feet. A. It was in the case. Q got You never much closer than two Q. plastic? Underneath the feet your head or your eye to A. Yes. you case from the time first lift Q. you Did any glass see top on you ed it to the placed time it? plastic? A.No. A. Yes. Q.At you no anything time observed Q. So glass there was top on anything unusual or broken? plastic, underneath plastic A.No. case. Q. At you no time anything observed A. Yes. anything unusual or broken? > No. Q. you Did notice anything on the ground? © Immediately following the sensation your eye-would A. Yes. you describe piece There was laying one me, by way? that to the floor. P Q. Okay. put down, big piece I How case I felt was it? something piece hit-a glass flew Oh, say A. I'd about the size of a dime.

up and my eye. hit I up right stood Q. glass? This is the away, liquid and I felt a of some A. Yes. kind. I didn't know if it was bleed- Q. you And didn't any notice what, ing watering or or put my so I you up when lifted the case? up my eye cheek, hand my or I felt water. And I seen it wasn't A. No. blood, liquid, it was got my so I Q. you Had ever seen broken bottles hankie out and up, dried it I because before in these cases? right away knew something was A. No. wrong. I couldn't see out of it. Q. easy Was it to see? you When Q.You you placed stated that the case case, looked at the you after felt the down glass up and the flew and hit your sensation to eye, you could ea- you in eye. you Do know that as sily right away see there were a matter of you fact? Did see the four broken bottles there? glass there following this incident? A. Yes. A. Well, happened, after I looked (R. 280-82) case, down at the and there was four it, Q. In all the broken bottles and there was Faygo pop cases of glass top all over the you've moved of it. working before Q. But Kroger, any glass goods- other you didn't notice you this when and I take it things there are other first lifted the case? you glass them, have other A. No. bottles, than Faygo pop in the ware- Q. Could you describe the bottles house- broken, you say me? When you do A. Yes. shattered, you mean do mean- Q. you -have ever seen broken bottles, A. There roughly four glass before? case, about the middle of the remember, best I can they were A. No. You mean or of other products? just broken, pieces all little broke *10 Q. it, prod- put it down. Faygo or other I I any product, A. After handled Of (R. 292-94)

ucts. broken, A. There's gets times that stuff question, deposition reply to another glass allegedly or may laying that it around stated the that we see come from eye could not have something. struck his Faygo pop Q. But other than the case anyplace mean, you ever moved have I was examined handling. Robert he was that anything else or baby food glass or oth- but no opthalmologist, that glass containers might come in his particle ever was found foreign er have been broken that you've seen injury, Robert of his eye. As a result before? injured in the the vision completely lost A. Yeah, before. seen it broken I've Faygo pop Robert was eye. The case of Q. Are besides products several there apparently was sent handling injured when glass, in that come in store; pre- it was not Kroger retail to a warehouse? evidence. served as A. Yeah, other-quite a few there's products. DECISION Q. Do as to dispute between the any information primary you have The say on you was glass that argu how the through runs their parties-which disposition top of the concerning summary got on top plastic ments Faygo case? plastic of this of the com four counts of each of the burdens of on the relative plaint-centers A. No. setting of procedural proof involved Q. As top the case on plastic sits relying on the familiar Faygo, this case. any any way for Faygo, is there be inferred negligence may not adage that plastic from thing get down accident, of an see the mere fact top case, sitting if it were on into Meyer Haynie v. tight it, pretty or is it sealed Thieles insists caps? those around of demon to meet their burden have failed enough you thin sealed-It's A. It's negligence on specific act of strating through something down push could specific part defect Faygo's or to, yes. you if wanted proximately caused Faygo product Q. What to how the your opinion as no Faygo contends that injury. Robert's top plastic on glass that was warranty or negligence, breach basis for top plastic? got on undisput by the liability is disclosed strict I there before. have been A. Itcould summary case and that facts of this ed it ex I would assume don't know. appropriate because judgment was flew those bottles and ploded from as a matter of judgment was entitled top the case. those facts. law based on Q. Was wrong anything there hand, Thieles, other on the torn, or were case, plastic or was negligence, breach of contend like anything or in it there holes in warranty and that? in this evidence available ferred from the quick, happened so really don't-It A. I are if the facts that even They case. note I my eye. about just worried I is not summary judgment dispute, glanced down and just I dispute exists look. good faith didn't appropriate if a plas if the remember seen-I don't the inferene- parties regarding between the I there not. know facts. See tic was broke from those es to be drawn in it. bottles broken was four (1983),Ind.App., 449 McCullough v. Allen rely on the those Q. When, opinion, were Thieles also your N.E.2d 1168. The that, summary proposition bottles broken? setting, moving party bears the burden polyethylene plastic-was such that when proving genuine no issue of material lifted, the case was the cardboard box exists; middle, thus, they argue, flexed toward the fact "a causing defendant plas- *11 [here, Faygo) seeking summary judgment wrapper tic sag. When the case was set must specific negating set forth surface, facts the on a flat the cardboard box re- claim," plaintiff's 1171, only id. at then normal, turned to its position, flat causing plaintiff present must the specific facts plastic wrapper spring back to its demonstrating genuine factual issue. original, position, stretched producing a Id., 56(E), TR. Conard v. Waugh "trampoline effect" that catapult would cf. (1985), (in any fragments App., Ind. glass loose of 474 N.E.2d 130 or other de- summa ry judgment proceeding, where defendant top bris from the up of the case into the presumptively asserts and establishes stat air. The Thieles contend reading that a of defense, ute of limitations burden of estab deposition light Robert's in a favorable to lishing material facts in avoidance of that the Thieles-non-movants in this summary judgment proceeding-supports plaintiff). defense shifts The Thieles the factual allege granting the trial court erred in Fay- glass inference that there was on top of the go summary judgment Faygo because Faygo pop question case of at some time failed to setting meet its burden of forth before Robert set the case down on the and, negating therefore, facts their claim pallet jack glass and that this was thrown up disprove failed eye. agree gen into Robert's any We existence of that such uine issue of material fact. supported an inference by a liberal 56(C) construction of the Trial Rule materi- abstract, In agree we with all of the als the Thieles' favor. Perry See v. general principles law of asserted above NIPSCO, supra. question remains however, parties. this, both duty, Our whether, assuming even this factual infer- every as in grant other case where the true; Faygo ence to be is nevertheless enti- summary judgment challenged, is to re- judgment tled to as a matter of law be- 56(C) view the Trial available Rule materi- cause this and other facts this case raise general als with principles these in mind legal no inference negligence. We find and to determine whether any there exists Faygo judgment is not entitled to on these genuine issue material fact for the trier facts. NIPSCO, to decide. Perry supra. If any such issue exists as to count of the supreme Our court has negli- defined complaint, Thieles' we must reverse the gence as follows: grant summary judgment trial court's "In negligence Indiana the tort of to that count. comprised (1) of three elements: duty part on the of defendant in relation to

Negligence (2) plaintiff; part failure on the defendant to conform its conduct to the complaint, Count I of their the Thieles requisite required standard of care alleged Faygo negligently designed, (8) relationship; injury to the manufactured, bottled, packaged, distribut- plaintiff resulting from that failure." transported Faygo ed and the case pop handling Robert was at the 604, time of his Miller v. Griesel Ind. 610- injury, 706. The third ele Faygo negligently and that failed to inspect product its and to warn Robert of injury resulting ment-an from the defend dangerous pop. condition of the case of ant's failure of care-it is more traditional ly appeal, described in terms of whether the de On the Thieles have focused on the allegedly negligent design of the case of fendant's substandard conduct was the Faygo pop. The "proximate Thicles claim that plaintiff's injury. cause" of the supports See, evidence in this case e.g., Bailey v. L. W. Edison Charitable design that the pop-a case of App. Foundation 152 Ind. wrapped tightly flexible cardboard box in N.E.2d 141. do not unexplained circumstances place, suggest Faygo does infer or draw speculate jury permit no owes of a the manufacturer Appellee's cccurrence." to the ences as comes man" who "middle duty care to a Faygo cites (our emphasis). has at 13 product after Brief into contact cases where before bottle but soft drink of commerce three stream entered the however, the applied; or consumer been user has proposition ultimate it reaches three cases setting of all procedural Thus, be enti would product.4 negli set summary judgment on summary judgment from the different tled to if it ouly complaint case. See Smith present ting count of gence Cir.1974), demonstrating (7th burden Beverage meet its Co. Michigan could show, entered case (appeal of this F.2d 754 facts material its not breach issue, did Bottling without verdict); Seven-up *12 v. jury Pardue Thiele or to Robert owed duty of care (same); N.E. 1154 (1980), Ind.App. 407 Co. cause proximate not the was (1961), such breach Bottling Works v. Coca-Cola Baker injury. Robert's 390, (appeal of N.E.2d 759 177 Ind.App. 132 verdict). summary In a directed on of reliance great deal places a Faygo moving party setting: "The cannot plaintiff "if a proposition the no issue proving that burden of the bears took an accident in which manner the show (1983), Corp. Ind. Aluminum v. Howmet argue Lawson Faygo it could we believe do 4. Nor 1172, question of 1177. The App., N.E.2d law re 449 duty "The Thiele. to Robert no owed duty care to Faygo due of every person to exercise owed a quires this case is law in whether Stapinski v. injury Thiele. to others." to Robert care foreseeable reasonable avoid (1978), Ind.App., 383 Faygo Robert relationship Co. Construction between Walsh The 476, 473, grounds, prod- on other vacated of a NE.2d that of the manufacturer was Thiele (vacated 6, (1979) 1251 N.E.2d 272 Ind. 395 prod- the who handled "middle man" and a uct cause); & intervening Shore see Lake grounds of through com- stream of it flowed uct as (1908) Ind.App. 41 Ry. Brown Co. v. S. Mich. 435, or consumer. ultimate user toward the merce duty care of reasonable The 84 N.E. relationship operated to the benefit This course, large, but not, world at to the owed of Faygo, labor because manufacturer, reasonably might be fore who those rather to move the Robert, was man, necessary middle injury by of the breach being subject to seen as public. purchasing hands of into the Cardozo, then of Justice duty. the words knowledge the circum- Concerning Faygo's of Appeals New of Court of judge of the chief relationship with Rob- surrounding its stances perceived de York, reasonably be risk "The Faygo ert, case shows in this the evidence imports obeyed, and risk duty to be fines Faygo pop of the cases employees delivered to others within another or is risk to relation; it warehouse, they Kroger where to the trucks Long Palsgraf v. range apprehension." of receiv- on the warehouse in bulk were unloaded 344, 339, (1928), 162 N.E. 248 N.Y. Co. R. Island pop ultimate- Faygo cases of ing knew its dock. 99, 100. Kroger stores retail ly delivered to would be "foreseeability-relation- follows Indiana Indeed, public. the via- display and sale to question of whether ship" of formulation manu- Faygo's as a soft drink bility business of duty a of negligence case owed in a defendant prod- disposition of its on such relies facturer plaintiff: to the care Therefore, known its Faygo must have uct. person a conduct of that the "It is axiomatic Kroger's pop handled only would be negligence of cases give an action rise to will reaching the employees plaintiff to before duty men" to the "middle person a owed if that care. of to a standard consumer. actions ultimate his conform duty question of is a relationship of such between existence The Given knowledge Faygo's of Inc. Transit, LaPorte Thiele and v. Koroniotis law. (1979),Ind.App. 656. ... N.E.2d 397 relationship, surrounding that circumstances na- duty from the legal arises Generally, a not did reasonably that if foreseeable people. Neal relationships between of ture design package for a safe care use reasonable 160, Builders, Inc., (1953), 232 Ind. Home package handled the pop, who cases of those its 280; Fidelity Co. v. Insurance Allied including Robert, commerce, of in the stream 174. Also (1977),Ind.App., N.E.2d Lamb negligent injury to its subject due be would determining of the existence relevant Rob- foreseeability harm to such design. knowledge the situation duty is one's duty take due imposed upon Faygo the ert relationship. surrounding the circumstances Construc- Stapinski v. Walsh care to avoid it. (1971), Snyder v. Mouser Co., supra. tion 627." 272 N.E.2d pop Thus, of material packaged are fact exists. and transported. defendant seeking summary judgment must set forth Such reference as there is to standards for specific facts such cases in that negate PVP plaintiff's Standard states: claim. This is true even though plain "All paperboard new carriers, basket pa- would have the proof perboard burden wraps, corrugated trays and tiff re- shippers trial." McCullough purchased shall be Allen Ind. repre- those App., (emphasis add sented the individual item manufacturer ed, omitted). as complying with NSDA Secondary Glass citations Packaging Voluntary Specification Guide- The Thieles claim that the de line Paperboard Corrugated Board sign Faygo's packaging for its cases of Systems, NSDA, November, (R. 1982." pop created an unreasonably dangerous 179) The "Secondary Glass Packaging" "trampoline effect" and constituted a fail standards referred to do appear by Faygo ure to conform its conduct to the record, and, therefore, Lipsky's neither af- standard of upon reasonable care which the fidavit nor the PVP Standard address the question of breach duty depends. See question of the reasonableness of the de- Hospital Bend, Memorial South Inc. v. sign Faygo's pop. cases of Scott 261 Ind. 300 N.E.2d 50. Second, even if the PVP Standard had Breach duty is a question usually re addressed design cases of served to the trier of fact but *13 pop, the standard is February, dated decided as a matter of law where the facts more than two years and one-half after undisputed are and single lead to but a Thus, Robert injury. Thiele's the standard inference of conclusion. Petroski could not have affected the reasonableness Northern Indiana Public Service Co. design of the Faygo's of pop cases of at 171 Ind.App., 354 N.E.2d 736. any time to this cause of action. relevant In attempting negate claim, to the Thieles' Faygo filed an by Harvey affidavit sworn Finally, it is well settled that the stan Lipsky, the head of Faygo's Technical Divi dards industry set do not define the charge sion in quality of its control and standard of against reasonable care research and development programs. At the conduct of a manufacturer in that in tached to the affidavit is a document la- dustry will be negligence measured in a belled "Proposed Voluntary Product Stan (2d Cir.1952), case. Hooper See The T.J. (hereinafter 737; dard TS 281" F.2d City referred to Gilbert v. Stone Construc Standard). Lipsky's PVP affidavit indi tion Co. 171 Ind.App. cates that the PVP Indeed, Standard is the result the PVP Standard Faygo's of Technical appears Staff's work with recognize principle where it Consumer Product Safety states: Commission "Conformance with this Standard is not to developing interpreted be packages standards to mean all bottling for the in reasons, dustry. For a (R. 178) number of will be we find free of defects." Lipsky's that affidavit and the PVP Stan Therefore we Lipsky conclude the dard fail satisfy Faygo's burden of dem affidavit and the PVP Standard fail to sat onstrating genuine there is no issue of isfy Faygo's demonstrating burden of question material fact on the of breach of genuine there is no issue of material fact ' duty in this case. regarding Faygo's duty breach of its to use First, reading a careful of the PVP Stan- reasonable care design package a safe dard reveals that it pri- details standards product, therefore, its and Faygo was marily glass for the bottles in which not entitled summary judgment on pop is process delivered and for the of Count I on the basis of that element of filling such allegation bottles. The Thieles' negligence. question We now turn Faygo's negligence of is directed at of whether any genuine there was factual design reasonableness of the of the card- issue regarding proximate the element of © plastic cause. board and cases in which the bottles question fact on the material ine issue of proximate duty, Like breach con- contentions duty. Faygo's breach the trier generally an issue

cause pop case time the cerning length of of law matter as a decided and fact warehouse, undisputed Kroger are question facts was only when the who Kroger employees of conclusion. inference single number of lead to but case, Trial NIPSCO, manner supra. might have handled Petroski inventory Faygo stock in which case in this 56(C) available Rule evidence warehousing system Kroger no did not Robert although rotated indicates of the broken case sources possible about and the anything unusual tice pop injury case of top his of the allegedly caused on glass discovered Faygo pop that for the all matters injury are Robert's he also up, after pick over to he bent when not look did that he deposition to resolve. in his trier of fact stated in back slightly stood Robert the case. Therefore, court erred the trial we hold to stick in order pop case of summary motion for granting When the side. inventory label on coded negligence count on flexed pop, it case of up the picked he failed to complaint because Thieles' somewhat, he and when the middle toward establishing its burden sustain jack, Rob paliet on the down the case set of material fact genuine issue no there was it. At feet of two within face was ert's duty and breach questions of on the painful moment, experienced Robert McCullough v. Al- cause. See proximate liquid felt some eye his sensation len, supra. no then face. Robert running his down he the case inside bottles four broken ticed Warranty Breach of over the handled, glass scattered loose had complaint Thieles' II of the Count case, a dime-sized top of the on plastic Faygo breached alleged that floor. the warehouse glass lying on piece product. regarding its warranties express glass also stated deposition, argument limit their Thieles appeal, the On pop case of top of the been could have *14 warranty of implied of Faygo's breach injury. his it after first noticed he before Thus, they waived have merchantability. that, con- when contend The Thieles concerning breach of ex arguments in favor, non-movants in their strued warranty of implied warranty or press see proceeding, summary judgment this purpose. Whisman particular fitness for a just NIPSCO, the evidence supra, Perry v. 73; Ind. (1984), N.E.2d Ind. 470 v. Fawcett inference a reasonable supports recited Procedure, Rule Appellate Rules of injury of Robert's proximate cause that © 8.3(A)(7). in Faygo pop the case of design of of privity of Acknowledging the absence wrapped plastic polyethylene which Faygo, Thiele and between contract box flexible cardboard around tightly for that their action Thieles contend caused a that effect" "trampoline created in tort warranty sounds implied of breach Robert's into be thrust glass to of piece prerequisite is not a privity that and case, setting of procedural eye. In the Bachman, Wright action. See such Moreover, has agree. must we 307, 133 (1956), Ind. 235 Inc. v. Hodnett any evi- attention our to direct failed warranty (action breach of for N.E.2d 713 demon- of its burden that satisfies dence tort, depend on contract may be based injury Robert's issue strating beyond Lane v. complaint) allegations of ing on manner in the caused been not have could (1980), Ind.App., Barringer have been it must or that allege Thieles if required contract of 1173 (privity The affidavit way. other in some caused defective injury personal at- action Standard the PVP Lipsky and Harvey argue that tort). Thieles in The sounds pur- for this insufficient thereto are tached is no there to demonstrate Faygo has failed insuf- they were reasons for the same pose war- on the fact issue of material genuine genu- aof existence to exclude ficient ranty summary contract, issue and that (Footnotes unique in the law." therefore, omitted.) was, erroneously granted attempt, The court made no how contends, however, Faygo. Faygo that the ever, allegations to delineate the distinct implied II for breach of war Thieles' Count complaint that would cause one for breach sounding privity in tort and without ranty warranty to in sound contract and anoth alleging IV duplicitous of Count apparent, er to sound in tort. It is how in the two counts liability tort and that ever, the tort action for breach of together in the lawsuit. eannot stand same warranty supreme referred to our court See, e.g., v. Robertshaw Controls Neofes Wright no-privity in Bachman was not the (S.D.Ind.1976), F.Supp. We Co. warranty sort of action the Thieles' at agree contention. case, tempt present assert but rather a tort action for deceit where the recovery theory known as warranty seller's was fraudulent.5 See warranty in implied breach of tort is dis (1952), quoted C.J.S. Sales 854 at 1262 in implied warranty tinct from the breach of § Bachman, Wright 235 Ind. at 313 n. in theories found the Uniform Commercial at 716 n. 5. adopted pro Code. The UCC as Indiana implied vides for an action for breach of theory We are not certain that warranty merchantability, 1.C. 26-1-2- implied warranty breach of in tort asserted implied war breach by the Thieles was ever a theory viable particular purpose, ranty of fitness for a recovery in this state. Our research dis however, clear, id. 2-815. It § closes not one decision under Indiana law "in implied these warranties are a contract plaintiff brought personal in which a 2-814, sale," "at the time of for ... id. § injury against action a defendant with 2-815, contracting" and that the UCC id. § privity whom he was not in of contract contemplation of a was drafted contract plaintiff reached result favorable to the buyer. a seller and his immediate between theory implied on the of breach of warran KEATON, HANDBOOK PROSSER & OF ty sounding appears, in tort. It instead (5th 1984). LAW OF TORTS 97 at 691 ed. § plaintiffs' that the victories have been won Thus, recovery labelled grounds on the of strict in tort. tort," warranty in implied "breach (7th Industries, v. Coleco Inc. See Corbin contract, privity require does not must Cir.1984), (summary judgment 748 F.2d 411 something implied different from the defendantmanufacturer affirmed warranty under the actions UCC. express theories of breach of Bachman, tort, court, sounding supreme warranties contract and Wright Our 307, 313, negligence reversed on theories of 235 Ind. Inc. Hodnett *15 tort); liability in strict v. White Motor 713, 716, "It is well 133 N.E.2d stated Huff Cir.1977), (summa action of breach of warran (7th settled that an Corp. 565 F.2d 104 judgment ry action or a tort for defendant manufacturer ty may be either contract action, allegations of the depending on the tort); theory liability in reversed on of strict (7th Dagley Armstrong Rubber Cir. v. Co. warranty complaint. The seller's has been hybrid (dismissal curious of tort and 1965), 344 F.2d 245 described as a in favor of (1915), priety any McCarty other contract can be v. 58 Ind. than said -But see Williams 370, 440, distinguishing App. an ac- 108 N.E. there been fraudulent, have been because has hand, speak of for breach of a breach of it. On the other tion for deceit from an action representation warranty: as a or warran- false contract contract, ty, tending prove warranty upon a contract or war- while or as "A rests ranty, language representations perversion and of cor- have no is a of fraud or fraudulent rect ideas." them, element in but are essential- of contract 444-45, (quoting speak v. ly judges 1d. at at 372 Rose or law writers 108 N.E. a tort. When Thus, 77, 81). (1872), Hurley warranty, language it seems is nei- 39 Ind. of a fraudulent warranty concerning perspicuous. breach of If there is confusion ther accurate nor not of recent warranty, a contract or a tort action is of it cannot be said breach fraudulent, pro- origin. warranty more 578 in 402A as stated section ty in tort on theo reversed manufacturer defendant tort); (hereinafter Ro (Second) in v. liability Torts strict of

ry of Restatement Neofes 402A).6 adop to as section (S.D.Ind.1976), referred 409 Co. Controls bertshaw (defendant began manufacturer's in the federal F.Supp. 1376 of section 402A tion theory of granted on Equip to dismiss v. Clark system, motion see court Greeno and denied warranty in contract Co., of the Indiana supra, breach followed ment tort); With liability in theory of strict on Appeals, v. Sear see Cornette Court (S.D.Ind.1970), Drug, Inc. Sterling Products, (1970), ers 147 Ind. Inc. jeant Metal (defendant- manufacturer's F.Supp. 878 319 652, 46, finally the App. granted on judgment summary for motion Court, Ayr-Way Supreme see Indiana liability in strict negligence, theories (1973), Stores, 261 Ind. v. Chitwood Inc. warranty in tort, implied breach 86, apparent to us It is 300 N.E.2d 335. tort); v. Clark in Greeno contract giving it 402A and adopting section (N.D.Ind.1965), 237 Co. Equipment state, the courts the law of life as mo (defendant-manufacturer's F.Supp. 427 advances had the end of whatever signalled theory of strict on denied tion to dismiss of im theory of breach made been tort); v. Federal Car liability in Whittaker Clearly, latter warranty in plied tort. (1984), Ind.App., N.E.2d 466 Corp. tridge state, in this theory if ever it was viable (summary judgment 480, trans. dismissed merged theory of strict with the became reversed on defendantmanufacturers for 402A. under section liability tort tort; liability SCM theory strict Equipment Co. v. Clark Greeno (1983), Ind.App., 448 Letterer Corp. v. 427, (N.D.Ind.1965), plain F.Supp. 237 (directed verdict 686, trans. denied N.E.2d allegedly the manufacturer of an tiff sued theory of on manufacturer defendant for inju personal for fork lift truck defective appealed; warranty not implied breach including breach of theories ries on five plaintiff on jury verdict for on liability in tort warranty implied and strict ipsa loquitur re theory negligence/res district theory of 402A. The federal versed; on on section trial ordered based new Corp. Indiana District of Chrysler court for tort} Northern 6, Ind.App. 402A, 342 supra n. of section Alumbaugh quoted the text grounds theory on other related it to the and then modified verdict jury (judgment attempting N.E.2d 654 warranty "Without as follows: theory of strict affirmed on plaintiff fairly explanation, an exhaustive tort); Paint & Color liability in liability which this section said that Perfection v. Konduris Co. than what impose hardly more would jury verdict (judgment on N.E.2d 681 when implied warranty exists under theory of strict affirmed on plaintiff privi the contract doctrines stripped of tort). liability in disclaimer, requirements of notice ty, defect, through inconsistenc- limitation courts, 1978, Indiana 1965 and Between F.Supp. express warranties." es with trend, adopted as following the national liabili theory of strict note that 429. We should of this state law (1) applies (2) The rule stated Subsection Liability of Product Special of Seller 402A. 6. § although Consumer Physical to User of Harm (a) possible (1) any product in a defective care has exercised all sells the seller One who *16 dangerous unreasonably the user product, preparation of his condition and sale in the subject property or to his or consumer and thereby caused to liability physical harm bought (b) has the user or consumer to his consumer, or user or prop- the ultimate into contrac- or entered if erty, tual relation with the seller. (a) engaged business of the seller is (SECOND) ' 402A § TORTS OF RESTATEMENT * selling product, and such (1965). (b) user expected reach the to and does it is change in substantial consumer without in which it is sold. the condition * * * goods, subject sale of it is not implied warranty tortious breach of assert- by ed the Thieles does not include the "con- to the various contract rules which have tract doctrines" named above. grown up to surround such sales.' [Quoting (SECOND) RESTATEMENT

The district court in also stated: Greeno 402A (1965).] OF TORTS comment m § generally recognized implied "It is The American Law May, Institute in warranty properly is more a matter of following discussed the revision to public policy beyond power (See- Section 402A of its Restatement unilaterally seller to alter with disclaim- ond), Torts, adopt which revision would express ers and inconsistent warranties. concept this warranty[.]" new implied in Where there is law a certain Thus, 344 F.2d at 253. duty persons privity, the court in Dagley not in contract clearly equated plaintiff's preposterous action for seems seller personal injury for escape duty by inserting implied breach of war should into ranty relationship privity absent with a section 402A non-contractual contrac- tual disclaimer of which the remote in- action. jured person would be unaware The District Court for the Southern Dis law, by irrespec- warranty imposed This Indiana, trict of Sterling Withers v. public privity policy, tive of and based on Inc., (S.D.Ind.1970), Drug, F.Supp. liability.!" aptly is more called 'strict stated, explicit was even more for the omitted). (citations F.Supp. Fi time, at 481 dicta, proposition first albeit in nally, "If the court stated: 402A [section implied that an action for breach of war correctly the Restatement states of] ranty sounding duplicitous tort of an recovery practice, conditions of now in let liability action for strict in tort under see those elements have a fresh name and Withers, tion 402A. plaintiff sued entanglements abandon the old of 'warran drug, the defendant-manufacturer of a ty'" Clearly, Id. at 482. the court in plaintiff privity with whom the was not in implied considered breach Greeno war contract, damage eyes alleg her ranty liability congruent in tort and strict edly by drug. caused The district court recovery. theories granted the defendant manufacturer's mo Appeals summary judgment plain In a tion for on the Seventh Cireuit Court law, originating Dagley case under Indiana negligence, liability tiff's counts strict warranty, implied and breach of which the (7th 1965), Armstrong Rubber Co. Cir. plaintiff theory. declared was a contract 344 F.2d the administrator of a de ceased truck driver's estate sued the manu The court found the negligence liability counts barred the statute of allegedly facturer of a truck tire that warranty caused the when it limitations. The breach of count decedent's death blew privity privity was held the absence of out. There was no between the barred plaintiff between defendant defendant-manufacturer, decedent and the drug if manufacturer the action was based granted and the court the defend district plaintiff on contract as the declared it was. ant's motion to dismiss count of on, however, complaint alleging The district court went "breach of war discuss the case in terms of the alternative ranty reasonably the tire fit would be sounding in highways." warranty at 247. In of breach of for use on Id. reviewing tort. After the Seventh Circuit reversing dismissal of the district court's Dagley Armstrong of Court's decision in count, the Seventh Cireuit Court stating Appeals relied on section 402A as a Rubber Co., concept supra, "new and the therein, the court concept warranty." warranty" at 258. of addressed "new Id. in Withers stated: concept warranty "'The new bases decision, lability "Subsequent Dagley in tort. This on strict to the Appellate expressly warranty very 'is a different kind of war- Court of Indiana concept usually adopted warranty as it ranty from those found the 'new' *17 580 Armstrong Rubber Dagley v. Co.] 402A, [in Restatement of in is embodied § Torts, (1964). opinion v. Sear in intended 2d See Cornette and this Inc., Products, Ind. Metal is intended

jeant of the word and [147 broad sense 652, 21 Ind.Dec. 355 N.E.2d App. 258 46] conceptu- by analogy the only identify 26, 1970) May and (App.Ct., filed liability. It should not be of al basis Perfec Konduris, v. Co. Paint & Color tion express with the in this context confused 681, 21 N.E.2d Ind.App. 258 106] [147 they as implied contract warranties 1970). 2, (App.Ct., filed June Ind.Dec. 475 liability. products may relate to liability products in this complaint The 51, 258 N.E.2d at 655-56 Ind.App. 147 at alleging separate counts case contains Hoffman, J.). Judge Hoffman (opinion of implied war- liability of and breach strict "warranty in con- tort also referred to the implied war- breach of ranty. Tortious 52, 402A," N.E.2d at cept id. at 258 of § basis for the ranty the theoretical forms 656, indicating identity of the further adopted in Indiana liability rule strict theories. two of separate a cause not constitute does opinion in Judge Sharp's plurality Cor- warranty count in implied action. concurred, cause, nette, of Judge the element in Pfaff present absent Co., in privity, must sound tort Equipment quoted contractual v. Greeno Clark therefore, is, duplicitous of the strict liability proposition that supra, for the remedy the same liability count: It seeks "hardly more" 402A is imposed section label." a different under theory liability imposed under than the Thus, stripped of its plaintiff's warranty when F.Supp. implied of 319 count,, had it warranty 147 Ind. implied privity, of of ete. breach doctrines contract tort, been barred in would have sounded 57, (opinion of N.E.2d at 658 App. at Pfaff, Thus, strict liabil- J., concurring). limitations as the J. Sharp, with the statute was. section 402A ity count under Products, Searjeant Metal Cornette Appeals decision Inc., Hability in The Indiana Court in which strict the decision the law of 402A as adopted section that adopted was as the 402A tort under section state, judges all three of the v. Arm- Dagley this on law of this state also relied Co., equating supra, strong Rubber nature of opinion on the expressed who warranty implied theory of breach of theory liability equated the section 402A liability found theory strict with the tort theory of breach liability with strict Searjeant 402A. in section sounding in tort. Cornette warranty Products, Ind.App. Inc. Metal v. Thorn- Trailer Division In Fruehauf 652, plaintiff sued N.E.2d a ton machine, which manufacturer remote manufacturer, with a tire truck driver sued the theo- plaintiff, on allegedly injured the not, apparently, was plaintiff whom court in tort. This liability ry of strict contract, injury personal suf- privity of the law of 402A as accepted section he was tire on the truck fered when the state, failed to estab- plaintiff but held out, over- causing the truck to driving blew theory. case under prima facia lish manufactur- and burn. The defendant turn on quoted Dagley opinion Judge Hoffman's entered for the appealed jury verdict er UCC- traditional the distinction between things, among other plaintiff, alleging concept of and "the new type warranties jury instructing the erred in the trial court liability in tort- warranty" on strict based liability in tort theory strict both the then Judge Hoffman 402A. ie. section implied warran- and the of breach stated: two theo- because the ty sounding in tort however, out, pointed It should be instructing duplicitous were ries 402A, supra, liability under § to the prejudicial jury on both theories for breach not the same agreed The court defense. merchantability. Fruchauf warranty fitness or Hastings citing by Judge duplicitous, "Warranty" as used the theories were

581 Inc., opinion supra, Midway but not clear from the that the Sterling Drug, v. Withers implied warranty breach of count sounded instructing in trial court's error held the prejudicial to jury tort, on both theories not the plaintiff but inasmuch as the defendant-manufacturer, stating: in privity defendant-seller were not of con- been implied warranty in tort has "While tract, we assume the count was liability, two theo- superseded by strict Inc., Sterling Drug, tort. See Withers v. closely related. remain ries nonetheless trial, supra. plaintiff Before and de- quantum of evidence would An identical stipulation fendant-seller filed a of dismis- in this required support either action prejudice negligence sal with already determined that case. We have warranty implied breach of counts. At tri- is preponderance of evidence such a al, however, plaintiff moved to amend Ind.App. record." 174 present in the trial evidence, complaint to conform to the 9, N.E.2d at 28. 366 granted, which the trial court see TR. been numerous other Indiana There have 15(B), previously with the result implied that a cases that have stated or negligence implied dismissed and breach of implied war action of breach of cause of were, effect, warranty counts reinstated. liability in one for strict ranty in tort and evidence, plaintiff's At the close of the 402A, adopted in Indi section tort under granted trial court the defendant-seller's ana, duplicitous. are See Whittaker motion for on the evidence as to (1984), Corp. Ind.App., Cartridge Federal count, lability the strict but allowed the 2; 480, Barring 481 n. Lane v. 466 N.E.2d negligence warranty go counts to 1173, (1980), Ind.App., 407 N.E.2d 1175 er jury. jury a verdict for returned longer is ("Clearly, privity of contract no plaintiff, ap- and the defendant-seller injury for a required personal if a action pealed, alleging the trial court erred in tort; either on product sounds defective granting plaintiff's motion to amend theory or on the negligence complaint to conform to the evidence tort."); liability in Pharma Ortho when the effect thereof was to reinstate Corp. Chapman 180 ceutical recovery plaintiff previ- had theories of ("Nu 33, 47, 551 ously stipulated to have been dismissed practical dif have found no merous courts prejudice, Midway The court with of strict Habil ference between theories argu- agreed with the defendant-seller's implied ity under 402A and breach of § and, moreover, appeal, determined ment on proper warranty where the absence of harmless, was not the trial court's error issue."); warning is the see also Corbin v. stating: (7th Cir.1984), Industries, Inc. Coleco agree Midway with the court's "We think, ("We are inclined to F.2d recalling proffered remedy of Gilmore's hold, in the context though we do not on the witnesses for cross-examination im liability actions 'breach of products not be a satis- tort, amended theories would sounding in when not plied warranty curing the defects damages provi factory method consequential based on the preliminary regard to voir dire and 26-1-2-715(2)(B), just sions of UCC § defining the issues of the instructions liability."); for strict another name Neofes (S.D.Ind.1976), substan- case which must be considered a v. Robertshaw Controls Co. F.Supp. 1379. part Midway's We would tial defense. point important and out that there are array of cases cited In contrast substantial under strict liabil- distinctions opinion far in this section of this thus warranty ity, negligence, Center, Inc. v. Gil and breach Midway Ford Truck especially in the area of defens- theories Ind.App., 415 N.E.2d more (See, Develop- Survey es. Recent There, sued the seller of a a truck driver Lia- ments in Law-Products employ Indiana truck, plaintiff's purchased (1979) and Ind. bility, 12 Ind.L.Rev. er, negligence, breach of on the theories expressly states liability. It is Code 88-1-1.5-1 which warranty and strict is the by the statute ... products "Unresolved govern all chapter 1.5 shall *19 judicial theory which of another status theory of lia- liability cases in which hybrid of tort in Indiana as a has evolved in liability strict negligence or bility is claims tort, apply warranty. theory to actions based shall not Under but damage injury property personal warranty.)" upon breach products under breach of from defective 138; id. at 139 also N.E.2d at see warranty characterized to sound can be ("While recognize I dissenting) (Young, J. actions, the usual UCC in tort. such theories of important distinctions disclaimer, notice, contract defenses negligence, and breach liability, strict limitations, remedy, privity limitation warranties, continuance I believe a implied four-years-from-date-of-sale stat- any and the would cure witnesses a recall of longer applicable. prejudice.") are no ute of limitation resulting action is so similar to The context, the state and in Standing alone in brought liability strict tort one under important "there are Midway that ment in virtually congruent under both are lia under strict distinctions and substantial products But the new the case law. ... warranty theories" bility and breach ... number chapter departs significantly in a authority to coun nearly is not sufficient developed from the Indiana of areas state or array of cases that terbalance liability common law. The products duplicitous. are the theories imply that pro- new however, question remains whether these significant, because is Midway 'tort-warranties,' govern or are to section 1 of visions effect of issue of the raises the Act, Liability IND.CODE in warranty action exclusion the Product whether the (1982).7 -8 permit plain- 33-1-1.5-1 1 will continue to section § bring with elements sim- tiffs to actions earlier array discussed of cases warranty- under ilar to 'old 402A' either de- opinion were of our this section Although the sounding-in-tort theory. original passage prior to cided inconsistent, appear would latter result in 1978 or failed Liability Act Product easily legislature could have clarified the Act on effect of consider the discuss or by stating chapter that the its intent the theories of have deemed the cases warranty actions under to exclude implied liability in tort and breach seem to failure to do so would Its UCC. duplicitous. We now warranty in tort as litigable." make the issue effect, if of that consideration turn to a Lieberman, Liability- Vargo & Products any. Developments Survey Recent Liability the 1978 Product 1 of Section Law, 12 IND.L.REV. Indiana Act stated: omitted). (1979) (footnotes chapter 1. This 88-1-1.5] "See. [IC Liability the 1978 Product 3 of Section actions, liability govern products all shall Act stated: theory of in which the including those 8. and Restatement "See. Codification liability in or strict liability negligence is however, Liability in Tort. The common chapter tort; that this Strict provided respect arising to strict law this state apply to actions does not liability of war- and restated any alleged breach in tort is upon based codified ranty." as follows: (a) in a any product One who sells by (1982). raised The issue IC 338-1-1.5-1 unreasonably danger- defective condition present in the context this section to his consumer or any ous to user or arti- in a law review aptly stated case was physi- liability for time of the property subject near the appeared cle that the user or thereby caused to cal harm original Act: passage of the 1, 1983). (effective version of Sept. The 1982 No. 21, 1983, Pub.L. Act of Amended Apr. 7. by (codified 297-1983, accrued Acts 1814 case, Ind. the Act to this applies (Supp.1985) to -5 33-1-1.5-1 §§ IND.CODE to the harm consumer by property caused or to his that defective condi- if that user or consumer is in the persons class of (1982). tion" IC 88-1-1.5-8 exception This the seller reasonably should foresee would not seem to create important being subject to the harm caused distinction between section 3 of the Act and condition, and, the defective if: of breach of warranty in (1) engaged the seller is tort. It would busi- seem reasonable to con- clude, therefore, ness of selling codifying and re- product, such a stating the

(2) "common law of this expected state with to and does respect to strict tort" in terms reach the user or consumer without sub- *20 virtually change stantial identical to the terms of condition in which section 402A, which it is sold. the courts of this state had supersede held to theory of breach of (b) The (a) rule stated in Subsection implied tort, warranty in legislature applies although intended that section 8 of the 1978 Product (1) the possible seller has exercised all Liability Act supersede also theory. preparation care in the and sale of his product, and What meaning is given, to be (2) the user or consumer has not then, provision to the in section 1 of the bought product from or entered into Act that it apply "does not to actions aris any contractual relation with the seller." ing from or upon based any alleged breach (1982) added). IC 88-1-1.5-8 (emphasis warranty?" of (1982). IC 88-1-1.5-1 We emphasized language of Section 8 note first of all that section 1 explicitly above legislature's indicates it was the in apply products does to "all liability actions passing tent in Liability the Product Act to . in which theory liability of is ... codify and restate "the common law of this liability strict in tort." Id. We note also respect state with liability to strict in tort." theory that the of tortious breach of im As cases opinion discussed earlier in this plied warranty theory is a liability strict clear, make that common law was based on in tort. See Trailer Division v. Fruehauf adoption of section 402A of the Re Thornton, 8, at 366 N.E.2d at (Second) statement of Torts as the rule of ("[T)he term liability' signifies 'striet liability strict in Indiana. See Cornette v. standard of culpability to which a seller Products, Searjeant Inc., Metal supra. It will held for breach implied of an warranty appears that the common law of this state imposed, which is public as a matter of before 1978 was theory that the of breach policy, sells.") to a he See also "implied warranty in tort been [had] Co., Greeno v. Equipment Clark superseded by liability" strict as in stated ("This F.Supp. at 431 warranty imposed by section 402A. Trailer Division law, Fruehauf irrespective privity and based on Thornton, 9, 174 Ind.App. at public policy, aptly more called 'strict 28; see Searjeant Cornette v. Metal ") Thus, liability. it appears that the theo Products, Inc., supra (opinions of Hoff ry of implied breach of warranty in tort is a man, J., J.) Sharp, (equating theory theory liability of strict in tort to which the implied warranty of breach of in tort with Liability Product Act was meant apply, theory liability of strict under section according to Section 1 of the Al Act. 402A). though legislature might have been of section 8 of more intent, clear in expressing its

We language note that the we be Liability the 1978 Product virtually Act is lieve the warranty breach of actions language identical to the of section 402A of which the Act does apply, the terms (Second) the Restatement of Torts of Section are brought those under the supra UCC, see note exception with the liability which are not strict actions section 3 liability limits the seller's to the because they require privity of contract class of users or consumers that "the seller found in buyer a transaction between reasonably should being subject foresee as seller. (implied See IC 26-1-2-3814 warran- Therefore, (implied the trial 2-815 we hold merchantability); id.

ty of § summary granted properly court purpose). particular warranty of fitness II the Thieles' com judgment on Count be inconsistent would result Any other warranty implied on breach plaint, based intent, in see- stated legislature's duplicates and tort, count because Act, Liability 1978 Product 3 of the tion complaint IV .of the merges with Count this law of "the common codify restate Because tort. on strict based liability in tort." respect to strict state with III, Magnuson- on the federal based Count & Lieb- (1982); Vargo see 38-1-1.5-8 IC Act, 2801 to 15 U.S.C. Moss see § man, supra. finding a breach of upon depends finding precluded such a warranty and Therefore, we conclude case, court cor hold the trial we also is, purports Liability Act Product summary judgment rectly granted pre-Act common be, a codification complaint. III of on Count liability in tort strict law of breach of held the theories Liability Tort Strict liability in tort warranty in tort and (Sec allege the trial court finally the Restatement The Thieles 402A section *21 Thus, judg summary granting Faygo the in ond) identical. erred Torts to be of complaint, claim change the IV of their to ment on Count anything did not do 1978 Act meet its burden of ing Faygo failed to identity theories.8 issue demonstrating genuine was no there array of conclusion, vast is a there claim of to the Thieles' fact as of material proposi support of the authority in Indiana McCullough v. liability in tort. See strict implied of theory of breach the tion that (1983), N.E.2d 1168. Ind.App., 449 Allen theory the to in is identical warranty tort in its fa summary judgment Faygo claims originally as liability in tort of strict Thieles because the appropriate vor was 402A of section under adopted in this state prod the any proof that present failed to (Second) and as of Torts the Restatement pop-was defective Faygo case of uct-the Act, Liability IC in the Product codified Faygo's control. See it left the time at (1982). have discover We to -8 38-1-1.5-1 City Co. Construction v. Stone Gilbert per authority that or other ed no case 738. the of the elements suasively distinguishes alleged the de have Thieles Indiana theories; contrary, two the to two it defec product rendered sign Faygo's that, given facts of the under state cases In unreasonably dangerous under indistinguisha tive case, are the elements each (1982). They 83-1-1.5-8 section diana Code Inc., Industries, v. Corbin Coleco ble. See case of design of the the claim Division Trailer supra; Fruehauf wrapper plastic tight & WHITE a Thornton, pop-utilizing also supra; see LAW container- THE flexible cardboard SUMMER, OF around a HANDBOOK cata glass to be sharp piece of a caused COMMERCIAL THE UNIFORM UNDER top case into Robert pulted from ed.). can con (2d We at 355 9-7 CODE § deposition in Thiele's eye. Robert it Thiele's under facts no set of ceive of Fay- Faygo pop left that cases to dicates injured plaintiff possible would be they were removed when go's control injury on personal theory recover for Company Kroger warranty in tort but at Faygo trucks breach moved liability in tort. cases were docks. The warehouse theory of strict original Act that Liability guage 1 of the of section the Product to The 1983 Amendment 8. inapplicability actions based on amend- its As declared conclusion. alter our Act does not warranty" has been "any alleged breach "Sec. 1. reads: Act now 1 of the ed, section chap- this Act as amend- Except provided in section 5 from section 1 of as removed ter, in which governs actions chapter all this rath- clarifies, amendment ed. We believe the liability tort." liability strict alters, is above. we reach result er than Thus, lan- (Supp.1985). IC 33-i-1.5-1 Ayres Heights v. Indian Volunteer Fire within an hour from the dock to the ware Dept. Ind.App., 482 house, they up where remained for to one 737-38. picked by grocery month until order a

worker, Robert, shipment such as to a opinion, As noted earlier in this Kroger nothing retail store. We see Liability Section of the 1978 Product Act alleged evidence to indicate that de "codified and restated" the common law of design fect-the the case of liability (in in tort as relevant follows pop-could changed product have while the part): Thus, Kroger inwas warehouse. if the "(a) any product One who sells de- a product "a defective condition un fective unreasonably dangerous condition 88-1-1.5-3, reasonably dangerous," IC user or consumer subject ... time of Robert's it must have injury, liability physical thereby harm caused when been so left control. user or consumer if ... that user Whether is in a defective condi persons or consumer is in the class of unreasonably dangerous tion generally the seller reasonably should foresee question for the trier of fact. Corbin being subject to the harm caused Industries, (7th Cir.1984), the defective condition...." Coleco Inc.

F.2d 88-1-1.5-8(a) (1982). Thus, IC poten- of all plaintiffs might tial injured by who Nevertheless, we must affirm the trial product, plaintiffs defective the class of grant summary judgment Fay- court's granted who have protection been go on the strict count of the com- Liability doubly Product Act has been plaint grounds, on other which were not 1) 2) limited to users and consumers whom appellate addressed briefs of either reasonably the seller should foresee as be- party. *22 ing subject to harm the caused the "Although normally we will not decide product's ques- defective condition. The appeal upon grounds of an the merits any genu- tion before us is whether there is argued by parties, the nor submitted to regarding ine issue of fact material Robert court, obligated the trial we are ascer- to protected Thiele's inclusion in that class of applicable tain the correct law to the not, plaintiffs, and if whether is if do facts to otherwise would be to ren- entitled to as a matter of law. clearly appellate der a erroneous deci- section of the Act The definitional stated: sion. "'User or consumer' shall include: a As stated in Allied Structural Steel purchaser; any individual who uses or (1970) Ind.App. v.Co. State product; per- the consumes or other 57; who, acting son while for or on behalf of connection, 'In this we feel bound to party, injured possession the was in appeal state that the once merits product question." control of the reached, obligation are it the solemn dispute IC 838-1-1.5-2. There is no factual to determine law which court the regarding relationship here Robert's to the decision, controls the whether or not product: employee he was a "middle man" parties adequate counsel for one or both employer's at the distribution level of his ly perform appellate his or their duties.' Faygo's product as it business who handled (1985) See also Lee v. Estate Cain 3d through flowed the stream of commerce 922; Ind.App., Dist. Four purchaser. question The toward the retail Winns, Inc. v. Cincinnati Insurance us, therefore, before such an is whether (1984) Ind.App., 3d Dist. 471 N.E.24 Co. employee as de- is a "user or consumer" 1187; McEntire question pure fined in the This is a v. Indiana National Act. (1984) law, Bank 4th Dist. requiring application of the only an N.E.2d 1216." facts, undisputed to is thus law in legislative its discussion because summary on for determination appropriate applicable to phrase is underlying that 56(C). tent TR. judgment. See us: case before statutory defini- portion of the only The part: provides in that conceiva- 33-1-1.5-5 or consumer" "IC "user tion of bly could present cludes product," product clearly did not fines the ATE DICTIONARY WEBSTER'S these uct at business. purpose or action employ 3: to treat" into or 6: "1: expend or consume to behave drugs) accustom, definitions action or "any individual injured the distribution Thiele's or It circumstances transitive IC possess it while appears include Robert regularly SEVENTH 88~1-1.5-2, toward: party. consume handling purchase habituate, service: accurately characterizes verb by means of: legislature 4: The who act level of or take "use" as follows: NEW COLLEGI- (1969). avail oneself or consume acting because that which inure 2: to putting Thiele dictionary de- uses carry regard (as liquor Kroger's utilize 5: None intended ... Robert behalf out prod- use put of: to: in- a cause of thirty-four commenced years after their statute of the initial '[Alny product in IG initial ery spectively, and ammunition Marlin court's any other after of distribution. j manufacturer purchaser complaint. user or 88-1-1.5-5, trial court interpretation and Federal action delivery of the # user limitations intermediary years before within consumer," delivery of the or consumer.' accrues or lability is a ^[*] ruled that and thirteen We to regardless two 'within ten the Whittakers any purchaser retailers, which is began to run when delivered retailer, disagree with the (2) ha along action refers years product within ten the ten ^[*] of whether product to (10) dealer, years, language after the must be to deliv- to the years chain ^[*] year filed rifle (10) re- or those characterize consumer" "user or aby foreseeably be harmed might following def- who provides 38-1-1.5-2 IC its point of retail or product at initions: after ' with a manufacturer, equivalent transaction9 includes sale "Seller" public. In Whit consuming member wholesaler, or a distribu- retail dealer *23 (1984), Corp. Cartridge Federal taker tor. dismissed, 480, trams. N.E.2d Ind.App., 466 shall include: consumer" "User or of "user definition the considered this court uses or who any individual purchaser, 2 of our in found Section or consumer" per- other product; or the consumes purpose of the Liability Act for Product who, on behalf of acting for or while son of limitation period the determining when possession in party, was injured the commences. liability action product question.' in product control Whittaker, the In IC 88-1-1.5-5. See part: in provides Again, IC 38-1-1.5-5 Act under the defendants the plaintiff sued must be liability action '[AJluyproduct rifle using a while injured was after she (2) the years after two within commenced Fire Marlin by defendant manufactured (10) ten or within acerues of action cause with ammunition arms, loaded which was product delivery of the years after the Car Federal by defendant manufactured or consumer.' initial user the opin that length from quote at tridge. We the statute meaning of plain The to con only decision ion, it is because commences limitations period of that consumer" "user or phrase sider from is delivered product Liability Act at the time in the Product defined Ind.App. (1970), 147 v. Konduris Ind.App. Co. Oil Co. v. Sun See Link 9. N.E.2d Color Paint & 126; 310, 312 Perfection products manufacturer, wholesaler, retailer, the case of which it needs consuming entity. distributor to the first and for which it is rely upon forced to statutory language It is clear from the seller, reputable that sellers will 'seller', and definitions that the term goods; stand public behind their pol- manufacturer, which "includes a a whole- icy demands that the burden of acciden- saler, distributor', dealer, a retail or a injuries by products tal caused intended and the term 'user or consumer' are mu- consumption placed upon those tually exclusive. Marlin and Federal them, who market and be treated as a believe, would have us as did the trial production against cost of liability court, 'initial term user or con- obtained; insurance can be and that the sumer' in IC 38-1-1.5-5 includes those products consumer of such is entitled to retailers other intermediaries. protection the maximum of at the hands Again, only we need look to the defini- someone, proper persons and the provided tions 83-1-1.5-2 IC to dis- afford it are prod- those who market the miss this contention. The term 'seller' ucts." encompasses only manufacturers but Cornette, supra, 258 quot- N.E.2d at 656 also the intermediaries. 'User or con- 402A, ing R.2d Torts See. comment c. sumer' does not. This enunciation policy behind Liability Indiana's Product statute products liability again reveals prod- codification of common law of juxtaposition products liability law be- liability adopted ucts which had been using consuming tween the public See, 88-1-1.5-8; this state. IC Cornette hand, the one and all those entities who Inc., Products, Searjeant Metal have product, marketed the manufactur- N.E.2d 652. otherwise, ers and on the other hand. law essentially common an rely primarily Marlin and Federal adoption of the Restatement 2d of Torts interpretation their of the statute on the explanatory 402A to which See. com- 'purchaser' inclusion of the work under provides part: ment the definition They 'user or consumer.' '1. User or consumer. order for 'purchaser' contend that refers apply, the rule stated in this it Section to any intermediary purchases who necessary is not that the ultimate user or manufacturer, product from the so that acquired consumer have di- begin the statute limitations would seller, although rectly from the the rule upon delivery intermediary. run to that applies equally if he does so. He Again, reading plain our of the statute acquired through have one or more products and of Indiana common law on (Emphasis intermediate dealers' add- prohibits interpretation. ed.) agree We with the Whittakers 402A, Restatement 2d of Torts See. com- separation 'purchaser' of the term ment 1. It is clear that authors phrase 'any individual who uses or contemplate 402A did not intermediate product' in consumes the the definition of scope within the dealers to be *24 likely 'user in- and consumer' was most or definition of 'user consumer.' tended to reflect the breadth of the class Cornette, supra, adopted In our Court plaintiffs as described in comment 1. quoted 402A from it as follows: See. and to See. 402A. theory, justification 'On whatever the necessary 'It is even that the con- not liability for the strict has been said to be purchased product sumer at all. seller, have the by product marketing the his may family He be a the of the consumption, member of for use and has undertaken purchaser, employee, final or special or responsibility and assumed a to- his table, guest donee from at his or a mere any consuming pub- ward member of the it; purchaser. may injured by liability lie who be the the stated is one tort, public right expect, any the in require has to and does contrac- does not (SECOND) TORTS OF. RESTATEMENT contract, be- relation, privity of or tual (1965). com- This 402A, o. comment See. defendant.' and the plaintiff the tween problem with the mainly 402A, ment is concerned Torts, See. Restatement Second legis- our recovery. bystander 1. omitted]" comment [Footnote or "user the definition expanded lature Corp., Cartridge v. Federal Whittaker in- "any bystander to include consumer" at 481-83. reasonably who would product by the jured Whittaker, held Thus, we in vicinity of the the in expected to be be Liability Product that, of the purposes expected reasonably during its product or "user repose, statute of ten-year Act's (Supp.1985). IC 33-1-1.5-2 use." entity" and "consuming means consumer" extend- rationale behind the We note that wholesalers, or retailers include not does lability of strict ing protection of dis intermediary in the chain any other applicable to equally bystanders seems or con of "user The definition tribution. dis- in the entities employees of those ap Act in found Section sumer" prod- of a the sale preceding tributive chain is phrase uniformly wherever plies consuming entity." Such the "first uet to 88-1-1.5-2. IC in the statute. See used both bystander are employee and such deter Because, the court Whittaker by a subject to harm caused foreseeably in include not mined, phrase does protect is able to product; neither defective chain, we in the distributive termediaries choosing to harm from such himself include was intended it not believe do products. reputably safe only with deal intermediaries, such employees of such Thus, in Rob- person seem that a it would case. present Thiele as Robert distribu- in the chain of position Thiele's ert manufacturer product of a tion in its guided court The Whittaker deserving entity is as consuming 1. of c. and comment by comment decision Liability Act as Product protection of our present to the Also relevant 402A. Section Nevertheless, appears bystander. o., part: which states is comment case to a a "sale" legislature required has our non- non-users Injuries "o. protec- entity" consuming before "first courts, ap- far the Thus consumers. triggered, and Act is by the afforded tion Section, in this rule stated plying such before injury occurred Thiele's Robert recovery allowing gone beyond have not product involving a transaction consumers, terms as those users place. took by- Casual Comment are defined "user not a Thiele was Because may come standers, who others as de- Faygo's product consumer" in the case product, as contact statute, he is in our fined retailer, passer- aor of the employees the benefit entitled to bottle, or a exploding by an injured recovery therein. stated liability theory of automobile, have by an hit pedestrian granted Therefore, properly trial court no recovery. There denied been IV of summary judgment on Count plaintiffs why such reason essential complaint. Thieles' seope brought within the not be should granting judgment The trial court's afforded, than other protection Inc., summa- defendant, Beverages, reasons same have the they do not II, IV III and Counts ry the con- protection as such expecting affirmed; judg- complaint Thieles' product; buys a marketed sumer who reversed; and the I as to ment Count been has pressure which the social but proceedings. further is remanded cause development for the responsible largely a consumers' has been rule stated YOUNG, P.J., concurs. *25 de- same is not the there and pressure, separate CONOVER, J., dissents strang- of casual protection for the mand opinion. ers." 589 condi- first of the existence the possible, dissenting. CONOVER, Judge, of the proximate cause the be cannot tion majority's the as to dissent respectfully I origi- case) in (emphasis (citing injury. in action of cause negligence holding the nal). The for trial. returned be must case this N.E.2d Ind.App., 471 (1984), v. Platt Crull (Fay- Beverage, Inc. of negligence See, v. Cald- also Havert 1211, 1214-15. this cause. in actionable is not any, if go), 154, 156-158. Ind., N.E.2d 452 well majority's however, concur do, I interven- an of whether question the While warranty in tort (a) the conclusions causal the Indiana, as to break such was ing cause exist longer no action of causes the act and defendant's between connection pursue entitled is not Thiele (b) Mr. and fact, in the trier of generally is injury our under product a defective only a where liability actions. cases indisputable and codifying plain statute be can conclusion or inference single us, injury to the before facts the Under of law is a matter drawn, question such by caused proximately eye was Thiele's Mr. 1215. Crull, at court. the question The glass. of piece the broken here kind Thiele negli- general carton's of the Injuries the whether becomes then reasonably foreseeable not were suffered "trampo- the produced which design gent they as engineers packaging Faygo's concurrent a of was complained effect" line question, carton designing the of Thiele's cause were remote non-actionable or not foreseeability does While my opinion. injury. conse- exact or hazard precise the mean Design Negligent I. foreseen, "nei- been have should quences re- subject P.J., discussing Staton, anything encompass it does ther cently said Crull, occur." conceivably might act negligent determining whether fingers or cut Pinched 1215. at N.E.2d of an cause proximate the is or omission reasonably bending were carton's from the is a injury the whether the test injury sting- time, the perhaps at that foreseeable which, consequence probable and natural the extremities these bruising of ing or circumstances, rea- should the light was when action" "trampoline covering's anticipa- or foreseen been sonably have Thiele nature the injuries of flexed, but Ind., 452 v. Caldwell Havert ted. reasonably foreseeable not were suffered the foresee- key is 154, The 158. N.E.2d carton's during the law a matter natural as a injury ultimate the ability of negli- opinion. my stage design act or the consequence probable re- independent unidentified an gence closely to related ruleA Id. omission. piece broken caused agency sponsible requirement foreseeability the carton's top of placed to be glass liabili- off may cut intervening cause negligence Such wrapper. plastic case) (citing actor. original ty of It here. injury cause proximate intervening conduct independent For Fay- between connection causal broke liability to the extension prevent injury. Thiele's negligence alleged go's wrongdoer, original conduct design negligent cause constitute must conduct later be held to lawof matter as a cannot sequence natural interrupting ... injuries cause proximate course, pre- their aside events, turning unforeseeability of [un- due result probable natural venting the agency's] independent responsible known omission, pro- act original subsequent act.... been have could result ducing a 159; Slinkard Havert, N.E.2d case) It (citing anticipated. reasonably 76, N.E.2d Ind.App. (1954), 125 Babb de- when principle settled well is a 76, 117 den'd. reh. merely creates negligence fendant's 633, 122 Ind. den'd. trans. N.E.2d inju- subsequent by which condition made are another acts ry-producing *26 negligent design Thiele's theory fails as reasons,

a matter of law for those my

opinion. reasons,

For those I would affirm the respects.

trial court in all

Anthony Benedict, M. Indianapolis, appellant. Jones, Jr., John Paul Indianapolis, for HAMILTON, Appellant

Grace appellee. (Petitioner Below), SULLIVAN, Judge. HAMILTON, Appellee Samuel Petitioner-Appellant Grace Hamilton Below). (Respondent (Grace) appeals from the trial court's refus- modify al to set aside or provision of a No. 2-584-A-132-PS. dissolution decree which concerned the val- Indiana, Appeals Court uation and distribution of certain real es- District. Second tate. 24, Feb. 1986. We affirm. 4, April Denied

Rehearing 1986. giving appeal facts rise to this are as 18, 1981, May follows: On Grace filed a

petition for marriage dissolution of her years to Samuel Hamilton. The cause subsequently 23, tried on November 1981, and a decree of dissolution of mar- riage January was entered on provided, The dissolution among decree things, other that Samuel be awarded as separate his sole property, real estate in Kentucky located approximate with an $75,000. fair market value of Approximately eighteen later, months July 1988, Grace, fraud, asserting filed a motion for judgment pursuant relief from Procedure, to Ind. Rules of Trial Rule 60(B).1 The trial court scheduled an evi- dentiary hearing upon based its decision to paragraphs treat of the motion request as a for relief under I.C. 31-1-11.- (Burns Ed.Supp.1985).2 5-17 Code paragraph motion, 1 of her Grace al- leged that she had discovered new evidence correctly 1. The trial court applicable portion concluded that as provides 2. The of the statute Motion, 60(B) timely Rule property disposition Trial it was not filed. that orders as to (1984) Marriage fraud, In Re except Moser ist Dist.Ind. be revoked or modified in case of App., 469N.E.2d762. sought years. and if the relief is within two