Hinkle v. Niehaus Lumber Co.

525 N.E.2d 1243, 1988 Ind. LEXIS 211, 1988 WL 75019
CourtIndiana Supreme Court
DecidedJuly 18, 1988
Docket63S04-8807-CV-637
StatusPublished
Cited by30 cases

This text of 525 N.E.2d 1243 (Hinkle v. Niehaus Lumber Co.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hinkle v. Niehaus Lumber Co., 525 N.E.2d 1243, 1988 Ind. LEXIS 211, 1988 WL 75019 (Ind. 1988).

Opinions

ON CIVIL PETITION TO TRANSFER

DICKSON, Justice.

Defendant-appellee Niehaus Lumber Company (Niehaus) obtained a summary judgment in a products liability case brought by plaintiff-appellant Kelly E. Hin-kle (Hinkle). The Court of Appeals reversed, finding that Niehaus failed to carry its burden at summary judgment to show an absence of evidence upon the factual question of whether Niehaus had a duty to warn. Hinkle v. Niehaus Lumber Co. (1987), Ind.App., 510 N.E.2d 198. We grant transfer and affirm the trial court.

As summarized by the Court of Appeals, the underlying facts are as follows. In 1984, Alumax Aluminum Recycling (Alu-max) needed to replace the roof over a “dross”1 storage shed where corrosive salt compounds were stored. A roofing contractor submitted a bid for the roofing job based upon the cost of labor and fiberglass roofing materials. Fiberglass does not corrode.

However, Alumax’s plant manager wanted to do the job as cheaply as possible. Determining a fiberglass roof would be too costly, he rejected the contractor’s original bid and asked him to rebid the job as to labor only. When the contractor did so, the plant manager accepted the labor bid, then ordered 28 gauge sheet metal roofing material directly from Niehaus. Before that order was placed, Alumax’s maintenance supervisor told the plant manager sheet metal would be more costly in the long run because it would deteriorate faster.

The roofing contractor’s workmen installed this sheet metal roofing over the dross storage area. A heavier gauge metal would have been more suitable for the job. The roofing material purchased from Nie-haus contained no written warnings or installation instructions of any kind.

As installed, the metal sheets on the roof overlapped approximately 18 inches at every other purlin.2 While it was thought this overlap would add extra strength, in fact it caused more serious corrosion and deterioration.

Six months later, Hinkle, an employee of Alumax, was ordered to make repairs on the metal roof over the dross shed. When Hinkle walked on the roof to do his job, the roof collapsed because of excessive corrosion in one of the purlin areas. Hinkle was severely injured.

Indiana’s Product Liability Act imposes strict liability in tort upon sellers of a product in a defective condition unreasonably dangerous to any user or consumer. Ind. Code § 33-1-1.5-3. The definition of product in a defective condition is provided by Ind.Code § 33-1-1.5-2.5:

(a) A product is in a defective condition under this chapter if, at the time it is conveyed by the seller to another party, it is in a condition:
(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
(b) A product is defective under this chapter if the seller fails to:
(1) properly package or label the product to give reasonable warnings of danger about the product; or
[1245]*1245(2) give reasonably complete instructions on proper use of the product; when the seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer.
(c) A product is not defective under this chapter if it is safe for reasonably ex-pectable handling and consumption. If an injury results from handling, preparation for use, or consumption that is not reasonably expectable, the seller is not liable under this chapter.
(d) A product is not defective under this chapter if the product is incapable of being made safe for its reasonably ex-pectable use, when manufactured, sold, handled, and packaged properly, [emphasis added]

Identifying the “threshold question” as “whether a duty to warn arose,” the Court of Appeals concluded that Niehaus had a duty to warn because certain claimed unreasonable dangers were unknown to the purchaser Alumax. However, the extent of a purchaser’s knowledge is not the sole criteria giving rise to a duty to warn. There must be evidence that the supplier knew or had reason to know that the product was likely to be dangerous when used in a foreseeable manner. American Optical Co. v. Weidenkamer (1983), Ind., 457 N.E.2d 181. Where injury results from use not reasonably expectable, the product is not defective under Ind.Code § 33-l-1.5-2.5(c), and the seller is not liable.

Hinkle claims that his fall was caused by the excessive metal roof corrosion and deterioration which resulted from the corrosive nature of the salts and chemicals used in the Alumax recycling process. Although the record contained purchase documents merely noting that the sheets were intended for roofing “over dross area,” Hinkle presented no evidence to show that Niehaus knew or should have had any reasonable expectation that the metal roofing sheets were to be used in an unusually corrosive environment. The roofing contractor employed by Alumax testified by deposition that the sheet metal roofing material would support a man’s weight under normal use. The deposition of the Alumax maintenance superintendant describes the extent of knowledge and expectations by Niehaus as follows:

Q. To your knowledge was Niehaus Lumber Company involved in the decision by Alumax to put on the particular type of roof that Mr. Hinkle fell through?
A. Niehaus Lumber Company was not involved in any decisions ... when the roofing was selected, we were told ... [by other Alumax personnel] what to order. And that’s what we ordered.
Q. And to your knowledge, did Niehaus even know for sure what building this was going to go on?
A. I don’t see how they could have, because we weren’t dealing with Niehaus as a subcontractor or anything else. All we asked them for was to supply this material, just as if I was buying a bolt or a nut. “I want this type of bolt.” “I want this type of nut.” And that’s it. And that’s all Niehaus really did. They had no decision at all into where this material was going, what it was going to be used for, anything else. As far as they know [sic], we could have been roofing a bam.
Q. And did Niehaus deliver what was ordered by Alumax?
A. Yes.

Trial Rule 56(E) includes the following explicit requirement:

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Bluebook (online)
525 N.E.2d 1243, 1988 Ind. LEXIS 211, 1988 WL 75019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinkle-v-niehaus-lumber-co-ind-1988.