FOR PUBLICATION
ATTORNEYS FOR APPELLANTS
: ATTORNEYS FOR APPELLEE:
GROVER B. DAVIS C. REX HENTHORN
Davis & Shanley J. LAMONT HARRIS
Indianapolis, Indiana Henthorn Harris & Weliever
Crawfordsville, Indiana
TERENCE K. ANKNER
Fishman Ankner & Horstmann, L.L.P.
Boston, Massachusetts
IN THE COURT OF APPEALS OF INDIANA
ROSS FOXWORTHY, as Personal ) Representative of the Estate of JAMES REX ) FOXWORTHY, Deceased, and JAMES ) THOMAS FOXWORTHY, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 54A04-0009-CV-374 ) HEARTLAND CO-OP, INC., ) ) Appellee-Defendant. )
APPEAL FROM THE MONTGOMERY CIRCUIT COURT
The Honorable Thomas K. Milligan, Judge
Cause No. 54C01-9807-CT-209
June 27, 2001
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
(a) knows or has reason to know that the chattel is or is
likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel
is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition
or of the facts which make it likely to be dangerous.
Foxworthy first notes, and we agree, that there is no serious dispute as
to whether Westland knew that the loader was or was likely to be
dangerous when driven on the road. The designated evidence reveals that in
January 1998, one of Westland's mechanics informed Phil Pirtle, Westland's risk manager, that
the brakes and steering systems on the loader needed to be fixed and
that he could fix them. Pirtle responded that Westland would not fix
the breaks or steering because it was too busy. Westland's awareness of
the loader's dangerousness is also evident in light of a previous accident, one
or two years prior to the instant fatal accident, in which Roger Davies
lost control of the loader and ran off the road, striking a fence.
Davies's accident was common knowledge among Westland employees. Finally, while no
formal warnings were issued by Westland, Pirtle did advise employees to use the
trailer and avoid driving the loader on the road if possible. Pirtle
further recommended that if the loader was operated on the road, they should
drive slowly and keep the bucket low to the ground "so that the
bucket could be used to help stop the Loader in an emergency."
Record at 311.
Thus, the focus of our inquiry is § 388(b). Foxworthy argues that
genuine issues of material fact exist regarding whether Westland had reason to believe
that Rex would realize the loader's dangerousness and that the trial court, therefore,
erred in finding that as a matter of law no duty existed.
See footnote
Foxworthy notes that Westland employees, including Rex, were never specifically told by Westland
that the loader had a defective steering mechanism and an inoperable brake line.
Foxworthy further observes that no formal warnings of the loader's dangerousness were
issued by Westland, and that Vicki Miller, Rex's counterpart at the Cherry Grove
facility, was not aware of the loader's inoperable brake line and inadequate steering
mechanism. Foxworthy asserts that this evidence "supports the conclusion that Westland's employees
were
not aware of the very condition that made the loader dangerous."
Appellant's Brief at 23 (emphasis in original). We observe, however, that the
inquiry is not what the employees actually knew but, rather, what Westland had
reason to believe Rex would realize about the loader's dangerousness. Further, the
extent of Westland's warnings to its employees is not relevant to the question
of whether a duty exists.
Foxworthy also observes that while Rex was a primary user of the loader,
he was not a mechanic and the only maintenance-related repairs he made involved
changing oil filters and maintaining oil levels. Moreover, Foxworthy asserts that Rex's
primary use of the loader to load lime did not require him to
drive the loader more than a few feet at any given time and,
therefore, Rex was not on notice of the extent of the danger that
the loader presented. Based on this evidence, Foxworthy argues that there is
a genuine issue of material fact regarding whether Westland had reason to believe
that Rex would realize the loader's dangerous condition. We cannot agree.
The undisputed designated evidence reveals that Rex was a primary user of, and
the Westland employee most familiar with, the loader. While there is no
direct evidence that Rex had previously operated the loader outside the context of
loading lime, there is evidence that several other employees had operated the loader
on the road. It was common knowledge among the employees that Davies,
Rex's supervisor, had lost control of the loader and run into a fence
while operating it on the road. Finally, through her experience with the
loader as Rex's counterpart at the Cherry Grove facility, Miller knew of the
loader's "mechanical problems" and even told Pirtle that when she drove the loader
on the road, she always kept the bucket low so that, "in case
of an emergency, [she] could drop the bucket to serve as brakes."
Record at 136. Based on his operation of the loader, Young, the
other primary user of the loader, was also aware of problems with the
loader's brakes and that the loader's articulated steering system made it difficult to
drive on a paved road.
In light of the above evidence, we conclude that Westland had reason to
believe that Rex would realize the loader's dangerous condition. The trial court
properly determined as a matter of law that Westland owed no duty to
Rex under § 388.
Foxworthy also argues that Restatement (Second) of Torts § 388 does not define
all of the duties of care a supplier owes to a borrower of
chattel. In particular, Foxworthy asserts that Westland owed Rex a common law
duty to use reasonable care to maintain the loader in a safe and
operable condition.
See footnote
While we agree that in certain instances a supplier may owe duties beyond
§ 388's duty to warn,See footnote we do not believe that the circumstances of
this case warrant extending Westland's duty beyond § 388. Specifically, we observe
that Rex was not required by Westland to use the loader to spread
his lime and was not acting within the scope of his employment or
in furtherance of Westland's business purposes at the time of the accident. We
conclude, therefore, that our common-law considerations of relationship, foreseeability, and public policy are
adequately addressed in this case by § 388.
Judgment affirmed.
BAILEY, J., and MATTINGLY-MAY, J., concur.
One who supplies to another, directly or through a third person, a chattel
to be used for the supplier's business purposes is subject to liability to
those for whose use the chattel is supplied, or to those whom he
should expect to be endangered by its probable use, for physical harm caused
by the use of the chattel in the manner for which and by
persons for whose use the chattel is supplied
(a) if the supplier fails to exercise reasonable care to make the chattel
safe for the use for which it is supplied or,
(b) if he fails to exercise reasonable care to discover its dangerous condition
or character, and to inform those whom he should expect to use it.
This section is not applicable in the instant case because Rex was not
planning to use the loader in furtherance of Westland's business purposes. "[W]here
use of the chattel is permissive, the chattel is supplied gratuitously and not
in furtherance of the supplier's business purpose."
Bogard v. Mac's Restaurant, Inc.,
530 N.E.2d 776, 779 (Ind. Ct. App. 1988) (holding that supplier owed no
obligation under § 392 to exercise due care for the safety of plaintiff,
an independent contractor, who was permitted to use ladder while working on supplier's
business, as there was no evidence that supplier promised to supply plaintiff with
the tools necessary to maintain supplier's premises), trans. denied (1989).
Second, Foxworthy directs us to § 408 of the Restatement and briefly argues
that Westland had a duty as a lessor to remove the defective loader
from its inventory. Foxworthy notes that although this section deals with leases,
it is applicable to the instant case because the section equally applies to
bailors. To support this proposition, Foxworthy cites Coca-Cola Bottling Co. v. Vendo
Co., 455 N.E.2d 370 (Ind. Ct. App. 1983) with the following parenthetical:
"noting that a 'bailor' is a 'lessor.'" Appellant's Brief at 43-44 n.20.
We initially observe that the cited case does not address § 408.
Further, Coca-Cola Bottling Co. notes that a lessor is a bailor.
Although that is a correct statement of law, logic dictates that the converse
of such a proposition is not necessarily true. In the instant case,
Westland was clearly not a lessor.
Finally, in a footnote and without citation to any authority, Foxworthy asserts that
a duty exists under § 389 of the Restatement. We have previously
noted that § 389 has not been adopted in Indiana. Downs v.
Panhandle Eastern Pipeline Co., 694 N.E.2d 1198 (Ind. Ct. App. 1998), trans. denied.
Foxworthy presents no cogent argument for our adoption of this section.