                                                                    FILED
                                                               Mar 27 2018, 8:11 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John P. Daly, Jr.                                         Jeffrey J. Mortier
Jared Harts                                               Maggie L. Smith
Golitko & Daly, P.C.                                      Blake N. Shelby
Indianapolis, Indiana                                     Frost Brown Todd, LLC
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Angela Brewer, Individually and                           March 27, 2018
as Personal Representative of the                         Court of Appeals Case No.
Estate of Rickey A. Brewer,                               55A05-1709-CT-2168
Deceased,                                                 Appeal from the Morgan Circuit
Appellants,                                               Court
                                                          The Honorable Matthew G.
        v.                                                Hanson, Judge
                                                          Trial Court Cause No.
PACCAR, Inc. d/b/a                                        55C01-1605-CT-691
PETERBILT MOTORS CO.,
Appellee.



Barnes, Judge.




Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018                Page 1 of 29
                                              Case Summary
[1]   Angela Brewer, individually and as personal representative of the Estate of

      Rickey Brewer, appeals the grant of summary judgment in favor of PACCAR,

      Inc., d/b/a Peterbilt Motors Company (“PACCAR”). She also appeals the

      denial of her motion for partial summary judgment. We reverse and remand.


                                                      Issue
[2]   The primary issue before us is whether, as a matter of law, PACCAR cannot be

      held liable for providing parts of a semi-tractor that lacked allegedly necessary

      safety features, where the semi-tractor ultimately was assembled by another

      company and the semi-tractor caused Rickey’s death.


                                                      Facts
[3]   W&W Transport (“W&W”) is an Ohio-based trucking company that owns and

      operates a number of semi-tractors and trailers. Rather than purchase whole,

      newly-constructed semi-tractors, W&W often elects instead to assemble its own

      vehicles. It does so by combining pre-existing engines, transmissions, and

      exhaust systems with a “glider kit” manufactured by PACCAR. A glider kit

      generally consists of a semi-tractor cab and chassis but no powertrain.

      PACCAR also constructs entirely new semi-tractors, complete with engines and

      transmissions.


[4]   In February 2015, W&W ordered a Peterbilt (PACCAR) glider kit from a

      Peterbilt dealer in Ohio, using specifications similar to other glider kits W&W

      had purchased in the past. PACCAR then constructed the glider kit according
      Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 2 of 29
      to those specifications. This glider kit consisted of a cab, chassis, wiring, drive

      axles, suspension system, and partial braking and steering systems. The cab did

      not have a rear window; W&W could have requested PACCAR include such a

      window as an optional feature but it was not a standard feature. W&W

      subsequently added a “headache rack” to the rear of the cab, which is a

      bulkhead intended to prevent any cargo behind the cab from crashing into the

      cab in the event of an accident. PACCAR contends this “headache rack”

      would have obscured a rear window in the cab if one had been installed. The

      glider kit also did not come with a backup alarm; again, W&W could have

      ordered such an alarm as an optional feature, but it was not standard on

      PACCAR glider kits. W&W did request that the glider kit have wiring to

      install a beacon/strobe light, but it ultimately did not install such a light when it

      assembled the semi-tractor. PACCAR did not offer rearview cameras as either

      a standard or optional feature on its glider kits. Such cameras could have been

      installed after-market if a customer ordered a “SmartNav” dash screen display

      from PACCAR, but the “SmartNav” system was not compatible with the older

      engine W&W intended to use with the glider kit that it ordered. The glider kit

      also did not come with any warning labels regarding the danger of backing up

      the semi-tractor.


[5]   When PACCAR delivered the glider kit to W&W, it also sent a standard

      “Information Letter,” explaining that the glider kit was not a complete motor

      vehicle and that whoever added a powertrain to the glider kit was “responsible

      for understanding and ensuring the completed vehicle is in compliance with


      Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 3 of 29
      regulations regarding certification, VIN assignment, and registration before

      placing the vehicle in service.” App. Vol. II p. 168. The letter also stated that

      the glider kit was in conformance with certain federal motor vehicle safety

      standards, including those governing rearview mirrors. It also stated that the

      glider kit was not in conformance with certain other safety standards and that

      the final vehicle assembler was responsible for ensuring compliance with those

      standards. None of the mentioned standards appear to govern the safety of

      backing up a semi-tractor without a trailer attached.


[6]   W&W combined the glider kit with an engine, transmission, and exhaust

      system. The engine and transmission had been salvaged from an older semi-

      tractor. W&W then obtained a certificate of title for the semi-tractor from the

      Ohio State Highway Patrol so it could be placed into operation.


[7]   On March 2, 2016, Rickey was working for his employer, Chicago Bridge &

      Iron, as a construction foreman at an Indianapolis Power & Light (“IPL”) plant

      that was under construction in Martinsville. W&W employee Raymond Miller

      was onsite making a delivery, operating the semi-tractor W&W had constructed

      using the PACCAR glider kit. Rickey was standing behind the semi-tractor,

      which did not have a trailer attached at the time, when Miller began to back up.

      Miller did not see Rickey, and Rickey was pinned between the semi-tractor and

      a detached trailer, killing him. Miller later stated that the semi-tractor had a

      forty-foot blind spot behind it. After the accident, W&W began installing

      backup alarms on all its semi-tractors and was researching how to install

      rearview cameras on them as well.

      Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 4 of 29
[8]   Angela, Rickey’s widow, sued IPL, W&W, Miller, and PACCAR for wrongful

      death. She subsequently reached settlements with W&W and Miller, and they

      were dismissed from the case. IPL also was granted summary judgment

      without opposition from Angela, leaving PACCAR as the only remaining

      defendant. The complaint as to PACCAR alleged that the glider kit it provided

      W&W was unreasonably dangerous and defective because it lacked safety

      features for backing up the completed semi-tractor.


[9]   PACCAR moved for summary judgment, arguing that it did not manufacture

      the semi-tractor and that the component part or parts it made—the glider kit—

      was not defective or unreasonably dangerous. In response, Angela designated a

      report prepared by and parts of a deposition given by Bryan Bloch, an expert in

      motor vehicle safety. Bloch opined that the Peterbilt 389 model manufactured

      by PACCAR was defective in several respects: for not having as standard

      features a backup alarm, a rearview camera, a better mirror system, flashing

      backup lights, and warning labels regarding the dangers of backing up the semi-

      tractor.1 Moreover, Bloch believed that the presence of these safety features

      would have prevented Rickey’s death. Angela also cross-moved for partial

      summary judgment on the issue of whether PACCAR owed a duty to Rickey as

      a bystander and not as the ultimate purchaser or consumer of the glider kit.




      1
        It appears Bloch may have specifically analyzed a Peterbilt 389 semi-tractor that had been fully constructed
      by PACCAR, not the glider kit itself. However, the completed 389 semi-tractor had the same cab and other
      features as the glider kit W&W used to construct its semi-tractor.

      Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018                          Page 5 of 29
[10]   On September 11, 2017, the trial court granted PACCAR’s motion for

       summary judgment and denied Angela’s motion for partial summary judgment.

       On September 15, 2017, Angela filed a motion to correct error, along with a

       boilerplate order for the trial court to sign to set a hearing on the motion.

       Instead, the trial court stamped this order “DENIED” on the same day it was

       filed. App. Vol. II p. 19. The trial court did not enter a separate order denying

       the motion to correct error, and the CCS only states that it issued an “Order

       Denying . . . Setting Hearing Date.” Id. at 15. Angela filed a notice of appeal

       on September 20, 2017. On September 28, 2017, the trial court clerk filed its

       notice of completion of the clerk’s record for Angela’s appeal. On September

       29, 2017, PACCAR filed a motion with the trial court reserving its right to file a

       response to Angela’s motion to correct error should it become necessary in the

       future. The case is now before this court for decision.


                                                    Analysis
[11]   Before turning to the merits, we note a procedural issue that PACCAR hints at

       but neither party explores. That is, it is possible that Angela’s notice of appeal

       was prematurely filed. PACCAR suggests that the trial court’s September 15,

       2017 order only denied Angela’s request for a hearing on her motion to correct

       error and was not a ruling on the merits of that motion; the trial court never

       clarified whether its September 15, 2017 order was intended to be a final ruling

       on the motion to correct error. The time period for a deemed denial of the




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 6 of 29
       motion to correct error had not yet passed when Angela filed her notice of

       appeal on September 20, 2017.2


[12]   Our supreme court has made clear that an appellate court “is not deprived of

       jurisdiction if the notice is untimely—meaning belated or premature.” In re D.J.

       v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017). The only two

       requirements for appellate jurisdiction are “(i) the trial court must have entered

       an appealable order, and (ii) the trial clerk must have entered the notice of

       completion of clerk’s record on the CCS.” Both requirements have been met

       here. An appellant who files a premature notice of appeal technically forfeits

       his or her right to appeal and it would not be erroneous to dismiss the appeal,

       but this court “has jurisdiction to disregard the forfeiture and resolve the

       merits.” Id. at 579. At oral argument, counsel for PACCAR requested that this

       court resolve this case on the merits. In light of that request, we will do so.


                                               I. Summary Judgment

[13]   We review a grant of summary judgment de novo. Hughley v. State, 15 N.E.3d

       1000, 1003 (Ind. 2014). “Drawing all reasonable inferences in favor of . . . the

       non-moving parties, summary judgment is appropriate ‘if the designated




       2
         A motion to correct error is deemed denied if it is not set for hearing within forty-five days, or if it is not
       ruled on within thirty days of a hearing, or if it is not ruled on within forty-five days after the motion was
       filed “if no hearing is required . . . .” Ind. Trial Rule 53.3(A). Additionally, Trial Rule 59(E) allows an
       opposing party fifteen days to respond to a motion to correct error. Opinions from our supreme court and
       this court have addressed the appellate effect of belated grants of motions to correct error after they have been
       deemed denied. See, e.g., Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind. 2000). That line of cases has
       not addressed the effect of filing a notice of appeal before a motion to correct error is either expressly or
       deemed denied.

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018                            Page 7 of 29
       evidentiary matter shows that there is no genuine issue as to any material fact

       and that the moving party is entitled to judgment as a matter of law.’” Williams

       v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is

       ‘material’ if its resolution would affect the outcome of the case, and an issue is

       ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of

       the truth, or if the undisputed material facts support conflicting reasonable

       inferences.” Id.


[14]   A summary judgment movant bears the initial burden of demonstrating the lack

       of any genuine issue of fact on a dispositive issue; if the movant does so, the

       nonmovant then must come forward with contrary evidence showing an issue

       for trial. Hughley, 15 N.E.3d at 1003. This court must carefully assess the grant

       of summary judgment in order to ensure that Angela was not improperly denied

       her day in court. See id. Although summary judgment is desirable for disposing

       of cases where only legal issues exist, it is not the same as a summary trial and

       it should not be granted even if it appears the nonmovant is unlikely to prevail

       at trial. Id. “Indiana consciously errs on the side of letting marginal cases

       proceed to trial on the merits, rather than risk short-circuiting meritorious

       claims.” Id. “Summary judgment should not be granted when it is necessary to

       weigh the evidence.” Bochnowski v. Peoples Fed. Sav. & Loan Ass’n, 571 N.E.2d

       282, 285 (Ind. 1991).


[15]   The Indiana Product Liability Act (“IPLA”) governs all actions brought against

       a manufacturer or seller of a product for physical harm caused by the product,

       “regardless of the substantive legal theory or theories upon which the action is

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018     Page 8 of 29
       brought.” Ind. Code §§ 34-20-1-1; 34-6-2-115. A plaintiff in a strict product

       liability case must prove: “(1) the product was defective and unreasonably

       dangerous; (2) the defective condition existed at the time the product left the

       defendant’s control; and (3) the defective condition was the proximate cause of

       the plaintiff’s injuries.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.

       2007).


[16]   However, Angela does not claim the glider kit was manufactured in a defective

       way—i.e., it was constructed exactly as it was designed and intended to be

       constructed. Rather, Angela’s claim is that the glider kit was defectively

       designed because it lacked a number of safety features. In such a case, the

       IPLA specifies that a negligence standard applies, not a strict liability standard.

       TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 n.2 (Ind. 2010).

       Specifically,


                in an action based on an alleged design defect in the product or
                based on an alleged failure to provide adequate warnings or
                instructions regarding the use of the product, the party making
                the claim must establish that the manufacturer or seller failed to
                exercise reasonable care under the circumstances in designing the
                product or in providing the warnings or instructions.


       I.C. § 34-20-2-2 (emphasis added). Besides the different standard of care, a

       plaintiff is not required to present any additional proof in a defective design case

       based on negligence than in a strict liability case. See TRW, 936 N.E.2d at 209.


[17]   The IPLA also states in part:


       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018      Page 9 of 29
               A product is in a defective condition under this article 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.


       I.C. § 34-20-4-1. “Unreasonably dangerous has been defined as dangerous to

       an extent beyond that which would be contemplated by the ordinary consumer

       with the ordinary knowledge common to the community as to its

       characteristics.” Baker v. Heye-Am., 799 N.E.2d 1135, 1140 (Ind. Ct. App.

       2003), trans. denied; see also I.C. § 34-6-2-146. “A product may be dangerous in

       the ordinary sense but not ‘unreasonably dangerous’ for product liability

       purposes under the IPLA.” Baker, 799 N.E.2d at 1140.


[18]   The question of whether a product is unreasonably dangerous usually is a

       question of fact for trial. Id. “Moreover, reasonably expectable use, like

       reasonable care, involves questions concerning the ordinary prudent person, or

       in the case of products liability, the ordinary prudent consumer.” Id. The

       manner of use required to establish “reasonably expectable use” under the

       circumstances of each case is a matter peculiarly within the province of a fact-

       finder. Id.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018      Page 10 of 29
[19]   There is no dispute that the PACCAR glider kit was a component part of the

       semi-tractor ultimately assembled by W&W by adding an engine, transmission,

       and exhaust system. The IPLA applies not only to manufacturers of a final

       product, but also manufacturers of a component part of a product where there is

       proof that the part itself was defective. I.C. §§ 34-20-2-3; 34-6-2-77. PACCAR

       notes, in part, that because W&W, not PACCAR, was the final manufacturer

       of the semi-tractor, responsibility for compliance with various federal

       registration, certification, and safety requirements for the semi-tractor fell to

       W&W. See 49 C.F.R. § 567.5(d)(1). However, federal motor vehicle safety

       regulations do not preempt state law product liability claims, unless a state

       standard directly conflicts with federal objectives. See Cook v. Ford Motor Co.,

       913 N.E.2d 311, 320-21 (Ind. Ct. App. 2009), trans. denied. Even if the glider kit

       complied with all federal safety regulations, it would only create a rebuttable

       presumption that the product was not defective. See I.C. § 34-20-5-1. Angela

       designated sufficient evidence to rebut any such presumption, if one even

       existed, through her expert Bloch’s deposition and report, identifying several

       safety features that he says should have been standard on semi-tractors such as

       the one W&W ultimately assembled using PACCAR’s glider kit. Although

       Bloch apparently analyzed a completed Peterbilt 389 semi-tractor and not the

       glider kit itself, all of the missing safety features he identified were integral to

       the glider kit, not the engine, transmission, and exhaust system that W&W

       installed to complete the semi-tractor.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018     Page 11 of 29
[20]   PACCAR also does not dispute that if it was the final manufacturer of the

       completed semi-tractor, Angela would have presented sufficient evidence for

       summary judgment purposes—through Bloch’s deposition and report—to

       sustain a claim against PACCAR that the semi-tractor was defectively designed

       and unreasonably dangerous under the IPLA. This court has held, “A product

       may be unreasonably dangerous due to the failure to provide feasible safety

       features to protect the user from foreseeable mishaps.” FMC Corp. v. Brown, 526

       N.E.2d 719, 726 (Ind. Ct. App. 1988), adopted in relevant part, 551 N.E.2d 444

       (Ind. 1990). FMC, however, is distinguishable from this case because it was a

       suit against the final manufacturer of a product, not the maker of a final

       product’s component part.


[21]   The essence of PACCAR’s argument is that, as component part manufacturer,

       it was entitled to leave responsibility for the ultimate safety of the completed

       semi-tractor in the hands of W&W, or in other words that it was entirely up to

       W&W to order those safety features it felt was necessary for the glider kit. If

       W&W did not order those features, PACCAR contends, it was entirely

       W&W’s fault for not doing so. PACCAR argues that it had no obligation to

       include safety features on the glider kit because it could not foresee precisely

       how W&W intended to use the completed semi-tractor or in what environment

       it would be used.


[22]   There is little case law from Indiana state courts that addresses the scope of a

       component part manufacturer’s liability under the IPLA for a completed

       product’s lack of safety features. One that does so, though without using the

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 12 of 29
       phrase “component part manufacturer,” is Shanks v. A.F.E. Industries, Inc., 275

       Ind. 241, 416 N.E.2d 833 (1981). There, A.F.E. manufactured a grain dryer

       that could be used either manually, or automatically “in conjunction with other

       auxiliary equipment, which auxiliary equipment could assume a variety of

       forms and functions, depending upon the desires of the owner.” Shanks, 275

       Ind. at 245, 416 N.E.2d at 835. After the grain dryer was automated and

       incorporated into a grain elevator complex, a high school student was injured

       by a part of the grain dryer while working in the complex. The student sued

       A.F.E. under the IPLA, alleging: (1) A.F.E. had failed to give adequate

       warnings regarding the dangers of the grain dryer; and (2) the grain dryer was

       defectively designed because it was not equipped with safety features that

       allegedly could have prevented the accident. As in this case, there was no claim

       that the grain dryer was defectively manufactured.


[23]   On appeal from a grant of judgment on the evidence in favor of A.F.E., our

       supreme court affirmed. Regarding the failure to warn claim, the court held

       that A.F.E. only had a duty to instruct and warn the owner/constructor of the

       grain complex, Whittington, about any inherent dangers of the grain dryer,

       because Whittington was a sophisticated purchaser who designed the grain

       complex and was fully aware of the grain dryer’s operations and dangers. Id. at

       249, 416 N.E.2d at 837-38. Any responsibility for warning the high school

       student, the “ultimate user” of the grain dryer, was Whittington’s, not A.F.E.’s.

       See id.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 13 of 29
[24]   The court also held that, as a matter of law, A.F.E. could not be held liable for

       not incorporating additional safety features into the grain dryer. The court

       explained:


               Because the dryer could be used as a component in a
               multifaceted complex such as the one created here by
               Whittington, to allow a jury to examine, in retrospect, the
               wisdom of A.F.E.’s incorporating some lights or bells into the
               dryer is to permit nothing more than speculation. A complex
               operation such as this one could have taken many forms,
               depending on the needs of the owner and the imagination of the
               designer. Here, Grammer [the company managed by
               Whittington that operated the grain elevator complex], through
               Whittington, solicited four different plans before finally selecting
               the one to be used. The need for any warning devices, and the
               circumstances surrounding their use, would, of course, depend
               upon the operation of the whole complex, based upon the
               features of its design. Thus, because the dryer could be
               incorporated into a variety of grain handling systems, the
               desirability or need for such devices could be determined only
               after any given type of complex had been chosen and created. Of
               course, A.F.E. here had no way of knowing exactly how
               Whittington would employ its dryer and, hence, the specific
               context in which such warning devices could or should be used
               relative to the operation of an elevator leg. By contrast,
               Grammer, through Whittington, had extensive knowledge of
               these factors, not only concerning the dryer, but concerning the
               entire grain handling operation.


       Id. at 249-50, 416 N.E.2d at 838. The court also observed that the injury to the

       student was the result “of a situation which was especially unforeseeable to

       A.F.E.” and there was no probative evidence that anything A.F.E. did or did



       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 14 of 29
       not do proximately caused or contributed to the student’s injury. Id. at 250-51,

       416 N.E.2d at 838.


[25]   We conclude the evidence here is much different than in Shanks. Unlike the

       grain dryer there that could be used in a variety of unforeseeable configurations,

       the PACCAR glider kit was basically a complete semi-tractor that lacked only a

       powertrain. In other words, it is difficult if not impossible to conceive of any

       possible use of the glider kit that would not involve it being given a powertrain

       and regularly driven in reverse; and, in any conceivable use, the completed

       semi-tractor would have a large blind spot directly behind it that foreseeably

       could lead to precisely the type of tragedy that occurred here.


[26]   There are several federal court cases purporting to apply the IPLA in diversity

       jurisdiction cases; one upon which PACCAR heavily relies is Anderson v. P.A.

       Radocy & Sons, Inc., 865 F. Supp. 522 (N.D. Ind. 1994), aff’d 67 F.3d 619 (7th

       Cir. 1995). In that case, an electrician was electrocuted while working in a

       crane manufactured by Radocy that had a metal working bucket, an

       uninsulated crane arm, and a generator without a ground fault interrupter. The

       electrician’s widow sued Radocy, arguing that the crane was defective under

       the IPLA, in part because the crane did not have a fiberglass bucket, which

       could have prevented the electrocution. The electrician’s employer could have

       purchased a fiberglass bucket for the crane from Radocy as an option but chose

       not to do so.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 15 of 29
[27]   The federal district court granted Radocy’s motion for summary judgment,

       which was affirmed by the Seventh Circuit. In part, the district court held that

       “a party cannot be liable for failing to equip its products with an optional device

       that the employer of the plaintiff knowingly rejected.” Anderson, 865 F. Supp.

       at 531 (citing Scallan v. Duriron Co., Inc., 11 F.3d 1249, 1254 (5th Cir. 1994)).

       Additionally, the district court held “a product is not defective for failing to do

       that which it was not designed to do.” Id. (citing Cox v. American Aggregates

       Corp., 580 N.E.2d 679, 685 (Ind. Ct. App. 1991), trans. denied). Thus, according

       to the court, “the metal basket, metal arm, and generator were not intended to

       prevent electrical shock or fatal electrocution, and therefore, the products are

       not defective.” Id.


[28]   We first note that the district court’s holding that “a product is not defective for

       failing to do that which it was not designed to do” is an incorrect or incomplete

       statement of current Indiana law. Clearly, under Indiana Code Section 34-20-2-

       2, a product may be designed in such a way that it is unreasonably unsafe and

       defective for the product’s intended or expected use. See Hoffman v. E.W. Bliss

       Co., 448 N.E.2d 277, 281 (Ind. 1983) (holding that a “defect” for purposes of

       IPLA “can be that the product was defectively designed, defectively

       manufactured, or that the manufacturer failed to supply adequate warnings or

       instructions as to the dangers associated with its use”). That is the nature of

       Angela’s claim against PACCAR.


[29]   As for the court’s holding regarding optional safety features, Anderson

       specifically involved an injury to an employee of the company that bought the

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 16 of 29
       product at issue. Rickey was not an employee of W&W and did not have a

       direct relationship with the company that ordered the glider kit. Moreover,

       even if we assume that W&W knowingly rejected optional safety features for

       the glider kit, we are not convinced that this necessarily absolves PACCAR of

       all responsibility for the lack of safety features. In other words, it should be a

       question of fact as to whether it was reasonable for PACCAR to put a product

       into the stream of commerce that lacked one or several or all of those features.


[30]   We find support for this proposition in Bexiga v. Havir Mfg. Corp., 290 A.2d 281

       (N.J. 1972). In that case, the plaintiff was injured by a punch press that lacked

       any safety features, and he sued the punch press manufacturer. The defendant

       argued that it was customary in the trade for any safety devices on a punch

       press to be installed by its purchaser. The New Jersey Supreme Court

       nonetheless held that the manufacturer could be held liable for its failure to

       design and install at least one safety feature that would have been appropriate

       for any normal operation of the machine. Bexiga, 290 A.2d at 285. Of

       particular interest here, the court stated:


               Where a manufacturer places into the channels of trade a
               finished product which can be put to use and which should be
               provided with safety devices because without such it creates an
               unreasonable risk of harm, and where such safety devices can
               feasibly be installed by the manufacturer, the fact that he expects
               that someone else will install such devices should not immunize him.
               The public interest in assuring that safety devices are installed
               demands more from the manufacturer than to permit him to
               leave such a critical phase of his manufacturing process to the
               haphazard conduct of the ultimate purchaser. . . .

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018       Page 17 of 29
         We hold that where there is an unreasonable risk of harm to the
         user of a machine which has no protective safety device, as here,
         the jury may infer that the machine was defective in design unless
         it finds that the incorporation by the manufacturer of a safety
         device would render the machine unusable for its intended
         purposes.


Id. (emphasis added). We are persuaded by this reasoning that if it was feasible

for PACCAR to install as a standard feature any of the several safety measures

Angela claims should have been installed in the glider kit, and such feature or

features would not have detracted from the glider kit’s use in any conceivable

configuration, a fact-finder may decide PACCAR is liable to Angela for a

failure to include it or them, rather than leaving the safety of a completed semi-

tractor entirely to the “haphazard” choices of companies like W&W. 3 It would

all depend upon a fact-finder’s determination of whether PACCAR’s decision

to make a certain feature optional rather than standard was a reasonable

decision under the circumstances.




3
  Our supreme court also has stated, “Certainly the manufacturer of a product may not design or
manufacture a product with a latent flaw therein but escape liability for an injury attributable to that flaw
simply by selling the product to an intermediate party, such as an employer who intends to use the product in
a manufacturing operation.” Hoffman, 448 N.E.2d at 282. The court also disapproved of allowing a
manufacturer of a product to escape liability for injuries caused by its defectively designed or manufactured
product by selling it to “an intervening employer and leaving that party with the duty to correct the defect . . .
.” Id. Hoffman specifically dealt with an injury to an employee of a company that bought an allegedly
defective product and not component manufacturer liability. Nevertheless, the language of the opinion
strongly suggests the court also would not have approved of a component part manufacturer attempting to
foist all responsibility for a final product’s safety onto the final manufacturer, where an injury was caused that
could have been avoided but for a design defect in the component part.

Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018                            Page 18 of 29
[31]   By comparison, we note the case of Verge v. Ford Motor Co., 581 F.2d 384 (3rd

       Cir. 1978). There, the plaintiff was injured when a garbage truck backed into

       him. The plaintiff sued Ford, the manufacturer of the truck’s cab and chassis,

       alleging it was unsafe because it lacked a backup alarm. A different entity had

       converted the cab and chassis into a garbage truck. The court held that Ford

       was entitled to judgment notwithstanding the verdict. The court concluded that

       the company that converted the cab and chassis into a garbage truck, and not

       Ford, was responsible for the lack of a backup alarm. Id. at 388-89. It noted

       that the cab and chassis design was general purpose and could be used in

       various ways by purchasers of the cab and chassis, including in configurations

       where there was no obstruction of the driver’s rear view (such as for a flatbed

       truck) and thus no need for a backup alarm. Id. Here, the designated evidence

       indicates that there was inevitably a significant blind spot behind any semi-

       tractor constructed using PACCAR’s glider kit, regardless of its ultimate use.


[32]   PACCAR also relies heavily upon Section 5 of the Restatement (Third) of

       Torts, Product Liability, and commentary to that provision and cases cited

       therein. This section governs the liability of manufacturers of component parts

       and largely parallels the language of the IPLA regarding component parts. The

       Restatement drafters observed in part,


               [C]omponent sellers should not be liable when the component
               itself is not defective as defined in this Chapter. If the component
               is not itself defective, it would be unjust and inefficient to impose
               liability solely on the ground that the manufacturer of the
               integrated product utilizes the component in a manner that
               renders the integrated product defective.
       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 19 of 29
       Restatement (Third) of Torts: Product Liability § 5 cmt. (a) (1998).


[33]   The drafters also stated,


               Product components include products that can be put to different
               uses depending on how they are integrated into other products.
               For example, the chassis of a truck can be put to a variety of
               different uses. A truck chassis may ultimately be used with a
               cement mixer or a garbage compaction unit or in a flat-bed truck.
               Similarly, an engine for industrial machines may be adapted to a
               variety of different industrial uses. A seller ordinarily is not liable
               for failing to incorporate a safety feature that is peculiar to the
               specific adaptation for which another utilizes the incomplete
               product. A safety feature important for one adaptation may be
               wholly unnecessary or inappropriate for a different adaptation.


       Id., cmt. (d) (emphasis added). Again, however, the designated evidence

       indicates that there are no “peculiar” adaptations of the PACCAR glider kit in

       which there would not be a significant danger associated with it with respect to

       the event that occurred here. The glider kit was intended for use in motorized

       vehicles that would be repeatedly backed up; Angela has designated evidence

       that its design was lacking with respect to backup safety, and that defect or

       defects proximately caused Rickey’s death. Also, there is no evidence that

       W&W modified or altered the glider kit to adapt it to a use not contemplated by

       PACCAR; it was used precisely as intended.


[34]   We find the following Restatement illustration interesting and more parallel to

       this case than the above comment:




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018     Page 20 of 29
         ABC Vinyl, Inc., sells vinyl swimming-pool liners for use in
         above-ground swimming pools. ABC manufactures the liners
         without depth markers. XYZ Pools, Inc., manufactures and sells
         above-ground swimming pools. XYZ installs a pool with an
         ABC liner at the home of Roberta. Jack, while visiting Roberta,
         dives into the shallow portion of the pool that appears to him to
         be eight feet deep. In reality the water is only four feet deep.
         Jack hits his head on the bottom and suffers harm. If a court
         finds that the absence of the depth markers renders the design of
         the liner defective . . ., ABC is subject to liability to Jack. The
         fact that the liner is a component of the above-ground swimming
         pool and has been integrated into a specific swimming pool does
         not insulate ABC from liability for selling a component product
         that is defectively designed for all swimming-pool installations.
         XYZ is also subject to liability to Jack as the seller of a pool with
         a defectively designed liner.


Id., illustration (3). In this scenario, PACCAR is an analogous position to ABC

because it designed and constructed a glider kit that was defective for all

possible uses, and W&W is in the same position as XYZ for integrating that

part into a completed semi-tractor.4 The Restatement does not support

PACCAR’s case.




4
 This illustration seems to be based on Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3rd Cir. 1992), cert.
denied. The court there also observed:
       Moreover, we are not persuaded by the contention that a pool liner is an inert, innocuous thing
       simply because by itself, it is physically incapable of injuring a consumer. To hold otherwise
       implies that “unreasonably dangerous” . . . requires that the product itself actually exert the
       injury-causing, physical force. But even dynamite is inert, unless ignited. Although a
       replacement pool liner does not explode, crush, drive, or exert any other physical force, it may
       through a chain of not so remarkable events cause serious injuries.
Fleck, 981 F.2d at 119. Here, likewise, the glider kit standing alone is not dangerous, but “it may through a
chain of not so remarkable events” become that way—namely, when a powertrain is added to it and it
becomes an operational semi-tractor.

Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018                            Page 21 of 29
[35]   We also note the Restatement illustration’s observation that both ABC and XYZ

       could be liable for the plaintiff’s injuries. Such a result would be consistent with

       the Indiana Comparative Fault Act, which applies to actions under the IPLA.

       See I.C. § 34-20-8-1; Green v. Ford Motor Co., 942 N.E.2d 791, 794 (Ind. 2011).

       “The legislature has thus directed that a broad range of potentially causative

       conduct initially may be considered by the fact-finder but that the jury may

       allocate comparative fault only to those actors whose fault was a proximate

       cause of the claimed injury.” Green, 942 N.E.2d at 795. In a comparative fault

       case,


               “the jury is first required to decide whether an actor’s negligence
               was a proximate cause of the plaintiff's injury.” [Control
               Techniques, Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind. 2002)].
               “Whether or not proximate cause exists is primarily a question of
               foreseeability.” Id. at 108. The fact-finder must evaluate whether
               the injury “is a natural and probable consequence, which in the
               light of the circumstances, should have been foreseen or
               anticipated.” Id. (quoting Bader v. Johnson, 732 N.E.2d 1212,
               1218 (Ind. 2000)). Fault may not be imposed “on an original
               negligent actor who sets into motion a chain of events if the
               ultimate injury was not reasonably foreseeable as the natural and
               probable consequence of the act or omission.” Id. The
               determination and allocation of each party’s proportionate fault
               “is a question for the trier of fact, except where there is no
               dispute in the evidence and the fact finder could come to only
               one conclusion.” Walters v. Dean, 497 N.E.2d 247, 254 (Ind. Ct.
               App. 1986).


       Id.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 22 of 29
[36]   Although Green was a case involving the alleged comparative fault of the

       plaintiff in a product liability case, there is no bar to applying the Comparative

       Fault Act in a case involving a component part manufacturer and a final

       product manufacturer. As such, there is no inherent reason why the fault or

       responsibility for the semi-tractor’s safety must fall exclusively either to

       PACCAR or to W&W, or why they cannot both be liable for Rickey’s death

       with respect to the semi-tractor’s safety. The question would be whether

       PACCAR was an original negligent actor in the glider kit’s design and set in

       motion a chain of events that led to a foreseeable injury as a natural and

       probable consequence of that design. See id. The issue of proximate cause

       ordinarily is one for the jury to decide. Id.


[37]   Angela designated evidence, through Bloch, of several alleged design flaws in

       the glider kit PACCAR sold. Our holding today is that it was then incumbent

       upon PACCAR to designate undisputed evidence that it would have not been

       feasible, or that it would have been unreasonable, for PACCAR to have

       addressed any of those flaws in the glider kit, rather than leaving it entirely for

       W&W to address. PACCAR failed to do so and, therefore, failed to negate all

       elements of Angela’s product liability cause of action. Thus, PACCAR was not

       entitled to summary judgment. See Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

       1184, 1189 (Ind. 2016) (noting that under Indiana law, summary judgment

       movant has the burden of affirmatively negating an opponent’s claim).


[38]   With respect to making an audible backup alarm a standard feature on its glider

       kits, PACCAR claims that an audible backup alarm might not be feasible or

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 23 of 29
       desirable in all environments. It directs us to a statement by the federal Mine

       Safety and Health Administration (“MSHA”) that conventional backup alarms

       in a mining environment might be too common “and therefore be less

       noticeable and effective as a warning.” SAFETY STANDARDS FOR

       LOADING, HAULING, AND DUMPING AND MACHINERY AND

       EQUIPMENT AT METAL AND NONMETAL MINES, 53 Fed. Reg.

       32,496, 32,513 (1988). PACCAR seems to imply that if its glider kit was used

       to construct semi-tractors frequently used in a mining environment, which is

       something PACCAR would be unaware of when it made the glider kit, it would

       be inadvisable to equip it with a standard backup alarm. However, the MSHA

       was not recommending that trucks in a mining environment not have backup

       alarms. Rather, it was suggesting (but not requiring) the installation of more

       advanced backup alarms, ones that would be triggered only if something was

       detected behind the truck, for example, by an infrared sensor. See id. Also, just

       because backup alarms might become “less effective” in a mining environment

       does not mean that they are entirely ineffective, or that one should not be

       installed if a truck is to be used in a mining environment. There is a question of

       fact as to whether PACCAR should have made a backup alarm a standard

       feature in its glider kits.


[39]   Regarding rearview cameras, PACCAR states, “it is well known in the trucking

       industry that the best place to put the camera is on the trailer—not the cab” and

       that it did not construct or provide any parts for W&W’s trailers. Appellee’s Br.

       p. 33. PACCAR does not cite any part of the record for this assertion regarding


       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 24 of 29
       what is “well known in the trucking industry.” Placing a rearview camera only

       on a trailer would not address the common problem of backing up a semi-

       tractor to be attached to a trailer, as happened here. PACCAR did designate

       evidence that its optional “SmartNav” dash screen display system, which could

       be used with a rearview camera in some configurations, was in fact not

       compatible with the engine W&W intended to and did install with the glider kit

       it ordered. However, this does not necessarily answer the question of whether it

       was feasible for PACCAR to develop and install a rearview camera system for

       all of its glider kits, independent of the “SmartNav” system.


[40]   As for a backup strobe light, PACCAR notes that the glider kit came with

       wiring to allow W&W to install such a light, but W&W did not do so. Again,

       however, the fact question here is whether it was unreasonable for PACCAR to

       design, construct, and put into the stream of commerce a glider kit that lacked

       backup lights as a standard feature, rather than leaving it to chance and the final

       semi-tractor manufacturer’s whim to decide whether to install them. Similarly,

       it is a question of fact as to whether it was unreasonable for PACCAR to not

       include warning labels in the glider kit cab alerting whoever was driving the

       semi-tractor to the dangers of backing it up.


[41]   It is possible that PACCAR designated sufficient evidence that its failure to

       include a standard rear window in its glider kit cabs was not a proximate cause

       of Rickey’s death. That is because of the “headache rack” W&W installed on

       the cab, which would have blocked a rear window and negated its benefit as a

       safety feature. However, that would still leave at least four safety features on

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 25 of 29
       which there is conflicting evidence and inferences as to whether PACCAR

       should have installed them as standard parts of the glider kit and whether its

       failure to do so was a proximate cause of Rickey’s death. Consequently, the

       trial court erred in granting PACCAR’s motion for summary judgment.


                          II. Cross-Motion for Partial Summary Judgment

[42]   Angela also contends the trial court erred in denying her cross-motion for

       partial summary judgment. Specifically, her cross-motion sought a declaration

       that PACCAR owed Rickey a duty to design and manufacture a safe product.

       The IPLA provides that it applies to any action brought by a “consumer”

       against a product manufacturer, regardless of the substantive legal theory

       underlying the claim. I.C. § 34-20-1-1. It also includes within the definition of

       “consumer” “any bystander injured by the product who would reasonably be

       expected to be in the vicinity of the product during its reasonably expected use.”

       I.C. § 34-6-2-29. PACCAR concedes in its brief that Rickey is a “consumer” for

       purposes of the IPLA. There is no dispute that he falls within the “bystander”

       provision of the IPLA and that he was injured during the glider kit’s reasonably

       expected use after its final delivery and integration into the semi-tractor. Cf.

       Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1142-43 (Ind. 2006)

       (holding IPLA does not apply to person injured before final delivery of product

       in a state contemplated by buyer and seller). Thus, although it may be

       unnecessary on remand for the trial court to enter partial summary judgment,

       there should be no dispute that the IPLA applies to Angela’s claims against

       PACCAR.

       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 26 of 29
                                                  Conclusion
[43]   PACCAR’s position as a component manufacturer and not the final

       manufacturer of the semi-tractor that killed Rickey does not immunize it from

       liability under the IPLA; nor may PACCAR automatically transfer all

       responsibility for the semi-tractor’s safety to W&W. Angela has designated

       sufficient evidence for summary judgment purposes that there were several

       safety features PACCAR reasonably could have incorporated into its glider kits

       that might have prevented Rickey’s death. There also is no dispute that Rickey

       was a “consumer” of PACCAR’s product for purposes of the IPLA. We

       reverse the grant of summary judgment in favor of PACCAR and remand for

       further proceedings consistent with this opinion.


[44]   Reversed and remanded.


       Vaidik, C.J., concurs.
       Mathias, J., concurs with separate opinion.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018   Page 27 of 29
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Angela Brewer, Individually and                           Court of Appeals Case No.
       as Personal Representative of the                         55A05-1709-CT-2168
       Estate of Rickey A. Brewer,
       Deceased,
       Appellant-Plaintiff,

               v.

       PACCAR, Inc. d/b/a
       PETERBILT MOTORS CO.,
       Appellee-Defendant.



       Mathias, Judge, concurring.


[45]   While I agree with my colleagues that Angela has designated sufficient

       evidence for summary judgment purposes, I write to express my reservations

       about the broad legal discussion that reaches this result. W&W, a sophisticated

       trucking company, explicitly ordered the glider kit from PACCAR without the

       optional rear window or backup alarm. Moreover, W&W ordered the glider kit

       with wiring to install a backup strobe light, but the strobe light was never

       installed. Thus, in my view, W&W, a sophisticated user, was well aware of any

       potential danger posed by PACCAR’s glider kit when it assembled the semi-

       tractor. And on appeal, the core of PACCAR’s arguments is a thinly disguised

       sophisticated user defense.


       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018              Page 28 of 29
[46]   Our court has consistently held that the question of whether or not a

       manufacturer has discharged its duty under the sophisticated user exception is

       appropriately a question for the trier of fact. See, e.g., Natural Gas Odorizing, Inc.

       v. Downs, 685 N.E.2d 155, 164 (Ind. Ct. App. 1997), trans. denied. Accordingly, I

       agree that summary judgment was inappropriate here, and the matter should be

       remanded to the trial court where PACCAR can appropriately make its

       sophisticated user argument before a jury.




       Court of Appeals of Indiana | Opinion 55A05-1709-CT-2168| March 27, 2018     Page 29 of 29
