Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                      Feb 06 2014, 10:23 am
collateral estoppel, or the law of the
case.



ATTORNEYS FOR APPELLANT:                          ATTORNEY FOR APPELLEE:

BRUCE P. CLARK                                    THERESA M. RINGLE
COURT L. FARRELL                                  Ringle Law Group, LLP
Bruce P. Clark & Associates                       Indianapolis, Indiana
St. John, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SCOTWOOD INDUSTRIES, INC.,                        )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )       No. 29A05-1305-SC-229
                                                  )
DAVID MEATS,                                      )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Gail Z. Bardach, Judge
                          The Honorable David K. Najjar, Magistrate
                              Cause No. 29D06-1209-SC-10042


                                       February 6, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Scotwood Industries, Inc., (“Scotwood”) appeals the trial court’s product liability

judgment against it in favor of David Meats. We reverse.

                                          Issues

       Scotwood raises several issues but we address only one dispositive issue: whether

there is sufficient evidence to support a judgment against Scotwood under the Indiana

Product Liability Act (“IPLA”).

                                           Facts

       In the fall of 2010, Meats applied a concrete sealing product manufactured by

Valspar, Inc., (“Valspar”) to the driveway of his home in Noblesville. The labeling on the

product indicated that it could protect concrete from “salt, UV rays & chemicals.” Ex. 2.

In February 2011, a large ice storm hit the central Indiana area, leaving approximately two

to four inches of solid ice on Meats’s driveway. To try to remove the ice, Meats purchased

a bag of Prestone Driveway Heat (“Heat”), which is distributed nationally by Scotwood.

The active ingredient in Heat is calcium chloride.

       The Heat bag was labeled with the following instructions:

              READ BEFORE USE

              Driveway Heat® ice melter should not be used on concrete
              surfaces that are less than one year old, precast steps, masonry
              (stone or brick), mortar joints, porous concrete, chipped,
              cracked or improperly cured concrete, or concrete with
              exposed aggregate.

              USE PRECAUTIONS

                                             2
               Independent testing shows that Driveway Heat® ice melter is
               safer to use on concrete surfaces than most commonly used de-
               icers like rock salt. However, all snow and ice melters may be
               harmful when used excessively or repeatedly on concrete
               surfaces.

                      Quality concrete is considered to be air-entrained
               concrete that is designed to withstand the damage associated
               with naturally occurring cycles of thawing and refreezing. Use
               of any ice melting agent may increase the number of such
               cycles. The frequency is also controlled by the weather itself.
               When used in heavy and repeated applications, Driveway
               Heat® ice melter may contribute to scaling or flaking of
               concrete surfaces. To reduce the risk of scaling or flaking,
               quickly remove slush that results from the melted ice and snow.

               DIRECTIONS

               1.     Sprinkle Driveway Heat® ice melter on area to be de-
               iced, evenly apply 2 to 4 ounces (1/4 to 1/2 cup) per square
               yard. Do not overapply. If snow is more than 2 inches in
               depth, all de-icers are impractical so it will be necessary to
               plow or shovel before applying the product.

               2.    Allow Driveway Heat® ice melter to work for 10
               minutes to melt the bond beween the ice and surface.

               3.    Remove melted ice and snow. Keep bag tightly closed
               when not in use.

Ex. 6.

         After Meats applied Heat to his driveway, it failed to melt the thick sheet of ice

during the next thirty-six hours. Meats then left home for ten days on a vacation. When

he returned, he found the ice had melted and that there was extensive damage to his

driveway in the form of chips and pockmarks that had not been there before he applied the

Heat.


                                             3
       Meats filed a small claims complaint against Valspar and Scotwood. During trial,

Meats presented expert testimony that his driveway had been damaged by the calcium

chloride in Heat. He also argued in part that calcium chloride is not in fact safer to apply

to concrete than rock salt, as claimed on the Heat packaging, and also that the instructions

for applying the product were unclear. With respect to Valspar, Meats contended that its

concrete sealant product did not protect his driveway from salt as advertised. At the

conclusion of the hearing, the trial court entered judgment in Meats’s favor in the amount

of $6000 against both Valspar and Scotwood. Scotwood filed a motion to correct error,

arguing in part that the trial court erred in failing to apportion fault between it and Valspar.

In denying the motion to correct error, the trial court stated that it was entering judgment

against Scotwood and Valspar jointly and severally. Valspar subsequently paid $3,288.06

to Meats, and he agreed to release Valspar from further liability. Scotwood has elected to

appeal the judgment against it.

                                           Analysis

       When we review a judgment in a small claims action, a clearly erroneous standard

applies to review of facts found by the trial court with due regard given to the trial court’s

opportunity to assess witness credibility. Trinity Homes, LLC v. Fang, 848 N.E.2d 1065,

1067 (Ind. 2006). This deferential standard of review is especially important in small

claims actions, because trials are “informal, with the sole objective of dispensing justice

between the parties according to the rules of substantive law . . . .” Id. at 1067-68 (quoting

Ind. Small Claims Rule 8(A)). This deferential standard does not apply to the substantive



                                               4
rules of law, however, which are reviewed de novo just as they are in appeals from a court

of general jurisdiction. Id. at 1068.

        The IPLA governs all actions brought by a user or consumer of a product against a

manufacturer or seller for harm caused by the product, regardless of the substantive theory

or theories upon which the action is brought. See Cook v. Ford Motor Co., 913 N.E.2d

311, 319 (Ind. Ct. App. 2009) (citing Ind. Code § 34-20-1-1), trans. denied. A product may

be defective within the meaning of the IPLA because of a manufacturing flaw, a design

defect, or a failure to warn of dangers in the product’s use. Id. Meats argues solely that

Scotwood failed to provide adequate instructions or warnings regarding the use of Heat.

In other words, he does not attribute the damage to his driveway to any inherent problem

or defect with Heat, as opposed to Scotwood’s failure to properly instruct him and other

consumers on the safest way to use the product to avoid concrete damage.1

        Indiana Code Section 34-20-4-2 specifically provides:

                A product is defective under this article if the seller fails to:

                (1) properly package or label the product to give reasonable
                warnings of danger about the product; or

                (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.




1
  Meats also does not develop any argument on appeal that the Heat labeling was misleading in stating that
it was safer to apply to concrete than rock salt.

                                                    5
“[I]n an action 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

providing the warnings or instructions.” I.C. § 34-20-2-2. As indicated by the repeated

use of the word “reasonable” or “reasonably” in these statutes, the adequacy of a product’s

labeling is governed by negligence principles. Montgomery Ward & Co. v. Gregg, 554

N.E.2d 1145, 1163 (Ind. Ct. App. 1990), trans. denied. A product label must make apparent

any potential harmful consequences with such intensity as to cause a reasonable person to

exercise caution for his or her own safety commensurate with the potential danger. Jarrell

v. Monsanto Co., 528 N.E.2d 1158, 1162 (Ind. Ct. App. 1988), trans. denied. Factors to

consider when assessing a product’s labeling include the adequacy of the label’s factual

content, the adequacy of the manner in which that content is expressed, and the adequacy

of the method of conveying that content. Id. at 1162-63. Also, to be liable for a failure to

warn, the product in question must be “unreasonably dangerous,” which requires more than

a showing that the product failed and caused injury. Whitted v. General Motors Corp., 58

F.3d 1200, 1206 (7th Cir. 1995) (applying Indiana law). Whether a particular product’s

labeling constitutes a breach of the duty to warn is generally a question of fact, but can

become a question of law when the facts are undisputed and only a single inference can be

drawn from those facts. Cook, 913 N.E.2d at 327.

       We note that Meats does not contend that the general method and manner in which

Heat was labeled was inadequate, i.e., he does not argue that the warnings and instructions



                                              6
were not prominently displayed. There also is not dispute regarding the content of the

labeling.

       Meats points to three alleged deficiencies in the content of Heat’s labeling. First,

he argues that the labeling’s “READ BEFORE USE” section, with its warnings regarding

types of concrete or masonry that Heat should not be used on, is unclear and ambiguous

and uses technical terms ordinary laypersons would not understand. We disagree that this

warning is insufficient. The label says Heat “should not be used on concrete surfaces that

are less than one year old, precast steps, masonry (stone or brick), mortar joints, porous

concrete, chipped, cracked or improperly cured concrete, or concrete with exposed

aggregate.” Ex. 6. Of all this language, the only word or phrase that might be vague to a

reasonable layperson is “improperly cured concrete,” as such an imperfection might not be

readily apparent. Still, we do not believe Scotwood was obligated to spell out how to

determine whether concrete has been “improperly cured,” rather than alerting consumers

to the fact that Heat’s use on such concrete may be harmful. Also, Meats makes no

argument that Heat is inherently defective or unreasonably dangerous because it may cause

harm to concrete with a difficult-to-detect flaw.

       On this same general issue, Meats contends that the labeling is vague and ambiguous

in describing “[q]uality concrete” as “air-entrained concrete that is designed to withstand

the damage associated with naturally occurring cycles of thawing and refreezing.” Id. We

accept that the average layperson would not know the meaning of “air-entrained concrete”

or how to determine whether one’s driveway was made of “air-entrained concrete.”

However, Meats’s own expert witness testified that Indiana building contractors almost

                                             7
always use “air-entrained concrete” for outdoor construction such as driveways, and also

that if Meats’s driveway was not made of “air-entrained concrete” that it should have

shown signs of excessive wear many years ago, but it did not.2 In order to establish a claim

of inadequate product labeling, a plaintiff must prove that a seller’s failure to adequately

warn of a hazard was a proximate cause of injury, or in other words “that the danger that

would have been prevented by an appropriate warning was the danger that materialized in

the plaintiff’s case.” Kovach v. Caligor Midwest, 913 N.E.2d 193, 199 (Ind. 2009). Given

that Meats’s own expert indicated that his driveway was most likely constructed of “air-

entrained concrete,” any vagueness or ambiguity in that term was not a proximate cause of

Meats’s injury. Also, as with the phrase “improperly cured concrete,” Meats makes no

argument that it was improper, given the difficulty a layperson would have in assessing

whether his or her driveway was made of “air-entrained concrete,” for Scotwood to sell a

driveway ice removal product that could damage non-“air-entrained concrete.”

       Meats’s second argument regarding the labeling is that it was unclear regarding the

removal of Heat from the driveway after ice has melted. The labeling stated, emphasized

in italics, “To reduce the risk of scaling or flaking, quickly remove slush that results from

the melted ice and snow.” Ex. 6. The labeling also instructed the consumer to “[r]emove

melted ice and snow” after allowing ten minutes for Heat to work. Id. Meats contends that

the first warning is inadequate because it follows a sentence stating that, “heavy and

repeated applications [of Heat may] . . . contribute to scaling or flaking of concrete


2
 The expert also testified that the only way to determine whether a particular driveway is made of “air-
entrained concrete” is to obtain a sample of it and submit it to laboratory testing.

                                                   8
surfaces,” and there is no evidence or argument by Scotwood that Meats used Heat “heavily

or repeatedly.” Id. Scotwood does contend, however, that Meats used Heat “excessively”

by leaving it on his driveway for a long period of time; “excessive” appears on the labeling

in conjunction with a warning that “excessive” use of the product may harm driveways.

Id. We believe reading the labeling as a whole gives clear warning to consumers that Heat

should not be left on driveways for long periods of time.

       That warning is emphasized by the second reference to removing Heat after ice has

melted; Meats contends this instruction does not indicate what a consumer should do if

Heat has failed to melt ice within ten minutes, as happened in his case. We disagree. This

second reference to the need to remove Heat from a driveway, especially in conjunction

with the earlier warning to “quickly” remove Heat from a driveway, should have given

Meats clear notice that it was dangerous to leave the product on his driveway indefinitely,

even if it took the ice longer than ten minutes to melt.

       Meats’s third argument regarding the labeling is that it did not provide clear

instructions regarding the amount of product to use in order to avoid “heavy” or

“excessive” application. We again disagree. The instructions state to use “2 to 4 ounces

(1/4 to 1/2 cup) per square yard.” Id. Meats seems to suggest that the average consumer

would not know how to measure the square yardage of a driveway, but we believe it would

be a fairly rudimentary calculation for any consumer with a yardstick or tape measure.

Also, Meats contends the reference to “2 to 4 ounces” is unclear as to whether it refers to

weight or volume ounces. It is patently clear, however, that it refers to volume ounces,

given the alternative measurement of “1/4 to 1/2 cup.” In sum, after a consumer is able to

                                              9
calculate the size of their driveway in square yardage, they could measure out the total

appropriate amount of Heat to use in either volume ounces or cups and then apply it evenly

over the driveway in accordance with the clear labeling instructions.

        We emphasize that the IPLA only requires “reasonableness” with respect to a

product’s labeling, not 100% perfection or anticipation of every possible contingency that

might arise with the product’s use. In accordance with this standard, we conclude as a

matter of law that Heat’s labeling is not defective. It adequately informs consumers of

possible dangers associated with its use and gives reasonably complete instructions on how

to use it properly, as required by Indiana Code Section 34-20-4-2. As such, Meats failed

to prove that Heat was a “defective” product under the IPLA.3

                                                Conclusion

        Because Heat’s product labeling is adequate as a matter of law and Meats makes no

argument that the product is otherwise “defective” under the IPLA, we reverse the

judgment in Meats’s favor against Scotwood.

        Reversed.

ROBB, J., and BROWN, J., concur.




3
 Given our resolution of this issue, we need not address Scotwood’s alternative arguments that the trial
court denied it due process in the manner in which it conducted the bench trial, or that it erred in failing to
apportion fault between it and Valspar. Also, because we are reversing the judgment in Meats’s favor, it
goes without saying that we also deny his request for appellate attorney fees.

                                                     10
