      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEES
      Caren L. Pollack                                           Timothy F. Devereux
      Zachary J. Stock                                           Indianapolis, Indiana
                                                                                                    FILED
      Indianapolis, Indiana                                                                    Jan 24 2019, 8:59 am

                                                                                                    CLERK
                                                                                                Indiana Supreme Court
                                                                                                   Court of Appeals
                                                                                                     and Tax Court

                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Crawfordsville Town & Country                              January 24, 2019
      Home Center, Inc.,                                         Court of Appeals Case No.
      Appellant-Defendant,                                       18A-CT-314
                                                                 Appeal from the Allen Superior
              v.                                                 Court
                                                                 The Honorable David J. Avery,
      Odilon Elias Cordova, Jamie                                Judge
      Busse, and Do It Best Corp,                                Trial Court Cause No.
      Appellees-Plaintiffs/Defendant.                            02D09-1512-CT-543




      Tavitas, Judge.


                                              Case Summary
[1]   Crawfordsville Town & Country Home Center, Inc. (“Town & Country”)

      appeals the trial court’s denial of its motion for summary judgment in

      proceedings brought by Odilon Elias Cordova (“Cordova”) and Jamie Busse

      (“Busse”). We reverse and remand.




      Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019                     Page 1 of 20
                                                       Issue
[2]   Town & Country raises two issues. We find the following issue dispositive:

      Whether the trial court properly denied Town & Country’s motion for

      summary judgment based on lack of duty.


                                                       Facts
[3]   The parties’ designated evidence demonstrates that, in August 2014, the owners

      of a Mexican restaurant in Crawfordsville hired Rogelio Barcelata to paint the

      rear exterior wall of the restaurant. Barcelata asked Cordova and Rutelio

      Gonzales to assist and split the payment for the work. To remove the old paint,

      the men decided to rent a pressure washer and an aerial lift. Barcelata and

      Cordova 1 went to Town & Country, where Corey Perigo, the rental department

      manager, assisted them.


[4]   Barcelata, Gonzales, and Cordova speak limited English. Barcelata and

      Cordova testified in depositions that they cannot read English. Perigo testified

      in a deposition that Barcelata spoke fluent English and that he did not know if

      the other men spoke English. Cordova is married to Busse, and they

      communicate in English.




      1
       In a deposition, Corey Perigo testified that three men were at Town & Country. Cordova testified that
      Gonzales stayed in the van as Cordova and Barcelata went inside.

      Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019                             Page 2 of 20
[5]   Perigo rented the equipment to Barcelata. According to Perigo, he explained

      the operation of the aerial lift to Barcelata. According to Cordova, however,

      Perigo explained how to use the aerial lift to Cordova, who spoke more English

      than Barcelata. Perigo also showed Cordova where the operator’s manual was

      located. The operator’s manual and the warning labels on the aerial lift are all

      written in English. Cordova did not ask for the instructions or safety

      information to be provided in Spanish. Perigo spent fifteen to twenty minutes

      giving an operation and safety orientation. Perigo conceded, however, most of

      that time was spent on operation of the aerial lift, not safety. Perigo did not

      review the operator’s manual with Cordova or Barcelata.


[6]   The aerial lift had multiple warning labels with diagrams placed on the aerial

      lift by the manufacturer that directed users not to use the lift within ten feet of a

      high-voltage line. See Figure 1 (Appellant’s App. Vol. II p. 135); Figure 2

      (Appellant’s App. Vol. II p. 136). Perigo testified in his deposition that he

      explained the electrocution warning sticker and that he said “to stay away from

      the power lines at least 10 feet.” Appellant’s App. Vol. III p. 151. Barcelata,

      however, testified that Perigo did not point out the warning labels.




      Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019          Page 3 of 20
  Figure 1




Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019   Page 4 of 20
      Figure 2




[7]   The operator’s manual further directed operators to avoid power lines. See

      Figure 3 (Appellant’s App. Vol. II p. 239). The operator’s manual provided:

      “Inexperienced users should receive instruction by a qualified instructor before

      attempting to operate or maintain the aerial work platform.” Appellant’s App.

      Vol. II p. 237. Perigo is not “certified” to “provide training or instruction” on

      the aerial lift. Appellant’s App. Vol. III p. 151.


[8]   The men then took the aerial lift to the jobsite. After they arrived at the jobsite,

      however, the men had problems operating the aerial lift. Cordova called

      Perigo, who came to the jobsite and corrected the problem. There is a dispute

      as to whether the aerial lift was in the parking lot or in position next to the

      building when Perigo arrived. Perigo testified that, when he arrived, the

      equipment was parked in the parking lot away from the restaurant. According

      Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019         Page 5 of 20
      to Perigo, the men did not explain what they were doing with the aerial lift, and

      they told Perigo that they needed a “heavier duty pressure washer.” Id. at 152.


[9]   Cordova, however,                 Figure 3


      stated that, when he

      and Barcelata arrived

      at the site with the

      aerial lift, they

      immediately placed

      the aerial lift next to

      the restaurant’s back

      wall and leveled it.

      Barcelata also testified

      that the aerial lift had

      been placed “where

      we were going to

      work” and that

      Cordova had leveled

      it before discovering

      that it would not

      work; the men placed

      the aerial lift between

      the back wall of the building and power lines that were a few feet away. Id. at

      159.


      Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019      Page 6 of 20
[10]   According to Cordova and Barcelata, the aerial lift was already in position

       when Perigo arrived to fix it. Barcelata testified that he assumed Perigo “would

       have said something” if the aerial lift could not be operated in its location when

       Perigo repaired the aerial lift and saw its position. Id. at 167. Cordova testified

       that Perigo saw their small pressure washer and told Cordova that it was too

       small for the job. Perigo recommended that the men use a more powerful

       pressure washer, and the men followed Perigo back to Town & Country to rent

       a different pressure washer.


[11]   Barcelata was aware that “nobody should get close to electric cable[s],” but he

       admitted he thought they had enough room to do the job without touching the

       power lines. Id. at 161. Barcelata understood that they needed to stay away

       from the power lines. Barcelata was not concerned about using water near the

       power lines because they “were spraying the wall, not the lines.” Appellant’s

       App. Vol. II p. 81. Cordova testified that he knew the power lines were “bad”

       and that they tried to stay away from the lines. Appellant’s App. Vol. III p.

       178. Cordova also testified, however, that they were not paying attention to the

       power lines while they were in the basket because they “were working.” Id.


[12]   The next day, Cordova and Gonzales were in the basket of the aerial lift using

       the power washer. Cordova was at the controls, and Gonzales was spraying

       water to remove old paint from the wall. The aerial lift was positioned between

       the building and power lines. The aerial lift was less than ten feet away from

       the power lines. According to Cordova, the aerial lift did not touch the power



       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019        Page 7 of 20
       lines. Cordova, however, was electrocuted and sustained severe injuries,

       including the amputation of his left hand.


[13]   Emergency personnel at the scene and Town & Country’s corporate

       representative, John Whitecotton, testified that the aerial lift was less than ten

       feet away from the power lines. See Appellant’s App. Vol. III p. 187 (aerial lift

       was “within a foot of the power lines”); p. 194 (aerial lift was “approximately 2

       feet from the energized power line”); p. 196 (aerial lift was “close to 2 feet”

       from the power lines); p. 200 (aerial lift was “within 6 inches of the power

       lines”). Whitecotton was asked in a deposition, “Is there any way that that lift

       could have been safely used to power wash that wall?” Id. at 188. Whitecotton

       responded, “No. There’s power lines within ten feet of there. I actually believe

       the power lines are too low to the ground to begin with, and the pole’s leaning

       toward the building.” Id. Whitecotton also testified, “If we knew at the time

       that the customer was going to do something near power lines, and we’re

       talking within 25 feet or less, we would say, you can’t do that. And if they say,

       we’re going to do it anyway, we would refuse rental.” Id. at 181.


[14]   In December 2015, Cordova and his wife, Busse, filed a complaint for damages

       against Town & Country and Do It Best Corp. (“Do It Best”) after Cordova

       was electrocuted and seriously injured in the aerial lift rented from Town &

       Country. Cordova and Busse alleged that Town & Country and Do It Best

       were: (1) negligent in renting the aerial lift; (2) negligent for failing to provide

       sufficient warnings, training, and instructions; and (3) negligent because they

       knew or should have known that the aerial lift created an unreasonable risk of

       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019           Page 8 of 20
       harm when used in a manner reasonably foreseeable to Town & Country and

       Do It Best.


[15]   Town & Country filed a motion for summary judgment and alleged that: (1)

       Town & Country did not have a duty to Cordova; (2) Town & Country’s

       conduct was not the proximate cause of Cordova’s injuries; and (3) Cordova’s

       fault was greater than the fault of any other person who contributed to

       Cordova’s damages. Cordova filed a response to Town & Country’s motion for

       summary judgment and argued that, under Section 388 of the Restatement

       (Second) of Torts, Town & Country owed a duty to Cordova. Town &

       Country then filed a reply and additional designation of evidence.


[16]   After a hearing, the trial court denied Town & Country’s motion for summary

       judgment and issued the following order: 2


                  As to Town & Country’s contention that no legal duty was
                  breached, Town & Country cites Ford Motor Co. v. Rushford, 868
                  N.E.2d 806 (Ind. 2007) for the proposition that a retail merchant
                  has no duty to provide additional warning of a danger to a buyer
                  of a product being sold if the retailer passes on the adequate
                  warnings of the danger provided by the manufacturer. In
                  Rushford, the plaintiff was claiming that the defendant dealership
                  had a duty to direct her to the airbag warnings in the
                  manufacturer’s owner’s manual which had been provided to her
                  by the dealership. The holding in Rushford does not alleviate the
                  duty to warn users of dangers in the use of a product.




       2
           The trial court granted Do It Best’s motion for summary judgment.


       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019          Page 9 of 20
        Section 388 of the Restatement (Second) of Torts, adopted by our
        courts in Indiana, creates a duty on the supplier of a chattel to
        exercise reasonable care to inform anyone whom the supplier
        expects to use the chattel that “the chattel is or is likely to be
        dangerous for the use for which it is supplied”, “has no reason to
        believe that those for whose use the chattel is supplied will realize
        its dangerous condition” and “to exercise reasonable care to
        inform [the user] of its dangerous condition or of the facts which
        make [the chattel] likely to be dangerous”. The Court finds that
        this duty applied to Town & Country as the rental agent for the
        Lift in this case.


        Town & Country also contends that it complied with its legal
        duty. Town & Country points to the warnings contained on the
        stickers on the Lift and the warnings contained in the owner’s
        manual, a copy of which was given to Cordova and/or Barcelata
        and the verbal instructions and warnings that Perigo gave to
        Cordova at the time of the rental. However, Town & Country
        does not take into consideration (1) that Perigo testified that at
        the time of the rental at the Town & Country building he only
        spoke to Barcelata; (2) there is a question as to how well
        Barcelata and Cordova would have understood the language
        contained in the stickers or owner’s manual or Perigo’s verbal
        instructions which were in English and not in Spanish and while
        Cordova spoke and understood some degree of English, his
        primary language appears to have been Spanish and Barcelata’s
        understanding of English was less than that of Cordova’s; (3) in
        addition to the language issue, there is a question as to whether
        the warnings adequately warned Cordova that the danger arising
        from [] using the Lift in close proximity to power lines resulted
        not only from direct contact with a power line but also from the
        phenomena of arcing. There is an issue of fact as to whether
        Cordova made direct contact with the power line or not. These
        issues preclude the Court from granting Town & Country’s
        Motion for Summary Judgment.



Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019         Page 10 of 20
               In addition, there is the undisputed fact that Perigo went to the
               jobsite where the men intended to use the Lift as a result of the
               inability of the men to get the Lift to operate. There is a question
               of fact whether Perigo knew that the men intended to use the lift
               to power wash the building because while at the jobsite there was
               a discussion and suggestion that the men needed a more powerful
               power washer, which the men proceeded to rent from Town &
               Country. If Perigo knew that the men intended to set up the Lift
               between the building and the power lines in order to power wash
               the upper story of the building then an issue arises whether
               Perigo complied with the Section 388 duty to “inform [the men]
               of the dangerous condition or of the facts which make [the Lift]
               likely to be dangerous.” The Court finds that Town & Country
               has failed to carry its burden of showing that the undisputed
               material facts demonstrate that Town & Country is entitled to
               summary judgment as a matter of law. Accordingly, Town &
               Country’s Motion for Summary Judgment should be denied.


       Appellant’s App. Vol. II pp. 24-25. The trial court certified the decision for

       interlocutory appeal pursuant to Indiana Appellate Rule 14, and this court

       accepted the appeal.


                                                     Analysis
[17]   Town & Country appeals the trial court’s denial of its motion for summary

       judgment. Summary judgment is appropriate only when the moving party

       shows there are no genuine issues of material fact for trial and the moving party

       is entitled to judgment as a matter of law. Erie Indem. Co. for Subscribers at Erie

       Ins. Exch. v. Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018), reh’g

       denied; see also Ind. Trial Rule 56(C). Once that showing is made, the burden

       shifts to the nonmoving party to designate appropriate evidence to demonstrate


       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019         Page 11 of 20
       the actual existence of a genuine issue of material fact. Schoettmer v. Wright, 992

       N.E.2d 702, 705-06 (Ind. 2013). When ruling on the motion, the trial court

       construes all evidence and resolves all doubts in favor of the non-moving

       party. Id. at 706. We review the trial court’s ruling on a motion for summary

       judgment de novo, and we take “care to ensure that no party is denied his day

       in court.” Id. “We limit our review to the materials designated at the trial

       level.” Gunderson v. State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind.

       2018).


[18]   Cordova brought a negligence action against Town & Country. “To prevail on

       a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the

       defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an

       injury to the plaintiff proximately caused by the breach.” Ford Motor Co. v.

       Rushford, 868 N.E.2d 806, 810 (Ind. 2007). Town & Country argues that the

       trial court should have granted its motion for summary judgment because Town

       & Country had no duty to Cordova.


[19]   According to Town & Country, the aerial lift’s manufacturer’s warnings were

       sufficient, and it was not required to provide additional warnings to Cordova.

       Cordova argues that the warnings were provided in English and that his English

       is limited; Cordova also contends that Town & Country had a duty because

       Perigo allegedly was aware of where Cordova was using the aerial lift.

       “[W]hether a duty exists is a question of law for the court to decide.” Rogers v.

       Martin, 63 N.E.3d 316, 321 (Ind. 2016). “Although the adequacy of warnings,

       which implicates breach of duty, is generally a question of fact for the trier of

       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019        Page 12 of 20
       fact to resolve, the nature of the duty to provide warnings is a question of law to

       be decided by the court.” Rushford, 868 N.E.2d at 810.


[20]   Although neither party cites the Indiana Product Liability Act, we note that the

       Act “governs all actions that are: (1) brought by a user or consumer; (2) against

       a manufacturer or seller; and (3) for physical harm caused by a product;

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

       brought.” Ind. Code § 34-20-1-1. Under the Act, “[a] product is defective

       under this article if the seller fails to . . . properly package or label the product

       to give reasonable warnings of danger about the product . . . when the seller, by

       exercising reasonable diligence, could have made such warnings or instructions

       available to the user or consumer.” I.C. § 34-20-4-2.


[21]   Town & Country argues that Rushford is controlling here. In Rushford, the

       plaintiff and her husband purchased a car from a Ford dealer. A few weeks

       later, the plaintiff, who was a passenger in the vehicle, was injured by the air

       bag during a crash. The plaintiff brought a product liability action against the

       dealer and the manufacturer and alleged that they failed to provide reasonable,

       adequate warnings regarding the air bags. According to the plaintiff, the dealer

       should have given her additional warnings because it was aware she did not

       drive and saw her short stature. The trial court denied the dealer’s and

       manufacturer’s motions for summary judgment. On appeal, this court reversed

       the denial of the manufacturer’s motion for summary judgment but affirmed the

       denial of the dealer’s motion for summary judgment.



       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019          Page 13 of 20
[22]   Our supreme court then considered the denial of the dealer’s motion for

       summary judgment. Although this court had analyzed the issue in the context

       of breach of duty, our supreme court considered the issue of whether a duty

       existed at all:


               Rather than focusing upon the breach of a preexisting duty, we
               see this case as presenting the question of whether a duty existed
               in the first instance. That is to say, what duty to warn of dangers
               does a retail seller owe to a user or consumer of a product when
               such dangers already have been communicated by the product’s
               manufacturer. Stated somewhat differently, once the
               manufacturer has warned a user or consumer of a particular
               danger, what duty do we impose on the retail seller to give
               additional warnings of the same danger.


       Rushford, 868 N.E.2d at 810-11. The court concluded:


               We acknowledge that the seller of a product that, to its
               knowledge, involves danger to users has a duty to give a warning
               of such danger at the time of sale and delivery. See Natural Gas
               Odorizing, Inc. v. Downs, 685 N.E.2d 155, 162 (Ind. Ct. App.
               1997) (“[T]he manufacturer, seller or distributor of a product has
               a duty to warn those persons it should reasonably foresee would
               be likely to use its product or who are likely to come into contact
               with the danger inherent in the product’s use.”) (citing 63A
               Am.Jur.2d Products Liability § 1188 (1997)). But in the absence of
               any evidence that the product has been modified in some fashion
               and that the seller knew or should have known of any such
               modification, its duty to warn is discharged where the seller
               provides the buyer with the manufacturer’s warning of the danger
               at issue. In other words absent special circumstances, if the
               manufacturer provides adequate warnings of the danger of its product
               and the seller passes this warning along to the buyer or consumer, then
               the seller has no obligation to provide additional warnings.

       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019          Page 14 of 20
       Id. at 811 (emphasis added). The court emphasized: “‘Where warning is given,

       the seller may reasonably assume that it will be read and heeded; and a product

       bearing such a warning, which is safe for use if it is followed, is not in defective

       condition, nor is it unreasonably dangerous.’” Id. (quoting Dias v. Daisy-

       Heddon, 180 Ind. App. 657, 662, 390 N.E.2d 222, 225 (1979)).


[23]   The court in Rushford noted that the air bag warnings in the owner’s manual

       were adequate, the owner’s manual was provided to the plaintiff, and there was

       no claim of a modification. The court, thus, concluded that, “having provided

       Rushford with the manufacturer’s warning, [the dealer] was under no duty to

       give Rushford additional warnings, including advising Rushford to read the

       manufacturer’s warnings based on [the dealer’s] knowledge of ‘Rushford’s

       peculiar characteristic.’” Id. “To conclude otherwise would place retail sellers .

       . . in the position of attempting to determine which particular manufacturer

       warnings may be of unique importance to an individual consumer and then

       direct the consumer’s attention to those warnings.” Id. at 811-12. The court

       concluded that requiring sellers to give additional warnings would be “an

       untenable position and an unnecessary burden” and, thus, reversed the denial

       of the dealer’s motion for summary judgment. Id. at 812.


[24]   Town & Country argues that, based on Rushford, it had no obligation to give

       Cordova warnings in addition to the warnings provided by the manufacturer.

       Town & Country also contends that Cordova’s limited grasp of the English

       language is a unique characteristic analogous to the plaintiff’s short stature in

       Rushford, which did not require additional warnings. Cordova, however, argues

       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019        Page 15 of 20
       that Town & Country’s argument would favor English speakers and non-

       English speakers would not be “entitled to receive critical safety information

       and/or warnings in a form that they can understand.” Appellee’s Br. p. 19.


[25]   Additionally, Cordova argues that Town & Country had actual knowledge and

       notice that Cordova was not following the manufacturer’s warnings. Cordova

       argues that Dutchmen Manufacturing, Inc. v. Reynolds, 849 N.E.2d 516 (Ind.

       2006), is controlling. In Dutchmen, an employee of Keystone RV was injured

       when scaffolding broke loose and struck him. The scaffolding had been

       installed by Dutchmen, the prior lessee of the facility. The employee filed a

       complaint against Dutchmen and the landlord of the premises. The trial court

       granted in part and denied in part Dutchmen’s motion for summary judgment,

       and this court reversed and ordered that Dutchmen’s motion for summary

       judgment be granted in full.


[26]   Our supreme court accepted transfer and considered the applicability of Section

       388 of the Restatement (Second) of Torts, which provides:


               One who supplies directly or through a third person a chattel for
               another to use is subject to liability to those whom the supplier
               should expect to use the chattel with the consent of the other or
               to be endangered by its probable use, for physical harm caused by
               the use of the chattel in the manner for which and by a person for
               whose use it is supplied, if the supplier


                    (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


       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019           Page 16 of 20
                    (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.


       Dutchmen, 849 N.E.2d at 519.


[27]   The court noted:


               Section 388 imposes liability on a supplier of a chattel for
               physical harm caused by the supplier’s “failure to exercise
               reasonable care” to provide to any expected user of the chattel
               any information as to the “character and condition of the chattel
               ... which [the supplier] should recognize as necessary to enable
               [the user] to realize the danger of using it.” Restatement
               (Second) Torts § 388 cmt. b. A supplier of a chattel has no duty to
               warn of an obvious hazardous condition which a “mere casual looking
               over will disclose.” Id. at cmt. k. . . .


       Id. at 522 (emphasis added). The court concluded that “[t]he evidence viewed

       in a light most favorable to [the employee] permits the inference that Dutchmen

       negligently welded the scaffolding, and also failed to conduct a reasonable

       inspection of the scaffolding and ensure adequate lubricant. This is sufficient to

       deny summary judgment on the ground that Dutchmen had no knowledge of

       the defect.” Id. at 523.


[28]   In this case, warnings were given by the manufacturer and were clearly visible

       on the aerial lift. Cordova cites no authority that Indiana law imposes a duty to

       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019           Page 17 of 20
       provide bilingual warnings on a product or that the “reasonable warning”

       requirement includes an obligation to provide bilingual warnings. 3 Other courts

       considering this issue have analyzed whether the product was specifically

       marketed to non-English speakers, and there is no evidence of such here. See

       Farias v. Mr. Heater, Inc., 684 F.3d 1231 (11th Cir. 2012) (holding that the

       warnings on a heater were adequate even though they were not provided in

       Spanish where the product was not specifically marketed to Spanish-speaking

       customers).


[29]   We conclude that the Rushford analysis is more applicable and persuasive here.

       Under Rushford, Town & Country had no duty to provide additional warnings

       to Cordova. In Rushford, the seller had no obligation to provide additional

       warnings regarding the airbags even though it was aware of the plaintiff’s short

       stature. Rushford, 868 N.E.2d at 811. Town & Country, similarly, had no

       obligation to provide Cordova with additional warnings regardless of Cordova’s

       limited English skills.


[30]   Further, under Rushford, we do not believe that Perigo’s visit to the jobsite

       changes the outcome here. We acknowledge that the parties have differing

       accounts of whether Perigo witnessed the aerial lift’s location between the




       3
        Cordova also argues that Town & Country’s argument “flies in the face of the principles” discussed in
       Escamilla v. Shiel Sexton Company, Inc., 73 N.E.3d 663 (Ind. 2017). Appellee’s Br. p. 19. Escamilla concerned
       an undocumented immigrant’s access to the courts after he was injured while working and the admissibility
       of his immigration status at the trial. We do not find Escamilla persuasive here.

       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019                               Page 18 of 20
       restaurant’s back wall and the power lines. 4 Even if Perigo did see the final

       location of the aerial lift, however, under Rushford, Town & Country was not

       required to provide additional warnings. Furthermore, both Cordova and

       Barcelata admitted during their depositions that they were aware of the dangers

       of the power lines.


[31]   Moreover, even if Dutchmen is applicable here, Cordova’s argument fails.

       Under Dutchmen, Section 388 of the Restatement (Second) of Torts requires a

       consideration of whether the seller “has no reason to believe that those for

       whose use the chattel is supplied will realize its dangerous condition.”

       Dutchmen, 849 N.E.2d at 519. Here, the danger of using the aerial lift near

       power lines was well documented through the warnings, illustrations, and

       owner’s manual, and Cordova was well aware of the obvious dangers of power

       lines. Town & Country had “no duty to warn of an obvious hazardous

       condition” which a “mere casual looking over” would disclose. Id. at 522.

       Given the manufacturer-provided warnings, Town & Country had reason to

       believe that Cordova would heed the multiple written and illustrated warnings

       and realize the danger of operating the aerial lift near power lines.


[32]   Under either the Dutchmen or Rushford analysis, Town & Country prevails. The

       warnings were placed on the aerial lift and in the operating manual by the

       manufacturer, and Town & Country passed on these warnings to Cordova.




       4
           Perigo did not witness Cordova actually using the power washer and aerial lift.


       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019                    Page 19 of 20
       Having considered the written warnings and illustrations and our supreme

       court’s opinions in Rushford and Dutchmen, we conclude that there is no genuine

       issue of material fact regarding whether the manufacturer-provided warnings

       and illustrations supplied adequate warnings of danger about the risks of

       electrocution when using the aerial lift. Town & Country had no duty to

       provide additional warnings to Cordova. Accordingly, Town & Country was

       entitled to judgment as a matter of law. The trial court erred by denying Town

       & Country’s motion for summary judgment. 5


                                                Conclusion
[33]   The trial court erred by denying Town & Country’s motion for summary

       judgment. We reverse and remand.


[34]   Reversed and remanded.


       Brown, J., and Altice, J., concur.




       5
           Given our resolution of this issue, we need not address Town & Country’s comparative fault argument.


       Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019                             Page 20 of 20
