In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1253

SHEILA RITCHIE,

Plaintiff-Appellant,

v.

GLIDDEN COMPANY, ICI PAINTS WORLD-GROUP
and GRACO, Inc.,

Defendants-Appellees.



Appeal from the United States District
Court for the Northern District of Indiana,
Fort Wayne Division.
No. 98 C 111--William C. Lee, Chief
Judge.


Argued September 19, 2000--Decided February
27, 2001




  Before Bauer, Manion, and Kanne, Circuit
Judges.


  KANNE, Circuit Judge. Plaintiff-
appellant Sheila Ritchie suffered a paint
injection injury while operating airless
spray paint equipment that resulted in
the eventual amputation of her left index
finger. Ritchie brought a products
liability action against the manufacturer
of the pump, Graco, Inc. ("Graco"), as
well as against the owner and supplier of
the pump, Glidden Company, ICI Paints
World Group ("Glidden"), based on the
parties’ failure to warn of the dangerous
nature of the high pressure airless pump
system. Graco and Glidden moved for
summary judgment, arguing that Ritchie
had not presented sufficient evidence to
meet all of the elements of her prima
facie case under the Indiana Products
Liability Act. The district court agreed
and granted summary judgment for both
Graco and Glidden. Ritchie appeals,
claiming that the district court erred in
finding that there was no issue of
material fact regarding whether the pump
involved in the accident left Graco’s
control without proper warnings. Because
we find that genuine issues of material
fact remain, we reverse and remand.

I.   History
A.   Ritchie’s Injury


   Redman Homes ("Redman") is a
manufacturer of modular unit homes
located in Topeka, Indiana. As part of
their business of building modular homes,
Redman paints the inside of the units
prior to assembling them. On July 11,
1994, Redman hired Ritchie to perform
touch-up painting of the modular units. A
little over a year later Ritchie was
moved to a spray painting position. As a
spray painter, Ritchie applied paint to
the interior surfaces of the units with
airless spray painting equipment. The
equipment that Richie used in her job as
a spray painter is composed of three
parts: a pump, a hose, and a spray
nozzle/gun. The pump that Ritchie
normally used was mounted on a fifty-five
gallon drum that contained the paint.
Ritchie had no previous experience using
high pressure spray painting equipment
and Redman did not provide any formal
training. Ritchie learned how to operate
the equipment solely by watching her co-
workers. At no time prior to her accident
did Ritchie receive any operating manuals
or other safety information regarding the
equipment.


  On February 29, 1996, while using the
airless spray equipment to paint the
inside of a unit, Ritchie noticed that
her pump was not working properly and
heard her co-workers yelling that paint
was "flying everywhere." She realized
that she had lost pressure in her spray
gun so she turned off the air pressure to
the pump. Ritchie contacted her foreman,
Reuben Brandenburger, to notify him of
the problem. Brandenburger in turn
contacted the maintenance crew. The
maintenance crew advised him that they
were too busy to immediately attend to
the broken spray gun, so they asked him
to determine whether the problem was with
the hose or the pump. Brandenburger
instructed Ritchie to check the hose for
raw spots or holes while he checked the
pump. As Ritchie inspected the hose by
running her hands over it and twisting
it, Brandenburger turned on the pump and
Ritchie felt a prick to her left index
finger. She described the incident as
follows:

While I was checking the hose, I was
twisting, you know, and looking at it. I
have no idea why he did it . . . . But he
turned the pump on. I felt a prick to my
left index finger. It felt more like a
splinter, like I had poked it. I put it,
like in the back of my mind saying ’I’ll
check it later.’ I told Rubin, ’Yes, I
know it’s the hose. There’s a hole in
it.’

(Ritchie Dep. at 35).


  When Ritchie went to wash her hands a
few minutes later, she noticed that the
pricked finger had a small hole in it and
had turned white. She notified the
assistant production manager, Tim Oesch,
of the injection injury and asked him
what she should do. Oesch asked her if it
hurt, and Ritchie replied that it did
not. Oesch called the personnel manager,
and asked her if Ritchie should go to the
doctor. The personnel manager replied
that if the injury did not look too bad
and Ritchie was not complaining about the
pain then Oesch should just "forget about
it." Oesch then suggested that Ritchie
return to work which she did without
complaint.


  Approximately three hours after
Ritchie’s return to work, a co-worker
notified Brandenburger that Ritchie’s
finger had swollen to almost three times
its normal size. Ritchie was sent to the
personnel office to fill out paperwork
and to see Redman’s worker’s compensation
doctor. Ritchie was unable to see the
company doctor, so she drove herself to
the emergency room at LaGrange Hospital.
The doctor at LaGrange Hospital
recognized the serious nature of
Ritchie’s injury and immediately sent her
to Fort Wayne Orthopedics. After arriving
at Fort Wayne Orthopedics, Ritchie was
rushed into surgery. When the surgeon
opened her finger, it was filled with
paint. During surgery that lasted three
and a half hours, the doctor first
attempted to rinse and then attempted to
drain the paint out of her finger. When
this was unsuccessful, he attempted to
cut the paint out of her finger. Ritchie
subsequently endured six more surgeries,
but doctors were unable to save her
finger from amputation.

B.   The Accident Pump


  The origin of the pump that Ritchie was
using at the time of the accident is
disputed. Ritchie claims that the
accident pump was supplied by Glidden
immediately preceding the injury. The
defendants, on the other hand, deny this.
Patrick Cross, the General Manager of the
Topeka facility, testified that Redman
has no records showing the purchase,
sale, lease, or ownership of the pump
used by Ritchie on the date of the
accident. Ritchie testified that she had
been using the same type of pump since
she began working as a spray painter, but
she could not specifically identify the
pump that she was using when the injury
occurred./1 Redman continued to use the
offending pump for a while after the
accident, but its present whereabouts are
unknown. Several witnesses, however, have
testified that the accident pump was a
Graco pump, and Graco does not dispute
that fact for the purposes of this
appeal.


  Prior to May of 1994, various companies
supplied paint, spray painting pumps, and
other painting equipment to Redman. In
May 1994, Glidden began supplying paint
and painting equipment to Redman. Glidden
does not manufacture painting equipment,
but distributes brushes, rollers, hoses,
pumps, and other painting equipment made
by a variety of manufacturers. Tim Pieri,
a Glidden sales representative, was
responsible for the Redman account at all
times relevant to this case. Redman’s
previous supplier provided Redman with
spray painting pumps made by various
manufacturers including Binks, Speedflo,
and Graco. When Glidden first took over
the account, Pieri continued to supply
Redman with pumps made by various
manufacturers.


  At some point after Glidden became
Redman’s supplier, Redman decided to
upgrade its painting equipment due to
frequent problems with the existing
equipment. Because Graco pumps were
thought to be the best in the industry,
Redman determined that the existing pumps
would be replaced by Graco pumps. Redman
and Pieri came to an agreement whereby
Redman would buy all of its paint from
Glidden, and in exchange, Glidden would
supply Redman with the necessary Graco
pumps. At that time, Glidden was not an
authorized dealer of Graco pumps, so
Pieri purchased Graco pumps for Redman
from Devoe Paints, an authorized Graco
distributor. Glidden retained ownership
of the pumps and was responsible for
their periodic service and inspection,
though Redman was responsible for day-to-
day maintenance of the pumps. It is
unclear whether Glidden had completed the
pump upgrade at the time of Ritchie’s
accident. It is undisputed, however, that
pumps manufactured by three different
manufacturers were on the Redman premises
at the time of Ritchie’s accident.


  In January 1996, Pieri supplied Redman
with two new Graco Bulldog pumps. These
two pumps arrived in crates, were
unpacked by maintenance, and were set-up
by Pieri with the assistance of Redman
employee Hodgie Thulin. Graco denies that
either of these pumps was the pump used
by Ritchie at the time of her accident.
Pieri claims that the two pumps that he
delivered were cart-mounted pumps--
unlike the accident pump which was
indisputably a drum-mounted pump. Cart
mounted pumps are small, mobile pumps
that Redman employees use primarily as
back-up pumps when the drum-mounted pumps
are being serviced or are not operable.
Pieri did initially testify that the
accident pump Ritchie used was one of the
new pumps that he delivered in January.
Upon learning that Ritchie described the
accident pump as a drum-mounted pump,
however, Pieri recanted. He then
testified that if the accident pump was a
drum-mounted pump then it was not one of
the pumps that he had delivered in
January.


  In direct contradiction, Ritchie argues
that the accident pump was one of the
pumps that Pieri delivered in January.
Ritchie claims that Pieri is incorrect in
his assertion that he delivered cart-
mounted pumps to Redman in January. She
bases this claim on the testimony of
Richard Grooms, Redman’s production
manager. Grooms testified that the
accident pump was a Graco Bulldog
pump/2 brought in by Glidden as part of
the upgrade of Redman’s painting
equipment. Ritchie also relies on the
testimony of Thulin to show that the
pumps that Pieri delivered were drum-
mounted pumps. Thulin testified that only
drum-mounted pumps are delivered in
crates.

C.   Knowledge of Danger


  Although some Redman employees were
aware of the specific danger of paint
injection associated with the airless
spray painting pumps, it seems that most
employees’ knowledge was limited to a
general awareness that high pressure
equipment can be dangerous. As noted
earlier, Redman provided no formal
training or safety instructions on the
use of spray painting equipment and did
not hand out copies of instruction
manuals to the employees. Nor were
employees informed of the importance of
obtaining immediate medical attention in
the event of an injection injury.
Although Redman kept all of the pump
instruction and safety manuals available
in the maintenance room for employee
perusal, Redman’s Quality Process
manager, Steve McCorkle, admits that
Redman "did a poor job maybe of
disseminating that information."


  Pieri, Glidden’s account representative,
knew of the dangers associated with the
high pressure pumps. Specifically, he was
aware that it was possible for a person
to be injected with paint either by the
hose or by the spray gun and that
immediate medical attention would be
necessary for anyone who suffered such an
injury. Pieri included instruction
manuals for the equipment he delivered,
but he did not voluntarily provide any
training to Redman employees regarding
the proper use of the pumps.

D.   Presence of Warnings on Pumps


  It is disputed whether the pump that was
involved in Ritchie’s accident had a
warning label affixed to it. William
Kullman, Graco’s Product Safety and
Compliance Administrator, maintains that
all Graco equipment leaves Graco’s
control with on-product warning labels
and accompanied by safety manuals. For
example, the warning on a Graco pump
similar to the one Ritchie was using on
the day of her accident reads as follows:

WARNING - HIGH PRESSURE DEVICE FOR
PROFESSIONAL USE ONLY - Read Instruction
Manual Before Operating: Observe All
Warnings.

INJECTION HAZARD - High pressure spray or
application equipment can cause serious
injury if the spray penetrates the skin.
DO NOT point any high pressure device -
gun or nozzle - at anyone or any part of
the body. Do not attempt to deflect or
stop leaks in the system by hand. In case
of penetration, adequate medical aide
must be immediately obtained.

     . . . .

SERVICING - Before servicing, cleaning,
or removing any part, always shut off
power source, carefully release pressure
in fluid portions of the system and set
safety lock on guns and equipment.

With respect to the two pumps delivered
to Redman in January 1996, Pieri was
unable to remember whether he saw on-
product labels on the pumps that he
delivered.


  Ritchie, however, did not see any
warnings or labels on the pump that she
was using at the time of the accident.
Additionally, several of her co-workers
do not recall seeing any warnings on the
accident pump. Redman’s quality process
manager, McCorkle, stated that he saw
neither identifying labels nor warning
labels on the pump when he inspected it
within twenty-four hours of the accident.
In contrast, Redman’s production manager,
Oesch, testified that he believed the
pump did have a vague warning label that
said "High Pressure Pump."


  Ritchie filed suit in Indiana state
court against Graco and Glidden alleging
that she was entitled to relief under
various products liability theories
including strict liability, negligence,
and breach of warranty based on the
defendants’ failure to warn her of
possible dangers associated with the use
of the pump./3 The defendants removed
the case to federal district court. Graco
and Glidden moved for summary judgment,
arguing that Ritchie could not meet her
burden under the Indiana Products
Liability Act. The district court agreed
and granted summary judgment for the
defendants.

II. Analysis
A. Standard of Review


  We review de novo a district court’s
grant of summary judgment, construing all
facts and inferences in the light most
favorable to the non-moving party. See
Myers v. Hasara, 226 F.3d 821, 825 (7th
Cir. 2000). Summary judgment is proper
when "the pleadings, depositions, answers
to interrogatories, and admissions on
file, together with the affidavits, if
any, show that there is no genuine issue
as to any material fact and that the
moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986). No genuine issue of
material fact exists when a rational
trier of fact could not find for the
nonmoving party even when the record as a
whole is viewed in the light most
favorable to the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S. Ct
1348, 89 L. Ed. 2d 538 (1986).

B.   Applicable Law


  As a federal court sitting in diversity,
we apply state substantive law and
federal procedural law. See Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78, 58 S. Ct.
817, 82 L. Ed. 1188 (1938). Thus,
Ritchie’s failure to warn claims against
both the pump manufacturer, Graco, and
the pump supplier, Glidden, are governed
by the Indiana Product Liability Act
("the Act"). See Ind. Code Ann. sec.sec.
33-1-1.5-1 to 33-1-1.5-10 (West 1996)./4
Ritchie also brings a claim against
Glidden under the Restatement (Second) of
Torts sec. 388 for negligent supply and
maintenance of the accident pump.
  In order to succeed on her failure to
warn claim under the Act,/5 Ritchie
must show the following: (1) the seller
is engaged in the business of selling the
product that caused the injury; (2) the
product was defective and unreasonably
dangerous; (3) the defect existed at the
time the product left the defendant’s
control; (4) the product was expected to
and did reach the consumer without
substantial change in its condition; and
(5) the defective product was the
proximate cause of plaintiff’s injuries.
See Miceli v. Ansell, 23 F. Supp. 2d 929,
931-32 (N.D. Ind. 1998) (quoting Chambers
v. Osteonics Corp., 109 F.3d 1243, 1247
(7th Cir. 1997)). The Act provides that a
plaintiff can satisfy the second element-
-that the product was defective--by
showing one of the following: a design
defect, a manufacturing defect, or a
failure to warn. See Moss v. Crosman
Corp., 136 F.3d 1169, 1171 (7th Cir.
1998); Natural Gas Odorizing, Inc. v.
Downs, 685 N.E.2d 155, 161 (Ind. Ct. App.
1997). Ritchie bases her claims on Graco
and Glidden’s failure to warn of the
danger posed by high pressure spray
painting pumps.


  In order to show that the pump that she
was using at the time of her accident was
defective, Richie must show that Graco
had a duty to adequately warn her about a
latent dangerous characteristic and
failed to do so./6 See Natural Gas
Odorizing, 685 N.E.2d at 161. Whether the
defendants had a duty to warn Ritchie of
the dangers posed by the spray painting
pump is a question of law for the court
to decide. See id. If Graco and Glidden
did have such a duty, they will be liable
under the act unless the pump included
reasonably complete instructions and was
properly packaged and labeled to warn
users of possible dangers. See Ind. Code
Ann. sec. 33-1-1.5-2.5(b). We will address
Ritchie’s claims against Graco and
Glidden separately.

C. Ritchie’s Failure To Warn Claim
Against Graco


  The law in this case is clear. The facts
on the other hand, are far from clear and
are further obscured by both parties’
attempts to mischaracterize the evidence.
Of course, disagreement about trivial
matters is not enough to preclude summary
judgment--"[o]nly disputes that might
affect the outcome of the suit under our
precedent will properly preclude the
entry of summary judgment." Hardin v.
S.C. Johnson & Son, Inc., 167 F.3d 340,
344 (7th Cir. 1999). Therefore, our task
is to determine whether genuine issues of
material fact exist in this case such
that summary judgment would be improper.


  Ritchie argues that she is entitled to
recover for her injury because Graco
failed to properly label its pumps to
warn potential users of the danger of
injection. Graco advances four arguments
in response. Graco’s first argument, and
the one that found favor with the
district court, is that Ritchie has not
produced sufficient evidence to show that
the pump left Graco’s control without on-
pump warnings. Second, Graco contends
that Ritchie has not produced any
evidence of a design defect and that
there can be no duty to warn in the
absence of such a defect. Third, Graco
maintains that, by providing information
and safety manuals to Redman, it has
satisfied its duty to warn. Finally,
Graco claims that the absence of warnings
was not the proximate cause of Ritchie’s
injury. The district court was convinced
by Graco’s first argument, and thus did
not express an opinion on the other three
arguments. We will discuss each argument
in turn.

1. Presence of Warning Labels
When Pump Left Graco’s Care and Control


  In order to prevail on her failure to
warn claim against Graco under the Act,
Ritchie must show that the product in
question was defective and that it was
defective at the time it left the care
and control of the defendant. Ritchie has
certainly shown an issue of fact with
respect to whether the product was in a
defective condition at the time of her
accident. Ritchie and several witnesses
who observed the pump after the accident
testified that it did not display any
type of warning. For example, Redman
employees Thulin and Brandenburger both
testified that they did not remember
seeing any type of warning on the pump
Ritchie was using when the accident
occurred. McCorkle testified that he
specifically inspected the accident pump
and did not see a warning label. He also
testified that the pump was not covered
with paint in such a way that an existing
label would be illegible.


  In order to survive a motion for summary
judgment, however, Ritchie must show a
genuine issue of fact not only as to
whether the accident pump was defective
(i.e., lacked warnings), but also as to
whether the defect existed at the time
the product left Graco’s control. In
addressing this issue, the district court
properly recognized that the fact that
several witnesses did not see warning
labels on the accident pump on the day of
the accident, when viewed in the light
most favorable to Ritchie, leads to an
inference that the pumps did not have
warnings when they arrived at Redman’s
plant. According to the district court,
however, this inference provides "merely
a ’scintilla of evidence’ which provides
only ’some metaphysical doubt,’ as to the
material facts." Ritchie v. Redman Homes,
No. 1:98 CV 111, at 14 (N. D. Ill. 1999)
(quoting Matsushita Elec. Inds. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586,
106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986);
Adusumilli v. City of Chicago, 164 F.3d
353, 361 (7th Cir. 1998)). Thus, the
district court found that Ritchie failed
to show that the pump lacked warnings at
the time it left Graco’s control and
granted summary judgment for Graco.

  We agree with the district court that
the fact that the pump did not have
warnings on it at the time of the
accident is not, in itself, enough for a
rational juror to find that the pump
lacked warnings at the time it left
Graco’s care and control. However, while
Ritchie can not meet her burden merely by
asserting that the pumps did not have
labels on the date of her accident, nor
is she required to produce an eyewitness
who saw the accident pump leaving Graco’s
plant without a warning. If Ritchie can
show that the pump arrived new at Redman
without warnings, it would be reasonable
for a juror to infer that it left Graco
in that condition.


  In order to show that the accident pump
arrived at Redman without warnings,
Ritchie must show that the accident pump
was one of the two pumps that Pieri
delivered in January. If the offending
pump was not one of the pumps delivered
in January, Ritchie clearly does not have
sufficient evidence to show that the pump
lacked warnings when it left Graco.
Ritchie has put forth no evidence
regarding the chain of custody of any
pump other than the pumps delivered by
Pieri in January of 1996. Without
evidence of the events surrounding the
arrival of the accident pump at Redman,
it would not be reasonable for a juror to
infer that it left Graco without warnings
because a number of factors could account
for missing warning labels. If, however,
the accident pump was one of the two
pumps delivered in January, a rational
juror might find by a preponderance of
evidence that the pump lacked warnings
when it left Graco. A reasonable juror
could determine that the short amount of
time between the delivery of the pumps
and the accident made it more likely than
not that the pump left Graco’s care and
control without on-pump warnings.


  Thus, our inquiry turns on whether
Ritchie has presented a genuine issue of
material fact as to whether the pump that
she was using at the time of her accident
was one of the pumps that Pieri delivered
in January. The district court found that
the accident pump was not one of pumps
supplied by Pieri in January. This
finding was primarily based on Pieri’s
testimony that the pumps that he
delivered were cart-mounted pumps and the
undisputed testimony of several
employees, including Ritchie, that the
accident pump was a drum-mounted pump.
Unfortunately, the district court weighed
the conflicting testimony and gave more
weight to Pieri’s statement than to the
statements of other witnesses.


  Pieri is the only witness who has stated
that the pumps delivered in January were
cart-mounted pumps, and he has not
provided any additional evidence to
support this contention. Neither Graco,
Glidden, nor Pieri has produced any
delivery records showing that the pump
was cart-mounted./7 Ritchie disputes
Pieri’s testimony that the pumps that he
delivered a month before her accident
were cart-mounted pumps. In making this
claim, Ritchie does not simply rest on
conclusory allegations, but instead sets
forth specific evidence that brings
Pieri’s testimony into question. Pieri’s
testimony is directly contradicted by
Richard Grooms who testified that the
accident pump was one of the pumps
brought in during the upgrade. Grooms
testified that, "the only pumps that we
had that were mounted like that with the
drum application were the new Graco pumps
that we brought in." (Grooms Dep. at
105). Defendants argue that Grooms’
testimony is unreliable because elsewhere
in his deposition he incorrectly stated
the date of the pump upgrade. It is
possible that a factfinder would indeed
find Grooms’ testimony unreliable, but
this type of credibility assessment is
not available at the summary judgment
stage. "Credibility determinations, the
weighing of the evidence, and the drawing
of legitimate inferences from the facts
are jury functions, not those of a judge,
whether he is ruling on a motion for
summary judgment or for a directed
verdict." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). The testimony of
Hodgie Thulin also casts doubt on Pieri’s
testimony. Pieri testified that the new
pumps he delivered came in crates. But,
according to Thulin, only drum-mounted
pumps arrive in crates and cart-mounted
pumps arrive "ready to go." Thulin Dep.
at 94. We find that the conflicting
testimony of Pieri, Grooms, and Thulin
evidences a dispute as to whether the
accident pump was one of the pumps
delivered by Pieri in January. On a
motion for summary judgment, we "may only
determine whether or not there exists a
dispute as to a material issue of fact.
[We are] not permitted to resolve that
dispute." Dreher v. Sielaff, 636 F.2d
1141, 1144 (7th Cir. 1980) (citing Carter
v. Williams, 361 F.2d 189, 194 (7th Cir.
1966)). In much the same way that a court
is not required to "scour the record in
search of evidence to defeat a motion for
summary judgment," Bombard v. Fort Wayne
Newspapers, Inc., 92 F.3d 560, 562 (7th
Cir. 1996), nor is it permitted to
"conduct a ’paper trial’ on the merits of
[the] claim." Reed v. McBride, 178 F.3d
849, 852 (7th Cir. 1999).


  Although a non-moving party may
successfully oppose summary judgment only
by presenting "definite, competent
evidence to rebut the motion," Smith v.
Severn 129 F.3d 419, 428 (7th Cir. 1997)
(citations omitted), the party is not
required to produce evidence which, if
believed, would lead to a directed
verdict in her favor. Ritchie’s evidence
that the accident pump lacked proper
warnings when it left Graco’s care and
control is certainly not overwhelming. To
prevail at trial, Ritchie will have to
convince the factfinder that the
offending pump was a Graco pump, that the
pumps that Pieri delivered in January
were drum-mounted as opposed to cart-
mounted, and that they lacked warnings
when they arrived at Redman. It is quite
possible that she will not be able to do
this. But to say that it is not certain
that Ritchie will prevail at trial and
that no rational factfinder could find in
her favor are two different things. This
case has an admittedly complicated record
in which Pieri and the Redman employees
frequently contradict themselves and each
other. It is not our place to sort out
which witnesses are telling the truth,
which are mistaken, and which will be
credible witnesses at trial. On a motion
for summary judgment, "all doubts as to
the existence of an a issue of material
fact must be resolved against the
movant." Dreher, 636 F.2d at 1143. When
the evidence is viewed in the light most
favorable to Ritchie, we find that she
has demonstrated a genuine issue of
material fact as to whether the accident
pump left Graco’s care and control in a
defective condition.

2.   Absence of Design Defect


  Graco’s second argument, which was not
addressed by the district court, is that
summary judgment is proper because
Ritchie failed to allege that the pump
had a design defect. This argument fails
because Graco is incorrect in its
assertion that a duty to warn can never
arise in the absence of a design defect.


  The duty to warn of a product’s latent
dangerous characteristics may arise even
if there is no "defect" in the product.
See Natural Gas Odorizing, Inc. v. Downs,
685 N.E.2d 155, 161 (Ind. Ct. App. 1997).
Plaintiff mischaracterizes Black v. Henry
Pratt Co., 778 F.2d 1278, 1283 (7th Cir.
1985) and American Optical Co. v.
Weidenhamer, 457 N.E. 2d 181, 187 (Ind.
1983) by citing them for the proposition
that a design defect is a prerequisite to
the duty to warn. The cases that
plaintiff cites in support of this
argument are better understood to hold
that "[t]here is no duty to warn just
because a product might conceivably cause
injury." American Optical, 457 N.E.2d at
187 (quoting 63 Am. Jur. 2d 53, Product
Liability sec. 42). Although a plaintiff
must show that a defective product was
unreasonably dangerous because of its
inadequate warnings, see Moss v. Crosman,
136 F.3d 1169, 1174 (7th Cir. 1998), the
Act does not require that the plaintiff
show a design defect. By defining
"defective condition" to include products
that fail to display proper warnings, the
Act makes it clear that a plaintiff does
not have to allege a design defect to
state a cognizable failure to warn claim.
Section 33-1-1.5-2.5(b) states simply
that "a product is defective under this
chapter if the seller fails to: (1)
properly package or label the product to
give reasonable warnings of danger about
the product; or (2) give reasonably
complete instructions on proper use of
the product." Ind. Code Ann. (West 1996).
Thus, "a product can be flawlessly
designed, yet still be deemed defective
by virtue of a manufacturer’s failure to
warn adequately of the dangers involved
in the use of the product." Baker v.
Monsanto, 962 F. Supp. 1143, 1147 (S. D.
Ind. 1997) (citing Shanks v. A.F.E.
Indus., 416 N.E.2d 833, 837 (Ind. 1981));
see also Jarrell v. Monsanto Co., 528
N.E.2d 1158, 1166 (Ind. Ct. App. 1988),
trans. denied, 555 N.E.2d 453 (Ind.
1990).

3.   Discharge of Duty to Warn


  Next, Graco contends that even if it had
a duty to warn Ritchie of the dangers
inherent in the use of high pressure
pumps, it discharged this duty by
providing Redman with instruction manuals
that detailed the risks inherent in
improper use of the spray pumps. Although
the duty to warn end users of potential
dangers is generally non-delegable,
Indiana law does recognize an exception
to this general rule. See Natural Gas
Odorizing, 685 N.E.2d at 163. The
"sophisticated intermediary" defense
provides that there is no duty to warn
"when the product is sold to a
’knowledgeable or sophisticated
intermediary’ whom the manufacturer has
adequately warned." Taylor v. Monsanto,
150 F.3d 806, 808 (7th Cir. 1998). In
order to determine whether the
sophisticated intermediary defense
applies, several factors are to be
weighed:

[T]he likelihood or unlikelihood that
harm will occur if the intermediary does
not pass on the warning to the ultimate
user, the trivial nature of the probable
harm, the probability or improbability
that the particular intermediary will not
pass on the warning and the ease or
burden of the giving of the warning by
the manufacturer to the ultimate user.

Natural Gas Odorizing, 685 N.E.2d at 163
(citing Dole Food v. N.C. Foam Indus.
Inc., 935 P.2d 876, 880 (Ariz. Ct. App.
1996)).


  In addition, the intermediary must have
a level of sophistication and knowledge
equal to that of the manufacturer, and
the manufacturer must be able to
reasonably rely on the intermediary to
warn the ultimate user. See id. at 164.
Graco argues that it has satisfied its
duty to warn by providing on-pump
warnings and instruction manuals with the
equipment it supplied. However, whether a
manufacturer has adequately discharged
its duty to warn to qualify for the
sophisticated intermediary defense is a
question for the trier of fact. See Dole
Food, 935 P.2d at 881. In the case at
hand, there are genuine issues of fact
concerning the presence of labels on the
pumps that Graco supplied, and whether it
was reasonable for Graco to rely on
Redman to warn the ultimate users of
danger. Thus, Graco may not prevail on
summary judgment on this issue.

4.   Proximate Cause


  Finally, Graco argues that summary
judgment is proper because the absence of
on-pump warnings was not the proximate
cause of Ritchie’s injection injury.
Proximate cause, however, is an issue for
the factfinder, see MacDonald v. Maxwell,
655 N.E.2d 1249, 1251 (Ind. Ct. App.
1996), unless "only one conclusion can be
drawn from the facts." City of
Indianapolis Hous. Auth. v. Pippin, 726
N.E.2d 341, 347 (Ind. Ct. App. 2000).
Graco claims that Brandenburger’s action
in turning on the pump while Ritchie was
running her hands over the hose was an
intervening cause of Ritchie’s injury.
While it is possible that a reasonable
factfinder might find that
Brandenburger’s action was not
foreseeable, and thus the absence of
warnings was not the proximate cause of
Ritchie’s injury, this conclusion is not
mandated by the facts of this case. Since
more than one conclusion can be drawn,
Graco may not prevail on summary judgment
on the issue of proximate cause.

D.   Ritchie’s Claims Against Glidden
1.   The Section 33-1-1.5-3 Claim


  Like her claim against Graco, Ritchie’s
first claim against Glidden is also based
on the failure to warn under the Act.
Ritchie, however, faces an additional
obstacle in her suit against Glidden. The
Act provides that "a product liability
action . . . may not be commenced or
maintained against any seller of a
product . . . unless the seller is a
manufacturer of the product or of the
part of the product alleged to be
defective." Ind. Code Ann. sec. 33-1-1.5-
3(c) (West 1996). The Act defines
"manufacturer" as a person or an entity
who "designs, assembles, fabricates,
produces, constructs, or otherwise
prepares a product . . . before the sale
of the product to a user or consumer,"
but sellers who possess "actual knowledge
of a defect in a product" are also deemed
to be manufacturers for the purposes of
the Act. Ind. Code Ann. sec. 33-1-1.5-2(3)
(West 1996).


  Glidden does not manufacture pumps
within the meaning of the statute. Thus,
absent evidence of actual knowledge,
Glidden may not be deemed a
"manufacturer" under the Act. Even
assuming that Ritchie is correct that the
accident pump was one of the pumps that
Pieri delivered in January, Ritchie has
not presented any evidence that Pieri had
actual knowledge that the pumps lacked on
pump warning labels. Ritchie claims that
Pieri said that there were no labels on
the pumps that he delivered in January,
but this is a mischaracterization of
Pieri’s deposition testimony. At one
point in his deposition, Pieri
specifically testified that he did not
recall whether the pump had warnings or
not. In an unrelated exchange, he also
testified as follows:


Q:     Was there a warning with the pump?

A:     In the manual?

Q:     Yes.

A:     Yes.

Q:     Okay, was there a warning with the
spray gun?

A:     Yes.

Q:     Do you recall what the warning on
the pump said?

A:     It wasn’t on the pump, it was in
the manual.

Q:     In the manual with the pump?

A:     No.

(Pieri Dep. at 75)


  This confusing exchange does not show
that Pieri had actual knowledge of the
lack of warnings on the pump, especially
considering that Ritchie provides no
other evidence to support her claim that
Glidden had actual knowledge that it was
supplying Redman pumps without warning
labels. Accordingly, Ritchie has not put
forth sufficient evidence to show that
Glidden is a manufacturer as defined by
the Act. Thus, she may not recover
against Glidden for claims based on
Section 33-1-1.5-3.

2. The Restatement (Second) of
Torts Section 388 Claim


  In addition to her claim against Glidden
as a manufacturer under the Act, Ritchie
also claims that she is entitled to
recover from Glidden as the supplier of
the accident pump. Ritchie bases her
contention on the fact that the
Restatement (Second) of Torts imposes
liability on a supplier of goods that are
known to be dangerous for an intended use
if the supplier does not use reasonable
care to warn the consumer of the dangers
of the chattel. See Restatement (Second) of
Torts sec.sec. 388, 392 (1965). In
McGlothlin v. M & U Trucking, Inc., 688
N.E.2d 1243 (Ind. 1997), the Indiana
Supreme Court embraced section 388 of the
Restatement (Second) of Torts as a proper
vehicle for imposing liability on
suppliers of dangerous chattels. Id. at
1245.


  The Restatement provides that a supplier
is "any person who for any purpose or in
any manner gives possession of a chattel
for another’s use, or who permits another
to use or occupy it while it is in his
own possession or control." See Bogard v.
Mac’s Restaurant, Inc., 530 N.E.2d 776,
779 n.3 (Ind. Ct. App. 1988) (quoting
Restatement (Second) of Torts sec. 388 cmt.
c (1965)). A supplier is liable under
section 388 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 (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.

Downs v. Panhandle E. Pipeline Co., 694
N.E.2d 1198, 1207-08 (Ind. Ct. App. 1998)
(quoting Restatement (Second) of Torts sec.
388 (1965)). Similarly, section 392
imposes liability on "[o]ne who supplies
to another, directly or through a third
person, a chattel to be used for the
supplier’s business purposes" if the
supplier fails to "exercise reasonable
care to make the chattel safe for the use
for which it is supplied" or "exercise
reasonable care to discover its dangerous
condition or character, and to inform
those whom he should expect to use it."
Restatement (Second) of Torts sec. 392
(1965).

 Glidden argues that it is not a supplier
within the meaning of section 388 because
Ritchie has not shown that it supplied
the pump in question. The district court
agreed and found that the accident pump
was not one of the pumps delivered by
Pieri in January because the undisputed
testimony established that the accident
pump was not a cart-mounted pump.
However, Ritchie does not allege that the
accident pump was a cart-mounted pump.
Instead, she challenges Pieri’s testimony
that the pumps that he delivered in
January were cart-mounted pumps. As
discussed above, Ritchie has indeed shown
that a genuine issue of fact exists
regarding whether the pumps that Pieri
delivered in January were cart-mounted
pumps.


  The district court also found that
Ritchie had not put forth any other
evidence showing that the pump was
supplied by Glidden. Specifically, the
district court noted that Ritchie had not
produced the offending pump, and thus
could not show its origin. We believe,
however, that Ritchie can survive summary
judgment without producing the offending
pump. As Ritchie points out, the pump was
never in her control or possession, and
what Redman decided to do with the pump
after the injury was not within her
control.


  As discussed in Part II.C.2, there is a
genuine issue of fact as to whether the
accident pump was one of the pumps
delivered by Glidden in January. This,
coupled with the fact that Ritchie has
put forth sufficient evidence
demonstrating Glidden’s knowledge of the
dangers inherent in the use of high
pressure painting pumps is sufficient to
defeat Glidden’s motion for summary
judgment.

III.   Conclusion

  Because we find that issues of fact
remain in Ritchie’s claims against Graco
and Glidden, we REVERSE the judgment of
the district court and REMAND for
proceedings consistent with this opinion.




/1 Defendants claim that Ritchie testified
that she had been using the same pump
since September of 1995. Ritchie’s actual
deposition testimony is as follows:

Q: From September of ’95 up until the
time of your accident, was the pump ever
changed out that you recall?

A: You mean taken away and brought
back?

Q: Yeah, or you know, something else
put in?

A:   A different thing put in?

Q:   Right.

A:   No.

Q:   It was always the same pump?

A: Okay. I can’t remember if it was ever
taken out and brought back in. But I
always used the same pump, whether it was
the same pump or a different pump that
looks the same, it was always the same
type of pump.

(Ritchie Dep. at 28).

/2Redman employees referred to both cart-
mounted and drum-mounted pumps as "Graco
Bulldogs."

/3 Ritchie initially filed suit against
Redman and Redman’s parent company,
Champion Enterprises, in addition to
Graco and Glidden. On November 24, 1999,
Ritchie agreed to voluntarily dismiss
Champion from the suit. Redman moved for
dismissal, and the district court granted
the motion, finding that Ritchie’s claims
against Redman were barred by the
exclusivity provision of the Indiana
Workers’ Compensation Act. Ritchie did
not appeal the district court’s finding.

/4 Although the Indiana Product Liability
Act was repealed and recodified on July
1, 1998, the prior version cited above is
controlling because the plaintiff was
injured and filed suit prior to the
effective date of the amendment. The
recodification can now be found at Ind.
Code sec.34-20-1 to 9. Relevant
definitions of several terms used in the
act are now found in Ind. Code sec.34-6.

/5 Section 33-1-1.5-3 of the Act entitled
"Strict Liability Actions" provides that:
a person who sells, leases, or otherwise
puts into the stream of commerce any
product in a defective condition
unreasonably dangerous to any user or
consumer . . . is subject to liability
for physical harm caused by that product
to the user or consumer . . . if that
user or consumer is in the class of
persons that the seller should reasonably
foresee as being subject to the harm
caused by the defective condition, and
if:

(1) the seller is engaged in the business
of selling such a product; and

(2) the product is expected to and does
reach the user or consumer without
substantial alteration in the condition
in which it is sold by the person sought
to be held liable under this chapter.

Ind. Code Ann. sec. 33-1-1.5-3 (West 1996).

/6 Under Indiana law, "there is no doctrinal
distinction between the negligent and
strict liability failure-to-warn
actions." Taylor v. Monsanto Co., 150
F.3d 806, 808 (7th Cir 1998). Therefore,
Ritchie must show that the product was in
a defective condition--that there was a
duty to warn that was not fulfilled--in
order to recover under the Act.

/7 Pieri recorded the model number of the
pump he delivered in January as 224-619.
Ritchie alleges that Pieri concedes that
this model number does not match the
number for a cart-mounted pump. Because
Pieri’s deposition testimony on this
issue is somewhat confusing, we do not
rely on it in making our finding.
