                                                                             Jun 23 2015, 1:19 pm




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Richard T. Mullineaux                                      Matthew J. Schad
Crystal G. Rowe                                            George A. Budd
Kightlinger & Gray, LLP                                    Schad & Schad, P.C.
New Albany, Indiana                                        New Albany, Indiana
Thomas H. Davis
Stinson Leonard Street, LLP
Kansas City, Missouri



                                            IN THE
    COURT OF APPEALS OF INDIANA

Heritage Operating, L.P. d/b/a                             June 23, 2015
Empire Gas,                                                Court of Appeals Case No.
                                                           88A01-1410-CT-440
Appellant-Defendant,
                                                           Appeal from the Washington
                                                           Superior Court.
        v.
                                                           The Honorable Frank Newkirk, Jr.,
                                                           Judge.
Lois A. Mauck and Ralph
                                                           Cause No. 88D01-1304-CT-236
Thomas,
Appellees-Plaintiffs.



Riley, Judge




Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015                Page 1 of 17
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Heritage Operating, L.P. d/b/a Empire Gas (Empire

      Gas), appeals the trial court’s denial of summary judgment in favor of

      Appellees-Plaintiffs, Lois A. Mauck (Mauck) and Ralph D. Thomas (Thomas)

      (collectively, Tenants).


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                                      ISSUE

[3]   Empire Gas raises three issues on appeal, which we consolidate and restate as

      the following single issue: Whether Empire Gas is entitled to judgment as a

      matter of law on the Tenants’ product liability claim.


                            FACTS AND PROCEDURAL HISTORY

[4]   Edward E. Eiler and Ronda K. Eiler (the Eilers) are the owners of the real

      property located at 6609 East Hurst Road in Pekin, Washington County,

      Indiana (the Property). A mobile home was situated on the Property, which the

      Eilers rented to Jesse Middleton (Middleton) from approximately the summer

      of 2010 until Middleton passed away in July of 2011. On October 14, 2010,

      Middleton entered into a Propane Supply Agreement with Empire Gas. At that

      time, Empire Gas delivered 250 gallons of propane to the Property and

      performed a safety inspection to check that there were no propane leaks and

      that the furnace appeared to be operating normally. As part of the safety check,

      the service technician, David Jenkins (Technician Jenkins), demonstrated to

      Middleton how to turn off the gas in the event of an emergency, performed an




      Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 2 of 17
      odor test, and provided Middleton with a packet of safety information.

      Throughout the following winter months, the furnace kept the mobile home

      “[w]arm as toast” and functioned without incident. (Appellant’s App. p. 75).


[5]   When Middleton passed away in July of 2011, the propane tank was 47% full.

      On July 11, 2011, Empire Gas refunded the cost of the unused propane to

      Middleton’s daughter, thereby resuming ownership of the propane left in the

      tank. Empire Gas also placed a lock on the POL valve—which controls the

      release of gas from the propane tank—in order to prevent any unauthorized

      hookups or pilferage. A red tag on the POL lock cautioned any reader as to the

      danger of propane and prohibited unauthorized individuals from tampering

      with or removing the lock.


[6]   In the spring of 2011, Thomas was released from prison, and he subsequently

      moved in with his father, Benny Thomas (Benny). Soon thereafter, Thomas

      began dating a co-worker, Mauck, and a few months later, they decided to

      move in together. In mid-October of 2011, Thomas read a newspaper

      advertisement announcing that the Property was available for lease. He

      contacted the Eilers and, after inspecting the mobile home, agreed to rent the

      Property for $400 per month. During Thomas’ initial visit to the Property, Mr.

      Eiler showed him the propane tank and indicated that the gas service provider,

      Empire Gas, had installed a lock on the tank and would need to be contacted to

      hook up the gas line. It is undisputed that neither the Eilers nor the Tenants

      ever contacted Empire Gas to remove the lock and initiate service, inspect the

      tank, or pay for propane.




      Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 3 of 17
[7]   On the morning of October 23, 2011, the Tenants returned home from a

      weekend trip to visit Mauck’s son. Up until that point, the Tenants had relied

      on an electric heater, but the cooling weather prompted Mauck to ask Thomas

      about using the furnace. That afternoon, Thomas went outside and discovered

      that the lock had been removed from the propane tank, that the gas line had

      been connected, and that the valve and been turned on. As such, he opened the

      gas valve inside the mobile home and, with Mauck’s assistance, attempted to

      light the pilot on the furnace. Their attempt was unsuccessful, so Thomas

      drove over to Benny’s house and brought him back to help. After fifteen to

      twenty minutes of holding the pilot switch, Thomas and Benny finally

      succeeded in igniting the pilot light. During that time, the Tenants noticed “just

      a little” odor of gas but did not smell anything once the furnace was operating.

      (Appellant’s App. pp. 61, 131).


[8]   By 4:00 p.m., the furnace had been running for about three hours. Benny and

      the Tenants were in the living room when Mauck walked over to the counter to

      retrieve her pack of cigarettes. As soon as she lit one, the trailer exploded.

      Thomas shoved Mauck out the front door and helped extinguish the flames

      engulfing her body. Moments later, Benny—who had been hurled out of his

      wheelchair—came crawling out of the trailer. Thomas summoned for help, and

      emergency personnel responded. Mauck was air-lifted to a hospital in

      Louisville, Kentucky, and Thomas and Benny were transported by ambulance.

      Mauck was hospitalized for six weeks, during which time she received skin

      grafts on her arms, hands, and neck to treat her third degree burns. Thomas




      Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 4 of 17
       sustained severe burns on his hands. Empire Gas investigated the scene and

       concluded that the lock on the POL valve had been tampered with.

       Additionally, the propane tank did not explode, and Empire Gas found that the

       gas line out of the tank did not fail.


[9]    On April 9, 2013, the Tenants filed a Complaint against Empire Gas, asserting

       product liability claims of negligence, strict liability, and breach of warranties.1

       On April 11, 2014, Empire Gas filed a motion for summary judgment, claiming

       that there were no genuine issues of material fact and that it was entitled to

       judgment as a matter of law because it owed no legal duty to the Tenants; it

       does not manufacture propane; and because the propane it sells is presumed

       non-defective based on compliance with applicable codes and standards. On

       June 12, 2014, the trial court conducted a hearing and issued an Order on June

       23, 2014, summarily denying Empire Gas’ motion.


[10]   Empire Gas now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                               I. Standard of Review

[11]   Empire Gas appeals from the trial court’s denial of its motion for summary

       judgment. “The purpose of summary judgment is to terminate litigation which

       can be determined as a matter of law.” Bloemker v. Detroit Diesel Corp., 720



       1
         The Eilers were also named as defendants in the Tenants’ lawsuit. On November 24, 2014, the trial court
       dismissed the Tenants’ Complaint against the Eilers with prejudice. Although not a party to this appeal, facts
       pertaining to the Eilers have been included where appropriate.




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015                         Page 5 of 17
       N.E.2d 753, 756 (Ind. Ct. App. 1999), reh’g denied, trans. denied. On appeal, our

       court reviews a grant or denial of summary judgment de novo, utilizing the same

       standard applied by the trial court. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.

       2009). We will find that summary judgment is appropriate “if the designated

       evidentiary matter shows 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.” Ind.

       Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect the outcome

       of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the

       parties’ differing accounts of the truth, or if the undisputed material facts

       support conflicting reasonable inferences.” Williams, 914 N.E.2d at 761

       (citation omitted).


[12]   The party moving for summary judgment bears the initial burden of

       demonstrating “the absence of any genuine issue of fact as to a determinative

       issue.” Id. Thereafter, the burden shifts to the non-movant to present “contrary

       evidence showing a triable issue for the trier of fact.” Id. at 761-62 (internal

       quotation marks omitted). On review, we consider only the materials

       designated to the court by the parties, and we do not assess evidentiary weight

       or witness credibility. Webb v. Jarvis, 575 N.E.2d 992, 994 (Ind. 1991), reh’g

       denied. We will accept as true any “[r]ational assertion of fact and reasonable

       inferences therefrom” and will resolve any doubt as to the existence of a fact or

       inference in favor of the non-moving party. Id. at 994-95.




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015     Page 6 of 17
                                              II. Product Liability Act

[13]   Indiana’s Product Liability Act (Act) governs any action that is “brought by a

       user or consumer . . . against a manufacturer or seller . . . 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. In particular, the

       Act 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 or to the user’s or consumer’s
               property is subject to liability for physical harm caused by that product
               to the user or consumer or to the user’s or consumer’s property if:
               (1) 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;
               (2) the seller is engaged in the business of selling the product; and
               (3) the product is expected to and does reach the user or consumer
               without substantial alteration in the condition in which the product is
               sold by the person sought to be held liable under [the Act].
       I.C. § 34-20-2-1. A product may be considered defective due to “a

       manufacturing flaw, a design defect, or a failure to warn of dangers in the

       product’s use.” Cook v. Ford Motor Co., 913 N.E.2d 311, 319 (Ind. Ct. App.

       2009), trans. denied; see I.C. §§ 34-20-4-1; -2.


[14]   In this case, the Tenants proceeded under the theories of negligence, strict

       liability, and breach of express and/or implied warranties, and Empire Gas

       moved for summary judgment on all three theories.2 A negligence action



       2
         Regarding the Tenants’ breach of warranties claim, we note that a defective product may give rise to claims
       under both the Act and the Uniform Commercial Code (UCC). See Hitachi Constr. Mach. Co. v. AMAX Coal




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015                        Page 7 of 17
       focuses on “the reasonableness of the [seller’s] action in selling the article

       without a warning[,]” whereas a strict liability case concerns “the condition

       (dangerousness) of an article which is sold without any warning.” Ortho Pharm.

       Corp. v. Chapman, 388 N.E.2d 541, 550 (Ind. Ct. App. 1979).


                                                     A. Negligence

[15]   In Count II of their Complaint, the Tenants alleged that their injuries stemmed

       from Empire Gas’ negligence. Specifically, the Tenants asserted that Empire

       Gas failed “to adequately and reasonably warn users” regarding “the

       propensities and deficiencies of propane odorized with ethyl mercaptan” and

       the need to purchase a propane gas detector. (Appellant’s App. pp. 17-19). For

       a product liability action grounded in the failure to provide adequate warnings

       or instructions, the duty to warn is two-fold: (1) to provide adequate

       instructions for safe use, and (2) to provide a warning as to dangers inherent in

       improper use.” Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind.

       Ct. App. 1997), reh’g denied, trans. denied; see I.C. §§ 34-20-2-2; -4-2.


[16]   In order to prevail on the negligence claim, the Tenants must establish: (1) a

       duty owed by Empire Gas to the Tenants; (2) a breach of that duty by Empire



       Co., 737 N.E.2d 460, 465 (Ind. Ct. App. 2000), reh’g denied, trans. denied. The UCC, which has been codified
       at Indiana Code article 26-1, provides a remedy for a seller’s breach of implied warranties of merchantability
       and fitness for a particular use. See I.C. §§ 26-1-2-314; -315. Yet, several decisions by our court and Indiana
       federal courts have determined “that tort-based breach-of-warranty claims have been subsumed into the
       [Act].” Kovach v. Caligor Midwest, 913 N.E.2d 193, 197 (Ind. 2009), reh’g denied. Whereas a breach of
       warranty claim that is based on contract may be raised under the UCC independently of the Act, a warranty
       claim that sounds in tort is “redundant with strict liability claims under the [Act].” Atkinson v. P&G-Clairol,
       Inc., 813 F. Supp. 2d 1021, 1024 (N.D. Ind. 2011). Because the Tenants have not pleaded contract-based
       warranty breaches, the warranties claim must be merged into the issue of strict liability.




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015                           Page 8 of 17
       Gas; and (3) an injury to the Tenants proximately caused by the breach. See

       Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). It is well

       established that negligence cases are particularly fact sensitive and, therefore,

       not typically suitable for summary judgment. Cook, 913 N.E.2d at 320.

       Nonetheless, a party may prevail on a summary judgment motion by

       establishing “that the undisputed material facts negate at least one element of

       [the negligence claim].” Goldsberry v. Grubbs, 672 N.E.2d 475, 477 (Ind. Ct.

       App. 1996), trans. denied. Here, Empire Gas contends that it is entitled to

       judgment as a matter of law because it has negated the duty element. “Absent a

       duty, there can be no breach of duty and thus no negligence or liability based

       upon the breach.” Rushford, 868 N.E.2d at 810.


[17]   “Whether the law recognizes any obligation on the part of a particular

       defendant to conform his conduct to a certain standard for the benefit of the

       plaintiff is a question of law[,]” which may be resolved by the court. Webb, 575

       N.E.2d at 995. However, determining whether a duty exists “is not without

       difficulty” as “no universal test for it ever has been formulated.” Gariup Const.

       Co. v. Foster, 519 N.E.2d 1224, 1227 (Ind. 1988) (quoting PROSSER & KEETON

       ON TORTS      § 53 (5th ed. 1984)). Historically, courts have found that a duty

       exists where “reasonable persons would recognize it and agree that it exists.”

       Id. (quoting PROSSER & KEETON, supra). In Webb, 575 N.E.2d at 995, our

       supreme court developed a useful tool for analyzing whether a duty exists,

       which requires the balancing of three factors: “(1) the relationship between the

       parties, (2) the reasonable foreseeability of harm to the person injured, and (3)




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 9 of 17
       public policy concerns.” In the present case, the parties agree that the three-part

       Webb test is the proper analysis for determining whether Empire Gas owed a

       duty of care to the Tenants. We disagree.


[18]   The Webb test is applicable “only in those instances where the element of duty

       has not already been declared or otherwise articulated.” N. Ind. Pub. Serv. Co. v.

       Sharp, 790 N.E.2d 462, 465 (Ind. 2003). A long line of Indiana case law holds

       that gas companies have a duty “to use reasonable care in the distribution of

       gas” because it is “a dangerous instrumentality.” Palmer & Sons Paving, Inc. v. N.

       Ind. Pub. Serv. Co., 758 N.E.2d 550, 554 (Ind. Ct. App. 2001) (further noting that

       the gas company’s duty requires using “reasonable care in operating its lines so

       as to prevent the escape of gas in such quantities as to become dangerous to life

       and property”). As Technician Jenkins explained, one risk of liquid propane is

       that “[i]t’s combustible.” (Appellant’s App. p. 145). A gas company’s duty

       extends to “the public generally, its customers, and third persons who might

       reasonably be foreseen to be affected by the utility’s provision of service.” S. E.

       Ind. Natural Gas Co. v. Ingram, 617 N.E.2d 943, 951 (Ind. Ct. App. 1993).

       Embodied within this duty of care is “the so-called duty to warn.” Id. at 953.


[19]   The case at hand presents a unique inquiry because it is undisputed that the

       Tenants never requested service or purchased any propane from Empire Gas.

       Furthermore, the designated evidence establishes that when Empire Gas

       contracted with Middleton, the previous tenant, it provided him with the

       necessary safety information and warnings and also conducted a safety check.

       Thereafter, the Property became vacant, and Empire Gas barred access to the




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 10 of 17
       propane left in the tank by placing a lock on the POL valve. Unbeknownst to

       Empire Gas, the Tenants subsequently moved in, and an unauthorized party

       tampered with the lock and reconnected the gas line to the mobile home.

       Accordingly, because the Tenants were not customers, and the public at large

       was not affected by the propane supply to the mobile home, the existence of any

       duty is contingent upon whether it was reasonably foreseeable that the Tenants

       “might be injured by the [propane] gas.” Richmond Gas Co. v. Baker, 45 N.E.

       1049, 1050 (Ind. 1897).


[20]   Foreseeability is a component of both the duty and proximate cause elements of

       negligence, and each element requires a separate and distinct foreseeability

       analysis. For proximate cause, foreseeability entails a hindsight evaluation of

       “the particular circumstances of an incident after the incident occurs.”

       Goldsberry, 672 N.E.2d at 479. Thus, negligent conduct “is the proximate cause

       of an injury if the injury is a natural and probable consequence which, in light of

       the circumstances, should reasonably have been foreseen or anticipated.” Id.

       Proximate cause is usually a question of fact for the jury. Id. In turn,

       foreseeability for the purpose of finding a legal duty permits only “a general and

       broad analysis of the plaintiff and the harm involved, without regard to the facts

       of the actual occurrence.” Id. This appeal concerns solely the “lesser inquiry”

       of foreseeability in the context of a duty. Id.


[21]   Ordinarily, the foreseeability that is required to invoke a duty “depends upon

       the power to prevent injury.” Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d

       248, 250 (Ind. 1996). In this case, Empire Gas was not afforded an opportunity




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 11 of 17
       to administer warnings or to conduct its usual safety inspection prior to the

       explosion. See I.C. § 34-20-4-2 (instructing that a seller has a duty to provide

       reasonable warnings and instructions insofar as such warnings can be given in

       the exercise of reasonable diligence). Nevertheless, Empire Gas maintained a

       propane tank—which it knew to be approximately half full—on the vacant

       Property. Without considering the specific facts of the case, we find that it was

       reasonably foreseeable that a new tenant would eventually occupy the Property,

       and that the future occupant could be injured by misuse of the propane or other

       undetected defect.


[22]   As a distributor of gas, we hold that Empire Gas owed a general duty of

       reasonable care to any persons who might be injured by its propane, which

       includes the Tenants occupying the Property. However, we note that the mere

       existence of a duty does not guarantee that the Tenants will prevail on their

       negligence claim at trial. Our analysis does not take into account, in part, the

       fact that a third party tampered with the lock and reconnected the gas line or

       that the Tenants misappropriated Empire Gas’ propane; these factors implicate

       the other elements of negligence—i.e., breach of duty and proximate cause.

       Whether Empire Gas exercised the requisite degree of care and caution in light

       of all of the particular circumstances is a question that is best-suited for a jury or

       fact-finder to decide. See S. Ind. Gas Co. v. Tyner, 97 N.E. 580, 585 (Ind. App.

       1912). Because we conclude that Empire Gas did not negate the duty element,

       the trial court properly denied summary judgment on the issue of negligence.

       We remand for a resolution of this issue on the merits.




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 12 of 17
                                                 B. Strict Liability

[23]   Count IV of the Tenants’ Complaint alleges that Empire Gas is strictly liable for

       their injuries because its propane gas and odorant “were in an unreasonably

       dangerous and defective condition at the time Empire [Gas] manufactured

       and/or distributed and/or offered for sale and use.” (Appellant’s App. p. 20).

       In order to prevail on a strict liability action, a plaintiff must demonstrate that

       “(1) the product was defective and unreasonably dangerous; (2) the defective

       condition existed at the time the product left the defendant’s control; and (3) the

       defective condition was the proximate cause of the plaintiff’s injuries.”

       Rushford, 868 N.E.2d at 810; see I.C. § 34-20-4-1. “The requirement that the

       product be in a defective condition focuses on the product itself while the

       requirement that the product be unreasonably dangerous focuses on the

       reasonable expectations of the consumer.” Welch v. Scripto-Tokai Corp., 651

       N.E.2d 810, 814 (Ind. Ct. App. 1995), reh’g denied.


[24]   Notwithstanding whether the propane gas at issue was defective or

       unreasonably dangerous for its expected use, Empire Gas argues that, “as a gas

       retailer,” it cannot be held strictly liable under the Act. (Appellant’s Br. p. 25).

       Pursuant to Indiana Code section 34-20-2-3, “[a] product liability action based

       on the doctrine of strict liability in tort may not be commenced or maintained

       against a seller . . . unless the seller is a manufacturer of the product or of the

       part of the product alleged to be defective.” See Kennedy v. Guess, Inc., 806

       N.E.2d 776, 780 (Ind. 2004), reh’g denied.




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 13 of 17
[25]   For purposes of the Act, a “seller” is defined as “a person engaged in the

       business of selling or leasing a product for resale, use, or consumption.” I.C. §

       34-6-2-136. On the other hand, a “manufacturer” is defined as “a person or

       entity who designs, assembles, fabricates, produces, constructs, or otherwise

       prepares a product or a component part of a product before the sale of the

       product to a user or consumer.” I.C. § 34-6-2-77. A “manufacturer” may also

       include a seller who:

               (1) has actual knowledge of a defect in a product;
               (2) creates and furnishes a manufacturer with specifications relevant to
               the alleged defect for producing the product or who otherwise
               exercises some significant control over all or a portion of the
               manufacturing process;
               (3) alters or modifies the product in any significant manner after the
               product comes into the seller’s possession and before it is sold to the
               ultimate user or consumer;
               (4) is owned in whole or significant part by the manufacturer; or
               (5) owns in whole or significant part the manufacturer.
       I.C. § 34-6-2-77.


[26]   In its motion for summary judgment, Empire Gas asserted that it is “not a

       ‘manufacturer’ of the propane” and is, therefore, not strictly liable. (Appellant’s

       App. p. 31). Although Empire Gas’ designated evidence does not provide any

       support for this claim, the Tenants’ designated evidence includes the deposition

       of Technician Jenkins. According to Technician Jenkins, Empire Gas is in the

       business of “sell[ing] and distribut[ing] propane.” (Appellant’s App. p. 142).

       No evidence to the contrary was presented, nor was any evidence produced to

       demonstrate any of the statutory exceptions under which a seller could be

       deemed a manufacturer. See I.C. § 34-6-2-77. In fact, Technician Jenkins



       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015      Page 14 of 17
       clarified that Empire Gas does not add the odorant to the propane; rather, the

       odorant is added by the manufacturer before it is delivered to Empire Gas for

       resale. See I.C. § 34-6-2-77(3). Because the undisputed designated evidence

       establishes that Empire Gas is solely a retailer of propane—not a manufacturer,

       we conclude that there is no genuine issue of material fact. Accordingly,

       Empire Gas is entitled to judgment as a matter of law on the Tenants’ claim of

       strict liability. 3


                                                CONCLUSION

[27]   Based on the foregoing, we conclude that Empire Gas is not entitled to

       summary judgment on the Tenants’ claim of negligence because a gas company

       owes a common law duty of reasonable care in the distribution of its product.

       We further conclude that Empire Gas is entitled to summary judgment on the

       Tenants’ claim of strict liability because the undisputed material facts establish

       that Empire Gas is not a propane manufacturer.


[28]   Affirmed in part, reversed in part, and remanded for further proceedings.


[29]   Vaidik, C. J. concurs in result without separate opinion


[30]   Baker, J. concurs in part and dissents in part with separate opinion




       3
         Having determined that the Tenants cannot maintain a product liability action based on strict liability in
       tort because Empire Gas is not a manufacturer, we need not address whether the propane was presumed non-
       defective due to compliance with applicable codes, standards, and regulations. See I.C. § 34-20-5-1.




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015                      Page 15 of 17
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Heritage Operating, L.P. d/b/a                             Court of Appeals Case No.
                                                                  88A01-1410-CT-440
       Empire Gas,
       Appellant-Defendant,

               v.

       Lois A. Mauck and Ralph
       Thomas,
       Appellees-Plaintiffs.




       Baker, Judge, concurring in part and dissenting in part.

[31]   I respectfully dissent from the majority on the issue of negligence. To affirm the

       denial of summary judgment on this issue is, in my opinion, to elevate form

       over substance to an untenable degree.


[32]   To put the facts plainly, Empire Gas contracted with Middleton in 2010 to

       supply propane to the mobile home he was renting. It is undisputed that

       Empire Gas provided Middleton with all relevant instructions and safety

       information. Middleton passed away in July 2011, leaving the propane tank




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015              Page 16 of 17
       approximately half full. After his death, Empire Gas placed a lock on the POL

       valve to prevent any unauthorized use. It also placed a red tag on the lock

       cautioning any reader regarding the danger of propane. Entirely unbeknownst

       to Empire Gas, the plaintiffs began renting the mobile home in October 2011.

       Although the landlord directed the plaintiffs to call Empire Gas to hook up the

       gas line, the plaintiffs never did so. After the lock was mysteriously removed

       and the gas line mysteriously reconnected, the tragedy occurred.


[33]   As the majority notes, a gas company’s duty to use reasonable care extends to

       the public, its customers, “and third persons who might reasonably be foreseen

       to be affected by the utility’s provision of service.” S.E. Ind. Natural Gas Co.,

       617 N.E.2d at 951. In this case, only the latter category of third parties even

       arguably applies.


[34]   Here, Empire Gas did not know that the property was occupied after July 2011.

       Indeed, Empire Gas did not know that the plaintiffs existed. As a matter of

       law, I do not believe it is reasonably foreseeable that a new tenant would

       occupy the property without ever contacting Empire Gas to hook up the gas line. In

       my view, Empire Gas owed the plaintiffs no duty under these circumstances.

       Consequently, I would reverse the trial court’s denial of Empire Gas’s summary

       judgment motion on the issue of negligence.


[35]   I concur with the majority on the issue of strict liability.


[36]




       Court of Appeals of Indiana | Opinion | 88A01-1410-CT-440 | June 23, 2015   Page 17 of 17
