Crawfordsville Town & Country Home Center, Inc. v. Odilon Elias Cordova, Jamie Busse, and Do It Best Corp

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.
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[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.
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Figure 1
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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
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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.
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[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
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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
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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.
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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.
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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
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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
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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.
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[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.
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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
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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
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(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
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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.
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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.
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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.
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