Jarrell v. Monsanto Co.

SHIELDS, Presiding Judge,

concurring in result.

I concur in result only, because I disagree with majority’s analysis of Indiana’s product liability statute. I express the areas of disagreement by setting forth my own analysis of that statute.

The crux of Indiana’s statute is found at IC 33-1-1.5-8 (West Supp.1988) [“§ 3”], the section that imposes liability:

(a) One 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 his property is subject to liability for physical harm caused by that product to the user or consumer or to his property 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.

(b) The rule stated in subsection (a) applies although:

(1) the seller has exercised all reasonable care in the preparation, packaging, labeling, instructing for use, and sale of his product; and

(2) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

This section effectively adopts RESTATEMENT (SECOND) OF TORTS § 402A [“§ 402A”]. As such, the phrases “product in a defective condition” and “unreasonably dangerous to any user or consumer,” found in both § 8 and § 402A, impose liability only for a product in a defective condition that is also unreasonably dangerous. However, unlike § 402A, the Indiana products liability statute includes definitions. Thus IC 33-l-1.5-2.5(a) (West • Supp.1988) [“2.5(a)”] defines the phrase “defective condition” as follows:

A product is in a defective condition under this chapter if, at the time it is conveyed by the seller to another party, it is in a condition:

(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and

(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.

Because that definition includes the unreasonably dangerous aspect of § 402A and § 3, the phrase “unreasonably dangerous” as it appears in § 3 is redundant; the phrase “defective condition” by definition includes the concept of unreasonably dangerous, and I use that term accordingly.

Section 3 imposes liability upon the seller of a defective product irrespective of the fact that the “seller has exercised all reasonable care in the preparation, packaging, labeling, instructing for use, and sale of his product.” Thus, so far, the Indiana statute is a true strict liability statute in that the focus is upon the condition of the product and not upon the seller’s conduct. Knowledge of the unreasonable danger to foreseeable users is imputed to the seller. 1

However, the legislature made an exception to the strict liability concept when it enacted IC 33-l-1.5-2.5(b) (West Supp. 1988) [“2.5(b)”]. 2 This subsection includes *1170 the failure 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 ... available to the user or consumer” within the definition of the word “defective” in the phrase “defective condition”. Id. The conditions of § 2.5(b), unlike those of § 2.5(a), are not associated with strict liability because they include reasonable warnings and reasonable diligence by the seller. Hence, the emphasis or focus of § 2.5(b) is upon the seller’s conduct, not the product, just as in a negligence action. However, the change in focus from the product (in § 2.5(a)) to the seller’s conduct (in § 2.5(b)) is not total — it includes only the adequacy of the warning (“reasonable warning”) and the feasibility of providing it to the user or consumer (“exercising reasonable diligence”). Critically, § 2.5(b) does not incorporate the negligence concept that the seller must know or should have known of the danger to foreseeable users. Instead, the seller’s imputed knowledge of the danger to foreseeable users is preserved by omission. To this extent § 2.5(b) incorporates some concepts of strict liability and some concepts of negligence liability.

Therefore, “defective condition” includes both a defect in the physical product under § 2.5(a) and a product that has no physical defect but instead is unaccompanied by warnings of danger when the seller, by exercising reasonable diligence, could have made such warnings available to the user or consumer. 3 Thus, a product that is defective under § 2.5(b) is in a defective condition under § 2.5(a) if the conditions of § 2.5(a)(1) and (2) are also met. Hence, “defective condition” includes design defects, manufacturing defects and warning defects. I emphasize that before an inadequate warning or no warning can constitute a defective condition for which liability is imposed by § 3, the conditions of both § 2.5(a) and § 2.5(b) must be met. Under this analysis there is no conflict between § 2.5 and § 3(b)(1) because an inadequate warning, or no warning, by definition, does not constitute a defective condition until the seller’s conduct is not reasonable in one of two aspects: in the adequacy of his warning or in his efforts to make the warning available to the consumer or user.

To summarize, § 2.5(a) (together with § 3) imposes strict liability upon products with design or manufacturing defects, imputing the seller’s knowledge of the unreasonable danger, and excludes the reasonableness of the seller’s conduct as a consideration. However, § 2.5(b) (together with § 2.5(a) and § 3) imposes liability upon products with warning defects, imputing the seller’s knowledge of the unreasonable danger (as in strict liability) but evaluating the reasonableness of his warning efforts under a negligence standard. Therefore, I differ with the majority’s view expressed in footnote 6 that § 2.5(b) is merely the restatement of a negligence action. Also, I cannot fully concur with the majority’s discussion appearing on pages 14-17 of the slip opinion although I concur in their result.

. However, because of the state of the art defense codified at IC 33-l-1.5-4(b)(4) the knowledge chargeable to the seller can only be that of the "generally recognized state of the art at the time the product was designed, manufactured, packaged, and labeled.”

. It may well be that in adopting § 2.5(b) the legislature intended to codify a continuing duty by the seller to use reasonable care (a negligence standard) to give reasonable warnings of danger in a product discovered or discoverable after the initial sale of the product. For exam *1170 ple, § 2.5(b) does not contain the limiting language, "at the time it is conveyed by the seller to another party" found in § 2.5(a). However, that intent is defeated by the language in § 2.5(b), "properly package or label,” because a seller obviously cannot properly package or label after the initial sale.

. Of course, a product could have both a manufacturing or design defect under § 2.5(a) and a warning defect under § 2.5(b).