Fowler et al v. New Werner Co et al

Filing 53

OPINION AND ORDER re 31 MOTION (Partial) to Dismiss for Failure to State a Claim filed by Lowe's Home Centers Inc, Lowe's Companies Inc. The Motion is GRANTED with respect to the Plaintiffs' claims that assert common law theories of negligence, gross negligence, or recklessness and a post-sale duty to warn. The Motion is DENIED with respect to the Plaintiffs' Indiana Consumer Protection Act claim and Indiana Product Liability Act strict liability claim. The Plaintiffs' other Product Liability Act claims remain unaffected. Signed by Judge Robert L Miller, Jr on 6/10/14. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JERRY J. FOWLER AND MICHELE
FOWLER,
PLAINTIFFS,
VS.

WERNER CO. D/B/A NEW WERNER
CO., A DELAWARE CORPORATION, NEW
WERNER HOLDING CO. (DE), INC.
F/K/A NEW WERNER HOLDING CO.
(DE), LLC D/B/A WERNER
HOLDING CO., A DELAWARE
CORPORATION, LOWE’S COMPANIES,
INC., A NORTH CAROLINA
CORPORATION, AND LOWE’S HOME
CENTERS, INC., A NORTH CAROLINA
CORPORATION,
DEFENDANTS.

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CAUSE NO. 1:13-CV-126-RLM-RBC

OPINION and ORDER
This matter is before the court on a partial motion to dismiss filed by
defendants Lowe’s Companies, Inc. and Lowe’s Home Centers, Inc. The Lowe’s
defendants argue that several of the claims asserted by plaintiffs Jerry Fowler
and Michele Fowler fail to state a claim upon which relief may be granted. The
Fowlers oppose the motion.
In July 2007, the Fowlers purchased a Type III six-foot aluminum
Werner step ladder from the Lowe’s store located on Highway 14 in Fort Wayne.
On April 29, 2011, Mr. Fowler used the ladder for a painting project. During
the course of the project, he claims the ladder’s spreader or spreader arm

broke causing him to fall onto the ladder and the ground. As a result of the fall,
Mr. Fowler sustained physical injuries, including broken ribs, a lacerated
spleen, damaged kidneys, and damaged vertebrae. The Fowlers allege that the
Lowe’s defendants are liable for their injuries pursuant to the Indiana Product
Liability Act and common law theories of negligence, gross negligence, and/or
recklessness. The Fowlers also assert a claim under the Indiana Consumer
Protection Act.
A complaint must contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.” FED. R. CIV. P. 8(a)(2). Federal
Rule of Civil Procedure 12(b)(6) allows dismissal when the plaintiff fails “to
state a claim upon which relief can be granted.” “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). When evaluating a Rule 12(b)(6) motion to dismiss, the court views the
complaint in the light most favorable to the plaintiff by accepting all wellpleaded factual allegations to be true and drawing all inferences in the
plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).
The Lowe’s defendants argue that the following claims should be
dismissed: (1) any claim under common law theories of negligence, gross
negligence, and/or recklessness; (2) the Indiana Consumer Protection Act

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claim; (3) the strict liability claim under the Indiana Product Liability Act; and
(4) a post-sale duty to warn or recall claim.
To begin with, the Lowe’s defendants argue that they can’t be liable
under common law theories of negligence, gross negligence, or recklessness
because the Indiana Product Liability Act subsumes these claims. The Fowlers
concede the point in their response. The Indiana Product Liability Act governs
“all product liability actions, whether the theory of liability is negligence or
strict liability in tort.” Stegmoller v. ACandS, Inc., 767 N.E.2d 974, 975 (Ind.
2002). To the extent the complaint asserts common law claims of negligence,
gross negligence, or recklessness, those claims must be dismissed.
Similarly, the Lowe’s defendants argue that the Fowlers can’t assert a
claim under the Indiana Consumer Protection Act because the Indiana Product
Liability Act subsumes such a claim. The Product Liability Act “shall not be
construed to limit any other action from being brought against a seller of a
product.” IND. CODE § 34-20-1-2. In B & B Paint Corp. v. Shrock
Manufacturing, Inc., 568 N.E.2d 1017 (Ind. Ct. App. 1991), the Indiana court
of appeals held that the Product Liability Act didn’t vitiate the provisions of the
Uniform Commercial Code, and the plaintiff “was entitled to bring a cause of
action based on breach of implied warranty under the UCC.” Id. at 1020.
Although, the plaintiff might have been able to bring its action under either
cause of action, a UCC breach of warranty cause of action was separate and
distinct from a strict product liability cause of action. Id. Similarly, the
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Consumer Protection Act is a separate and distinct cause of action from a
Product Liability Act cause of action. The Consumer Protection Act protects
consumers from suppliers who commit deceptive and unconscionable sales
acts, IND. CODE § 24-5-0.5-1, et seq., while the Product Liability Act protects
consumers from defective and unreasonably dangerous products that cause
physical harm. IND. CODE § 34-20-2-1. The Acts provide alternative remedies,
and consequently, the Product Liability Act doesn’t subsume the Consumer
Protection Act.
In reply, the Lowe’s defendants argue that the substance of the
complaint is negligence and the Fowlers haven’t alleged any facts that would
support a Consumer Protection Act claim. As the Lowe’s defendants point out,
the Act lists 37 deceptive acts. A cursory glance at the statute doesn’t
immediately reveal which type of deceptive act the Fowlers intend to allege
occurred, but the Fowlers haven’t had a chance to respond to this argument,
which was first raised in the reply brief. So, the Lowe’s defendants waived the
argument, Carter v. Tennant Co., 383 F.3d 673, 679 (7th Cir. 2004), and the
court makes no finding on the sufficiency of the complaint’s allegations of a
claim under the Consumer Protection Act.
Next, the Lowe’s defendants argue that under the Indiana Product
Liability Act, they can’t be strictly liable because they aren’t manufacturers.
Under the Act, “[a] product liability action based on the doctrine of strict
liability in tort may not be commenced or maintained against a seller of a
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product that is alleged to contain or possess a defective condition unreasonably
dangerous to the user or consumer unless the seller is a manufacturer of the
product or of the part of the product alleged to be defective.” IND. CODE § 34-202-3. Thus, the Lowe’s defendants argue that under the Act, only a
manufacturer and not a seller can be strictly liable for a defective product. The
Fowlers point to the next section of the statute, titled Principal Distributor or
Seller Deemed Manufacturer that states: “If a court is unable to hold
jurisdiction over a particular manufacturer of a product or part of a product
alleged to be defective, then that manufacturer’s principal distributor or seller
over whom a court may hold jurisdiction shall be considered, for the purposes
of this chapter, the manufacturer of the product.” IND. CODE § 34-20-2-4. So a
seller that is statutorily deemed a manufacturer can be held strictly liable. In
Kennedy v. Guess, Inc., 806 N.E.2d 776 (Ind. 2004), the plaintiffs tried
unsuccessfully to serve process on a manufacturer located in Hong Kong. Id. at
781. The plaintiffs argued that the court didn’t hold jurisdiction over the
manufacturer because it was no longer in business and also didn’t have
contacts with the state. Id. The defendants argued that the lack of service was
due to a less than diligent effort on the part of the plaintiffs. Id. The Indiana
Supreme Court held that, while the evidence wasn’t “especially impressive,”
whether the sellers were manufacturers under the Act was a genuine issue of
material fact and that summary judgment wasn’t appropriate. Id.

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The Fowlers argue that the actual manufacturer, Old Werner, filed for
bankruptcy in 2006 and no longer exists, so the court can’t hold jurisdiction
over it. The Fowlers contend that the Lowe’s defendants can be considered a
primary seller because, according to a Consumer Product Safety Commission
investigation, Lowe’s stores were the primary means of distribution for Werner
ladders in 2008. The Lowe’s defendants reply that Old Werner still exists and
claim that they provided the Fowlers with the current address for the bankrupt
corporation, the place where it can be served process, and the contact
information for the liquidating trustee. Because the Fowlers haven’t tried to
pursue an action against the bankrupt manufacturer, the Lowe’s defendants
argue that the Fowlers can’t assert that the court is unable to hold jurisdiction
over Old Werner. But when evaluating a motion to dismiss, the court must
draw all reasonable inferences in the plaintiff’s favor. So for the purpose of this
motion, the court assumes that the bankrupt manufacturer doesn’t exist and
that Lowe’s stores were the principal distributor or seller of Werner ladders. It’s
possible that the Lowe’s defendants might be considered a manufacturer under
the Product Liability Act and consequently, be held strictly liable.
Finally, the Lowe’s defendants argue that they can’t be liable for a postsale duty to warn because Indiana law doesn’t recognize such a claim. The
Lowe’s defendants assert that in Tober v. Graco Children’s Products, Inc., 431
F.3d 572 (7th Cir. 2005), the court of appeals concluded that Indiana courts
haven’t recognized a claim for post-sale duty to warn under the Indiana
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Product Liability Act. Id. at 579. The Fowlers contend that the Tober decision,
issued in December 2005, didn’t consider Cox v. Paul, 828 N.E.2d 907 (Ind.
2005), issued in June 2005, in which the Indiana Supreme Court held that a
health care provider who receives notice of possible dangerous side effects of a
treatment may be liable for failure to make reasonable efforts to warn a patient
who received the treatment from the provider. Id. at 909. The Cox decision, the
Fowlers argue, strongly indicates that the Indiana Supreme Court would
construe the Product Liability Act to require post-sale warnings. The Lowe’s
defendants contend that the Cox decision is distinguishable from the facts at
hand because the physician-patient relationship is unique, and Lowe’s stores
don’t have that type of relationship with customers who purchase ladders. The
Lowe’s defendants argue that a physician maintains records and can contact
patients, but Lowe’s doesn’t maintain records or contact information for
customers who purchase ladders. The court agrees. The type of failure to warn
cause of action the court recognized in Cox arose in the dramatically different
context of a physician-patient relationship. As the court of appeals found in
Tober, 431 F.3d at 579, Indiana courts haven’t recognized a post-sale duty to
warn under the Indiana Product Liability Act, so the Fowlers’ claim that the
Lowe’s defendants are liable for breach of a post-sale duty to warn is a claim
upon which relief can’t be granted.
For these reasons, the Lowe’s defendants’ partial motion to dismiss (Doc.
No. 31) is GRANTED with respect to the plaintiffs’ claims that assert common
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law theories of negligence, gross negligence, or recklessness and a post-sale
duty to warn and is DENIED with respect to the plaintiffs’ Indiana Consumer
Protection Act claim and Indiana Product Liability Act strict liability claim. The
plaintiffs’ other Product Liability Act claims remain unaffected.
SO ORDERED.
ENTERED: June 10, 2014

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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