Alaska

Indiana

 

 

 

Statutes of Limitations (INDIANA)

Personal Injury - 2 yrs. [IC 34-11-2-4]

Wrongful Death - 2 yrs. [IC 34-23-1-1]

Personal Property Damage - 2 yrs. [IC 34-11-2-4]

Product Liability (Negligence and Strict Liability) - 2 yrs. (discovery rule applies, subject to 10-yr. statute of repose) [IC 34-20-3-1]

Real Property Damage - 6 yrs. [IC 34-11-2-7]

Written Contracts - 10 yrs. [IC 34-11-2-11]

Oral Contracts - 6 yrs. [IC 34-11-2-7]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [IC 26-1-2-725]

 

Under Indiana’s “discovery rule,” a cause of action accrues, and the statute of limitation begins to run, when a claimant knows or in exercise of ordinary diligence should have known of the injury [Pflanz v. Foster, 888 N.E.2d 756 (Ind. 2008)].

 

 

 

Statute of Repose (Products) (INDIANA)

10 yrs. (if the cause of action accrues at least 8 yrs. but less than 10 yrs. after initial delivery, the action may be commenced within 2 yrs. after the cause of action accrues) [IC 34-20-3-1].

 

Admissibility of Expert Testimony (INDIANA)

Although Indian courts are not bound by Daubert, the concerns driving Daubert coincide with the express requirement of Ind. R. Evid. that the trial court be satisfied of the reliability of the scientific principles involved. Though courts may consider the Daubert factors in determining reliability, there is no specific test or set of prongs which must be considered.  Therefore, Daubert is helpful, but not controlling, when analyzing testimony [Turner v. State, 953 N.E.2d 1039 (Ind. 2011)].

 

 

 

 

Causes of Action (INDIANA)

 

The Indiana’s Product Liability Act (“Act”) codifies the law of strict liability [Senco Products, Inc. v. Riley, 434 N.E.2d 561 (Ind. App. 1982)].  Breach of implied warranty in tort is superseded by and included in “strict liability in tort” under the Act [Thiele v. Faygo Beverage, Inc., 489 N.E.2d 562 (Ind. App. 1986)].

 

The Act governs all actions, regardless of the substantive legal theory upon which the action is brought, that are: (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by a product [IC 34-20-1-1].

 

Strict Liability – The Act contains the following “Rule of Liability:” a person who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user is subject to liability for physical harm caused by that product if: (1) that user 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 [IC 34-20-2-1]

 

Negligence – The Act did not intend to abolish negligence as a theory of product liability, but intended that if any provisions of the Act limit or modify the common-law principles of negligence, then those provisions would augment or displace those common-law principles. [Corbin v. Coleco Industries, (7th Cir. Ind. 1984)].

 

Breach of Express Warranty – Not codified by the Act

 

Definition of “Defect” (INDIANA)

 

A product is in a defective condition under the Act if, at the time it is conveyed by Seller to another party, it is in a condition: (1) not contemplated by reasonable persons among those considered expected users of the product; and (2) that will be unreasonably dangerous to the expected user when used in reasonably expectable ways of handling [IC 34-20-4-1].

  

A product is not defective if it is safe for reasonably expectable handling and consumption. [IC § 34-20-4-3].

 

Also, see discussion below re: "design defects."

Liability of Sellers (INDIANA)

 

No strict liability action against sellers [IC 34-20-2-3].

 

Defenses (INDIANA)

     

Comparative Negligence – Indiana follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [IC 34-51-2-6].  Applies to cases codified by the Act [IC 34-20-8-1]

 

Product Misuse – If an injury results from handling, preparation for use, or consumption that is not reasonably expectable, the seller is not liable [IC 34-20-4-3].

 

Incurred Risk – It is a defense if Plaintiff: (1) knew of the defect; (2) was aware of the danger in the product; and (3) nevertheless proceeded to make use of the product and was injured [IC 34-20-6-3].  Complete defense to strict liability actions [Coffman v. PSI Energy, Inc., 815 N.E.2d 522 (Ind. App. 2004)], but part of the comparative negligence analysis in cases based on negligence [Perdue Farms v. Pryor, 646 N.E.2d 715 (Ind. 1997)].

 

Product Misuse – It is a defense under the Act that a cause of the physical harm is a misuse of the product not reasonably expected by the seller at the time the seller sold the product [IC 34-20-6-4].  Not a complete bar to recovery but is part of the comparative negligence analysis [Barnard v. Saturn Corp., 790 N.E.2d 1023 (Ind. App. 2003)].

 

Product Alteration/Modification – It is a defense to an action under the Act that a cause of the physical harm is a modification/alteration of the product made after the product’s delivery to the initial user if the modification/alteration is the proximate cause of physical harm where the modification/alteration is not reasonably expectable to the seller [IC 34-20-6-5].  Complete defense to certain product liability actions [Foley v. Case Corp., 884 F. Supp. 313 (S.D. Ind. 1994)].

 

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (INDIANA)

 

Defendant is not liable under a tort theory for any purely economic loss caused by its negligence, including damage to the product or service itself [Indianapolis-Marion County Public Library v. Charlier Clark & Linard, P.C., 929 N.E.2d 722 (Ind. 2010)].

 

Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (INDIANA)

 

If it is the kind of accident that did not occur but for a defect in the product, and if it is reasonably plain that the defect is not introduced after the product is sold, the accident is evidence that the product was defective when sold [Whitted v. General Motors Corp., 58 F.3d 1200 (7th Cir. Ind. 1995)].

 

Design Defects (INDIANA)                                                                                               

 

There are three types of product defects: manufacturing, design, and warning. [Whitted v. General Motors Corp., 58 F.3d 1200 (7th Cir. Ind. 1995)].

 

There is a rebuttable presumption that the product that caused the harm was not defective and that the manufacturer was not negligent if, before the sale by the manufacturer, the product: (1) was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled; or (2) complied with applicable government codes, standards, regulations, or specifications [IC 34-20-5-1]

 

In an action based on a design defect or based on a failure to provide adequate warnings/instructions regarding the use of the product, Plaintiff must establish that Defendant failed to exercise reasonable care under the circumstances in designing the product or in providing the warnings or instructions [IC 34-20-2-2].  Inadequate-warning and defective-design claims both sound in negligence [Weigle v. Spx Corp., 729 F.3d 724 (7th Cir. Ind. 2013)].

 

Failure to Warn (INDIANA)

 

A product is defective under the Act if 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.  This definition is applicable only when Seller, by exercising reasonable diligence, could have made such warnings or instructions available to the user or consumer [IC 34-20-4-2].

 

In an action based on a design defect or based on a failure to provide adequate warnings/instructions regarding the use of the product, Plaintiff must establish that Defendant failed to exercise reasonable care under the circumstances in designing the product or in providing the warnings or instructions [IC 34-20-2-2].  Inadequate-warning and defective-design claims both sound in negligence [Weigle v. Spx Corp., 729 F.3d 724 (7th Cir. Ind. 2013)].

 

Where there is no warning, the presumption that the user would have read an adequate warning.  The presumption may be rebutted if Manufacturer comes forward with contrary evidence that the presumed fact did not exist [Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541 (Ind. Ct. App. 1979)].

 

The adequacy of a warning (i.e., whether Defendant breached its duty to warn) is generally a question of fact, but it can be decided as a matter of law when the facts are undisputed and only one inference can be drawn from those fact.  Defendant can argue to the fact finder that Plaintiff’s failure to read and heed adequate warnings and instructions was itself negligent and that fault should be allocated accordingly [Weigle v. Spx Corp., 729 F.3d 724 (7th Cir. Ind. 2013)]. 

 

Independent Cause of Action for Evidence Spoliation (INDIANA)

 

No independent tort for negligent or intentional spoliation by a first party [Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005)].  A tort of negligence spoliation against a third party appears to be recognized [Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134 (Ind. App. 1998)].