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 
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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 § 34-20-

2-3. 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