¶1dissenting.
¶2I respectfully dissent from the majority opinion in this case.
¶3One finds throughout the Restatement (Second) of Torts, in cases from this and other jurisdictions, and even in our own statute, Ind.Code § 838-1-1.5-1 et seq., the erroneous use of the term "strict liability" applied to manufacturer's liability cases. This term repeatedly is used erroneously when the author actually is referring to a res ipso loquitur-type case. Even when the term is used, the author ends up reciting a case of negligence on the part of the manufacturer.
¶4It is true that in many instances it is impossible for a plaintiff to demonstrate precisely in what manner the manufacturer was negligent. That is where the doctrine of res ipsa loquitur takes over, and given proof of a defective manufacture, the negligence is presumed by reason of the exclusive control of the manufacturer over the item during that time. I have yet to see the case that holds that a manufacturer of a product is liable for any and all damage done by his product without any proof or demonstration whatsoever of negligence.
¶5I disagree with the premise set out in the majority opinion that there are two types of manufacturer's liability, one of which is strict liability and that the law set forth in Bemis Co., Inc. v. Rubush (1981), Ind., 427 N.E.2d 1058, cert. denied, 459 U.S. 825, 108 S.Ct. 57, 74 L.Ed.2d 61, is not applicable in so-called strict liability cases. The law set forth in Bemis is applicable to the case at bar.
¶6I would grant transfer and affirm the trial court in its grant of summary judgment on both counts.