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An Evansville car dealer is entitled to summary judgment in an accidental death case in which a man’s widow claimed negligence, the Court of Appeals of Indiana ruled in reversing and remanding the denial of summary judgment.
The case involves John Fritchley II, a Boonville resident who attempted to remove the top of an empty 55-gallon metal drum with a cutting torch in February 2018. The torch exploded, blowing the top off the drum and killing Fritchley instantly, according to court records.
The top of the drum — at which Fritchley would have had to looked as he cut — bore a warning label, which included a red pictogram of a flame with the words, “FLAMMABLE LIQUID” and, “Do not flame cut, braze or weld empty container.”
The drum had initially been in the possession of Superior Solvents and Chemicals Inc., which filled it with a flammable brake-cleaning solution. The drum then went to Busler Enterprises Inc., then Kenny Kent Toyota, who allowed a man named Paul Rhoades to collect empty drums, apparently for resale.
In December of 2018, Samantha M. Labno-Fritchley, John’s widow, filed suit against Superior Oil, Busler and Kenny Kent Toyota on her behalf, as next friend of her and John’s daughter and as personal representative of John’s estate. The suit included allegations of negligence, violations of the Indiana Products Liability Act, negligent infliction of emotional distress and wrongful death.
Kenny Kent moved for summary judgment, which the Vanderburgh Circuit Court denied in April 2022.
The Court of Appeals reversed that denial Wednesday, remanding for summary judgment to be entered in Kenny Kent’s favor.
In its opinion, the appellate court ruled that the designated evidence allowed only one conclusion: that John Fritchley was more than 50% at fault for the explosion as a matter of law.
“Because Samantha cannot show that Kenny Kent is at least 50 percent at fault, she cannot recover, and Kenny Kent is therefore entitled to summary judgment on Samantha’s negligence claim,” the opinion reads.
Labno-Fritchley also argued that Kenny Kent did not have to actually sell drums in order to be subject to the Indiana Products Liability Act, and that Kenny Kent was a “distributor” pursuant to the federal Occupational Safety and Health Act.
But the court determined that even if it agreed with Labno-Fritchley, her arguments do nothing to establish that Kenny Kent is in the business of selling drums.
“The designated evidence, i.e., evidence that Kenny Kent occasionally gave empty drums to Rhoades and that the drums were nothing more than ‘a waste product’ to be discarded, without more, falls short of establishing that it was ‘engaged in the business’ of selling them,” the COA held.
Judge Cale Bradford wrote the opinion for the appellate court, with Judge Melissa May and Judge Paul Mathias concurring.
The case is Evansville Automotive, LLC, d/b/a Kenny Kent Toyota v. Samantha M. Labno-Fritchley, individually; as next friend of Penelope Rose Fritchley, a minor; and as personal representative of the estate of John Henry Fritchley II, deceased, 22A-CT-1601.
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