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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: DOUGLAS D. SMALL Foley & Small South Bend, Indiana

ATTORNEYS FOR APPELLEE: MILFORD M. MILLER STEPHEN J. HARANTS Miller Murphy & Miller, L.L.P. Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
ESMERALDA DIAZ and DAVID DIAZ, Appellants-Plaintiffs, vs. BASTIAN MATERIAL HANDLING CORP. and INDUSTRIAL SYSTEMS SERVICE, INC., Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 43A04-0603-CV-123

APPEAL FROM THE KOSCIUSKO CIRCUIT COURT The Honorable Rex K. Reed, Judge Cause No. 43C01-0403-CT-186

December 21, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Esmeralda Diaz and David Diaz ("Diaz") appeal the trial court's grant of summary judgment to Bastian Material Handling Corp. ("BMH") in the action filed by Diaz alleging that Mrs. Diaz had been injured due the faulty operation of an elevator lift at DePuy Orthopedics, Inc. ("DePuy"). We affirm. 1 ISSUE Whether the trial court erred in granting summary judgment to BMH. FACTS BMH is a material handling equipment provider; it sells equipment for moving materials used in the manufacturing setting. BMH has a branch office in Fort Wayne, the service area of which includes Warsaw. In December of 1988, BMH bought a

hydraulically operated two-level vertical lift ("the lift") from Pflow Industries and had the lift installed at DePuy's facility in Warsaw by D.L. Hissen, Inc. In late 2002, Mrs. Diaz was working at DePuy as a Kelly Services temporary employee. At DePuy, shipping containers, weighing from 5 to 25 pounds and

approximately 9" high and 2

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