opinion: Michael FILLER, by His Next Friend, Barbara Mitchell, and Barbara Mitchell, Plaintiffs-Appellees, v. RAYEX CORPORATION, a New York Corporation, Defendant-Appellant.
  Nos. 18049, 18050.
  United States Court of Appeals, Seventh Circuit.
  Nov. 3, 1970.
  William F. McNagny, J. A. Bruggeman, Robert L. Thompson, Jr., Fort Wayne, Ind., for defendant-appellant; Barrett, Barrett & McNagny, Fort Wayne, Ind., of counsel.
  Robert A. Foust, Marion, Ind., David B. Keller, Edward L. Murphy, Jr., Fort Wayne, Ind., for plaintiffs-appellees; Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., of counsel.
  Before DUFFY, Senior Circuit Judge, CUMMINGS and KERNER, Circuit Judges.
  CUMMINGS, Circuit Judge.
  In this diversity action, Michael Filler sued to recover damages for the loss of his right eye, and his mother, Barbara Mitchell, sought to recover her expenses for his hospitalization, artificial eye, and physician’s services.
  When his injury occurred, Michael Filler was a 16-year-old student at Oak Hill High School, near Marion, Indiana. While he was practicing for a varsity baseball game in the late afternoon of June 10, 1966, fungoes were being lofted to him by a fellow player. Filler lost a fly ball in the sun, although he was wearing flipped-down “baseball sunglasses” manufactured by defendant. After tipping the top of his baseball glove, the ball struck the right side of the sunglasses, shattering the right lens into sharp splinters which pierced his right eye, necessitating its removal nine days later.
  Filler’s coach was Richard Beck, an experienced ballplayer whose first baseball season at Oak Hill was in 1965. During that season, Beck would not allow his players to use sunglasses, considering them too dangerous. However, before the 1966 season, he read the following advertisement of defendant in Sporting News:
  “PLAY BALL!
  and Flip for Instant Eye Protection with
  RAYEX
  Baseball
  SUNGLASSES
  Professional
  FLIP-SPECS”
  The advertisement also stated:
  “Scientific lenses protect your eyes with a flip from sun and glare anywhere * * * baseball, beach, boat, driving, golfing, fishing, just perfect for Active and Spectator Sports— World’s finest sunglasses.”
  After seeing this material, Beck decided to buy six pairs of defendant’s flip-type baseball sunglasses for use by his outfielders and second basemen. Each pair of sunglasses was in a cardboard box labeled “Baseball Sunglasses — Professional Flip-Specs,” stating “Simply flip * * * for instant eye protection.” The guarantee inside each box provided :
  “Rayex lenses are guaranteed for life against breakage. If lens breakage occurs mail glasses and 50$ (Postage Handling Charge) for complete repair service.
  “Rayex Sunglasses are guaranteed to:
  1. Eliminate 96% of harmful ultraviolet and infrared rays.
  2. Protect your eyes against reflected glare from smooth surfaces, roads, water, snow, etc.
  3. Retain clear, undistorted vision.”
  Except for the flip feature and elastic tape at the rear of the frame, the glasses resembled ordinary sunglasses. The thinness of the lenses was shielded by the frames and therefore not obvious to users.
  These glasses were stored in the glove compartment of coach Beck’s car, and in accordance with the custom of his teammates, Filler removed a pair of the sunglasses from the coach’s car and was using them at the time of his injury. Neither Filler, nor Beck, nor indeed even defendant’s president knew the lenses would shatter into sharp splinters when hit by a baseball.
  After a bench trial, the district judge awarded Filler $101,000 damages and his mother $1,187.75 for her consequential damages. In an unreported memorandum opinion, the district judge supported this result on three independent grounds: implied warranty, strict liability, and negligence. Under any of those theories, privity between the manufacturer and plaintiff is not required by controlling Indiana law. Posey v. Clark Equipment Company, 409 F.2d 560, 563 (7th Cir. 1969); Dagley v. Armstrong Rubber Company, 344 F.2d 245, 252-254 (7th Cir. 1965); Greeno v. Clark Equipment Company, 237 F.Supp. 427 (N.D.Ind.1965).
  We agree that defendant is liable for breach of an implied warranty of fitness for a particular purpose. Indiana has adopted the implied warranty provision of the Uniform Commercial Code dealing with fitness for a particular purpose :
  “Implied Warranty — Fitness for particular purpose. — Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.” Burns Indiana Stal.Ann. § 19-2-315.
  These sunglasses were advertised as baseball sunglasses that would give “instant eye protection.” Although they were intended for use by baseball fielders, the thickness of the lenses ranged only from 1.2 mm. to 1.5 mm., so that shattering into exceedingly sharp splinters would occur on their breaking. Since they lacked the safety features of plastic or shatterproof glass, the sunglasses were in truth not fit for baseball playing, the particular purpose for which they were sold. Therefore, breach of that implied warranty was properly found.
  Indiana has adopted the doctrine of strict liability of sellers of products “in a defective condition unreasonably dangerous to the user,” as provided in Section 402A of the Restatement of Torts Second. Posey v. Clark Equipment Company, 409 F.2d 560, 563 (7th Cir. 1969). Here the thinness of the lenses made them unreasonably dangerous to users, so that the doctrine of strict liability is applicable. However, defendant argues against strict liability, on the ground that the sunglasses were “unavoidably unsafe products” within the exception of Comment k to Section 402A. Even assuming arguendo that the state of the art is not capable of producing a shatter-resistant or splinter-free baseball sunglass as defendant claims, Comment k furnishes no shelter from liability in this case. The exception applies only when the product is “accompanied by proper * * * warning,” which defendant’s product lacked.
  Finally, we also agree that defendant was liable for negligence. Defendant knew that these glasses shattered readily, for a hundred were returned daily for lens replacements. At least it had constructive knowledge that the impact of a baseball would shatter these lenses into sharp splinters, since it must anticipate the reasonably foreseeable risks of the use of the product. See Spruill v. Boyle-Midway, Incorporated, 308 F.2d 79, 83-85 (4th Cir. 1962); 2 Harper & James, The Law of Torts, p. 1541 (1956). Moreover, despite the obviously physical stresses to which these glasses would be put, inadequate tests were made concerning their physical properties. Accordingly, even if defendant is not liable for negligence in production and sale of a poorly constructed product, it was properly held liable for its negligent failure to warn users of the danger of its product. Indiana National Bank of Indianapolis v. De Laval Separator Co., 389 F.2d 674, 676 (7th Cir. 1968).
  Judgment is affirmed.
  The court reserved judgment on an express warranty count, and we also do not consider that theory.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama