Menifee v. Ohio Welding Products, Inc., 84-281

Decision Date31 December 1984
Docket NumberNo. 84-281,84-281
Citation15 Ohio St.3d 75,472 N.E.2d 707,15 OBR 179
Parties, 15 O.B.R. 179 MENIFEE, Admx., Appellant, v. OHIO WELDING PRODUCTS, INC. et al., Appellees.
CourtOhio Supreme Court

Syllabus by the Court

Under strict tort liability principles for the design of a product, a manufacturer need not anticipate all uses to which its product may be put, nor guarantee that the product is incapable of causing injury in all of its possible uses.

This appeal surrounds the death of appellant's decedent, William L. Menifee, from the inhalation of nitrogen gas while in the course of his employment at General Electric Company (hereinafter "General Electric").

The record establishes that the decedent was employed by General Electric to clean transformers and other equipment by using a pressurized stream of aluminum oxide. In addition to compressed air, nitrogen was used in the cleaning process. Liquid nitrogen was stored in a bulk tank and piped to the location where the cleaning took place. The compressed air and nitrogen were released through the same outlet in the grit blast building in which Menifee was working, and the flow of each substance was controlled by certain valves within a system of pipes intended to prevent the nitrogen from mixing with the compressed air.

On the day of the accident, the decedent was wearing a mask and receiving air to breathe from the compressed air supply line. However, the compressor overheated and automatically shut off and, thereafter, the valve system somehow allowed the nitrogen to enter his air supply. Menifee died four days later as a result of oxygen deprivation. Appellant, Ernestine Menifee, administratrix of the estate of William Menifee, subsequently filed this wrongful death action naming several defendants based on the following facts.

In November 1976, the management of General Electric had decided to expand its facilities due to additional sales and maintenance burdens associated therewith. General Electric entered into a contract with appellee KZF Incorporated, an architectural firm, for the design of the grit blast building and air supply lines which would extend from the existing facility to the new building.

General Electric thereafter contracted with appellee J & F Harig Company to erect the building and air system as designed. In turn, the construction of the system was subcontracted to appellee Peck, Hannaford & Briggs Co. After the system's completion, General Electric contacted appellee Ohio Welding Products, Inc. for installation of a nitrogen gas holding tank and distribution system. The actual mounting, connecting and valving of the nitrogen gas system were performed by appellees A.L. Miller and A.L. Miller Plumbing, Inc. The air compressor was manufactured by appellee Cooper Industries, Inc. and obtained from appellee Highway Rental Equipment Company, Inc.

The building and air system were completed on or about April 27, 1978. It is evident from a review of the record that all work was performed in the manner specified by General Electric. In addition, it is important to note that General Electric did not inform any of the appellees that the compressed air would be used for breathing purposes.

The complaint filed on behalf of the appellant sounds in negligence and strict tort liability. Appellant alleges that Menifee died as a proximate result of the combined and concurrent acts by appellees who should have foreseen their consequences. The trial court granted summary judgment as to all appellees on the basis that no liability existed due to the lack of knowledge that the compressed air was used for breathing purposes. The court of appeals affirmed this ruling.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley and Kenneth G. Hawley, Cincinnati, for appellant.

Rendigs, Fry, Kiely & Dennis and Edward R. Goldman, Cincinnati, for appellee Ohio Welding Products, Inc.

Bloom & Greene Co., L.P.A., Gordon C. Greene, Michael D. Eagen and Lawrence A. Flemer, Cincinnati, for appellees A.L. Miller and A.L. Miller Plumbing, Inc.

Wood & Lamping and Robert G. Burkhart, Cincinnati, for appellee J & F Harig Co.

Strauss, Troy & Ruehlmann Co., L.P.A., Douglas G. Cole and Alan C. Rosser, Cincinnati, for appellees KZF Inc. and Peck, Hannaford & Briggs Co.

Benjamin, Faulkner, Tepe & Sack, Robert H. Sack and Thomas R. Yocum, Cincinnati, for appellee Cooper Industries, Inc.

McIntosh, McIntosh & Knabe and Thomas A. Mack, Cincinnati, for appellee Highway Rental Equipment Co., Inc.

HOLMES, Justice.

The issue presented is whether summary judgment in favor of appellees was proper on the theories of negligence and strict tort liability. For the reasons set forth below, we affirm the appellate court's ruling.

The crux of appellant's negligence argument is that it was foreseeable by appellees that the air supply system would be used by General Electric for breathing purposes. Appellant contends that due to the alleged foreseeable use of the system, a duty arose on the part of appellees to inquire of General Electric as to the system's contemplated use. Thus, argues appellant, appellees would have a duty to prevent any and all foreseeable injuries arising from such use.

It is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 247 N.E.2d 732 ; Feldman v. Howard (1967), 10 Ohio St.2d 189, 226 N.E.2d 564 . The existence of a duty depends on the foreseeability of the injury. Ford Motor Co. v. Tomlinson (C.A. 6, 1956), 229 F.2d 873 ; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335, 190 N.E. 924.

The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Freeman v. United States (C.A. 6, 1975), 509 F.2d 626; Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116, 224 N.E.2d 131 ; Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 90 N.E.2d 859 . The foreseeability of harm usually depends on the defendant's knowledge. Thompson, supra.

In determining whether appellees should have recognized the risks involved, only those circumstances which they perceived, or should have perceived, at the time of their respective actions should be considered. Until specific conduct involving an unreasonable risk is made manifest by the evidence presented, there is no issue to submit to the jury. Englehardt v. Philipps (1939), 136 Ohio St. 73, 23 N.E.2d 829 ; Prosser & Keeton Law of Torts (5 Ed.1984) 169, Section 31. Although each appellee raises various arguments in its defense, they all stand on one common ground: General Electric was the only entity with the knowledge required to prevent the decedent's injuries. It was clearly established by the parties before the trial court that only General Electric knew that...

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