Bowling v. Heil Co.

Decision Date15 July 1987
Docket NumberNo. 86-823,86-823
Parties, 31 O.B.R. 559, Prod.Liab.Rep. (CCH) P 11,509 BOWLING, Admx., Appellant, v. HEIL COMPANY, Appellee.
CourtOhio Supreme Court

Syllabus by the Court.

1. The principles of comparative negligence or comparative fault have no application to a products liability case based upon strict liability in tort.

2. Ohio's Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, does not abolish the doctrine of joint and several liability.

Appellant, Emma K. Bowling, brought this action against appellee, the Heil Company ("Heil"), among others, in her representative capacity as the administratrix of the estate of her husband, David B. Bowling, seeking to recover damages for his alleged wrongful death. Bowling died when he was crushed between the chassis of a truck and the dump bed mounted onto it.

Heil is engaged in the business of manufacturing and selling dump truck beds and hydraulic dump hoist systems designed to be installed on the chassis of trucks produced by various truck manufacturers. Heil does not install its dump beds and hoist systems; rather, it sells them to authorized distributors who install them onto the chassis of trucks selected by their customers.

In May 1979, Ralph Rogers purchased the dump truck at issue from Jake Sweeney Chevrolet, Inc. ("Sweeney"), for use in his backhoe business. The truck was equipped with a Heil 1617 DL dump hoist system, which included a dump bed, a hydraulic hoist, and a hydraulic pump valve assembly. This system had initially been installed on the truck's chassis by J.W. Devers & Son, Inc. ("Devers"), a Heil distributor.

As originally mounted, the 1617 DL system utilized a cable control system linking the truck cab controls to the hydraulic pump valve. Rogers was dissatisfied with the operation of the cable control system, however, and returned the truck to Sweeney, requesting that a lever control system be installed. Sweeney contacted Robco, Inc. ("Robco"), another Heil distributor, and Robco replaced the cable control system with a lever control system, which had also been manufactured by Heil. The failure of one of Robco's welds made while installing the lever control system triggered the tragic series of events culminating in David Bowling's death.

On April 26, 1980, one of Rogers' employees made the truck available to Timothy Brashear for his personal use. Brashear's brother, David, learned that Timothy had use of the truck for the day and called his friend, David Bowling, knowing that Bowling needed gravel for his driveway. All three men went to a gravel bed and purchased five tons of gravel, which they loaded into the truck. When they arrived at the Bowling residence, Timothy Brashear backed the dump truck into the driveway and then slowly drove forward with the bed raised, spreading the gravel.

When the truck reached the end of the driveway, Timothy Brashear pushed the in-cab control lever forward to lower the dump bed, but due to the failure of Robco's weld, the bed would not come down. Bowling and David Brashear leaned over the chassis, underneath the raised bed, to investigate the problem. Bowling reached in with his hand and grabbed the control lever on the pump valve assembly, and when he manually manipulated it the dump bed rapidly descended upon him, killing him instantly. David Brashear was able to move out from under the dump bed just before Bowling reached for the control lever, thereby avoiding injury.

Appellant's complaint named Heil, Robco, Rogers, Devers, and Sweeney as defendants. Prior to trial, Robco settled with appellant for $100,000 and was dismissed. During the trial, Devers also settled with appellant and was dismissed.

Appellant proceeded against Heil on theories of negligence and strict liability in tort, and against Sweeney on a strict liability theory only. At the close of the evidence, the trial judge granted a directed verdict in favor of Sweeney on its cross-claim for indemnity against Heil. The jury returned a verdict in favor of appellant against Heil and Sweeney, and assessed damages at $1.75 million. Upon written interrogatories, the jury determined that Heil was both negligent and strictly liable, that Bowling was contributorily negligent but that he had not assumed a known risk, and that the following percentages of fault were attributable to Heil, Bowling, and Robco: to Heil, forty percent; to Bowling, thirty percent; and to Robco, thirty percent.

Based on the jury's findings, the trial court entered judgment against Heil and Sweeney for $1.75 million plus funeral costs, less those amounts previously received by appellant by way of settlement with the other defendants. On appeal by Heil, the court of appeals affirmed the jury's verdict, but remanded the case with directions to enter judgment against Heil in the amount of $700,000 only, representing forty percent of $1.75 million.

This cause is now before this court upon the allowance of a motion to certify the record.

Beall, Hermanies, Bortz & Major, Anthony D. Castelli and Ronald D. Major, Cincinnati, for appellant.

Riggs, Riggs & Walker, Harry L. Riggs, Jr., H. Lawson Walker II, Erlanger, Ky., Wiles, Doucher, Van Buren & Boyle Co., L.P.A., James M. Wiles and James J. Brudny, Jr., Columbus, for appellee.


Two related issues are presented in this case: first, whether principles of comparative negligence or comparative fault are applicable to a products liability action based upon strict liability in tort; and second, whether the enactment of Ohio's Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, abolished the doctrine of joint and several liability. For the reasons that follow, we answer both questions in the negative.


The court of appeals below held that Ohio's comparative negligence statute, R.C. 2315.19, does not apply to a products liability action grounded upon strict liability in tort because that statute is limited to negligence actions. We agree. R.C. 2315.19(A)(1) provides:

"In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to his percentage of negligence * * *." (Emphasis added.)

Nevertheless, the court below held that contributory negligence, when it amounts to "affirmative action" as opposed to a passive failure to discover a defect in a product or to guard against the possibility of such defect, constitutes a defense to a products liability action. The court of appeals further held that principles of "pure" comparative negligence 1 apply so as to result in an apportionment between the respective degrees of fault of a strictly liable defendant and a contributorily negligent plaintiff. We believe the court of appeals failed to recognize fundamental differences between the policies and goals underlying the case law in negligence actions and the policies and goals underlying strict liability in tort actions.


In Ohio and elsewhere, products liability law, although an outgrowth of the laws of contracts and negligence, has evolved as a separate, identifiable body of law. Products liability cases decided by this court have often involved issues of negligence as well as strict liability. However, a review of those cases demonstrates that those two doctrines have consistently been regarded as complementary, but distinct.

In the seminal case of Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, 4 O.O.2d 291, 147 N.E.2d 612, we held that where a manufacturer's advertisements were aimed directly at ultimate consumers and contained representations as to the quality of a product, urging consumers to buy that product from a retailer, a consumer injured by a defect in the product could maintain an action in tort against the manufacturer based upon express warranty, though no contractual relationship existed between them. We said:

"Surely under modern merchandising practices the manufacturer owes a very real obligation toward those who consume or use his products. The warranties made by the manufacturer in his advertisements and by the labels on his products are inducements to the ultimate consumers, and the manufacturer ought to be held to strict accountability to any consumer who buys the product in reliance on such representations and later suffers injury because the product proves to be defective or deleterious." (Emphasis added.) Id. at 249, 4 O.O.2d at 294, 147 N.E.2d at 615-616. We therefore held that consumers were not limited solely to a negligence theory in their actions against manufacturers with whom they had not contracted.

Eight years later, in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 35 O.O.2d 404, 218 N.E.2d 185, we expanded Toni to include actions in tort based upon a theory of implied warranty. We noted that manifest injustice would result if a person who had seen or heard an advertisement published by a manufacturer could maintain a products liability action against that manufacturer, while a person who had not seen or heard such an advertisement could not. We said:

"Such a rule looks not to the defect in the product which produced the injury, but focuses upon the question of whether the plaintiff saw an advertisement, which is not relevant to the creation of the risk of harm to the plaintiff." (Emphasis added.) Id. at 237, 35 O.O.2d at 410, 218 N.E.2d at 192. Thus, as in Toni, we held that consumers were not restricted to a negligence theory in their tort actions against manufacturers with whom they had no contractual...

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