Crislip v. TCH Liquidating Co.

• Decision Date: 18 July 1990
• Docket Number: No. 89-447,89-447
• Citation: 556 N.E.2d 1177,52 Ohio St.3d 251
• Parties: , Prod.Liab.Rep. (CCH) P 12,606 CRISLIP et al., Appellees, v. TCH LIQUIDATING COMPANY , Appellant.
• Court: Ohio Supreme Court

Page 251

52 Ohio St.3d 251

556 N.E.2d 1177, Prod.Liab.Rep. (CCH) P 12,606

CRISLIP et al., Appellees, v. TCH LIQUIDATING COMPANY [f.k.a. XXth Century Heating and Ventilating Company], Appellant.

No. 89-447.

Supreme Court of Ohio.

Submitted March 7, 1990.

Decided July 18, 1990.

SYLLABUS BY THE COURT

1. An individual injured by a known dangerous product may prosecute a strict liability claim arising from allegations of inadequate warning. Temple v. Wean United, Inc. [1977], 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, followed and explained.)

2. In a products liability case, where there are allegations of failure to warn, or failure to adequately warn, there will be no liability unless it be shown that the manufacturer failed to take the precautions that a reasonable person would take in presenting the product to the public.

3. The standard imposed upon the defendant in a strict liability claim grounded upon an inadequate warning is the same as that imposed in a negligence claim based upon inadequate warning.

In the summer of 1981, Jon T. "Terry" Crislip purchased a Timber Iron Furnace Caddy, a wood-burning add-on furnace manufactured by XXth Century Heating and Ventilating Company in Akron ("XXth Century Heating"). Pursuant to a franchise agreement, XXth Century Heating supplied the furnace to XXth Century Furnace, Inc., a.k.a. XXth Century, Inc., which sold the furnace to Crislip and installed it in his home in August 1981.

The furnace was accompanied by a manual combining instructions on installation, operation, and service of the Timber Iron. Drafting and production of the manual had been supervised by John G. Kerch, Jr., president of XXth Century Heating. Frank R. Pfahl, president of XXth Century, Inc., consulted the manual and directed the installation of the furnace by two of his employees. Pfahl and Crislip discussed venting the furnace through the same flue as the gas furnace and gas water heater. When the XXth Century, Inc. employees installed the Timber Iron, it shared a flue with the gas furnace.

The manual stated in several places that the Timber Iron should be properly vented. On page seven the manual warned that other appliances should not be vented into the same flue with the Timber Iron because damage to property or personal injury could result. On page eight, the manual advised that "[t]he installer must use good judgement and common sense in the installation of the flue pipe. * * * " Nowhere did the manual specifically warn that venting a gas furnace and the Timber Iron through the same flue could result in death by asphyxiation from carbon monoxide produced by the gas furnace if the common flue became blocked by creosote deposits from the Timber Iron.

On October 2, 1985, Terry and Betty Crislip's son Matt and daughter Carin were away at college. Their daughter Cathy was upstairs until 10:00 p.m., then went downstairs and fell asleep in the family room. Because the chimney had not yet been cleaned that fall, Terry forbade the use of the wood stove. Betty testified that he was a "stickler" about keeping the chimney cleaned after the wood-burning furnace was installed. Instead, Terry Crislip turned on the gas furnace as he and his wife went upstairs to bed at around 10:30 p.m. The furnace fan was on.

During the night, the fan apparently circulated lethal carbon monoxide throughout the house, killing Terry. Betty went into a coma, and Cathy suffered nausea, diarrhea, and injuries to her mouth. In 1988, Betty still had no sensation in the left side of her face, a persistent hacking cough, and short-term memory loss.

The Summit County Coroner performed an autopsy on Terry Crislip, finding the cause of death to be asphyxia due to carbon monoxide intoxication. The coroner concluded that a crack in the flue liner in the chimney through which the gas furnace and wood-burning furnace were vented allowed carbon monoxide to leak into the house.

In July 1986, Kerch sold most of the assets of XXth Century Heating to Ytsma Acquisition Company ("Ytsma"), which was formed by Sterling Metalcrafts, Inc. solely to buy XXth Century Heating's assets. Ytsma changed its name to "XXth Century Heating and Ventilating Company, Subsidiary of Sterling Metalcrafts, Inc." Those assets not purchased by Ytsma as well as the liabilities of the original XXth Century Heating and Ventilating Company became the property of defendant-appellant, TCH Liquidating Company ("TCH").

On December 29, 1987, plaintiffs-appellees, Betty and Cathy Crislip and the Estate of Terry Crislip, filed their third amended complaint against defendants XXth Century Heating, Ytsma, Sterling Metalcrafts, TCH, and XXth Century, Inc. Plaintiffs alleged negligent installation of the wood-burning furnace by XXth Century, Inc. The other causes of action against the remaining defendants were for negligence, breach of warranty, misrepresentation, strict liability, and products liability. The complaint asked for damages for personal injury, wrongful death, and property loss.

XXth Century Heating and TCH cross-claimed against XXth Century, Inc. for contribution and indemnity and raised the defense that plaintiffs contributed to the accident. After plaintiffs settled out of court with the installer, plaintiffs' claims against XXth Century, Inc. were dismissed on June 10, 1988. Because of the cross-claim, however, XXth Century, Inc. remained a party to the action when trial commenced on June 13, 1988.

At the close of plaintiffs' case, the Crislips agreed to dismiss the new XXth Century Heating as a defendant, proceeding against TCH as the successor to the old XXth Century Heating's liabilities. The court directed verdicts for Ytsma and Sterling Metalcrafts on all causes of action in the complaint. The court also directed verdicts for TCH on strict liability, breach of warranty, and negligent selection of XXth Century, Inc. as installer of the Timber Iron. The judge refused to direct a verdict for TCH on the cross-claim against XXth Century, Inc. Finally, he limited the comparative negligence defense to the conduct of Terry Crislip alone.

At the close of all the evidence, the court directed a verdict for XXth Century, Inc. on the cross-claim. The jury returned a verdict for TCH on the remaining claim for negligent failure to warn and the judge entered judgment on the verdict on August 4, 1988.

Plaintiffs appealed to the Court of Appeals for Summit County, assigning as error the following: directed verdicts for defendants on strict liability, breach of warranty, and negligent selection and training of the installer; directed verdicts for Ytsma and Sterling Metalcrafts on successor liability; and dismissal of the installer from the action at the conclusion of trial, thus prohibiting the jury from apportioning negligence between the manufacturer and installer. The court of appeals reversed the directed verdict on the issue of strict liability based on its own holding in Krosky v. Ohio Edison Co. (1984), 20 Ohio App.3d 10, 20 OBR 10, 484 N.E.2d 704, and affirmed on all other issues.

The court, finding its decision on the strict liability issue to be in conflict with the decision of the Court of Appeals for Cuyahoga County in Hardiman v. Zep Mfg. Co. (1984), 14 Ohio App.3d 222, 14 OBR 250, 470 N.E.2d 941, certified the record of the case to this court for review and final determination.

Blakemore, Rosen, Meeker & Varian Co., L.P.A., and Donald S. Varian, Jr., Akron, for appellees.

Brown, Bartunek & Worthing and Donald E. Worthing, Cleveland, for appellant.

WRIGHT, Justice.

The Crislips, plaintiffs-appellees, do not allege a design or manufacturing defect in the Timber Iron Furnace Caddy. Rather, they claim that the failure of defendant-appellant, TCH Liquidating Company, to adequately warn them of the danger of carbon monoxide poisoning rendered the Timber Iron unreasonably dangerous. This court has adopted Section 402A of 2 Restatement of the Law 2d, Torts (1965) 347, along with Comment j, at 353, which allows a cause of action in strict liability when failure to warn renders a product unreasonably dangerous. Thus, we agree with the court of appeals that the trial court committed error in directing a verdict for defendants on the strict liability cause of action. An individual injured by a known dangerous product may prosecute a strict liability claim arising from allegations of inadequate warning. However, because the trial court's refusal to let the jury decide the strict liability question was harmless error under the facts of this case, we reverse the court of appeals' decision that the directed verdict be reversed and the cause remanded for trial on the strict liability claim, and we reinstate the judgment of the trial court.

Strict liability for defective products in Ohio follows the formulation in Section 402A of the Restatement, supra. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, paragraphs one and two of the syllabus. Section 402A provides as follows:

"Special Liability of Seller of Product for Physical Harm to User or Consumer

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

"(a) the seller is engaged in the business of selling such a product, and

"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although

"(a) the seller has exercised all possible care in the preparation and sale of his product, and

"(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

One of the reasons given in Temple for approving Section 402A was that " * * * the Restatement formulation, together with its numerous illustrative comments, greatly...