Donald Davis v. Cincinnati, Inc., 91-LW-2589

• Decision Date: 28 August 1991
• Docket Number: 91-LW-2589,14940
• Parties: DONALD DAVIS, Plaintiff-Appellee v. CINCINNATI, INC., Defendant-Appellant CASE
• Court: Ohio Court of Appeals

DONALD DAVIS, Plaintiff-Appellee v. CINCINNATI, INC., Defendant-Appellant

No. 14940

91-LW-2589 (9th)

Court of Appeals of Ohio, Ninth District Summit

August 28, 1991

Appeal from Judgement in the Court of Common Pleas CASE NO. CV 83 11 3449.

A RUSSELL SMITH, Attorney at Law, 159 S. Main St, #503, Akron OH 44308, ANTONIOS C. SCAVDIS, Attorney at Law, 261 W. Spruce St., Ravenna OH 44266, MARIA L. MITCHELL, Attorney at Law 715 Fairfax Dr., Medina, OH 44256 (for Plaintiff-Appellee).

DAVID C. COMSTOCK, Attorney at Law, 926 City Centre One, P.O. Box 6306, Youngstown, OH 44501 (for Defendant-Appellant).

OPINION

Before HON. BAIRD, P.J., HON. COOK, J., HON. CACIOPPO, J.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

CACIOPPO J.

On December 13, 1982, Donald Davis was injured by a press brake while working at Union Metal Manufacturing Company. Donald and Brenda Davis filed a complaint against the press brake manufacturer, Cincinnati, Inc., (Cincinnati), seeking damages for personal injury and loss of consortium. The complaint alleged, inter alia, a cause of action sounding in products liability based upon strict liability in tort.

The case proceeded to trial. On October 16, 1990, the jury returned a verdict in favor of Donald and against Brenda and awarded damages accordingly. Cincinnati, Inc. filed motions for judgment notwithstanding the verdict and for a new trial on October 24, l990. The motions were denied on December 20, 1990. The motions were denied on December 20, 1990.

Defendant filed a timely appeal.

Assignment of Error I

"The trial court committed prejudicial error instructing the jury that the plaintiff's misuse of a product constitutes an affirmative defense, on which the defendant carries the burden of proof, in a products liability action based on strict liability."

The trial court instructed the jury as follows:

"* * *

"In order for the plaintiff, Donald Davis, to recover in strict liability in tort against the Defendant, Cincinnati, Inc., with respect to his claim that the product was defectively designed, plaintiff must prove, by a preponderance of the evidence:

"One, that the product was defective at the time that it left Cincinnati, Inc.'s factory;

"Two, that the injury to Donald Davis occurred while the product was being used in a way that was reasonably foreseeable by the Defendant;

"And, three, that the defective condition of the product was a direct and proximate cause off the injury to Donald Davis.

"* * *

"To establish the defense of misuse of the product, the Defendant must prove by a preponderance of the evidence that the misuse of the product was:

"One, not reasonably foreseeable. by the Defendant;

"And, two, that said misuse was the sole proximate cause of the plaintiff's injuries.

"If you find that the Defendant has established these two elements, your verdict will be for the Defendant.

"If, on the other hand, the Defendant does not prove these two elements by a preponderance of the evidence, the Defendant will have failed on the defense of misuse of the product."

"* * *."

The crux of Cincinnati's argument is that the instruction impermissibly shifted Davis' burden to Cincinnati, thereby relieving Davis from proving an element of his case, i.e., that he was using the product in a reasonably foreseeable manner when injury occurred.

The Supreme Court of Ohio has recognized that an affirmative defense is available to a defendant in a product liability case if the plaintiff misused the product in an unforeseeable manner. Bowling v. Heil (1987), 31 Ohio St. 3d 277, 282; State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St. 3d 1, 4, (fn 1)

An affirmative defense is a new matter which, assuming the complaint to be true, constitutes a defense to it. Black's Law Dictionary (5 Ed. 1979) 55.

Cincinnati asserts that establishing that the plaintiff misused the product is not a new matter, but rather, requires the defendant to negate an element of the plaintiff's case. We disagree.

A product design is in a defective condition if: 1) the product is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or 2) the benefits of the challenged design do not outweigh the risk inherent in such design. Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460, syllabus. Requiring the defendant to establish that the plaintiff misused the product in an unforeseeable manner which proximately caused the injury is a new matter, and does not negate an element of the plaintiff's case. We find no error in the trial court's instructions to the jury concerning misuse. The first assignment of error is overruled.

Assignment of Error II

"The trial court committed prejudicial error by instructing the jury that the modification of a product is an affirmative defense on which the defendant carries the burden of proof in a products liability action based on strict liability in tort."

Cincinnati claims that the trial court erroneously instructed the jury that the defendant has the burden of proving by a preponderance of evidence that the press had been modified.

In a product liability action based on strict liability in tort, a plaintiff must prove: 11 that there was, in fact, a defect in the product manufactured and sold by the defendant; 2) such defect existed at the time the product left the hands of the defendant; and 3]that the defect was the direct and proximate cause of the plaintiff 's injuries or loss. State Farm Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St. 2d 151, paragraph two of the syllabus. Courts have held that a manufacturer or seller is not liable for injuries caused by a defective product if the defect was created by alteration which amounts to an intervening or superseding cause in a...