Elizabeth A. Horstman v. Paul R. Farris
| Decision Date | 05 March 1999 |
| Docket Number | 99-LW-0490,C.A. 98-CA-64 |
| Parties | ELIZABETH A. HORSTMAN, ET AL., Plaintiffs-Appellants v. PAUL R. FARRIS, ET AL., Defendants-Appellees C.A. Case No. 98-CA-64 |
| Court | Ohio Court of Appeals |
JAMES E. CROSS, Atty. Reg. #0006220, CANICE J. FOGARTY, Atty. Reg #0010046 and MICHAEL R. PENTECOST, Atty. Reg. #0036803, 137 North Main Street, Suite 900, Dayton, Ohio 45402-1770 Attorneys for Plaintiffs-Appellants
THOMAS L. CZECHOWSKI, Atty. Reg. #0022973, 1600 One Dayton Centre, One South Main Street, P.O. Box 1805, Dayton, Ohio 45401-1805
Attorney for Defendants-Appellees, The Testor Corp. And Meijer, Inc.
STEPHEN V. FREEZE, Atty. Reg. #0012173, One South Main Street, 1800 One Dayton Centre, Dayton, Ohio 45402-2017, Attorney for Defendant-Appellee, Kevin Boone
MARK E. STONE, 42 Woodcroft Trial, Suite A, Beavercreek, Ohio 45430, Attorney for Defendant, Paul R. Farris
Plaintiffs-appellants Elizabeth Horstman and her family appeal from a summary judgment rendered in favor of defendants-appellees Meijer, Inc., the Testor Corporation, and Kevin Boone, upon the Horstmans' complaint. This action arises from an automobile accident that occurred when the driver of another car inhaled a harmful intoxicant and proceeded to drive head-on into the car operated and occupied by the Horstman family.
The Horstmans contend that a genuine issue of material fact exists whether the intoxicant, manufactured by Testor, was a defective product and whether the defect was a proximate cause of their injuries. They further claim that the evidence shows that Meijer is liable in negligence because it sold Testor's product in violation of statute and that its negligence was proximately related to their injuries. They next contend that Kevin Boone acted as an aider and abettor in the illegal use of the product and is therefore liable for their injuries as a result of his per se negligence. Finally, they claim that Boone is liable as a social host.
We conclude that even if Testor's product were defective in design, that was not a proximate cause of the injuries to the Horstmans. We conclude that Meijer was not negligent in selling the propellant to a minor without inquiring concerning his intended use of the product. We also find that Boone did not act as an aider and abettor, and is not, therefore, liable under a theory of negligence per se. Finally, we conclude that Boone is not liable as a social host because he did not furnish the product to the tortfeasor. Accordingly, the judgment of the trial court is Affirmed.
On February 22, 1995, defendant, Paul Farris, then age sixteen, borrowed his mother's car and went to the home of his friend, Christopher Anderson. Some time after picking Anderson up, Farris drove to defendant-appellee Meijer, Inc.'s Beavercreek store. While there, the boys purchased a can of "Ozone Safe Airbrush Propellant" manufactured by defendant-appellee, Testor Corporation. Anderson bought the propellant using a credit card that he had taken from his mother without her permission.
Once out of the store, the boys began "huffing" the propellant; i.e., inhaling the propellant gasses for the purposes of "getting high." Farris then drove them to the home of defendant-appellee Kevin Boone. The evidence indicates that Farris and Anderson went to Boone's home uninvited. When they got there, they went to Boone's bedroom. Farris and Anderson asked Boone if he wanted to huff. When Boone replied in the affirmative, Farris and Anderson demonstrated how to inhale from the canister. All three boys participated in inhaling or "huffing" from the canister; however, it is not clear from the record whether they inhaled more than once each. After approximately ten to thirty minutes, Farris and Anderson left the Boone residence and proceeded to drive east on Kemp Road; Farris was again driving.
While stopped at a red light, Farris again inhaled from the canister. When the light changed, Farris turned right and proceeded southbound on North Fairfield Road. Farris crossed the center-line of the road and drove into an on-coming car driven by plaintiff-appellant Patricia Horstman. The collision caused injuries to Horstman and her three children, and resulted in serious brain damage to one of the children. After the collision, Farris was taken to Miami Valley Hospital, where his blood was drawn. The blood test revealed that Farris had difluoroethane, a principal ingredient of the propellant, in his system.
The Horstmans filed suit against Testor Corporation, Meijer, Inc., Kevin Boone and Paul Farris. All of the defendants, except Farris, filed motions for summary judgment, which were granted. The Horstmans appeal from the summary judgment rendered against them.
Because summary judgment is involved in each of the assigned errors addressed below, we begin with a brief discussion of the standard of review for summary judgments. Summary judgment is appropriate when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor. Zivich v. Mentor Soccer Club (1998), 82 Ohio St.3d 367, 369- 370. Our review of the trial court's decision to grant summary judgment is de novo. McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 241.
In their First Assignment of Error, the Horstmans argue:
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE, THE TESTOR CORPORATION.
The Horstmans, whose complaint against Testor was based upon a product liability claim, contend that the trial court erred by granting summary judgment on their product liability claim in favor of Testor. They contend that since the evidence shows that the propellant canister manufactured by Testor is defective in design pursuant to R.C. 2707.75, summary judgment was inappropriate. In support, the Horstmans contend that Testor had knowledge that its product was being abused but it failed to remedy the problem in a timely manner, despite readily available methods of preventing the misuse.
In their complaint, the Horstmans contend that they are entitled to recover compensatory, punitive and exemplary damages against Testor pursuant to the Product Liability Act of R.C. Chapter 2307.71 et seq. However, according to R.C. 2307.73(A), a manufacturer is subject to liability only if the claimant establishes that the product was defective and that the defective aspect of the product in question was a proximate cause of harm for which the claimant seeks to recover compensatory damages. Furthermore, in order to recover punitive and exemplary damages, pursuant to R.C. 2307.80, a claimant must be entitled to compensatory damages.
We need not reach the issue of whether the evidence supports a finding of defective design. Even if it does, we find that the trial court properly rendered summary judgment, because there is no genuine issue of fact as to proximate cause; i.e., Farris's conduct, rather than any defect in the product, was the proximate cause of the Horstmans' injuries.
The Horstmans have cited our opinion in Monnin v. Fifth Third Bank of Miami Valley, N.A. (1995), 103 Ohio App.3d 213 for the proposition that an injury can have more than one proximate cause; in this case, they claim that the proximate causes of their injuries are Testor's product and Farris's conduct. Monnin, like the case before us, involved an injury caused by an individual engaged in criminal conduct. In Monnin, a robber held up a bank. Id., at 220. During the course of the robbery, Leonard, a bank employee, told the robber that she knew his mother. Id. The robber subsequently shot and killed another bank employee as well as a customer. Id. The estates of the decedents filed suit. The trial court dismissed the claims "by summary judgment upon a finding that the bank had no duty to the decedents because the shootings were not reasonably foreseeable." Id., at 220-221. We reversed that decision.
We noted that the bank, having been previously robbed, knew, or should have known, that armed robbery could occur. Id., at 223.[1] We then found that the bank owed a duty to the customer as an invitee to use reasonable safeguards to protect him from such reasonably foreseeable harm. Id. In discussing whether the customer's death was caused by the bank's deviation from a standard of conduct reasonably required by its duty of care, we noted that "[a] proximate cause is not necessarily the sole cause of the result concerned, but may be one of two or more causes which run together to produce a given result or inflict an injury." Id., at 224. We also stated:
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