Gawloski v. Miller Brewing Co.

• Decision Date: 27 July 1994
• Docket Number: No. 94CA005789,94CA005789
• Citation: 644 N.E.2d 731,96 Ohio App.3d 160
• Parties: GAWLOSKI et al., Appellants, v. MILLER BREWING COMPANY, Appellee. *
• Court: Ohio Court of Appeals

Page 160

96 Ohio App.3d 160

644 N.E.2d 731

GAWLOSKI et al., Appellants, v. MILLER BREWING COMPANY, Appellee. ^*

No. 94CA005789.

Court of Appeals of Ohio, Ninth District, Lorain County.

Decided July 27, 1994.

Raymond D. Gawloski, pro se.

Stephen William Gumpl, pro se.

Charles H. Walker and Catherine M. Ballard, Columbus, for appellee.

REECE, Presiding Judge.

Appellants, Raymond D. Gawloski and Stephen William Gumpl, appeal from the trial court's order granting the appellee, Miller Brewing Company ("Miller"), judgment on the pleadings on the appellants' products liability claim. We affirm.

The appellants are currently incarcerated at the Grafton, Ohio Correctional Institution. On May 17, 1993, they filed a pro se products liability complaint against Miller based on Miller's production, distribution, and sale of beer. In the complaint, the appellants alleged that they began drinking Miller beer in 1969 and have been alcoholics addicted to Miller beer since at least 1975. The appellants further claimed that Miller's product was the proximate cause of their alcoholism, which ultimately caused them to exercise poor judgment, engage in criminal behavior, and destroy their relationships with spouses, family, and friends.

The appellants initially pled a full complement of products liability claims: (1) that Miller beer was unreasonably unsafe in design, (2) that the sale of Miller beer breached an implied warranty of merchantability because the beer was "defective, deleterious, and harmful" in that it caused alcoholism, (3) that Miller failed to warn consumers of the health hazards and addictive qualities of regularly using beer, and (4) that Miller "concealed the known risks, misrepresented their product as safe, and fraudulently advertised Miller Beer as a product which was an enhancer of the quality of life." In the appellants' response to Miller's motion for judgment on the pleadings, the appellants withdrew all of their claims except the claim for fraudulent concealment and misrepresentation. After reviewing the pleadings, the trial court held: "[I]f [Miller] fraudulently misrepresented or concealed the true effects of consumption of their product containing alcohol, the complaint must still fail. The risk of alcohol consumption is a matter of common knowledge and therefore there is no duty to warn [the appellants] of the effects." The appellants raise as their single assignment of error the trial court's entry of judgment on the pleadings.

After the pleadings in a case have been filed, a Civ.R. 12(C) motion for judgment on the pleadings may be employed by a defendant to assert that the plaintiff has failed to state a claim upon which relief can be granted. Burnside v. Leimbach (1991), 71 Ohio App.3d 399, 402, 594 N.E.2d 60, 61-62. Thus, a motion for judgment on the pleadings has been characterized as a belated Civ.R. 12(B)(6) motion for failure to state a claim upon which relief can be granted. Nelson v. Pleasant (1991), 73 Ohio App.3d 479, 482, 597 N.E.2d 1137, 1139. Therefore, the same standard of review is applied to both motions. Id. The court must limit its inquiry to the material allegations contained in the complaint and accept those allegations and all reasonable inferences as true. Lin v. Gatehouse Constr. Co. (1992), 84 Ohio App.3d 96, 99, 616 N.E.2d 519, 521. If, after undertaking this review, the allegations in the complaint are such that the plaintiff could prove no set of facts which would entitle him to relief, the moving party is entitled to judgment as a matter of law. Id.

As a general rule, a manufacturer does not have a duty to warn consumers of dangers inherent in the use of the manufacturer's product if those dangers are generally known and recognized by the ordinary consumer. 2 Restatement of the Law 2d, Torts (1965) 352-353, Section 402A, Comments i and j; Sapp v. Stoney Ridge Truck Tire (1993), 86 Ohio App.3d 85, 98-99, 619 N.E.2d 1172, 1180-1181. Ohio has codified this rule in R.C. 2307.76(B):

"A product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge."

Based on this prevailing rule of law, courts have consistently found that brewers and distributors of alcoholic beverages do not have a duty to warn consumers of the dangers inherent in the excessive or prolonged use of alcohol because those dangers are within the body of knowledge common to the community and are generally known and recognized by the ordinary consumer. See, e.g., Desatnik v. Lem Motlow Prop., Inc. (Jan. 9, 1986), Mahoning App. No. 84 C.A. 104, unreported, 1986 WL 760 (whiskey); Garrison v. Heublein, Inc. (C.A.7, 1982), 673 F.2d 189 (vodka); Malek v. Miller Brewing Co. (Tex.App.1988), 749 S.W.2d 521 (beer). In Joseph E. Seagram & Sons, Inc. v. McGuire (Tex.1991), 814 S.W.2d 385, 388, the Texas Supreme Court specifically found that alcoholism is one of the generally known and recognized dangers attributable to the prolonged and excessive use of alcoholic beverages. ¹

The appellants do not contest the persuasiveness of the cited authority; in fact, on the basis of this authority, the appellants withdrew most of the products liability claims they had initially pled. The appellants instead contend in their brief that this authority does not directly control their claim for misrepresentation because the misrepresentation claim is not based on Miller's failure to warn but on Miller's affirmative act of misrepresenting its product as safe through "advertising which negated and neutralized any 'common knowledge' within the community about the dangers of their product." As support for this distinction, the appellants cite the United States Supreme Court decision in Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407.

In Cipollone, the petitioner brought a diversity action in federal court, asserting several products liability claims under New Jersey common law against Liggett Group, Inc., a manufacturer of cigarettes. The United States Supreme Court was asked to determine if the petitioner's claims were pre-empted by the 1965 and 1969 federal Acts requiring warnings on cigarette packages. The court held that the federal legislation did not pre-empt all of the petitioner's state common-law claims, only those claims that conflicted with the narrow pre-emption language contained in the federal warning and labeling provisions. As a result, the court evaluated each of the petitioner's claims individually to determine which claims were pre-empted. As part of this evaluation, the court distinguished the petitioner's failure-to-warn claims from one of the petitioner's fraudulent-misrepresentation claims, finding that a misrepresentation claim based on a manufacturer's false statement of material fact in an advertisement was not pre-empted by the federal legislation's warning and labeling provisions. 505 U.S. at ---- - ----, 112 S.Ct. at 2623-2625, 120 L.Ed.2d at 430-431. The court cautioned, however, that "we express no opinion on whether these actions are viable claims as a matter of state law; we assume arguendo that they are." 505 U.S. at ----, 112 S.Ct. at 2621, 120 L.Ed.2d at 427.

Although we find the Cipollone case to have little relevance to this appeal, we do acknowledge that a products liability claim for misrepresentation is distinct from a claim for failure to warn. A products liability claim brought in Ohio is controlled by Ohio's Product Liability Act, R.C. 2307.71 to 2307.80. That Act provides in R.C. 2307.77 that "[a] product is defective if it did not conform, when it left the control of its manufacturer, to a representation made by that manufacturer. A product may be defective because it did not conform to a representation even though its manufacturer did not act fraudulently, recklessly, or negligently in making the representation." No reported Ohio case has addressed the substantive application of R.C. 2307.77. But, see, Paugh v. R.J. Reynolds Tobacco Co. (N.D.Ohio 1993), 834 F.Supp. 228 (applying R.C. 2307.77 to an express warranty claim against a cigarette manufacturer). The language in R.C 2307.77 is similar to that found in Section 402B, 2 Restatement of the Law 2d, Torts (1965) 358, and we accordingly turn to that treatise for guidance in this area of the law.

Section 402B provides:

"One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though

"(a) it is not made fraudulently or negligently, and

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

Applying the tort elements contained in Section 402B to the cause of action codified in R.C. 2307.77, we hold that a plaintiff seeking to recover for injuries incurred through the use of a product that does not conform to a manufacturer's representation must prove:

(1) that the manufacturer made a representation as to a material fact concerning the character or quality of the manufacturer's product;

(2) that the product did not conform to that representation;

(3) that the plaintiff justifiably relied on that representation; and

(4) that the plaintiff's reliance on the representation was the direct and proximate cause of the plaintiff's injuries.

Viewing the appellants' complaint in light of the above elements and liberally construing the appellants' allegations as required by Civ.R. 12(C), we find the appellants have alleged the following:

(1) that Miller made representations in its advertisements that its beer was safe and "an enhancer of the quality of life," when in fact...