Jackson v. Alert Fire and Safety Equipment, Inc.

• Decision Date: 06 March 1991
• Docket Number: No. 89-1770,89-1770
• Citation: 58 Ohio St.3d 48,567 N.E.2d 1027
• Parties: , Prod.Liab.Rep. (CCH) P 12,865 JACKSON et al., Appellants and Cross-Appellees, v. ALERT FIRE AND SAFETY EQUIPMENT, INC. et al., Appellees; South Akron Awning et al., Appellees and Cross-Appellants.
• Court: Ohio Supreme Court

Page 48

58 Ohio St.3d 48

567 N.E.2d 1027, Prod.Liab.Rep. (CCH) P 12,865

JACKSON et al., Appellants and Cross-Appellees, v. ALERT FIRE AND SAFETY EQUIPMENT, INC. et al., Appellees South Akron Awning et al., Appellees and Cross-Appellants.

No. 89-1770.

Supreme Court of Ohio.

Submitted Nov. 19, 1990.

Decided March 6, 1991.

On March 3, 1986, appellants and cross-appellees, Michael D. Jackson ("Jackson") and Jerry S. Kelley ("Kelley"), firefighters for the Akron Fire Department, were severely burned over various parts of their bodies while fighting a structural fire in Akron.

In June 1988, Jackson and Kelley filed separate amended complaints in the Court of Common Pleas of Summit County. ¹ Jackson, in his amended complaint named various defendants including his employer, the city of Akron ("city"), and defendant-appellee Alert Fire & Safety Equipment, Inc. ("Alert"). Kelley, in his amended complaint, named the same defendants as did Jackson, and included, among others, defendant-appellee M.F. Murdock Company, Inc. ("Murdock"), and appellees and cross-appellants, South Akron Awning ("Awning") and Levinson's Co. ("Levinson's"). ²

We are concerned here only with defendants Alert, Murdock, Awning and Levinson's. Jackson and Kelley have advanced virtually the same theories of recovery against these defendants: strict liability, negligence, implied and express warranty, and negligent and intentional infliction of emotional distress.

Alert's and Murdock's alleged liability arises from being retailer/suppliers of gloves. Jackson alleged that he sustained burns to his hands and wrists in the structural fire as a result of wearing defective "Polar Bear" gloves sold to him by Alert. Jackson's purchase of the gloves was approved by the city and the city reimbursed him. Kelley alleged that he received burns to his hands and wrists as a result of wearing defective "Nitty-Gritty 93 NFW" gloves purchased by the city from Murdock, Alert or another supplier and issued by the city to Kelley. Nitty Gritty 93 NFW gloves are coated with natural rubber. Kelley, in his deposition, testified that firefighters could either purchase firefighting gloves individually through a supplier, or firefighters could let the city issue the gloves directly to them. Kelley stated that even though a different type of glove (leather) would have been better, he opted to let the city issue him the rubber Nitty Gritty 93 NFW gloves.

Levinson's alleged liability emanates from being a retailer/supplier of "Mr. Two-Ply" pants worn by Kelley at the time of fighting the structural fire. Kelley charged that the pants were defective and, as a result, he received burns to his legs, thighs and body. The pants were part of the uniform that the city mandated that firefighters wear. Kelley purchased the pants directly from Levinson's.

Awning's alleged liability stems from adding approximately ten inches of material to the bottom of Kelley's "Morning Pride" fire coat. Kelley claims he sustained burns to his legs, thigh and body as a result of wearing a defective Morning Pride coat "remanufactured" by Awning. Kelley stated that the added material "shriveled up" as a result of the fire. The coat was lengthened at the request of the city to keep water from entering Kelley's boots and the city paid for the lengthening.

All defendants filed summary judgment motions. Alert and Murdock filed jointly, while Levinson's and Awning filed separately.

On October 24, 1988, the trial court, after reviewing the pleadings and evidence submitted in support, sustained all summary judgment motions. The court, in compliance with Civ.R. 54(B), determined there was no just reason for delay.

Jackson and Kelley appealed to the Court of Appeals for Summit County. The court of appeals found that summary judgment was properly granted as to all claims in favor of Alert and Murdock. The court further determined that the trial court improperly granted the motions of Levinson's and Awning as to the claims of strict liability, implied warranty in tort and negligence, and properly granted their motions as to the claim of intentional infliction of emotional distress.

The appeal is now before this court pursuant to the allowance of a motion and cross-motion to certify the record.

Daniel M. Walpole and Paul E. Weimer, Akron, for appellants and cross-appellees.

Roetzel & Andress, George A. Clark and Orlando J. Williams, Akron, for appellees.

Buckingham, Doolittle & Burroughs and David W. Hilkert, Akron, for appellees and cross-appellants.

DOUGLAS, Justice.

The issue before this court focuses on whether the court of appeals properly concluded that summary judgment should be granted in favor of Alert and Murdock, and denied, except as to the intentional infliction of emotional distress claim, as to Levinson's and Awning. For the reasons that follow, we affirm the court of appeals' ruling.

I Alert and Murdock

First we turn our attention to whether the trial court and court of appeals correctly determined that Alert and Murdock be granted summary judgment on Jackson's and Kelley's claims of strict liability and implied warranty in tort. This court, in Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, specifically adopted Section 402A of 2 Restatement of the Law 2d, Torts (1965), 347-348, as a plaintiff's proper remedy for harm suffered from a seller's defective product. In Temple, supra, at 320, 4 O.O.3d at 468, 364 N.E.2d at 270, we emphasized that strict liability in tort and implied warranty are "virtually indistinguishable," and stated that a manufacturer or seller of a defective product, for purposes of strict liability, is liable to an injured party if the injured plaintiff proves that: " '(1) 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) the defect was the direct and proximate cause of the plaintiff's injuries or loss.' * * * " (Citations omitted.) Id. at 321, 4 O.O.3d at 468, 364 N.E.2d at 270.

In cases subsequent to Temple, we adopted a consumer expectation standard to determine if a product is defective. This standard provides that a product may be deemed defective if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. See Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456, 21 O.O.3d 285, 424 N.E.2d 568, paragraph two of the syllabus; Knitz v. Minster Machine Co. (1982), 69 Ohio St.2d 460, 23 O.O.3d 403, 432 N.E.2d 814, syllabus ³; State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 523 N.E.2d 489, paragraph three of the syllabus.

Notwithstanding common-law liability for a seller of a defective product as mentioned supra, the General Assembly, pursuant to former R.C. 2305.33, ⁴ provided certain non-manufacturing sellers of an allegedly defective product statutory relief from liability on causes of action based upon strict liability or implied warranty in tort. Alert and Murdock, in their summary judgment motions, sought to limit their liability under the statute.

R.C. 2305.33 provided, in general terms, that a seller, pursuant to Civ.R. 56, was entitled to summary judgment if the seller proves that: (1) it did not alter or fail to maintain the product while it was in the seller's possession; (2) the manufacturer is amenable to suit and not financially insolvent; (3) the seller, upon request of the injured party, provides the person making the request with the name and address of the manufacturer; and (4) "[t]he seller did not have actual knowledge of the alleged defect in the product and, based upon facts available to him, could not have been expected to have had knowledge of the alleged defect * * *." (Former R.C. 2305.33[B] through .) (140 Ohio Laws, Part I, 372-375.)

Jackson and Kelley do not contend that Alert and Murdock have failed to comply with R.C. 2305.33(B)(1) through (3). Rather, Jackson and Kelley assert Alert and Murdock have failed to offer probative evidence sufficient to satisfy the prerequisites of subsection (B)(4) of the statute. Specifically, Jackson and Kelley urge that the affidavits attached in support of Alert's and Murdock's motions are "self-serving conclusory statements" and, therefore, are insufficient to warrant summary judgment. Jackson and Kelley also suggest they have presented sufficient counterbalancing evidence, thus creating a genuine issue of fact for trial.

Civ.R. 56 is the rudimentary authority and controls our determination as to whether Alert and Murdock are entitled to summary judgment under R.C. 2305.33(B)(4). Specifically at issue here are those requirements found in subsections (C) and (E) of the rule.

Civ.R. 56(C) provides, in part, that: "Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * " (Emphasis added.) Hence, given the explicit language of Civ.R. 56(C), a court is not limited to review of the moving party's affidavit(s) attached in support of his or her motion for summary judgment. More appropriately, the court may examine all evidence properly before it. Such evidence may include pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts and written stipulations of fact.

Equally important to our resolution of this issue are those requirements found in Civ.R. 56(E). This section provides in part: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this...