Jackson v. Glidden Co.

• Decision Date: 13 January 1995
• Docket Number: No. 66085,66085
• Citation: 647 N.E.2d 879,98 Ohio App.3d 100
• Parties: , Prod.Liab.Rep. (CCH) P 14,410 JACKSON et al., Appellants, v. GLIDDEN COMPANY et al., Appellees.
• Court: Ohio Court of Appeals

Page 100

98 Ohio App.3d 100

647 N.E.2d 879, Prod.Liab.Rep. (CCH) P 14,410

JACKSON et al., Appellants, v. GLIDDEN COMPANY et al., Appellees.

No. 66085.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Jan. 13, 1995.

Harvey B. Bruner & Assoc., Harvey B. Bruner and Michael J. O'Shea, Cleveland, for appellants.

Bertsch, Millican & Winslow, James T. Millican and Robert J. Koeth; Dick Jambor, Cleveland, for appellee Glidden Co.

Donald A. Bright and Dean M. Harris, Los Angeles, CA, for appellee Atlantic Richfield Co. Dickie, McCamey & Chilcote and James R. Miller, Pittsburgh, PA, for appellee PPG.

James D. Shomper, Wilmington, DE, for appellee E.I. Du Pont de Nemours & Co.

Samuel Friedman, Baltimore, MD, for appellee SCM Chemicals.

John W. Lebold and Dale Normington, Cleveland, for appellee Sherwin-Williams Company.

James Lowery, Pittsburgh, PA, for appellee Westinghouse Elec. Corp.

Porter, Wright, Morris & Arthur, Richard M. Markus and Hugh E. McKay; Cleveland Arnold & Porter, Otis Pratt Pearsall, Philip H. Curtis, Reuben S. Koolyk, New York City, Murray R. Garnick and Maureen E. McGirr; Washington, DC, Gallagher, Fulton, Sharp & Norman, James G. Gowan and Paul J. Schumacher; Cleveland, Crowley, Barrett & Karaba and Charles W. Siragusa; Chicago, IL, Reminger & Reminger, Nicholas J. Milanich and Davis Ross; Cleveland, Sullivan, Sullivan & Pinta, Mary Morrissey Sullivan, Mark L. Sullivan and Michael Griffin; Boston, MA, Ulmer & Berne and Timothy M. Fox; Cleveland, Kirkland & Ellis, John M. Walker and Timothy S. Hardy; Washington, DC, Buckley, King & Bluso and Richard J. DiSantis; Cleveland, Popham, Haik, Schnobrich & Kaufman and Michael Nilan; Minneapolis, MN, Jones, Day, Reavis & Pogue, Charles H. Moellenberg, Jr., Paul M. Pohl and Marc L. Swartzbaugh; Pittsburgh, PA, Kramer & Tobocman Co., L.P.A., and Edward G. Kramer; Weston, Hurd, Fallon, Paisley & Howley and Gary W. Johnson, Cleveland for other appellees.

Edward G. Kramer; Renee Heller and Angela Thiel, Legal Interns, Cleveland, for amicus curiae The Housing Law Clinic.

JAMES D. SWEENEY, Judge.

Plaintiff-appellant Renita Jackson and her children, Ramon Manuel, and Maria Jackson, appeal from the trial court's order granting the motion to dismiss filed by the defendant-appellee NL Industries, and joined in by all of the remaining defendants-appellees. The amended complaint was filed on behalf of the appellant children and all other children similarly situated and alleged that the appellant children, Ramon Manuel and Maria Jackson, were poisoned from exposure to significant quantities of lead contained in the paint of the premises where they lived. The appellees are lead paint and lead pigment manufacturers, and the Lead Industries Association, an organization which lobbies and carries out activities nationwide on behalf of its members.

The appellants set out thirteen causes of action: absolute product liability, negligence per se, negligence, breach of implied warranties, breach of express warranties, fraud by misrepresentation, nuisance, enterprise liability, negligent infliction of emotional distress, alternative liability, market share liability, and punitive damages.

In essence, the appellants allege that the appellees are responsible for the manufacturing, promotion, selling, distributing, supplying or applying lead and/or lead paint products which were used in painting, staining, construction of, and the maintenance and remodeling of, homes, residences and buildings in Ohio.

The trial court granted the motion of the appellees to hold the motion for class certification in abeyance and, on July 29, 1993, the trial court granted the motion to dismiss as to all defendants-appellees. The court held:

"All defendants in the within action having joined in the Motion of NL Industries, Inc. to dismiss the Amended Complaint, or, in the alternative to strike each separate count of the Complaint is hereby GRANTED, as the theories of enterprise liability, market share liability and alternative liability cannot substitute under Ohio law for an allegation and proof that each or any defendant proximately caused the alleged injuries. All other motions outstanding are MOOT.

"FINAL."

The appellants set forth five assignments of error.

The appellants' first assignment of error:

"I

"The trial court erred as a matter of law in preventing appellants from receiving a hearing or decision on the certification motion."

The appellants argue that the trial court abused its discretion when it held the ruling on the motion for class certification in abeyance until the ruling on the motion to dismiss was given. The appellants contend that the trial court erred in entering its pretrial case management order, and that judicial economy would have been better served to rule on the motion for class certification in conjunction with the motion to dismiss so that the issues could have been appealed together.

Rulings on motions for class certification are within the sound discretion of the trial court. Shaver v. Std. Oil Co. (1990), 68 Ohio App.3d 783, 589 N.E.2d 1348. The trial court must control its docket and the orderly progression of its cases. In order to do so, the judge in the case sub judice issued a pretrial management order. The court ruled that both the class action determination and discovery would be deferred until the disposition of the motions to dismiss. The trial court did not abuse its discretion in controlling in an orderly fashion the litigation before it.

The appellants' first assignment of error is overruled.

The appellants' second, third, and fourth assignments of error will be considered together:

"II

"The trial court erred as a matter of law in granting the appellees' NL motion when it determined that 'enterprise liability' does not apply to the product identification issue.

"III

"The trial court erred as a matter of law in granting appellees' NL motion when it determined that 'alternative liability' does not apply to the product identification issue.

"IV

"The trial court erred as a matter of law in granting appellees' NL motion when it determined that 'market share liability' does not apply to the product identification issue."

The appellants argue that the trial court erred in granting the motion to dismiss filed by NL Industries. In granting a motion to dismiss filed pursuant to Civ.R. 12(B)(6), the trial court must keep in mind that the standard for granting such a motion is in accord with the notice pleading requirements of both the Federal and the Ohio Rules of Civil Procedure. A plaintiff is not required to prove the case, and as long as a set of facts which would allow the plaintiff to recover is set forth in the complaint, the court may not grant the motion to dismiss. York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 573 N.E.2d 1063.

The Supreme Court in York clearly enunciated the standard to be applied when granting a motion to dismiss:

" * * * In O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, this court set forth the standard for granting a motion to dismiss pursuant to Civ.R. 12(B)(6). Specifically, we held that in order for a court to dismiss a complaint for failure to state a claim upon which relief may be granted, it must appear ' "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ' O'Brien at 245, 71 O.O.2d at 224, 327 N.E.2d at 755, citing Conley v. Gibson (1957), 355 U.S. 41, 45 [78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84]. In the recent case of Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753, we elaborated upon this standard, noting that '[i]n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the nonmoving party.' Id. at 192, 532 N.E.2d at 756, citing 2A Moore, Federal Practice (1985) 12-63, Paragraph 12.07 [2.-5]." York, 60 Ohio St.3d at 144, 573 N.E.2d at 1064-1065.

The following facts alleged in Paragraph 12 of the amended complaint must therefore be taken as true: the appellees participated in practically and/or substantially all processing, manufacturing, designing, developing, testing, packaging, inspection, selling, distributing, supplying, delivering, marketing and/or applying of products with lead and/or white lead pigments, including dry white lead carbonate, dry white lead sulphate and white lead-in-oil for the use in paint/varnish production (collectively "lead paint products"). Paragraph 13 alleges that the appellees acted individually as well as in concert with each other, jointly and severally, manufactured, sold, promoted, distributed, supplied and/or applied lead products or lead paint products.

The appellants argue in the second, third and fourth assignments of error that the trial court erred in refusing to recognize the theories of enterprise liability, market share liability, and alternative liability under Ohio law.

In the second assignment of error, the appellants correctly point out that enterprise liability was recognized in Hall v. E.I. Du Pont de Nemours & Co. (E.D.N.Y.1972), 345 F.Supp. 353. The plaintiffs in Hall alleged that the defendants' conduct combined to cause injury at the point of the labeling and designing of blasting caps. Children throughout the country suffered injuries. The court held that to establish enterprise liability, the plaintiffs would have to demonstrate the defendants' joint awareness of the risks at issue and their joint capacity to reduce or affect those risks. The court emphasized the applicability to industries composed of a small number of units. The court specifically stated at 378: "What would be fair and feasible with regard to an industry of five or ten producers might be manifestly unreasonable if applied to a decentralized industry...