Krosky v. Ohio Edison Co., 3585

• Decision Date: 27 June 1984
• Docket Number: No. 3585,3585
• Citation: 484 N.E.2d 704,20 Ohio App.3d 10
• Court: Ohio Court of Appeals
• Parties: , 20 O.B.R. 10 KROSKY, Appellee, v. OHIO EDISON CO. et al.; Fruehauf Corporation, Appellant. *

Page 10

20 Ohio App.3d 10

484 N.E.2d 704, 20 O.B.R. 10

KROSKY, Appellee, v. OHIO EDISON CO. et al. Fruehauf Corporation, Appellant. ^*

No. 3585.

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

June 27, 1984.

Syllabus by the Court

1. Strict liability in tort may be imposed upon a manufacturer of a product for the failure to provide an adequate warning which creates an unreasonably dangerous condition.

2. The comparative negligence statute, R.C. 2315.19, and the case law which has developed under it are not applicable to a cause of action based upon strict liability.

3. The defense of contributory negligence is not available in a strict liability action.

4. Assumption of the risk is a viable defense to a strict liability claim. A jury instruction is appropriate thereon only if the defense demonstrates plaintiff's knowledge of the defect or the obviousness of the condition.

5. The granting of a motion in limine is a prospective order and makes no determination as to the ultimate admissibility of the evidence.

Michael R. Kube, Cleveland, for appellee.

Edward J. Cass and Neil E. Roberts, Cleveland, for appellant.

GEORGE, Judge.

In June 1981, William Krosky, plaintiff-appellee, was employed by White Transport Company as a truck driver. On June 21, Krosky was assigned to operate a dump truck and deliver gravel to a construction site at the Taylor Woods Industrial Park in Elyria, Ohio. After he had made several trips, Krosky was unloading gravel at the site when the rim of the bed came in contact with overhead power lines. Krosky received an electrical shock which resulted in second and third degree burns.

Krosky filed a complaint against Ohio Edison Co., alleging negligent construction, care, and maintenance of its lines. He also brought suit against Fruehauf Corporation and Dunlap's Garage alleging a defect in the dump truck. Krosky further named Logos Development Co. and Horner-Hibbard in the suit and claimed they negligently failed to provide a safe place for him to work. Prior to trial Krosky reached a settlement with each of the defendants except Fruehauf Corp., appellant herein.

At trial Krosky claimed that Fruehauf's truck was defective, premised on two alternate theories. He first claimed it was defectively designed because of an absence of insulation to portions of the truck which resulted in his injuries. Second, he maintained that Fruehauf had a duty to warn of the truck's inherently dangerous condition; i.e., that the truck bed and frame acted as an electrical conductor upon contact with electric wires. The jury returned a general verdict in favor of Krosky in the amount of $300,000. This award was offset by the amount Krosky received by virtue of his settlement, making Fruehauf liable for $227,500.

Assignment of Error I

"The trial court committed reversible error by ruling that appellee's allegation of inadequate warnings was based on principles of strict liability in tort."

At the outset this court notes that Krosky based his claims on theories of strict liability. He did not allege any negligence on the part of Fruehauf. Fruehauf alleges that a theory of recovery based on a failure to warn is only recognized in Ohio as a negligence action and is not a strict liability action. However, in Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, at 322, 364 N.E.2d 267 , the court stated:

" * * * Because there are virtually no distinctions between Ohio's 'implied warranty in tort' theory and the Restatement version of strict liability in tort, and because the Restatement formulation, together with its numerous illustrative comments, greatly facilitates analysis in this area, we hereby approve Section 402A of the Restatement of Torts 2d."

Section 402A of the Restatement of the Law 2d, Torts (1965) 347, provides:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

"(a) the seller is engaged in the business of selling such a product, and

"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

"(2) The rule stated in Subsection (1) applies although

"(a) the seller has exercised all possible care in the preparation and sale of his product, and

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

After adopting Section 402A, the Supreme Court in Temple, supra, at 321, set forth the criteria for recovery on the basis of strict liability:

"It is now well established that, in order for a party to recover based upon a strict liability in tort theory, it must be proven 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.' State Auto. Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 304 N.E.2d 891 . * * *."

Previously, the court in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 235, 218 N.E.2d 185 , established the standard by which a product would be considered defective:

" * * * The warranty in this case is the manufacturer's representation, implicit in the sale of the steel joists, that they were of good and merchantable quality, fit and safe for their ordinary intended use. * * *"

A review of these early cases and their progeny leaves unanswered the question of whether strict liability may be imposed upon a manufacturer for a failure to provide an adequate warning. When there is a failure to warn, which creates an unreasonably dangerous condition, is such a failure a defect which subjects the manufacturer to strict liability? This was answered affirmatively by the Supreme Court in Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192, 423 N.E.2d 831 . On page 197, the court stated:

" * * * when the drug manufacturer fails to give adequate warning, the drug may be considered 'defective' and unreasonably dangerous, thereby subjecting the manufacturer to strict liability for resulting injuries. * * *"

The Sixth Circuit Court of Appeals, in Moran v. Johns-Manville Sales Corp. (C.A. 6, 1982), 691 F.2d 811, 814, applied the principles set forth in Seley, supra, to a case involving asbestos contamination:

"The parties both look to Seley for the legal principles relevant to liability in this case. Thus, they apparently agree that asbestos insulation material is an 'unavoidably unsafe product,' and that Ohio law would not impose strict product liability on its manufacturers unless they failed to provide the warnings required by Seley."

The court went on to say, however, that the adequacy of a warning is a question of fact.

In Overbee v. Van Waters & Rogers (C.A. 6, 1983), 706 F.2d 768, the court was presented with the issue of the sufficiency of an existing warning. The plaintiff, who was injured while removing the top from a steel drum, asserted claims of negligence and strict liability. The circuit court of appeals at 770 agreed with the trial court's conclusion:

" * * * [T]hat Ohio does not recognize a strict liability cause of action arising from allegations of inadequate warning. * * *"

The court, however, at fn. 3, recognized the language in Seley, supra, with respect to unavoidably unsafe products.

The distinction raised by the decisions in Overbee and Moran are important to an analysis here. An examination of these cases leads to the conclusion that when a product is unreasonably dangerous and has an inadequate warning, an injured user may prosecute an action based upon strict liability in tort.

Here, the dump truck was dangerous to an extent beyond that which would be contemplated by the ordinary user possessing knowledge common to other similar users. Fruehauf knew that the truck would be used to carry materials which would be unloaded by the raising of the bed of the truck. Fruehauf could, therefore, anticipate that the raising of the bed above the frame of the truck might result in the bed's contact with overhead electrical wires, and, further, that such contact would conduct the electrical current throughout the truck body. The dump truck was thus an unreasonably dangerous product. Section 402A of the Restatement of Torts 2d. As such, Fruehauf had a duty to provide a warning. Here, there was none.

Had Fruehauf attempted to notify the user of the potential danger of coming into contact with electrical wires by providing a warning, negligence principles would be appropriately applied. Here, however, the defective condition is the result of the lack of any warning on an unreasonably dangerous product and the principles of strict liability are applicable.

As the comments to the Restatement provide and a majority of jurisdictions now recognize, the failure to provide a warning of a dangerous condition is a defect which is unreasonable and gives rise to a cause of action in strict liability. See, e.g., Section 402A of the Restatement of the Law 2d, Torts, Comment j, at 353; Brochu v. Ortho Pharmaceutical Corp. (C.A. 1, 1981), 642 F.2d 652; Price v. Inland Oil Co. (C.A. 3, 1981), 646 F.2d 90; Cavers v. Cushman Motor Sales, Inc. (1979), 95 Cal.App.3d 338, 157 Cal.Rptr. 142; Genaust v. Illinois Power Co. (1974), 23 Ill.App.3d 1023, 320 N.E.2d 412; Link v. Sun Oil Co. (1974), 160 Ind.App. 310, 312 N.E.2d 126; Kuhner v. Marlyn Manor, Inc. (1975), 135 N.J.Super. 582, 343 A.2d 820; Patch v. Stanley Works (C.A. 2, 1971), 448 F.2d 483; Rost v. C.F. & I. Steel Corp. (Mont.1980), 616 P.2d 383. See, also, Annotation (1973), 53 A.L.R.3d 239.

Although there has been no clear statement of the law in Ohio, this court is persuaded by the case law developed in other jurisdictions, holding that a cause of action for a failure-to-warn...