Leibreich v. A.J. Refrigeration, Inc.

• Decision Date: 15 September 1993
• Docket Number: No. 92-973,92-973
• Citation: 617 N.E.2d 1068,67 Ohio St.3d 266
• Parties: LEIBREICH et al., Appellants, v. A.J. REFRIGERATION, INC., Appellee, et al.
• Court: Ohio Supreme Court

Page 266

67 Ohio St.3d 266

617 N.E.2d 1068

LEIBREICH et al., Appellants, v. A.J. REFRIGERATION, INC., Appellee, et al.

No. 92-973.

Supreme Court of Ohio.

Submitted April 21, 1993.

Decided Sept. 15, 1993.

Montgomery, Rennie & Jonson, George D. Jonson and Kelly Carbetta Scandy, Graydon, Head & Ritchey and Barbara Scott Bison, Keating, Muething & Klekamp and Louis F. Gilligan, Cincinnati, for appellants.

McIntosh, McIntosh & Knabe and Thomas A. Mack, Cincinnati, for appellee.

WRIGHT, Justice.

This case presents the issue of whether summary judgment for A.J. Refrigeration was appropriate either (1) because the truck driver's actions in leaving the vehicle running and unattended were unforeseeable, intervening, and superseding causes of the appellants' injuries, (2) because A.J. Refrigeration is not a manufacturer or assembler of the truck so as to be subject to strict liability in tort or (3) because A.J. Refrigeration had no duty to warn users of the truck. For the reasons stated below we find that the trial court erred in granting A.J. Refrigeration's motion for summary judgment.

Under Civ.R. 56, summary judgment is proper when: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

We have repeatedly stated that trial courts should award summary judgment with caution, being careful to resolve doubts and construe evidence in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138. On the other hand, we do not wish to discourage this procedure where a plaintiff fails to respond with evidence supporting the essentials of its claim. Summary judgment is appropriate when the nonmoving party does not "produce evidence on any issue for which that party bears the burden of production at trial." (Citation omitted.) Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.

I

We have recognized that the existence of intervening and superseding causes of injury can be a defense to actions brought under theories of both negligence and strict liability in tort. Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31, 41 O.O. 117, 90 N.E.2d 859; R.H. Macy & Co., Inc. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108, 554 N.E.2d 1313, syllabus.

We have also repeatedly recognized that the issue of intervening causation generally presents factual issues to be decided by the trier of fact. Merchants Mut. Ins. Co. v. Baker (1984), 15 Ohio St.3d 316, 318, 15 OBR 444, 446, 473 N.E.2d 827, 828-829; Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, 160, 6 OBR 209, 214, 451 N.E.2d 815, 820; Mudrich, supra, 153 Ohio St. at 40, 41 O.O. at 121, 90 N.E.2d at 864. The determination of intervening causation "involves a weighing of the evidence, and an application of the appropriate law to such facts, a function normally to be carried out by the trier of the facts." Cascone, supra, 6 Ohio St.3d at 160, 6 OBR at 214, 451 N.E.2d at 820. In Cascone we established the test to be used to determine whether the intervening act was foreseeable and therefore a consequence of the original negligent act or whether the intervening act operates to absolve the original actor. "The test * * * is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor." Id. at 160, 6 OBR at 214, 451 N.E.2d at 819 (citing Mudrich, supra, and Mouse v. Cent. Sav. & Trust Co. [1929], 120 Ohio St. 599, 167 N.E. 868).

In R.H. Macy, supra, we approved of the use of a jury instruction on superseding causation which stated in part: " 'The causal connection of the first act of negligence is broken and superseded by the second, only if the intervening negligent act is both new and independent. The term "independent" means the absence of any connection or relationship of cause and effect between the original and subsequent act of negligence. The term "new" means that the second act of negligence could not reasonably have been foreseen.' " (Emphasis sic.) Id., 51 Ohio St.3d at 111, 554 N.E.2d at 1317, quoting 1 Ohio Jury Instructions (1983), Section 11.30. Thus, the key determination " '[w]hether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence.' " (Emphasis deleted.) R.H. Macy, supra, at 110, 554 N.E.2d at 1316, quoting Mudrich, supra, 153 Ohio St. at 39, 41 O.O. at 121, 90 N.E.2d at 863.

In the present case, the court of appeals saw "no reason to conclude that it was foreseeable that [the driver] would leave the truck running and unattended during deliveries." Appellants presented evidence that A.J. Refrigeration knew the following: (1) the truck was intended for the purpose of delivering flowers in the Cincinnati area, which is, in places, quite hilly; (2) the flowers needed to be refrigerated to forty degrees; (3) the refrigeration unit could not operate without the engine running; (4) the temperature inside the truck would rise ten degrees in ten to fifteen minutes if the refrigeration unit was not operating; (5) in order to leave the engine running while the truck was unoccupied, the manual transmission had to be placed in neutral; (6) with the transmission in neutral the only braking system was the ratchet-type emergency brake. In light of this evidence, we cannot agree with the court of appeals that no reasonable mind could conclude that it was foreseeable that the driver would leave the engine running when he left the truck to make a delivery. Therefore we reverse the judgment of the court of appeals on this issue.

II

The court of appeals did not address the question of whether A.J. Refrigeration is a manufacturer or assembler so as to be subject to strict liability in tort. A.J. Refrigeration based its motion for summary judgment on the issue of intervening causation and also on the claim that it was not a manufacturer or assembler and was not, therefore, strictly liable in tort. The trial court granted the motion without opinion. Therefore we must address this latter issue on appeal because it is a possible independent ground for the trial court's decision.

A.J. Refrigeration argues that it is not a manufacturer of refrigerated delivery trucks but is only engaged in the installation and servicing of refrigeration units. Since there is no allegation that the refrigeration unit was defective or negligently installed, A.J. Refrigeration claims it is not liable for appellants' injuries.

Appellants argue that A.J. Refrigeration played the most decisive role in creating the delivery truck and that it created a new product, allegedly a defective product, through its design and assembly of components. In support of this allegation, appellants introduced evidence that: (1) A.J. Refrigeration is in the business of installing refrigeration units in vehicles; (2) Mike Albert had previously contracted with A.J. Refrigeration to design and build components; (3) Mike Albert dealt with A.J. Refrigeration as a modifier and relied on it to point out needed safety changes; (4) A.J. Refrigeration made decisions about the type of insulated body and refrigeration unit to install; (5) Mike Albert relied on A.J. Refrigeration's design expertise to assemble the requisite components to achieve the desired function of the vehicle; (6) Mike Albert expected A.J. Refrigeration to make any safety changes or recommend safety changes necessitated by the modifications requested by the customer; (7) Mike Albert and A.J. Refrigeration agreed to the modifications which A.J. Refrigeration would make; (8) A.J. Refrigeration contracted with Hercules Manufacturing Company to mount the insulated body on the chassis; (9) A.J. Refrigeration then installed the refrigeration unit and completed the modifications; (10) following assembly, A.J. Refrigeration tested the unit by leaving the engine running and the truck unattended with the manual transmission in neutral.

This cause of action arose prior to the effective date of the Product Liability Act, R.C. 2307.71 through 2307.80. However, as we noted in Anderson v. Olmsted Util. Equip., Inc. (1991), 60 Ohio St.3d 124, 573 N.E.2d 626, although this legislation is not technically applicable to cases arising before it was enacted, it "lends insight" into our analysis of whether A.J. Refrigeration may be a manufacturer for purposes of imposition of strict liability in tort. Id. at 127, 573 N.E.2d at 629. R.C. 2307.71(I) provides:

" 'Manufacturer' means a person engaged in a business to design, formulate, produce, create, make, construct, assemble, or rebuild a product or a component of a product." (Emphasis added.)

Under this definition an entity is a manufacturer if it assembles components into a design which creates a product. As a manufacturer, it can be subject to strict liability in tort if the product so created is defective and unreasonably dangerous.

Support for the view that a manufacturer who puts nondefective components together to make a defective product is subject to strict liability in tort is also implicit in our discussion of the liability of a manufacturer of a nondefective component in Temple v. Wean, supra. In Temple we said: "[T]he obligation that generates the duty to warn does not extend to the speculative anticipation of how manufactured components, not in and of themselves dangerous or...