Lonzrick v. Republic Steel Corp.

• Citation: 35 O.O.2d 404,218 N.E.2d 185,6 Ohio St.2d 227
• Decision Date: 15 June 1966
• Docket Number: No. 39493,39493
• Parties: , 35 O.O.2d 404, 3 UCC Rep.Serv. 535 LONZRICK, Appellee, v. REPUBLIC STEEL CORP., Appellant.
• Court: United States State Supreme Court of Ohio

Page 227

6 Ohio St.2d 227

218 N.E.2d 185, 35 O.O.2d 404, 3 UCC Rep.Serv. 535

LONZRICK, Appellee, v. REPUBLIC STEEL CORP., Appellant.

No. 39493.

Supreme Court of Ohio.

June 15, 1966.

Syllabus by the Court

1. The plaintiff in a products liability case is not restricted to prosecuting his action on the basis of negligence alone but may proceed in an action in tort based upon the theory of an implied warranty, notwithstanding that there is no contractual relationship between the plaintiff and the defendant. (Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103, and Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583, approved and followed; paragraph two of the syllabus of Wood v. General Electric Co., 159 Ohio St. 273, 112 N.E.2d 8, and Welsh v. Ledyard 167 Ohio St. 57, 146 N.E.2d 299, overruled.)

2. Where the allegations of a petition and the reasonable inferences therefrom establish that the defendant manufactured and sold certain steel roof joists and impliedly warranted that they were fit for the ordinary purposes for which such steel joists were to be used, and where such joists were defective because they were not fit for the ordinary purposes for which such joists were to be used, and as a direct and proximate result of being so defective these joists collapsed and fell upon the plaintiff and injured him while he was working in a place where his presence was reasonably to be anticipated by the defendant, such petition states a good cause of action in tort based upon the theory of breach of implied warranty.

The facts are stated in the opinion.

Hahn & Swadey and Lad J. Roth, Cleveland, for appellee.

Jones, Day, Cockley & Reavis, Edward P. Troxell and Robert J. Hoerner, Cleveland, for appellant.

O'NEILL, Judge.

Plaintiff filed a petition in the Common Pleas Court of Cuyahoga County which alleges:

'On August 22, 1960, at about 10:30 a. m., plaintiff, who was then in the employ of Valley Steel Erectors, Inc., * * * was engaged in his usual occupation of structural iron worker on certain premises known as the 'Stow Industrial Park' located in or near Stow, Ohio, where a new warehouse business was then under construction.

'At said time and place, while he was working on the ground in an area where certain steel roof joists manufactured and sold by defendant had been installed directly overhead, a number of such joists collapsed and fell down upon plaintiff, causing him injuries and damages hereinafter set forth.

'* * *

'Prior to the occurrence of August 22, 1960, defendant impliedly warranted that the said roof joists were of good and merchantable quality, but said implied warranty was breached by defendant in that said roof joists were not of good and merchantable quality.

'By reason of such breath of warranty on the part of the defendant, the said roof joists came apart in use and fell upon plaintiff while he was working below them in a place in which his presence was reasonably to be anticipated by defendant. As a direct and proximate result, plaintiff sustained the following injuries and damages * * *.'

Defendant's demurrer to the petition was sustained, and plaintiff not desiring to plead further, his action was dismissed and judgment was entered for the defendant.

On appeal, the Court of Appeals reversed the judgment of the Common Pleas Court and remanded the cause to the Common Pleas Court with instructions to overrule the demurrer and for further proceedings according to law.

It may be that the petition in the instant case would be subject to a motion to make some of its allegations definite and certain, especially those allegations as to the implied warranty 'of good and merchantable quality' and as to the joists not being 'of good and merchantable quality.' However, defendant waived its right to file such motion by filing its demurrer. Clay v. Edgerton, 19 Ohio St. 549. Thus, for the purpose of testing the legal sufficiency of the petition, defendant's demurrer must be regarded as admitting the truth of the facts alleged and whatever other facts which can by fair and reasonable intendment be inferred from those facts. Guardian Life Ins. Co. of America v. Veser, 128 Ohio St. 200, 190 N.E. 405; Gugle v. Loeser, 143 Ohio St. 362, 55 N.E.2d 580; Bell v. Salvation Army, 172 Ohio St. 326, 175 N.E.2d 738.

The allegations of the petition and all reasonable inferences therefrom will support the following statement of facts:

Defendant manufactured and sold certain steel roof joists. In selling those joists, defendant impliedly warranted that they were fit for the ordinary purposes for which such steel roof joists are used. (Section 1302.27, Revised Code, reads in part: 'Goods to be merchantable must be at least such as * * * (3) are fit for the ordinary purposes for which such goods are used.') Those joists were defective because they were not fit for the ordinary purposes for which such joists are used. As a proximate result of being so defective, those joists came apart and fell on and injured plaintiff. At that time, plaintiff was working as a structural iron worker on the ground in an area where the joists had been installed directly overhead and was thus in a place where his presence was reasonably to be anticipated by defendant.

The Court of Appeals held that this petition states a good cause of action in tort, based upon the theory of breach of warranty.

This is a products liability case. In such a case, there are three possible causes of action which the plaintiff may pursue:

(1) An action in tort which is grounded upon negligence. Such cause of action does not require the allegation of a contractual relationship between the plaintiff and the defendant. The petition in this case does not allege negligence and does not state facts which constitute negligence.

(2) A cause of action which is based upon contract. Such a cause of action requires that there be a contractual relationship between the plaintiff and the defendant. The petition in this case does not allege a contract and it does not allege a breach of a contractual warranty. It does not allege any contractual relationship between the plaintiff and the defendant.

(3) An action in tort which is based upon the breach of a duty assumed by the manufacturer-seller of a product. This duty is assumed by the manufacturer by reason of his implicit representation of good and merchantable quality and fitness for intended use when he sells the product. This duty is breached when a defect in the product causes the collapse of the product and is the direct and proximate cause of injury to a person whose presence the defendant could reasonably anticipate. This is the cause of action which the petition in this case states.

In this action the plaintiff is required to allege and prove that there was a defect in the steel joists manufactured and sold by the defendant, that such defect existed at the time the joists were sold by the defendant, that the defect was the direct and proximate cause of plaintiff's injuries, and that the plaintiff, at the time he was injured, was in a place where his presence was reasonably to be anticipated by the defendant.

It is conceded by both parties that the plaintiff does not have an action based upon a contract because there was no contract of sale between the plaintiff and the defendant and, therefore, no contractual relation (privity) between the parties.

The position of the defendant is that the plaintiff's petition does not state a cause of action because it does not allege negligence, does not allege an express warranty and does not allege any contractual relationship between the plaintiff and the defendant.

The plaintiff concedes that this petition does not allege negligence, does not allege an express warranty and does not allege any contractual relationship between the plaintiff and the defendant. The plaintiff asserts that the petition states a cause of action in tort based upon an implied warranty.

The basic question for the court to decide is the same as the question was in Welsh v. Ledyard, 167 Ohio St. 57, 146 N.E.2d 299, in Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, 147 N.E.2d 612, 75 A.L.R.2d 103, and in Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583. Is the plaintiff restricted to prosecuting his action for damages on the basis of negligence alone, or may he proceed in tort on the theory of breach of warranty?

The precise questions this court is required to determine are: (1) Where a defendant manufactures and sells steel roof joists, is there implicit in the production and sale of this product the representation that the joists are of good and merchantable quality and safe for their ordinary intended use? and (2) when, in fact, such steel joists were defective and while being devoted to their ordinary intended use collapsed because of such defect and fell to the floor and injured the plaintiff, who was working on the floor below these steel roof joists in a place where his presence was reasonably to be anticipated by the defendant manufacturer, is such innocent injured party restricted to prosecuting a tort action for damages on the basis of negligence alone, or may he proceed in tort on the theory of an implied warranty?

The defendant relies upon the cases of Wood v. General Electric Co., 159 Ohio St. 273, 112 N.E.2d 8, and Welsh v. Ledyard, 167 Ohio St. 57, 146 N.E.2d 299.

Welsh v. Ledyard, supra, decided November 27, 1957, is the high-water mark for this court in the assertion of the principle of law that an action for a breach of warranty is an action in contract, and, whether it be an express or an implied warranty, there can be no recovery unless there is a direct contractual relationship between the plaintiff and the defendant.

In Ledyard, supra, a housewife was injured by an electrical shock when she grasped the handle of a defective electrical cooking applicance which her husband had...