Lonzrick v. Republic Steel Corp.

• Decision Date: 25 February 1965
• Citation: 205 N.E.2d 92,1 Ohio App.2d 374
• Parties: , 30 O.O.2d 391, 2 UCC Rep.Serv. 756 LONZRICK, Appellant, v. REPUBLIC STEEL CORP., Appellee.
• Court: Ohio Court of Appeals

Page 374

1 Ohio App.2d 374

205 N.E.2d 92, 30 O.O.2d 391, 2 UCC Rep.Serv. 756

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

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

Feb. 25, 1965.

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

Jones, Day, Cockley & Reavis, Cleveland, for appellee.

SKEEL, Judge.

This appeal comes to this court from a judgment entered from the defendant by the Court of Common Pleas of Cuyahoga County. The action is one for money only. The plaintiff alleges in his petition that he suffered certain personal injuries when 'steel bar joists' manufactured by the defendant, which had been placed in a building, collapsed and fell down upon him. The plaintiff was a construction worker employed by a sub-contractor, the Valley Steel Erectors, Inc. The joists were purchased from the defendant by the general contractor. The cause of action, as stated by the plaintiff, is based on a claim of a breach of the duty imposed by law on the defendant to furnish merchantable joists to the general contractor. No claim of privity between the plaintiff and defendant is stated in the petition, and under the facts stated no such claim could be made.

We are, therefore, confronted with the question whether the petition states a cause of action. If the rule of the case in Wood v. General Electric Co. (1953), 159 Ohio St. 273, 112 N.E.2d 8, is to be found applicable, then the court's order sustaining the demurrer filed by the defendant to plaintiff's petition and entering judgment for the defendant, the plaintiff not desiring to plead further, must be affirmed.

This question requires a survey of the rapidly changing theory of 'product liability.' The earlier rule, requiring privity between buyer and seller as a basis for creating liability under and express warranty grew out of the proposition that no such obligation was created until a promise was separately made upon request of the buyer. Such a warranty was said to be collateral in character and enforceable by an action in tort. As then understood, a breach of such a promise did not breach the contract of sale, and, without such a collateral promise, the doctrine of caveat emptor applied. The transaction of product liability from caveat emptor to strict tort liability, regardless of privity, where the manufacturer or dealer induces the sale under the law of express warranty, is set out in the case of Rogers v. Toni Home Permanent Co., 105 Ohio App. 53, from page 56 to page 76, inclusive, 139 N.E.2d 871, which statement of the law we hereby adopt without quoting at length.

An implied warranty is one imposed by law which under the Uniform Commercial Code dealing with sales, Section 1302.27, Revised Code, writes into an agreement of sale certain obligations imposed upon the seller by law and requires the seller to be responsible for certain qualities to be possessed by the goods sold unless clearly negated by the sales contract. This statute does not deal with the rights of third persons not parties to the sale who come into possession of the goods and use them in the manner intended by the manufacturer and are thereby injured by reason of the faulty condition of the goods latent in character due to improper manufacture or the use of faulty materials. The rule, as developed by the cases, was clearly stated by the Supreme Court of West Virginia in the case of Peters v. Johnson, Jackson & Co. (1902), 50 W.Va. 644, at page 647, 41 S.E. 190, page 191, 57 L.R.A. 428, where it is said:

'* * * The question is, has the defendant broken a duty apart from the contract? If he has simply broken his contract none can sue him but a party to it; but if he violated a duty to others, he is liable to them. * * *'

That was one of the earlier cases dealing with product liability involving an injury to the plaintiff when saltpeter was mistakenly delivered for epsom salts by a druggist to a member of the household. Thereafter, plaintiff, a visitor at such household, used the mislabeled drug. The case was decided for the plaintiff because of the danger created to all who might be expected to be misled by the false label erroneously put on the container of a dangerous drug.

In 'Handbook Of The Law Of Torts' by Dean William L. Prosser (Second Ed.), Chapter 17, at page 497, the author states under the heading 'Liability of Suppliers to Third Persons':

'84. It is now generally agreed that a seller, or other supplier of chattels for a consideration, may be liable for harm to the person or property of a third person who may be expected to be in the vicinity of the chattel's probable use, if he has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied.'

See, also, Chapter 19, Sections 97, 98 and 99, beginning at page 672, of the Third Ed. of the same work.

That such a strict tort liability could be enforced by persons not parties to the agreement of purchase was not recognized until recent years. The author at page 497 cites the case of Winterbottom v. Wright (1842), 10 M. & W. 109, 11 L.J.Ex. 415, 152 Eng.Rep. 402, as the basic authority denying liability of the manufacturer to third persons injured by the proper use of a negligently constructed product. With a few exceptions (dealing with food and inherently dangerous products) the rule as thus stated continued until 1916 when the case of MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F 696, Ann.Cas. 1916C 440, was decided, Judge Cardozo writing the majority opinion. The facts of the MacPherson case were that MacPherson (the ultimate purchaser) purchased a new Buick automobile from a dealer. The wooden spokes of one of the wheels collapsed whereby plaintiff (purchaser) was injured. Beginning on page 499 of Prosser's work on Torts (supra), the author says 'Cardozo's opinion struck through the fog of the 'general rule' and its various exceptions, and held the maker liable for negligence. On its face the decision purported merely to extend the class of 'inherently dangerous' articles to include anything which would be dangerous if negligently made. But its reasoning and fundamental philosophy was clearly that the manufacturer, by placing the car upon the market, assumed a responsibility to the customer, resting not upon the contract but on a relation arising from his purchase, and the foreseeability of harm if proper care were not used. * * *'

The theory of liability of the manufacturer or producer of chattels to the ultimate consumer without privity for negligence in producing the property, which negligence proximately caused injury or damage to the ultimate consumer while in the proper use of the property, is now almost universally accepted. Only the difficulty of proving negligence in the manufacturing process prevents such remedy from giving adequate relief to the ultimate consumer injured as a proximate result of the lack of care in producing the goods purchased. However, with the right to pursue the manufacturer for damages due to dangers created by the negligent manufacture of his product, based on negligence, it was to be expected that the law would expand carrying the responsibility of a manufacturer for the negligent or careless manufacture of his goods, which carelessness created a danger to the consumer when using them in a proper manner, even further and find (as is true as to all persons whose negligence proximately causes injuries to others) grounds for enforcing strict tort liability against the producer whose negligence or lack of reasonable care in producing the goods is the direct cause of injury to the consumer. The source of such an obligation, when recognized, is created by law and has no dependence whatever on contractual relations between the parties. The soundness of this result is established by the weight of authority in recent decisions by many of the courts of last resort in the several states.

In the case of Bender v. Champion Lamp Works Division of Consolidated Electric Lamp Co., 40 Misc.2d 139, 242 N.Y.S.2d 835, the action was for consequential damages sustained by husband and wife when a projector-type flood light manufactured by the defendant exploded or imploded when the wife was removing it from the electrical socket after it ceased to function. The defendant moved to dismiss the cause because the action was based on implied warranty even though there was no privity between the parties. In the headnote of the New York Supplement Reporter, 2d Series, it is said:

'An ultimate consumer of a projector type flood light could maintain a cause of action for breach of implied warranty of merchantability against manufacturer following explosion of the light as she attempted to unscrew it from a socket, even though there was no privity of contract between the parties.'

At page 140 of 40 Misc.2d, page 837 of 242 N.Y.S.2d, the court states:

'The long established court-made rule requiring privity of contract between parties in an action for breach of warranty * * * has been overturned by two recent landmark decisions of the Court of Appeals (Greenberg v. Lorenz, 9 N.Y.2d 195, 213 N.Y.S.2d 39, 173 N.E.2d 773 [1961]; Randy Knitwear v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399 [1962] * * *.'

And then, on page 141, 242 N.Y.S.2d page 837, the court said:

'Moreover, in a number of modern decisions involving suits by consumers against suppliers where technical privity was lacking, this trend has been continued. (Thomas v. Leary, 15 A.D.2d 438, 225 N.Y.S.2d 137 * * *; Simpson v. Eichenbrunner, 31 Misc.2d 958, 217 N.Y.S.2d 678 * * *; Amie v. Laure, 16 A.D.2d 736(22), 226 N.Y.S.2d 832 * * *; Williams v. Union Carbide Corp., 17 A.D.2d 661(30), 230 N.Y.S.2d 476 * * *.) If the strict requirement of privity is to be liberalized, the distinguishing facts in this case from those in the cases cited would not be controlling. To decide for the plaintiff here is another 'logical and...