Miles v. General Tire & Rubber Co.

• Decision Date: 21 June 1983
• Citation: 10 OBR 258,460 N.E.2d 1377,10 Ohio App.3d 186
• Court: Ohio Court of Appeals
• Parties: , 10 O.B.R. 258 MILES, Appellant, v. GENERAL TIRE & RUBBER COMPANY et al., Appellees.

Page 186

10 Ohio App.3d 186

460 N.E.2d 1377, 10 O.B.R. 258

MILES, Appellant, v. GENERAL TIRE & RUBBER COMPANY et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 21, 1983.

Syllabus by the Court

1. There is no logical reason to distinguish commercial lessors from manufacturers or sellers for the application of strict liability for dangerously defective goods.

2. When determining if a lessor is a "commercial lessor" so that the theory of strict liability is applicable, the inquiry should be whether the lessor is in the business of leasing the product in the same sense as a seller of a product is in the business of manufacturing, selling or retailing the product.

3. Considerations that are to be taken into account to determine whether an utterance qualifies as an "excited utterance" under the Evid.R. 803(2) exception to the hearsay rule are: (1) the lapse of time between the event and the declaration; (2) the mental and physical condition of the declarant; (3) the nature of the statement; and (4) the influence of intervening circumstances.

E. Bruce Hadden, Columbus, for appellant.

Vorys, Sater, Seymour & Pease, Herbert R. Brown and Mary Ellen Fairfield, Columbus, for appellee General Motors Corp.

McNamara & McNamara and John L. Miller, Columbus, for appellee BCJ Corp.

Porter, Wright, Morris & Arthur and Terrance M. Miller, Columbus, for appellee General Tire & Rubber Co.

Crabbe, Brown, Jones, Potts & Schmidt and William T. McCracken, Columbus, for appellee George Byers Sons, Inc.

David L. Day, Columbus, for appellee Leslie Fay, Inc.

Sanford, Fisher, Fahey & Boyland and Richard P. Fahey, Columbus, for appellees Haymaker, David Crystal Co. and General Milles, Inc.

McCORMAC, Judge.

Plaintiff-appellant, Jayne Miles, was a passenger in a 1978 General Motors Corporation motor home which collided with a guardrail, causing the gas tanks to rupture. The gasoline, which escaped, caught fire. While attempting to leave from the only exit door in the motor home, plaintiff received severe burns.

Plaintiff originally joined General Motors Corporation ("GMC"), the manufacturer; George Byers Sons, Inc. ("Byers"), the original seller of the motor home; General Tire & Rubber Co. ("GTR"), the manufacturer of the tires used on the motor home; and BCJ Corporation ("BCJ"), the lessor of the motor home, as defendants. The primary thrust of plaintiff's claims was that the GMC motor home was defective in its design, since the only exit door was located directly over the gasoline tanks, and that the tires placed on the motor home were overloaded and not appropriate for that type of vehicle.

At the close of plaintiff's opening statement, the trial court directed a verdict in favor of BCJ. GTR and Byers received directed verdicts at the conclusion of plaintiff's case. The jury returned a verdict in favor of plaintiff against defendant GMC in the amount of $60,000.

Plaintiff subsequently executed covenants not to sue with GMC, GTR and Byers. This appeal is against BCJ only.

Plaintiff has asserted the following assignments of error:

"1. The Trial Court erred in directing a verdict in favor of Defendant, BCJ, Inc., after Plaintiff's amended opening statement.

"2. The Trial Court erred in excluding the General Tire & Rubber Co. recall letters.

"3. The Trial Court erred in permitting Officer Jenis to testify that Axel Baudach (the driver of the motor home) told him in the emergency room, 'I may have dozed off for a second.' "

In her complaint, plaintiff alleged that BCJ is an Ohio corporation with its principal place of business in Columbus and that it was formed for the purpose of leasing motor homes, including the motor home involved in this case. BCJ answered, admitting those allegations.

Plaintiff also alleged that the motor home was defectively designed because of the location of the only exit door from the motor home over the gas tanks, and that tires were installed on the vehicle which were overloaded and likely to rupture. Plaintiff further alleged that defendants knew of these defects and failed to give notice to the lessee.

BCJ denied the allegations of defects and failure to warn.

Plaintiff gave a lengthy opening statement to the jury where the nature of the motor home and its alleged defects were described in detail. The only reference to BCJ was that it leased the motor home to plaintiff's parents, who were also occupants at the time of the crash and fire.

Following the opening statement, BCJ moved for a directed verdict, which was granted, and BCJ was dismissed from the case. The trial court gave no reason for the directed verdict nor was any reason requested on the record.

The primary issue is whether the trial court erred in directing a verdict against plaintiff in favor of BCJ based upon the allegations of the opening statement. From the opening statement and pleadings, it must be assumed that BCJ is a commercial entity whose business is leasing motor homes and that it leased a motor home that was defectively designed to plaintiff's parents for her use also and that, as a result of the defective design or overloading of the tires, plaintiff was proximately injured.

The size or volume of BCJ's business as a commercial entity leasing motor homes was not before the trial court when it granted a directed verdict on the opening statement.

As recently stated by the Ohio Supreme Court:

"A trial court should exercise great caution in sustaining a motion for a directed verdict on the opening statement of counsel; it must be clear that all the facts expected to be proved, and those that have been stated, do not constitute a cause of action * * * and the statement must be liberally construed in favor of the party against whom the motion has been made." Brinkmoeller v. Wilson (1975), 41 Ohio St.2d 223, 325 N.E.2d 233 , syllabus.

A directed verdict can only be sustained if a lessor of motor homes has no responsibility for injuries caused by the defective design of a motor home commercially leased by it.

In Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267 , paragraph one of the syllabus, the Supreme Court held that there is a cause of action in strict liability against one who sells a product in a defective condition unreasonably dangerous to the user or consumer for physical harm thereby caused if the seller is engaged in the business of selling such a product which is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. Temple was predicated upon Section 402A of Restatement of Torts 2d.

In paragraphs one and two of the syllabus of Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456, 424 N.E.2d 568 , the Supreme Court adopted Section 402A for design defects as follows:

"1. A cause of action for damages for injuries caused or enhanced by a product design defect will lie in strict liability in tort. (Temple v. Wean United, Inc., 50 Ohio St.2d 317, 364 N.E.2d 267 , approved and followed.)

"2. A product is in a defective condition unreasonably dangerous to the user or consumer if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." See, also, Knitz v Minster Machine Co. (1982), 69 Ohio St.2d 460, 432 N.E.2d 814 .

BCJ argues that Temple, Leichtamer and Knitz apply only to sellers and manufacturers and do not apply to lessors even though the lessor may be in the business of leasing the product. Plaintiff concedes that the consumer expectation test for strict liability for design defects has not specifically been extended to lessors in Ohio, but argues that such extension should be made in accordance with the trend in other jurisdictions and the weight of authority.

There is no logical reason to distinguish commercial lessors from manufacturers or sellers for the application of strict liability for dangerously defective goods. Commercial lessors, like manufacturers and sellers, regularly introduce potentially dangerous products into the stream of commerce and similarly are in a better financial and technical position than lessees to insure against the risk of injuries from defectively designed products. Commercial lessors are also better able to analyze the potential danger of a product than lessees since they deal regularly with the product. See Brimbau v. Ausdale Equip. Rental Corp. (R.I.1982), 440 A.2d 1292. Jurisdictions which have held that commercial lessors should be held strictly liable for leasing defective products are as follows: Bachner v. Pearson (Alaska 1970), 479 P.2d 319; Lechuga, Inc. v. Montgomery (1970), 12 Ariz.App. 32, 467 P.2d 256; Price v. Shell Oil Co. (1970), 2 Cal.3d 245, 85 Cal.Rptr. 178, 466 P.2d 722; McClaflin v. Bayshore Equip. Rental Co. (1969), 274 Cal.App.2d 446, 79 Cal.Rptr. 337; Martin v. Ryder Truck Rental, Inc. (Del.1976), 353 A.2d 581; Stewart v. Budget Rent-A-Car Corp. (1970), 52 Haw. 71, 470 P.2d 240; Galluccio v. Hertz Corp. (1971), 1 Ill.App.3d 272, 274 N.E.2d 178; Crowe v. Public Building Comm. of Chicago (1978), 74 Ill.2d 10, 23 Ill.Dec. 80, 383 N.E.2d 951; Perfection Paint & Color Co. v. Konduris (1970), 147 Ind.App. 106, 258 N.E.2d 681; Gabbard v. Stephenson's Orchard, Inc. (Mo.App.1978), 565 S.W.2d 753; Cintrone v. Hertz Truck Leasing & Rental Service (1965), 45 N.J. 434, 212 A.2d 769; Stang v. Hertz Corp. (1972), 83 N.M. 730, 497 P.2d 732; Nastasi v. Hochman (1977), 58 A.D.2d 564, 396 N.Y.S.2d 216; Dewberry v. LaFollette (Okl.1979), 598 P.2d 241; Fulbright v. Klamath Gas Co. (1975), 271 Or. 449, 533 P.2d 316; Tillman v. Vance Equip. Co. (1979), 286 Or. 747, 596 P.2d 1299; Francioni v. Gibsonia Truck Corp. (1977), 472 Pa. 362, 372 A.2d 736; Nath v. National Equip. Leasing Corp. (1981), 497 Pa. 126, 439 A.2d 633; Brimbau v. Ausdale Equip. Rental Corp., supra; Rourke v. Garza (Tex.Civ.App.1974), 511 S.W.2d 331; George v. Tonjes (D.C.Wis.1976), 414 F.Supp. 1199.

The trial...