Minnich v. Ashland Oil Co., Inc., 84-469

• Decision Date: 31 December 1984
• Docket Number: No. 84-469,84-469
• Citation: 473 N.E.2d 1199,15 OBR 511,15 Ohio St.3d 396
• Parties: , 15 O.B.R. 511 MINNICH et al., Appellants, v. ASHLAND OIL COMPANY, INC. et al., Appellees.
• Court: Ohio Supreme Court

Page 396

15 Ohio St.3d 396

473 N.E.2d 1199, 15 O.B.R. 511

MINNICH et al., Appellants, v. ASHLAND OIL COMPANY, INC. et al., Appellees.

No. 84-469.

Supreme Court of Ohio.

Dec. 31, 1984.

Syllabus by the Court

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. (2 Restatement of the Law 2d, Torts, Section 433[b], adopted.)

This action arose as the result of an explosion at the H.S. Crocker plant in Blue Ash, Ohio, on April 19, 1978.

John D. Minnich, hereinafter "appellant," worked for H.S. Crocker Co., a printing company. On the morning of April 19, 1978, appellant was cleaning a printing press by rubbing a solvent, ethyl acetate, into a chain in the press. Only a small segment of the chain was exposed at a time, and appellant would clean the exposed segment, then engage an electric motor to advance to the next segment of the chain to be cleaned. Appellant was severely and permanently injured when, while advancing the chain in the manner described above, an explosion occurred.

The complaint filed by John D. and Janice Minnich, appellants, alleged that Ashland Oil Co., Inc. and M.J. Daly Co., Inc., appellees, supplied ethyl acetate to H.S. Crocker Co. Appellants further alleged that appellees delivered the chemical to appellant's employer in a defective condition which rendered it unreasonably dangerous, due to the fact that appellees negligently failed to warn appellant that the chemical had flammable and explosive properties.

Appellees filed motions for summary judgment, arguing that appellants had failed to establish which appellee supplied the ethyl acetate that caused the explosion which injured appellant. Thus, appellees argued, appellants had not satisfied their burden of proving which appellee, specifically, was the proximate cause of appellant's injuries. The trial court granted summary judgment in favor of both appellees.

The court of appeals affirmed the trial court.

The cause is now before this court upon the allowance of a motion to certify the record.

Rendigs, Fry, Kiely & Dennis and J. Kenneth Meagher, Cincinnati, for appellants.

Waite, Schneider, Bayless & Chesley Co., L.P.A., and Troy W. Skeens, Jr., Cincinnati, for appellee Ashland Oil Co.

Bloom & Greene Co., L.P.A., James J. Montgomery and Stephen K. Shaw, Cincinnati, for appellee M.J. Daly Co.

JAMES P. CELEBREZZE, Justice.

In this case we are faced with determining whether Ohio should adopt the doctrine of alternative liability set forth in 2 Restatement of the Law 2d, Torts (1965) 441-442, Section 433(B)(3). For the following reasons, we have determined that fairness demands application of that doctrine to situations similar to the case at bar.

Section 433(B)(3) is an exception to the general rule that the burden of proof of proximate cause rests with the plaintiff. That section states:

"Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm."

The shifting of the burden of proof brought about by this doctrine avoids the "injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm." 2 Restatement of the Law 2d, Torts (1965) 446, Section 443(B)(3), Comment f.

It should be emphasized that under this alternative liability theory, plaintiff must still prove: (1) that two or more defendants committed tortious acts, and (2) that plaintiff was injured as a proximate result of the wrongdoing of one of the defendants. Only then will the burden shift to the defendants to prove that they were not the cause of plaintiff's injuries. This doctrine does not apply in cases where there is no proof that the conduct of more than one defendant has been tortious.

In recognizing the theory outlined above, we find it unnecessary to overrule this court's decision in Gedra v. Dallmer Co. (1950), 153 Ohio St. 258, 91 N.E.2d 256 . Paragraph two of the syllabus in that case reads:

" * * * [I]f the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible."

The Gedra rule was explained in Westinghouse Electric Corp. v. Dolly Madison Corp. (1975), 42 Ohio St.2d 122, 127, 326 N.E.2d 651 , as follows:

" * * * That rule merely states the logical principle that where several reasonable explanations of an event are possible, the disproof of all but one necessarily acts as the proof of that one, and there are cases where this method of proof is the only way in which plaintiff can make his case. The rule does not intrude on the jury's role as the finder of facts, nor does it impose on a plaintiff the burden of always effectively eliminating all other possible causes in order to make his case, which would impose a burden of proof analogous to the burden in criminal cases of proof beyond a reasonable doubt. Rather, the rule holds that where the facts from which an inference of probable proximate cause must be drawn are such that it is as reasonable to infer other causes, plaintiff has failed to supply proof of probable cause."

Though appellees argue, and the court of appeals accepted, the position that this court has, through its decisions in Gedra and Westinghouse, previously rejected the doctrine we adopt today, we find no support for that position. Both those cases are distinguishable from the case at bar in that they involve a single plaintiff and a single defendant, with allegedly multiple proximate causes for the plaintiff's injuries. In the instant case, however, plaintiffs allege two negligent defendants and a single proximate cause. We thus find our decision in Gedra inapplicable.

The court of appeals below viewed the Restatement theory and the Gedra rule as conflicting. That court rejected the rule we adopt today, and applied Gedra, to affirm the trial court's summary judgment for defendants. Consequently, no determination has been made as to whether either defendant committed a tortious act, or whether either defendant's act was the proximate cause of appellant's injuries. These issues must be decided by a trier of fact in order to apply the Restatement rule.

Accordingly, we reverse the decision of the court of appeals and remand this cause to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

FRANK D. CELEBREZZE, C.J., and SWEENEY and CLIFFORD F. BROWN, JJ., concur.

WILLIAM B. BROWN, LOCHER and HOLMES, JJ., dissent.

LOCHER, Justice, dissenting.

Although I concur with the position adopted by Justice Holmes in his dissent which follows, some additional observations are in order.

Recently this court has seemed to have overlooked the actual facts of the cases before us. This is done to create new law without regard to our institutional role as an appellate court. The readers of our opinions should, for example, review the records in Shinaver v. Szymanski (1984), 14 Ohio St.3d 51, 471 N.E.2d 477, and the various cases consolidated in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 472 N.E.2d 1046. Even a cursory inspection of the records in those cases, among others, would indicate the existence of undisputed evidence mandating different legal results. Similarly, the underlying facts in the instant case are superficially glossed over or ignored entirely by the majority.

Ironically, this case may create "good" law in the sense that alternative liability is now the law of this state. The price we must pay for that "good" law, however, is far too high.

The majority posits that the ends justify the means regardless of the costs to the defendants who must now offer legal defense to an otherwise feckless lawsuit and be tried for the second time on summary judgment. I reject this approach and would affirm summary judgment as a matter of law.

Courts derive their power from a tradition of acting only on the facts before them. As Justice Marshall recognized in Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60: "It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a case already instituted, and does not create that cause."

A review of the record before us indicates that the party defendants herein could not possibly be held liable under the theory of alternative liability since no evidence was adduced to support the preliminary allegations of tortious behavior necessary to sustain the theory. The evidence presented unequivocally demonstrates that the defendant chemical companies produced a product that contained adequate warnings and could not have been anticipated to be used in the manner which caused injury to the plaintiff herein. In spite of the fact the chemical containers were clearly marked and a separate letter was sent to plaintiff's employer...