Patterson v. Central Mills, Inc.

• Citation: 112 F.Supp.2d 681
• Decision Date: 21 August 2000
• Docket Number: No. 3:98CV7083.,3:98CV7083.
• Parties: Maurice PATTERSON, et al., Plaintiffs, v. CENTRAL MILLS, INC. d/b/a Freeze, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

112 F.Supp.2d 681

Maurice PATTERSON, et al., Plaintiffs, v. CENTRAL MILLS, INC. d/b/a Freeze, et al., Defendants.

No. 3:98CV7083.

United States District Court, N.D. Ohio, Western Division.

August 21, 2000.

COPYRIGHT MATERIAL OMITTED

William E. Armstrong, Buckley, King & Bluso, Cleveland, OH, John F. Bodie, Jr. Buckley, King & Bluso, Toledo, OH, Michael J. Goldman, Hawkins & Parnell, Atlanta, GA, for crossdefendant and defendant.

Richard F. Ellenberger, Law Offices of Robert M. Anspach & Associates, Toledo, OH, Mark A. Shaw, Fuller & Henry, Toledo, OH, for crossclaimant, crossdefendant and defendant.

Jeffrey M. Kerscher, Pheils & Wisniewski, OH, David R. Pheils, Jr., Pheils & Wisniewski, Perrysburg, OH, for plaintiff.

Dennis A. Lyle, Fuller & Henry, Toledo, OH, for crossclaim and defendant.

ORDER

CARR, District Judge.

This is a diversity case in which Plaintiff Maurice Patterson was severely injured when his shirt caught fire. Pending are Defendant Central Mills, Inc.'s ("Central Mills") motion for summary judgment (Doc. 66), Defendant Time Warner Entertainment Company, L.P.'s ("Warner") motion for summary judgment (Doc. 110), and Defendant Meijer, Inc.'s ("Meijer") motion for summary judgment (Doc. 111). For the following reasons, Central Mills's motion shall be granted in part and denied in part, Warner's motion shall be granted, and Meijer's motion shall be granted in part and denied in part.

BACKGROUND

Beatrice Patterson purchased a "Looney Tunes" shirt at Meijer for her eleven-year-old son, Maurice Patterson, in the fall of 1996. The Looney Tunes character "Taz" and related artwork were imprinted on the front and back of the shirt. The trade name "Freeze," a mark under which Central Mills markets such apparel, was also on the shirt. (See Ex. 4-5). Lastly, Warner's trade name, "An Official Looney Tunes Product," was imprinted on the shirt. (See Ex. 3).

On January 26, 1997, Maurice was watching the Super Bowl while his mother was sleeping. (Deposition of Maurice Patterson at 41, 53). During the Super Bowl, Maurice decided to cook himself some hot-dogs. (Id. at 46). After turning on the front burner of the gas stove, Maurice jumped on the counter to look for ketchup in the cabinets above the stove. (Id. at 45-50). While leaning over the stove, Maurice's shirt caught fire causing severe bodily injury to Maurice, including second and third degree burns over approximately thirty percent of his body. (Affidavit of Ms. Patterson).

Plaintiffs allege that the shirt was unreasonably flammable and that the shirt was the proximate cause of Maurice's injuries. Plaintiffs seek compensatory and punitive damages for negligence and breach of implied and express warranties. Plaintiffs also assert claims under the Ohio product liability statute and the Ohio Consumer Sales Practice Act. (See Second Amended Complaint).

In my Order dated April 27, 2000, I held that Central Mills, a supplier of the shirt at issue, should be deemed a "manufacturer" under Ohio Revised Code § 2307.78(B) because it marketed the shirt under its trade name "Freeze." (See Doc. 106). I further held that genuine issues of material fact exist as to whether Warner was a supplier of the shirt at issue, and, thus, as to whether Warner could be held liable in the place of a manufacturer pursuant to O.R.C. § 2307.78(B). (Id.).

STANDARD OF REVIEW

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

DISCUSSION

I. Central Mills

Central Mills argues that it is entitled to summary judgment because 1) plaintiffs' negligence was greater than any negligence on the part of defendants, 2) the shirt at issue was not defective under Ohio law; and 3) plaintiffs cannot support their claim under the Ohio Consumer Sales Practices Act. I disagree.

A. Contributory Negligence and Primary Assumption of Risk

Summary judgment in a defendant's favor on the issue of contributory negligence is appropriate only when there is "no dispute as to any material fact" and "the plaintiff's negligence [is] so extreme as a matter of law that no reasonable person could conclude that the plaintiff was entitled to recover." Collier v. Northland Swim Club, 35 Ohio App.3d 35, 39, 518 N.E.2d 1226 (1987). Moreover, in Ohio, children between the ages of seven and fourteen are presumed to be incapable of negligence. Stinespring v. Natorp Garden Stores, Inc., 127 Ohio App.3d 213, 218, 711 N.E.2d 1104 (1998); Holman v. Licking County, 107 Ohio App.3d 106, 113, 667 N.E.2d 1239 (1995). This presumption, however, can be rebutted by evidence indicating that the child failed to exercise such care as a child of the same age, capacity, education and experience would exercise under similar circumstances. Sorriento v. Ohio Dept. of Transportation, 61 Ohio Misc.2d 251, 257, 577 N.E.2d 167 (1988).

Here, Maurice was approximately eleven years old at the time of the accident, and, therefore, is presumed to be incapable of negligence. Central Mills has attempted to rebut this presumption by arguing that, even though he knew that fire was dangerous and that clothing was flammable, Maurice leaned over a gas burner while wearing a baggy t-shirt. Moreover, Central Mills contends that Maurice made the situation worse by failing to "stop, drop, and roll" even though he knew that he should do so in the event his clothing was on fire.

Viewing the evidence most favorably toward plaintiffs, I cannot find that Central Mills has rebutted the presumption that Maurice is incapable of negligence. Central Mills has not presented any evidence to show that a child of the same age, capacity, education and experience as Maurice would have behaved differently in the same situation. Nor can I conclude that Maurice's negligence, if any, is so extreme as a matter of law that no reasonable person could conclude that he was entitled to recover.

Central Mills further contends that Ms. Patterson should be precluded from recovery because her negligence was greater than fifty percent. Again, I disagree. Though Ms. Patterson was sleeping while her unsupervised son used the gas stove, I cannot find, as a matter of law, that her alleged negligence was so extreme that no reasonable juror could conclude that she was entitled to recover.

Accordingly, summary judgment on the issue of contributory negligence is inappropriate in this case. Collier, 35 Ohio App.3d at 39, 518 N.E.2d 1226.

Central Mills additionally argues that it is entitled to summary judgment because plaintiffs' claims are barred by the doctrine of primary assumption of the risk.

Primary assumption of the risk is invoked when the activity undertaken involves risks that are so inherent they cannot be eliminated. Collier, 35 Ohio App.3d at 37, 518 N.E.2d 1226. "The effect of raising primary assumption of the risk as a defense is to state, as a matter of law, that defendant owes no duty to plaintiff." Id. Primary assumption of risk is a complete defense against claims of negligence. Anderson v. Ceccardi, 6 Ohio St.3d 110, 113-114, 451 N.E.2d 780 (1983).

"The doctrine rests on the fiction that plaintiff has tacitly consented to the risk, thereby relieving defendant of any duty owed to him." Collier, 35 Ohio App.3d at 37, 518 N.E.2d 1226 (citing Prosser & Keeton, Torts (5 Ed.1984) 480, 481, Section 68). For example, the doctrine of primary assumption of the risk typically applies to spectators at a baseball game. See, e.g., Anderson, 6 Ohio St.3d. at 114, 451 N.E.2d 780; Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 180-181, 147 N.E. 86 (1925). This is because baseballs are batted with great swiftness and with no precise accuracy; thus, spectators who may be hit by errant fly balls assume that risk as a part of the sport. Cincinnati Baseball Club Co., 112 Ohio St. at 180-181, 147 N.E. 86.

Here, Central Mills argues that Maurice assumed the risk of injury by leaning over a gas stove while wearing a baggy t-shirt when the...