Sams v. Englewood Ready-Mix Corp.

• Decision Date: 02 August 1969
• Docket Number: READY-MIX
• Citation: 22 Ohio App.2d 168,259 N.E.2d 507
• Parties: , 51 O.O.2d 315 SAMS, Appellant, v. The ENGLEWOODCORP. et al., Appellees.
• Court: Ohio Court of Appeals

Page 168

22 Ohio App.2d 168

259 N.E.2d 507, 51 O.O.2d 315

SAMS, Appellant, v.The ENGLEWOOD READY-MIX CORP. et al., Appellees.

Court of Appeals of Ohio, Second District, Montgomery County.

Aug. 2, 1969.

Syllabus by the Court

1.The duty to warn against unusual hazards is a source of tort liability.

2.Liability for negligence is based upon conditions involving unreasonable risk to another.The test for negligence is the conduct of a reasonably prudent person in like circumstances.

3.Damages may be recovered for an injury resulting from the negligent act of another if a reasonably prudent and careful person should have anticipated, under the same or similar circumstances, that injury to someone would result.

4.A product is inherently dangerous where danger of injury stems from the nature of the product itself and not from any defect in the product.

5.The caustic and corrosive qualities of concrete are not matters of such common knowledge as relieve the manufacturer and seller of ready-mix concrete of a duty to warn users of the danger inherent in its use.

6.A petition in which relief is sought on a claim of negligence, that defendant manufacturer and seller of ready-mix concrete knew of the dangerous qualities of such product and failed to warn the purchaser or user thereof raises issues of fact for the triers thereof.

Gallon & Miller, Dayton, for appellant.

Bieser, Greer & Landis, Dayton, for appellees.

SHERER, Judge.

Plaintiff, appellant herein, brought this action for damages in the Common Pleas Court of Montgomery County, alleging that defendants, appellees herein, manufactured and sold ready-mix concrete to one Bruce Savage for the purpose of constructing a patio at his home; that Savage told defendants that he intended doing the work himself; that plaintiff assisted Savage in spreading the concrete, as a consequence of which his trousers became wet with the concrete; and that his knees and legs were burned.Plaintiff alleged further that defendants knew that the product contained a highly corrosive and dangerous chemical which when combined with water, would produce a highly corrosive reaction when brought in contact with the human skin for long periods of time.Plaintiff alleged further that defendants knew, or should have known, the aforementioned properties of its inherently dangerous product and failed to give any warning to Savage or plaintiff of the inherent danger in their use of the product.

Defendants demurred to plaintiff's amended petition for the reason that it did not state a cause of action, and the Common Pleas Court sustained the demurrer.When plaintiff filed a second amended petition containing the same allegations, the court struck same from the files.Plaintiff's motion for reconsideration was overruled, and this appeal is from those orders.

The action of the Common Pleas Court was based upon the holdings of the courts in the following cases:

Katz v. Arundel-Brooks Concrete Corp., 220 Md. 200, 151 A.2d 731, 78 A.L.R.2d 692;Baker v. Stewart Sand and Material Co.(Mo.App.), 353 S.W.2d 108;Dalton v. Pioneer Sand & Gravel Co., 37 Wash.2d 946, 227 P.2d 173;Simmons v. Rhodes & Jamieson Ltd., 46 Cal.2d 190, 293 P.2d 26;andImperial v. Central Concrete, Inc., 1 App.Div.2d 671, 146 N.Y.S.2d 307, affirmed, 2 M.Y.2d 939, 162 N.Y.S.2d 35, 142 N.E.2d 209.

Those cases hold that it is a matter of common knowledge that concrete contains lime which is a corrosive substance and that there is no duty on the part of the manufacturer or vendor of such products to warn purchasers of this fact.

Plaintiff's amended petition seeks relief upon a claim of negligence in that defendants knew of the dangerous qualities of ready-mix concrete and failed to warn...