Schaffer by Schaffer v. A.O. Smith Harvestore Products, Inc.

Decision Date08 March 1996
Docket NumberNo. 94-3526,94-3526
Citation74 F.3d 722
PartiesProd.Liab.Rep. (CCH) P 14,477 Taaron SCHAFFER, a minor, BY her mother and next friend, Constance SCHAFFER; Leah Schaffer, a minor, by her mother and next friend, Jeanne Schaffer; Constance Schaffer, individually and as administrator of the estate of Gary L. Schaffer, deceased; and Jeanne Schaffer, individually and as administrator of the estate of David Schaffer, deceased, Plaintiffs-Appellants, v. A.O. SMITH HARVESTORE PRODUCTS, INC., A.O. Smith Corporation, Hedlund Manufacturing Company, and Gehl Company, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Frederick J. McGravran (argued), Frost & Jacobs, Cincinnati, OH, Robert S. Marshall (briefed), and James T. Ball (briefed), Chicago, IL, for Plaintiffs-Appellants.

Richard S. Walinski (argued and briefed), Margaret J. Lockhart (briefed), Cooper, Straub, Walinski & Cramer, Toledo, OH, Michael S. Scalzo (argued), and James H. Irmen (briefed), Marshall & Melhorn, Toledo, OH, for Defendants-Appellees.

James D. Dennis (briefed), Dayton, OH, Michael R. Thomas (briefed), Casper & Casper, Middletown, OH, Jeffrey W. Hutson, Lane, Alton & Horst, Columbus, OH, Kevin M. Reynolds (briefed), and Richard J. Kirschman, Whitfield & Eddy, Des Moines, IA, for Amici Curiae.

Before: JONES and BOGGS, Circuit Judges; CHURCHILL, District Judge. *

NATHANIEL R. JONES, Circuit Judge.

Plaintiffs, the two widows and two minor daughters of two deceased brothers, David Schaffer and Gary Schaffer, are appealing the district court's summary judgment for Defendant companies, A.O. Smith Corporation ("A.O. Smith"), A.O. Smith Harvestore Products, Inc. ("Harvestore"), Hedlund Manufacturing Company ("Hedlund"), and Gehl Company ("Gehl"), in this products liability action. For the reasons stated herein, we affirm the district court's grant of summary judgment as to all Defendants. We reverse, however, the holding of the district court regarding the application of Ohio Revised Code Sec. 2305.131 and the district court's finding that Ohio law precludes strict liability in failure to warn cases.

I

On June 26, 1989, the Schaffer brothers drowned in a six-foot-deep pit of liquified cow manure, located on their family dairy farm in Monroeville, Ohio. The pit was part of a manure collection system comprised of component parts manufactured and sold by Harvestore, Hedlund, and ADL Systems, Inc. ("ADL"). The brothers had been submerged for at least an hour and were found by their father, brother, and best friend. No one witnessed the incident; hence, it is not known with certainty how the deaths occurred. Plaintiffs' expert reconstruction of the accident has postulated that Gary fell into the pit while operating the pit pump after being overcome by gasses emanating from the manure, and his brother David drowned while trying to save him. Gary was found dressed in his street clothes and shoes, and with his wallet in his pocket; David apparently had removed his shirt, shoes, and socks prior to entering the pit.

The relevant facts prior to this accident follow. In the fall of 1978, the Schaffers built a barn for their cows, and installed a gutter cleaner in the floor of the barn that removed cow manure mechanically. As the Schaffers' system for handling manure was originally designed, the gutter cleaner conveyed the manure to an open yard where it was deposited into a loader or a spreader and then spread on the fields as fertilizer.

For various reasons, the Schaffers decided to modify their system for handling manure, and discussed their needs with Chuck Thompson, a salesman for Gateway Harvestore, Inc. ("Gateway"), a local agricultural equipment dealer. 1 Ultimately, the Schaffers chose to purchase a prefabricated concrete underground reception pit, a chopper-transfer pump, and an above-ground manure storage tank, "Slurrystore," and in early 1979, the Schaffers had all of these items installed on their farm as a "manure handling system." As conceived, in this handling system, the manure would be conveyed and dropped into the pit by the existing gutter cleaner as well as scraped from an outdoor yard. The chopper-transfer pump would be installed in the reception pit and would chop the manure into a slurry--a mixture of manure and water--and then transfer the mixture from the reception pit to the storage tank. This system was unique, fashioned to meet the Schaffers' individual needs, and contained components manufactured by various companies.

Based on Mr. Thompson's advice, the Schaffers selected the products they wished to purchase. Mr. Thompson submitted a purchase order to Gateway for the specific items. These items included an 8' (wide) X 10' (long) X 6' (deep) precast reception pit and lid manufactured by ADL, a chopper-transfer pump manufactured by Hedlund, and a Slurrystore manure storage tank manufactured by Harvestore. Gateway then ordered these products from the individual manufacturers, arranged delivery to the Schaffer farm, and selected independent contractors to install the various components.

In ordering the chopper-transfer pump, Mr. Thompson made a mistake and ordered a 7' pump instead of a 5' pump, and consequently the pump was too tall for the 6' deep pit. To remedy the problem, Gateway attached an angle-iron frame to the pit lid to elevate the pump so that it would fit into the pit.

Shortly after their first season with the new manure handling system, the Schaffers began to have freezing problems with the chopper-transfer pump. The freezing problems were due to the placement of part of the pump's plumbing above ground level and the frost line, rather than below ground and directly affixed to the tank. The Schaffers constructed a shed over the pit and chopper-transfer pump which it ventilated with two windows and three doors. The Schaffers used the system for the next ten years, running it every morning and afternoon. On two occasions they removed the chopper-transfer pump for repair.

At the time the Schaffer brothers died, there were two openings in the lid of the reception pit: a 2' X 10' scraper opening on the south side of the pit, and a 3' X 5' opening where the chopper-transfer pump sat mounted on the angle-iron frame. Although a large portion of the latter opening was covered by the pump and the mounting frame, there remained openings into the pit on either side of the pump frame as well as a small opening through the top of the frame. There were no grates covering any of the openings. Apparently, the Schaffer brothers entered the pit through one of these openings and drowned.

As a result of the drowning, Plaintiffs commenced a products liability action on June 25, 1991 against fourteen defendants, 2 alleging over one hundred counts. Between September 16, 1991 and October 27, 1993, all of the defendants to the original action and related counts were dismissed for various reasons, not related to this appeal, with the exception of the component manufacturers, ADL, Harvestore, and Hedlund, Hedlund's successor corporation, Gehl, and Harvestore's parent corporation, A.O. Smith. With respect to these defendants, the complaint alleged that they had been negligent in their manufacture and selling of the system's parts, were strictly liable for the fatalities, were in breach of warranty, and were liable for punitive damages. On August 12, 1993, the court granted them partial summary judgment on Plaintiffs' breach of warranty claims. Plaintiffs have not appealed this judgment. The Plaintiffs have appealed, however, the October 23, 1993 summary judgment granted to Defendant A.O. Smith. On February 4, 1994, ADL, the pit manufacturer, settled with the Plaintiffs, and a Stipulation and Order of Dismissal of ADL Systems was entered.

Harvestore, Hedlund, and Gehl, the remaining Defendants, were granted leave to file a second motion for summary judgment, and on April 1, 1994, the district court granted summary judgment on all of Plaintiffs' remaining claims. The Plaintiffs also appeal this grant of summary judgment.

II

"We review a district court's grant of summary judgment de novo. ... [I]n a motion for summary judgment, '[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.' " Russo v. Cincinnati, 953 F.2d 1036, 1041-42 (6th Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986), and citing Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990)).

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229 (6th Cir.1990). This means that after the opportunity for discovery, if the moving party demonstrates that there is no genuine issue of material fact as to the existence of any element essential to the non-moving party's case, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once this initial burden is met, it becomes the burden of the nonmoving party to come forward with specific facts, supported by the evidence in the record, upon which a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88...

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