Temple v. Wean United, Inc., No. 76-946

CourtUnited States State Supreme Court of Ohio
Writing for the CourtCELEBREZZE; C. WILLIAM O'NEILL; C. WILLIAM O'NEILL
Citation4 O.O.3d 466,50 Ohio St.2d 317,364 N.E.2d 267
Decision Date29 June 1977
Docket NumberNo. 76-946
Parties, 4 O.O.3d 466 TEMPLE et al., Appellants, v. WEAN UNITED, INC., et al., Appellees.

Page 317

50 Ohio St.2d 317
364 N.E.2d 267, 4 O.O.3d 466
TEMPLE et al., Appellants,
v.
WEAN UNITED, INC., et al., Appellees.
No. 76-946.
Supreme Court of Ohio.
June 29, 1977.
Syllabus by the Court

1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

[364 N.E.2d 269] 2. The rule stated above applies although the seller has exercised all possible care in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller.

3. Where at the time of manufacture and sale the dual activating buttons on a power press are located at shoulder height, and thereafter a purchaser of the press positions the buttons at waist height, facing upwards and 24 inches apart, there has been a "substantial change" from the condition in which the power press was originally sold. The purchaser's employee cannot, therefore, successfully sue the manufacturer or the prior owner of the press on a theory of strict liability in tort for injuries suffered as a result of her accidental depression of the operating buttons.

4. There is no duty to warn extending to the speculative anticipation

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of how manufactured components, not in and of themselves dangerous or defective, can become potentially dangerous dependent upon their integration into a unit designed and assembled by another.

5. Where an order of the Industrial Commission specifies that either a fixed barrier guard or a two-hand tripping device is an acceptable method of guarding a power press, a manufacturer is not negligent in designing a press which utilizes a two-hand tripping device.

On January 25, 1972, appellant, Beverly A. Temple, was operating a Warco 75 ton power punch press in the course of her employment at Superior Metal Products, Inc. (Superior). As Mrs. Temple placed an aluminum extrusion into the back die of the press, an unknown number of extrusions fell from the bolster plate, in front of her, onto the dual operating buttons, causing the press to close on her arms. As a result, Mrs. Temple's hands and forearms were crushed, requiring amputation of both arms just below the elbow.

The history of the machine is material. The press was manufactured and sold in 1954 by Federal Machine & Welder Company, now Wean United, Inc. (Wean), to a division of the General Motors Corporation (G. M.). At the time of manufacture two hand-operated "run" buttons were mounted on the uprights of the press, at shoulder level. In July of 1971, the press was sold by G. M. to Turner Industries, and Turner immediately sold the press to Temple's employer.

Upon receipt of the press, Superior personnel modified the operating control circuits by replacing the single clutch valve with a safer dual valve, and by replacing the original rotary switch. In addition, Superior installed new operating

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buttons which were manufactured by the Square D Company (Square D). Pursuant to a standard company policy, Superior's engineers positioned the buttons waist high, in an upward position, 24 inches apart. The press was then put into operation, stamping out metal bowls, no larger than nine inches in diameter.

On the day of the accident the dies were changed and 36 inch linear stock was run through the press. It is not disputed that the accident occurred when several pieces of the 36 inch stock fell off the bolster and bridged the dual operating buttons, thus simultaneously depressing them. Stated otherwise, it is clear that there was no malfunction in the press or in any of its component parts.

On January 18, 1974, Mrs. Temple, together with her husband, Gary L. Temple, filed a complaint against Wean, G. M. and Square D, and also against the Minster Machine Co. and Turner Industries, the latter two no longer remaining as parties to this action. During the months of June and July, 1974, appellants deposed individuals who had witnessed and investigated the accident, and also inspected the power press. Appellants subsequently served appellees with lengthy interrogatories, to which answers were filed over a period of several months.

On February 5, 1975, Mrs. Temple was deposed by appellees, and shortly thereafter all appellees filed motions for summary [364 N.E.2d 270] judgment. When appellants filed notices to depose certain of appellees' company officers, appellees moved for protective orders, seeking to delay such depositions until the trial court ruled upon their motions for summary judgment. After a hearing, on April 21, 1975, the trial court granted appellees' motions for protective orders.

During the next four months all parties filed memoranda in support of their respective positions, and on November 21, 1975, the trial court granted the motions for summary judgment as to all appellees.

The Court of Appeals affirmed the judgment, and the cause is now before this court pursuant to the allowance of a motion to certify the record.

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Tyack, Scott & Colley, Michael F. Colley, and Dennis N. Balske, Columbus, for appellants.

Blake, Blake & Faulkner Co., L.P.A., Rodney R. Blake, Jr., Richard Wallace, Sidney, Finn, Manahan & Pietrykowski, John A. Pietrykowski, Toledo, Wright, Harlor, Morris & Arnold, Harry Wright, III, and Terrance M. Miller, Columbus, for appellees.

CELEBREZZE, Justice.

I.

This is a products liability action brought under theories of negligence, implied warranty, and strict liability in tort. The latter two counts are virtually indistinguishable, 1 and appellants concede by their brief that implied warranty has been included as a theory of liability in order to comply with the terminology of Ohio law.

The paramount Ohio decision in the law of products liability is Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 218 N.E.2d 185. In Lonzrick this court traced the "slow, orderly and evolutionary development" in this area, and noted that Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, 147 N.E.2d 612, and Inglis v. American Motors Corp. (1965), 3 Ohio St.2d 132, 209 N.E.2d 583, provided the consumer with a cause of action in tort, based upon the breach of an express warranty, notwithstanding the lack of a contractual relationship between plaintiff and defendant. Whereas Rogers and Inglis imposed a warranty upon the manufacturer because of its advertising

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to the public, Lonzrick dispensed with this rationalization, and thus the doctrine of strict liability in tort was adopted by Ohio.

It is now well established that, in order for a party to recover based upon a strict liability in tort theory, it must be proven that: "(1) There was, in fact, a defect in the product manufactured and sold by the defendant; (2) such defect existed at the time the product left the hands of the defendant; and (3) the defect was the direct and proximate cause of the plaintiff's injuries or loss." State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 304 N.E.2d 891. Under Ohio law, a defect is considered to exist in a product which is not "of good and merchantable quality, fit and safe for * * * (its) ordinary intended use." Lonzrick, supra, 6 Ohio St.2d at page 235, 218 N.E.2d at page 191.

Although acknowledging the absence of any mechanical malfunction, appellants contend that the power press was defective in that it was unreasonably dangerous and was placed in the hands of the user, Mrs. Temple, without adequate warning. This conception of defectiveness is premised upon Section 402A of the Restatement of [364 N.E.2d 271] Torts 2d, 2 Comment J, which states that: "In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning

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* * * as to its use." Although this court has never expressly adopted Section 402A as the standard for strict liability in tort, we did, in Lonzrick, supra, cite Section 402A, as well as Greenman v. Yuba Power Products (1963), 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, the first case to apply the principles underlying the section. Since Greenman was decided, the rule of the Restatement has been adopted or approved by the vast majority of courts which have considered it. 3 Because there are virtually no distinctions between Ohio's "implied warranty in tort" theory and the Restatement version of strict liability in tort, 4 and because the Restatement formulation, together with its numerous illustrative comments, greatly facilitates analysis in this area, we hereby approve Section 402A of the Restatement of Torts 2d.

II.

Under Section 402A, as well...

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