Vetovitz Bros., Inc. v. Kenny Const. Co.

• Decision Date: 22 March 1978
• Citation: 397 N.E.2d 412,60 Ohio App.2d 331
• Parties: , 14 O.O.3d 292 VETOVITZ BROS., INC. v. KENNY CONSTRUCTION COMPANY et al., Appellants, Akron Brick & Block, Appellee. *
• Court: Ohio Court of Appeals

Page 331

60 Ohio App.2d 331

397 N.E.2d 412, 14 O.O.3d 292

VETOVITZ BROS., INC. v. KENNY CONSTRUCTION COMPANY et al., Appellants Akron Brick & Block, Appellee. ^*

Court of Appeals of Ohio, Ninth District, Medina County.

March 22, 1978.

Syllabus by the Court

A mere awareness on the part of the manufacturer as to where and how his product will eventually be used does not by itself create an express warranty for the product.

Kahn, Kleinman, Yanowitz & Arnson, Cleveland, and David N. Brown, Medina, for appellants.

David W. Hilkert, Akron, for appellee.

VICTOR, Judge.

This is an appeal from a summary judgment for defendant-appellee, Akron Brick & Block Co. (AB&B), on the cross-claim of defendants-appellants, Kenny Construction Co. (Kenny) and Hickory Hill, Ltd. (Hickory).

AB&B, a manufacturer of concrete block, sold its block to a builder's supplier, Valley City, which then sold the block to Vetovitz Bros. Inc. (Vetovitz) a masonry subcontractor. Pursuant to a contract with Kenny, a general contractor, Vetovitz used the block in an apartment project owned by Hickory. Vetovitz filed a mechanic's lien when Kenny and Hickory allegedly failed to pay off Vetovitz for its masonry work on the apartment project. Vetovitz then brought suit for a money judgment and to foreclose on the lien.

In addition to Kenny and Hickory, Vetovitz named AB&B, Keith Haag & Assoc. (Haag), architect for the apartment project, and Peerless Insurance Co., the bonding company, as parties to the action. Kenny and Hickory filed a joint cross-claim against AB&B alleging that AB&B was obligated to them for breach of contracts and express and implied warranties, and that AB&B had negligently manufactured the block, causing damages to Kenny and Hickory.

Claimed damages were for additional construction expenses, diminution in the overall value of the apartment project, and consequential commercial losses attributable thereto. AB&B denied the allegations of the cross-claim and later moved for summary judgment.

The trial court granted AB&B's motion on September 27, 1976. Kenny and Hickory appealed to this court, but the appeal was dismissed because the order appealed was not a final order in accordance with Civ.R. 54(B). Thereafter, Kenny and Hickory moved the trial court for relief from judgment. The trial court denied the motion but expressly determined that there was no just reason to delay entry of a final order. Kenny and Hickory now appeal, claiming the trial court erred by granting AB&B's motion for summary judgment.

Summary judgment is a procedural device to terminate litigation and to avoid a formal trial where there is nothing to try. It must be awarded with caution, resolving doubts and construing evidence against the moving party, and granted only when it appears from the evidentiary material that reasonable minds can reach only an adverse conclusion as to the party opposing the motion. Petroff v. Commercial Motor Freight, Inc. (1960), Ohio Com.Pl., 165 N.E.2d 840, 82 Ohio Law Abs. 433; Horvath v. Fisher Foods, Inc. (1963), Ohio App., 194 N.E.2d 452, 93 Ohio Law Abs. 182; Norman v. Thomas Emery's Sons, Inc. (1966), 7 Ohio App.2d 41, 218 N.E.2d 480; Morris v. First Natl. Bank & Trust Co. (1970), 21 Ohio St.2d 25, 254 N.E.2d 683. A successful motion for summary judgment rests on the two-part foundation that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Kwait v. John David Management Co. (1974), 42 Ohio App.2d 63, 329 N.E.2d 702.

The cross-claim of Kenny and Hickory seeks to impose liability upon AB&B for its manufactured product, concrete block. Claims for products liability sound in either contract or tort. Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, 147 N.E.2d 612. Where there is a contractual relationship between the parties, liability may be based upon contract. Absent privity, liability in tort is grounded upon either negligence or breach of an implied duty of merchantable quality and fitness for intended use. Recovery is allowed when a defect in the product is the direct and proximate cause of injuries to a person or to property, where these injuries could be reasonably anticipated. Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 218 N.E.2d 185, and Iacono v. Anderson Concrete Corp. (1975), 42 Ohio St.2d 88, 326 N.E.2d 267. Where there is no privity of contract between the manufacturer and the buyer of a product, there is no liability based on negligence for the pecuniary loss of bargain due to use of the product. Inglis v. American Motors Corp. (1965), 3 Ohio St.2d 132, 209 N.E.2d 583.

Evidentiary matter submitted with the pleadings and answers to interrogatories disclosed that AB&B was neither a party to the construction contract between Kenny and Vetovitz, nor a party to the architectural services agreement between Hickory and Haag. Nothing before the trial court on the motion for summary judgment indicated that Kenny or Hickory...