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Crow v. Estate of Sandra Sue Parker6/29/1999
could cause such extensive damage in the short time that it was left on Mr. Crow's arm. Based upon the foregoing, we find that Critikon was entitled to summary judgment as a matter of law on the plaintiffs' claim for product liability.
Breach of Implied Warranty
As a threshold matter, we must acknowledge, as did the court in White v. Depuy, Inc. (Aug. 17, 1998), Butler App. No. CA98-01-008, unreported, that the existing case law regarding whether a common law claim for breach of implied warranty in tort for personal injury survives the 1988 passage of Ohio's product liability law under R.C. 2307.71 et seq. is unclear, if not somewhat conflicting. See, LaPuma v. Collinwood Concrete (1996), 75 Ohio St.3d 64; Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284. However, even if we were to assume that this particular cause of action still exists, we would conclude that the trial court properly found that Critikon was entitled to summary judgment as a matter of law.
It has been held that an action for breach of implied warranty in tort is indistinguishable from an action for products liability. White, supra, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 322. Thus, the elements of breach of implied warranty are identical those of a claim for product liability: (1) the existence of a defect; (2) the defect was present time the product left the hands of the manufacturer; and (3) the plaintiff's injury was directly and proximately caused by the defect. Temple, supra, citing State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151. Since we have already discussed these elements with regard to the record in this case and have found that the Crows have not produced the necessary evidence, we likewise find that the claim for breach of implied warranty in tort was also disposed of properly by way of summary judgment.
Appellant's first and second assignments of error are overruled.
Having found no error prejudicial to the Appellants herein, in the particulars assigned and argued, the judgment of the trial court is hereby affirmed.
Judgment affirmed
BRYANT, P.J., and SHAW, J., concur.
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