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White v. DePuy8/17/1998
Liability, Section 39. An action for breach of implied warranty in tort is considered "virtually indistinguishable" from an action for strict liability in tort as described in Section 402A of the Restatement of Torts 2d. See Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 322, 4 O.O.3d 466, 469, 364 N.E.2d 267, 271 ("Because there are virtually no distinctions between Ohio's `implied warranty in tort' theory and the Restatement version of strict liability in tort, [fn deleted] and because the Restatement formulation * * * greatly facilitates analysis in this area, we hereby approve Section 402A of the Restatement of Torts 2d"). Since Temple, the two theories have been "used interchangeably and analyzed together." Chemtrol Adhesives, Inc. v. Am. Mfrs. Mut Ins. Co. (1989), 42 Ohio St.3d 40, 46, 537 N.E.2d 624, 632.
The first issue we must address under this assignment of error is what law applies to the Whites' claim. Following the enactment of the Ohio's products liability law in 1988, some courts have found that where personal injury is alleged, the common-law cause of action for implied warranty in tort has been preempted by the products liability statute. See, eg., Barrett v. Waco Internatl., Inc. (1997), 123 Ohio App.3d 1, 10, 702 N.E.2d 1216, 1222, citing LaPuma, 75 Ohio St.3d 64, 661 N.E.2d 714 ("the Ohio product liability statutes preempt warranty claims concerning products which seek damages for bodily injury"). Accord Nadel v. Burger King (1997), 119 Ohio App.3d 578, 586, 695 N.E.2d 1185, 1190, also citing LaPuma (personal injuries caused by a product's failure to conform due to a defect is governed solely by products liability law).
Having read LaPuma, we find that it arguably implies that common-law products liability claims that have been codified are "preempted" by the statute. Id. at 66, 661 N.E.2d at 715 ("We find that since appellants' claim is not a product liability claim pursuant to statute, R.C. 2307.71 to 2307.80 do not preempt their cause of action"). However, LaPuma holds that a cause of action is not a product liability claim under Ohio's product liability law unless it alleges damages other than economic damages, and that a failure to allege other than economic damages does not destroy the claim but removes it from the purview of the act. LaPuma does not squarely address the issue of whether the theory of implied warranty has been preempted where other than economic damages are alleged.
Furthermore, since LaPuma was decided, the Ohio Supreme Court has had the opportunity to consider whether the products liability statute "abrogates" common-law causes of action for products liability. See Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 677 N.E.2d 795. In Carrel, the court held that the common-law cause of action for negligent design "survives the enactment of the Ohio Products Liability Act" even though the act does not specifically mention negligent design. Id. at paragraph one of the syllabus. The broader implication of this holding--and the clear message of Carrel--is that the products liability act is not the exclusive basis for tort-based product liability claims. Id. 78 Ohio St.3d at 289, 677 N.E.2d at 799-800. " n the absence of language clearly showing the intention to supersede the common law, the existing common law is not affected by the statute, but continues in full force. * * * There is no repeal of the common law by mere implication." Id. at 287, 677 N.E.2d at 798-799.
The court in Carrel also cites with approval the following statement:
" t should now be understood that all common-law products liability causes of action survive the enactment of * * * the Ohio Products Liability Act, unlessspecificall
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