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White v. DePuy8/17/1998
y covered by the Act because the Act * * * `falls short of creating a previously unavailable cause of action * * *.'" (Emphasis sic.) Carrel at 289, 677 N.E.2d at 800, quoting Byers v. Consol. Aluminum Corp. (1995), 73 Ohio St.3d 51, 52, 652 N.E.2d 643, 644 (Douglas, J., dissenting). See, also, Curtis v. Square-D Co. (1995), 73 Ohio St.3d 79, 652 N.E.2d 664 (Douglas, J., dissenting).
We make special note of the fact, that in reaching its conclusion, the court expressly rejected arguments that R.C. 2307.72(A) ("Any recovery of compensatory damages based on a product liability claim is subject to [the products liability act]") and R.C. 2307.73(A) ("A manufacturer is subject to liability for compensatory damages * * * only if the claimant establishes [certain statutorily defined products liability claims]") are clear expressions by the Ohio General Assembly that all products liability claims must be brought under the Products Liability Act.
With the foregoing in mind, we now address the question of whether the common-law cause of action of implied warranty in tort survives the enactment of the products liability act. We have found no language in the statute showing an express intent by the legislature to abrogate this common-law theory as a cause of action. Thus, the remaining question is whether the common-law theory of implied warranty is "specifically covered" by R.C. 2307.71 et seq., so that it does not survive the enactment of the statute. We answer this question in the negative.
R.C. 2307.74 describes a statutory cause of action for a product "defective in manufacture and construction" which has common elements with the common-law implied warranty/strict tort liability cause of action. At common law, the elements of an action based on strict liability in tort, and thus for breach of implied warranty, are:
"`(1) [the existence of] 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.'" Temple, 50 Ohio St.2d at 321, 4 O.O.3d at 468, 364 N.E.2d at 270, quoting State Auto Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 156, 65 O.O.2d 374, 377, 304 N.E.2d 891, 895.
A defect is considered to exist in a product that is not "`of good and merchantable quality, fit and safe for * * * ordinary intended use.'" Temple, at 321, 4 O.O.3d at 468, 364 N.E.2d at 270, quoting Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227, 235, 35 O.O.2d 404, 409, 218 N.E.2d 185, 191sDefects in products may be proven by direct or circumstantial evidence. State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 6, 523 N.E.2d 489, 493. "Where direct evidence is unavailable, a defect in a manufactured product existing at the time the product left the manufacturer may be proven by circumstantial evidence where a preponderance of that evidence establishes that the loss was caused by a defect and not other possibilities, although not all other possibilities need be eliminated." Id.
By comparison, under R.C. 2307.74 a product is defective in manufacture or construction if:
"(1) when it left the control of its manufacturer,
"(2) it deviated in a material way from the design specifications, formula, or performance standards of the manufacturer, or from otherwise identical units manufactured to the same design specifications, formula, or performance standards." R.C. 2307.74.
In addition, a product may be defective in manufacture and construction even though the manufacturer exercised all possible
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