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White v. DePuy8/17/1998
ular cup shell to the metal ball on the femoral stem."
In considering the Whites' motion for summary judgment against DePuy, we must view the evidence supporting their motion in the light most favorable to the nonmoving party. Civ.R. 56(C). The evidence before us indicates that there may be a number of reasons for the wear pattern of Gloria White's original polyethylene liner unrelated to a possible defect in the liner itself. Therefore, we find that reasonable minds could disagree as to whether the liner was defective, whether the defect existed when the liner left DePuy's control, and whether its relatively rapid deterioration was result of the defect. Accordingly, we affirm the judgment of the trial court denying the motion for summary judgment filed by Gloria and Glen White.
As for DePuy's motion for summary judgment against the Whites, we find that it should not have been granted as to the common-law claim of strict liability. The same issues of material fact that preclude summary judgment for the Whites also require us to deny summary judgment to DePuy. In reviewing DePuy's motion for summary judgment we are bound to view the evidence in the light most favorable to the Whites. In addition, we reiterate that "the party seeking summary judgment `* * * bears the burden of affirmatively demonstrating that, with respect to every essential issue of each count in the complaint, there is no genuine issue of fact.'" Dresher v. Burt, 75 Ohio St.3d at 294, 662 N.E.2d at 274. DePuy has not met this burden. To the contrary, we find that the evidence raises a question of material fact concerning whether there was a defect in the liner. In addition, reasonable minds could agree that such a defect would be of the type that could arise only in the manufacturing process, see State Farm, 37 Ohio St.3d at 910, 523 N.E.2d at 496-497, that the liner was manufactured and sold by DePuy, and that the liner proximately caused harm to Gloria White.
In summary, with respect to this assignment of error, we affirm the trial court's denial of the Whites' motion for summary judgment against DePuy, and we reverse the trial court's decision to grant summary judgment for DePuy limited to the common-law claim of strict liability in tort.
II. Breach of Express Warranty
Under the Products Liability Act, a product is defective if it "did not conform, when it left the control of its manufacturer, to a representation made by that manufacturer." R.C. 2307.77. "Representation" is defined as an "express representation of a material fact concerning the character, quality, or safety of a product." (Emphasis added.) R.C. 2307.71(N). A plaintiff seeking to recover under R.C. 2307.77 must show: "`(1) that the manufacturer made a representation as to a material fact concerning the character or quality of the manufacturer's product;
"`(2) that the product did not conform to that representation;
"`(3) that the plaintiff justifiably relied on that representation; and
"`(4) that the plaintiffs reliance on the representation was the direct and proximate cause of the plaintiffs injuries."' Chic Promotion, Inc. v. Middletown Security Sys., Inc. (1996), 116 Ohio App.3d 363, 366-367, 688 N.E.2d 278, 281, quoting Gawloski v, Miller Brewing Co. (1994), 96 Ohio App.3d 160, 165, 644 N. E.2d 731, 734.
The common-law of breach of express warranty was codified at R.C. 2307.77, which states:
"A product is defective if it did not conform, when it left the control of its manufacturer, to a representation made by that manufacturer. A product may be defective because it did not conform to a representation even though its manu
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