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Pfaff v. Benjamin Air Rifle Co.12/11/1997
JUDGMENT: AFFIRMED.
Jack Pfaff, plaintiff-appellant, appeals the granting of summary judgment by the Cuyahoga County Court of Common Pleas in favor of Benjamin Air Rifle Co., et al., defendants-appellees. Plaintiff-appellant raises two errors for review. This court, finding no error, affirms the decision of the trial court.
I. STATEMENT OF FACTS
On November 4, 1992, Jack Pfaff, plaintiff-appellant, and his friends were involved in general horseplay on the second floor of a Kent State University dormitory hall. Plaintiff-appellant heard a paint gun being fired and, in an effort to avoid being hit with a paint pellet, walked up a nearby staircase, walked across the floor, descended one flight of stairs and came out on the second floor closer to his dormitory room. Plaintiff-appellant opened the stairwell door to see if he could return to his room without being hit by a paint pellet. When plaintiff-appellant opened the door and looked down the hall, he was struck in the eye with a paint pellet and suffered extensive injuries.
On November 1, 1995, plaintiff-appellant filed this product liability claim against Benjamin Air Rifle Company (the manufacturer)and Pursuit Marketing, Inc., defendant-appellee (the distributor and supplier of the paint ball gun). Plaintiff- appellant alleged the paint ball gun was defective due to its design and absence and/or inadequacy of warnings.
On September 26, 1996, defendant-appellee filed a motion for summary judgment arguing the manufacturer, and therefore the supplier under R.C. 2307.78(B)(2), cannot be held liable for failure to warn of open and obvious dangers to the user. Moreover, defendant-appellee argued there is no evidence in the record establishing the paint gun malfunctioned.
On January 7, 1997, the trial court granted defendant- appellee's motion for summary judgment based upon the open and obvious exception to a manufacturer's and supplier's liability. Plaintiff-appellant timely files this appeal.
II. FIRST AND SECOND ASSIGNMENTS OF ERROR
Since Jack Pfaff's, plaintiff-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them concurrently.
I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT PURSUIT MARKETING, INC. ITS MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 OF THE OHIO RULES OF CIVIL PROCEDURE.
II. THE TRIAL COURT ERRED IN USING THE OPEN AND OBVIOUS DANGERS OR RISKS EXCEPTION OF ORC 2307.76(B) TO MANUFACTURER'S LIABILITY FOR A DEFECTIVE PRODUCT UNDER OHIO REVISED CODE SECTION 2307.76(A) AS THE BASIS FOR GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
A. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY GRANTED DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT.
Jack Pfaff, plaintiff-appellant, argues the trial court erred in granting defendant-appellant's motion for summary judgment. Specifically, plaintiff-appellant argues pursuant to R.C. 2307.78(B)(2), a supplier such as Pursuit Marketing, Inc., defendant-appellee, is subject to liability for compensatory damages as if it were the manufacturer since the manufacturer, Benjamin Air Rifle Company, is insolvent.
Accordingly, plaintiff-appellant argues the dangers to the eye associated with the paint gun are not known to those who are not properly trained and/or those who have not read the instructional materials relating to the safe use of the paint gun. Therefore, plaintiff-appellant argues the engineer's report establishes a genuine issue of fact concerning whether or not the posting of a warning of the paint gun itself would have benefitted those who were not properly trained a
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