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Midwest Ford3/19/1997
BAIRD, Judge.
Midwest Ford, Inc. appeals the Medina County Court of Common Pleas' granting of summary judgment in favor of O'Brien Cut Stone, Inc. ("O'Brien") on Midwest's claim that O'Brien breached an implied warranty in supplying a floor installed on Midwest's premises. We affirm.
In July 1992, Midwest entered into a contract with general contractor C.T. Taylor, Inc. to construct a showroom addition. The contractor subcontracted with Savoia, Inc. to install floor tiles. The subcontractor purchased the tile from O'Brien. The tile was manufactured by Permagrain, Inc. Midwest is not in contractual privily with O'Brien.
Midwest discovered alleged defects in the floor. Midwest filed a complaint on November 10, 1993 against the general contractor and the subcontractor. Midwest amended its complaint on January 20, 1995 to include O'Brien, specifically alleging breach of implied warranty, seeking recovery of the lost value of the showroom floor and $50,000 in additional compensatory damages.
O'Brien moved for summary judgment on the ground that no tort cause of action exists for mere economic loss due to a defective product. On May 2, 1995, the trial court granted the motion. Midwest appeals, assigning one error.
Appellants' sole assignment of error states:
"The trial court erred as a matter of law by granting the defendant/appellee's motion for summary judgment"
In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121, 1122-1123.
Pursuant to Civ.R. 56(C), summary judgment is proper if "(1) o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267s274; Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Since only legal questions exist, no special deference is to be afforded the trial court upon a review of summary judgment. Lorain Cty. Bd. of Commrs. v. United States Fire Ins. Co. (1992), 81 Ohio App.3d 263, 267, 610 N.E.2d 1061, 1063-1064.
No questions of material fact are at issue here. The parties agree that Midwest seeks compensation for economic loss(fn1) due to an allegedly defective product, the showroom floor. We review the following legal conclusion made by the trial court in awarding summary judgment to O'Brien:
"Based upon Chemtrol Adhesives v. Am. Mfrs. Mut. Ins. Co. (1989), 42 Ohio St.3d 40, 537 N.E.2d 624, the court finds there is no tort cause of action, in common law or under statute, for economic loss due to a defective product."
The trial court construed Chemtrol's holding too broadly. In Chemtrol, the court answered in the negative "the precise question * * * whether economic loss may be recovered in strict liability where the parties are in privily of contract." (Emphasis sic.) Chemtrol Adhesives v. Am. Mut. Ins. Co. (1989), 42 Ohio St.3d 40, 49, 537 N.E.2d 624, 634. The court expressly disclaimed reconsideration of whether, absent privily, a plaintiff can recover economic losses under tort theories. Id. at 50, 537 N.E.2d at 634-635, fn. 7. Since Midwest is not in privily with O'Brien, Chemtrol is not dispositive.
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