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Westfield Ins. Co. v. Huls Am.6/9/1998
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"`One of the hurdles * * * standing between proof of negligent failure to warn and ultimate recovery[J is the necessity of proof of a proximately causal relationship between the negligence and the injury .' Hargis v. Doe (1981), 3 Ohio App.3d 36, 37, 3 OBR 38, 40, 443 N.E.2d 1008, 1011 * * *.
"Even if it be proved that a manufacturer failed to warn of a product-related danger, `it is relevant to show whether the user of the product would have acted in the same manner had a proper warning been given.'" Whiston v. Bio-Lab,Inc. (1993), 85 Ohio App.3d 300, 305, 619 N.E.2d 1047, 1050.
Once a party moving for summary judgment places some evidence before the court which affirmatively shows that the nonmoving party has no evidence to support its claims, the nonmoving party "must proceed to demonstrate affirmatively the facts which would entitle that party to relief." Baughn, 78 Ohio App.3d at 563, 605 N.E.2d at 480. See, also, Dresher, 75 Ohio St.3d at 293, 662 N.E.2d at 273-274. HULS presented evidence that UAP Columbus and Standard were aware of the alleged defective condition of the TROCAL roof prior to the 1994 leak and that they had failed to act upon that knowledge to prevent the leak. Appellants have failed to demonstrate that they would have acted differently had they been warned of the "defect" by HULS rather than by Roofing Solutions. Negligence is without legal consequence unless it is a proximate cause of an injury . Osler v. Lorain (1986), 28 Ohio St.3d 345, 347, 28 OBR 410, 411-412, 504 N.E.2d 19, 21-22. In order "to establish proximate cause, foreseeability must be found. In determining whether an intervening cause `breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence. If an injury is the natural and probable consequence of a negligent act and it is such as should have been foreseen in the light of all attending circumstances, the injury is then the proximate result of the negligence.'" Mussivand, 45 Ohio St.3d at 321, 544 N.E.2d at 272, quoting Mudrich v. Std. Oil Co. (1950), 153 Ohio St. 31, 39, 41 O.O. 117, 121, 90 N.E.2d 859, 863.
The risk "created by the defendant may include the intervention of the foreseeable negligence of others." Prosser, Law of Torts (5 Ed.1984) 304, Section 44. There are, also, intervening causes which could not be contemplated by a person as a consequence of the negligent act, but are nevertheless considered normal incidents of the risks the defendant has created. Id. at 306. These acts would be considered intervening causes to the injury , but they would not supersede a party's own negligence as the proximate cause of the injury. However, " f the defendant can foresee neither any danger of direct injury, nor any risk from an intervening cause, the defendant is simply not negligent." Id. at 311,
If, arguendo, HULS's failure to warn, either UAP or the tenants, can be considered a negligent act, UAP's subsequent failure to repair the roof or to warn its tenants of the shattering tendency of the roof could be seen as an intervening, superseding cause of the injury .
The record does not provide evidence that UAP's failure to repair the roof or warn its tenants of the roof "defect" derived from a lack of knowledge of the defect caused by HULS's failure to warn. UAP's failure to act on or warn of the roof defect are actions that were (1) not foreseeable by HULS, (2) not a consequence of HULS's acts or omissions, and (3) not under HULS's control. Drake v. E. Cleveland (1920), 101 Ohio St. 111, 127 N.E. 469. Given UAP's knowledge of the "defect" on or about March 16, 1992, and evidenced by the fact that subseq
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