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Westfield Ins. Co. v. Huls Am.6/9/1998
uent to obtaining such knowledge regarding the roof UAP did not act on or warn the tenants of the defect, UAP has failed to show that it would have warned the tenants or taken action to have the roof repaired even if HULS had warned UAP of the defect. UAP's failure to repair the roof or to warn its tenants of the defect, therefore, constitutes an intervening, superseding cause of the injury alleged by appellants, which removes the negligent effect of HULS's alleged failure to warn. Id. See, also, State Farm Mut. Auto. Ins. Co. v. VanHoessen (1996), 114 Ohio App.3d 108, 110, 682 N.E.2d 1048, 1048-1049.
Therefore, this court finds that the trial court did not err in granting appellee's motion for summary judgment with regard to appellants' failure to prove proximate cause.
III. UAP filed counterclaims and complaints against HULS that alleged that HULS was negligent in its failure to warn of the TROCAL roof defect, misrepresented the TROCAL roofs fitness for its intended purpose, breached its warranties both express and implied, and that the TROCAL roof was a defective product under Ohio's product liability law. As discussed above, appellants have failed tsshow that appellee's failure to warn of the defect in the TROCAL system was the proximate cause of appellants' injury , and the trial court did not err in granting summary judgment in this regard.
UAP also contends that the court erred in finding that the TROCAL roof was a fixture and not a product, thus barring its product liability claims. As mentioned above, this court finds that appellants' claims are barred whether the TROCAL roof is deemed a product or a fixture, and a determination of the status of the TROCAL roof as product or fixture is unnecessary.
If the TROCAL roof is deemed a fixture, the time for bringing an action for injury resulting from a condition of the roof is governed by the four-year statute of limitations provided by R.C. 2305.09(D), or the ten-year statute of limitation provided by R.C. 2305.14. Taylor v. Multi-Flo, Inc. (1980), 69 Ohio App.2d 19, 23 O.O.3d 20, 429 N.E.2d 1086. See, also, Adcor Realty Corp. v. Mellon-Stuart Co. (N.D.Ohio 1978), 450 F.Supp. 769. An action must be brought within either the four or ten-year period after the action accrued. R.C. 2305.09(D) and 2305.14. See, also, R.C. 2305.131(C).
As a fixture, the TROCAL roof would be considered defective as installed on May 4, 1981. Therefore, under the laws governing actions arising out of defective fixtures, appellants' claims were time-barred at the latest ten years after installation, or on May 4, 1991. Appellants' actions were not filed until 1995, at least three and one-half years after the time for such filing had expired, and their actions under a fixture theory are barred by the relevant statutes of limitations.
If the TROCAL roof were deemed a product, appellants argue, their product liability and warranty claims are not barred. We disagree. Under a product liability theory, pursuant to R.C. 2307.71 et seq., the time for filing appellants' actions would be governed by R.C. 2305.10, which provides that a cause of action based on a product liability claim (injury to personal property) shall be brought within two years after the cause of action accrues. R.C. 2305.10(A). See, also, Dreher v. Willard Constr. Co. (1994), 93 Ohio App.3d 443, 638 N.E.2d 1079. When a cause of action does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence, should have known that he had been injured. Venham, 73 Ohio App.3d 90, 596 N.E.2d 585.
The discovery rule announced by the O'Stricker court requires two criteria to be
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