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Roach v. Unarco Industries5/14/1998
JUDGMENT AFFIRMED.
Beverly Roach, appellant, brings this appeal as administratrix of the estate of San W. Roach, Sr., following a jury trial against Unarco Industries, Inc. (hereinafter Unarco ), appellee, on a claim that Unarco provided a defective product which caused decedent's death. A jury returned a verdict in favor of Unarco and its co-defendant in the action, the Krill Co., Inc.. Appellant appeals only from the jury's verdict in favor of Unarco.
In August, 1989, decedent, San Roach, was killed while at work in a warehouse operated by the Zellerbach division of Mead Corporation (hereinafter Mead ). Roach was crushed by paper which fell from a storage racking system manufactured by appellee and installed at Mead in 1968. Evidence was presented at trial that Roach was operating a tow-motor which came into contact with the racking system prior to its collapse.
Appellant's three assignments of error, which are inter- related, read:
I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THE UNFORESEEABLE MISUSE OF THE ZELLERBACH DIVISION OF THE MEAD CORPORATION, A THIRD PARTY, CONSTITUTES AN AFFIRMATIVE DEFENSE TO THE PRODUCT LIABILITY CLAIM AGAINST UNARCO.
II. THE TRIAL COURT'S INSTRUCTION, TAKEN AS A WHOLE, RESULTED IN PREJUDICIAL ERROR TO THE PLAINTIFF.
III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN SUBMITTING INTERROGATORY NO. 12 WHICH IS ERRONEOUS AND MISLEADING.
Appellant complains that the court erred in charging the jury when it stated:
Defendant Unarco claims that San Roach, and/or Mead Corporation misused the racking system in a way that was not foreseeable.
The test for foreseeability is whether under all the circumstances a reasonably careful manufacturer would have anticipated that a consumer of the product was likely to use the product in the same way that you find that San Roach and Mead Corporation used the racking system.
If you find by the greater weight of the evidence that San Roach or his employer misused in a way that was not foreseeable, then you will find in favor of the
Defendant Unarco on the product liability claim. In addition to this charge, the jury was given a set of interrogatories. Appellant alleges that the court erred by giving Interrogatory Number 12 to the jury. It reads:
12. Do you find by a preponderance of the evidence that the upright was misused by Mead in a manner that was not foreseeable?
*
If your answer is Yes , sign a verdict form in favor of Unarco, verdict form 2 or 4, as may be consistent with your findings with respect to Krill, and continue to answer interrogatory no. 13.
*
During its deliberations, the jury asked the court for clarification as to Interrogatory Number 12, specifically asking for further definition of foreseeability and misuse. In response, the court reiterated the above quoted instruction.
Appellant argues that the court erred in instructing the jury that misuse of the racking system by Mead was a defense to her strict liability claim, claiming that misuse of a product is a defense in strict liability claims only where the plaintiff misuses the product, not a third party such as the plaintiff's employer. We disagree.
In Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 78, 472 N.E.2d 707, 711, the Ohio Supreme Court stated that a product design cannot be held defective or unreasonably dangerous unless that product is used in its intended manner or put to use in a reasonably foreseeable manner. In Menifee, a compressed air system designed by plaintiff's employer to ge
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