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Roach v. Unarco Industries5/14/1998
nerate power for air tools was also used as a breathing system. The Ohio Supreme Court stated that the defendants in Menifee were not aware of the plaintiff's employer's intent to also use the system for breathing purposes, finding that this use by plaintiff's employer was not reasonably foreseeable. Id.
In Feliciano v. The Euclid Chemical Co. (Jul. 12, 1990), Cuyahoga App. No. 57208, unreported, this court stated:
Under Ohio Law, a defendant in a products liability action has a complete affirmative defense if the plaintiff misuses the product in an unforeseeable manner. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, 282; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. Summary judgment for the manufacturer is appropriate where the product is misused by the plaintiff or by the plaintiff's employer. Menifee, supra.
For these reasons, appellant's first assignment of error is overruled. The court properly instructed the jury that unforeseeable misuse of the racking system by either decedent or Mead was an affirmative defense for appellee.
In her second assignment of error, appellant argues that because the court repeatedly charged the jury that Mead's misuse of the racking system constituted a defense for appellee, the instructions to the jury, taken as a whole, were prejudicial to her. As we find no error in the complained of instruction, we do not find that the trial court's instructions to the jury, taken as a whole were prejudicial to appellant. Accordingly, appellant's second assignment of error is overruled.
Appellant argues in her third assignment of error that Interrogatory Number 12, which directed the jury to enter a verdict in favor of Unarco if it found that the upright was misused by Mead in a manner that was not foreseeable, was error. As this is a correct interpretation of the law, appellant's third assignment of error is also overruled.
Judgment affirmed.
It is ordered that appellees recover of appellant their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
O'DONNELL, J., and ROCCO, J., CONCUR.
JOSEPH J. NAHRA PRESIDING JUDGE
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