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Jackson v. Alert Fire & Safety Equip.3/6/1991
Douglas, J.
The issue before this court focuses on whether the court of appeals properly concluded that summary judgment should be granted in favor of Alert and Murdock, and denied, except as to the intentional infliction of emotional distress claim, as to Levinson's and Awning. For the reasons that follow, we affirm the court of appeals' ruling.
First we turn our attention to whether the trial court and court of appeals correctly determined that Alert and Murdock be granted summary judgment on Jackson's and Kelley's claims of strict liability and implied warranty in tort. This court, in Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O. 3d 466, 364 N.E. 2d 267, specifically adopted Section 402A of 2 Restatement of the Law 2d, Torts (1965) 347-348, as a plaintiff's proper remedy for harm suffered from a seller's defective product. In Temple, supra, at 320, 4 O.O. 3d at 468, 364 N.E. 2d at 270, we emphasized that strict liability in tort and implied warranty are "virtually indistinguishable," and stated that a manufacturer or seller of a defective product, for purposes of strict liability, is liable to an injured party if the injured plaintiff proves that: "`(1) There was, in fact, a defect in the product manufactured and sold by the defendant; (2) such defect existed at the time the product left the hands of the defendant; and (3) the defect was the direct and proximate cause of the plaintiff's injuries or loss.' * * *" (Citations omitted.) Id. at 321, 4 O.O. 3d at 468, 364 N.E. 2d at 270.
In cases subsequent to Temple, we adopted a consumer expectation standard to determine if a product is defective. This standard provides that a product may be deemed defective if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. See Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456, 21 O.O. 3d 285, 424 N.E. 2d 568, paragraph two of the syllabus; Knitz v. Minster Machine Co. (1982), 69 Ohio St.2d 460, 23 O.O. 3d 403, 432 N.E. 2d 814, syllabus ; State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 523 N.E. 2d 489, paragraph three of the syllabus.
Notwithstanding common-law liability for a seller of a defective product as mentioned supra, the GenerasAssembly, pursuant to former R.C. 2305.33, provided certain nonmanufacturing sellers of an allegedly defective product statutory relief from liability on causes of action based upon strict liability or implied warranty in tort. Alert and Murdock, in their summary judgment motions, sought to limit their liability under the statute.
R.C. 2305.33 provided, in general terms, that a seller, pursuant to Civ. R. 56, was entitled to summary judgment if the seller proves that: (1) it did not alter or fail to maintain the product while it was in the seller's possession; (2) the manufacturer is amenable to suit and not financially insolvent; (3) the seller, upon request of the injured party, provides the person making the request with the name and address of the manufacturer; and (4) " he seller did not have actual knowledge of the alleged defect in the product and, based upon facts available to him, could not have been expected to have had knowledge of the alleged defect * * *." (Former R.C. 2305.33 through .) (140 Ohio Laws, Part I, 372-375.)
Jackson and Kelley do not contend that Alert and Murdock have failed to comply with R.C. 2305.33(B)(1) through (3). Rather, Jackson and Kelley assert Alert and Murdock have failed to offer probative evidence sufficient to satisfy the prerequisites of section (B)(4) of the statute. Specifically, Jackson
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