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Beavercreek Local School v. Basic3/6/1991
FAIN, Judge.
Both parties have appealed from a judgment rendered in favor of plaintiff-appellant Beavercreek Local Schools (Beavercreek) and against defendant-appellee Basic, Inc., in the amount of $250,000. The judgment was entered pursuant to a jury verdict.
Beavercreek contends that the trial court committed prejudicial error by admitting the hearsay testimony of Basic's expert witness regarding the conclusions of the Harvard/Kennedy School of Government Symposium on Public Policy and Asbestos in Buildings; that the theory and conclusions of the Harvard Symposium were not disclosed pursuant to requests for discovery and should have been excluded from evidence on that ground; that the jury failed to include in the amount of damages the cost of removing asbestos from the Beavercreek schools; and that the trial court prejudicially restricted voir dire.
We conclude that the trial court erred in admitting hearsay testimony of the expert witness; that there were no other grounds for excluding the theory set forth as the conclusion of the Harvard Symposium; that the jury erred by not including the cost of removing the asbestos from Beavercreek's schools within the damages awarded; and that the trial court did not prejudicially restrict voir dire.
Basic contends that the trial court erred in denying Basic's motion for summary judgment; in granting Beavercreek's motion for a directed verdict on the statute of limitations defense; and in instructing the jury to apply both the consumer expectation test and the risk-utility test in determining whether Basic's plaster was defective.
We conclude that the trial court erred in denying Basic's motion for summary judgment on the statute of limitations issue; and that the trial court was correct in instructing the jury to apply both the consumer expectation and risk-utility prongs of the test to determine whether Basic's plaster was defective.
Because we conclude that the trial court should have granted Basic's motion for summary judgment, the judgment against Basic is reversed, and we are entering judgment in Basic's favor in accordance with App.R. 12(B).
Basic, Inc. manufactured and sold Kilnoise, an asbestos- containing acoustical plaster, to the Beavercreek Local Schools. Kilnoise was installed in three Beavercreek schools between approximately 1955 and 1962.
During 1979, Beavercreek became aware of the health risks associated with asbestos, discovered asbestos in three school buildings, and later, in 1980, encapsulated the ceilings containing Kilnoise with a coat of paint.
Beavercreek filed an action in 1985 against several manufacturers and distributors of asbestos-containing ceiling plaster. In 1986, Beavercreek amended its complaint to include Basic as a party defendant. Basic moved for summary judgment on the ground that Beavercreek's claims were barred by the applicable statute of limitations. This motion was denied. All other defendants were dismissed from the action except for Basic. Beavercreek eventually reduced its claim to one cause of action, in which it sought to recover the costs of removal and replacement of Kilnoise from three schools based upon strict liability in tort.
At a pretrial hearing, the trial court indicated that it intended to restrict voir dire. Beavercreek objected to the voir dire instructions and filed a motion to allow individual examination of prospective jurors. The trial court restricted Beavercreek's voir dire during the trial.
The trial court granted Beavercreek's motion for a directed verdict on the statute of limitations defense, thereby removin
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