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Fiorella v. Ashland Oil12/8/1993
QUILLIN, Judge.
Appellant, William J. Fiorella, as executor of Joseph Fiorella's estate, filed a wrongful death action against appellees, Shell Oil ("Shell"), Union Oil Company of California ("Unocal"), Ashland Oil, Inc. ("Ashland") and Farley Chemical and Solvents Company ("Farley"). Joseph Fiorella worked at General Tire & Rubber Company's Akron plant from 1945-1979. Appellant alleges that Fiorella's employment at General Tire caused him to come in contact with benzene and benzene-containing products supplied by appellees, which ultimately caused him to contract cancer and die. Appellant's amended complaint asserts that the named defendants are liable on theories of strict liability, negligence and wanton misconduct, express warranty, implied warranty, fraud and misrepresentation, and civil conspiracy.
Appellees Ashland, Shell and Unocal filed a motion for summary judgment, alleging that appellant failed to raise a genuine issue of material fact that decedent had ever been exposed to any product manufactured, distributed or supplied by them. Additionally, Farley moved for summary judgment propounding, inter alia, that appellant failed to prove that Fiorella ever came in contact with products supplied by Farley.
The trial court granted summary judgment in favor of all the defendants before the court. Appellant appeals and raises three assignments of error.
"The trial court erred in granting summary judgment for defendants-appellees because: (A) there are genuine issues of material fact to be determined by a jury; and (B) defendants-appellees are not entitled to a summary judgment as a matter of law."
Civ.R. 56(C) specifically requires a trial court to affirmatively determine each of the following factors before granting summary judgment:
"(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.
Appellees moved for summary judgment, asserting that appellant had failed to prove that a genuine issue of material fact existed as to whether products which they supplied to General Tire proximately caused decedent's death. Because proximate causation is an essential element of each of the appellant's causes of action, to avoid an order of summary judgment appellant was required to produce evidence establishing that a genuine issue of material fact existed with regard to the proximate causation issue. See Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099.
Appellant offered evidence that appellees Ashland and Unocal had admitted to selling benzene or benzene-containing products to General Tire at various times during decedent's term of employment. While Shell denied that it sold the products directly to General Tire, it admitted supplying them to Farley. Farley, in turn, admitted to supplying General Tire with products manufactured by Shell and Ashland. Additionally, evidence was produced that once benzene-containing solvents and rubber cement were delivered to General Tire, they were taken to a warehouse known as the "cement house." These products were then mixed together in large tanks or kept in fifty-five gallon drums and were distributed in unmarked containers throughout the General Tire plant as they were ne
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