 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
David v. Cincinnati8/28/1991
CACIOPPO, Judge.
On December 13, 1982, Donald Davis was injured by a press brake while working at Union Metal Manufacturing Company. Donald and Brenda Davis filed a complaint against the press brake manufacturer, Cincinnati, Inc. ("Cincinnati"), seeking damages for personal injury and loss of consortium. The complaint alleged, inter alia, a cause of action sounding in products liability based upon strict liability in tort.
The case proceeded to trial. On October 16, 1990, the jury returned a verdict in favor of Donald and against Brenda and awarded damages accordingly. Cincinnati filed motions for judgment notwithstanding the verdict and for a new trial on October 24, 1990. The motions were denied on December 20, 1990.
Cincinnati filed a timely appeal.
"The trial court committed prejudicial error instructing the jury that the plaintiff's misuse of a product constitutes an affirmative defense, on which the defendant carries the burden of proof, in a products liability action based on strict liability."
The trial court instructed the jury as follows:
"In order for the Plaintiff, Donald Davis, to recover in strict liability in tort against the Defendant, Cincinnati, Inc., with respect to his claim that thsproduct was defectively designed, Plaintiff must prove, by a preponderance of the evidence:
"One, that the product was defective at the time that it left Cincinnati, Inc.'s factory;
"Two, that the injury to Donald Davis occurred while the product was being used in a way that was reasonably foreseeable by the Defendant;
"And, three, that the defective condition of the product was a direct and proximate cause of the injury to Donald Davis.
"* * *
"To establish the defense of misuse of the product, the Defendant must prove by a preponderance of the evidence that the misuse of the product was:
"One, not reasonably foreseeable by the Defendant;
"And, two, that said misuse was the sole proximate cause of the Plaintiff's injuries.
"If you find that the Defendant has established these two elements, your verdict will be for the Defendant.
"If, on the other hand, the Defendant does not prove these two elements by a preponderance of the evidence, the Defendant will have failed on the defense of misuse of the product."
The crux of Cincinnati's argument is that the instruction impermissibly shifted Davis's burden to Cincinnati, thereby relieving Davis from proving an element of his case, i.e., that he was using the product in a reasonably foreseeable manner when injury occurred.
The Supreme Court of Ohio has recognized that an affirmative defense is available to a defendant in a products liability case if the plaintiff misused the product in an unforeseeable manner. Bowling v. Heil (1987), 31 Ohio St.3d 277, 282, 31 OBR 559, 563, 511 N.E.2d 373, 377; State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1, 4, 523 N.E.2d 489, 492, fn. 1.
An affirmative defense is a new matter which, assuming the complaint to be true, constitutes a defense to it. Black's Law Dictionary (5 Ed.1979) 55.
Cincinnati asserts that establishing that the plaintiff misused the product is not a new matter, but rather, requires the defendant to negate an element of the plaintiff's case. We disagree.
A product design is in a defective condition if: (1) the product is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) the benefits of the challenged desi
Page 1 2 3 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|