Bowling v. Heil Co.

511 N.E.2d 373, 31 Ohio St. 3d 277, 31 Ohio B. 559, 1987 Ohio LEXIS 332

• Court: Ohio Supreme Court
• Decided: July 15, 1987
• Docket: No. 86-823
• Status: Published

Opinions

Herbert R. Brown, J.

Two related issues are presented in this case: first, whether principles of comparative negligence or comparative fault are applicable to a products liability action based upon strict liability in tort; and second, whether the enactment of Ohio’s Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, abolished the doctrine of joint and several liability. For the reasons that follow, we answer both questions in the negative.

I

The court of appeals below held that Ohio’s comparative negligence statute, R.C. 2315.19, does not apply to a products liability action grounded upon strict liability in tort because that statute is limited to negligence actions. We agree. R.C. 2315.19(A)(1) provides:

“In negligence actions, the contributory negligence of a person does not bar the person or his legal representative from recovering damages that have directly and proximately resulted from the negligence of one or more other persons, if the contributory negligence of the person bringing the action was no greater than the combined negligence of all other persons from whom recovery is sought. However, any damages recoverable by the person bringing the action shall be diminished by an amount that is proportionately equal to his percentage of negligence * * (Emphasis added.)

Nevertheless, the court below held that contributory negligence, when it amounts to “affirmative action” as opposed to a passive failure to discover a defect in a product or to guard against the possibility of such defect, constitutes a defense to a products liability action. The court of appeals further held that principles of “pure” comparative negligence¹ apply so as to result in an apportionment between the respective degrees of fault of a strictly liable defendant and a contributorily negligent plaintiff. We believe the court of appeals failed to recognize fundamental differences between the policies and goals underlying the case law in negligence actions and the policies and goals underlying strict liability in tort actions.

A

In Ohio and elsewhere, products liability law, although an outgrowth of the laws of contracts and negligence, has evolved as a separate, identifiable body of law. Products liability cases decided by this court have often involved issues of negligence as well as strict liability. However, a review of those cases demonstrates that those two doctrines have consistently been regarded as complementary, but distinct.

In the seminal case of Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, 4 O.O. 2d 291, 147 N.E. 2d 612, we held that where a manufacturer’s advertisements were aimed directly at ultimate consumers and contained representations as to the quality of a product, urging consumers to buy that product from a retailer, a consumer injured by a defect in the product could maintain an action in tort against the manufacturer based upon express warranty, though no contractual relationship existed between them. We said:

“Surely under modern merchandising practices the manufacturer owes a very real obligation toward those who consume or use his products. The warranties made by the manufacturer in his advertisements and by the labels on his products are inducements to the ultimate consumers, and the manufacturer ought to be held to strict accountability to any consumer who buys the product in reliance on such representations and later suffers injury because the product proves to be defective or deleterious.” (Emphasis added.) Id. at 249, 4 O.O. 2d at 294, 147 N.E. 2d at 615-616. We therefore held that consumers were not limited solely to a negligence theory in their actions against manufacturers with whom they had not contracted.

Eight years later, in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227, 35 O.O. 2d 404, 218 N.E. 2d 185, we expanded Toni to include actions in tort based upon a theory of implied warranty. We noted that manifest injustice would result if a person who had seen or heard an advertisement published by a manufacturer could maintain a products liability action against that manufacturer, while a person who had not seen or heard such an advertisement could not. We said:

“Such a rule looks not to the defect in the product which produced the injury, but focuses upon the question of whether the plaintiff saw an advertisement, which is not relevant to the creation of the risk of harm to the plaintiff.” (Emphasis added.) Id. at 237, 35 O.O. 2d at 410, 218 N.E. 2d at 192. Thus, as in Toni, we held that consumers were not restricted to a negligence theory in their tort actions against manufacturers with whom they had no contractual relationship.

In Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 4 O.O. 3d 466, 364 N.E. 2d 267, we formally adopted Section 402A of the Restatement of the Law 2d, Torts (1965), as the law of Ohio. Paragraphs one and two of the syllabus in Temple, taken from subsections one and two of Section 402A, provide:

“1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:

“(a) the seller is engaged in the business of selling such a product, and

“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

“2. The rule stated above applies although the seller has exercised all possible care in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller.” (Emphasis added.)

We noted in Temple that there were “virtually no distinctions between Ohio’s ‘implied warranty in tort’ theory and the Restatement version of strict liability in tort,” and that the numerous illustrative comments to Section 402A greatly facilitated analysis in the products liability area. Id. at 322, 4 O.O. 3d at 469, 364 N.E. 2d at 271. Thus, the time was ripe for the formal adoption of the Restatement’s formulation.

Four years later, in Leichtamer v. American Motors Corp. (1981), 67 Ohio St. 2d 456, 21 O.O. 3d 285, 424 N.E. 2d 568, we extended Temple to cover a defectively designed product, as opposed to one defectively manufactured. In doing so, we rejected the suggestion to restrict injured consumers in product design cases to a negligence theory.² We said:

“* * * A distinction between defects resulting from manufacturing processes and those resulting from design, and a resultant difference in the burden of proof on the injured party, would only provoke needless questions of defect classification, which would add little to the resolution of the underlying claims. A consumer injured by an unreasonably dangerous design should have the same benefit of freedom from proving fault provided by Section 402A as the consumer injured by a defectively manufactured product which proves unreasonably dangerous.

“The doctrine of strict liability evolved to place liability on the party primarily responsible for the injury occurring, that is, the manufacturer of the defective product. Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 27 Cal. Rptr. 697. Any distinction based upon the source of the defect undermines the policy underlying the doctrine that the public interest in human life and safety can best be protected by subjecting manufacturers of defective products to strict liability in tort when the products cause harm.” (Emphasis added.) 67 Ohio St. at 464-465, 21 O.O. 3d at 291, 424 N.E. 2d at 575.

Thus, in Leichtamer, we widened the chasm between theories of negligence and strict liability in tort.

The following year, in Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460, 23 O.O. 3d 403, 432 N.E. 2d 814, we elaborated on the standard for determining whether a product design is defective. We held in the syllabus:

“A product design is in a defective condition if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if the benefits of the challenged design do not outweigh the risk inherent in such design. * * *”

It is obvious that neither prong of this test is grounded upon negligence; rather, the standard is calculated to guard against defective products by subjecting manufacturers and sellers to strict liability in tort.

Finally, in Cremeans v. International Harvester Co. (1983), 6 Ohio St. 3d 232, 6 OBR 302, 452 N.E. 2d 1281, we explained that Knitz does not require a plaintiff alleging a design defect to prove that a product was both in a defective condition and unreasonably dangerous. Rather, we stated, the Knitz standard consists of “a single, two-pronged test for determining whether a product design is in a defective condition.” Id. at 234, 6 OBR at 304, 452 N.E. 2d at 1284. We again emphasized that the focus of a products liability case is on the product and the nature of its defect, not on the conduct of the manufacturer. Accordingly, in Cremeans as in Knitz, we “dispense[d] with any requirement for strict liability in tort that a defect be unreasonably dangerous.” Knitz, supra, at 465, 23 O.O. 3d at 406, 432 N.E. 2d at 817, fn. 2.

Thus, a separate body of products liability law has evolved in Ohio, apart from the laws of contracts and negligence. Further, it is apparent that the negligence concept of ordinary care is not a part of the products liability doctrine, which is governed instead by the distinct principles of strict liability in tort. These principles require liability even where a manufacturer has exercised “all possible care.” Temple, supra.

B

Included in the body of Ohio law governing products liability is an analysis of the defenses available in actions involving allegedly defective products. Currently, two affirmative defenses based upon a plaintiff’s misconduct are recognized. First, an otherwise strictly liable defendant has a complete defense if the plaintiff voluntarily and knowingly assumed the risk occasioned by the defect. See Jones v. White Motor Corp. (1978), 61 Ohio App. 2d 162, 15 O.O. 3d 292, 401 N.E. 2d 223; Section 402A of the Restatement, Comment n, at 356. Second, such a defendant is also provided with a complete defense if the plaintiff misused the product in an unforeseeable manner. Cf. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 15 OBR 179, 472 N.E. 2d 707; Leichtamer, supra.

The court of appeals below, construing Comment n to Section 402A, attempted to distinguish between negligent “affirmative action” by a plaintiff and negligent passive conduct by him in failing either to discover a defect or to guard against the possibility of its existence. The court held that although a plaintiff’s passive contributory negligence provides no defense to a products liability action, his contributorily negligent “affirmative action” does provide a defense, and that such affirmative negligence should be compared by a jury to the fault of a strictly liable manufacturer of a defective product, in a manner similar to the principles of comparative negligence embodied in R.C. 2315.19.

Comment n to Section 402A provides:

“Contributory negligence. * * * Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.”

The court of appeals has carved out a middle ground, to wit: contributory negligence consisting of “affirmative action,” theoretically located between a plaintiff’s failure to discover or guard against a defect and his voluntary assumption of a known risk. There is no such middle ground. Comment n covers the entire spectrum of conduct which can be termed “contributory negligence,” as applicable to products liability actions. That spectrum begins with a mere failure to discover a defect in a product, continues with a failure to guard against the existence of a defect, and concludes with an assumption of the risk of a known defect. “Affirmative action” by the plaintiff is not left uncovered. Failure to guard against a defect can be “affirmative action.” Indeed such would describe the conduct of David Bowling in this case.

Under Comment n, either a plaintiff’s contributory negligence amounts to a voluntary assumption of a known risk, or it does not. If it does, then that conduct provides an otherwise strictly liable defendant with a complete defense. If it does not, the contributory negligence of the plaintiff provides no defense.³

In the case sub judice, the jury found that Bowling was contributorily negligent but that he had not assumed a known risk. Therefore, his contributory negligence did not provide Heil with a defense to appellant’s strict liability claim.

Of course, the absence of support in either the Restatement or existing Ohio law for the recognition of comparative negligence as a defense to strict liability does not preclude this court from adopting comparative negligence principles as part of the law of products liability. This court, having developed that body of law, remains inherently vested with the power to modify it. We now turn to a consideration of the public policy underlying the application of strict liability in tort to products liability cases, in order to demonstrate why such modification is not appropriate.

c

The definitive statement of the policy and goals underlying the application of strict liability in tort to cases involving defective products is provided in Comment c to Section 402A, at 349-350:

“On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.” (Emphasis added.)

Dean Prosser has expressed this idea in slightly different terms:

“The costs of damaging events due to defectively dangerous products can best be borne by the enterprisers who make and sell these products. Those who are merchants and especially those engaged in the manufacturing enterprise have the capacity to distribute the losses of the few among the many who purchase the products. It is not a ‘deep pocket’ theory but rather a ‘risk-bearing economic’ theory. The assumption is that the manufacturer can shift the costs of accidents to purchasers for use by charging higher prices for the costs of products.” (Emphasis added.) Prosser & Keeton, Law of Torts (5 Ed. 1984) 692-693, Section 98.

Under negligence principles, on the other hand, liability is determined (and, under R.C. 2315.19, apportioned) according to fault. In negligence, we seek to make the person or persons responsible for causing a loss pay for it. In other words, we “blame” the loss on the negligent party or parties because it was they who could have avoided the loss by conforming to due care.⁴ Conversely, in strict liability in tort we hold the manufacturer or seller of a defective product responsible, not because it is “blameworthy,”'but because it is more able than the consumers to spread that loss among those who use and thereby benefit from the product.

We recognize that strict liability cannot be absolutely divorced from traditional concepts of fault. In a sense we “blame” the loss on the manufacturer or seller because it introduced the defective product into the marketplace. However, it must be reemphasized that strict liability is at odds with traditional notions of due care. This could not be more clearly stated than in paragraph two of the syllabus in Temple, supra, which provides: “The rule stated above applies although the seller has exercised all possible care in the preparation and sale of his product, and the user or consumer has not bought the product from or entered into any contractual relation with the seller.” (Emphasis added.)

In sum, the public policy and goals underlying strict liability differ in important respects from those underlying the law of negligence.

D

Because this court has not previously had occasion to consider this issue of paramount importance, we look for guidance in the relevant case law from other jurisdictions. The cases are conflicting. Many inconsistent approaches have been taken. See, e.g., Annotation, Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort (1981), 9 A.L.R. 4th 633.

Comparative negligence or comparative fault has been applied in products liability cases by a number of courts, both in states that have comparative negligence statutes and in states where comparative negligence was judicially adopted. See, e.g., Duncan v. Cessna Aircraft Co. (Tex. 1984), 665 S.W. 2d 414; Mulherin v. Ingersoll-Rand Co. (Utah 1981), 628 P. 2d 1301; Daly v. General Motors Corp. (1978), 20 Cal. 3d 725, 144 Cal. Rptr. 380, 575 P. 2d 1162. On the other hand, numerous courts have refused to apply comparative negligence principles to products liability cases. See, e.g., Young’s Machine Co. v. Long (1984), 100 Nev. 692, 692 P. 2d 24; Correia v. Firestone Tire & Rubber Co. (1983), 388 Mass. 342, 446 N.E. 2d 1033; Seay v. Chrysler Corp. (1980), 93 Wash. 2d 319, 609 P. 2d 1382; Smith v. Smith (S.D. 1979), 278 N.W. 2d 155.

We believe that the better-reasoned decisions are those that decline to inject a plaintiff’s negligence into the law of products liability. We agree with the court’s holding in Kinard v. Coats Co., Inc. (1976), 37 Colo. App. 555, 557, 553 P. 2d 835, 837, which states:

“Although some other jurisdictions have chosen to apply comparative negligence to products liability cases * * * in our view the better-reasoned position is that comparative negligence has no application to products liability actions under § 402A.

“Products liability under § 402A does not rest upon negligence principles, but rather is premised on the concept of enterprise liability for casting a defective product into the stream of commerce. * * * Thus, the focus is upon the nature of the product, and the consumer’s reasonable expectations with regard to that product, rather than on the conduct either of the manufacturer or of the person injured because of the product.”

We agree with Justice Mosk of the California Supreme Court, who stated in his dissent in Daly v. General Motors Corp., supra:

“The defective product is comparable to a time bomb ready to explode; it maims its victims indiscriminately, the righteous and the evil, the careful and the careless. Thus when a faulty design or otherwise defective product is involved, the litigation should not be diverted to consideration of the negligence of the plaintiff. The liability issues are simple: was the product or its design faulty, did the defendant inject the defective product into the stream of commerce, and did the defect cause the injury? The conduct of the ultimate consumer-victim who used the product in the contemplated or foreseeable manner is wholly irrelevant to those issues.” Id. at 760, 144 Cal. Rptr. at 401-402, 575 P. 2d at 1183-1184.

Therefore, when we search the decisions from other jurisdictions, we find no rationale which persuades us that comparative negligence or comparative fault principles should be applied to products liability actions.

E

Based upon the foregoing analysis, we hold that principles of comparative negligence or comparative fault have no application to a products liability case based upon strict liability in tort.⁵ Strict liability, in focusing on the product rather than the conduct of its manufacturer or seller, does not seek to apportion a loss among all persons who have caused or contributed to it. Rather, it seeks to spread the loss among all users of the product. The concept of comparative fault is fundamentally inapplicable.

We therefore reverse the judgment of the court of appeals with respect to its reduction of appellant’s verdict by the thirty percent found by the jury to be attributable to Bowling’s contributory negligence.

II

The court of appeals also held that under Ohio’s Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, a strictly liable defendant is not jointly and severally liable for that portion of the plaintiff’s damages attributable to the negligence of another defendant. We disagree.

The doctrine of joint and several liability among tortfeasors has long been a part of the common law of Ohio. See Transfer Co. v. Kelly (1880), 36 Ohio St. 86, 90, wherein this court held: “The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally.”

We do not believe that the enactment of R.C. 2307.31 and 2307.32 abolished that long-standing doctrine. R.C. 2307.31 provides, in pertinent part:

“(A) Except as otherwise provided in this section or section 2307.32 of the Revised Code, where two or more persons are jointly or severally liable in tort for the same * * * wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them. The right of contribution exists only in favor of a tortfeasor who has paid more than his proportionate share of the common liability, and his total recovery is limited to the amount paid by him in excess of his proportionate share. No tortfeasor is compelled to make contribution beyond his own proportionate share of the entire liability. * * *

<<* * *

“(F) In determining the proportionate shares of tortfeasors in the entire liability their relative degrees of fault shall be considered. If equity requires the collective liability of some as a group, the group shall constitute a single share, and principles of equity applicable to contribution generally shall apply.” (Emphasis added.)

We think it clear, from the language of subsection (A), that the General Assembly did not intend to abolish joint and several liability. Rather, R.C. 2307.31 and 2307.32 speak only to the relationship between or among the joint tortfeasors themselves, not to the relationship between a joint tortfeasor and the plaintiff. As we held in National Mut. Ins. Co. v. Whitmer (1982), 70 Ohio St. 2d 149, 151-152, 24 O.O. 3d 248, 249, 435 N.E. 2d 1121, 1123:

“It is clear from the provisions of the Act that the liability for contribution is distinct from the liability for the jointly committed tort. Liability to an injured party arises at the time of the tort. Liability for contribution arises only in favor of a joint tortfeasor and then only when that tortfeasor has paid more than his proportionate share of the common liability. Ohio’s statutory scheme for contribution does not concern the basic relationship of tortfeasors to one' who has suffered injury but establishes the relationship of tortfeasors inter se when one of them discharges the common liability. ” (Emphasis added.)

Therefore, we hold that Ohio’s Contribution Among Joint Tortfeasors Act, R.C. 2307.31 and 2307.32, does not abolish the doctrine of joint and several liability. Thus, we also reverse the judgment of the court of appeals with respect to its reduction of appellant’s verdict by the thirty percent the jury found to be attributable to Robco.⁶

Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is reinstated.

Judgment accordingly.

Moyer, C.J., Locher, Douglas and Wright, JJ., concur. Sweeney, J., concurs in paragraph two of the syllabus, Part II of the opinion, and the judgment. Holmes, J., dissents.

1 “Pure” comparative negligence allows a plaintiff who is ninety-nine percent negligent to recover the remaining one percent of his damages, while the “modified” comparative negligence embodied in R.C. 2315.19 bars recovery if the plaintiff’s negligence exceeds the negligence of all other persons from whom recovery is sought.

2 We noted that no less an authority than Dean Prosser has stated that a defective design case is “ ‘essentially a matter of negligence.’ ” Leichtamer, supra, at 464, 21 O.O. 3d at 290, 424 N.E. 2d at 575 (quoting Prosser, Law of Torts [4 Ed. 1971], Section 96).

3 Here, we discuss only the language of Comment n, which does not mention the defense consisting of a plaintiffs misuse of a product in an unforeseeable manner. In some sense, such misuse is an act of contributory negligence. Nonetheless, it remains a defense to a products liability action based upon strict liability in tort. Menifee, supra; Leichtamer, supra.

4 We hasten to add that legal fault under negligence principles is not the same as moral fault. See 3 Harper, James & Gray, The Law of Torts (2 Ed. 1986) 103-106, Section 12.1.

5 The Sixth Circuit, faced with this issue two years ago, accurately predicted the result we reach today. See Bailey v. V & O Press Co., Inc. (C.A. 6, 1985), 770 F. 2d 601. Accord Krosky v. Ohio Edison Co. (1984), 20 Ohio App. 3d 10, 20 OBR 10, 484 N.E. 2d 704 (per George, J.).

6 Because Robco settled with appellant, Heil is entitled to a reduction of its liability equal to the amount of such settlement (plus all other settlements, as well). R.C. 2307.32(F) provides, in part:

“When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:

“(1) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms otherwise provide, but it reduces the claim against the other to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater.” (Emphasis added.)