Schump v. Firestone Tire & Rubber Co.

541 N.E.2d 1040, 44 Ohio St. 3d 148, 1989 Ohio LEXIS 180
CourtOhio Supreme Court
DecidedAugust 2, 1989
DocketNo. 88-348
StatusPublished
Cited by25 cases

This text of 541 N.E.2d 1040 (Schump v. Firestone Tire & Rubber Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schump v. Firestone Tire & Rubber Co., 541 N.E.2d 1040, 44 Ohio St. 3d 148, 1989 Ohio LEXIS 180 (Ohio 1989).

Opinions

Wright, J.

This appeal raises two questions: first, whether plaintiffs may maintain a products liability action against defendant employer under the dual-capacity doctrine,1 and, second, whether summary judgment on plaintiffs’ intentional tort claim was appropriate. We answer both questions in the negative. Accordingly, the decision of the court of appeals is affirmed.'

I

This court first recognized an action under the dual-capacity doctrine in Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St. 2d 183, 9 O.O. 3d 138, 378 N.E. 2d 488. In Guy, we held that a hospital employee could maintain a medical malpractice action against the hospital notwithstanding the bar to employee civil actions provided in the workers’ compensation system. By providing treatment to the employee, the hospital assumed the traditional obligations attendant to a hospital-patient relationship, which obligations were “unrelated to and independent of [150]*150those imposed upon it as an employer * * Id. at syllabus.

Later, in Freese v. Consolidated Rail Corp. (1983), 4 Ohio St. 3d 5, 4 OBR 5, 445 N.E. 2d 1110, we found the dual-capacity doctrine to be unavailable to a motorcycle police officer injured while traveling the city’s streets in the regular course of his employment. We stressed that “what must be determined is whether the employer stepped out of his role as such, and had assumed another hat or cloak * * *,” and that the city’s statutory duty to keep its streets clear and free from nuisance did not “generate obligations to this employee independent of and unrelated to the city’s obligations as an employer.” Id. at 11, 4 OBR at 9-10, 445 N.E. 2d at 1114-1115.

In Bakonyi v. Ralston Purina Co. (1985), 17 Ohio St. 3d 154,17 OBR 356, 478 N.E. 2d 241, this court considered at length the circumstances under which a products liability action may be maintained against an employer under the dual-capacity doctrine. Quoting Freese, supra, at 12, 4 OBR at 11, 445 N.E. 2d at 1116, we first summarized:

“ ‘* * * [I]n order for the dual-capacity doctrine to apply, there must be an allegation and showing that the employer occupied two independent and unrelated relationships with the employee, that at the time of these roles of the employer there were occasioned two different obligations to this employee, and that the employer had during such time assumed a role other than that of employer.’ ” Bakonyi, supra, at 157,17 OBR at 358, 478 N.E. 2d at 243-244.

The employer in Bakonyi purchased liquid fertilizer, which it diluted, for two purposes: (1) use in its own greenhouse operations; and (2) resale to the public. An employee was injured in the greenhouse when the fertilizer was sprayed in his eyes; he argued that the dual-capacity doctrine should apply because his employer was engaged in the public sale of this fertilizer. In rejecting this argument, we noted that although the employer was both consumer and distributor, each capacity having its own attendant obligations, the employee was injured by the employer’s role as consumer, i.e., by the employment use and not the public sale use. Bakonyi, supra, at 157, 17 OBR at 359, 478 N.E. 2d at 244. Accordingly, we found that the employment relationship predominated and that the employer had not assumed another capacity to the employee. Id.

Plaintiffs herein rely on Mercer v. Uniroyal, Inc. (1976), 49 Ohio App. 2d 279, 3 O.O. 3d 333, 361 N.E. 2d 492, which we agree is a strikingly similar case. In Mercer, an employee of the American Stevedoring Corporation was leased to Uniroyal. The employee was injured on the job while riding in a truck leased by Uniroyal from Avis Truck Rental, which truck happened to be equipped with Uniroyal tires. When the employee sued Uniroyal alleging that one of the tires was defective, Uniroyal argued that the action was barred under the workers’ compensation system. In reversing summary judgment for Uniroyal, the court of appeals held that the dual-capacity doctrine was applicable, finding that “the hazard was not necessarily one of employment, but was one common to the public in general. * * *” Id. at 285, 3 O.O. 3d at 336, 361 N.E. 2d at 496. The court also noted that “[i]t was only a matter of circumstance that the tire on the truck in which the plaintiff was riding was a Uniroyal tire rather than a Sears, Goodyear or Goodrich. * * *” Id. at 285, 3 O.O. 3d at 337, 361 N.E. 2d at 496.

Firestone attempts to distinguish [151]*151Mercer by arguing that here it was not a “matter of circumstance” that the truck in which Schump was injured was equipped with Firestone tires. The record shows that Firestone equipped all its trucks with Firestone tires as a matter of company policy. Joseph Brown, a former Firestone employee who served as a manager at the Brook-park facility, stated:

“At all times during my employment at the Firestone Retread Plant in Brookpark, Ohio, it was Firestone company policy and practice to equip all fleet vehicles with. Firestone tires and to use only new Firestone tires on the steering axle of all trucks and other vehicles used at that facility. Firestone retread tires were used on the non-steering axles of tractors and trucks and on trailers. Occasionally, when no Firestone casings were available, casings of other manufacturers would be used with Firestone retreading.”

Firestone’s attempt to distinguish Mercer is not persuasive. That it was company policy to use Firestone tires does not change the fact that any defect in those tires would create a hazard common to the public in general and not just to Firestone employees. Thus, were we to adopt the rationale of Mercer there would be viability in plaintiffs’ products liability action.

Mercer, however, appears to represent a view without support in any other state aside from California. Only in California has the dual-capacity doctrine been expanded to such lengths to allow an employee’s products liability action. See, e.g., Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 137 Cal. Rptr. 797. However, the California Legislature amended its workers’ compensation statutes in 1982 and abolished the dual-capacity doctrine except in the narrowest of circumstances. See West’s Ann. Cal. Lab. Code, Section 3602. Thus, it now appears that Mercer stands alone and we reject its rationale. See 2A Larson, Law of Workmen’s Compensation (1988), Section 72.83.

It is universally held that where an employer designs and manufactures a product for use by its employees and not for sale to the general public, an employee injured while using that product within the scope of his employment may not maintain a products liability action against his employer under the dual-capacity doctrine on the theory that the employer assumed an independent role as manufacturer. See, e.g., Bowen v. Goodyear Tire & Rubber Co. (Ala. 1987), 516 So. 2d 570; Hills v. Salt River Project Assn. (App. 1985), 144 Ariz. 421, 698 P. 2d 216; Campbell v. Black Mountain Spruce, Inc. (Colo. App. 1983), 677 P. 2d 379; Roberson v. Nooter Corp. (Fla. App.

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Bluebook (online)
541 N.E.2d 1040, 44 Ohio St. 3d 148, 1989 Ohio LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schump-v-firestone-tire-rubber-co-ohio-1989.