Temple v. Wean United, Inc.

364 N.E.2d 267, 50 Ohio St. 2d 317, 4 Ohio Op. 3d 466, 1977 Ohio LEXIS 420
CourtOhio Supreme Court
DecidedJune 29, 1977
DocketNo. 76-946
StatusPublished
Cited by3,752 cases

This text of 364 N.E.2d 267 (Temple v. Wean United, Inc.) 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
Temple v. Wean United, Inc., 364 N.E.2d 267, 50 Ohio St. 2d 317, 4 Ohio Op. 3d 466, 1977 Ohio LEXIS 420 (Ohio 1977).

Opinions

I.

Celebuezze, J.

This is a products liability action brought under theories of negligence, implied warranty, and strict liability in tort. The latter two counts are virtually indistinguishable,1 and appellants concede by their brief that implied warranty has been included as a theory of liability in order to comply with the terminology of Ohio law.

The paramount Ohio decision in the law of products liability is Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227. In Lonsrick this court traced the “slow, orderly and evolutionary development” in this area, and noted that Rogers v. Toni Home Permanent Co. (1958), 167 Ohio St. 244, and Inglis v. American Motors Corp. (1965), 3 Ohio St. 2d 132, provided the consumer with a cause of action in tort, based upon the breach of an express warranty, notwithstanding the lack of a contractual relationship between plaintiff and defendant. Whereas Rogers and Inglis imposed a warranty upon the manufacturer because of its adver[321]*321tising to the public, Lonsrich dispensed with this rationalization, and thus the doctrine of strict liability in tort was adopted by Ohio.

It is now well established that, in order for a party to recover based upon a strict liability in tort theory, it must be proven that: “(1) There was, in fact, a defect in the product manufactured and sold by the defendant; (2) such -defect existed at the time the product left the hands of the defendant; and' (3) the defect was the direct and proximate •cause of the plaintiff’s injuries or loss.” State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St. 2d 151. Under Ohio law, a defect is considered to exist in a product which is not “of good and merchantable quality, fit and safe for * * * [its] ordinary intended use.” Lonsrich, supra, at page 235.

Although acknowledging the absence of any mechanical malfunction, appellants contend that the power press was defective in that it was unreasonably dangerous and was placed in the hands of the user, Mrs. Temple, without adequate warning. This conception of defectiveness is premised upon Section 402 A of the Restatement of Torts 2d,2 Comment J, which states that: “In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning [322]*322* * * as to its use. ’ ’ Although this court has never expressly adopted Section 402 A as the standard for strict liability in tort, we did, in Lonzrick, supra, cite Section 402A, as well as Greenman v. Yuba Power Products (1963), 59 Cal. 2d 57, 377 P. 2d 897, the first case to apply the principles underlying the section. Since Oreenman was decided, the rule of the Restatement has been adopted or approved by the vast majority of courts which have considered it.3 Because there are virtually no distinctions between Ohio’s “implied warranty in tort” theory and the Restatement version of strict liability in tort,4 and because the Restatement formulation, together with its numerous illustrative comments, greatly facilitates analysis in this area, we hereby approve Section 402 A of the Restatement of Torts 2d.

II.

Under Section 402A, as well as under our case law, a plaintiff must prove that the product was defective at the time it left the seller’s hands. Lonzrick, supra, at page 237; Section 402A, supra, at Comment G. In addition, Section 402A(l)(b) imposes strict liability only where the defective product reaches “the user or consumer without substantial change in the condition in which it is sold. ’ ’

[323]*323• The evidence of record reveals that prior to the date of the accident Superior had a company policy -which specified that all power press activating buttons be located facing upward, waist high, 24 inches apart. Pursuant to this policy, upon receipt of the press, Superior altered the existing method of guarding by lowering the buttons, which were at that time shoulder high. Clearly, in relation to the. danger of unintentional activation, this alteration. was- a “substantial change” within the meaning of Section 402 A (l)(b). Indeed, it is. our conclusion that there was no original defect of any sort in the punch press, and that, as a matter of law, Superior’s alteration of the safety device, coupled with the utilization of the press for the stamping of stock long enough to bridge the 24 inch gap between the buttons, was the sole responsible cause of the maiming of Mrs. Temple.

This holding is in harmony with the decisions of other courts wherein workers were injured after there had been substantial changes, subsequent to purchase, in the condition of a power punch press.

In Hanlon v. Cyril Bath Co. (C. A. 3, 1975), 541 F. 2d 343, the court reviewed a products liability suit brought against the manufacturer of a power press to recover for injuries which purchaser’s employee sustained when he accidentally activated the machine. The starting mechanism orginally supplied with the press was a treadle, which required the operator to lift his foot a considerable distance and exert some 65 pounds of downward pressure to activate the machine. After purchasing the press, plaintiff’s employer substituted an easily activated portable electric foot switch for the treadle. The court held that this substitution was a substantial change in the condition in which the press was sold, and that the defendant manufacturer was entitled to a directed verdict.

In Keet v. Service Machine Company (C. A. 6, 1972), 472 F. 2d 138, the court reviewed a products liability action brought against the manufacturer of a punch press which was later sold to plaintiff’s employer. Unlike the instant [324]*324cause, plaintiff established that the press malfunctioned, resulting in the severance of his right hand. The court held, however, that because there was no substantial evidence tending to prove that the machine was defective at the time it was manufactured and sold to plaintiff’s employer, and there was evidence that the employer had made repairs on the machine prior to the accident, a verdict could properly have been directed for defendant-manufacturer.

In Hardy v. Hull Corp. (C. A. 9, 1971), 446 F. 2d 34, the court reviewed an action, brought under the theory of strict liability, by a plaintiff whose thumbs were crushed in a mold press sold by the defendant-manufacturer to her employer. The court noted that the evidence failed to establish that the press, as it was originally sold, was in a defective condition, or was unreasonably dangerous. Rather, the evidence disclosed that the press, after purchase, had been modified by plaintiff’s employer, and that such modifications made it dangerous. Accordingly, the court held that a verdict was properly directed for the manufacturer.

Although the above cases provide sufficient support for our decision to absolve the manufacturer, Wean, and the subsequent vendor, G-. M., from strict tort liability to appellants, we have not as yet specifically addressed the case against Square D. This appellee manufactured the operating buttons which were ordered and installed on the Warco press by Superior.

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Bluebook (online)
364 N.E.2d 267, 50 Ohio St. 2d 317, 4 Ohio Op. 3d 466, 1977 Ohio LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/temple-v-wean-united-inc-ohio-1977.