Susan and Marvin Brown have appealed from an order of the Lorain County Court of Common Pleas granting summary judgment to the appellees, McDonald's Corporation ("McDonald's"), Richard K. Potts, and Keystone Food Corporation ("Keystone"). We affirm in part and reverse in part.
On April 30, 1991, Susan Brown bought a McLean Deluxe hamburger at a McDonald's franchise owned by Potts. Shortly after her meal, she developed a rash, a tight chest, blue lips, and hives. These symptoms required immediate medical treatment, including a five-hour hospital stay. *Page 296
On May 24, 1991, Brown and her husband, Marvin Brown, filed a complaint against McDonald's and Potts. They later filed an amended complaint adding Keystone, a producer of McLean, as a defendant. In their complaints, they alleged that a seaweed-derived ingredient in the McLean caused Brown's severe reaction. They alleged that the defendants knew, or should have known, that consumers could have such a reaction, but had failed to warn Brown of the presence of this ingredient and of the risk it posed. They alleged that this failure to warn proximately caused her injuries and that, therefore, the defendants were liable to Ms. Brown for compensatory damages and to Mr. Brown for his loss of consortium.
After some discovery, each of the appellees moved for summary judgment. The Browns answered in opposition, and each appellee replied. On June 29, 1994, the trial court granted summary judgment to the appellees, without discussion. The Browns now appeal, asserting a single assignment of error:
Assignment of Error "The trial court erred and abused its discretion by granting Defendants-Appellees' motions for summary judgment by failing to construe the evidence in favor of the non-moving party and failing to recognize that there were material issues of fact on which reasonable minds could differ."
Summary Judgment In reviewing a trial court's entry of summary judgment, an appellate court applies the same standard used by the trial court. Parenti v. Goodyear Tire Rubber Co. (1990), 66 Ohio App.3d 826,829, 586 N.E.2d 1121, 1122-1123. Pursuant to Civ.R. 56(C), summary judgment is proper if:
"(1) [n]o 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; Delker v. OhioEdison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976.
While the movant bears the burden of establishing that there are no genuine issues of fact (Fyffe v. Jeno's, Inc. [1991],59 Ohio St.3d 115, 120, 570 N.E.2d 1108, 1113-1114), where he supports the motion with sufficient proof, the nonmoving party must set forth specific facts showing that a genuine issue for trial still exists. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at *Page 297 trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus.
Products Liability Ohio's statutory products liability law limits and defines the products liability causes of action that had developed in the common law. Consequently, it is imperative that we adhere to the exact statutory formulations, rather than rely uncritically upon common-law notions. To that end, we will (1) clarify the kinds of defendants present in this case, then (2) set out the statutory liability framework for a manufacturer's liability, and determine whether the Browns produced evidence of each element sufficient to survive the manufacturers' motions for summary judgment, and (3) set out the statutory liability framework for a supplier's liability, and determine whether the Browns produced evidence of each element sufficient to survive the supplier's motion for summary judgment.
1. Defendants
R.C. 2307.71(I) defines "manufacturer" as "a person engaged in a business to design, formulate, produce, create, make, construct, assemble, or rebuild a product or a component of a product." R.C. 2307.71(O) provides:
"(1) `Supplier' means, subject to division (O)(2) of this section * * *:
"(a) A person that, in the course of a business conducted for the purpose, sells, distributes, leases, prepares, blends, packages, labels, or otherwise participates in the placing of a product in the stream of commerce[.]
"(2) `Supplier' does not include * * *:
"(a) A manufacturer * * *."
The Browns argue that McDonald's and Keystone are both manufacturers and suppliers. They correctly argue that, because both McDonald's and Keystone admit to participating in the development of the McLean, they meet the statutory definition of "manufacturer." Because the definition of "supplier" specifically excludes a manufacturer, however, these two manufacturers cannot also be suppliers. For this reason, we will consider only whether they could be found to be liable as manufacturers. There is no dispute that Potts is a supplier; he admits that he sells McLeans and offers no evidence to oppose Ms. Brown's deposition testimony that she bought the McLean in question at his restaurant.
2. Manufacturer's Liability
A cause of action against a manufacturer for harm caused by a defective product is governed by R.C. 2307.73, which provides: *Page 298
"(A) A manufacturer is subject to liability for compensatory damages based on a product liability claim only if the claimant establishes, by a preponderance of the evidence, both of the following:
"(1) * * * the product in question * * * was defective due to inadequate warning or instruction as described in section2307.76 of the Revised Code * * *;
"(2) A defective aspect of the product in question as described in division (A)(1) of this section was a proximate cause of harm for which the claimant seeks to recover compensatory damages."
This section provides for strict products liability, so long as the product is defective. In order to determine whether a product is defective due to inadequate warning or instruction, however, it is necessary to consult R.C. 2307.76, which provides:
"(A) Subject to division (B) * * * of this section, a product is defective due to inadequate warning or instruction if either of the following applies:
"(1) It is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer, both of the following applied:
"(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
"(b) The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm.
"(2) It is defective due to inadequate post-marketing warning or instruction if, at a relevant time after it left the control of its manufacturer, both of the following applied:
"(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
"(b) The manufacturer failed to provide the post-marketing warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm.
"(B) A product is not defective due to lack of warning or instruction or inadequate warning or instruction as a result of the failure of its manufacturer to *Page 299 warn or instruct about an open and obvious risk or a risk that is a matter of common knowledge."
This definition of "defect" introduces negligence concepts of reasonableness, foreseeability, and risk. It codifies the common-law understanding that "the duty imposed upon a manufacturer in a strict liability action for failure to warn is the same as that imposed upon the manufacturer in a negligence action for failure to warn." Hanlon v. Lane (1994), 98 Ohio App.3d 148,153, 648 N.E.2d 26, 29, citing Crislip v. TCHLiquidating Co. (1990), 52 Ohio St.3d 251, 256-257,556 N.E.2d 1177, 1181-1183. In order to recover, then, "the plaintiff must show that the manufacturer had a duty to warn, that the duty was breached, and that the plaintiff's injury proximately resulted from that breach of duty." Hanlon, 98 Ohio App.3d at 152,648 N.E.2d at 28.
In this case, the parties agree that neither manufacturer issued any warning concerning possible reactions to ingredients of the McLean. The manufacturers allege only that a flier describing the McLean is made available to all McDonald's customers. They supported that allegation with a sample of the flier which lists the ingredients, including carrageenan. It does not inform the reader that carrageenan is derived from seaweed, nor that persons who are allergic to seafood may experience an adverse reaction to that ingredient. Ms. Brown purchased the McLean at a drive-through window, and the manufacturers did not submit any evidence that she actually received this flier or that it was offered to her at the time of the sale. In contrast, the Browns offered Ms. Brown's deposition testimony that she did not receive the flier and that she was not aware that it was available. Based on the evidence presented by all the parties, and viewing it most strongly in favor of the Browns, a jury could reasonably find that the manufacturers failed to warn Ms. Brown.
The manufacturers' argument in support of summary judgment hinges, therefore, upon their allegation that the McLean poses no risk of which they should have been aware. In support of this allegation, they submitted evidence that the McLean is USDA-approved and that carrageenan has wide commercial use as a binder in foods. Their argument is that the McLean is free from defect in that there is nothing about it that poses a risk to ordinary consumers and that there was, therefore, no reason to warn of any risk.
The qualification that the standard is a risk posed to the "ordinary" consumer is derived from Section 402A, Comment i, of 2 Restatement of the Law 2d, Torts (1965) 352, which limits causes of action in strict products liability to those involving "unreasonably dangerous" products. Comment i states that the product in question "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." The manufacturers *Page 300 argue that, because of her allergy to seafood, Brown is not an ordinary consumer and that, therefore, they owe no duty to consider the risk that their product may pose to her. McDonald's frames this argument as an affirmative defense, arguing that Ms. Brown's unusual susceptibility to carrageenan operates as a complete bar to her recovery. Neither manufacturer offered evidence of the incidence of such reactions to carrageenan, other than testimony that carrageenan has widespread use in processed foods.
The Browns counter the "ordinary consumer"/"unusual susceptibility" argument by asserting that reactions of the kind Ms. Brown experienced are not unusual. This assertion is supported by the affidavit of Dr. Howard Schwartz, a licensed physician familiar with Ms. Brown's medical history and her symptoms on the day she ate the McLean hamburger. Schwartz swore to his opinion that such a reaction may not be an unusual susceptibility, that the possibility of such a reaction should have been considered in the manufacturing and marketing of the McLean hamburger, that Ms. Brown and other consumers should not be subjected to products such as the McLean that have ingredients with the potential to cause anaphylactic shock, and that Ms. Brown and other consumers should be made aware of the ingredients therein and the possibility for adverse reactions.
The Browns also argue that a plaintiff's unusual susceptibility, assuming that it exists, does not operate as a complete bar to recovery. We note that R.C. 2307.76(A)(1)(a) contains no quantitative standard. It merely asks the question whether the manufacturer knew or should have known of a risk. A jury could reasonably find, for instance, that a manufacturer should have known of a risk to even a small number of consumers. It is R.C. 2307.76(A)(1)(b) that introduces the quantitative element. It asks whether a manufacturer exercising reasonable care would warn of that risk in light of both the likelihood and the seriousness of the potential harm. Within this framework, whether the plaintiff's harm was unusual or not would be a factor in calculating whether a manufacturer exercised reasonable care in its decision not to warn. The incidence of the kind of harm at issue in the case is only one factor a jury would consider in finding a duty to warn.
Comment j to Section 402 of 2 Restatement of the Law 2d, Torts (1965) 353, comments specifically upon the duty to warn in relation to consumers having allergies. It states:
"In order to prevent the product from being unreasonably dangerous, the seller1 may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for *Page 301 example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. * * *" (Footnote added.)
Though each manufacturer in this case offered evidence that it neither knew nor should have known of the risk of an adverse reaction to carrageenan, that evidence is only probative, not dispositive. Taken together with the evidence offered by the Browns, and viewing it in a light most favorable to them, it is insufficient to merit summary judgment for the manufacturers on the basis of this element.
The manufacturers also denied that Ms. Brown's reaction, which they claimed was unsupported by any evidence, was the proximate result of any defect in a McLean hamburger. They offered no evidence opposing the allegation of causation, whereas the Browns offered Ms. Brown's deposition testimony that her symptoms arose within thirty minutes of having eaten the McLean, that she was treated with medications, and that she was required to remain at the hospital for observation. The Browns supplemented this evidence with Dr. Schwartz's affidavit in which he swore to his opinion that Ms. Brown's reaction was due to her consumption of the McLean hamburger. Because the Browns offered evidence tending to prove causation, that element remains a question for the jury.
The Browns offered sufficient evidence to preserve genuine issues of material fact to be found by a jury with regard to whether either manufacturer is liable for Ms. Brown's harm. For this reason, summary judgment in favor of McDonald's or Keystone was improperly granted.
3. Supplier's Liability
A cause of action against a supplier is governed by R.C.2307.78. Pursuant to that section, a plaintiff may establish a supplier's liability under three separate theories only. Subsection (A)(1) allows a negligence claim. Subsection (A)(2) allows for strict liability if the supplier made an express representation2 to which the product did not conform at the time the product left the supplier's control. Subsection (B) links the supplier's liability to that of the manufacturer, under conditions that are not relevant to this case. *Page 302
Though the Browns allege a strict liability claim, they provide no evidence that Potts made any express representation about the McLean hamburger. Rather, their argument rests on Potts's alleged breach of an implied warranty of merchantability. While Potts, as a seller, may be bound by an implied warranty of merchantability pursuant to R.C. 1302.27, the Browns did not argue their claim under that statute. Instead, they argue that an implied warranty of merchantability qualifies as the kind of representation covered under R.C.2307.78(A)(2). Because that section applies only to express representations, however, the strict liability theory is not available to these plaintiffs.
The only theory of liability remaining to the Browns, as against Potts, is negligence. "[I]n order to establish actionable negligence, one must show the existence of a duty, a breach of that duty, and an injury resulting proximately therefrom." Menifee v. Ohio Welding Prods., Inc. (1984), 15 Ohio St.3d 75,77, 15 OBR 179, 180-181, 472 N.E.2d 707, 710. The Browns allege that Potts negligently sold Ms. Brown a McLean without adequately warning her of the risk of injury to an allergic consumer. They argue that Potts had a duty to his customers to make reasonable inquiry into the ingredients in the McLean and the potential harmful effects associated with them. They further argue that such an inquiry would have uncovered the risk of a severe adverse reaction to carrageenan and that Potts had a duty to warn his customers of that risk. They argue that Potts's failure to make any inquiry, and his consequent failure to warn, was a breach of that duty and that it proximately caused Ms. Brown's injury.
Potts admits that he did not warn Ms. Brown of the risk that carrageenan might pose to her, alleging only that the descriptive flier provided by McDonald's is "made available" to consumers. In addition, he offers no evidence to support his general denial of the causal element. Potts's argument for summary judgment rests upon the premise that he owed no duty to investigate the nature of carrageenan and its possible effects on allergic consumers. He admits that, had he known that there was some risk associated with an ingredient of the McLean, he would have had a duty to warn his customers.
"In Ohio, the case law has established that a * * * vendor is negligent when he has knowledge of a latent defect rendering a product unsafe and fails to provide a warning of such defect."Temple v. Wean United, Inc., supra, 50 Ohio St.2d at 325, 4 O.O.3d at 470-471, 364 N.E.2d at 273. Section 402 of the Restatement states the inverse of this rule:
"A seller of a chattel manufactured by a third person, who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not liable in an action for negligence for harm caused by the dangerous character or condition of the chattel because of his failure to discover the danger by an inspection or test of the chattel before selling it." *Page 303
Comment c to this section, at 346, makes clear that a fact that an actor "has reason to know" is distinct from one that an actor "should know," in that the former phrase "does not impose any duty to ascertain unknown facts." Comment e, at 347, elaborates on the seller's reasonable belief that a product is safe:
"In many situations the seller who receives his goods from a reputable source of supply receives it with the firm conviction that it is free from defects; and where a chattel is of a type which is perfectly safe for use in the absence of defects, the seller who sells it with the reasonable belief that it is safe for use and represents it to be safe for use does not act negligently. Frequently, the manufacturer's literature and salesmen and his past record of sending the seller perfectly made chattels create a reasonable belief in the seller's mind that the particular chattel he is selling is made perfectly. When the seller reasonably believes that the chattel is safe, his representation in good faith to that effect is * * * [not] negligent."
Potts alleged that, to his knowledge, the McLean is wholesome, edible, undeleterious, and free from defects. This allegation is supported by his affidavit and deposition testimony that he had sold thousands of McLeans without incident and that, at the time of the sale to Brown, he had no knowledge of the risk of severe allergic reactions to carrageenan. His belief in the safety of carrageenan was supported by the affidavit of McDonald's Vice President of Product Development/Nutrition and the flier listing McLean hamburger's ingredients.
Potts offered ample evidence of his reasonable belief that the McLean hamburger is a safe product. In opposition to this evidence, the Browns offered no evidence that he knew or had reason to know of the possibility of harm to an allergic consumer. Potts swore to his business relationship with the manufacturers and to the fact that they had never given him reason to suspect that there could be some risk associated with any ingredient in the McLean. There is no evidence that either manufacturer's reputation for wholesome products is suspect, nor is there evidence of any other fact "from which a person of reasonable intelligence or of the superior intelligence of the actor would infer"3 that there was a risk of harm from consuming a McLean.
Even viewing this evidence in a light most favorable to the Browns, reasonable minds could only conclude that Potts owed no duty to his customers to inquire beyond the facts already available to him with respect to the safety of the McLean. In the absence of such a duty, his failure to warn Ms. Brown is not a negligent act, and the trial court appropriately granted summary judgment in his favor. *Page 304
Conclusion The judgment of the trial court granting summary judgment to Potts is affirmed. Its judgment granting summary judgment to McDonald's and Keystone is reversed and remanded for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
MAHONEY, J., concurs.
DICKINSON, J., concurs in part and dissents in part.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment.
1 "Seller" includes manufacturers, for the purposes of this section. Comment f to Section 402 of 2 Restatement of the Law 2d, Torts (1965) 350.
2 R.C. 2307.71(N) defines "representation" as "an express representation of a material fact concerning the character, quality, or safety of a product."
3 Comment a to Section 401 of 2 Restatement of the Law 2d, Torts (1965) 340.