Plaintiff: filed a petition in the Common Pleas Court of Cuyahoga County which alleges:
“On August 22, 1960, at about 10.30 a. m., plaintiff, who was then in the employ of Valley Steel Erectors, Inc., * * * was engaged in his usual occupation of structural iron worker on certain premises known as the ‘Stow Industrial Park’ located in or near Stow, Ohio, where a new warehouse business was then under construction.
“At said time and place, while he was working on the ground in an area where certain steel roof joists manufactured and sold by defendant had been installed directly overhead, a number of such joists collapsed and fell down upon plaintiff, causing him the injuries and damages hereinafter set forth.
i l # # *
“Prior to the occurrence of August 22, 1960, defendant impliedly warranted that the said roof joists were of good and merchantable quality, but said implied warranty was breached by defendant in that said roof joists were not of good and merchantable quality.
“By reason of such breach of warranty on the part of the defendant, the said roof joists came apart in use and fell upon plaintiff while he was working below them in a place in which his presence was reasonably to he anticipated by defendant. As a direct and proximate result, plaintiff sustained the following injuries and damages # *
Defendant’s demurrer to the petition was sustained, and, plaintiff not desiring to plead further, his action was dismissed and judgment was entered for the defendant.
On appeal, the Court of Appeals reversed the judgment of the Common Pleas Court and remanded the cause to the Common Pleas Court with instructions to overrule the demurrer and for further proceedings according to law.
It may be that the petition in the instant case would be subject to a motion to make some of its allegations definite and certain, especially those allegations as to the implied warranty “of good and merchantable quality” and as to the joists not being “of good and merchantable quality.” However, defendant waived its right to file such motion by filing its demurrer. Clay v. Edgerton, 19 Ohio St. 549. Thus, for the purpose of testing *229the legal sufficiency of the petition, defendant’s demurrer must be regarded as admitting the truth of the facts alleged and whatever other facts which can by fair and reasonable intendment be inferred from those facts. Guardian Life Ins. Co. of America v. Veser, 128 Ohio St. 200; Gugle v. Loeser, 143 Ohio St. 362; Bell v. Salvation Army, 172 Ohio St. 326.
The allegations of the petition and all reasonable inferences therefrom will support the following statement of facts:
Defendant manufactured and sold certain steel roof joists. In selling those joists, defendant impliedly warranted that they were fit for the ordinary purposes for which such steel roof joists are used. (Section 1302.27, Eevised Code, reads in part: “Goods to be merchantable must be at least such as * * * [3] are fit for the ordinary purposes for which such goods are used.”) Those joists were defective because they were not fit for the ordinary purposes for which such joists are used. As a proximate result of being so defective, those joists came apart and fell on and injured plaintiff. At that time, plaintiff was working as a structural iron worker on the ground in an area where the joists had been installed directly overhead and was thus in a place where his presence was reasonably to be anticipated by defendant.
The Court of Appeals held that this petition states a good cause of action in tort, based upon the theory of breach of warranty.
This is a products liability case. In such a case, there are three possible causes of action which the plaintiff may pursue:
(1) An action in tort which is grounded upon negligence. Such cause of action does not require the allegation of a contractual relationship between the plaintiff and the defendant. The petition in this ease does not allege negligence and does not state facts which constitute negligence.
(2) A cause of action which is based upon contract. Such a cause of action requires that there be a contractual relationship between the plaintiff and the defendant. The petition in this case does not allege a contract and it does not allege a breach of a contractual warranty. It does not allege any contractual relationship between the plaintiff and the defendant.
(3) An action in tort which is based upon the breach of a *230duty assumed by the manufacturer-seller of a product. This duty is assumed by the manufacturer by reason of bis implicit representation of good and merchantable quality and fitness for intended use when be sells the product. This duty is breached when a defect in the product causes the collapse of the product and is the direct and proximate cause of injury to a person whose presence the defendant could reasonably anticipate. This is the cause of action which the petition in this case states.
In this action the plaintiff is required to allege and prove that there was a defect in the steel joists manufactured and sold by the defendant, that such defect existed at the time the joists were sold by the defendant, that the defect was the direct and proximate cause of plaintiff’s injuries, and that the plaintiff, at the time he was injured, was in a place where his presence was reasonably to be anticipated by the defendant.
It is conceded by both parties that the plaintiff does not have an action based upon a contract because there was no contract of sale between the plaintiff and the defendant and, therefore, no contractual relation (privity) between the parties.
The position of the defendant is that the plaintiff’s petition does not state a cause of action because it does not allege negligence, does not allege an express warranty and does not allege any contractual relationship between the plaintiff and the defendant.
The plaintiff concedes that this petition does not allege negligence, does not allege an express warranty and does not allege any contractual relationship between the plaintiff and the defendant. The plaintiff asserts that the petition states a cause of action in tort based upon an implied warranty.
The basic question for the court to decide is the same as the question was in Welsh v. Ledyard, 167 Ohio St. 57, in Rogers v. Toni Home Permanent Co., 167 Ohio St. 244, and in Inglis v. American Motors Corp., 3 Ohio St. 2d 132. Is the plaintiff restricted to prosecuting his action for damages on the basis of negligence alone, or may he proceed in tort on the theory of breach of warranty?
The precise questions this court is required to determine are: (1) Where a defendant manufactures and sells steel roof joists, is there implicit in the production and sale of this pro*231duct the representation that the joists are of good and merchantable quality and safe for their ordinary intended use? and (2) when, in fact, such steel joists were defective and while being devoted to their ordinary intended use collapsed because of such defect and fell to the floor and injured the plaintiff, who was working on the floor below these steel roof joists in a place where his presence was reasonably to be anticipated by the defendant manufacturer, is such innocent injured party restricted to prosecuting a tort action for damages on the basis of negligence alone, or may he proceed in tort on the theory of an implied warranty?
The defendant relies upon the eases of Wood v. General Electric Co., 159 Ohio St. 273, and Welsh v. Ledyard, 167 Ohio St. 57.
Welsh v. Ledyard, supra, decided November 27, 1957, is the high-water mark for this court in the assertion of the principle of law that an action for a breach of warranty is an action in contract, and, whether it be an express or an implied warranty, there can be no recovery unless there is a direct contractual relationship between the plaintiff and the defendant.
In Ledyard, supra, a housewife was injured by an electrical shock when she grasped the handle of a defective electrical cooking appliance which her husband had purchased from the defendant. ' Ledyard presented the same question as the instant case, that is, can there be a recovery grounded in tort based upon an implied warranty where there is no direct contractual relationship between the parties?
The rationale of the majority expressed in the per curiam opinion of the court in that case is that the plaintiff could not recover because an action based upon implied warranty is grounded in contract and not in tort. Since the plaintiff’s husband had purchased the defective appliance she had no direct contractual relationship with the seller and could not recover from him. As in this case, the petitioner in Ledyard did not allege negligence.
The injustice of this position was soon apparent.
In Ledyard, the majority of the court announced a rule which denied recovery to the wife who would ordinarily use such a cooking appliance, but indicated that the rule would *232allow recovery by her husband in a contract action based upon breach of implied warranty had he suffered the same injury, on the ground that since he was the purchaser he had a direct contractual relation (privity) with the defendant.
The holding in Ledyard was not based upon the ground that (1) there was no defect, or (2) no defect was present when the appliance was sold, or (3) the defect was not the proximate cause of plaintiff’s injury, or (4) plaintiff was someone that defendant could not reasonably foresee would use this cooking appliance for the purpose for which it was manufactured and sold. Rather the holding in Ledyard was grounded upon the fact that plaintiff’s husband bought the defective appliance rather than the wife, a circumstance which had no relevance to the fact that the defendant was responsible for the creation of the risk of injury to plaintiff because the defendant produced and sold the defective appliance which injured the plaintiff while she was using it for the ordinary purpose for which it was manufactured.
The high tide of Ledyard, supra, was soon to recede.
Two months later, January 29, 1958, Rogers v. Toni Home Permanent Co., supra, was decided. In the opinion in that case, which has become a landmark in this area of the law nationally, Judge Zimmerman declined to embrace the rationale of Ledyard, supra. He was joined by Judges Matthias and Bell, who had dissented in Ledyard, and by the late Chief Justice Weygandt.
The plaintiff in Toni, supra, had purchased from a retailer a Toni Home Permanent and used it as it was intended to be used and suffered injuries to her hair and scalp by reason of the defective and deleterious ingredients of the product. The defendant relied upon Wood, supra, and Ledyard, supra, as does the defendant in this case, on the ground that the plaintiff had not purchased from the manufacturer and, thus, had no direct contractual relation (privity) with the manufacturer and, therefore, could not recover in a tort action based upon breach of warranty but must be limited to an action based upon negligence.
Judge Zimmerman succinctly stated the question, at page 245;
*233“The precise question we are now required to determine is whether # * * such ultimate purchaser is restricted to prosecuting his action on the basis of negligence alone or whether he may proceed on the theory of an express warranty.” (Emphasis added.)
In his opinion, Judge Zimmerman established as the law of Ohio two important principles: First, that an action for breach of warranty in a products liability case may sound in tort rather than in contract; and, second, that an injured party may assert a tort action grounded on a breach of warranty, notwithstanding the fact that there was no contractual relationship between the plaintiff and the defendant.
Judge Zimmerman examined the first principle exhaustively in his opinion and cited cases and authorities to support his position. He asserted that an action based upon contract came into the law as an additional or alternative remedy to the action in tort, which had been recognized earlier, based upon breach of an implied or express warranty not arising out of the contract of sale.
He summed up his position on the first principle, in these words, at page 247:
“A prevalent but mistaken notion is extant that the term, ‘warranty/ has always carried the implication of a contractual relationship. From a historical standpoint such a notion is without foundation. Some of the cases, and well known and respected writers on legal subjects, point out that originally the consumer or user of an article, which was represented to be in good condition and fit for use and proved not to be, was accorded redress by an expansion of the action of trespass on the case to include deceit — a fraudulent misrepresentation— which sounds distinctly in tort. Undoubtedly, the recognition of such a right of action rested on the public policy of protecting an innocent buyer from harm rather than to insure any contractual rights. * * (Emphasis added.)
Judge Zimmerman pointed out what has been repeated by many of the leading legal writers, namely, that the confusion in these cases frequently arises from the fact that the use of the word, “warranty,” has often come to have a connotation of being associated with a contract, whereas, prior to the time of the *234recognition of an action for breach of warranty based npon contract, there existed the action for breach of warranty in tort. This “kind of warranty” arose not ont of a contract of sale but ont of the duty of a manufacturer or seller of a product to protect the person consuming or using that product in the ordinary way in which it was intended to be used from the harm of injury to person or property caused by a defect in the product. It is a failure to distinguish between these two different kinds of warranties that has caused confusion in the law, and, in our modern-day mass-production and mass-distribution industrial system, this has resulted in some of the unjust technical decisions based upon outmoded and irrelevant concepts of privity.
Judge Zimmerman stated his position with regard to the second principle of law which he established by his opinion, in the following words, at page 246:
“In asking for a reversal of the judgment of the Court of Appeals, defendant places great reliance on the comparatively recent case of Wood v. General Electric Co., 159 Ohio St. 273 # # #
< f * * *
“* * * [That] rule is based on the proposition that to support an action grounded on an implied warranty there must be contractual privity between the buyer who sues and the seller against whom the suit is brought.
“It must be confessed that the 'prevailing view is that privity of contract is essential in an action based on a breach of cm express or implied warranty, and that there is no privity between the manufacturer of an article and the ultimate purchaser thereof from a retailer, where the ultimate purchaser was in no way a party to the original sale. * * *
it* * *
“Other writers have no hesitancy in asserting that in the beginning an action on ‘breach of warranty’ was a tort action to give relief for the breach of a duty assumed by the seller, and that the introduction at a much later date of the method of declaring on a warranty ‘indebtitatus assumpsit’ (an implied promise br obligation on the part of one to pay to another what in fairness and good conscience the former should pay) constituted the recognition of cm additional or alternative remedy of *235a contractual aspect to secure relief where a breach of warranty is involved. * * (Emphasis added.)
Judge Zimmerman realized full well that he was changing the law in this field of law by returning to an earlier recognized remedy granted by the courts, and he so stated at page 249:
“We are fully aware that the position outlined is opposed to the present weight of authority and may conflict with previous decisions of this court. However we consider it a reasonable and logical approach today in keeping with the modern methods of doing business.”
Judge Zimmerman was right in his appraisal that the weight of authority, at the time he wrote the opinion, did not support his position. However, today, the overwhelming weight of authority in the cases which have been decided since he wrote his opinion support the position which he took and have extended the law, as stated in paragraph three of the syllabus of Toni, to include implied warranty.
Judge Zimmerman foresaw that the acceptance of these concepts would bring additional changes in the Ohio law. It is doubtful, however, that Judge Zimmerman was prepared for the rapidity with which these principles of law which he announced would be accepted in most of the leading jurisdictions of the United States.
Judge Herbert, in another landmark decision, in Inglis v. American Motors Corp., supra, followed the principles of law asserted by Judge Zimmerman in Toni, supra, and extended the rule to allow a tort action based upon breach of warranty rather than upon negligence for property damage (Toni involved only personal injuries), where no direct contractual relationship existed between the plaintiff and the defendant manufacturer.
In the case before this court, the controlling principles of law were established by Judge Zimmerman in Toni, supra, and Judge Herbert in Inglis, supra.
This is an action in tort for breach of an implied warranty. The warranty in this case is the manufacturer’s representation, implicit in the sale of the steel joists, that they were of good and merchantable quality, fit and safe for their ordinary intended use. This created a duty upon the manufacturer-seller, *236which duty was breached when the joists proved defective and collapsed because of the defect, injuring plaintiff.
Judge Zimmerman, in Toni, and Judge Herbert, in Inglis, considered representations in national advertising as an express warranty under which the manufacturer assumed the duty and upon which a plaintiff could be said to have relied in making a purchase of a product and held that when a defect in such product caused personal injury or property damage the defendant breached the duty and the plaintiff-user was not restricted to an action based upon negligence alone but could recover upon an action in tort based upon the breach of warranty, and that in such action no contractual relation (privity) between the plaintiff-user and the defendant-manufacturer is required.
It is, then, settled law in this state, Toni, supra, and Inglis, supra, that there can be an action in tort, based upon breach of warranty, and no contractual relation between the plaintiff and the defendant is required.
The question which remains to be determined in this case is: Where it is conceded that a manufacturer produced and sold steel joists, implicitly representing that they were of good and merchantable quality, fit and safe for the ordinary purposes for which such steel joists are used, but without advertising the product, is an innocent plaintiff-user, whose presence the defendant could reasonably anticipate and who is injured because a defect in the joists caused them to fall upon him, restricted to an action based on negligence alone, or can he recover in an action in tort based upon breach of this implied warranty where he was not in direct contractual relation (privity) with the manufacturer-defendant?
It is evident that to deny this plaintiff the right to state a good cause of action in tort, based upon such implied warranty, is to hold that a plaintiff, such as the car buyer in Inglis, who bought the same make of car and suffered the same damage as a result of the same defect as the car buyer in Inglis, would be denied recovery if he in fact had not read a national advertisement or other "written material published by the manufacturer about the car; or that, if a neighbor of the plaintiff in Toni had bought the same home permanent kit and suffered the same injury from the same defect, she would be denied *237recovery if she had not read the national advertisement or other written material published by the manufacturer.
To state the result of this kind of rule is to point out its essential injustice.
The rulings in Toni and Inglis were sound in allowing recovery to the plaintiff in a tort action based upon an express warranty.
The fact that the plaintiff saw the advertisement is a sound basis for recovery, but the fact that he did not read an advertisement is not a sound basis for denying recovery. 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.
Some argue that to allow recovery in the kind of case now before the court means that the court is imposing absolute liability upon the defendant. That is not so.
If this case comes to trial before a jury, there may well be a directed verdict for the defendant if the plaintiff fails in his proof of any one of the elements required to be proved in order to have his case submitted to the jury. If the case goes to the jury, there may well be a verdict for the defendant.
For the plaintiff to recover, he must prove, by the required degree of proof, that the joists were defective, that they were defective at the time the manufacturer sold them, that the defect caused them to collapse while they were being used for their ordinary intended purpose, that the defect was the direct and proximate cause of the plaintiff’s injury, and that the plaintiff’s presence was in a place whieh the defendant could reasonably anticipate.
Each of these elements of the plaintiff’s ease is a jury question, including the question of proximate cause.
Defendant has available the opportunity to offer evidence in defense on each of these necessary elements of the plaintiff’s case, and also has available the defense of assumption of risk and intervening cause.
An examination of Wood and Ledyard as to the fundamental reasons on which the decisions in those cases were based is of no help.
*238The per curiam opinion in Ledyard does not state any reasoning upon which the result rested, but rather arbitrarily cites as authority the holdings of previous cases, as at page 60, where the court cites Wood, supra, and quotes, from Judge Williams, in Canton Provision Co. v. Gauder, a Minor, 130 Ohio St. 43, 48, as follows:
An implied contract of warranty requires a meeting of the minds the same as does an express contract. * * * There was no privity of contract between the plaintiff and either of the defendants for the petition alleges that the liver pudding was purchased by the plaintiff’s mother. Any liability that exists in the instant case therefore necessarily arises out of tort [negligence].”
Wood, supra, is no more illuminating. As a basis for the decision, the opinion in that case simply makes the arbitrary statement, at pages 278, 279:
“* * * To support an implied warranty there must be contractual privity between the seller and the buyer.
“Although a subpurchaser of an inherently dangerous article may recover from its manufacturer for negligence, in the making and furnishing of the article, causing harm to the sub-purchaser or his property from a latent defect therein, no action may be maintained against such manufacturer by such subpurchaser for such harm, based upon implied warranty of fitness of the article so purchased. * * * Here, there was no such privity and hence no implied warranty upon the part of General Electric and no valid issue on that subject.”
It must be noted that this rationale is contra to Judge Zimmerman’s reasoning and conclusions in Toni.
Judge Zimmerman recognized this at page 249, where he said:
“Without commenting on the soundness of the holding in the Wood case, in light of what has been stated above, suffice it to say that should a case eome before this court with facts resembling those in the Wood case, it would then be time to reexamine and reappraise that decision.”
In Wood, the opinion relied upon the Bestatement of the Law of Torts, which has since been changed to approve such an action.
*239Supporting the position of plaintiff and the Court of Appeals are the following anthorities: Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P. 2d 897; Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 391 P. 2d 168; Garthwait v. Burgio (Conn.), 216 A. 2d 189; Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N. E. 2d 182; Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich. 120, 90 N. W. 2d 873; Piercefield v. Remington Arms Co., Inc., 375 Mich. 85, 133 N. W. 2d 129; Morrow v. Caloric Appliance Corp. (Mo.), 372 S. W. 2d 41; Santor v. A and M Karagheusian, Inc., 44 N. J. 52, 207 A. 2d 305; Cintrone v. Hertz Truck Leasing & Rental Service, 45 N. J. 434, 212 A. 2d 769; Goldberg, Admx., v. Kollsman Instrument Corp., 12 N. Y. 2d 432, 191 N. E. 2d 81; Marathon Battery Co. v. Kilpatrick (Okla.) CCH Prod. Liab. Rep. 5501; Wights v. Staff Jennings, Inc. (Ore.), 405 P. 2d 624; Ford Motor Co. v. Lonon (Tenn.), 398 S. W. 2d 240; Restatement of Law of Torts 2d, Section 402A; Prosser on Torts (3 Ed.) 672 et seq., Section 97, pp. 672 ff; and 2 Harper and James, The Law of Torts, 757, Section 12.4.
In Ohio the law in the field of products liability has had a slow, orderly and evolutionary development. In 1958, Toni established an action in tort based npon an express warranty for the recovery for personal injuries. In 1962, the Ohio General Assembly enacted the Uniform Commercial Code. Section 1302.31, Revised Code, a section of the Commercial Code, provides for extending a seller’s warranty whether express or implied to any natural person the family or household of his buyer, or who is a guest in his home, if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty.
The effect of this section of the Code is to reverse the result in Ledyard by extending an express or implied warranty, arising out of a contract of sale, to the additional persons designated in that section.
In 1965, in Inglis, an action in tort based upon an express warranty was established allowing recovery for property damage.
In Stump v. Phillians, 2 Ohio St. 2d 209, this court held that, where a defendant’s brakes failed because of a defect in manu*240facture, which could only have been detected by a fluoroscopic inspection method, which defect caused a weld to break and pulled the hydraulic fluid line and the emergency brake cable causing both to break with tension and leaving the vehicle with no means of applying the brakes, the defendant was liable as a matter of law and, as a matter of law, his negligence was the proximate cause of the injuries to the plaintiff.
If the rule is just in Stump, supra, certainly it would have been just for the defendant in that case to be able to recoup his loss from the manufacturer by proving the defect was present when the brake left the manufacturer’s plant, and that the defect was the proximate cause of the defendant’s loss, without the burden of alleging and proving negligence.
Judge Zimmerman dissented in that case on the ground that the question of proximate cause should be one for the jury.
Under the proper rule applicable to this case, all the elements of the plaintiff’s case are jury questions, including proximate cause.
In the posture of the present case, which is a demurrer to a petition, the cause of action asserted represents a normal development in the law in this field.
The petition in this case states a good cause of action grounded in tort, based upon a breach of the representations which are implicit when a defendant manufactures and sells a product which, if defective, will be a dangerous instrumentality.
Judgment affirmed.
Zimmermak, Matthias and Herbert, JJ., concur. Taet, C. J., SchNeider and BrowN, JJ., dissent.