Cremeans v. International Harvester Co.

Holmes, J.,

dissenting. The majority of this court continues to rush on-

ward in its search for new avenues or theories of recovery for claimants, and where no such avenues or theories are found to be in existence, new ones are ploughed to suit the needs of the claim at issue.

On the facts of this case, International Harvester violated no duty to these plaintiffs in manufacturing and selling a crawler-type tractor without roll-over protection. The tractor involved here which had been designed without roll-over protection was not in a defective condition. The majority here extends the legally illogical and harsh result of Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460 [23 O.O.3d 403], which had gone beyond the application of strict liability for manufacturers established by this court in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227 [35 O.O.2d 404]. By this holding it would appear that we are at, if not over, the threshold of absolute, rather than strict, liability for manufacturers of products used in Ohio.

First, it would have been appropriate for the trial court to have granted *237appellants’ motion for summary judgment based upon the plaintiff’s clear assumption of the risks involved under the circumstances. However, this issue was not appealed by appellants.

Even applying the highly questionable tests as set forth in Knitz to the facts in this case, it was appropriate for the trial court to have entered a summary judgment here for the appellants. First, the court of appeals correctly noted in its opinion that:

“Cremeans’ deposition shows that he had been in the construction business most of his life. He had driven bulldozers and other heavy equipment since the 1950’s and had operated the machine involved in this case since 1971. He was aware at the time of the accident that the machine was on a slope grade and that it was dangerous to load on such conditions. He conceded that the ordinary operator would be aware of this circumstance. Furthermore, Cremeans knew the machine did not have a roll-bar and it would have been safer if such equipment was included.

“Therefore, reasonable minds could only conclude that Cremeans was aware of the dangers involved in the absence of a roll-bar. Thus, if there was a defective condition, reasonable minds could not conclude that it was no more dangerous than Cremeans or an ordinary user would expect. * * *”

From that point, the court of appeals’ opinion, and the majority opinion here, leaves we earthlings and transcends the horizon in finding that there were genuine issues of fact presented as to whether “the benefits of the challenged design do not outweigh the risks inherent in such design.”

There was no evidence presented to the trial court that the bulldozer operated by Cremeans was defectively manufactured or designed. There was no statute, regulation or other standard in effect at the time this bulldozer was manufactured that required the use of roll-over protective devices or structures. In regulations effective September 1, 1972, the Federal Occupational Safety and Health Administration (“OSHA”), for the first time, made it mandatory for employers to provide roll-over protective structures for certain equipment, including crawler tractors or bulldozers. These regulations do not apply to manufacturers, and in any event would not apply to this bulldozer which was constructed in 1970.

Additionally, this case, upon its facts, should logically be differentiated from Knitz. In that case, the plaintiff offered evidence submitted by two expert witnesses that the punch press in question was defectively designed. The opinion accordingly states, at page 467:

“* * *[A]ppellant provided an affidavit of James J. McCarthy, a former safety engineer for General Motors Corporation, involved with analysis of machine accident potential. McCarthy’s affidavit states, inter alia, that in his opinion the press is defective ‘because of inadequate guarding at the point of operation caused by failure to attach a barrier or interlock gate guard to prevent entry of the operator’s hands into the danger area while the ram is descending * * * the press is defective because of inadequate guarding of the foot pedal of the foot switch to prevent inadvertent entry and tripping.’

*238“Appellant also offered the deposition of Simon Tammy, a mechanical engineer, in which he testified that the foot switch creates unique hazards which should be prevented by use of a point of operation guard. * * *”

In the case sub judice, however, the appellees have presented no evidence beyond the testimony of Cremeans that he was injured while operating a bulldozer under circumstances which he recognized as dangerous. Such an allegation requires that some expert testimony be presented in order to create a genuine issue of material fact under Civ. R. 56(C). If the law were otherwise, summary judgment for a defendant would never be possible since the plaintiff need only assert that a given product is defectively designed and that he was injured by it. Nor does the appellees’ allegation of an inapplicable OSHA standard create a genuine issue of material fact sufficient to overcome a motion for summary judgment.

Therefore, I conclude that where no relevant evidence, expert or otherwise, of a design defect has been presented, a manufacturer or supplier is entitled to summary judgment as a matter of law. The majority herein, however, believes otherwise and in so doing speaks of its theory of the liability of manufacturers in terms of a nebulous two-pronged test. I am not certain in reading the opinion how many prongs are presented by this theory, but I am convinced that all such prongs inherent in this pronounced rule are thrust with vigor and finality into the vitals of the manufacturers whose products are used in this state, with the pointed message for such manufacturers being that absolute liability is now the judicial order of the day in Ohio.