Bowling v. Heil Co.

Holmes J.,

dissenting. The syllabus law of this case should be:

1. The general principles of comparative negligence, as set forth within R.C. 2315.19, shall be applied to products liability cases based upon strict liability in tort.

2. In applying comparative negligence to products liability cases, once the jury has determined that the product defect caused the injury, the defendant is strictly liable for the harm caused by the defective product. The jury, however, must be instructed to reduce the award of damages in proportion to the plaintiff’s misconduct which contributed to his own loss or injury.

*2893. In that the court herein applies the principles of comparative negligence to products liability cases upon the basis of the comparison of the fault of the parties occasioning the loss or injury, this court hereby abolishes the doctrine of joint and several liability in order to more fairly assess the costs of loss among the various contributing parties.

As a matter of law, decedent’s conduct ought to be construed as an assumption of risk, intervening between the defect alleged and the injury received. The acts of decedent which resulted in his demise were wholly self-initiated and independent from any defect within the product. Moreover, even supposing that some liability existed, as found by the jury, the pronouncement of the General Assembly has mandated that principles of comparative negligence be applied to this and all other such negligence actions. This, the majority has refused to do, contending that the action before us is somehow not one involving negligence. The combined results of such pronouncements, in the context of the analysis of the majority, have moved Ohio law another step closer to manufacturers’ absolute liability without fault. Accordingly, and for the reasons set forth below, I must dissent.

The record before us demonstrates the difficulty of applying the Restatement’s assumption-of-risk standard, which requires proof that “the user or consumer discovered] the defect and [was] aware of the danger, and nevertheless proceeded] unreasonably to make use of the product and [was] injured by it * * 2 Restatement of the Law 2d, Torts (1965) 356, Section 402A, Comment n.

This standard as applied by the majority here requires proof of the decedent’s state of mind at the very instant when he reached under the truck bed and engaged the truck bed’s hoist lower switch. In that he did not speak before dying of his injuries, the burden of proof cannot be met with any degree of probability. Also, there exists a common-sense presumption that one generally does not do an act knowing that its direct consequences will be death or serious injury.

Because such facts are peculiarly within the knowledge of the decedent, the only meaningful method of proof remaining to the manufacturer is to demonstrate that decedent’s act was an intentional and unreasonable exposure of himself to a danger which, although possibly initially created by the manufacturer, was known, or should have been known to the decedent. This would allow a factual demonstration to imply that decedent assumed a known risk without requiring the direct proof which is simply not available.

In the case before us, we do not have a mere passive failure to discover, but instead an affirmative action done in total disregard of the obvious and probable consequences. The truck’s dump bed was specifically designed to rise and lower at the movement of a switch, which is located between the hydraulic hoist and the truck cab, bolted upon the underside of the truck chassis. Here, a metal rod was affixed to the switch and connected to a lever positioned inside the cab. The weld connecting the rod *290and lever broke, which, in and of itself, caused no injury whatsoever. Since the load had just been raised when the connection broke, the lever would not operate to lower the bed.

Decedent then approached the truck and voluntarily began to investigate the problem. He leaned over the truck chassis, with the truck bed raised above him. He observed and reached downward for the switch. He pulled the. switch which, as it was designed to do, lowered the truck bed, with, however, unusual speed and tragic results. In analyzing decedent’s actions it is clear that he intended to bring about the lowering of the dump bed since he intentionally depressed the switch for that purpose, or, in depressing the switch, did an act which was substantially certain to engage the hoist.

The manufacturer, here, supplied a product which was reasonably safe for all anticipated uses with the reasonably clear and obvious caveat that, supposing any mechanical difficulty or defect should occur within the hydraulic system, anyone placing himself, and being caught, between the chassis and descending bed would suffer serious injury. In order to alert users to avoid such injury, large yellow warning labels were placed all around the truck bed and hoist as well as inside the cab. The instruction manual supplied by the manufacturer had this and similar warnings printed repeatedly in large capital letters:

“When any work is to be done on body or hoist and body is fully or partly raised, it must be blocked securely so it cannot fall.”

More pointedly, I herewith reproduce an exact copy of the warning on the printed material placed at various positions on the truck:

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This reproduction has been photographically reduced. The actual warning sticker’s size is 8% inches by 3V2 inches. The lighter shade is bright yellow.

Several of such warning decals were found in the very vicinity of decedent’s body, and one was observed to be located upon the exact place from which decedent’s body was removed. Furthermore, the truck bed yet contained three to four tons (six to eight thousand pounds)7 of gravel, much of *291which was toward the front of the raised bed. Also, a steel tool box was attached to the front edge of the bed, thereby increasing the load pressure upon the hydraulic hoist.

The mere act of reaching under such a raised truck bed constituted entry into a zone of danger, the specific peril anticipated being that the bed might fall. Where, as here, an apparent malfunction occurs in the hydraulic system leaving a loaded bed suspended, the danger is made more obvious. The manufacturer attempted to harness this danger by its instructions to place blocks between the chassis and the truck bed. Such expressly given warning/instruction, had it been complied with, would have obviated all danger to decedent.

Here there is no evidence of a complete failing of the hydraulic hoist system, in that there was evidence that a two-second lowering time is not incompatible with the evidence of reasonably accepted lowering times for commercial truck beds for similar use. Even supposing a defect in the hydraulic system, the manufacturer’s warning was sufficient to protect the reasonably prudent person even in the extreme case of a complete failure of the hoist.

It is not possible for the manufacturer to be physically present to enforce what should be obvious safety concerns. It becomes clear, then, that the proximate cause of decedent’s demise was his own deliberate assumption of a risk, which he had been warned of, expressly and circumstantially, and which peril he voluntarily entered into, notwithstanding the danger, when he easily could have opted to stand by and remain unharmed. This being the very danger which the manufacturer sought to warn decedent of, his representatives may not reasonably complain that the deceased was unaware of some specific danger.

The statutory approach taken by the majority, wherein they contend (that the term “negligence actions” as utilized in R.C. 2315.19(A) excludes products liability actions, is unduly narrow and thereby misses the point of the statute, which is, after all, to ameliorate the harsh impact of common-law contributory negligence. See Legislative Service Analysis, Am. S.B. No. 165, 113th Session (1979).

Strict products liability not only arose, in part, from negligence theory, but it remains tied to and based upon negligence theory concepts. This tort, despite theoretical notions to the contrary, examines the reasonableness of the manufacturer’s conduct and, upon particularized proof by the plaintiff, allows the presumption that a duty existed and was breached by the manufacturer. See Prosser, The Fall of the Citadel (Strict Liability to the Consumer) (1966), 50 Minn. L. Rev. 791. This merely allows an inference of negligence without direct proof upon the issue and, while changing the specific focus of proof, does not change the nature of the action.

The elements of strict liability, despite protestations to the contrary, are full of the principles of negligence. One must prove that there was a design defect resulting from the deliberate decision of the manufacturer. *292The term “defect” of course invites comparison with that which is not defective, and the decision of the manufacturer is likewise comparative. “Negligence is what the test determines, yet defect is what it is called.” Note, Loosing the Shackles of “No Fault” in Strict Liability: A Better Approach to Comparative Fault (1984), 33 Cleve. St. L. Rev. 339, 368; see, also, Birnbaum, Unmasking the Test for Design Defect: From Negligence [to Warranty] to Strict Liability to Negligence (1980), 33 Vand. L. Rev. 593, 648.

Also, the required risk/utility analysis used for design defect determinations is “the very calculus of negligence, or Learned Hand’s test for fault * * *.” Calabresi & Hirschoff, Toward a Test for Strict Liability in Torts (1972), 81 Yale L. J. 1055, 1056. Further, the defenses utilized in products liability cases are inherently negligence defenses and focus upon the misconduct of the plaintiff, whether described as contributory negligence or assumption of the risk. Without doubt, then, strict liability is a tort theory intended to allow recovery for a manufacturer’s negligent action and should fall under R.C. 2315.19.

Also, R.C. 2315.19(A)(1) provides that comparative fault principles will no longer fully divest the plaintiff of all recovery. However, it also provides that the principles of joint and several liability will not impose upon a single defendant more of an obligation to pay than his percentage of responsibility. In refusing to apply the principles enunciated in R.C. 2315.19, the majority not only unjustly burdens those who may be forced to pay an amount out of proportion to their actual liability but also creates considerable hardship for many who, while advancing meritorious claims, will receive no compensation. In the absence of the statutory compromise above, the common law provides, in accordance with the Restatement of the Law 2d, supra, Comment n, that assumption of risk and intervening cause are full, complete defenses to products liability actions. Where such misconduct is provable, there is no recovery whatsoever. Benjamin v. Deffet Rentals, Inc. (1981), 66 Ohio St. 2d 86, 90, 20 O.O. 3d 71, 74, 419 N.E. 2d 883, 886; Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St. 2d 227, 237, 35 O.O. 2d 404, 410, 218 N.E. 2d 185, 193. Thus, the majority embraces the unreasonable all-or-nothing standard.

The extension of comparative liability principles as legislatively set forth in R.C. 2315.19 to actions predicated upon strict liability in tort is consistent with the development of products liability law in Ohio and represents a logical and reasonable extension of this court’s decision in Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110, 6 OBR 170, 451 N.E. 2d 780. In that case, this court merged the defense of assumption of the risk with the defense of contributory negligence under R.C. 2315.19.1 strongly dissented to this legal merger because I felt that there was a significant legal difference in the two defenses. However, such was the pronouncement of the majority of this court and is now the law of Ohio. We should utilize this law to the greatest legal and equitable purposes of all parties in this type of tort action,

*293The logical extension of our holding in Anderson is that neither contributory negligence nor assumption of the risk, nor even unforeseeable misuse of the product, will be a complete bar to a plaintiff’s recovery in a products liability action. Rather, these will be compared with the defective product in determining the percentage which each contributed to the plaintiff’s injury. I am willing to concede for this consideration that the comparison should be on a “pure” comparative causation basis in that the defendant’s liability for injuries occasioned by its defective product is considered a “strict” liability.

In the case sub judice, the jury considered liability under distinct legal theories. In the negligence case against the appellee, the jury found that the decedent was thirty percent at fault for the events which brought about his death. This should be applied by the trial court in determining the relative responsibility of the parties for the resultant compensatory damages.

This court, because of its oversight of trial procedures in Ohio, has a responsibility to encourage consistency in jury instructions. However, the majority opinion has demonstrated a complete disregard for the dilemmas created for both trial courts and juries wherein the combined effects of the instructions on products liability and negligence create a morass of competing and conflicting obligations. A pleading in negligence allows a jury instruction for mitigation of damages and the jury must comparatively balance the fault of all parties. On the other hand, a pleading in strict liability requires an instruction for either full recovery or no recovery. This application of the law by the majority extends this mystical labyrinth.

In such interpretation of the law, there is a vast capacity for abusive pleading, wherein one may plead negligence merely to have the procedural right to describe his conduct before the jurors. On the other hand, one may remove the negligence count to prevent opposing counsel from describing conduct. Supposing a pleading to be framed in negligence, strict liability and/or breach of warranty, with multiple defendants who each assert various legal theories to describe the claimant’s conduct, then juror confusion is almost a certainty. See Hasten, Comparative Liability Principles: Should They Now Apply to Strict Products Liability Actions in Ohio? (1983), 14 U. Tol. L. Rev. 1151, 1177. See, also, Stueve v. American Honda Motors Co. (D. Kan. 1978), 457 F. Supp. 740, 751. Such confusion is, of course, directly attributable to the Restatement, supra, at Comment n.

As I have stated before, the combination of a strict liability theory with joint and several liability where neither theory has an element of fault, invariably leads to compensation beyond the fault or responsibility for the injury and to absolute liability. Leichtamer v. American Motors Corp. (1981), 67 Ohio St. 2d 456, 479, 21 O.O. 3d 285, 299, 424 N.E. 2d 568, 584, Prod. Liab. Rep. (CCH), Paragraph 9036; Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460, 468, 23 O.O. 3d 403, 408, 432 N.E. 2d 814, 820, Prod. Liab. Rep. (CCH), Paragraph 9235; Cremeans v. Internatl. Harvester Co. (1983), 6 Ohio St. 3d 232, 236, 6 OBR 302, 306, 452 *294N.E. 2d 1281, 1285, Prod. Liab. Rep. (CCH), Paragraph 9747; Minnich v. Ashland Oil Co. (1984), 15 Ohio St. 3d 396, 400, 15 OBR 511, 514, 473 N.E. 2d 1199, 1202. See, also, e.g., Kampman v. Dunham (1975), 37 Colo. App. 233, 547 P. 2d 263, affirmed (1977), 192 Colo. 448, 560 P. 2d 91 (full damages paid by defendant who was only one percent at fault); Brown v. Keill (1978), 224 Kan. 195, 203, 580 P. 2d 867, 873.

R.C. 2315.19 abolishes joint and several liability in negligence actions where the plaintiff is contributorily negligent, by providing that each defendant is liable only for that portion of the total damages proportionate to his negligence. The statute is a legislative recognition of the fact that “[t]here is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them.” Brown v. Keill, supra, at 203, 580 P. 2d at 874 (construing a statute similar to R.C. 2315.19 [K.S.A. Section 60-258a (d)]). See, also, Howard v. Spafford (1974), 132 Vt. 434, 321 A. 2d 74. The harsh inequities inherent in the doctrine are most acute in situations involving an insolvent joint tortfeasor. In Kampman v. Dunham, supra, the passenger of a motorcycle, whose driver was found ninety-nine percent negligent, recovered the full amount of her damages from the defendant automobile driver who was found to be only one percent at fault.

It is arguable that Ohio’s Contribution Among Joint Tortfeasors Act, R.C. 2307.31, when read together with R.C. 2315.19, may not specifically abolish the doctrine of joint and several liability. However, I feel strongly that it is time for this court to do so wherever notions of comparative fault apply. Adherence to the doctrine in such cases amounts to imposing absolute liability upon defendants, regardless of the fairness of the result.

Moreover, these theories have, in the past, been utilized upon the alleged rationale that the cost of injuries should be borne by the manufacturers that put such products on the market rather than by the injured persons. Such pronouncement presupposes that its simplistic conclusion of complex economic and jurisprudential issues, which is a mere undisguised pretext for judicial social engineering, has a greater utility and validity than a tort law based upon the character and fault of the parties' actions. In point of fact a large body of literature has emerged questioning this presumption. See, generally, e.g., Calabresi, Optimal Deterrence and Accidents (1975), 84 Yale L.J. 656; Calabresi & Hirschoff, Toward a Test for Strict Liability in Torts (1972), 81 Yale L.J. 1055; Epstein, Products Liability: The Search for the Middle Ground (1978), 56 N.C.L. Rev. 643; Hoenig, Product Designs and Strict Tort Liability: Is There a Better Approach? (1976), 8 Sw. U.L. Rev. 109; Kalven, Torts: The Quest for Appropriate Standards (1965), 53 Calif. L. Rev. 189; Klemme, The Enterprise Liability Theory of Torts (1976), 47 U. Colo. L. Rev. 153; Lang, Compensation of Victims — A Pious and Misleading Platitude (1966), 54 Calif. *295L. Rev. 1559; Montgomery & Owen, Reflections on the Theory and Administration of Strict Tort Liability for Defective Products (1976), 27 S.C.L. Rev. 803; Plant, Strict Liability of Manufacturers for Injuries Caused by Defects in Products — An Opposing View (1957), 24 Tenn. L. Rev. 938; Posner, Strict Liability: A Comment (1973), 2 J. Leg. Stud. 205; Raleigh, The "State of the Art” in Product Liability: A New Look at an Old “Defense” (1977), 4 Ohio N.L. Rev. 249; Sachs, Negligence or Strict Product Liability: Is There Really a Difference in Law or Economics? (1978), 8 Ga. J. Internatl. & Comp. L. 259; Wade, On the Nature of Strict Tort Liability for Products (1973), 44 Miss. L.J. 825; Wilson, Products Liability, Part II, The Protection of the Producing Enterprise (1955), 43 Calif. L. Rev. 809.

Having set forth a number of ill effects of the majority decision, and that it designedly avoids the legislative determinations of R.C. 2315.19, it remains only to demonstrate that such decision is well out of step with the more broad recent trend in this area of the law. The rationales formerly asserted to promote the strict liability theory are now, in light of experience, being generally re-examined. Over three-fourths of those state courts which have examined the issue now before us have applied comparative negligence principles to products liability actions. See, e.g., Note, Loosing the Shackles of “No-Fault” in Strict Liability, swpra, at 343, fn. 15. Even California, where the theory of strict liability originated, applies such principles. See Daly v. General Motors Corp. (1978), 20 Cal. 3d 725, 144 Cal. Rptr. 380, 575 P. 2d 1162. See, also, Duncan v. Cessna Aircraft Co. (Tex. 1984), 665 S.W. 2d 414.

Although a number of states have statutes similar to Ohio’s R.C. 2315.19, only one other court has refused to apply comparative principles on the veneer-thin rationale of narrowly construing the words “negligence action.” Kirkland v. General Motors Corp. (Okla. 1974), 521 P. 2d 1353. Most other courts which have interpreted such statutes have found either that the statute itself was directly applicable or, at the least, that the principles enunciated were appropriate legislative guidelines. See, e.g., Hasten, Comparative Liability Principles, supra, and cases collected at 1153-1155.

The principles behind such decisions fall into three categories. Several courts have asserted that strict liability is nothing more than allowing a presumption of negligence per se for placing a defective product in the stream of commerce, which is to say, the theory, although distinct, is yet one of negligence and thus amenable to comparative negligence principles. See, e.g., Dippel v. Sciano (1967), 37 Wis. 2d 443, 155 N.W..2d 55; Noel, Defective Products: Abnormal Use, Contributory Negligence, and Assumption of Risk (1972), 25 Vand. L. Rev. 93, 118. Also, a number of courts and commentators have adopted a comparative causation approach which seeks to apportion responsibility for the cause of the injury in strict *296liability cases. See, e.g., Hasten, Comparative Liability Principles, supra, at 1173-1175.

The better approach utilizes a comparative fault analysis and has been the approach of several jurisdictions. See, e.g., Suter v. San Angelo Foundry & Machine Co. (1979), 81 N.J. 150, 406 A. 2d 140; Sandford v. Chevrolet Div. of General Motors (1982), 292 Ore. 590, 642 P. 2d 624. It appears to be strongly supported in the scholarly literature. See, e.g., Prosser & Keeton, Law of Torts (5 Ed. 1984) 468, 478; Prosser, Comparative Negligence (1953), 51 Mich. L. Rev. 465; Schwartz, Strict Liability and Comparative Negligence (1974), 42 Tenn. L. Rev. 171,176. Finally, it is most consistent with those principles set forth in the Ohio comparative negligence statute, R.C. 2315.19, and accords with Ohio’s firm and long-lived tradition of fault-based tort law. Taylor v. Cincinnati (1944), 143 Ohio St. 426, 431, 28 O.O. 369, 371, 55 N.E. 2d 724, 727. The community at large should not be forced to absorb, through higher product pricing, a loss due in full, or in part, to the injured person’s misconduct.

In the final analysis, imposition of these theories, as approved by the majority here, weighs the trial against the party with larger financial resources. The so-called “right” of contribution left to him in reality is meaningless and allows such defendant to reasonably assert that he is being haled into court for one reason only, that being to provide monetary compensation based solely upon his ability to pay. This is not what should be considered as equal justice. In these cases, the law’s goals should be to compare the plaintiff’s misconduct with the defendant’s defective product. This comparison of liability is a principle which fairness requires. In that this court has failed to enunciate a fair principle in this field of the law, there is presented a clear need for legislative action in this regard.

Accordingly, I dissent.

The recommended maximum load capacity of this dump bed was 4,700 pounds.