Schump v. Firestone Tire & Rubber Co.

Wright, J.

This appeal raises two questions: first, whether plaintiffs may maintain a products liability action against defendant employer under the dual-capacity doctrine,1 and, second, whether summary judgment on plaintiffs’ intentional tort claim was appropriate. We answer both questions in the negative. Accordingly, the decision of the court of appeals is affirmed.'

I

This court first recognized an action under the dual-capacity doctrine in Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St. 2d 183, 9 O.O. 3d 138, 378 N.E. 2d 488. In Guy, we held that a hospital employee could maintain a medical malpractice action against the hospital notwithstanding the bar to employee civil actions provided in the workers’ compensation system. By providing treatment to the employee, the hospital assumed the traditional obligations attendant to a hospital-patient relationship, which obligations were “unrelated to and independent of *150those imposed upon it as an employer * * Id. at syllabus.

Later, in Freese v. Consolidated Rail Corp. (1983), 4 Ohio St. 3d 5, 4 OBR 5, 445 N.E. 2d 1110, we found the dual-capacity doctrine to be unavailable to a motorcycle police officer injured while traveling the city’s streets in the regular course of his employment. We stressed that “what must be determined is whether the employer stepped out of his role as such, and had assumed another hat or cloak * * *,” and that the city’s statutory duty to keep its streets clear and free from nuisance did not “generate obligations to this employee independent of and unrelated to the city’s obligations as an employer.” Id. at 11, 4 OBR at 9-10, 445 N.E. 2d at 1114-1115.

In Bakonyi v. Ralston Purina Co. (1985), 17 Ohio St. 3d 154,17 OBR 356, 478 N.E. 2d 241, this court considered at length the circumstances under which a products liability action may be maintained against an employer under the dual-capacity doctrine. Quoting Freese, supra, at 12, 4 OBR at 11, 445 N.E. 2d at 1116, we first summarized:

“ ‘* * * [I]n order for the dual-capacity doctrine to apply, there must be an allegation and showing that the employer occupied two independent and unrelated relationships with the employee, that at the time of these roles of the employer there were occasioned two different obligations to this employee, and that the employer had during such time assumed a role other than that of employer.’ ” Bakonyi, supra, at 157,17 OBR at 358, 478 N.E. 2d at 243-244.

The employer in Bakonyi purchased liquid fertilizer, which it diluted, for two purposes: (1) use in its own greenhouse operations; and (2) resale to the public. An employee was injured in the greenhouse when the fertilizer was sprayed in his eyes; he argued that the dual-capacity doctrine should apply because his employer was engaged in the public sale of this fertilizer. In rejecting this argument, we noted that although the employer was both consumer and distributor, each capacity having its own attendant obligations, the employee was injured by the employer’s role as consumer, i.e., by the employment use and not the public sale use. Bakonyi, supra, at 157, 17 OBR at 359, 478 N.E. 2d at 244. Accordingly, we found that the employment relationship predominated and that the employer had not assumed another capacity to the employee. Id.

Plaintiffs herein rely on Mercer v. Uniroyal, Inc. (1976), 49 Ohio App. 2d 279, 3 O.O. 3d 333, 361 N.E. 2d 492, which we agree is a strikingly similar case. In Mercer, an employee of the American Stevedoring Corporation was leased to Uniroyal. The employee was injured on the job while riding in a truck leased by Uniroyal from Avis Truck Rental, which truck happened to be equipped with Uniroyal tires. When the employee sued Uniroyal alleging that one of the tires was defective, Uniroyal argued that the action was barred under the workers’ compensation system. In reversing summary judgment for Uniroyal, the court of appeals held that the dual-capacity doctrine was applicable, finding that “the hazard was not necessarily one of employment, but was one common to the public in general. * * *” Id. at 285, 3 O.O. 3d at 336, 361 N.E. 2d at 496. The court also noted that “[i]t was only a matter of circumstance that the tire on the truck in which the plaintiff was riding was a Uniroyal tire rather than a Sears, Goodyear or Goodrich. * * *” Id. at 285, 3 O.O. 3d at 337, 361 N.E. 2d at 496.

Firestone attempts to distinguish *151Mercer by arguing that here it was not a “matter of circumstance” that the truck in which Schump was injured was equipped with Firestone tires. The record shows that Firestone equipped all its trucks with Firestone tires as a matter of company policy. Joseph Brown, a former Firestone employee who served as a manager at the Brook-park facility, stated:

“At all times during my employment at the Firestone Retread Plant in Brookpark, Ohio, it was Firestone company policy and practice to equip all fleet vehicles with. Firestone tires and to use only new Firestone tires on the steering axle of all trucks and other vehicles used at that facility. Firestone retread tires were used on the non-steering axles of tractors and trucks and on trailers. Occasionally, when no Firestone casings were available, casings of other manufacturers would be used with Firestone retreading.”

Firestone’s attempt to distinguish Mercer is not persuasive. That it was company policy to use Firestone tires does not change the fact that any defect in those tires would create a hazard common to the public in general and not just to Firestone employees. Thus, were we to adopt the rationale of Mercer there would be viability in plaintiffs’ products liability action.

Mercer, however, appears to represent a view without support in any other state aside from California. Only in California has the dual-capacity doctrine been expanded to such lengths to allow an employee’s products liability action. See, e.g., Douglas v. E. & J. Gallo Winery (1977), 69 Cal. App. 3d 103, 137 Cal. Rptr. 797. However, the California Legislature amended its workers’ compensation statutes in 1982 and abolished the dual-capacity doctrine except in the narrowest of circumstances. See West’s Ann. Cal. Lab. Code, Section 3602. Thus, it now appears that Mercer stands alone and we reject its rationale. See 2A Larson, Law of Workmen’s Compensation (1988), Section 72.83.

It is universally held that where an employer designs and manufactures a product for use by its employees and not for sale to the general public, an employee injured while using that product within the scope of his employment may not maintain a products liability action against his employer under the dual-capacity doctrine on the theory that the employer assumed an independent role as manufacturer. See, e.g., Bowen v. Goodyear Tire & Rubber Co. (Ala. 1987), 516 So. 2d 570; Hills v. Salt River Project Assn. (App. 1985), 144 Ariz. 421, 698 P. 2d 216; Campbell v. Black Mountain Spruce, Inc. (Colo. App. 1983), 677 P. 2d 379; Roberson v. Nooter Corp. (Fla. App. 1984), 459 So. 2d 1156; Rosales v. Verson Allsteel Press Co. (1976), 41 Ill. App. 3d 787, 354 N.E. 2d 553; Needham v. Fred’s Frozen Foods, Inc. (1977), 171 Ind. App. 671, 359 N.E. 2d 544; Baker v. Armco, Inc. (Mo. App. 1984), 684 S.W. 2d 81; Stewart v. CMI Corp. (Utah 1987), 740 P. 2d 1340. See, also, Shook v. Jacuzzi (1976), 59 Cal. App. 3d 978,129 Cal. Rptr. 496; Knous v. Ridge Machine Co. (1979), 64 Ohio App. 2d 251, 18 O.O. 3d 220, 413 N.E. 2d 1218; Simpkins v. Delco Moraine Div. (1981), 3 Ohio App. 3d 275, 3 OBR 319, 444 N.E. 2d 1064.

It could be argued that where an employer manufactures a product for sale to the general public and for its own use, an employee injured while using the product should be allowed to bring a products liability action against his employer. Certainly the strong public policies underlying the law of products liability are furthered in all cases where product manufacturers and distributors are held accountable *152for injuries occasioned by product defects. However, to allow an employee to sue his employer for injuries which are predominantly work-related, and for which, as here, the employee has received workers’ compensation benefits, would be to elevate the public policy on which products liability is based over the constitutional imperative contained in Section 35, Article II of the Ohio Constitution. That section provides that workers’ compensation benefits “* * * shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law * * * shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. * * *” Moreover, we believe that sustaining an employee’s products liability action in this context would be inconsistent with the basic theory underlying the dual-capacity doctrine. We accept the view expressed in Weber v. Armco, Inc. (Okla. 1983), 663 P. 2d 1221, 1226-1227, which states:

“* * * The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first, but whether the second function generates obligations unrelated to those flowing from that of employer. This means that the employer must step outside the boundaries of the employer-employee relationship, creating separate and distinct duties to the employee; the fact of injury must be incidental to the employment relationship.”

In Mercer, supra, the employee was provided a truck for use in his employment, and the truck happened to be equipped with tires manufactured and sold by his employer. Certainly any non-employee user of the truck would have a cause of action for injuries resulting from defects in the truck’s tires. However, “[w]hat matter^] is that, as to this employee, the product was manufactured as an adjunct of the business, and furnished to him solely as an employee, not as a member of the consuming public. What the employer does with the rest of his output could not change this central fact. * * *” (Emphasis sic.) 2A Larson, supra, at 14-241, Section 72.81(c).

As stated in Weber, supra, at 1226: “* * * If the employer is also the manufacturer of the product which caused the employee’s injury, the two personas of manufacturer and employer are interrelated. An employer has a duty to provide a safe workplace for his employees. If an employer provides an employee with a defective machine or tool to use in his work, he has breached his duty as a manufacturer to make safe machinery, and his duty as an employer to provide a safe working environment. Yet, the two duties are so inextricably wound that they cannot be logically separated into two distinct legal personas.” Since in Mercer, supra, both the truck and its tires were provided to Mercer for use in his employment, the obligations generated from the provision of those tires were neither independent of nor unrelated to the employment relationship. Accord Longever v. Revere Copper & Brass, Inc. (1980), 381 Mass. 221, 408 N.E. 2d 857; Peoples v. Chrysler Corp. (1980), 98 Mich. App. 277, 296 N.W. 2d 237.

Similarly, in this case Schump was provided with a truck for use in his employment, and the truck was equipped with Firestone tires per defendant’s company policy. Thus, the tires were furnished to Schump solely as an employee and not as a member of the consuming public. We hold that where an employer manufactures a product for public sale and for its own use, and *153an employee is injured while using the product within the scope of his employment, the employee may not maintain a products liability action against his employer under the dual-capacity doctrine. Bakonyi, supra. Accordingly, we affirm the judgment against plaintiffs on their products liability claim.

II

In its cross-appeal, Firestone asserts that it was entitled to summary judgment on plaintiffs’ intentional tort claim under the standards set forth in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489. In Van Fossen, paragraph four of the syllabus, we held that R.C. 4121.80(G) could not be applied retroactively to causes of action which accrued prior to its effective date. We then proceeded to examine the definition of “intent” and identify the requisites to establishing an intentional tort of an employer under our earlier decisions in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St. 2d 608, 23 O.O. 3d 504, 433 N.E. 2d 572, and Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046. Van Fossen, supra, at 109-118, 522 N.E. 2d at 498-505.

In the instant case, the trial court granted summary judgment on plaintiffs’ intentional tort claim solely on the basis of R.C. 4121.80. The court of appeals correctly reversed this holding. Since the trial court has not had an opportunity to consider plaintiffs’ intentional tort claim under the applicable common-law standards as announced in Van Fossen, supra, this matter is remanded for reconsideration of plaintiffs’ intentional tort claim in light of Van Fossen.

For the foregoing reasons, the judgment of the court of appeals on this issue is also affirmed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Judgment affirmed and came remanded.

Moyer, C.J., Holmes and Brogan, JJ., concur. Sweeney, Douglas and H. Brown, JJ., dissent. James A. Brogan, J., of the Second Appellate District, sitting for Res-nick, J.

Since we hold that R.C. 4121.80 has no application in this case, we express no opinion on Firestone’s argument that the statute has completely abrogated the dual-capacity doctrine.