Horton v. Harwick Chemical Corp.

Douglas, J.,

concurring in part and dissenting in part. I enthusiastically concur in the clear, cogent and well-reasoned discussion of the majority concerning Lohrmann v. Pittsburgh Coming Corp. (C.A.4, 1986), 782 F.2d 1156, and the so-called Lohrmann test. I also concur in paragraphs two and three of the syllabus and in the ultimate judgment of the majority even though I must confess that I am unsure what I would do, upon remand, if I were the trial judge. I respectfully dissent from paragraphs one and four of the syllabus and the discussion of the majority in Part II of the opinion concerning alternative liability.

I

Whether the majority does so intentionally or unintentionally, I believe the majority, by today’s decision, ends asbestos litigation in Ohio in multidefendant cases. By saying, in the first paragraph of the syllabus, that a plaintiff in such cases “has the burden of proving exposure to the defendant’s product and that the product was a substantial factor in causing the plaintiffs injury” (emphasis added), the majority creates a standard that no plaintiff will ever be able to meet. Each defendant in a multidefendant case will say that it was another defendant’s product that caused the injury, and a plaintiff, of course, will never be able to show that the injury was caused by, for example, the asbestos in the ceiling tiles rather than the asbestos which was wrapped around the pipes or heating ducts.

The test for plaintiffs in asbestos cases should be no different from what it is for other plaintiffs in other multidefendant tort cases. In asbestos cases, the test should be that a plaintiff must show that he or she has an asbestos-related illness, that she or he was exposed to an asbestos product of the defendant(s) and that exposure to asbestos was a factor in causing plaintiff’s harm. When plaintiff proves these facts by a preponderance of the evidence, the causation burden then shifts to defendants (who typically have better knowledge of their product placement) to show that it was not their product that caused the harm to plaintiff. This then leads to the theory of alternative liability.

II

For its discussion of alternative liability, the majority relies principally on Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, and dicta in Goldman v. Johns-Manville Sales Corp. (1987), 33 Ohio St.3d 40, 514 N.E.2d 691. I believe that neither case is on point and both can be easily distinguished.

It is true that in Minnich, we applied, as set forth by the majority herein, alternative liability. The distinguishing feature of Minnich from the case at bar *690is that in Minnich, it was clear that the harm had been caused by one of two actors but it was unclear which of the actors had caused the harm. This court shifted the burden to both actors for each to prove that, individually, it was not the tortfeasor. In the asbestos cases, the allegation is not that a single tortfeasor caused the injury. Rather, the allegation is that the injury was caused by exposure to asbestos which was placed in the premises by several different actors, all of whom are alleged to be responsible.

The same is true of Goldman. In Goldman, the plaintiff could not show that any of the defendants had provided the asbestos materials alleged to have caused the injury. Not so in the case at bar.

Rather than citing either Minnich or Goldman, I would cite this court’s case of Huston v. Konieczny (1990), 52 Ohio St.3d 214, 556 N.E.2d 505, which I find to be more directly on point. In Huston, the plaintiff was involved in a beer party at a private home, which was attended by a number of persons, most of whom were under the legal drinking age. Plaintiff Huston left the party in a car with two other guests. The car was involved in an accident and plaintiff Huston was injured. Plaintiff, along with his parents, sued a number of people, claiming that the defendants had provided (or permitted the providing of) alcohol to minors in violation of law and that this conduct resulted in plaintiffs being injured. Apparently a number of the guests at the party had brought beer with them, and a pony keg of beer and various cans and bottles of beer were commingled in a bathtub. One of the issues in Huston presented the question whether a plaintiff, in a multidefendant action, is required to prove the specific source of the alcohol that allegedly contributed to plaintiffs injury or whether it is enough, under the alternative liability theory, that two or more defendants committed tortious acts and that plaintiff was injured as a proximate result of the wrongdoing of at least one of the defendants.

The trial court in Huston granted summary judgment to certain defendants. The court of appeals reversed and we affirmed the judgment of the court of appeals. Writing for a five-member majority of this court, Justice Herbert Brown cited 2 Restatement of the Law 2d, Torts (1965), Section 433B(3), which had been adopted by this court in Minnich, supra. Justice Brown went on to say that “Comment/to subsection (3), supra, states that the reason for the exception is the unfairness of permitting tortfeasors to escape liability simply because the nature of their conduct and of the resulting injury has made it difficult or impossible to prove which of them caused the harm. Id. at 446. The exception applies when each of two or more actors has acted tortiously and the harm has resulted from the conduct of one or more of them. 2 Restatement of the Law 2d, Torts (1965), Section 433B, Comment g. ” (Emphasis added.) Huston, supra, 52 Ohio St.3d at 218, 556 N.E.2d at 510. At 219, 556 N.E.2d at 510, Huston goes on *691to say that “[ajpplying these principles to the present case, plaintiffs must show: (1) that the beer furnished to underage persons came from the Cordells, Goodsite or the other named defendants, and (2) that Huston was injured as a proximate result of the wrongdoing of at least one of these defendants.” (Emphasis added.) Finally, and most tellingly, I believe, we said that “[t]he trial court erred when it granted summary judgment on the basis that plaintiffs failed to prove the specific source of the beer consumed by [the alleged driver] Bodnar.” (Emphasis added.) Id.

This is precisely the issue now before us. In the case we are now considering, allegedly all the defendants before the court supplied products of a similar nature, some or all of which caused the injuries to these plaintiffs. Thus, since the theory of alternative liability is the law of Ohio today, Huston, supra, we should either follow Huston or overrule it. Since the majority does not follow Huston, I respectfully concur in part and dissent in part.

Resnick and F.E. Sweeney, JJ., concur in the foregoing opinion.