Carrel v. Allied Products Corp.

Cook, J.,

dissenting in part and concurring in part. Because I believe that the common-law cause of action of negligent design is abrogated by R.C. 2307.71 to R.C. 2307.80 (“the Products Liability Act”), I respectfully dissent. Furthermore, I concur with the majority’s decision to adopt Justice Brown’s concurrence in Cremeans v. Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145, 566 N.E.2d 1203, as the applicable law for employee assumption of the risk in the workplace, but cannot join its conclusion that Carrel did not assume the risk of his injury.

Negligent Design

In concluding that a common-law cause of action of negligent design survives the enactment of the Products Liability Act, the majority applies the wrong rule of statutory construction. Applying State ex rel. Morris v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus, the majority reasons that the Products Liability Act lacks “language clearly showing the intention to supersede the common law.”

Unlike the case before us today, Morris did not involve the codification of causes of action previously known at common law. Instead, Morris involved a statute that authorized the Governor to appoint a railroad commissioner “in January, 1909.” During January of that year, however, the office of Governor changed hands. The outgoing Governor made the appointment, although the position filled would not become vacant until his term had expired. While the language of the statute did not restrain the outgoing Governor from filling the impending vacancy, the common law prohibited premature appointments that would deny a successor his appointment prerogative. In holding that the common law survived the legislative enactment, the Morris court stated at paragraph three of its syllabus:

“Statutes are to be read and construed in light of and with reference to the rules and principles of the common law in force at the time of their enactment, and in giving construction to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.”

Unlike Morris, this case involves the codification of several common-law causes of action and not an enactment that is tangential to a rule of common law. The Act defines a “product liability claim” as “a claim that is asserted in a civil action and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question * * R.C. 2307.7KM). The definition of “product liability claim” is sufficiently broad to include actions *293premised on the common-law theory of negligent design. The Act then makes all such causes of action “subject to” R.C. 2307.71 to 2307.80. R.C. 2307.72.

In interpreting these provisions, the majority adopts the argument that the phrase “subject to” is not strong enough to abrogate unmentioned common-law theories. That conclusion, however, is based on the wrong rule of statutory construction (Morris, supra) and an incomplete reading of the Act.

The proper rule is found at paragraph thirteen of the syllabus in Bolles v. Toledo Trust Co. (1944), 144 Ohio St. 195, 29 O.O. 376, 58 N.E.2d 381, overruled on other grounds, Smyth v. Cleveland Trust Co. (1961), 172 Ohio St. 489, 18 O.O.2d 42, 179 N.E.2d 60, paragraph two of the syllabus. Unlike Morris, the Bolles rule relates specifically to an enactment that codifies the common law on a subject, stating:

“Where the General Assembly has codified the law on a subject, such statutory provisions are to govern to the exclusion of the prior non-statutory law unless there is a clear legislative intention expressed or necessarily implied that the statutory provisions are merely cumulative. ” (Emphasis added.)

Accordingly, the majority misdirects its focus when it searches the Act for an explicit statement abolishing the common-law action of negligent design. Instead, the court should have determined whether the Act expressed or necessarily implied that it is merely cumulative to the common-law cause of action.

The language of the Act neither provides a statement nor permits an inference that it is cumulative to common-law causes of action based on conduct falling within its ambit. In fact, a reading of R.C. 2307.72, 2307.73, 2307.75 and 2307.78 compels a contrary conclusion.

R.C. 2307.73(A)(1) expressly limits liability against manufacturers for products liability claims to the theories of recovery set out in R.C. 2307.74 to R.C. 2307.77. R.C. 2307.72(D)(1) excludes claims related to pollution or contamination of the environment that exist at common law or by statute from operation of the Act. A similar exclusion is not provided for common-law negligent design claims. Moreover, the Act expressly imposes liability against suppliers based in negligence. R.C. 2307.78(A)(1). In light of the Act’s inclusion of negligence as a viable theory of recovery in R.C. 2307.78, the absence of negligent design from R.C. 2307.75 is revealing.

The majority also supports its conclusion with a stray inference that after this court’s pronouncement in McAuliffe v. W. States Import Co., Inc. (1995), 72 Ohio St.3d 534, 651 N.E.2d 957, “ ‘it should now be understood that all common-law products liability causes of action survive the enactment of R.C. 2307.71 et seq., * * * unless specifically covered by the Act because the Act * * * falls short of creating a previously unavailable cause of action.’ ” (Emphasis sic.) Quoting *294Byers v. Consol. Aluminum Corp. (1995), 73 Ohio St.3d 51, 52, 652 N.E.2d 643, 644 (Douglas, J., dissenting). No legal authority is provided in the majority opinion or in either of the dissenting opinions that it cites to bridge the holding in McAuliffe to such a conclusion. Insertion of the proper law, in fact, provides a contrary result.

The majority misunderstands McAuliffe when it states that “the majority implicitly recognized that the Products Liability Act did not supplant the common law applicable to products liability claims.” The McAuliffe court was not called upon to decide whether the Products Liability Act supplanted common law. The issue before the court was much narrower. The McAuliffe court determined that a two-year statute of limitations for “bodily injury,” rather than a six-year statute of limitations for “a liability created by statute,” is appropriate for claims brought under the Act. In arriving at this conclusion, the court analyzed the Act as a codification of the common law of products liability. The court concluded that to the extent the Act modified products liability law, those modifications did not create a cause of action that would not have existed “but for” the statute. To say that the Act did not create causes of action unavailable at common law, however, does not foreclose a determination that the Act supplants those common-law theories. In fact, the McAuliffe court’s treatment of the Act as a codification of products liability law provides further support for application of the rule of statutory construction set forth in Bolles, supra, and the ultimate conclusion that the common-law cause of action of negligent design has been abrogated by the Products Liability Act.

Assumption of the Risk

I agree with the majority that Justice Brown’s concurring opinion in Cremeans, supra, sets forth the applicable law for employee assumption of the risk in the workplace. Application of the defense should turn on whether the employee’s behavior is voluntary or the result of employer compulsion. I disagree, however, with the majority’s conclusion that Carrel did not voluntarily assume the risk of his injury.

Instead of focusing on whether Carrel’s assumption of the risk was voluntary, the majority determines that a question remains as to whether Carrel “appreciated the full danger of the press.” The majority supports its conclusion with a discussion of the allegedly defective nature of the press and an observation related to Carrel’s belief that his co-worker would not activate the press unless instructed to do so. Neither is an appropriate consideration.

The defense of assumption of the risk assumes a defective product; it shields a defendant from liability despite the fact that its product is defective. Accordingly, the majority’s discussion of the product’s defect is superfluous.

*295Likewise, given that the issue is whether Carrel voluntarily assumed the risk or was compelled by the employer to encounter the risk, Carrel’s subjective reliance on the care of his co-worker to refrain from cycling the press is not pertinent. The likelihood of co-worker error bears only on the extent of the risk — not Carrel’s lack of volition or lack of knowledge of such risk.

Carrel is an experienced press operator who was aware of the risk of injury if he placed his hand in the die space without taking precautions to prevent the press from cycling. Carrel knew that the press was equipped with a safety cord, stop buttons, and die safety blocks, all of which could have been used to prevent the press from cycling while his hands were in the die space. Carrel’s employer instructed its press operators and die setters to pull the safety cord before placing their hands in the die space. Despite knowing that the machine’s size prevented him from seeing the employee in charge of controlling the press and that the press’s warning horn was difficult to distinguish from other machines’ in the factory, Carrel bypassed the available safety precautions on an assumption that his co-worker would not activate the press. Carrel knew what could happen if his hand got caught in the die space while the press cycled. He also knew that if he failed to implement any of the press’s safety devices a co-worker could activate the press, causing it to cycle. Absent employer compulsion forcing Carrel to take such a risk, a factor that Carrel has not attempted to demonstrate, his assumption of the risk was voluntary.

Conclusion

Based on foregoing analysis, and the fact that I am not persuaded by any of the constitutional arguments advanced by Carrel, I would affirm the judgment of the court of appeals.

Moyer, C.J., concurs in the foregoing opinion.