Carroll v. Alliant Techsystems, Inc.Carroll v. Alliant Techsystems, Inc.
Rendered on October 24, 2006
McGRATH, J.
{¶1} Plaintiff-appellant, Crystal Carroll (“appellant“), appeals from the judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Remington Arms Company (“appellee“).
{¶2} The facts underlying this matter are as follows. On November 10, 2004, appellant was in her home and reached up to retrieve some items from a closet shelf. In the process, appellant accidentally knocked a box of Smith & Wesson 40 caliber gun ammunition off the shelf. The box fell to the floor and one of the ammunition cartridges (the “cartridge” or the “ammunition“) exploded. It is undisputed that as a result of the
{¶3} Upon further investigation, Mark Hardy, a criminalist with the Columbus Division of Police, examined the photographs and the cartridge and determined that the cartridge involved performed as it was intended, and in his opinion, did not have a manufacturing defect. Mr. Hardy explained in his deposition that firearm ammunition is designed and intended to discharge when its primer is impacted. Mr. Hardy described that the primer of the cartridge at issue was indented, which caused the cartridge to discharge, and therefore, this cartridge performed as designed and intended.
{¶4} On June 15, 2005, appellant filed an amended complaint in the Franklin County Court of Common Pleas naming appellee, the manufacturer of the ammunition, and others as defendants. Thereafter, appellee voluntarily dismissed her claims against all named defendants, except appellee. Appellee filed a motion for summary judgment on February 24, 2006, and on April 19, 2006, the trial court granted said motion. Appellant timely appealed to this court, and brings the following two assignments of error for our review1:
Assignment of Error No. 1:
THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE REMINGTON ARMS COMPANY‘S MOTION FOR SUMMARY JUDGMENT WHEN REASONABLE MINDS COULD CONCLUDE THE AMMUNITION WAS MORE DANGEROUS THAN A REASONABLE CONSUMER WOULD EXPECT.
Assignment of Error No. 2:
THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING APPELLEE REMINGTON ARMS COMPANY‘S MOTION FOR SUMMARY JUDGMENT WHEN MATERIAL FACTS REMAIN TO DETERMINE WHAT CAUSED THE AMMUNITION TO EXPLODE.
{¶5} Summary judgment standards are well-established.
{¶6} Accordingly, summary judgment is appropriate only where: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles & Son, Inc. v. Midwestern Indemn. Co. (1992), 65 Ohio St.3d 621, 629, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 65-66.
{¶8} Appellant suggests in her two assignments of error that the trial court abused its discretion in granting appellee‘s motion for summary judgment. Appellate review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588; Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8. We stand in the shoes of the trial court and conduct an independent review of the record. As such, we must affirm the trial court‘s judgment if any of the grounds raised by the movant at the trial court are found to support it, even if the trial court failed to consider those grounds. See Dresher, supra; Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶9} Appellant‘s claims are brought pursuant to the Ohio Products Liability Act, codified in
{¶10}
(A) Subject to divisions (D), (E), and (F) of this section, a product is defective in design or formulation if either of the following applies:
(1) When it left the control of its manufacturer, the foreseeable risks associated with its design or formulation as determined pursuant to division (B) of this section exceeded the benefits associated with that design or formulation as determined pursuant to division (C) of this section;
(2) It is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.
{¶11} Thus, Ohio law provides product liability plaintiffs with two theories upon which to recover: (1) the consumer expectation standard; and (2) the risk-benefit standard. See Perkins v. Wilkinson Sword, Inc. (1998), 83 Ohio St.3d 507, 508. In Perkins, the Supreme Court of Ohio explained that these standards are not mutually exclusive, but instead constitute a single, two-pronged test for determining whether a product is defectively designed. Id., citing Cremeans v. Internl. Harvester Co. (1983), 6 Ohio St.3d 232, syllabus. Plaintiffs can decide under which theory they will proceed. Appellant has not asserted the risk-benefit theory3 as a basis for recovery, nor has she provided any evidence of a feasible, alternative design to the product; therefore, we need
{¶12} Under the consumer expectation test, “a defendant will be subject to liability if the plaintiff proves that the product design is in a defective condition because the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” Cremeans, at syllabus. When utilizing the consumer expectation test, a product may be proven to be in a defective condition if: (1) it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; (2) the claimed defect was present when the product left the manufacturer; and (3) the claimed defect proximately caused the claimed injuries. State Farm, supra, at 7.
{¶13} Evidence of unsafe, unexpected product performance is sufficient to infer the existence of a product defect under the first prong of the consumer expectation test. Id. We are cognizant that the determination of whether a product is more dangerous than an ordinary person would expect is generally a question of fact, and does not require expert testimony. See, e.g., Falls v. Cent. Mut. Ins. Co. (Dec. 21, 1995), Franklin App. No. 95APE06-757. In Falls, the plaintiff was injured when the seat belt in her automobile failed to restrain her during an automobile accident. The car‘s manufacturer moved for summary judgment and supported its motion with expert testimony that the seat belt was not defective. The car‘s manufacturer argued that the plaintiff did not have any evidence of a defect, did not obtain or disclose expert testimony, and would not be able to present evidence at trial establishing a product defect. The plaintiff, however, testified at her
Appellant, in responding to the motion for summary judgment, attached her deposition testimony which set forth facts demonstrating that the seat belt came unfastened during the collision and that her body was thrown back between the front bucket seats. This testimony created a reasonable inference that the seat belt failed to perform its intended purpose, that of restraining passengers in the event of an accident.
Id. (emphasis added).
{¶14} Appellant contends that, like the plaintiff in Falls, appellant has presented circumstantial evidence via her deposition testimony that the ammunition performed in an unexpected and unsafe manner. Appellant‘s reliance of Falls is misplaced. Unlike the plaintiff in Falls, appellant has not provided any evidence that the product failed to perform as intended. In fact, we only have evidence to the contrary, that the ammunition discharged because its primer was struck, which is precisely how the product is intended and designed to perform. The ammunition did nothing unusual or unexpected. Appellant readily admits that she knocked over the box of ammunition causing it to fall. That an accident occurred does not mean that the ammunition failed to function as expected.
{¶15} Appellant cites Perkins, supra, for the proposition that a plaintiff need not establish that a product malfunctioned in order to be defective. However, we find that the holding in Perkins has no application to the facts before us. Perkins explicitly concerned whether or not the risk-benefit test of the Ohio Products Liability Act may be used in attempting to prove a design defect in a properly functioning disposable cigarette lighter. The court in Perkins answered in the affirmative, explaining that there was “no basis* * * for creating a dichotomy between properly and improperly functioning products when applying the risk-benefit test.” Id. at 509. (Emphasis added.) The court also noted that
{¶16} For the foregoing reasons, we overrule appellant‘s first assignment of error.
{¶17} In her second assignment of error, appellant contends that there is an issue of fact regarding what caused the indentation in the ammunition‘s primer. Yet, appellant provides no evidence to support this assertion. Instead, appellant provides only the speculation that “it is just as likely the primer was indented before the ammunition was dropped, giving it a higher propensity to detonate when dropped.” (Appellant‘s brief at 13.) Speculation and conjecture, however, are not sufficient to overcome appellant‘s burden of offering specific facts showing that there is a genuine issue for trial. Dresher, supra. After a proper motion for summary judgment is made, “the nonmoving party must do more than supply evidence of a possible inference that a material issue of fact exists; it must produce evidence of specific facts which establish the existence of an issue of material fact.” Carrier v. Weisheimer Cos., Inc. (Feb. 22, 1996), Franklin App. No. 95AP-488, citing Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. “It is the nonmoving party‘s responsibility to produce evidence on any issue for which it bears the burden of production at trial.” Id., citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112. The mere possibility, that the ammunition‘s primer was indented prior to the fall, based only on appellant‘s suggestion of the same, does not create a genuine issue of material fact, but rather requires a trier of fact to render a decision based upon mere speculation. It is well-settled that “a jury verdict may not be based upon mere speculation or
{¶18} For the foregoing reasons, we overrule appellant‘s two assignments of error, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
SADLER and TRAVIS, JJ., concur.