This cause occasions the review and analysis of one aspect of the doctrine of res judicata, that of collateral estoppel, as it has been applied in Ohio, and whether the traditional general rules as previously enunciated and followed should be applied to cases involving claims of product defective design. Collateral estoppel within the context of res judicata has been explained by this court to be preclusion of the relitigation in a second action of an issue or issues that have been aсtually and necessarily litigated and determined in a prior action. Whitehead v. Gen. Tel. Co. (1969),
Case law in Ohio concerning the general doctrine of res judicata has long ago established the general principle that material facts or questions which were in issue in a former suit, and were there judicially determined by a court of competent jurisdiction, are conclusively settled by a judgment therein so far as concerns the parties to that action and persons in privity with them.
As a requisite factor in the application of the principle of issue preclusion within the doctrine of res judicata, Ohio cases over the years in like manner have consistently held to the effect that a judgment can operate as collateral estoppel only where all of the parties to the proceeding in which the judgment is relied upon were bound by the judgment. Expressions are found within the cases that the record of a judgment, in order to preclude either of the party litigants, must be preclusive upon both. The operation of the rule must be mutual. If a judgment cannot be effective as res judicata against a particular person, he cannot avail himself of the adjudication and contend that it is available against others, as between them and himself. Therein lies
There being the general requisite of an identity of persons and parties, or their privies, within the prior proceeding in order for the judgment or decree to operate as an estoppel, strangers to such a judgment or decree will not be affected thereby. Woodward v. Moore (1862),
In recent years there has been much discussion in case law and law journals as to the legal viability of the application of the'strict doctrine of mutuality as a requisite to collateral estoppel. Some courts throughout the country have abandoned the doctrine in whole or in part. Some cases specifically reject mutuality as it might be used either offensively or defensively, аnd permit nonmutuality in the application of collateral estoppel.
Some writers have criticized the continued use of the mutuality principle,
In Reardon, the court, arguing against permitting the offensive use of the doctrine of collateral estoppel in a nonmutuality situation, stated that rejecting mutuality exposes a defendant who is subject to multiple claims tо considerable detriment; that one disadvantage is that he must evaluate the risk of the first case with an eye to those to come, including cases of adversaries not yet known; and that another disadvantage may be illustrated by the example of an accident involving a bus, train, or airplane in which a number of passengers are injured. In elaboration of the last argument it was said that if a judgment against the defendant in the first action can be used by all other claimants, the defendant must put up the most vigorous defense even when the first action presents a minor claim. Annotation, 31 A.L.R. 3d, supra, at 1055-1056. See, also, IB Moore’s Federal Practice, Paragraph 0.412 [1],
The use of “offensive collateral estoppel” in nonmutuality cases in federal courts was sanctioned by the United States Supreme Court in Parklane Hosiery Co. v. Shore (1979),
The application of nonmutual collateral estoppel in federal courts and other jurisdictions, permitting same in a subsequent action, requires close scrutiny of the prior record and decision to identify with precision what issues have in fact been actually litigated and decided in the prior action. Although generally permitting nonmutual collateral estoрpel, the Restatement of Judgments 2d, at Section 27, Comment c, sets forth the procedures to be followed upon any consideration of such application. The Restatement states, at page 252, that to inquire into the identity of the issue in each case is one of the most difficult problems posed by issue preclusion. The Restatement proposes an analysis using a variety of factors to aid in making this crucial determination. Factors to be considered are: (1) the existence of substantial overlap between evidеnce and argument; (2) whether the new evidence or argument involves application of the same rules of law; (3) whether pretrial preparation and discovery reasonably could have been expected to cover the new matters in the prior action; and (4) the closeness of the relationship between the claims involved in the two proceedings.
Upon a review and consideration of this process which is applied in federal and other jurisdictions which have adopted nonmutuality as a general rule for collateral estoppel, we must conclude that there is within such procedure the suggestion that time-consuming and costly investigations may well be necessitated into collateral issues that may be essentially irrelevant to the actual issues between the parties then present before the court. It seems that these procedures would often offset any savings derived from collateral estoppel, and may indeed increase the total amount of litigation, negating one of the prime supportive arguments, i.e., the economy of the judicial process.
As stated, Ohio has continued the requirement of mutuality for the application of collateral estoppel, as a general principle, even though recognizing the view of other states. Accordingly, in Whitehead, supra, Justice Thomas M. Herbert stated, at page 113, in the opinion:
“* * * The requirement of mutuality has been lessened, in some jurisdictions, by the expansion of the concept of privity and the creation of explicit exceptions to the rule. Semmel, Collateral Estoppel, Mutuality and Joinder of Parties (1968), 68 Columbia L. Rev. 1457, 1458.”
However, viewing the doctrine on balance, Justice Herbert concluded for the court, at page 116, that:
“In our opinion, the existing Ohio requirement that there be an identity of parties or their privies is founded upon the sound principle that all persons are entitled to their day in court. The doctrine of res judicata is a necessary
The court of appeals here, and the appellees, point out that this court has recently decided the case of Hicks v. De La Cruz (1977),
Hicks arose out of an action for negligence brought against a physician, the city of Cincinnati, the University of Cincinnati, the board of trustees of the university, and Cincinnati General Hospital. A motion for summary judgment was filed on behalf of the city-defendants alleging that they had state governmental immunity in the ownership and/or operation of the hospital. The trial court granted defendants’ motion and dismissed the case. The court of appeals affirmed. On appeal to this court, the judgment was reversed on the basis of the holding that collateral estoppel precluded the defendants from relitigating the immunity issue. This court relied on the prior case of Sears v. Cincinnati (1972),
In Hicks, this court did indeed decide that case within the context of the Restatement of Judgments 2d, by referring in the opinion, at page 74, to
This court in effect was stating in Hicks that under those facts where it was shown that the party defendant clearly had his day in court on the specific issue brought into litigation within the later proceeding, the non-party plaintiff could rely upon the doctrine of collateral estoppel to preclude the relitigation of that specific issue. We believe this exception to the principle of mutuality to be a proper one.
Also, it is apparent that this court, has not abandoned the principle of mutuality by a review of cases that have been decided since Hicks. The viability of the general rule of the identity or mutuality of parties requirement is supported by a number of recent cases in which the issue was central to the deсisions reached by this court. See Schomaeker v. First Natl. Bank (1981),
In Trautwein, supra, Chief Justice Celebrezze, speaking for a unanimous court and approving the second paragraph of the syllabus in Whitehead, stated, at page 501:
“The application of the concept of collateral estoppel requires an identity of both parties and issues. Whitehead, supra, at page 113; Columbus v. Union Cemetery Assn. (1976),
The main legal thread which runs throughout the determination of the
In many cases within which a motion for summary judgment is presented relying upon collateral estoppel, there may well have been attendant elements in the prior cause which could materially have altered the prior judgment, in which event the common party to the prior cause should not be deprived of his right to a trial by jury in the new cause. Any such deprivation would be an infringement upon the right of the common party to a trial by jury. Even as the rights of a new plaintiff will never be barred, in that he has not had his day in court, it would be inappropriate to adopt a principle of law that would infringe upon the defendant common party’s right to a trial by jury-
Many factors, considerations and elements entеr into any judgment of a court. There are the tangible, as well as the intangible, elements which have their meaningful effect upon the result of any cause, the nature of the claim and the claimants, as well as the nature of the defendant; the amount involved in such claim; the manner of the advocacy, often depending upon the amounts involved in such cause; the philosophical elements surrounding the cause; the agreed settlement, if any, in the matter; the vast differences between juries and their determinations of issues of liability and damages; and the unwillingness to appeal a verdict, if such would not be feasible. These are all factors which we must consider in the determination of whether the application of the doctrine of collateral estoppel, in the absence of mutuality, should be applied as a general rule in this jurisdiction.
The benefits garnered from applying collateral estoppel in any cause must be balanced against the costs associated with its application. The major
The principles involved within this consideration have been well expressed in the legal commentary in 46 American Jurisprudence 2d 569-570, Judgments, Section 402, as follows:
“The doctrine of res judicata may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice оr so as to work an injustice.
if* * *
“Underlying all discussion of the problem must be the principle of fundamental fairness in the due process sense. It has accordingly been adjudged that the public policy underlying the principle of res judicata must be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which to present his case. * * *”
Upon a considered review of the arguments presented, as well as available cases and comment on the subject, we conclude that the principle of mutuality as a prerequisite to the application of collateral estoppel, as applied in this state, recognizing the need in certain instances for the flexibility and exceptions to such rule, has been responsive to the conflicting principles of due process and judicial economy. We therefore opt to adhere to such principle as a general proposition, while realizing that there may well be other cases in which there are presented additional exceptions which could be acceptable to this court upon the basis of serving justice within the framework of sound public policy.
Whether or not we, in the future, may conclude it to be advisable to adopt the nonmutuality rule as a general proposition, for the present we reaffirm our prior general stance that collateral estoppel may generally be applied only when the party seeking to use the prior judgment and the party against whom the judgment is being asserted were parties to the original judgment or in privity with those parties.
Even though we currently entertain the thought of abandonment of the general principle requiring mutuality of parties, and within that broadened framework, we cannot accept the proposition that “offensive nonmutual col
Collateral estoppel precludes relitigation only when the identical issue was actually decided in the former case. 18 Wright, Miller & Cooper, Federal Practice and Procedure, Sections 4416-4417. Thus, a trial court must decide, prior to applying collateral estoppel, and appellate courts must review, whether the identical issue was actually decided in the former case. In a design defect case arising from separate underlying incidents, this would, in most instances, be no easy task. Thus, as suggested previously, the judicial resources sоught to be saved in the name of judicial economy, are expended on questions collateral to the case.
The danger is multiplied in cases such as this one where the issue determined in the first litigation relates to a product’s design. This is due to the nature of the questions and the potentially broad impact of their resolution. These questions are very technical, requiring expert testimony to bring out the specifics. Also, a jury’s ultimate determination requires delicate balancing between the design decisions actually made by the manufacturer and those which are postulated as feasible within the industry at any given point in time. Thus, the determination made by a jury in any particular case will ofttimes not be free from doubt.
Just as the risk of an erroneous determination is increased by the complex nature of design issues, the potential impact of such a decision would be unfairly broadened by the offensive application of nonmutual collateral estoppel. This could result in a single jury, sitting in review of certain limited facts, entering a verdict which would establish safety standards for a given product for the entire country. It would not be prudent to raise a decision made by one jury in the context of one set of facts to the standard under which all subsequent cases involving separate underlying factual circumstances are judged. See, e.g., Weinberger, Collateral Estoppel and the Mass Produced Product: A Proposal, 15 New Eng. L. Rev. 1 (1979).
Additionally, even though we might accept the principle of the offensive use of nonmutual preclusion as applied to product design cases, applying the standards undеrlying Parklane, supra, and as set forth in Restatement of Judgments 2d, Section 27, Comment c, the appellees still could not prevail. A reading of all that is before this court, concerning the prior case of Harrison v. McDonough, supra, i.e., the federal trial court’s opinion and order, it may be determined that there were two totally separate accidents, with two different models of a riding lawnmower manufactured in different years by appellant manufacturer; there were different operators of the equipment with perhaps totally different mechanical capabilities; different terrain and weather conditions; also, the same rules of law were not applicable in both states — Florida had enacted a comparative negligence statute at the time of the accident in that case, while Ohio still had the rule of contributory negligence at that time; and, what is critically important to the appellant, the
In the overview, we hold that nonmutual collateral estoppel may not be used to preclude the relitigation of design issues relating to mass-produced products when the injuries arise out of distinct underlying incidents.
Based on the foregoing, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Judgment reversed and cause remanded.
Notes
In Whitehead, the court, at page 112, stated:
“The second aspect of the doctrine of res judicata is ‘collateral estoppel.’ While the merger and bar aspects of res judicata have the effect of precluding a plaintiff from relitigating the same cause of action against the same defendant, the collateral estoppel aspect precludes the relitigation, in a second actiоn, of an issue that has been actually and necessarily litigated and determined in a prior action which was based on a different cause of action. Restatement of the Law, Judgments, Section 45, Comment (c), and Section 68(2); Cromwell v. County of Sac (1876),
See, e.g., Norwood v. McDonald (1943),
See Schram v. Cincinnati (1922),
See, e.g., B. R. DeWitt, Inc. v. Hall (1967),
See, e.g., Morneau v. Stark Enterprises, Ltd. (1975),
See, e.g., Spettigue v. Mahoney (1968),
Bentham, Rationale of Judicial Evidence, 7 Works of Jeremy Bentham 171 (Bowring Ed. 1843); Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 281; Currie, The Tempest Brews, 53 Cal. L. Rev. 25 (1965).
IB Moore’s Federal Practice (2d Ed.), 1805-1806, Paragraph 0.412[1]; Moore and Currie,
In Parklane, the stockholders of the company sought to use a determination by the district court in an action brought by the Securities Exchange Commission (SEC) that the proxy statement was materiаlly false and misleading. The stockholders contended that the defendant corporation was collaterally estopped from relitigating issues resolved against it in the SEC suit.
In Parklane, while noting that “the problem of unfairness [to a defendant] is particularly acute in cases of offensive estoppel,” and admitting that “offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does,” the court nonetheless decided to endorse an approach that would not prevent federal courts from applying offensive collateral estoppel, unless considerations demonstrating unfairness to a defendant are shown or such application is otherwise improper under the circumstances.
This court stated, in pertinent part, at page 75, that:
“It is our determinátion that appellees may not now relitigate the issue of ownership and control of this hospital, all questions pertaining thereto having been properly before this court in Sears, supra. The pertinent appellees herein were represented parties or were in actual privity with represented parties in Sears and were accorded a full and fair day in court in that proceeding.”
This court, in the stance of the facts presented in Hicks, stated, at page 74:
“It is clear that in Sears, the issue of the ownership and control of this hospital was before the court and that it was an issue which was directly confronted by the city of Cincinnati. All of the facts noted by the lower courts in the instant case to substantiate their conclusions that the state, rather than Cincinnati, owned and controlled the hospital were the same facts which existed at the time of Sears. In short, this court is now being asked to relitigate the issue of ownership and control of the hospital in the face of Cincinnati’s repeated assertions in Sears that it owned, operated and controlled the hospital.”
As one commentator has said:
“The dangers of issue preclusion are as apparent as its virtues. The central danger lies in the simple but devastating fact that the first litigated determination of an issue may be wrong. The risk of error runs far beyond the рroposition that most matters in civil litigation are determined according to the preponderance of the evidence. The decisional process itself is not fully rational, at least if rationality is defined in terms of the formally stated substantive rules. Considerations of sympathy, prejudice, distaste for the substantive rules, and even ignorance or incapacity may control the outcome. Trial tactics are consciously adapted to these concerns, but efforts to reduce the irrationality may fail or backfire and efforts to exploit it may succeed.” 18 Wright, Miller & Cooper, Federal Practice & Procedure 142, Section 4416.