470 N.E.2d 941 | Ohio Ct. App. | 1984
Lead Opinion
Plaintiff-appellee, Daniel Hardiman, was employed by the city of Shaker Heights as a sewer worker. On May 23, 1979 he was sent to unclog a sewer line using Zep Super Sewer Aid, a caustic material containing lye. After opening the "test T" (a vertical access line to the main sewer), Hardiman poured in some Zep, the amount he poured being disputed. He was injured when the Super Sewer Aid erupted violently out of the "test T" and splashed him in the face and on the hand.
Hardiman admitted he did not read the warning label on the can of Zep Super Sewer Aid. At the time of the accident he was wearing neither a face shield nor safety goggles, which were recommended on the warning label. Hardiman testified that he had seen others use Zep several times before, and used it the same way he had seen it used. He knew Zep was a dangerous chemical and knew it would burn or injure him if it got on him. He further testified that he had never seen the Super Sewer Aid erupt as it did, and no one ever told him it would react that way.
At trial several witnesses testified concerning the adequacy of the warning on the Zep Super Sewer Aid can, the design of the product, and the manufacturing of the product. Gerald Burks, a safety consultant, testified that the warning label was inadequate in that it failed to warn of the danger of a flashback or eruption out of the sewer, a danger he thought was foreseeable. Burks also thought the directions contained terms that were not specific or clear enough to insure safe use. He also felt the label did not properly set off the "danger" warning, as it did not comply with the American National Standards for "danger" warnings. *223
Dr. Ralph Dannley, a retired chemistry professor at Case Western Reserve University, testified that the hydrogen gas given off when Zep reacted was not a desirable by-product. According to Dannley, the hydrogen gas could be sharply reduced or eliminated without affecting the product's performance if a different ratio of sodium nitrate to aluminum was used. He said that there could be some separation and settling of the Zep mixture when shipped, and that "pelletization" or "chunking" the mixture would avoid this problem. He also said pelletization would be a safety feature because it would result in a longer reaction time. Dannley felt visual inspection of the final product, which was utilized by Zep's workers, was not sufficient, and that some testing of the final mixture was necessary. Based on the chemical composition of Zep Super Sewer Aid, Dannley thought the company could foresee a flashback or eruption reaction.
Dr. Manuel Fineman, the vice-president of research and development for Zep Manufacturing Company, offered testimony that the label was adequate and the product properly designed and manufactured. Dr. Fineman's position was that this sewer cleaner, because it was required to generate a great deal of heat to accomplish its purpose of opening clogged sewers, was a dangerous product but could be used safely if the directions on the label were followed and the safety precautions suggested were utilized. Due to the variations in pipe size, type of obstruction and location of the obstruction, the company could not specify the exact quantity of product to be used, but it did provide guidelines which would enable trained personnel to use Zep safely. Fineman felt Hardiman's training was inadequate.
Dr. Fineman testified that the different material in Zep will not separate out. He believes Zep has complied with the American National Standards Institute's (ANSI) warning guidelines for caustic materials. Based on ANSI guidelines, Zep Manufacturing tried to put only the most critical information for safe use on the Zep Super Sewer Aid can, while providing additional information and directions in their technical data report. Zep's label did comply with the criteria established by the Manufacturer's Chemical Association. He also took exception to Dr. Dannley's experiment showing the production of hydrogen gas. Dr. Fineman contended that with Zep's product ammonia gas is produced in large amount, not hydrogen, and only by using a misleading experiment did Dannley show hydrogen gas being produced in large amounts.
The jury returned a verdict for plaintiff for $250,000. Defendant submitted three interrogatories asking the jury, if they found Zep Super Sewer Aid to be unreasonably dangerous, to state whether the defect was inadequate warning or design defect and how it was defective or inadequate. The jury said the product should be pelletized to reduce1 reaction time and should be tested by other than visual means. They found the warnings inadequate, saying the word "Danger" should be isolated on a separate label, the rate and amount of product to be used should be more clearly specified, and the label should give warnings in picture form about such possible hazards as flashback. *224
Plaintiff's motion for prejudgment interest was granted following a hearing.
On appeal, cases 46566 and 47259 are consolidated, and contain seven assignments of error.
1. "The trial court erred in failing to direct a verdict upon the alleged defect of inadequate warning."
This error has no merit, as it misstates what actually occurred at trial. Ohio does not recognize a strict liability cause of action arising from allegations of inadequate warning. Knitz v.Minster Machine Co. (1982),
"* * * As we pointed out in Temple, at page 325, `[i]t is * * * apparent that the rule imposing obligation on the manufacturer or seller to give suitable warning of a dangerous propensity of a product is a rule fixing a standard of care, and any tort resultfrom the failure to meet this duty is, in essence, a negligentact.' * * *
"Moreover, we held in Leichtamer [v. American Motors Corp.
(1981),
In plaintiff's amended complaint, he made both a negligence and strict liability claim based on inadequate warning. Defendant moved for a directed verdict on the grounds of negligence, but plaintiff admitted he had withdrawn his negligence claim. Since inadequate warning is not a cause of action under strict liability, and since the negligence claim was withdrawn, there was no cause of action of inadequate warning before the jury. There was no need to direct a verdict on a claim that was not at issue, and the judge instructed the jury that negligence was not at issue.
The issue of the adequacy of the warning label was before the jury only as an affirmative defense to plaintiff's claim that Zep Super Sewer Aid was unreasonably dangerous, and the jury was so instructed. Based on the evidence presented, the jury could have properly found that the product, even if the label warnings and directions were followed, was not safe for use. The jury's verdict showed it rejected defendant's defense of adequate warning, and the interrogatories which explain the inadequacies of the warning label are consistent with a rejection of an adequate warning defense.
Because inadequate warning sounds only in negligence, and the negligence claims were withdrawn by plaintiff, there was no need to direct a verdict on inadequate warning since there was no inadequate warning cause of action before the jury.
2. "The trial court erred in failing to direct a verdict upon the claim of defective design."
A motion for a directed verdict should be granted only when:
"* * * the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party * * *." Civ. R. 50(A)(4).
There was evidence and testimony presented which indicated that Zep *225 Super Sewer Aid may have had a design defect, and that the design defect may have proximately caused plaintiff's injuries.2 Since reasonable minds could differ as to whether there was a design defect which proximately caused plaintiff's injuries, a motion for a directed verdict was properly overruled and the issue submitted to the jury.
3. "The trial court erred in refusing to submit the issue of intervening cause to the jury."
Civ. R. 51(A) states in part:
"A party may not assign as error the giving or the failure to give any instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection."
In objecting to the judge's failure to give its fourth and sixth requested charges, defendant simply said:
"* * * [W]e object to the failure to give the fourth suggested charge dealing with intervening cause; * * * We object to the failure to give the sixth charge dealing with the safe place to work statute
This does not satisfy Civ. R. 51(A)'s requirement that the grounds for an objection be stated, and would present nothing for our review. Singfield v. Thomas (1971),
Appellant contends that its requested fourth charge3 should have been given to the jury. Where a requested charge does not correctly state the law, the court is not required to give that charge. Pallini v. Dankowski (1969),
The charge would allow the jury to find Shaker Heights, plaintiff's supervisor Bobo or the plaintiff himself to be an intervening cause. The term "intervening cause" generally contemplates action by a third party other than plaintiff or defendant. A charge that would allow a jury to find plaintiff's conduct to be an intervening cause is equivalent to charging on contributory negligence. However, contributory negligence is not a defense to a strict liability claim. 2 Restatement of the Law 2d, Torts (1965) 356, Section 402A, Comment N. Section 402A, together with its numerous illustrative comments, was adopted as the law in Ohio in Temple v. Wean United, supra. *226
Appellant also contends that its sixth requested charge4
should have been given. We find no authority for appellant's proposition that the "safe-place-to-work" statute is a defense to a Section 402A strict liability cause of action. We do not believe the legislature intended either R.C.
4. "The jury verdict is contrary to the weight of the evidence."
In dealing with a claim that the judgment is against the manifest weight of the evidence, a reviewing court can reverse only if:
"`[T]he verdict is so manifestly contrary to the natural and reasonable inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice, * * *.'"Royer v. Bd. of Edn. (1977),
There was credible evidence presented at trial which supports the verdict rendered, and that verdict cannot be characterized as a violation of substantial justice.
The credibility of witnesses, the weight to be given their testimony, and the resolution of conflicts in the evidence are questions of fact for the jury. A reviewing court should not substitute its judgment for that of the jury and we see no need to do so here.
5. "The trial court erred in permitting the jury to segregate injury that would have been caused if goggles and not a face mask had been worn."
The label on Zep Super Sewer Aid said that, when using the product, one should wear goggles or a face shield. The judge instructed the jury that if they found the product to be defective, they could award damages for injuries to plaintiff's eyes, his face or both.5 Appellant contends this represented an irrelevant inquiry since plaintiff did not read the label and wore neither goggles nor a face shield.
We fail to see how the charge harms appellant. In fact, it appears to benefit appellant. It would allow the jury to find that the Super Sewer Aid, if found defective, was not the proximate cause of all of plaintiff's injuries. It would permit the jury to assess damages as if plaintiff had worn the goggles as recommended. The label on Zep Super Sewer Aid suggested a user wear goggles or a face shield; it did not say only a face shield. The instruction would permit the jury to assess damages as if plaintiff had used the minimum safety equipment suggested on appellant's label, an assumption we feel does no harm to appellant but rather works to its benefit by *227 possibly reducing its damages exposure. We find this charge to be an appropriate instruction on proximate cause and thus unobjectionable.
6. "§
Appellant contends that R.C.
All legislative enactments are cloaked with a presumption of constitutionality. State v. Dorso (1983),
Section
Additionally, R.C.
A court has broad powers to control judicial proceedings and enforce sanctions against those who abuse the judicial system. It would be unconstitutional to penalize a party for exercising his right to a trial. It is not unconstitutional to penalize or impose sanctions on one who abuses procedural guidelines which are concomitant with a right to jury trial. It is not unconstitutional to prevent a party from receiving a benefit where that party fails to act in good faith in a procedure designed to resolve cases before trial and thus expedite the right to trial for those cases that cannot be settled by mutual agreement. We do not see how R.C.
7. "The trial court's finding of bad faith is not supported by the evidence."
R.C.
We do not believe this is the proper case to delineate what "failed to make a good faith effort to settle" entails or requires. The minimal efforts to settle made by both sides are essentially equivalent. Therefore if appellant's conduct is considered a failure to make a good faith effort to settle, we believe appellee also failed to make a good faith effort to settle. Conversely, if appellee's actions are sufficient so that he did not fail to make a good faith effort to settle the case, then appellant, having acted in an essentially equivalent manner, also did not fail to make a good faith effort to settle. Whichever approach is taken, based on the facts of this case and according to the requirements of R.C.
The decision of the lower court is affirmed in part and reversed in part. *229
Judgment affirmed in part and reversed in part.
PRYATEL, J., concurs in judgment only.
JACKSON, P.J., dissents.
"Where there intervenes between an agency creating a hazard and an injury resulting from such hazard, another conscious and responsible agency which could or should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency.
"As applied to the fact of this case, if you find that the City of Shaker Heights, its employees or agents, or Plaintiff Hardiman were intervening and responsible entities which could or should have eliminated the claimed initial hazard, then you must find that a break in the chain of causation occurred and your verdict must be in favor of defendant."
"§
"Plaintiff Daniel Hardiman contends that the unreasonably dangerous or defective nature of Zep Super Sewer Aid proximately caused injury to his eyes and to his face. If you find that the product was unreasonably dangerous or, that is, defective in nature, it does not necessarily follow that this must be the proximate cause of all of the plaintiff's injuries. You may award damages to reflect injury to either his eyes or his face, or both, depending on whether you are satisfied that the unreasonable danger, that is, defect, was the proximate cause of the plaintiff's injuries."
Appellant contends the rate then in effect should apply, so that parts of plaintiff's prejudgment interest would be at six percent, eight percent and ten percent. Appellee contends that ten percent should apply for the entire period. We believe the rate then in effect should apply, as giving a full ten percent from the date the cause of action accrued would result in a windfall to plaintiff, and we do not believe such was intended by the legislature. The policy behind prejudgment interest is to make the plaintiff whole. Thus prejudgment interest gives him interest from the date the tort occurred, making it as if plaintiff received his damages on that date and had the use of the damages from the date of the tort. Had plaintiff received his money on May 23, 1979, he could not have gotten ten percent interest by statute. To make a plaintiff whole without giving him an undeserved windfall, we believe prejudgment interest should be calculated as the statutory rate in effect during the period in question. Accord Porter v. Clerk of Superior Court (1975),
Dissenting Opinion
Respectfully, I dissent from the decision of the majority affirming the judgment of the trial court awarding plaintiff damages in the amount of $250,000.
The presence of an adequate warning is a defense to a claim of strict tort liability.9 Leichtamer v. American Motors Corp.
(1981),
"DANGER! CAUSES SEVERE BURNS"
In smaller print, directions for use and precautions are addressed to the user. The user is advised to use forty to sixty pounds in smaller lines and up to one hundred pounds in larger lines, to keep hands and face away from the drain when using, to add the drain cleaner "slowly" to avoid "violent spattering," and to wear goggles or a face shield. The user is further advised that the product was designed exclusively for industrial and institutional use by trained personnel, and that the label directions must be followed exactly.10 *230
The appellee testified that he could read "very little," and that the only part of the label that he read before using the product was the word "ZEP." He had learned how to use the product by watching his boss (and possibly other employees) pour it into sewer drains. None of the persons whom he observed ever wore goggles.11
Appellee was sent alone by his supervisor to unclog a sewer at a church on Warrensville Center Road. Appellee's supervisor testified that the city of Shaker Heights had been using the product for eleven years, apparently without incident, and they were still using it. They had stopped taking the precautions recommended on the label of the product because they felt it was a "safe" product.
The jury found this warning to be inadequate because the word "Danger" was not on a separate label, because the label did not contain warnings in picture form and because the rate and amount of drain cleaner to be used was allegedly not sufficiently specific.
In my considered opinion the label does constitute an adequate warning, as a matter of law.12 The issue is not whether the warning is susceptible to improvement, but whether it wasadequate under the circumstances. The danger of "flashback" or "violent spattering" is an obvious one to persons familiar with cleaning drains with a product which creates heat. But even to a person unfamiliar with this phenomenon, the label provides adequate warning, and demands the user to take adequate precautions: to pour slowly, to keep hands and face away from the drain, and to wear protective face gear. Any manufacturer that produces a product which can be safely and effectively utilized only if certain instructions are followed, need not assume that the users of its product cannot read, as the evidence demonstrates was the circumstance in the case at bar.
I am persuaded that under the posture of the evidence herein the appellant should not be held liable for the appellee's personal injuries.
Furthermore, as to a procedural point made by the majority in disposing of the appellant's third assigned error, it is my considered opinion that the appellant adequately preserved its right to appeal the refusal of the trial court to give its fourth and sixth requested jury instructions. The majority finds that counsel for appellant did not preserve an objection to the charge of the court, because counsel did not "state specifically the matter to which he objects" as required by Civ. R. 51(A). Counsel stated, after the instructions were given, that *231
his client objected to the failure of the court to read to the jury its fourth and sixth suggested charges, which had been submitted in writing to the court. The first paragraph of the syllabus in the case of Presley v. Norwood (1973),
"Where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and that the complaining party has unsuccessfully requested the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto. * * *"
The appellant need not object to the failure of the court to read a requested charge. Consequently, the appellant preserved the right to appellate review of the decision of the court not to charge on the requested issues.
Nevertheless, I agree with the majority that the appellant's requested jury instructions were not a correct statement of the law as applied to the facts developed at trial, and that the trial court did not err in refusing to give the requested instruction.
In my considered opinion the decision of the trial court should be reversed on the ground that the manufacturer's printed warning on its product was adequate as a matter of law.
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
"(a) the seller is engaged in the business of selling such a product, and
"(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
"(2) The rule stated in Subsection (1) applies although
"(a) the seller has exercised all possible care in the preparation and sale of his product, and
"(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."
"DIRECTIONS
"Introduce into drain or sewer line in dry form. Quantity to be used will depend upon size of line (diameter and length from point of entry to point of obstruction). For small lines, use 40 to 60 pounds; for larger lines, use up to 100 pounds, introducing in two or three increments at different points along the line. For specific quantity instructions, refer to Technical Data Report No. 277.
"DANGER! CAUSES SEVERE BURNS KEEP OUT OF REACH OF CHILDREN
"Harmful or fatal if swallowed. Contains Sodium Hydroxide. Careless use can cause severe burns to skin and eyes. Avoid contact with skin, eyes, and clothing. When handling, wear goggles or face shield. Keep hands and face away from drain when using. Add slowly to drain to avoid violent spattering. USE COLD WATER ONLY.
"DO NOT ADD TO HOT WATER. In case of contact, remove contaminated clothing and shoes and wash before re-using. Immediately flush skin with plenty of water. For eyes, flush with plenty of water for at least 15 minutes and call a physician.
"This product may pick up moisture from the air which decreases its activity. When not in use, close and reseal plastic bag in the large containers and close lid tightly, avoiding undue exposure to air.
"FOR INDUSTRIAL AND INSTITUTIONAL USE ONLY.
"ZEP MANUFACTURING COMPANY
"Division of National Service Industries, Inc.
"ATLANTA, GEORGIA 30301
"PRINCIPAL CITIES, USA AND THROUGHOUT THE WORLD
"This product is designed exclusively for industrial and institutional use by trained, professional maintenance personnel. Label directions and precautions must be followed exactly. Zep Manufacturing Company will not be responsible for any injury, loss or damage, if product is used in any manner not in compliance with label directions or if precautions are not observed."
