LaPuma v. Collinwood Concrete

Mar 4, 1996
No. 94-1128
Versions:75 Ohio St. 3d 64
661 N.E.2d 714

Lead Opinion

Pfeifer, J.

We find that since appellants’ claim is not a product liability claim pursuant to statute, R.C. 2307.71 to 2307.80 do not preempt their cause of action. Instead, they have a possible claim for breach of an implied warranty against Collinwood.

I

Ohio’s product liability statutes, by their plain language, neither cover nor abolish claims for purely economic loss caused by defective products. The appellate court correctly noted that the damages the LaPumas sought in their complaint were economic. They were suing for the replacement cost of the driveway, and “economic loss” is defined in R.C. 2307.71(B) as follows:

“ ‘Economic loss’ means direct, incidental, or consequential pecuniary loss, including, but not limited to, damage to the product in question, and nonphysical damage to property other than that product. * * * ”

A cause of action for damage to the product itself, i.e., a cause of action alleging only economic damages, is not included in the statutory definition of a “product liability claim” contained in R.C. 2307.71(M):

“ ‘Product liability claim’ means 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 * * *.” (Emphasis added.)

Since the LaPumas’ claim was based only on damage to the driveway itself, their claim is not a product liability claim controlled by R.C. 2307.71 to 2307.80. Ohio’s statutory scheme recognizes that claims like the LaPumas’ may arise, and R.C. 2307.72(C) acknowledges that plaintiffs with such claims may have a common-law remedy:

“Any recovery of compensatory damages for economic loss based on a claim that is asserted in a civil action, other than a product liability claim, is not subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur under the common law of this state or other applicable sections of the Revised Code.”

Thus, R.C. 2307.72 makes it clear that although a cause of action may concern a product, it is not a product liability claim within the purview of Ohio’s product liability statutes unless it alleges damages other than economic ones, and that a *67failure to allege other than economic damages does not destroy the claim, but rather removes it from the purview of those statutes.

II

The LaPumas do have a common-law claim against Collinwood. In Iacono v. Anderson Concrete Corp. (1975), 42 Ohio St.2d 88, 71 O.O.2d 66, 326 N.E.2d 267, this court allowed a plaintiff to recover against a concrete supplier for damage to the plaintiffs new driveway. In Iacono, small, round holes formed in the plaintiffs driveway soon after a contractor completed installing it, and the plaintiff brought suit against the contractor and the supplier for the damage to the driveway itself. Despite the lack of privity between the plaintiff and the supplier, this court held that the plaintiff could maintain a tort action against the supplier based upon a theory of breach of implied warranty. While the imperfections to the driveway in the present case concern its color, we do not find that that significantly distinguishes this case from Iacono. Therefore, the LaPumas may pursue a claim of breach of implied warranty against Collinwood.

We therefore reverse the judgment of the court of appeals, vacate the judgment of the trial court, and remand the cause to the trial court for further proceedings.

Judgment reversed and cause remanded.

Moyer, C.J., Douglas and Resnick, JJ., concur. Wright and Cook, JJ., concur separately. F.E. Sweeney, J., concurs in judgment only.



Concurrence Opinion

Cook, J.,

concurring. While I agree with the majority’s conclusion that the appellants’ claim for breach of implied warranty is not preempted by R.C. 2307.71 through 2307.80, I also believe that the language employed by the majority implies an exclusion that is overly broad. Accordingly, I write separately.

In the syllabus of today’s opinion, this court holds that any cause of action alleging purely economic damages is removed from the purview of R.C. 2307.71 through 2307.80. In so holding, the majority relies upon R.C. 2307.72(C), which states:

“Any recovery of compensatory damages for economic loss based on a claim that is asserted in a civil action, other than a product liability claim, is not subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur under the common law of this state or other applicable sections of the Revised Code.” (Emphasis added.)

*68The phrase “product liability claim” is defined in R.C. 2307.71(M) as follows:

“ ‘Product liability claim’ means 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 [.]” (Emphasis added.)

I interpret R.C. 2307.72(C) to exclude only a very narrow class of cases from the purview of R.C. 2307.71 through 2307.80, that is, cases where the damages sought relate solely to the product itself. Any other cause of action fitting within the definition of a “product liability claim” is preempted by the operation of R.C. 2307.71 through 2307.80.

“Economic loss” as defined in R.C. 2307.71(B) encompasses “direct, incidental, or consequential pecuniary loss, including, but not limited to, damage to the product in question, and nonphysical damage to property other than that product.” (Emphasis added.) Clearly then, economic loss can flow from damages other than those caused to the defective product itself. In such a case, the claimant may recover economic losses only after establishing an entitlement to recover compensatory damages for harm from a manufacturer or supplier. R.C. 2307.79. “Harm” as defined in R.C. 2307.71(G) means “death, physical injury to person, serious emotional distress, or physical damage to property other than the product in question.”

In light of the foregoing, R.C. 2307.71 through 2307.80 preempt all similar theories of recovery existing at common law or arising under another section of the Revised Code in those cases wherein a claimant alleges purely economic losses other than those arising from damage to the product in question. Because today’s syllabus suggests that such cases are removed from the operation of R.C. 2307.71 through 2307.80,1 cannot join in the majority’s opinion.

Wright, J., concurs .in the foregoing concurring opinion.