205 N.E.2d 92 | Ohio Ct. App. | 1965
This appeal comes to this court from a judgment entered for the defendant by the Court of Common Pleas of Cuyahoga County. The action is one for money only. The plaintiff alleges in his petition that he suffered certain personal injuries when "steel bar joists" manufactured by the defendant, which had been placed in a building, collapsed and fell down upon him. The plaintiff was a construction worker, employed by a sub-contractor, the Valley Steel Erectors, Inc. The joists were purchased from the defendant by the general contractor. The cause of action, as stated by the plaintiff, is based on a claim of a breach of the duty imposed by law on the defendant to furnish merchantable joists to the general contractor. No claim of privity between the plaintiff and defendant is stated in the petition, and under the facts stated no such claim could be made. *375
We are, therefore, confronted with the question whether the petition states a cause of action. If the rule of the case inWood v. General Electric Co. (1953),
This question requires a survey of the rapidly changing theory of "product liability." The earlier rule, requiring privity between buyer and seller as a basis for creating liability under an express warranty grew out of the proposition that no such obligation was created until a promise was separately made upon request of the buyer. Such a warranty was said to be collateral in character and enforceable by an action in tort. As then understood, a breach of such a promise did not breach the contract of sale, and, without such a collateral promise, the doctrine of caveat emptor applied. The transition of product liability from caveat emptor to strict tort liability, regardless of privity, where the manufacturer or dealer induces the sale under the law of express warranty, is set out in the case of Rogers v. Toni Home Permanent Co.,
An implied warranty is one imposed by law which under the Uniform Commercial Code dealing with sales, Section
"* * * The question is, has the defendant broken a duty apart from the contract? If he has simply broken his contract, *376 none can sue him but a party to it; but if he violated a duty to others, he is liable to them. * * *"
That was one of the earlier cases dealing with product liability involving an injury to the plaintiff when saltpeter was mistakenly delivered for epsom salts by a druggist to a member of the household. Thereafter, plaintiff, a visitor at such household, used the mislabeled drug. The case was decided for the plaintiff because of the danger created to all who might be expected to be misled by the false label erroneously put on the container of a dangerous drug.
In "Handbook Of The Law Of Torts" by Dean William L. Prosser (Second Ed.), Chapter 17, at page 497, the author states under the heading "Liability of Suppliers to Third Persons":
"84. It is now generally agreed that a seller, or other supplier of chattels for a consideration, may be liable for harm to the person or property of a third person who may be expected to be in the vicinity of the chattel's probable use, if he has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied."
See, also, Chapter 19, Sections 97, 98 and 99, beginning at page 672, of the Third Ed. of the same work.
That such a strict tort liability could be enforced by persons not parties to the agreement of purchase was not recognized until recent years. The author at page 497 cites the case of Winterbottom v. Wright (1842), 10 M. W. 109, 11 L. J. Ex. 415, 152 Eng. Rep. 402, as the basic authority denying liability of the manufacturer to third persons injured by the proper use of a negligently constructed product. With a few exceptions (dealing with food and inherently dangerous products) the rule as thus stated continued until 1916 when the case ofMacPherson v. Buick Motor Co. (1916),
The theory of liability of the manufacturer or producer of chattels to the ultimate consumer without privity for negligence in producing the property, which negligence proximately caused injury or damage to the ultimate consumer while in the proper use of the property, is now almost universally accepted. Only the difficulty of proving negligence in the manufacturing process prevents such remedy from giving adequate relief to the ultimate consumer injured as a proximate result of the lack of care in producing the goods purchased. However, with the right to pursue the manufacturer for damages due to dangers created by the negligent manufacture of his product, based on negligence, it was to be expected that the law would expand carrying the responsibility of a manufacturer for the negligent or careless manufacture of his goods, which carelessness created a danger to the consumer when using them in a proper manner, even further and find (as is true as to all persons whose negligence proximately causes injuries to others) grounds for enforcing strict tort liability against the producer whose negligence or lack of reasonable care in producing the goods is the direct cause of injury to the consumer. The source of such an obligation, when recognized, is created by law and has no dependence whatever on contractual relations between the parties. The soundness of this result is established by the weight of authority in recent decisions by many of the courts of last resort in the several states.
In the case of Bender v. Champion Lamp Works Division ofConsolidated Electric Lamp Co.,
"An ultimate consumer of a projector type flood light could maintain a cause of action for breach of implied warranty of merchantability against manufacturer following explosion of the light as she attempted to unscrew it from a socket, even though there was no privity of contract between the parties."
At page 140 of 40 Misc.2d the court states:
"The long-established court-made rule requiring privity of contract between parties in an action for breach of warranty * * * has been overturned by two recent landmark decisions of the Court of Appeals (Greenberg v. Lorenz,
And then, on page 141, the court said:
"Moreover, in a number of modern decisions involving suits by consumers against suppliers where technical privity was lacking, this trend has been continued. (Thomas v. Leary,
The case of Greenberg v. Lorenz,
"Fact that infant's father, not infant, purchased canned salmon containing sharp metal which injured infant, would not preclude infant from recovering from retailer for breach of warranty of fitness and wholesomeness."
That decision required the court to overrule a number of previous decisions holding no action for breach of warranty could be maintained without privity.
In the case of Randy Knitwear, Inc., v. American CyanamidCo.,
"The world of merchandising is, in brief, no longer a world of direct contract; it is, rather, a world of advertising and, when representations expressed and disseminated in the mass communications media and on labels (attached to the goods themselves) prove false and the user or consumer is damaged by reason of his reliance on those representations, it is difficult to justify the manufacturer's denial of liability on the sole ground of the absence of technical privity. * * *"
The case of Kotiadis v. Gristede Bros., Inc.,
"Supermarket customer who was injured when a can of grapefruit sections which she purchased in a supermarket exploded later in her home could, under the circumstances, assert a claim based upon implied warranty for improper packing or defective can against either the supermarket operator or the canner."
In the case of Public Administrator of New York County v.Curtiss-Wright Corp.,
"Florida courts entertain suits for breach of implied warranties *380
of fitness and merchantability in the absence of privity. As the Florida Supreme Court stated in Hoskins v. Jackson Grain Co.,
"`There is a conflict of opinion about the accountability of a manufacturer to a consumer on the theory of implied warranty in the absence of privity, but this court has become aligned with those courts holding that suit may be brought against the manufacturer notwithstanding want of privity.'"
Also, in the case of Deveny v. Rheem Manufacturing Co.
(1963),
"11. Under presumed law of Vermont, lack of privity of contract does not preclude manufacturer's liability for breach of implied warranty fitness of product.
"12. Vermont statute requiring notice of breach of warranty to be given by buyer to seller is not applicable where action is brought against seller by person who is not a buyer. * * *."
In that case the trial judge charged the jury, essentially, "that a manufacturer of an article which would be dangerous to life or limb if defectively manufactured impliedly warrants its fitness for the benefit of all who are likely to be hurt by the use of an unfit item. * * *."
The case of Ross v. Philip Morris Co., Ltd. (1964),
"2. Under Missouri law, lack of privity between manufacturer and consumer of cigarettes is not in itself a bar to recovery from alleged breach of implied warranty.
"3. Under Missouri law, when implied warranty claim is asserted by purchaser based on injuries from food or beverages manufactured for human consumption, rule of strict liability prevails, with or without privity, regardless of negligence."
The Missouri rule was founded by its Supreme Court in the case of Morrow v. Caloric Appliance Corp. (Mo., 1963),
"Privity of contract was not necessary in order for ultimate purchasers of gas range to recover from foreign corporate manufacturer on implied warranty for fire damage caused by stove which caught on fire as result of defective valves which were integral part of stove; manufacturer was strictly liable."
The case of King v. Douglas Aircraft Co., Inc. (Fla.),
"A manufacturer of a product, which, if negligently made involves unreasonable risk of harm to those using it for the intended purpose, may be held liable to third parties for resulting injuries."
The court there quoted from 2 Restatement of Law of Torts 1084, Section 398, as follows:
"`A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use, for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.'"
(See, also, Section 395 of the same work, at page 793.)
At page 110 of 159 So.2d the court states:
"In the recent case of Goldberg v. Kollsman Instrument Corp., the New York Court of Appeals held that an airplane manufacturer's implied warranty of fitness of the airplane for the contemplated use ran in favor of an airline passenger, stating:
"`In MacPherson's day enforcement required a suit in negligence. Today we know from Greenberg v. Lorenz; RandyKnitwear, Inc., v. American Cyanamid Co. (supra), and many another decision in this and other states (see, for instance,Henningsen v. Bloomfield Motors, Inc.,
There are many additional cases recently decided that support the almost universal change in the case law allowing recovery by a third person not in privity with the manufacturer for injuries suffered because of failure to exercise reasonable care in producing the chattel. Among such cases are the following:
Jarnot v. Ford Motor Co.,
Spence v. Three Rivers Builders Masonry Supply, Inc.
(1958),
"Where the manufacturer was guilty of a lack of due care in failing to inspect or test raw materials, or furnished blocks, which were defective, buyer of such blocks was entitled to recover damages sustained by their use from manufacturer, either on the theory of negligence, or implied warranty, even if buyer was a remote buyer with whom manufacturer had no direct contractual relations."
Pabon v. Hackensack Auto Sales, Inc. (1960),
Continental Copper Steel Industries, Inc., v. E. C. "Red"Cornelius, Inc. (Fla. Court of Appeals, 1958),
Henningsen v. Bloomfield Motors, Inc.,
Williams v. Union Carbide Corp.,
General Motors Corp. v. Dodson (1960),
From the foregoing authorities it is clear that one who is injured as a result of the use of a defective chattel may look to the producer for redress. Privity is not a necessary element of such an action. Such liability is imposed by rule of law as pronounced by the highest judicial authority. The world of merchandising is no longer a world of direct contract. Goods are produced to be used by ultimate purchasers, and the representations of the manufacturer through and by the production thereof for use in the channels of commerce, at least, impliedly intend to induce their use in the justifiable belief that, when used as intended, there will be no danger of injury to others. See "The Assault Upon The Citadel (Strict Liability To The Consumer)" by Dean William L. Prosser, 69 Yale Law Journal 1099, and "Strict Liability In Tort For Defective Products" by Edward L. Lascher, 38 Southern California Law Review 30.
There are, therefore, three methods by which one who suffers injury or damage in using a chattel delivered by the manufacturer or the vendor in a defective condition may proceed to seek redress against the manufacturer:
1. Where the ultimate purchaser stands in a contractual relation with the producer or vendor, an action (if justified by the facts) for breach of express or implied warranty may be maintained as provided by the Uniform Commercial Code.
2. By an action charging negligence in producing the chattel as held in MacPherson, supra, regardless of privity.
3. By an action seeking to enforce "strict tort liability without privity." Vandermark v. Ford Motor Co. (1964),
Wood v. General Electric Co.,
"During the month of December, 1946, plaintiffs purchased *384 at retail through a dealer in the city of Columbus, Ohio, a certain electric blanket manufactured by the defendant, General Electric Company, in the original package as it had come from its said manufacturer upon the implied warranty that said electric blanket should be of merchantable quality and reasonably fit for the purpose of use in plaintiff's home as an article of bedclothing."
That action is clearly based on an alleged promise of the defendant to furnish a blanket reasonably fit for the purpose it was intended to serve. There can be no doubt that the alleged facts did not intend to assert a claim for damage based on strict tort liability.
In the case now before us, the plaintiff states facts which show that he had no contractual relations with the defendant and that he bases his claim on "strict tort liability." While the words "implied warranty" are used, they are intended to mean and describe the duty and representation of a producer of chattels to the buying public that his goods may be used for the purposes intended without danger to the purchaser from latent defects making their use dangerous to the user. The use of the word "warranty" is probably improper; however, the courts, in describing causes of action for strict tort liability in product cases, seem to have continued to use it for want of a better word, not intending it to mean anything more than the manufacturer putting his goods into the stream of commerce, thereby representing that they are of merchantable quality, unless a different intention is clearly expressed. In the case of Greenman v. Yuba Power Products, Inc. (1963),
"Although in these cases strict liability has usually been based on the theory of an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of a contract between them, the recognition that the liability is not assumed by agreement but imposed by law (see e.g., Graham v. Bottenfield's Inc.,
For the foregoing reasons, the judgment of the Court of Common Pleas sustaining the defendant's demurrer and entering judgment for the defendant is reversed, and the cause is remanded with instructions to overrule the demurrer and for further proceedings.
Judgment reversed.
CORRIGAN and WASSERMAN, JJ., concur.