Opinion
Nos. 73-546 and 73-547
Decided July 3, 1974.
Negligence — Products liability — Defective television set — Res ipsa loquitur not applicable, when — Plaintiff's burden of proof — Evidence.
1. In an action to recover damages for a negligently constructed television set the burden is on the plaintiff to establish by evidence a want of ordinary care by the manufacturer.
2. The doctrine of res ipsa loquitur may be applicable where (a) the instrumentality causing the injury was under the exclusive management and control of the defendant and (b) the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.
APPEALS from the Court of Appeals for Erie County.
These cases arise out of the same incident. Ernest and Faye Gast purchased a television set from Sears which was manufactured by Warwick Electronics, Inc. The set was delivered, in its original container, on November 21, 1969. When it was plugged in and turned on the picture did not come on and the set emitted a "funny odor." The Gasts informed Sears, and a repairman came out the following day. He opened the back of the set and located a short circuit by visually observing the electrical are which it emitted. He repaired the short with a soldering iron and then adjusted the set. The repairman did no other repair work, and the set operated properly until December 5, 1969.
On December 5, 1969, the Gasts turned off the set at about 2:30 a. m. They were awakened about an hour later by their dog. When they awoke they determined that their apartment was on fire.
Upon trial, the assistant fire chief testified that the television was the probable cause of the fire since it was the "low point" of the fire. The set was turned off; but it was an "instant start" model, so that current was running into the set at all times.
The Gasts and Fulton Insurance Co., which insured the building in which the Gasts resided, each sued Sears and Warwick. The cases were tried together. The plaintiffs proceeded on the theories that defendants breached an implied warranty of fitness and that they were negligent.
At the close of plaintiff's case, Sears was dismissed from both cases. Warwick moved for directed verdicts on both causes of action. The trial court directed verdicts on the implied warranty causes of action and overruled the motions on the negligence causes of action.
The cases went to the jury against Warwick for negligent manufacture. The trial court included instructions dealing with res ipsa loquitur in his charge to the jury. The jury found for plaintiffs, and Warwick appealed. The Court of Appeals affirmed, one judge dissenting.
The causes are now before this court pursuant to the allowance of motions to certify the record.
Messrs. Tone, Maddrell, Eastman Grubbe and Mr. Herbert P. Eastman, for appellees.
Messrs. Arter Hadden and Mr. Harry T. Quick, for appellant.
In both cases, plaintiffs failed to appeal the dismissal of their implied warranty causes of action. Thus, we are dealing strictly with negligence law, and strict liability in tort does not apply.
Basically, it is appellant's position that in a cause of action based on negligence the plaintiffs must show that there was a defective product, and that the defect was caused by defendant's failure to exercise ordinary care. They argue further that where res ipsa loquitur is relied upon to supply an inference of negligence, the plaintiffs must show that the defect would not occur but for the negligence of the defendant. Appellant argues that the plaintiffs failed to establish the defect and failed to show that the defect would not have occurred without negligence on the part of defendant.
Generally, to recover for negligence, a plaintiff must show that defendant was under a duty to exercise reasonable care to prevent injuries to others, that he breached that duty, that plaintiff's alleged injuries were the proximate result of the breach, and that plaintiff was in fact injured.
In the usual products liability case users of products need not show that the manufacturer was negligent. Courts recognized the difficulty in proving that the specific defect which caused the injury could have been eliminated had the manufacturer exercised ordinary care. Based upon that recognition, courts developed a new remedy — strict liability in tort for breach of implied warranty of fitness for ordinary use. Ohio adopted that remedy in Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227. The obvious advantage is that plaintiff need only show that the defect existed at the time the product left the manufacturer, and that the defect was the proximate cause of the injury. Negligence need not be shown.
However, in this case, plaintiffs did not appeal the dismissal of their implied warranty causes of action; they chose to rely on negligence.
This court has stated that:
"* * * a defective condition [in a product at the time it left the control of the manufacturer] may be proved by circumstantial evidence, where such evidence * * * [shows] that the accident was caused by a defect and not other possibilities, although it is not necessary in a civil action to eliminate all other possibilities. * * *" State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 156.
The evidence shows that the television set arrived at the Gasts' apartment, apparently in the same container in which it was shipped by appellant. Appellant argues that, since the Sears repairman removed the back panel and repaired a short circuit, the trial court could not find that the set was in the same condition as when it left the manufacturer.
Even though a repairman opened the back panel and fixed a short circuit, without disturbing any other parts, a jury question can arise. We determine that enough circumstantial evidence existed to make out a jury question on the issue of the existence of a defect in the television set at the time it left the manufacturer's control. The evidence also established that the television set probably caused the fire. Defect-free television sets do not ordinarily start fires, so the proximate cause of the fire could reasonably be ascribed to a defect in that television.
However, plaintiffs have failed to show that defendant was negligent in the manufacture of the television set. They rely on res ipsa loquitur to provide an inference of negligence. The trial court and the Court of Appeals accepted that premise.
We disagree.
Appellant argues, first, that res ipsa loquitur is applicable only if the instrumentality of the injury was in the exclusive control of defendant at the time of the accident. However, this court rejected that argument in Schaefer v. Wells (1961), 171 Ohio St. 506, wherein it was held that res ipsa loquitur could apply if the instrumentality was in the same condition as when it left the control of the defendant.
However, appellant raises a more fundamental reason for denying application of res ipsa loquitur. In Soltz v. Colony Recreation (1949), 151 Ohio St. 503, 511, the court explained that:
"* * * before applying the doctrine of res ipsa loquitur, the court must be warranted in taking judicial notice of the fact that the accident does not happen in the ordinary course of events unless there is negligence. * * *"
The Court of Appeals held that the res ipsa loquitur charge by the trial court was proper in this case. That holding is tantamount to saying that the existence of a defect is sufficient to raise an inference of negligence. If this position were accepted, the distinction between strict liability and negligence would disappear in products liability cases.
The judgment of the Court of Appeals is reversed, and final judgment is entered for appellants.
Judgment accordingly.
CORRIGAN, STERN and W. BROWN, JJ., concur.
O'NEILL, C.J., HERBERT and P. BROWN, JJ., concur in the syllabus and in the judgment.