Decided December 31, 1984.
Products liability — Manufacturer need not anticipate all possible uses.
O.Jur 2d Sales § 150.
Under strict tort liability principles for the design of a product, a manufacturer need not anticipate all uses to which its product may be put, nor guarantee that the product is incapable of causing injury in all of its possible uses.
APPEAL from the Court of Appeals for Hamilton County.
This appeal surrounds the death of appellant's decedent, William L. Menifee, from the inhalation of nitrogen gas while in the course of his employment at General Electric Company (hereinafter "General Electric").
The record establishes that the decedent was employed by General Electric to clean transformers and other equipment by using a pressurized stream of aluminum oxide. In addition to compressed air, nitrogen was used in the cleaning process. Liquid nitrogen was stored in a bulk tank and piped to the location where the cleaning took place. The compressed air and nitrogen were released through the same outlet in the grit blast building in which Menifee was working, and the flow of each substance was controlled by certain valves within a system of pipes intended to prevent the nitrogen from mixing with the compressed air.
On the day of the accident, the decedent was wearing a mask and receiving air to breathe from the compressed air supply line. However, the compressor overheated and automatically shut off and, thereafter, the valve system somehow allowed the nitrogen to enter his air supply. Menifee died four days later as a result of oxygen deprivation. Appellant, Ernestine Menifee, administratrix of the estate of William Menifee, subsequently filed this wrongful death action naming several defendants based on the following facts.
In November 1976, the management of General Electric had decided to expand its facilities due to additional sales and maintenance burdens associated therewith. General Electric entered into a contract with appellee KZF Incorporated, an architectural firm, for the design of the grit blast building and air supply lines which would extend from the existing facility to the new building.
General Electric thereafter contracted with appellee J F Harig Company to erect the building and air system as designed. In turn, the construction of the system was subcontracted to appellee Peck, Hannaford Briggs Co. After the system's completion, General Electric contacted appellee Ohio Welding Products, Inc. for installation of a nitrogen gas holding tank and distribution system. The actual mounting, connecting and valving of the nitrogen gas system were performed by appellees A.L. Miller and A.L. Miller Plumbing, Inc. The air compressor was manufactured by appellee Cooper Industries, Inc. and obtained from appellee Highway Rental Equipment Company, Inc.
The building and air system were completed on or about April 27, 1978. It is evident from a review of the record that all work was performed in the manner specified by General Electric. In addition, it is important to note that General Electric did not inform any of the appellees that the compressed air would be used for breathing purposes.
The complaint filed on behalf of the appellant sounds in negligence and strict tort liability. Appellant alleges that Menifee died as a proximate result of the combined and concurrent acts by appellees who should have foreseen their consequences. The trial court granted summary judgment as to all appellees on the basis that no liability existed due to the lack of knowledge that the compressed air was used for breathing purposes. The court of appeals affirmed this ruling.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Waite, Schneider, Bayless Chesley Co., L.P.A., Mr. Stanley M. Chesley and Mr. Kenneth G. Hawley, for appellant.
Messrs. Rendigs, Fry, Kiely Dennis and Mr. Edward R. Goldman, for appellee Ohio Welding Products, Inc.
Bloom Greene Co., L.P.A., Mr. Gordon C. Greene, Mr. Michael D. Eagen and Mr. Lawrence A. Flemer, for appellees A.L. Miller and A.L. Miller Plumbing, Inc.
Messrs. Wood Lamping and Mr. Robert G. Burkhart, for appellee J F Harig Company.
Strauss, Troy Ruehlmann Co., L.P.A., Mr. Douglas G. Cole and Mr. Alan C. Rosser, for appellees KZF Incorporated and Peck, Hannaford Briggs Company.
Messrs. Benjamin, Faulkner, Tepe Sack, Mr. Robert H. Sack and Mr. Thomas R. Yocum, for appellee Cooper Industries, Inc.
Messrs. McIntosh, McIntosh Knabe and Mr. Thomas A. Mack, for appellee Highway Rental Equipment Company, Inc.
The issue presented is whether summary judgment in favor of appellees was proper on the theories of negligence and strict tort liability. For the reasons set forth below, we affirm the appellate court's ruling.
The crux of appellant's negligence argument is that it was foreseeable by appellees that the air supply system would be used by General Electric for breathing purposes. Appellant contends that due to the alleged foreseeable use of the system, a duty arose on the part of appellees to inquire of General Electric as to the system's contemplated use. Thus, argues appellant, appellees would have a duty to prevent any and all foreseeable injuries arising from such use.
It is rudimentary that in order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125 [47 O.O.2d 282]; Feldman v. Howard (1967), 10 Ohio St.2d 189 [39 O.O.2d 228]. The existence of a duty depends on the foreseeability of the injury. Ford Motor Co. v. Tomlinson (C.A. 6, 1956), 229 F.2d 873 [59 O.O. 345]; Gedeon v. East Ohio Gas Co. (1934), 128 Ohio St. 335.
The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Freeman v. United States (C.A. 6, 1975), 509 F.2d 626; Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116 [38 O.O.2d 294]; Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31 [41 O.O. 117]. The foreseeability of harm usually depends on the defendant's knowledge. Thompson, supra.
In determining whether appellees should have recognized the risks involved, only those circumstances which they perceived, or should have perceived, at the time of their respective actions should be considered. Until specific conduct involving an unreasonable risk is made manifest by the evidence presented, there is no issue to submit to the jury. englehardt v. Philipps (1939), 136 Ohio St. 73 [15 O.O. 581]; Prosser Keeton, Law of Torts (5 Ed. 1984) 169, Section 31. Although each appellee raises various arguments in its defense, they all stand on one common ground: General Electric was the only entity with the knowledge required to prevent the decedent's injuries. It was clearly established by the parties before the trial court that only General Electric knew that the compressed air was going to be used for breathing purposes. In fact, General Electric represented to the appellees that the compressed air was going to be used to power air tools. Therefore, in the absence of the requisite knowledge, appellees could not have foreseen or reasonably anticipated the decedent's injuries and, as a matter of law, cannot be held liable for negligence. Johnson v. Kosmos Portland Cement Co. (C.A. 6, 1933), 64 F.2d 193; Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347 [25 O.O. 467].
Addressing her theory of strict tort liability, appellant argues that appellees may be held liable not only where the use of their product was one that was intended, but also where the use of the product for one specific purpose, among other conceivable uses, was, or should have been, perceived by the manufacturer. In support of this proposition, appellant argues that evidence was submitted to the trial court, by way of affidavit and deposition, that air compressors are commonly used in industry to supply breathing air. Appellant further contends that such use of these air compressors has been the subject of articles in industry and trade journals, and that this particular use is governed by safety standards established by the Occupational Safety and Health Administration and the American National Standards Institute. Accordingly, appellant argues that issues of liability have been raised pursuant to the principles of Section 402(A) of 2 Restatement of the Law 2d, Torts (1965) 346-347.
Even assuming that all of the appellees could be held responsible for the production, or the functioning, of the product in question, the facts before us do not permit a finding of strict tort liability. The design of a product cannot be held defective or unreasonably dangerous under Section 402(A) of the Restatement of Torts 2d unless the product is being used in an intended or reasonably foreseeable manner. Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456 [21 O.O.3d 285]. Furthermore, a manufacturer need not anticipate all uses to which its product may be put, nor guarantee that the product is incapable of causing injury in all of its possible uses. Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227 [35 O.O.2d 404]. See, also, Strimbu v. American Chain Cable Company, Inc. (C.A. 6, 1975), 516 F.2d 781; Shumard v. General Motors Corp. (S.D. Ohio 1967), 270 F. Supp. 311 [41 O.O.2d 345]; Jones v. White Motor Corp. (1978), 61 Ohio App.2d 162 [15 O.O.3d 292]; Oropesa v. Huffman Mfg. Co. (1965), 9 Ohio App.2d 337 [38 O.O.2d 390].
In the case sub judice, appellees were told that the air system was to be used to generate power for air tools within the grit blast building. The system, including the air compressor, was specifically designed for this purpose. Appellant has failed to produce any evidence which would lead us to believe that appellees could have reasonably anticipated that the air system was intended for breathing purposes. Therefore, appellees are entitled to summary judgment as a matter of law on this issue. Cf. King v. K. R. Wilson Co. (1983), 8 Ohio St.3d 9.
Accordingly, the judgment of the court of appeals is affirmed.
SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
CELEBREZZE, C.J., and W. BROWN, J., concur in judgment only.