Carrel v. Allied Products Corp.

Francis E. Sweeney, Sr., J. This case presents three issues for our review. First, we are asked to decide whether a common-law cause of action, negligent design, survives the enactment of R.C. 2307.71 et seq., the Ohio Products Liability Act. In addition, the court is asked to determine whether the law applicable to assumption of the risk as set forth in Cremeans v. Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145, 566 N.E.2d 1203, is available under R.C. 2307.71 et seq. Finally, we must decide whether summary judgment was erroneously entered in the manufacturer’s favor. For the following reasons, we answer these questions in the affirmative. Accordingly, the judgment of the court of appeals is reversed. I We must first decide whether a common-law cause' of action for negligent design survives the enactment of the Products Liability Act. The court of appeals found that the General Assembly, by codifying products liability law, had abrogat — 287 — ed the common-law negligent design claim.1 In reaching this determination, the appellate court considered the General Assembly’s failure to specifically mention the common-law negligent design cause of action in either R.C. 2307.72 or R.C. 2307.78(A)(1).2 The court concluded that the statutes’ silence meant that the General Assembly had chosen to eliminate this type of action against a manufacturer. Although Allied agrees with the court of appeals’ determination that the Act abrogates common-law causes of action against a manufacturer for products liability, it bases its argument on R.C. 2307.71(M) and 2307.73, in addition to R.C. 2307.72. We find these assertions and conclusions contrary to well-established rules of statutory construction, as well as this court’s recent decision in McAuliffe v. W. States Import Co., Inc. (1995), 72 Ohio St.3d 534, 651 N.E.2d 957. According to principles of statutory construction, the General Assembly will not be presumed to have intended to abrogate a common-law rule unless the language used in the statute clearly shows that intent. State ex rel. Morris v. Sullivan (1909), 81 Ohio St. 79, 90 N.E. 146, paragraph three of the syllabus. Thus, in the absence of language clearly showing the intention to supersede the common law, the existing common law is not affected by the statute, but continues in full force. Id. “There is no repeal of the common law by mere implication.” Frantz v. Maher (1957), 106 Ohio App. 465, 472, 7 O.O.2d 209, 213, 155 N.E.2d 471, 476. R.C. 2307.71(M)3 defines the statutory products liability claim. Although couched in broad language, this definition does not mention or otherwise discuss the common-law action of negligent design. More important, there is no explicit statement that this definition was meant to abolish common-law actions sounding — 288 — in negligence.4 The same can be said about R.C. 2307.73. This section provides that a manufacturer is subject to liability for compensatory damages based on a products liability claim if the claimant establishes that the product is defective as found within the specific subsections of the Act addressing manufacture (R.C. 2307.74), design (R.C. 2307.75), warning (R.C. 2307.76), or representation (R.C. 2307.77). Again, there is no explicit statement that they are the only products liability claims that may be pursued against a manufacturer. But Allied argues that the General Assembly did clearly express its intention that all products liability claims must be brought pursuant to R.C. 2307.71 et seq. Allied relies upon the statement of R.C. 2307.72(A) that any recovery for compensatory damages on a products liability claim is subject to R.C. 2307.71 to 2307.79. However, as amicus curiae, the Ohio Academy of Trial Lawyers, aptly points out, the phrase “subject to” is not strong enough to completely eliminate unmentioned common-law theories. The rule of strict construction refuses to extend the law by implication or inference and recognizes nothing that is not expressed. Accordingly, it would be a departure from well-recognized principles of statutory construction to read into a statute words not found in its text. Iron City Produce Co. v. Am. Ry. Express Co. (1926), 22 Ohio App. 165, 153 N.E. 316. Further support for this interpretation can be found in R.C. 2307.75, which addresses design defects. This section merely codifies the strict liability common-law theories embraced in Leichtamer v. Am. Motors Corp. (1981), 67 Ohio St.2d 456, 21 O.O.3d 285, 424 N.E.2d 568, and Knitz v. Minster Machine Co. (1982), 69 Ohio St.2d 460, 23 O.O.3d 403, 432 N.E.2d 814. Again, the statute is silent as to the common-law negligent design claim. This reasoning is also supported by this court’s decision in McAulijfe, supra, where the majority implicitly recognized that the Products Liability Act did not supplant the common law applicable to products liability claims. This court specifically held in its syllabus that the Act “does not provide a cause of action that would not exist but for the statute.” In reaching this holding, the court reversed an appellate court decision that had applied the statute of limitations for liabilities created by statute to a products liability claim. The appellate court did so because it found that the new products liability law contained in R.C. 2307.71 et seq. had abrogated actions at common law. The McAulijfe majority held that the court of appeals had applied an incorrect test and, instead, should have focused on whether the cause of action would not have existed “but for” the new — 289 — statute. The majority stated that “[a]ny statutory ‘modification, alteration or conditioning’ of a common-law cause of action which falls short of creating a previously unavailable cause of action does not transform that cause of action into ‘an action * * * upon a liability created by statute.’ ” Id., 72 Ohio St.3d at 538, 651 N.E.2d at 960. Since products liability actions preceded the adoption of the new law, the majority concluded the “but for” test was not satisfied, making the limitations period for liabilities created by statute inappropriate. Id. at 538-539, 651 N.E.2d at 960-961. In two later cases, Justice Douglas correctly remarked that “[g]iven the majority opinion in McAuliffe, it should now be understood that all common-law products liability causes of action survive the enactment of R.C. 2307.71 et seq., the Ohio Products Liability Act, unless specifically covered by the Act because the Act, according to the majority in McAuliffe, ‘ * * * falls short of creating a previously unavailable cause of action * * (Emphasis sic.) Byers v. Consol. Aluminum Corp. (1995), 73 Ohio St.3d 51, 52, 652 N.E.2d 643, 644 (Douglas, J., dissenting); Curtis v. Square-D Co. (1995), 73 Ohio St.3d 79, 652 N.E.2d 664 (Douglas, J., dissenting). Accordingly, we hold that the common-law action of negligent design survives the enactment of the Ohio Products Liability Act, R.C. 2307.71 et seq. II We are next asked to construe Cremeans v. Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145, 566 N.E.2d 1203, as applied to actions accruing after the effective date of the Products Liability Act. At common law, the notion developed that the affirmative defense of assumption of the risk was an absolute bar to recovery in a products liability case for a plaintiff who voluntarily and unreasonably assumed a known risk. Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St.3d 296, 31 OBR 576, 511 N.E.2d 388, syllabus. The General Assembly has endorsed this defense in products liability cases codified in R.C. 2307.71 et seq. See R.C. 2315.20. For the defense of assumption of the risk to act as a bar to recovery of damages, the defendant must establish that the plaintiff knew of the condition, that the condition was patently dangerous, and that the plaintiff voluntarily exposed himself or herself to the condition. Goodin v. Corry (1982), 5 Ohio App.3d 178, 5 OBR 362, 450 N.E.2d 727. Ordinarily, assumption of the risk is a question of fact, to be resolved by the factfinder. Id. However, the issue presented here is whether, in light of this court’s decision in Cremeans, this defense is available in a products liability action when the plaintiff is injured in the workplace. In Cremeans, an employee was injured while operating a loader inside a fertilizer bin when an avalanche of fertilizer caused the rear wheels of the loader — 290 — to lift, wedging the employee between the seat and an overhead structure inside the bin. The loader was alleged to be defective because it did not have a protective cage. The employee knew that avalanches occurred and was concerned that the loader did not have a protective cage, but continued to usé the loader because it was his job to do so. The employer intentionally ordered the loader without this safety feature because the bins were too small to use the loader with a cage. The lead opinion noted the reality that an employee often has little choice as to whether he or she will encounter risks in the employment setting. The opinion noted that the fear of dismissal and the prospect of finding new employment in a limited job market precludes the type of voluntary behavior required to sustain a defense of assumption of the risk. The syllabus, however, merely holds that “[a]n employee does not voluntarily or unreasonably assume the risk of injury which occurs in the course of his or her employment when that risk must be encountered in the normal performance of his or her job duties and responsibilities.” (Emphasis added.) Justice Herbert R. Brown’s concurring opinion emphasized that the syllabus is not a departure from established law. Justice Brown further remarked that while there may be instances in which an employee may be forced to use a defective product in order to keep his or her job, there are also instances in which an employee simply elects to use the product without any compulsion from the employer. As to the latter, Justice Brown concluded that assumption of the risk was still a valid defense which could be asserted by a manufacturer. According to Justice Brown, the focus is on the voluntariness of the employee’s behavior. We believe that Justice Brown’s concurrence sets forth the applicable law. The majority in Cremeans did not relieve an employee from all responsibility for his or her own safety simply because he or she was at work. Therefore, we reject appellant’s assertion that Cremeans abolishes the defense of assumption of the risk in all cases involving a work-related injury. However, we find that this defense is unavailable in those situations where the job duties require the employee to encounter the risk, and the employee is injured while engaging in normal job-related tasks. Accordingly, we hold that in a products liability case, assumption of the risk may be a viable defense against an employee injured by a defective product in the workplace. An employee will be deemed to have voluntarily exposed himself or herself to a risk when he or she has elected to use a defective product. However, the defense of assumption of the risk is not available when the employee is required to encounter the risk while performing normal job duties. Here, there is some question as to whether appellant voluntarily assumed the risk. Appellant’s supervisor testified that although appellant had been trained in — 291 — the procedures for adjusting the dies, and was aware that he needed first to pull the safety cord, or to use one of the other safety devices when adjusting a misaligned part, he failed to follow these procedures. However, there is also evidence that the press was dangerous because of the inability of the operator to see someone in the die area. Appellant’s experts averred that barrier guards which would have electrically interlocked in the inch mode would have eliminated the risk. This feature was available at the time the press was designed, and had been incorporated into other Verson Transmat presses. Additionally, appellant testified that his co-worker observed him working in the die space. Further, he did not anticipate that his co-worker would activate the press without being told to do so. Thus, there is a question as to whether appellant appreciated the full danger of the press. In light of this evidence, a reasonable jury could determine that appellant did not appreciate or voluntarily encounter the risk associated with the press.5 Ill Finally, as to both the statutory and common-law claims, we are asked to decide whether summary judgment was appropriately entered. We find that it was not. Appellant presented evidence that it was foreseeable that two men would work on the press at the same time and that their hands would be engaged in the danger areas. Moreover, expert evidence revealed that if the press had been designed with barrier guards which would have electrically interlocked in the inch mode, the injury would have been prevented. Appellant also presented evidence that Whirlpool was never warned of this danger. Additionally, appellant’s evidence revealed that the warning devices in place failed to provide the proper protection. The deposition testimony and affidavits revealed that the warning horn merely caused confusion because it was frequently activated and was similar sounding to other horns in the room. Additionally, the emergency stop buttons were not adequately accessible. . Because questions of fact remain, we reverse the summary judgment and remand the cause to the trial court for a trial on the merits. Judgment reversed and cause remanded. — 292 — Douglas, Resnick, Pfeifer and Lundberg Stratton, JJ., concur. Moyer, C.J., and Cook, J., dissent in part and concur in part. Footnotes [1] At common law, products liability law, an outgrowth of the laws of contracts and negligence, evolved as a separate, identifiable body of law. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, 279, 31 OBR 559, 561, 511 N.E.2d 373, 375. While products liability cases often involved issues of negligence as well as strict liability, these doctrines have consistently been regarded as complementary but distinct. Id. [2] In R.C. 2307.72, the General Assembly clearly expressed its intent that nonstatutory forms of relief not be superseded in the area of environmental actions. R.C. 2307.78(A)(1) expressly provides that a negligence action may be brought against a supplier. [3] As defined 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 * * * for * * * physical injury to person * * * that allegedly arose from any of the following: “(1) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product; “(2) Any warning or instruction, or lack of warning or instruction, associated with that product; “(3) Any failure of that product to conform to any relevant representation or warranty.” [4] Compare R.C. 2901.03, where the General Assembly clearly expressed its intention to replace common-law criminal offenses: “No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Ohio Revised Code.” [5] The doctrine of assumption of the risk also applies to appellant’s negligent design claim. Anderson v. Ceccardi (1983), 6 Ohio St.3d 110, 6 OBR 170, 451 N.E.2d 780; R.C. 2315.19. However, as applied to this claim, the plaintiffs assumption of the risk is not a complete bar to recovery. Instead, it operates to reduce his recovery if the jury finds that the assumption of the risk amounted to fifty percent or less of the total responsibility for the injuries incurred. Id.