Leibreich v. A.J. Refrigeration, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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Leibreich et al., Appellants, v. A.J. Refrigeration, Inc.,
Appellee, et al.
[Cite as Leibreich v. A.J. Refrigeration, Inc. (1993),
Ohio St.3d .]
Torts -- Products liability -- Motion for summary judgment in
products liability case involving custom-built
refrigerated truck improperly granted, when
(No. 92-973 -- Submitted April 21, 1993 -- Decided
September 15, 1993.)
Appeal from the Court of Appeals for Hamilton County, No.
C-910241.
On May 12, 1987, a truck driver for the Fred J. Murphy
Company ("Murphy Company"), a wholesale florist company, drove
a refrigerated delivery truck to a retail florist shop in
Cincinnati, Ohio. The florist shop was located at the top of
an incline. When the driver parked the truck he put the manual
transmission into neutral and engaged the parking brake. He
left the engine running because the engine operated the
refrigeration unit. The driver had been instructed by the
Murphy Company to leave the engine running on hot days to
prevent damage to the flowers in the truck.
While the driver was in the florist shop, the truck began
moving. Informed of this by a person in the store, the driver
ran out and saw the truck rolling down the driveway. Before he
could reach the vehicle, it struck two adults, Mary Beth
Leibreich and Susan Krauss, and two children, Rebecca Leibreich
and Charles Richard Frederickson VanOrnum, and pinned them
against a stone wall. The driver got into the truck,
disengaged the brake and moved the truck away. Each of the
people struck by the truck suffered serious and permanent
injuries.
The delivery truck was a custom-built refrigerated truck
which Richard F. Murphy, Jr., president of the Murphy Company,
ordered in 1984 from Mike Albert Leasing, Inc. ("Mike
Albert"). When he ordered the truck, Murphy requested that it
contain a manual transmission and a diesel engine. The
delivery truck had a 1984 Chevrolet truck cab and chassis; an
insulated box-type body manufactured by Hercules Manufacturing

Company; a refrigeration unit manufactured by Temp Con
Industries, Inc.; and a number of smaller components including
lights and a bumper. The Mike Albert agent purchased the
chassis and cab on his own and contracted with appellee A.J.
Refrigeration, Inc. ("A.J. Refrigeration") for selection and
installation of the refrigeration components. A.J.
Refrigeration is in the business of installing refrigeration
units on vehicles.
The appellants1 brought suit against Jake Sweeney
Chevrolet-Imports, Inc., d.b.a. Jake Sweeney Chevrolet ("Jake
Sweeney"), Mike Albert, and A.J. Refrigeration. In their
complaint, appellants indicated they had settled and released
their claims against the Murphy Company and its driver.
Appellants claimed that Jake Sweeney negligently adjusted or
failed to adjust the emergency brake so that the brake did not
hold the vehicle in place. They also claimed Mike Albert and
A.J. Refrigeration designed, manufactured and supplied a truck
that was not fit for its intended use as an intracounty florist
delivery truck. Specifically they alleged that the design was
negligent because it required the engine to be running to
maintain refrigeration of the flowers, which meant that the
manual transmission could not act as a secondary braking
system. Appellants claimed that given the use which was
intended, Mike Albert and A.J. Refrigeration should have
replaced the ratchet-style parking brake with a braking system
which could not be partially engaged and would have held the
truck stationary "even in a condition of misadjustment equal to
the one present in the vehicle on the date of the accident."
Appellants also claimed Mike Albert and A.J. Refrigeration were
negligent in failing to warn that the truck should not be left
unattended with the engine running and that special care had to
be taken to maintain and engage the parking brake if the truck
was left unattended with the engine running. In addition to
the negligence claims, appellants alleged that Mike Albert and
A.J. Refrigeration were subject to strict liability in tort
because the delivery truck's design benefits were outweighed by
the inherent risks of the design and that the truck was
unreasonably dangerous absent specific warnings.
Appellants settled their claims against Jake Sweeney and
Mike Albert. A.J. Refrigeration filed a motion for summary
judgment in which it claimed: (1) it did not sell,
manufacture or assemble the truck so as to be subject to a
claim of strict liability in tort; (2) it had no duty to warn
of any potential problems because of its limited role in the
preparation of the truck; and (3) even if it could be liable
under products liability law, the acts of the driver in leaving
the engine running and unattended constituted an intervening
and superseding cause of appellants' injuries.
The trial court granted, without opinion, the motion for
summary judgment as to all of the claims against A.J.
Refrigeration. The court of appeals affirmed the judgment of
the trial court on the ground that the actions of the driver
were the intervening and superseding causes of the accident.
The court determined that it "need not address the appellants'
argument regarding A.J. Refrigeration's status as a designer
and assembler of the truck."
This cause is now before this court pursuant to the

allowance of a motion to certify the record.

Montgomery, Rennie & Jonson, George D. Jonson and Kelly
Carbetta Scandy; Graydon, Head & Ritchey and Barbara Scott
Bison; Keating, Muething & Klekamp and Louis F. Gilligan, for
appellants.
McIntosh, McIntosh & Knabe and Thomas A. Mack, for
appellee.

Wright, J. This case presents the issue of whether
summary judgment for A.J. Refrigeration was appropriate either
(1) because the truck driver's actions in leaving the vehicle
running and unattended were unforeseeable, intervening, and
superseding causes of the appellants' injuries, (2) because
A.J. Refrigeration is not a manufacturer or assembler of the
truck so as to be subject to strict liability in tort or (3)
because A.J. Refrigeration had no duty to warn users of the
truck. For the reasons stated below we find that the trial
court erred in granting A.J. Refrigeration's motion for summary
judgment.
Under Civ. R. 56, summary judgment is proper when: "(1)
No genuine issue as to any material fact remains to be
litigated; (2) the moving party is entitled to judgment as a
matter of law; and (3) it appears from the evidence that
reasonable minds can come to but one conclusion, and viewing
such evidence most strongly in favor of the party against whom
the motion for summary judgment is made, that conclusion is
adverse to that party." Temple v. Wean United, Inc. (1977), 50
Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.
We have repeatedly stated that trial courts should award
summary judgment with caution, being careful to resolve doubts
and construe evidence in favor of the nonmoving party. Murphy
v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138. On
the other hand, we do not wish to discourage this procedure
where a plaintiff fails to respond with evidence supporting the
essentials of its claim. Summary judgment is appropriate when
the nonmoving party does not "produce evidence on any issue for
which that party bears the burden of production at trial."
(Citation omitted.) Wing v. Anchor Media, Ltd. of Texas
(1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of
the syllabus.
I
We have recognized that the existence of intervening and
superseding causes of injury can be a defense to actions
brought under theories of both negligence and strict liability
in tort. Mudrich v. Standard Oil Co. (1950), 153 Ohio St. 31,
41 O.O. 117, 90 N.E.2d 859; R.H. Macy & Co., Inc. v. Otis
Elevator Co. (1990), 51 Ohio St.3d 108, 554 N.E.2d 1313,
syllabus.
We have also repeatedly recognized that the issue of
intervening causation generally presents factual issues to be
decided by the trier of fact. Merchants Mut. Ins. Co. v. Baker
(1984), 15 Ohio St. 3d 316, 318, 15 OBR 444, 446, 473 N.E.2d
827, 828-829; Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d
155, 160, 6 OBR 209, 214, 451 N.E.2d 815, 820; Mudrich, supra,
153 Ohio St. at 40, 41 O.O. at 121, 90 N.E.2d at 864. The
determination of intervening causation "involves a weighing of

the evidence, and an application of the appropriate law to such
facts, a function normally to be carried out by the trier of
the facts." Cascone, supra, 6 Ohio St.3d at 160, 6 OBR at 214,
451 N.E.2d at 820. In Cascone we established the test to be
used to determine whether the intervening act was foreseeable
and therefore a consequence of the original negligent act or
whether the intervening act operates to absolve the original
actor. "The test *** is whether the original and successive
acts may be joined together as a whole, linking each of the
actors as to the liability, or whether there is a new and
independent act or cause which intervenes and thereby absolves
the original negligent actor." Id. at 160, 6 OBR at 214, 451
N.E.2d at 819 (citing Mudrich, supra, and Mouse v. Cent. Sav. &
Trust Co. [1929], 120 Ohio St. 599, 167 N.E. 868).
In R.H. Macy, supra, we approved of the use of a jury
instruction on superseding causation which stated in part:
"'The causal connection of the first act of negligence is
broken and superseded by the second, only if the intervening
negligent act is both new and independent. The term
"independent" means the absence of any connection or
relationship of cause and effect between the original and
subsequent act of negligence. The term "new" means that the
second act of negligence could not reasonably have been
foreseen.'" (Emphasis sic.) Id., 51 Ohio St.3d at 111, 554
N.E.2d at 1317, quoting 1 Ohio jury Instructions (1983),
Section 11.30. Thus, the key determination "'[w]hether an
intervening act breaks the causal connection between negligence
and injury depends upon whether that intervening cause was
reasonably foreseeable by the one who was guilty of the
negligence.'" (Emphasis deleted.) R.H. Macy, supra, at 110,
554 N.E.2d at 1316, quoting Mudrich, supra, 153 Ohio St. at 39,
41 O.O. at 121, 90 N.E.2d at 863.
In the present case, the court of appeals saw "no reason
to conclude that it was foreseeable that [the driver] would
leave the truck running and unattended during deliveries."
Appellants presented evidence that A.J. Refrigeration knew the
following: (1) the truck was intended for the purpose of
delivering flowers in the Cincinnati area, which is, in places,
quite hilly; (2) the flowers needed to be refrigerated to forty
degrees; (3) the refrigeration unit could not operate without
the engine running; (4) the temperature inside the truck would
rise ten degrees in ten to fifteen minutes if the refrigeration
unit was not operating; (5) in order to leave the engine
running while the truck was unoccupied, the manual transmission
had to be placed in neutral; (6) with the transmission in
neutral the only braking system was the ratchet-type emergency
brake. In light of this evidence, we cannot agree with the
court of appeals that no reasonable mind could conclude that it
was foreseeable that the driver would leave the engine running
when he left the truck to make a delivery. Therefore we
reverse the judgment of the court of appeals on this issue.
II
The court of appeals did not address the question of
whether A.J. Refrigeration is a manufacturer or assembler so as
to be subject to strict liability in tort. A.J. Refrigeration
based its motion for summary judgment on the issue of
intervening causation and also on the claim that it was not a

manufacturer or assembler and was not, therefore, strictly
liable in tort. The trial court granted the motion without
opinion. Therefore we must address this latter issue on appeal
because it is a possible independent ground for the trial
court's decision.
A.J. Refrigeration argues that it is not a manufacturer of
refrigerated delivery trucks but is only engaged in the
installation and servicing of refrigeration units. Since there
is no allegation that the refrigeration unit was defective or
negligently installed, A.J. Refrigeration claims it is not
liable for appellants' injuries.
Appellants argue that A.J. Refrigeration played the most
decisive role in creating the delivery truck and that it
created a new product, allegedly a defective product, through
its design and assembly of components. In support of this
allegation, appellants introduced evidence that: (1) A.J.
Refrigeration is in the business of installing refrigeration
units in vehicles; (2) Mike Albert had previously contracted
with A.J. Refrigeration to design and build components; (3)
Mike Albert dealt with A.J. Refrigeration as a modifier and
relied on it to point out needed safety changes; (4) A.J.
Refrigeration made decisions about the type of insulated body
and refrigeration unit to install; (5) Mike Albert relied on
A.J. Refrigeration's design expertise to assemble the requisite
components to achieve the desired function of the vehicle; (6)
Mike Albert expected A.J. Refrigeration to make any safety
changes or recommend safety changes necessitated by the
modifications requested by the customer; (7) Mike Albert and
A.J. Refrigeration agreed to the modifications which A.J.
Refrigeration would make; (8) A.J. Refrigeration contracted
with Hercules Manufacturing Company to mount the insulated body
on the chassis; (9) A.J. Refrigeration then installed the
refrigeration unit and completed the modifications; (10)
following assembly, A.J. Refrigeration tested the unit by
leaving the engine running and the truck unattended with the
manual transmission in neutral.
This cause of action arose prior to the effective date of
the Product Liability Act, R.C. 2307.71 through 2307.80.
However, as we noted in Anderson v. Olmsted Util. Equip., Inc.
(1991), 60 Ohio St.3d 124, 573 N.E.2d 626, although this
legislation is not technically applicable to cases arising
before it was enacted, it "lends insight" into our analysis of
whether A.J. Refrigeration may be a manufacturer for purposes
of imposition of strict liability in tort. Id. at 127, 573
N.E.2d at 629. R.C. 2307.71(I) provides:
"'Manufacturer' means a person engaged in a business to
design, formulate, produce, create, make, construct, assemble,
or rebuild a product or a component of a product." (Emphasis
added.)
Under this definition an entity is a manufacturer if it
assembles components into a design which creates a product. As
a manufacturer, it can be subject to strict liability in tort
if the product so created is defective and unreasonably
dangerous.
Support for the view that a manufacturer who puts
nondefective components together to make a defective product is
subject to strict liability in tort is also implicit in our

discussion of the liability of a manufacturer of a nondefective
component in Temple v. Wean, supra. In Temple we said: "[T]he
obligation that generates the duty to warn does not extend to
the speculative anticipation of how manufactured components,
not in and of themselves dangerous or defective, can become
potentially dangerous dependent upon the nature of their
integration into a unit designed and assembled by another."
(Emphasis added.) Id., 50 Ohio St.2d at 324, 4 O.O.3d at 470,
364 N.E.2d at 272.
This is precisely the allegation which appellants make as
to the role of A.J. Refrigeration in creating the refrigerated
delivery truck. They claim that A.J. Refrigeration integrated
the nondefective components of the cab-chassis and
refrigeration unit into a dangerous and defective delivery
truck. Given A.J. Refrigeration's role in the design and
assembly of the truck, appellants claim that A.J. Refrigeration
is responsible for ensuring that the delivery truck was safe
for its intended use. Appellants argue that A.J. Refrigeration
should have recommmended and included in the design a different
braking system which would have held the truck stationary when
it was left unattended with the engine running.
The evidence on the issue of whether A.J. Refrigeration
was a manufacturer for purposes of strict liability in tort
supports competing inferences. Determining how much input and
final control A.J. Refrigeration had over the design and
assembly process is a question for the jury to determine.
Therefore granting summary judgment on this issue was
inappropriate.
III
With regard to the remaining portion of the motion for
summary judgment which addressed appellants' claims that A.J.
Refrigeration failed to warn users of the truck, A.J.
Refrigeration makes two arguments.2 First, it relies on the
previously quoted language in Temple v. Wean concerning the
liability of manufacturers of nondefective components. Second,
it argues that the dangers of leaving a truck unattended with
the transmission in neutral and the engine running are so
obvious that A.J. Refrigeration had no duty to warn.
A.J. Refrigeration's reliance on Temple v. Wean is
misplaced. This argument would apply to the manufacturers of
the cab-chassis, the insulated body, and the refrigeration unit
because none of those components, standing alone, was defective
and none of those manufacturers participated in the design and
assembly of the final product, the refrigerated delivery
truck. The question of whether the refrigerated delivery truck
was defective and dangerous arises as a result of the assembly
of these components into the final product, coupled with an
understanding of the truck's intended use. It is A.J.
Refrigeration's alleged unique role in the design and assembly
of the final product which is at issue in this case.
A.J. Refrigeration's second argument, that it had no duty
to provide a warning, is based on 2 Restatement of the Law 2d,
Torts (1965), Section 402 A, Comment j, which states:
"Directions or Warning. In order to prevent the product
from being unreasonably dangerous, the seller may be required
to give directions or warning, on the container, as to its use.
***

"But a seller is not required to warn with respect to
products, *** when the danger, or potentiality of danger, is
generally known and recognized. ***"
A.J. Refrigeration argues that the danger of leaving the
truck unattended with the engine running and the parking brake
either improperly engaged or improperly serviced was generally
known and recognized so that A.J. Refrigeration was not
required to give any warning. Appellants argue that A.J.
Refrigeration knew or should have known that to use the truck
for its intended purpose the truck would be left unattended
with the engine running. Given this situation, appellants
argue a specific warning was required, including a warning that
special care needed to be exercised in maintaining and engaging
the parking brake since it functioned as the sole braking
system when the truck was left unattended with the engine
running. As with appellants' other claims, the competing
inferences raised by the evidence, as discussed more
particularly in Parts I and II above, make summary judgment
inappropriate on appellants' claims alleging A.J.
Refrigeration's failure to warn.
IV
Although this case presents a number of close questions,
especially the claims alleging a duty to warn, for the reasons
stated above, we find that the evidence, when construed most
strongly in appellants' favor, is sufficient to preclude
summary judgment on appellants' claims against A.J.
Refrigeration. Therefore, we reverse the judgment below and
remand the cause to the trial court for further proceedings.
(Judgment reversed
and cause remanded.)
Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.

FOOTNOTE:
1 The appellants are Mary Beth Leibreich, Patrick
Leibreich (individually and as parent and guardian of Rebecca
Leibreich), Susan Krauss, Robert Krauss (individually and as
parent and guardian of Shannon Marie Krauss, Robert Andrew
Krauss and Jeffrey Roger Krauss), Charles W. VanOrnum and Swann
E. Fredrickson (individually and as parent and guardian of
Charles Richard Fredrickson VanOrnum).
2 Appellants alleged a failure to warn under both
negligence and strict liability theories. In their complaint
appellants claimed:
"39. Mike Albert Leasing, Inc. and A.J. Refrigeration,
Inc. were negligent in their failure to warn potential users of
the delivery vehicle that the delivery vehicle should not be
left unattended with the engine running and the transmission in
neutral. Mike Albert Leasing, Inc. and A.J. Refrigeration,
Inc. were also negligent in failing to warn potential users of
the delivery vehicle, that if the vehicle was left unattended
with the engine running and the transmission in neutral, the
vehicle had only one parking system and that the parking system
was a ratchet-type parking brake and, further that special care
had to be taken to ensure the parking brake was in adjustment
and was fully engaged before the vehicle was left unattended.
"***

"44. The delivery vehicle was defective because it was
unreasonably dangerous absent warnings that the vehicle should
not be left unattended with the engine running and the
transmission in neutral.
"45. The delivery vehicle was defective because it was
unreasonably dangerous absent warnings that should the vehicle
be left unattended with the engine running and the transmission
in neutral, the vehicle had only one parking system and that
the parking system was a ratchet-type parking brake and,
further that special care had to be taken to ensure the parking
brake was in adjustment and was fully engaged before the
vehicle was left unattended."
In Crislip v. TCH Liquidating Co. (1990), 52 Ohio St.3d
251, 556 N.E.2d 1177, paragraph three of the syllabus, we held
that "[t]he standard imposed upon the defendant in a strict
liability claim grounded upon an inadequate warning is the same
as that imposed in a negligence claim based upon inadequate
warning." That standard is "that the manufacturer knew, or
should have known, in the exercise of ordinary care, of the
risk or hazard about which it failed to warn" and "the
manufacturer failed to take the precautions that a reasonable
person would take in presenting the product to the public."
Id. at 257, 556 N.E.2d at 1182-1183.
Douglas, J., concurring. I concur with the majority in
its disposition of this case. I write separately to point out
that we are reviewing the judgment of the court of appeals --
not the judgment of the trial court. This is important to note
because the majority, in Part II of its opinion, says that
"[t]he court of appeals did not address the question of whether
A.J. Refrigeration is a manufacturer or assembler so as to be
subject to strict liability in tort. * * *" Notwithstanding
this finding, the majority then says, without benefit of
opinion or judgment by the court of appeals on the issue, that
"* * * we must address this latter issue on appeal because it
is a possible independent ground for the trial court's
decision."
This all seems a bit strange, given that we were recently
admonished that "[t]his court, however, is constitutionally
limited to deciding only issues directly presented by an
individual case." Gallimore v. Children's Hosp. Med. Ctr.
(1993), 67 Ohio St.3d , , N.E.2d , (Wright,
J., dissenting). Clearly, by the majority's own admission in
the case at bar, the issue being decided in Part II of the
opinion cannot be properly before us because the court of
appeals never even considered the issue.
I concur.