Horstman v. Farris , 132 Ohio App. 3d 514 ( 1999 )

The trial court granted summary judgment for Testor Corporation ("Testor") on the Horstman's claim for relief, holding that Testor's alleged negligence was not a proximate cause of the harm the Horstmans suffered. I do not agree. Proximate cause exists in the causal relationship between events, and on this record Testor's failure to add an adulterating ingredient to its aerosol propellant was causally connected to the harm the Horstmans suffered. However, Testor is not legally liable for that harm unless the harm was reasonably foreseeable to Testor.

Pursuant to R.C. 2307.75(A)(1), "a manufacturer may be liable for failing to use a feasible alternative design that would have prevented harm caused by an unintended but reasonably foreseeable use of its product." Perkins v. Wilkinson Sword, Inc. (1998), 83 Ohio St.3d 507,513. The Horstmans concede that "huffing" was an unintended use of Testor's aerosol propellant. However, on this record, it was a reasonably foreseeable use, and Testor had a feasible design alternative that could have avoided it. Therefore, Testor may be liable to any person or persons harmed as a result if Testor had a duty to protect them from such harm.

Intervention of a conscious and responsible human agency between a prior negligent act and an injury absolves the prior actor of liability for any negligence on his part to persons who are injured as a proximate result of that negligence when the agency could or should have eliminated the hazard involved. That is generally the case when the intervening agency involves commission of a wrongful act. However, the prior actor may yet be held liable if it had a specific duty to protect those injured from the harm that occurred. Monnin v. Fifth Third Bank of Miami Valley,N.A. (1995), 103 Ohio App.3d 213.

In Monnin, supra, we found that a regulation requiring installation of alarms created a specific duty in the defendant bank, which it had breached. Because that specific duty operated to the benefit of the customers who entered the bank, we held that the bank may be liable to customers who were harmed by a bank robber when the harm proximately resulted from the bank's breach of duty.

Here, Testor had no specific duty to protect the Horstmans or passers-by from harm resulting from a purchaser's misuse of Testor's product. In contrast to Monnin, supra, no statute or regulation required Testor to add an adulterating ingredient to its product. Therefore, no similar breach of duty is demonstrated.

The point of distinction between proximate cause and foreseeability is elusive, but important. Foreseeability is an element of duty, which exists in the relationship between people and results by operation of law. Proximate cause exists in the relationship between events, and is a question of fact. Therefore, the existence of proximate cause generally cannot be resolved on a motion for summary judgment, which the trial court did here. The existence of a legal duty may be thus resolved, however. On this record, the proper basis on which to grant the motion is a finding of lack of legal duty, not failure of proximate cause.

I would overrule the first assignment of error on the foregoing basis.