After Multiple Re-Filings Summary Judgment Reversed on Multiple Grounds Court of Appeals of Ohio, Ninth District, Summit County, June 28, 2019

OHIO – The decedent Garry Blakely was employed at Aerospace, a division of the defendant Goodyear Tire & Rubber Company, which contained sub-divisions that manufactured aircraft brake assemblies. The decedent worked in the wheel and brake division, where he drilled, shaped, and incorporated linings into brake assemblies. Upon his diagnosis of mesothelioma in 2014, the decedent sued multiple defendants, including Goodyear. Goodyear moved for summary judgment on product liability, supplier liability, and premises liability, which the trial court granted in full, but prior to the final judgment, the decedent dismissed the case.

In 2017, the decedent’s estate re-filed the case against Goodyear, which again moved for and was granted summary judgment. The plaintiff, Lynn Blakely, as executrix for the estate of Garry Blakely, appealed the lower court’s grant of summary judgment. The Ohio Court of Appeals reversed and remanded, addressed four grounds on which the plaintiff moved, and assigned to the lower court three out of four errors.

First, the court of appeals overruled the plaintiff’s claim that the lower court erred in ruling on a motion filed in a previously dismissed case and adopted the previous court’s analysis and rulings. Not only did Goodyear file a notice of filing of certified documents from the prior case with a motion to rule on them after adopting the previous court’s analysis, which the lower court did, but the lower court also added new analysis. Furthermore, contrary to the plaintiff’s claim, Goodyear re-filed its motion in the re-filed case, to which the plaintiff even filed an opposition.

Second, the court of appeals sustained the plaintiff’s claim that there were issues of material fact as to premises liability. The court of appeals disagreed with the lower court that an unrebutted presumption of compliance with the Ohio safe levels of exposure standard was conclusive of non-liability. Rather, any analysis had to consider Goodyear’s duty to keep its premises safe from hazards and provide notice of any concealed dangers it knew existed, including the fact that Ohio’s standard was not necessarily considered a safe level. The court of appeals further found that evidence as to this issue submitted with the two previous judgments was conflicting and in need of further analysis and clarification.

Third, the court of appeals sustained the plaintiff’s claim that the trial court erred in concluding that the plaintiff’s claim as to product liability was barred as a matter of law based upon the determination that the decedent’s work around brake linings occurred during the manufacturing process. Citing Ohio’s Moeller standard for the proposition that the plaintiff must establish that the offending product must have left a manufacturer’s control in order for a the plaintiff to establish a product liability claim, the lower court found that the decedent’s work with brake linings occurred during the manufacturing process, thereby barring a product liability claim as a matter of law. The court of appeals, however, found it compelling that the decedent worked with brake linings as components parts in a sub-division of Aerospace, which was a division of Goodyear, which was the purported manufacturer of a finished product. In other words, the brake linings arguably left control, setting the stage for a product liability claim under Moeller.

Finally, the court of appeals sustained the plaintiff’s claim that the trial court erred in concluding that the plaintiff’s supplier liability claim was barred on the basis that strict liability on non-manufacturing sellers of defective products did not retroactively apply to products sold before 1977 given that the decedent’s exposure ended in 1968. The court of appeals found that, regardless of this finding, there were still claims based in negligence, to which a statutory 1977 bar did not apply. Therefore, the supplier liability claim remained.

On the above basis of three assignments of error, the court of appeals remanded the lower court’s judgment and remanded the matter for further proceedings consistent with its analyses.

Read the case decision here.

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