Summary Judgment in Favor of Supplier of Insulation Affirmed on Strict Liability, But Reversed on Failure to Warn Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County, May 5, 2016
In this case it is alleged that the decedent, Ian Blandford, was exposed to asbestos while working as a pipefitter from 1955 to 1998. The Edward R. Hart Company (Hart) moved for and was granted summary judgment. The plaintiff appealed.
On appeal the court affirmed the trial court’s granting of summary judgment on strict product liability, but reversed the granting of summary judgment on the failure to warn claim. Regarding strict product liability, the court pointed out that Hart was a supplier of asbestos insulation, not a manufacturer. Under Ohio law, a supplier can be strictly liable when the manufacturer of the product is not subject to judicial process in the state and the claimant would be unable to enforce judgment against the manufacture due to actual or asserted insolvency. Owens Corning, the manufacturer of the insulation supplied by Hart, had filed for bankruptcy in 2000. The court held that the bankruptcy did not prevent Owens from being subject to judicial process. Regarding insolvency, the court held: “although Owens Corning voluntarily filed bankruptcy in October 2000, ‘today [it] is a fully functioning corporation with a trust worth over $1 billion in assets and $8.9 billion in asbestos reserves.”’
On the failure to warn claim, the court set forth that to hold a defendant liable it must be shown there was a duty to warn, that duty was breached, which proximately caused the injury. A supplier will be held liable if the supplier “(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.” The court went on to review the evidence of the case and held: “appellants pointed to specific evidence establishing that genuine issues of material fact remain regarding (1) Hart’s knowledge about the dangers of asbestos, (2) whether Ian was exposed to asbestos-containing products supplied by Hart, and (3) whether those products were a substantial factor in causing Hart’s mesothelioma. Accordingly, we find that genuine issues of material fact remain regarding whether Hart was negligent for failing to warn about the dangers of asbestos.”