COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60755 DANIEL J. LYON : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : JEEP CORPORATION, ET AL. : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-180609 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: THOMAS J. DORCHAK 853 LEADER BUILDING CLEVELAND, OHIO 44114 For Defendant-Appellee: CHARLES E. BROWN STEPHEN B. AYERS Crabbe, Brown, Jones, Potts & Schmidt 2500 One Nationwide Plaza Columbus, Ohio 43215 -2- SPELLACY, J.: On December 11, 1989, at approximately 4:50 P.M., plaintiff- appellant Daniel Lyon ("appellant") was driving his 1985 Jeep CJ- 7 westbound on the West Shoreway Drive in the City of Cleveland, Ohio. Driving at about 50 to 60 m.p.h., appellant lost control of the vehicle and struck the dividing wall. After hitting the dividing wall, appellant veered to the right and crossed the two lanes of traffic. Appellant's vehicle struck the curb and then rolled over. At some point after hitting the curb, appellant was ejected from the vehicle and landed approximately 15 to 18 feet from where the vehicle ended up. The seat belts in the vehicle were in operating condition, but appellant could not remember whether he was wearing a seat belt on that particular day. The police report indicated that appellant was not wearing a seat belt. After the accident, appellant spent two months in the hospital. He broke about 12 ribs, ruptured his spleen, tore his liver and pancreas, and compressed his kidneys. Appellant was required to have surgery and wear a sling for a damaged collarbone. On December 8, 1989, appellant filed a three- count complaint against defendants-appellees Jeep Corporation, 1 American Motors Corporation, and Fairchild AMC/Jeep-Renault. In his first count, appellant alleged strict liability, claiming that the Jeep CJ-7 was far more dangerous than the ordinary 1 Jeep Corporation and American Motors Corporation are related corporations who designed, manufactured and assembled the Jeep CJ-7. Fairchild AMC/Jeep-Renault sold the CJ-7 to appellant. -3- customer would expect. Appellant alleged in his second count a breach of warranty, and in his third count, appellant alleged negligence in the designing of the Jeep CJ-7. Appellant sought compensation for injuries that were enhanced by appellees' conduct. Appellant did not claim that the alleged defect of the Jeep CJ-7 or the conduct of appellees caused the accident. Appellant alleged that he was not properly protected during the roll-over sequence of the Jeep CJ-7. On August 9, 1990, appellees filed a motion for summary judgment. Appellees argued that there was no evidence that there was a defect in the Jeep CJ-7 manufactured by them. Appellant could not remember the accident and the investigating officers could not find any defects that caused or contributed to the accident. Appellees further argued that there was no evidence that the alleged defect proximately contributed to or enhanced appellant's injuries. In support of their motion for summary judgment, appellees cited to the depositions of appellant, the two investigating police officers and an eyewitness. On September 10, 1990, appellant filed his brief in opposition to appellees' motion for summary judgment. Appellant initially pointed out that appellees' motion for summary judgment only pertained to his claim of strict liability. Appellant asserted that appellees' motion failed to address his claims for breach of warranty and negligence. -4- With respect to his strict liability claim, appellant con- tended that there existed a genuine issue of material fact as to whether the Jeep CJ-7 was more dangerous in use than the ordinary consumer would expect. Appellant attached his own affidavit in support of his brief in opposition. In his affidavit, appellant stated that "he believed that he would have significant protection in the event that his Jeep" would turn over. On October 5, 1990, the trial court granted appellees' motion for summary judgment. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT ERRED IN SO FAR (SIC) AS THE COURT GRANTED THE DEFENDANTS A SUMMARY JUDG- MENT BASED UPON THE LAW WHICH THE DEFENDANTS URGED THE COURT TO APPLY TO THE CASE. II. THE TRIAL COURT ERRED IN DETERMINING THAT THE RECORD FOR THIS CASE, WHEN REVIEWED UNDER THE APPLICABLE LAW, LACKED EVIDENCE SUFFICIENT TO RAISE GENUINE FACTUAL ISSUES WHICH WOULD MAKE IT INAPPROPRIATE TO GRANT THE DEFENDANTS A SUMMARY JUDGMENT IN THIS CASE. III. THE TRIAL COURT ERRED IN DETERMINING THAT THE DEFENDANTS, UNDER THE APPLICABLE LAW, CREATED A SUFFICIENT RECORD TO ESTABLISH A RIGHT TO A SUMMARY JUDGMENT IN THIS CASE. Appellant's assignments of error will be discussed together, since they all pertain to the propriety of the trial court's order granting summary judgment in favor of appellees. Civ. R. 56(C) provides in pertinent part: A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that rea- sonable minds can come to but one conclusion -5- and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. Therefore, a Civ. R. 56(C) motion for summary judgment can only be granted when the moving party demonstrates: (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. Further, upon an appeal from a summary judgment, the reviewing court should look at the record in the light most favorable to the party opposing the motion. Campbell v. Hospitality Motor Inns, Inc. (1986), 24 Ohio St. 3d 54, 58. We initially turn to the question of whether summary judgment was properly granted to appellees on appellant's strict liability and breach of warranty claims. Strict liability and breach of warranty are virtually indis- tinguishable. Temple, supra, at 320. In such actions, a manu- facturer or seller of a defective product is liable if the injured plaintiffs prove that: (1) There was, in fact, a defect in the pro- duct manufactured and sold by the defendant; (2) such defect existed at the time the pro- duct left the hands of the defendant; and (3) the defect was the direct and proximate cause of the plaintiff's injuries or loss. -6- State Auto Mutual Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St. 2d 151; Temple, supra. A two-prong test must be met in order to prove that a product design is in a defective condition. Knitz v. Minster Machine Co. (1982), 69 Ohio St. 2d 460, paragraph two of the syllabus. Under the first prong, the plaintiffs must prove that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Leichtamer v. American Motors Corp. (1981), 67 Ohio St. 2d 456. Under the second prong of the test, the plaintiffs must demonstrate that the risk inherent in the design outweighs its benefits. Knitz, supra, at 466. In this case, appellant argues that this case is governed by Leichtamer, supra. In Leichtamer, supra, the Ohio Supreme Court affirmed a jury verdict in favor of the plaintiffs who were injured in a 1976 Jeep CJ-7. The Ohio Supreme Court found that there was sufficient evidence establishing that the "roll-bar" of the vehicle was unreasonably dangerous and it caused the enhancements of the plaintiffs' injuries. Although Leichtamer, supra, involved the same make of vehicle and had a similar type of accident as the instant case, we find that it is not controlling herein. First, in Leichtamer, supra, the plaintiffs were injured in a 1976 Jeep CJ-7. In the instant case, appellant was injured in a 1985 CJ-7. Appellant offered no evidence that his Jeep CJ-7 -7- had the identical "roll bar" as in Leichtamer, supra, or that it was designed in the same manner. Second, in Leichtamer, supra, the plaintiffs provided ample evidence that the "roll bar" was in a defective condition when the accident occurred. Appellant in this case offered no evidence, whatsoever, that a defect in the design of the Jeep CJ- 7 existed at the time of the accident. Appellant provided no expert testimony and could not state, himself, which alleged defect caused the enhancement of his injuries. We find that appellant failed to set forth facts demonstrating that a genuine issue of fact exists as to whether his Jeep CJ-7 was in a defective condition when the accident occurred. Accordingly, we conclude that the trial court properly entered summary judgment in favor of appellees on appellant's claims for strict liability and breach of warranty. We now address the question of whether summary judgment was properly granted to appellees on appellant's negligence claim. In his complaint, appellant specifically alleged that his injuries and damages were proximately caused and/or proximately enhanced due to the negligence of appellees' "design" of the Jeep CJ-7. As previously discussed, appellant failed to submit any evidence regarding the alleged defective design of the Jeep CJ- 7. Appellant did not offer any evidence, whatsoever, regarding any alleged problems with the Jeep CJ-7's design at the time of the accident. -8- Therefore, we find that no genuine issue of fact exists as to whether appellees negligently designed appellant's Jeep CJ-7. Accordingly, we conclude that the trial court properly granted appellees' motion for summary judgment on appellant's claim for negligence. Appellant's assignments of error are without merit and overruled. Trial court judgment is affirmed. -9- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, P.J., AND BLACKMON, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .