-1- COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71998 JACK PFAFF : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION BENJAMIN AIR RIFLE : COMPANY, ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-297637. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Steve C. Bailey, Esq. Daniel J. Michalec, Esq. Marco, Marco & Bailey 52 Public Square Medina, OH 44256 For Defendants-Appellees Gregory T. Rossi, Esq. Benjamin Air Rifle Company Thomas P. Mannion, Esq. and Pursuit Marketing, Inc.: Reminger & Reminger 113 St. Clair Avenue Cleveland, OH 44114 Air Rifle Company, Benjamin c/o Llewellyn Sale, III, Stat. Agt. 1 Metropolitan Square, No. 3600 St. Louis, MO 63102 DAVID T. MATIA, P.J.: -2- Jack Pfaff, plaintiff-appellant, appeals the granting of summary judgment by the Cuyahoga County Court of Common Pleas in favor of Benjamin Air Rifle Co., et al., defendants-appellees. Plaintiff-appellant raises two errors for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On November 4, 1992, Jack Pfaff, plaintiff-appellant, and his friends were involved in general horseplay on the second floor of a Kent State University dormitory hall. Plaintiff-appellant heard a paint gun being fired and, in an effort to avoid being hit with a paint pellet, walked up a nearby staircase, walked across the floor, descended one flight of stairs and came out on the second floor closer to his dormitory room. Plaintiff-appellant opened the stairwell door to see if he could return to his room without being hit by a paint pellet. When plaintiff-appellant opened the door and looked down the hall, he was struck in the eye with a paint pellet and suffered extensive injuries. On November 1, 1995, plaintiff-appellant filed this product liability claim against Benjamin Air Rifle Company (the manufacturer)and Pursuit Marketing, Inc., defendant-appellee (the distributor and supplier of the paint ball gun).1 Plaintiff- appellant alleged the paint ball gun was defective due to its design and absence and/or inadequacy of warnings. 1Service was not perfected on Benjamin Air Rifle due to their insolvency. -3- On September 26, 1996, defendant-appellee filed a motion for summary judgment arguing the manufacturer, and therefore the supplier under R.C. 2307.78(B)(2), cannot be held liable for failure to warn of open and obvious dangers to the user. Moreover, defendant-appellee argued there is no evidence in the record establishing the paint gun malfunctioned. On January 7, 1997, the trial court granted defendant- appellee's motion for summary judgment based upon the open and obvious exception to a manufacturer's and supplier's liability. Plaintiff-appellant timely files this appeal. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Since Jack Pfaff's, plaintiff-appellant's, first and second assignments of error contain similar issues of law and fact, we will consider them concurrently. I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT PURSUIT MARKETING, INC. ITS MOTION FOR SUMMARY JUDGMENT UNDER RULE 56 OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE TRIAL COURT ERRED IN USING THE OPEN AND OBVIOUS DANGERS OR RISKS EXCEPTION OF ORC 2307.76(B) TO MANUFACTURER'S LIABILITY FOR A DEFECTIVE PRODUCT UNDER OHIO REVISED CODE SECTION 2307.76(A) AS THE BASIS FOR GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. A. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY GRANTED DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Jack Pfaff, plaintiff-appellant, argues the trial court erred in granting defendant-appellant's motion for summary judgment. Specifically, plaintiff-appellant argues pursuant to R.C. 2307.78(B)(2), a supplier such as Pursuit Marketing, Inc., -4- defendant-appellee, is subject to liability for compensatory damages as if it were the manufacturer since the manufacturer, Benjamin Air Rifle Company, is insolvent. Accordingly, plaintiff-appellant argues the dangers to the eye associated with the paint gun are not known to those who are not properly trained and/or those who have not read the instructional materials relating to the safe use of the paint gun. Therefore, plaintiff-appellant argues the engineer's report establishes a genuine issue of fact concerning whether or not the posting of a warning of the paint gun itself would have benefitted those who were not properly trained and/or those who did not read the instructionalmaterials relating to the safe use of the paint gun. As such, plaintiff-appellant argues summary judgment should not have been granted for Pursuit Marketing, Inc., defendant-appellee. Plaintiff-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT Civ.R. 56 provides that summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain 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 but to 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. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio App.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. -5- It is well established that the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. V. Catrett (1987), 477 U.S. 317, 330; Mitseff v, Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio State Supreme Court modified and/or clarified the summary judgment standard as applied in Wing v. Anchor Medina, Ltd. Of Texas (1991), 59 Ohio St.3d 108. Under Dresher, *** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or material element of the nonmoving party's claim. Id. at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. At 293. The nonmoving party must set forth specific facts by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id. This court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. Of Commrs. (1993), 87 Ohio App.3d 704. An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). The reviewing court evaluates the record *** in light most favorable to the nonmoving party ***. [T]he motion must be overruled if reasonable minds could find for the party opposing the motion. -6- Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. C. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Initially, we note that plaintiff-appellant does not claim that the paint gun functioned improperly. Rather plaintiff- appellant's claim is that there exists a genuine issue of fact as to whether, through a failure to warn, the paint gun is defective. It is well established that a product is not defective under a strict liability theory for failure to warn if the risk presented by the product is an open and obvious risk that is a matter of common knowledge. R.C. 2307.76(B); Gawlowski v. Miller Brewing Co. (1994), 96 Ohio App.3d 160; Koepke v. Crosman Arms Co. (1989), 65 Ohio App.3d 1. We agree with the trial court in that it is common knowledge that there are inherent risks with shooting a paint gun at an individual. See, also, Koepke, supra. Moreover, as the deposition testimony establishes, even the plaintiff and the individual who shot the paint gun were both aware of the risk involved in shooting the paint gun at an individual and hitting his/her eye. Thus, the danger of injuring an individual's eye when shooting a paint gun is open and obvious. The trial court did not err in granting summary judgment for defendant-appellee. Plaintiff-appellant's first and second assignments of error are not well taken. Judgment affirmed. -7- -8- It is ordered that appellees recover of appellant 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. PORTER, J. and PATTON, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .