COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72572 BEVERLY J. ROACH, : : Plaintiff-Appellant : JOURNAL ENTRY : and vs. : OPINION : UNARCO INDUSTRIES, INC., : ET AL., : : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 275872 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: Richard C. Haber Timothy G. Kasparek REMINGER & REMINGER 113 St. Clair Building, Suite 700 Cleveland, Ohio 44114-1273 For defendant-appellee, Paul D. Eklund Unarco Industries, Inc.: DAVIS & YOUNG 1700 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115-1027 For defendant-appellee, Timothy G. Sweeney Leonard H. Krill Company: 800 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 NAHRA, P.J.: Beverly Roach, appellant, brings this appeal as administratrix of the estate of San W. Roach, Sr., following a jury trial against Unarco Industries, Inc. (hereinafter Unarco ), appellee, on a -2- claim that Unarco provided a defective product which caused decedent's death. A jury returned a verdict in favor of Unarco and its co-defendant in the action, the Krill Co., Inc.. Appellant appeals only from the jury's verdict in favor of Unarco. In August, 1989, decedent, San Roach, was killed while at work in a warehouse operated by the Zellerbach division of Mead Corporation (hereinafter Mead ). Roach was crushed by paper which fell from a storage racking system manufactured by appellee and installed at Mead in 1968. Evidence was presented at trial that Roach was operating a tow-motor which came into contact with the racking system prior to its collapse. Appellant's three assignments of error, which are inter- related, read: I. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT THE UNFORESEEABLE MISUSE OF THE ZELLERBACH DIVISION OF THE MEAD CORPORATION, A THIRD PARTY, CONSTITUTES AN AFFIRMATIVE DEFENSE TO THE PRODUCT LIABILITY CLAIM AGAINST UNARCO. II. THE TRIAL COURT'S INSTRUCTION, TAKEN AS A WHOLE, RESULTED IN PREJUDICIAL ERROR TO THE PLAINTIFF. III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN SUBMITTING INTERROGATORY NO. 12 WHICH IS ERRONEOUS AND MISLEADING. Appellant complains that the court erred in charging the jury when it stated: Defendant Unarco claims that San Roach, and/or Mead Corporation misused the racking system in a way that was not foreseeable. The test for foreseeability is whether under all the circumstances a reasonably careful manufacturer would have anticipated that a consumer of the product was likely to use the product in the same way that you find -3- that San Roach and Mead Corporation used the racking system. If you find by the greater weight of the evidence that San Roach or his employer misused in a way that was not foreseeable, then you will find in favor of the Defendant Unarco on the product liability claim. In addition to this charge, the jury was given a set of interrogatories. Appellant alleges that the court erred by giving Interrogatory Number 12 to the jury. It reads: 12. Do you find by a preponderance of the evidence that the upright was misused by Mead in a manner that was not foreseeable? *** If your answer is Yes , sign a verdict form in favor of Unarco, verdict form 2 or 4, as may be consistent with your findings with respect to Krill, and continue to answer interrogatory no. 13. *** During its deliberations, the jury asked the court for clarification as to Interrogatory Number 12, specifically asking for further definition of foreseeability and misuse. In response, the court reiterated the above quoted instruction. Appellant argues that the court erred in instructing the jury that misuse of the racking system by Mead was a defense to her strict liability claim, claiming that misuse of a product is a defense in strict liability claims only where the plaintiff misuses the product, not a third party such as the plaintiff's employer. We disagree. In Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75, 78, 472 N.E.2d 707, 711, the Ohio Supreme Court stated that a product design cannot be held defective or unreasonably -4- dangerous unless that product is used in its intended manner or put to use in a reasonably foreseeable manner. In Menifee, a compressed air system designed by plaintiff's employer to generate power for air tools was also used as a breathing system. The Ohio Supreme Court stated that the defendants in Menifee were not aware of the plaintiff's employer's intent to also use the system for breathing purposes, finding that this use by plaintiff's employer was not reasonably foreseeable. Id. In Feliciano v. The Euclid Chemical Co. (Jul. 12, 1990), Cuyahoga App. No. 57208, unreported, this court stated: Under Ohio Law, a defendant in a products liability action has a complete affirmative defense if the plaintiff misuses the product in an unforeseeable manner. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, 282; Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St.3d 75. Summary judgment for the manufacturer is appropriate where the product is misused by the plaintiff or by the plaintiff's employer. Menifee, supra. For these reasons, appellant's first assignment of error is overruled. The court properly instructed the jury that unforeseeable misuse of the racking system by either decedent or Mead was an affirmative defense for appellee. In her second assignment of error, appellant argues that because the court repeatedly charged the jury that Mead's misuse of the racking system constituted a defense for appellee, the instructions to the jury, taken as a whole, were prejudicial to her. As we find no error in the complained of instruction, we do not find that the trial court's instructions to the jury, taken as a whole were prejudicial to appellant. Accordingly, appellant's second assignment of error is overruled. -5- Appellant argues in her third assignment of error that Interrogatory Number 12, which directed the jury to enter a verdict in favor of Unarco if it found that the upright was misused by Mead in a manner that was not foreseeable, was error. As this is a correct interpretation of the law, appellant's third assignment of error is also overruled. Judgment affirmed. -6- 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. O'DONNELL, J., and _________________________________ JOSEPH J. NAHRA ROCCO, J., CONCUR. PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See 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 announcement of decision by the .