COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72967 JACQUELYN BUCHMAN, ET AL., : ACCELERATED : Plaintiffs-Appellants : JOURNAL ENTRY : AND vs. : OPINION : QVC, INC., ET AL., : PER CURIAM : Defendants-Appellees : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 15, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 308648 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: Daniel J. Ryan 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For defendants-appellees: Nancy Howe Donnelly Rosemary G. Gold BUCKLEY, KING & BLUSO 1400 Bank One Center Cleveland, Ohio 44114-2652 -2- PER CURIAM: The trial court properly granted appellees' motion for summary judgment, holding that appellees were not liable for the defective manufacturingof the product which they marketed for Kent Sporting Goods, the manufacturer. Appellees were neither negligent nor made material misrepresentations about the product. Karen Norton, appellant's mother, after viewing the World Cup Water Sports Tube, (the Water Tube ), on QVC, purchased the item as a surprise for her daughter and grandchildren. During it's first use, the Water Tube malfunctioned as a result of a design flaw, causing Jacquelyn Buchman severe harm. Kent Sporting Goods, the manufacturer, was originally a party to this action, but has since reached a settlement agreement with appellants. Appellants still maintain actions against appellees, QVC, Inc., H.O. Sports, Inc., and Coastal Sales Associates, under the supplier doctrine of products liability. H.O. Sports, CSA, and QVC make up the supply and marketing chain of Kent Sporting Goods' products, the designer and manufacturer of the Water Tube. At no time was the product or the product's packaging altered after it left the control of Kent Sporting Goods. I. Appellants assert three assignment of errors for our review. Assignment of error number one states: I. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTION OF APPELLEE QVC, INC. BECAUSE MATERIAL ISSUES OF FACT EXIST AS TO WHETHER APPELLEE QVC, INC. MARKETED THE WORLD CUP WATER SPORTS TUBE UNDER ITS OWN TRADE NAME. -3- R.C. 2307.78(B)(7) provides that a supplier of a product may be held liable for compensatory damages based on a product liability claim, if the manufacturer would be liable for compensatory damages under the same claim, and the supplier distributed that product under its own trade name or label. Id.; see, also, Brown v. McDonald Corp. (1995), 101 Ohio App.3d 294, 301, 655 N.E.2d 440. The record indicates that QVC, Inc. is in the business of marketing products for companies. In no way does the record indicate that QVC held itself out as the manufacturer of the Water Tube. The on air statement made by QVC, as testified to by appellants, claiming the product to be a water recreational toy for the whole family, implies and warrants nothing. QVC was merely trying to successfully market a product that was manufactured by another. This statement cannot be taken as prima facieevidence of QVC's intentions to distribute the product under its own trade name. Further, the purchaser, Ms. Norton, admitted to knowing that QVC was not the manufacturer of the Water Tube. Accordingly, this assignment of error is overruled. -4- II. The appellants' second assignment of error states: II. THE TRIAL COURT ERRED IN GRANTING THE SUMMARY JUDGMENT MOTIONS OF QVC, INC., H.O. SPORTS, INC., AND COASTAL SALES ASSOCIATES BECAUSE MATERIAL ISSUES OF FACT EXIST AS TO WHETHER SAID APPELLEES WERE NEGLIGENT AND/OR MADE MATERIAL MISREPRESENTATIONS ABOUT THE WORLD CUP WATER SPORTS TUBE, AND WERE THEREBY LIABLE UNDER R.C. 2307.78(A). R.C. 2307.78(A) allows for a supplier to be held liable for compensatory damages on a product liability claim if the claimant can establish by a preponderance of the evidence that the supplier was either negligent and this negligence caused the aggrieved harm or the supplier made a misrepresentation concerning the product upon which the claimant relied to his detriment. Id. It is clear that QVC, H.O. Sports and CSA all meet the statutory requirement of a supplier as defined in R.C. 2307.71. However, the appellants failed to identify any negligence or representations made by H.O. Sports and CSA regarding the character or quality of the Water Tube. As a result, neither can be held accountable for liability. With regard to QVC, there was no negligence or mis- representation in its presentation concerning the Water Tube. A seller of chattel manufactured by a third person who neither knows nor has reason to know that it is, or is likely to be, dangerous, is not liable in an action for negligence for harm caused by the dangerous character or condition of the chattel because of his failure to discover the danger by an inspection or test of the chattel before selling it. Brown, 101 Ohio App.3d at 302. Since -5- QVC, as supplier, did not alter the product, and had no duty to discover the latent design flaw, it cannot be held negligent for its quality. Further, as discussed in the previous assignment of error, the on air statement made by QVC cannot be said to have been materially misrepresentative. Accordingly, this assignment of error is overruled. III. The appellants' third assignment of error states: III. THE TRIAL COURT ABUSED ITS DISCRETION TO THE PREJUDICE OF THE APPELLANT BY INVADING THE PROVINCE OF THE JURY BY IMPROPERLY WEIGHING THE CREDIBILITY AND TESTIMONY OF THE EXPERT WITNESS OF APPELLANT, AND THEREBY IMPROPERLY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEES. In weighing the expert opinion testimony of Mr. Griffiths, the trial court followed the mandates of summary judgment and afforded it all faith and credibility. In considering a motion for summary judgment, the trial court, as we, must weigh the facts in a light most favorable to the non-moving party. Temple v. Wean (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267, 274. As a result, the opinions as offered by the appellants' expert witness, Mr. Griffiths, were accepted as fact. Mr. Griffiths testified that he believed the water tube to be defective in design and sold with inadequate instructions. These statements had no direct impact on the court's ruling regarding summary judgment. The design defect and the inadequate instructions do not raise questions of fact concerning liability on a supplier or suppliers of a product for compensatory damages. -6- Rather, separate and distinct tests are used to determine supplier liability. These tests were discussed and resolved in the preceding assignments of error. In reaching these conclusions, the trial court properly weighed the expert's testimony and its relation thereto. Mr. Griffith's testimony related to the manufacturer and not to any conduct of the appellees. Accordingly, this assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellees recover of appellants 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, 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 .