Parker v. ACE Hardware Corp.

104 N.E.3d 298

2018 Ohio 320

David A. PARKER, Plaintiff–Appellant

v.ACE HARDWARE CORPORATION, et al., Defendants–Appellees

NO. 2017–CA–8

Court of Appeals of Ohio, Second District, Champaign County.

Rendered on January 26, 2018

JAMES P. CONNORS, Atty. Reg. No. 0034651, 580 South High Street, Suite 150, Columbus, Ohio 43215, Attorney for Plaintiff–Appellant.

LISA M. FEDYNYSHYN–CONFORTI, Atty. Reg. No. 0074324, 311 S. Wacker Drive, Suite 2400, Chicago, Illinois 60606, Attorney for Defendants–Appellees.

OPINION

DONOVAN, J.

{¶ 1} This matter is before the Court on the April 17, 2017 Notice of Appeal of David A. Parker. Parker appeals from the trial court's March 17, 2017 journal entry granting the motion for summary judgment of ACE Hardware Corporation, McAuliffe's ACE Hardware, and McAuliffe's Rental LLC (collectively, "ACE"). We hereby affirm the judgment of the trial court.

{¶ 2} On March 20, 2015 Parker filed a complaint against ACE, Frederick Stevens, the Coleman Company Inc., and John Does 1–10, in the Franklin County Court of Common Pleas. In Count 1, Parker alleged negligence against Stevens; in Count 2, he alleged negligence against ACE; in Count 3, he alleged negligent misrepresentation against ACE; in Count 4 he alleged breaches of express and implied warranties against all defendants; and in Count 5, he alleged "a combined claim for damages under both strict liability and statutory strict products liability under both Ohio common law and Ohio Revised Code §§ 2307.71 –80" against all defendants except Stevens. On January 15, 2016, Parker dismissed all claims against Coleman and the products liability claim in Count 5. On March 16, 2016, Parker dismissed his claims against Stevens.

{¶ 3} The matter was subsequently transferred to Champaign County on Parker's request and refiled on August 19, 2016. The complaint sets forth the following allegations: Parker and Stevens became friends in 2010–2011, and when Stevens had surgery in 2013, Parker helped Stevens by clearing his property of brush and performing other chores. On September 8, 2013, after a significant amount of brush had been consolidated into a large pile, Stevens asked Parker to "stop at the hardware store to purchase five cans of kerosene * * * to be used to ignite and burn the brush pile."

{¶ 4} After having his chain saw serviced and repaired at McAuliffe's ACE Hardware, Parker inquired if he could also purchase kerosene for a brush fire, and a male employee directed Parker to "a female clerk down another aisle in the store and told [Parker] that she would assist him." Parker asked the female clerk for kerosene, and she inquired as to his intended use of the product. Parker advised the clerk that he intended to "start a large brush fire about the size of a truck, and needed kerosene to start the fire." The clerk then directed Parker to a product that she identified as kerosene, and he purchase the product. The product was in fact Coleman Camp Fuel, and when Parker ignited the brush pile with the fuel, "vapors were ignited and quickly exploded and engulfed [Parker] in flames. [Parker] was severely burned over 90% of his body."

{¶ 5} On September 7, 2016, the "Motion of Defendants McAuliffe ACE, McAuliffe Rental LLC and ACE Hardware Corporation for Summary Judgment" was filed. ACE therein asserted that "Parker cannot prevail under his various legal theories because Plaintiff was explicitly warned not to use the product in question for the purpose he intended, Plaintiff ignored that warning and Plaintiff assumed the risk of his own unsafe conduct." The motion provides that "there can be no dispute that McAuliffe's, through warnings displayed on the Coleman's product, specifically warned Plaintiff of the dangers involved in using Coleman's Camp Fuel in the manner Plaintiff contemplated using it."

{¶ 6} The motion provides that Parker "cannot establish reasonable reliance on McAuliffe's alleged statements when the product's label directly contradicted any assertion that the Coleman's Camp Fuel could be used as a fire starter—a fact Plaintiff could * * * have learned by simply reading the label's clear, unambiguously stated warnings which appeared on the product."

{¶ 7} The motion argues that Parker "assumed the risk of injury in using a product to start a fire while he was in close proximity to the fire." According to the motion, there "is no question that fire is ipso facto dangerous, and presents a danger that is open and obvious, and not latent." ACE argued that Parker's use of a product "he assumed to be a fire accelerant in starting a fire was a straightforward, ordinary risk."

{¶ 8} The motion provided that Parker's common law breach of warranty claims "have been abrogated by Ohio's enactment of the Ohio Products Liability Act." The motion asserts that there "is no allegation in Plaintiff's Complaint or evidence that Plaintiff provided any pre-suit notice to McAuliffe's on his breach of warranty claim. Without any such evidence, Plaintiff's breach of warranty claims fail for want of pre-suit notice." Also on September 7, 2016, the depositions of Parker and Stevens were filed in conjunction with the motion for summary judgment.

{¶ 9} On December 19, 2016, Parker filed a "Memorandum Contra Defendants ACE Hardware and McAuliffe's Motion for summary Judgment and Plaintiff's Cross Motion for Summary Judgment." Parker asserted that Ace owed him duties to advise him as follows:

* * *(a) where the product he requested was located, (b) that it was fit for the purpose which he told them it was going to be used when they asked him what he was using it for, and (c) that the product they sold him was suitable to be used to start a brush pile fire, which they also advised him following his response to the question about what he was using it for.

{¶ 10} Regarding negligent misrepresentation, Parker asserted that the fact that "the store clerk in this case failed to use reasonable care in communicating information to Mr. Parker is established by the only evidence presented on the claim. Summary judgment for Mr. Parker is required since there is no evidence to the contrary that she made the statements which were provably false." Regarding his failure to warn claim, Parker argued that once ACE and McAuliffe's "admittedly assume[d] a duty to advise customers about products and services, they are indeed liable for failing to warn them and for incorrectly advising them and providing false information."

{¶ 11} Parker argued that he did not assume the risk of injury because starting "a fire with kerosene is a safe activity, as opposed to starting one with a highly volatile camp fuel." Parker argued that there "was no basis for him to assume the risk of something about which he had no knowledge, a prerequisite to assuming the risk." Parker attached his affidavit.

{¶ 12} On December 27, Defendants filed a reply brief in support of summary judgment, as well as a brief in opposition to Parker's motion for summary judgment. On January 5, 2017, Parker opposed the motion to strike his affidavit, as well as a reply to Defendants' motion for summary judgment.

{¶ 13} In granting summary judgment in favor of ACE, the trial court noted that Parker's "entire case * * * is premised on the assumption that he would not have been injured when he started the fire if the cans he purchased at McAuliffe's had contained kerosene, instead of Coleman Camp Fuel." Regarding Parker's negligence claim, the court noted that the "existence of a duty depends on the foreseeability of harm." Accordingly, the court noted, it "must determine whether a reasonably prudent person would have anticipated Ms. Reigle's misidentification of Coleman Camp Fuel as kerosene was likely to result in injury."

{¶ 14} The court cited Parker's deposition testimony acknowledging that two photographs of Coleman Camp Fuel accurately depict the product he purchased on September 8, 2013, that the labels reflect that the cans were not labeled as containing kerosene and further warn that "Coleman Camp Fuel should not be used in kerosene, alcohol, or lamp/stove oil appliances." The court concluded that had Parker read the cans before proceeding to the checkout counter, he would have learned that they did not contain kerosene. According to the court, Parker's "purported reliance on Ms. Reigle's expertise and professionalism is misplaced since the cans themselves clearly and unequivocally inform the purchaser that the contents were Coleman Camp Fuel, and not kerosene." The court concluded that it "cannot articulate the duty breached when Ms. Reigle allegedly identified Coleman Camp Fuel as kerosene," and that "ACE and McAuliffe's are entitled to summary judgment on the negligence claim, to the extent that it can be read as alleging the breach of duty owed to [Parker.]"

{¶ 15} The court then noted as follows:

After reviewing [Parker's] complaint, the Court also believes that his negligence claim can be construed as alleging the following on the part of defendants: (1) failure to warn; (2) negligent misrepresentation; and (3) breach of implied warranty of fitness for a particular purpose. [Parker] has pled the latter two theories in his complaint. Since the allegations can also be construed as alleging failure to warn, the Court will also analyze the negligence claim in this fashion.

{¶ 16} Citing Parker's deposition, the court noted that it "is * * * undisputed that the warnings on the can inform the user that Coleman Camp Fuel is not to be used as a fire starter" and that "fuel vapors are invisible, explosive, and can be ignited by ignition sources many feet/meters away."

{¶ 17} The court noted that it "is also undisputed that [Parker] never read the warnings on the can prior to starting the fire. During his deposition, [Parker] admitted that the front of the can urges the user to ‘carefully read all warnings on the back panel.’ " According to the court, Parker "also admitted that he would have learned that the product was not kerosene and would...