[Cite as Jones v. Walker Mfg. Co., 2012-Ohio-1546.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97301




                        SCOTT ALLEN JONES, ET AL.
                                                            PLAINTIFFS-APPELLANTS

                                                      vs.

                          WALKER MFG. CO., ET AL.
                                                            DEFENDANTS-APPELLEES




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-703745

        BEFORE: Stewart, P.J., Sweeney, J., and Cooney, J.

        RELEASED AND JOURNALIZED: April 5, 2012
ATTORNEYS FOR APPELLANTS

Paul W. Flowers
Paul W. Flowers Co., LPA
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113

W. Craig Bashein
Anthony N. Palombo
Bashein & Bashein Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113-2216


ATTORNEYS FOR APPELLEE EMMETT EQUIPMENT CO.

Warren S. George
Lisa M. Gerlack-George
Keis George LLP
55 Public Square
Suite 800
Cleveland, Ohio 44113


ATTORNEY FOR WALKER MFG. CO.

William M. Kovach
Park Center Plaza II, Suite 450
6150 Oak Tree Blvd.
Independence, Ohio 44131
MELODY J. STEWART, P.J.:

      {¶1} Plaintiff-appellant Scott Jones lost parts of the fingers on his left hand while

trying to clear a clogged collection chute on a running lawnmower that had been sold to

his father by defendant-appellee Emmett Equipment Co. Jones alleged that he had been

unaware that there were rotating blades in the chute because a warning label affixed to the

mower had been partially worn away or obscured the word “danger.” He brought this

action against Emmett and the manufacturer of the mower, Walker Manufacturing, Inc.,

raising statutory and common law products liability counts, a negligence claim that

Emmett failed to affix a new warning label to the mower both when it sold the mower to

his father and when conducting routine service on the mower a few years later, and claims

for breach of express and implied warranties. Jones’s wife filed a claim for loss of

consortium. Both Walker and Emmett sought summary judgment on grounds that the

ten-year statute of repose had expired, that any common law products liability claims had

been preempted by statute, and that claims for breach of express and implied warranties

were unfounded because the owner’s manual made it clear that a clogged discharge chute

should not be cleared while the mower was running. The court agreed and held that

Jones’s claims were “barred by the statute of repose and/or the Ohio Product Liability Act

as codified in R.C. 2307.71-80.” Jones only appeals the summary judgment as it relates

to Emmett.

                                             I
       {¶2} Jones first argues that the court erred as a matter of law by finding his

claims barred by R.C. 2305.10(C)(1), the statute of repose. He argues that the statute of

repose applies only to manufacturers and that Emmett, as a reseller of the mower, could

not use the statute of repose for post-production protection. To so hold, argues Jones,

would allow resellers to knowingly sell with impunity, a defective product as long as the

statute had expired.

                                              A

       {¶3} Unlike a statute of limitations that limits the time in which a plaintiff may

bring suit after a cause of action accrues, a statute of repose extinguishes a cause of action

after a fixed period of time, regardless of when the cause of action accrued. Sedar v.

Knowlton Const. Co., 49 Ohio St.3d 193, 195, 551 N.E.2d 938 (1990).

       {¶4} R.C. 2305.10(C)(1) states:

              Except as otherwise provided in divisions (C)(2), (3), (4), (5), (6),
       and (7) of this section or in section 2305.19 of the Revised Code, no cause
       of action based on a product liability claim shall accrue against the
       manufacturer or supplier of a product later than ten years from the date that
       the product was delivered to its first purchaser or first lessee who was not
       engaged in a business in which the product was used as a component in the
       production, construction, creation, assembly, or rebuilding of another
       product.

       {¶5} The rationale behind a statute of repose is to protect manufacturers from

unreasonable exposure to liability. Statutes of limitations do not begin to run until a

cause of action accrues. Assuming that a cause of action does not immediately accrue,

some potential defendants would face never-ending uncertainty as to liability for their

work or products, particularly when the passage of time has faded memories or made it
difficult to find evidence or witnesses. Limiting the time in which to bring an action

against the manufacturer of a product is considered a valid exercise of the legislative

prerogative to provide for the general welfare of society. Groch v. Gen. Motors Corp.,

117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 172. Nevertheless, statutes of

repose have been called “strong medicine” because they preclude “even meritorious suits

because of delay for which the plaintiff is not responsible.” McCann v. Hy-Vee, Inc.,

663 F.3d 926, 930 (7th Cir. 2011).

                                             B

        {¶6} The undisputed facts show that the mower in question was built in January

1994 and first sold in February 1994. Emmett took possession of the mower in April

2004 as a trade-in from another customer. It sold the mower to Jones’s father in May

2004.

        {¶7} Jones does not dispute that the mower had been delivered to its first

purchaser more than ten years before it had been sold to his father, nor does he dispute the

validity of R.C. 2305.10(C)(1) as applied to manufacturers. He argues, however, that

Emmett did not manufacture the mower, but resold it to Jones’s father, so the statute of

repose does not apply to Emmett.

        {¶8} R.C. 2305.10(C)(1) refers to both “manufacturers” and “suppliers.” R.C.

2307.71(A)(15)(a)(i) defines a supplier as “[a] person that, in the course of a business

conducted for the purpose, sells, distributes, leases, prepares, blends, packages, labels, or

otherwise participates in the placing of a product in the stream of commerce[.]” Emmett
indisputably conducted a business for the purpose of selling mowers and did place the

mower into the stream of commerce. Indeed, Jones concedes that Emmett is a “supplier”

as defined by R.C. 2307.71(A)(15)(a)(i). See Appellant’s Brief at 18. It follows that

R.C. 2305.10(C)(1) applied and barred Jones’s products liability claims.

                                             C

       {¶9} Jones complains that the statute of repose should not apply because it would

create a disincentive for suppliers to remedy known safety defects before reselling the

product.    In support of his argument, he cites Groch, 117 Ohio St.3d 192,

2008-Ohio-546, 883 N.E.2d 377, for the proposition that statutes of repose are not

intended to create a “litigation-proof” class of used consumer goods.

       {¶10} Groch recognized that “[a] plaintiff’s right to a remedy is not necessarily

extinguished when a particular statute of repose might apply to foreclose suits by that

plaintiff against certain defendants.” Id. at ¶ 151. It went on to state:

              Although R.C. 2305.10(C) may prevent some suits against product
       manufacturers, in many situations, an injured party may be able to seek
       recovery against other parties. For example, if an employer modifies a
       machine after it is acquired, the employer could be liable for the
       consequences of a negligent alteration. * * * [T]he General Assembly
       specifically recognized in Sections 3(C)(3) and (4) of S.B. 80 that after a
       product is delivered, a manufacturer or supplier lacks control over the
       product, over its uses, and over the conditions of its use and concluded that
       it is more appropriate for the party that controls the products to be
       responsible for any harm caused. Id. at ¶ 152.

       {¶11} We do not read Groch to suggest implicitly that claims against suppliers

who resell products are not barred by the statute of repose. Instead, we believe it does

nothing more than emphasize the obvious proposition that a statute of repose is not
necessarily a judicial dead-end for a products liability case when other claims might be

viably asserted.   For example, the courts have found that statutes of repose are

inapplicable in cases where a supplier rebuilds or reconditions a product beyond its

intended useful life. See, e.g., Denu v. W. Gear Corp., 581 F.Supp. 7 (S.D.Ind.1983)

(applying Indiana law). In Richardson v. Gallo Equip. Co., 990 F.2d 330, 331 (7th

Cir.1993), the Seventh Circuit summarized its understanding of statutes of repose:

              We take two points to be clear, though authority is sparse. The first is
      that any reconstruction or reconditioning (as distinct from a mere repair—a
      familiar distinction in other areas of law, see, e.g., Aro Mfg. Co. v.
      Convertible Top Replacement Co., 365 U.S. 336, 81 S.Ct. 599, 5 L.Ed.2d
      592 (1961)) which has the effect of lengthening the useful life of a product
      beyond what was contemplated when the product was first sold starts the
      statute of repose running anew. Denu v. Western Gear Corp., 581 F.Supp. 7
      (S.D.Ind.1983) (applying Indiana law); Rollins v. Cherokee Warehouses,
      Inc., 635 F.Supp. 136 (E.D.Tenn.1986); Fugate v. AAA Machinery &
      Equipment Co., 593 F.Supp. 392 (E.D.Tenn.1984). Otherwise the statute
      would create an inefficient incentive to reconstruct or recondition old
      products rather than build new ones, in order to reduce expected liability
      costs; for under such a regime a product rebuilt after ten years would be
      immunized from liability. The second point is that merely by incorporating
      a defective component into an old product the incorporator cannot obtain
      the protection from suit that the statute of repose gave the old product.
      Black v. Henry Pratt Co., 778 F.2d 1278, 1282-83 (7th Cir.1985) (applying
      Indiana law); Hinds v. CompAir Kellogg, 776 F.Supp. 1102, 1107-08
      (E.D.Va.1991), aff’d without opinion, 961 F.2d 211 (4th Cir.1992) (ditto).
      Here, for example, Gallo made the improvements to the Taylor forklift
      more than ten years after its original sale. Gallo could not by this fortuity
      obtain immunity from products liability should its components prove
      defective and as a result cause an injury to someone. Id. at 331.

      {¶12} The evidence shows that Emmett did not rebuild or recondition the mower

before selling it to Jones’s father, nor did it incorporate any major new parts to the

mower. It only performed a routine tune-up to put the mower in “working condition.” As
Richardson points out, “repair” is distinct from “reconditioning,” particularly when the

buyer purchases a product in “used” condition as opposed to being reconditioned. The

buyer of a rebuilt or reconditioned product has the expectation that the product will

perform as new; the buyer of a ten-year old used product has no such expectation.

       {¶13} Jones’s father admittedly sought to buy a used, not a reconditioned, Walker

mower. Having said that his wife was concerned that he was spending so much money

on a ten-year old mower, Jones’s father plainly had no expectation that the mower would

perform as new and, in fact, sought assurances that the mower would continue to run for a

long time given its age and cost. Emmett told him that “everything was fine” and that

the mower would last “for a long, long time.” Emmett’s assurance that the mower

operated properly and would continue to do so in the future is not the same as saying it

was reconditioned to “as new” condition or would otherwise perform as new for purposes

of the statute of repose.

       {¶14} Civ.R. 56(C) permits the court to grant summary judgment when there is

no genuine issue of material fact and the movant is entitled to judgment as a matter of

law. The facts are not in dispute, and we find as a matter of law that the ten-year statute

of repose barred Jones’s causes of action sounding in products liability. The court did

not err by granting summary judgment on any claim stemming from the products liability

statute, including Jones’s claims for failure to warn under R.C. 2307.78(B)(6). Our

holding that the statute of repose barred Jones’s causes of action necessarily moots any
consideration of whether Jones assumed the risk of injury by putting his hand in the chute

of an operating mower. See App.R. 12(A)(1)(c).

                                              II

       {¶15} Jones’s argument that the court erred by granting summary judgment on his

common law liability claims is more easily addressed. R.C. 2307.71(B) states: “Sections

2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law

products liability claims or causes of action.” Jones admittedly suffered his injuries after

the effective date of R.C. 2307.71(B), so his common law products liability claims are

superseded by statute and barred as a matter of law.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of appellants its 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 Cuyahoga

County Court of Common Pleas 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.


______________________________________________
MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR
