[Cite as Hawkins v. World Factory, Inc., 2012-Ohio-4579.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

NICKI HAWKINS, ET AL.                                       JUDGES:
                                                            Hon. W. Scott Gwin, P.J.
        Plaintiffs-Appellants                               Hon. William B. Hoffman, J.
                                                            Hon. Julie A. Edwards, J.
-vs-
                                                            Case No. CT2012-0007
WORLD FACTORY, INC., ET AL.

        Defendants-Appellees                                OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Muskingum County Court
                                                      of Common Pleas, Case No. CC2011-0097


JUDGMENT:                                             Affirmed


DATE OF JUDGMENT ENTRY:                               September 27, 2012


APPEARANCES:


For Plaintiffs-Appellants                             For Defendants-Appellees


MILES D. FRIES                                        MATTHEW L. SCHRADER
Gottlieb, Johnson, Beam & Dal Ponte                   Reminger Co., L.P.A.
320 Main Street, PO. Box 190                          65 East State Street, 4th Floor
Zanesville, Ohio 43702-0190                           Columbus, Ohio 43215
Muskingum County, Case No. CT2012-0007                                                 2

Hoffman, J.

       {¶1}   Plaintiffs-appellants Nicki Hawkins and Mark Hawkins appeal the February

1, 2012 Judgment Entry entered by the Muskingum County Court of Common Pleas,

which granted summary judgment in favor of defendants-appellees World Factory, Inc.

and Kmart.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On or about July 2, 2008, Nicki Hawkins purchased a wheelbarrow from

Appellee Kmart. Said wheelbarrow was manufactured by China-based Qingdao Taifa

Group Co., Ltd., and distributed by Appellee World Factory. Nicki Hawkins brought the

wheelbarrow home and her husband, Mark Hawkins, unloaded it from her vehicle and

began to assemble it.       Nicki Hawkins proceeded to a gas station to inflate the

wheelbarrow tire. She inserted the air hose onto the tire valve with her right hand and

held the tire with her left hand. Within seconds, the tire exploded. Nicki Hawkins

suffered injuries as a result.

       {¶3}   On February 4, 2011, Appellants filed a Complaint against Appellees,

alleging claims of products liability and loss of consortium. Appellants did not name the

manufacturer, Qingdao Taifa Group Co., Ltd., as a defendant.        Appellants averred,

“World Factory, Inc. and Kmart are liable for compensatory damages as if they were the

manufacturer of the product because the manufacturer is not subject to judicial process

in Ohio.” Complaint at para. 19. In separate Answers filed on March 8, 2011, Appellees

asserted general denials and numerous affirmative defenses.

       {¶4}   Appellees filed a joint Motion for Summary Judgment on November 3,

2011. Therein, Appellees argued Appellants could not establish a prima facie case for
Muskingum County, Case No. CT2012-0007                                                3


supplier liability pursuant to R.C. 2307.78(B); the potential dangers associated with

overinflating the tire were open and obvious; Appellants assumed the risk; and there

were no genuine issues of material fact as to Appellants’ claims of defective design and

manufacture.    Appellants filed a memorandum contra on November 23, 2011.          Via

Judgment Entry filed February 1, 2012, the trial court granted Appellees’ motion for

summary judgment on all issues and claims.

       {¶5}    It is from this judgment entry Appellants appeal, asserting the following

propositions of law:

       {¶6}    “A SUPPLIER OF A PRODUCT IS LIABLE ON A PRODUCT LIABILITY

CLAIM AS IF IT WERE THE MANUFACTURER WHEN THE MANUFACTURER IS

NOT SUBJECT TO JUDICIAL PROCESS IN OHIO AND THE SUPPLIER MARKETED

THE PRODUCT UNDER ITS OWN NAME.

       {¶7}    “SUMMARY JUDGMENT ON A PRODUCTS LIABILITY CLAIM CANNOT

BE GRANTED TO DEFENDANTS WHEN PLAINTIFF’S EXPERT OPINES TO A

REASONABLE DEGREE OF SCIENTIFIC PROBABILITY THAT THE PRODUCT WAS

DEFECTIVE IN MANUFACTURE OR DESIGN.

       {¶8}    “THE ADEQUACY OF A WARNING IS AN ISSUE THAT SHOULD BE

PRESENTED TO A JURY.

       {¶9}    “KNOWLEDGE OF A POTENTIAL DANGER IS NECESSARY IN ORDER

FOR ASSUMPTION OF THE RISK TO APPLY.”

                       SUMMARY JUDGMENT STANDARD OF REVIEW

       {¶10} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.
Muskingum County, Case No. CT2012-0007                                                  4

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As

such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

      {¶11} Civ.R. 56 provides 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 to but 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. Temple v. Wean United, Inc.

(1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

      {¶12} It is well established 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, 106 S.Ct. 2548, 91 L.Ed.2d 265. The standard for

granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280

at 293, 662 N.E.2d 264: “ * * * a party seeking summary judgment, on the ground that

the nonmoving party cannot prove its case, bears the initial burden of informing the trial

court of the basis for the motion, and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its initial burden

under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no

evidence to prove its case. Rather, the moving party must be able to specifically point to

some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the

nonmoving party has no evidence to support the nonmoving party's claims. If the
Muskingum County, Case No. CT2012-0007                                                  5


moving party fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the nonmoving party

then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

there is a genuine issue for trial and, if the nonmovant does not so respond, summary

judgment, if appropriate, shall be entered against the nonmoving party.” The record on

summary judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

                                                I

      {¶13} In their first proposition of law, Appellants challenge the trial court’s

granting summary judgment in Appellees’ favor on the issue of supplier liability.

      {¶14} R.C. 2307.78(B) provides, in pertinent part:

             “(B) A supplier of a product is subject to liability for compensatory

      damages based on a product liability claim under sections 2307.71 to 2307.77 of

      the Revised Code, as if it were the manufacturer of that product, if the

      manufacturer of that product is or would be subject to liability for compensatory

      damages based on a product liability claim under sections 2307.71 to 2307.77 of

      the Revised Code and any of the following applies:

             “(1) the manufacturer of that product is not subject to judicial process in

      this state.”

             “(2) The claimant will be unable to enforce a judgment against the

      manufacturer of that product due to actual or asserted insolvency of the

      manufacturer;
Muskingum County, Case No. CT2012-0007                                                 6


             “(3) The supplier in question owns or, when it supplied that product,

      owned, in whole or in part, the manufacturer of that product;

             “(4) The supplier in question is owned or, when it supplied that product,

      was owned, in whole or in part, by the manufacturer of that product;

             “(5) The supplier in question created or furnished a manufacturer with the

      design or formulation that was used to produce, create, make, construct,

      assemble, or rebuild that product or a component of that product;

             “(6) The supplier in question altered, modified, or failed to maintain that

      product after it came into the possession of, and before it left the possession of,

      the supplier in question, and the alteration, modification, or failure to maintain

      that product rendered it defective;

             “(7) The supplier in question marketed that product under its own label or

      trade name;

             “(8) The supplier in question failed to respond timely and reasonably to a

      written request by or on behalf of the claimant to disclose to the claimant the

      name and address of the manufacturer of that product.”

      {¶15} Appellants submit Appellees failed to produce any evidence to establish

any of the requirements of Ohio’s Long Arm Statute apply to the manufacturer.

Appellants conclude, because the trial court does not have jurisdiction over the

manufacturer, the manufacturer is not subject to judicial process and Appellees are

liable as the suppliers of the wheelbarrow under R.C. 2307.78(B)(1).

      {¶16} The term “judicial process,” as it appears in R.C. 2307.78(B)(1), is not

readily defined by any provision of the Revised Code. Ohio appellate courts interpreting
Muskingum County, Case No. CT2012-0007                                                 7

the term have found judicial process akin to personal jurisdiction. See, Evans v. Mellott

Mfg. Co., (June 15, 2000), 4th Dist.App. No. 98CA838.

       {¶17} Despite Appellants’ assertion to the contrary, we find Appellants had the

burden of establishing the manufacturer was not subject to judicial process.1        The

manufacturer not being subject to judicial process is one of the elements of a claim of

supplier liability. In their Complaint, Appellants simply allege the manufacture is not

subject to judicial process. We find that statement alone is insufficient to withstand a

motion for summary judgment.

       {¶18} Appellants further assert World Factory is also subject to substituted

liability pursuant to R.C. 2307.78(B)(7) because the wheelbarrow was marketed under

World Factory’s trade name. Specifically, Appellants claim World Factory marketed the

wheelbarrow by issuing a limited warranty with the product.

       {¶19} The warranty indicated the wheelbarrow was “Made in China” and

“Distributed by: World Factory, Inc., Koppell, Texas 75019”. We find the inclusion of the

World Factory name as the distributor on the limited warranty material does not rise to

the level of marketing of the wheelbarrow under World Factory’s “own label or trade

name” as contemplated by R.C. 2307.78(B)(7).

       {¶20} Based upon the foregoing, we find World Factory is not subject to supplier

liability under R.C. 2307.78(B)(7).

       {¶21} Appellant’s first proposition of law is overruled.




1
  We acknowledge lack of personal jurisdiction would be an affirmative defense as to
the manufacturer’s potential liability had it been joined as a party.
Muskingum County, Case No. CT2012-0007                                               8


                                           II, III, IV

       {¶22} Having determined the trial court’s granting summary judgment in

Appellees’ favor on the issue of supplier liability was appropriate, we find it is

unnecessary to address Appellants’ remaining propositions of law based upon the two-

issue rule.

       {¶23} Appellants’ second, third, and fourth propositions of law are overruled as

being moot.

       {¶24} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur                         s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s./ Julie A. Edwards __________________
                                           HON. JULIE A. EDWARDS
Muskingum County, Case No. CT2012-0007                                         9


          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


NICKI HAWKINS, ET AL.                    :
                                         :
       Plaintiffs-Appellants             :
                                         :
-vs-                                     :        JUDGMENT ENTRY
                                         :
WORLD FACTORY, INC., ET AL.              :
                                         :
       Defendants-Appellees              :        Case No. CT2012-0007


       For the reasons stated in our accompanying Opinion, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs to Appellants.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ W. Scott Gwin_____________________
                                         HON. W. SCOTT GWIN


                                         s/ Julie A. Edwards___________________
                                         HON. JULIE A. EDWARDS
