Civil Appeal from Common Pleas Court Trial Court Case No. 2012-CV-1891
SEAN BRINKMAN, Atty. Reg. #0088253, and AARON G. DURDEN, Atty. Reg. #0039862, Durden Law, L.P.A., L.L.C., Attorneys for Plaintiff-Appellant
JOSEPH F. NICHOLAS, Atty Reg. #0038053, and ELAINE TSO, Atty Reg. #0081474, Mazanec, Raskin & Ryder Co., L.P.A., Attorneys for Defendant-Appellee
CELEBREZZE, JR., J. (By Assignment)
(¶1} Plaintiff-appellant, Della Mae Peterson ("plaintiff), appeals from a summary judgment rendered in favor of defendant-appellee, Amigo Mobility International, Inc. ("Amigo Mobility").
I. Factual and Procedural History
(¶2} On December 5, 2011, plaintiff went to a Wal-Mart located on Hoke Road in Montgomery County, Ohio, to obtain money orders and pay her bills. Plaintiff went to Wal-Mart on a monthly basis for the same purpose over the previous years. Each time she went to Wal-Mart, she used a motorized shopping cart because of problems with her knees and loss of balance. When plaintiff entered the Wal-Mart on the day of the incident, she discovered that there was only one motorized shopping cart available for use.
(¶3} After sitting on the motorized shopping cart, plaintiff moved through the store to the customer service desk. After obtaining a money order, she completed a U-turn and moved the motorized shopping cart against the wall. According to plaintiff, she then turned off the motorized shopping cart and attempted to exit the cart. However, before she was able to exit the cart, her shoe caught underneath the cart and, although the power was turned off, she alleges the cart rolled forward and backward over her ankle. Plaintiff submits that the shopping cart continued to move, with the power off, until the shopping cart tilted onto her. As a result, she claims that she suffered bodily injury, including injury to her knees, back, ribs, and buttocks. The motorized shopping cart at issue was not set aside after plaintiffs fall. Further, plaintiff could not identify the brand of motorized cart she used on the day in question.
(¶4} On March 13, 2012, plaintiff commenced this matter by filing a lawsuit against defendants Wal-Mart Stores, Wal-Mart Supercenter Store No. 5409 (the "Hoke Road Wal-Mart") (collectively "Wal-Mart"), Community Insurance Company, the United States Department of Health and Human Services, and defendant-appellee, Amigo Mobility.  Plaintiffs five-count complaint, as amended, asserted as its third claim product liability against Amigo Mobility. Plaintiff claims she sustained injuries caused by a defect in a motorized shopping cart that she alleges was manufactured by Amigo Mobility. The product defect alleged in her complaint was that the "cart moved by itself and moved after the power was turned off"
(¶5} On December 7, 2012, Amigo Mobility filed a motion for summary judgment arguing that plaintiff failed to establish that (1) Amigo Mobility manufactured the motorized shopping cart used by plaintiff on December 5, 2011; (2) there was, in fact, a defect in the product manufactured and sold by Amigo Mobility; (3) such defect existed at the time the product left the hands of Amigo Mobility; and (4) the defect was the direct and proximate cause of plaintiffs injuries. Amigo Mobility further argued that "regardless of who manufactured the motorized shopping cart involved in the incident at the Hoke Road Wal-Mart, plaintiff voluntarily assumed the risk of using a cart that she admitted was missing a wheel before she got on it"
(¶6} On December 28, 2012, plaintiff filed a memorandum in opposition to Amigo Mobility's motion for summary judgment. On January 8, 2013, the trial court granted Amigo Mobility's motion for summary judgment, finding there was "no dispute of the fact that the motorized shopping cart plaintiff used on December 5, 2011, was not manufactured by [Amigo Mobility] based on the evidence presented."
(¶7} Plaintiff now brings this timely appeal, raising one assignment of error for review.
II. Law and Analysis
A. Summary Judgment
(¶8} In her sole assignment of error, plaintiff argues that the trial court erred in granting summary judgment in favor of Amigo Mobility.
(¶9} We review a grant of summary judgment de novo, which means that "we apply the standards used by the trial court." Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E.2d 116 (2d Dist.2000). Summary judgment is appropriate when a trial court correctly finds "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
(¶10} Under the statutory cause of action for products liability provided by R.C. 2307.73, manufacturers are liable for compensatory damages based on product liability claims only where a claimant establishes all the following elements by a preponderance of the evidence:
(1) * * * the manufacturer's product in question was defective in manufacture or construction as described in section 2307.74 of the Revised Code, was defective in design or formulation as described in section 2307.75 of the Revised Code, was defective due to inadequate warning or instruction as described in section 2307.76 of the Revised Code, or was defective because it did not conform to a representation made by its manufacturer as described in section 2307.77 of the Revised Code;
(2) A defective aspect of the manufacturer's product in question as described in division (A)(1) of this section was a proximate cause of harm for which the claimant seeks to recover compensatory damages;
(3) The manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of harm for which the claimant seeks to recover compensatory damages
(¶11}Subsection (B) of R.C. 2307.73 further states that [i]f a claimant is unable because the manufacturer's product in question was destroyed to establish by direct evidence that the manufacturer's product in question was defective or if a claimant otherwise is unable to establish by direct evidence that the manufacturer's product in question was defective, then, consistent with the Rules of Evidence, it shall be sufficient for the claimant to present circumstantial or other competent evidence that establishes, by a preponderance of the evidence, that the manufacturer's product in question was defective in any one of the four respects specified in division (A)(1) of this section.
(¶12} In Moore v. Freedom Foods, Inc., 2d Dist. Montgomery No. 12191, 1991 WL 21515 (Feb. 21, 1991), this court stated, in pertinent part:
Regardless of the theory which liability is predicated upon * * * it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, ...