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Tsirikos-Karapanos v. Ford Motor Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-854745

          James E. Boulas Jim Petropouleas James E. Boulas Co., L.P.A. ATTORNEYS FOR APPELLANT

          For Ford Motor Company Paul D. Hudson, Jeremiah J. Wood Baker & Hostetler, Inc.For Valley Ford Truck, Inc.James J. Imbrigiotta William H. Kotar Glowacki & Imbrigiotta, Colleen A. Mountcastle Michael J. Pike Leslie A. Stanard Gallagher & Sharp Bulkley ATTORNEYS FOR APPELLEES

          BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.


          MARY J. BOYLE, J.

         {¶1} Plaintiff-appellant, Nikolaos Tsirikos-Karapanos, ("appellant") appeals from a judgment of the trial court granting summary judgment to defendants-appellees, Ford Motor Company ("Ford") and Valley Ford Truck, Inc. ("VFT"). In his sole assignment of error, appellant argues that the trial court's grant of summary judgment to the appellees was in error because there exists genuine issues of material facts and, thus, the trial court could not grant summary judgment as a matter of law. Finding no merit to appellant's appeal, we affirm the judgment of the trial court.

         I. Factual Background and Procedural History

         {¶2} Appellant leased a new 2014 Ford Explorer from VFT on September 28, 2013. Almost two years later, on July 14, 2015, appellant brought the vehicle to VFT to fix a cowl leak near the windshield that allowed water to seep into the vehicle. According to its invoice, VFT replaced and tested the cowl seal, removed and replaced the floor mats and carpets, and cleaned and removed mold from the wire harnesses under the dashboard. After VFT completed those repairs, appellant left in the vehicle. Because those repairs were covered by warranty, VFT did not charge appellant for those services.

         {¶3} According to appellant, the vehicle continued to smell of mold and mildew despite those repairs. Appellant, however, did not return the vehicle to VFT to address the issue. Instead, on September 15, 2015, appellant contacted Ford, informed it that the vehicle still smelled of mold and mildew, and requested that it replace the vehicle. Ford denied appellant's request.

         {¶4} As a result, on November 21, 2015, appellant filed a complaint in the Cuyahoga County Court of Common Pleas against VFT and Ford. Appellant's complaint contained six causes of action, including a violation of Ohio's Products Liability Act, breaches of warranty, violations of the Consumer Sales Practices Act, and an award for punitive damages.

         {¶5} Both VFT and Ford subsequently moved for summary judgment, arguing that appellant failed to establish the requisite elements for his claims. The trial court granted the appellees' motions for summary judgment. It is from this judgment that appellant appeals.[1]

         II. Law and Analysis

         {¶6} In his sole assignment of error, appellant argues that the trial court erred in awarding the appellees summary judgment for all six causes of action.

         {¶7} An appellate court reviews a trial court's decision to grant summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). De novo review means that this court independently "examine[s] the evidence to determine if as a matter of law no genuine issues exist for trial." Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal, 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980). In other words, we review the trial court's decision without according the trial court any deference. Smith v. Gold-Kaplan, 8th Dist. Cuyahoga No. 100015, 2014-Ohio-1424, ¶ 9, citing N.E. Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th Dist.1997).

         {¶8} Under Civ.R. 56(C), summary judgment is properly granted when (1) "there is no genuine issue as to any material fact"; (2) "the moving party is entitled to judgment as a matter of law"; and (3) "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[.]" Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Because it ends litigation, courts should carefully award summary judgment only after resolving all doubts in favor of the nonmoving party and finding that "reasonable minds can reach only an adverse conclusion" against the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

         {¶9} "The burden of showing that no genuine issue exists as to any material fact falls upon the moving party. Once the moving party has met his burden, it is the non-moving party's obligation to present evidence on any issue for which that party bears the burden of production at trial." Robinson v. J.C Penney Co., 8th Dist. Cuyahoga Nos. 62389 and 63062, 1993 Ohio App. LEXIS 2633, *14 (May 20, 1993), citing Harless and Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). "The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Brandon/Wiant Co. v. Teamor, 125 Ohio App.3d 442, 446, 708 N.E.2d 1024 (8th Dist.1998), citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         {¶10} "An otherwise competent affidavit is not invalid for the sole reason that it is executed by a party and submitted to aver facts in opposition to summary judgment." Telecom Acquisition Corp. I v. Lucic Ents., 8th Dist. Cuyahoga No. 102119, 2016-Ohio-1466, ¶ 92. Nevertheless, a court may find that an affidavit is not competent and not sufficient to avoid summary judgment if it is not based on personal knowledge or supported by corroborating materials. Id; Deutsche Bank Natl. Trust Co. v. Najar, 8th Dist. Cuyahoga No. 98502, 2013-Ohio-1657, ¶ 42, quoting Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621.

         A. Products Liability Act

         {¶11} Appellant argues that the trial court improperly granted summary judgment for his first cause of action, a claim under the Ohio Products Liability Act. In response, the appellees argue that summary judgment was proper because appellant failed to present evidence of noneconomic damages. Because the appellees' argument is based on the element of noneconomic damages necessary for a products liability action, we will focus our analysis to that element alone.[2]

          {¶12} To sustain a products liability claim, R.C. 2307.71(M) requires a plaintiff to set forth "a claim seeking compensatory damages for 'death, physical injury to person, emotional distress, or physical damage to property other than the product in question.'"[3](Emphasis added.) Caterpillar Fin. Servs. Corp. v. Harold Tatman & Son's Ents., 4th Dist. Ross No. 14CA3449, 2015-Ohio-4884, ¶ 32, quoting R.C. 2307.71(A)(13). A plaintiff cannot sustain a product liability claim on economic damages alone. Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 30; see also LaPuma v. Collinwood Concrete, 75 Ohio St.3d 64, 66, 661 N.E.2d 714 (1996) ("Ohio's product liability statutes, by their plain language, neither cover nor abolish claims for purely economic loss caused by defective products."). Economic damages include "direct, incidental, or consequential pecuniary loss, including, but not limited to, damage to the product in question[.]" R.C. 2307.71(A).

         {¶13} In Caterpillar, the court found that the complaint's product liability claim did not fall under the Ohio Products Liability Act because the plaintiffs sought "economic loss - i.e., damage to the value of the alleged defective grinder and consequential damages therefrom[.]" Caterpillar at ¶ 32. Like the plaintiffs in that case, appellant only alleges economic loss, stating that because his vehicle was "contaminated with mold and continues to smell of mold and mildew[, ]" he lost the use and value of the vehicle as well as money to obtain alternative travel methods.

         {¶14} Appellant also alleges that he created a genuine issue of material fact by way of his affidavit - attached to his motion in opposition to summary judgment, which states, "the Vehicle remains contaminated with mold which creates a significant health hazard for myself, my wife and our two young daughters." Additionally, in his brief, appellant bolsters his claim, stating that his family "has experienced an increased occurrence of illness over the past year and a half."

         {¶15} Appellant's statements seem to allege damages related to physical injury, even though he argues it is proof of emotional distress. Either way, however, appellant's self-serving statements are not enough to establish the existence of either type of noneconomic damages. See Burks v. Torbert, 8th Dist. Cuyahoga No. 91059, 2009-Ohio-486, ¶ 20 (holding that a self-serving affidavit is not enough to establish emotional injury); Finley v. First Realty Property Mgt., 185 Ohio App.3d 366, 2009-Ohio-6797, 924 N.E.2d 378, ¶ 38 (9th Dist.) (finding that the appellants failed to establish an essential element of their case because they merely asserted "that they have 'suffered severe emotional distress' without any further elaboration or associated evidence supporting the same. * * * [T]he affidavits proffered only a generalized, non-specific statement that Tenants suffered emotional distress[.]"); Bogner v. Titleist Club, L.L.C., 6th Dist. Wood No. WD-06-039, 2006-Ohio-7003, ¶ 16 ("[Appellants merely opined in deposition testimony that they suffered various medical conditions and injuries as a result of living in the apartment. They failed to submit any expert opinions, however, which established a causal connection between their medical symptoms and their alleged exposure to mold."). Appellant failed to properly introduce any corroborating evidence supporting his self-serving claim of physical injury or emotional distress, such as doctor's notes, hospital stays, medication receipts, or expert opinions.

         {¶16} Furthermore, appellant's affidavit is not sufficient to establish that the alleged mold caused his family's increased physical illnesses. See Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 31 ("[E]xpert medical testimony is necessary to establish that particular types of mold found in the workplace were the specific cause of the claimants' ailments.").

         {¶17} Because appellant has not presented sufficient evidence to establish that his product liability claim seeks more than economic loss or that any noneconomic damages were actually caused by exposure to harmful mold, he ...

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