LaPuma v. Collinwood Concrete

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 64

.]




     LAPUMA ET AL., APPELLANTS, v. COLLINWOOD CONCRETE, APPELLEE.
            [Cite as LaPuma v. Collinwood Concrete, 

1996-Ohio-305

.]
Real property—Oral contract to install brown concrete driveway—Defective
        concrete furnished by third party—Tort action for product liability not
        maintainable, when—Tort action for breach of implied warranty
        maintainable, when.
Although a cause of action may concern a product, it is not a product liability claim
        within the purview of Ohio’s product liability statutes unless it alleges
        damages other than economic ones, and a failure to allege other than
        economic damages does not destroy the claim, but rather removes it from
        the purview of those statutes.
    (No. 94-1128—Submitted September 13, 1995—Decided March 4, 1996.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 64882.
                                  __________________
        {¶ 1} In May 1988, plaintiff-appellant Matt LaPuma negotiated an oral
contract with Ralph Camillo of D & D Cement (“D&D”) to replace the La Pumas’
limestone driveway with a concrete driveway. LaPuma had a special request—the
driveway’s color should be brown.              A D&D representative recommended
defendant-appellee Collinwood Shale, Brick & Supply Company (“Collinwood,”
incorrectly named in the appellants’ complaint as “Collinwood Concrete”) to
supply the colored concrete for the project. The LaPumas contacted Collinwood,
which sent its sales manager, Mark Stedman, to the LaPumas’ home with color
charts. The LaPumas chose chocolate brown.
        {¶ 2} Collinwood delivered and poured the concrete later in May 1988.
Several months later, the appellants began to notice “little specks, maybe an eighth
by an eighth, here and there.” The specks were a different color from the rest of
                              SUPREME COURT OF OHIO




the driveway. The LaPumas complained to Collinwood, which attempted to
remedy the problem several times. Those attempts failed. The LaPumas’ chocolate
brown driveway was, instead, chocolate chip.
          {¶ 3} On March 17, 1992, the LaPumas sued Collinwood, alleging that
Collinwood was liable for negligently installing the driveway and for breaching an
implied warranty of workmanlike quality. The LaPumas alleged that they had
suffered “property and repair damages.” The trial court granted Collinwood’s
motion for summary judgment, holding that the LaPumas had suffered only
economic loss, and thus could not recover since they were not in privity with
Collinwood. The trial court also held that an implied warranty of fitness does not
apply to color.
          {¶ 4} The appellate court ruled in Collinwood’s favor on different grounds.
That court affirmed on the ground that Ohio’s product liability statutes, R.C.
2307.71 to 2307.79, preempt all common-law actions relating to defective products.
The court held that since the LaPumas had suffered only “economic loss” as defined
in R.C. 2307.71(B), they did not suffer any “harm” as defined by R.C. 2307.71(G).
Since such harm is a prerequisite to recovering economic damages pursuant to R.C.
2307.79, the court reasoned, the LaPumas could not recover for their economic
losses.
          {¶ 5} This matter is now before this court upon an allowance of a
discretionary appeal.
                                __________________
          Reminger & Reminger Co., L.P.A., and Nicholas D. Satullo, for appellants.
          Weston, Hurd, Fallon, Paisley & Howley, Timothy D. Johnson and Gregory
E. O’Brien for appellee.
                                __________________




                                           2
                                January Term, 1996




       PFEIFER, J.
       {¶ 6} We find that since appellants’ claim is not a product liability claim
pursuant to statute, R.C. 2307.71 to 2307.80 do not preempt their cause of action.
Instead, they have a possible claim for breach of an implied warranty against
Collinwood.
                                          I
       {¶ 7} Ohio’s product liability statutes, by their plain language, neither cover
nor abolish claims for purely economic loss caused by defective products. The
appellate court correctly noted that the damages the LaPumas sought in their
complaint were economic. They were suing for the replacement cost of the
driveway, and “economic loss” is defined in 2307.71(B) as follows:
       “‘Economic loss’ means direct, incidental, or consequential pecuniary loss,
including, but not limited to, damage to the product in question, and nonphysical
damage to property other than that product. * * *”
       {¶ 8} A cause of action for damage to the product itself, i.e., a cause of
action alleging only economic damages, is not included in the statutory definition
of a “product liability claim” contained in R.C. 2307.71(M):
       “‘Product liability claim’ means a claim that is asserted in a civil action and
that seeks to recover compensatory damages from a manufacturer or supplier for
death, physical injury to person, emotional distress, or physical damage to property
other than the product in question * * * .” (Emphasis added.)
       {¶ 9} Since the LaPumas’ claim was based only on damage to the driveway
itself, their claim is not a product liability claim controlled by the R.C. 2307.71 to
2307.80. Ohio’s statutory scheme recognizes that claims like the LaPumas’ may
arise, and R.C. 2307.72(C) acknowledges that plaintiffs with such claims may have
a common-law remedy:
       “Any recovery of compensatory damages for economic loss based on a
claim that is asserted in a civil action, other than a product liability claim, is not




                                          3
                             SUPREME COURT OF OHIO




subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur under
the common law of this state or other applicable sections of the Revised Code.”
       {¶ 10} Thus, R.C. 2307.72 makes it clear that although a cause of action
may concern a product, it is not a product liability claim within the purview of
Ohio’s product liability statutes unless it alleges damages other than economic
ones, and that a failure to allege other than economic damages does not destroy the
claim, but rather removes it from the purview of those statutes.
                                          II
       {¶ 11} The LaPumas do have a common-law claim against Collinwood. In
Iacono v. Anderson Concrete Corp. (1975), 

42 Ohio St.2d 88

, 

71 O.O.2d 66

, 

326 N.E.2d 267

, this court allowed a plaintiff to recover against a concrete supplier for
damage to the plaintiff’s new driveway. In Iacono, small, round holes formed in
the plaintiff’s driveway soon after a contractor completed installing it, and the
plaintiff brought suit against the contractor and the supplier for the damage to the
driveway itself. Despite the lack of privity between the plaintiff and the supplier,
this court held that the plaintiff could maintain a tort action against the supplier
based upon a theory of breach of implied warranty. While the imperfections to the
driveway in the present case concern its color, we do not find that that significantly
distinguishes this case from Iacono. Therefore, the LaPumas may pursue a claim
of breach of implied warranty against Collinwood.
       {¶ 12} We therefore reverse the judgment of the court of appeals, vacate the
judgment of the trial court, and remand the cause to the trial court for further
proceedings.
                                                                   Judgment reversed
                                                               and cause remanded.
       MOYER, C.J., DOUGLAS and RESNICK, JJ., concur.
       WRIGHT and COOK, JJ., concur separately.
       F.E. SWEENEY, J., concurs in judgment only.




                                          4
                                January Term, 1996




                               __________________
       COOK, J., concurring.
       {¶ 13} While I agree with the majority’s conclusion that the appellant’s
claim for breach of implied warranty is not preempted by R.C. 2307.71 through
2307.80, I also believe that the language employed by the majority implies an
exclusion that is overly broad. Accordingly, I write separately.
       {¶ 14} In the syllabus of today’s opinion, this court holds that any cause of
action alleging purely economic damages is removed from the purview of R.C.
2307.71 through 2307.80. In so holding, the majority relies upon R.C. 2307.72(C),
which states:
       “Any recovery of compensatory damages for economic loss based on a
claim that is asserted in a civil action, other than a product liability claim, is not
subject to sections 2307.71 to 2307.80 of the Revised Code, but may occur under
the common law of this state or other applicable sections of the Revised Code.”
(Emphasis added.)
       {¶ 15} The phrase “product liability claim” is defined in R.C. 2307.71(M)
as follows:
       “‘Product liability claim’ means a claim that is asserted in a civil action and
that seeks to recover compensatory damages from a manufacturer or supplier for
death, physical injury to person, emotional distress, or physical damage to property
other than the product in question[.]” (Emphasis added.)
       {¶ 16} I interpret R.C. 2307.72(C) to exclude only a very narrow class of
cases from the purview of R.C. 2307.71 through 2307.80, that is, cases where the
damages sought relate solely to the product itself. Any other cause of action fitting
within the definition of a “product liability claim” is preempted by the operation of
R.C. 2307.71 through 2307.80.
       {¶ 17} “Economic loss” as defined in R.C. 2307.71(B) encompasses
“direct, incidental, or consequential pecuniary loss, including, but not limited to,




                                          5
                            SUPREME COURT OF OHIO




damage to the product in question, and nonphysical damage to property other than
that product.” (Emphasis added.) Clearly then, economic loss can flow from
damages other than those caused to the defective product itself. In such a case, the
claimant may recover economic losses only after establishing an entitlement to
recover compensatory damages for harm from a manufacturer or supplier. R.C.
2307.79. “Harm” as defined in R.C. 2307.71(G) means “death, physical injury to
person, serious emotional distress, or physical damage to property other than the
product in question.”
       {¶ 18} In light of the foregoing, R.C. 2307.71 through 2307.80 preempts
all similar theories of recovery existing at common law or arising under another
section of the Revised Code in those cases wherein a claimant alleges purely
economic losses other than those arising from damage to the product in question.
Because today’s syllabus suggests that such cases are removed from the operation
of R.C. 2307.71 through 2307.80, I cannot join in the majority’s opinion.
       WRIGHT, J., concurs in the foregoing concurring opinion.
                              __________________




                                         6