McFarland v. Bruno Machinery Corp.

[This opinion has been published in Ohio Official Reports at 

68 Ohio St.3d 305

.]




   MCFARLAND ET AL., APPELLANTS, v. BRUNO MACHINERY CORPORATION,
                                        APPELLEE.
            [Cite as McFarland v. Bruno Mach. Corp., 

1994-Ohio-62

.]
Torts—Negligence—Evidence—Evid.R. 407 not applicable to products liability
        cases premised upon strict liability in tort.
Evid.R. 407, which prohibits the introduction of evidence of subsequent remedial
        measures to prove negligence or culpable conduct, is not applicable to
        products liability cases premised upon strict liability in tort.
   (No. 92-2236—Submitted November 9, 1993—Decided February 16, 1994.)
    APPEAL from the Court of Appeals for Warren County, No. CA91-11-089.
                                  __________________
        {¶ 1} On December 14, 1988, appellant, Lester McFarland, was injured in
the course of his employment for Amtex. Appellant worked as a maintenance
mechanic for Amtex, a provider of carpet "blanks" for the auto industry. At the
time of the accident, appellant was directed to correct a belt-tracking problem on a
die cutting press designed and manufactured by appellee, Bruno Machinery
Corporation ("Bruno"). Appellant positioned himself under the belt and, after
adjusting the tracking problem, he noticed that the machine was making a "noise."
Having diagnosed what he believed to be the source of the problem, appellant
started to exit from underneath the machine. It was at this time that appellant's
fingers on his right hand and then appellant's right arm were somehow "taken up in
between the belt and the roller." As a result of his arm being entangled in the
machinery, appellant sustained serious injuries.
        {¶ 2} Following the accident, Amtex placed a guard on the machine.
Further, Bruno (appellee) redesigned similar presses so as to prevent the kind of
accident incurred by appellant.
                                  SUPREME COURT OF OHIO




         {¶ 3} On September 25, 1989, appellant and his wife, Cynthia McFarland,1
filed a complaint in the Court of Common Pleas of Warren County, naming
appellee as the sole defendant. Appellants alleged that the machine manufactured
by appellee was defectively designed. Appellants sought recovery against appellee
based upon the theory of strict liability in tort. Additionally, Cynthia brought an
action for loss of consortium.
         {¶ 4} Prior to trial, appellee filed a motion in limine. Appellee requested
the trial court to exclude all evidence regarding any design changes made by
appellee to its die cutting presses subsequent to the time the machine which caused
Lester's injuries was manufactured. Appellee also sought to preclude evidence that
Amtex placed a guard on the machine in question after the incident. Appellee
asserted that evidence of modification by either appellee or Amtex was irrelevant,
prejudicial, and prohibited by Evid.R. 407.
         {¶ 5} On September 18, 1991, the trial court granted appellee's motion in
limine. Thereafter, the case proceeded to trial. At trial, counsel for appellants
proffered evidence of remedial measures taken by Amtex and appellee. Ultimately,
the jury returned a verdict in favor of appellee.
         {¶ 6} Appellants appealed to the Court of Appeals for Warren County. The
court of appeals affirmed the judgment of the trial court. The court of appeals
determined that Evid.R. 407 was applicable to products liability cases based upon
strict liability in tort and that the trial court properly excluded "evidence of the post-
accident modifications that were made to appellee's press."
         {¶ 7} The cause is now before this court pursuant to the allowance of a
motion to certify the record.
                                    __________________
         Cors & Bassett and Michael L. Gay, for appellants.


1. Cynthia McFarland is also an appellant in this case.




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                                     January Term, 1994




         Porter, Wright, Morris & Arthur and Thomas H. Pyper, for appellee.
         Frank E. Todaro, urging reversal for amicus curiae, Ohio Academy of Trial
Lawyers.
         Arter & Hadden, Irene C. Keyse-Walker, Mark F. McCarthy and Sonali
Bustamante Wilson, urging affirmance for amicus curiae, Ohio Association of Civil
Trial Attorneys.
                                    __________________
         DOUGLAS, J.
         {¶ 8} The primary issue in this case is whether the proscriptions of Evid.R.
407 apply to an action which alleges that a product is defective in design or
formulation.2 More specifically, we are asked to determine whether the rule applies
to a products liability claim grounded upon the theory of strict liability in tort.
         {¶ 9} Evid.R. 407, entitled "Subsequent Remedial Measures," provides:
         "When, after an event, measures are taken which, if taken previously, would
have made the event less likely to occur, evidence of the subsequent measures is
not admissible to prove negligence or culpable conduct in connection with the
event. This rule does not require the exclusion of evidence of subsequent measures
when offered for another purpose, such as proving ownership, control, or feasibility
of precautionary measures, if controverted, or impeachment." (Emphasis added.)
         {¶ 10} Evid.R. 407 was designed to preclude admission of evidence of
remedial measures taken after an event if the evidence is used to prove "negligence
or culpable conduct." This rule, however, does not require exclusion of a remedial
measure when offered for another purpose. For instance, evidence can be properly
admitted if admitted for the purpose of proving ownership, control, feasibility of
precautionary measures (if controverted),3 or impeaching a witness.


2. See R.C. 2307.75, effective January 5, 1988. This statute sets forth when a product is defective
in design or formulation.
3. In the case at bar, feasibility of precautionary measures was not controverted.




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                              SUPREME COURT OF OHIO




        {¶ 11} The policy reasons for Evid.R. 407 have been stated as resting on
two grounds. The first justification for the rule is that evidence of subsequent
remedial measures is thought to have minimal or nonexistent probative value in
establishing negligence. 1 Weissenberger, Ohio Evidence (Rev. 1988) 42, Section
407.3. Taking subsequent remedial action is not an admission of negligence. The
rationale is that the injury may have been caused by reason of mere accident or
through the plaintiff's contributory negligence. 1 Weissenberger, supra, at 42-43.
See, also, Giannelli, Ohio Rules of Evidence Handbook (4 Ed. 1993) 90-91.
        {¶ 12} The second explanation for excluding evidence under the rule is
based on the social policy of encouraging repairs or corrections. Weissenberger,
supra, at 43; and Giannelli, supra, at 91. See, also, Staff Note to Evid.R. 407. The
argument behind this policy reason is that a defendant would be less likely to take
subsequent remedial measures if the repairs or corrections could be used as
evidence against the defendant at trial.
        {¶ 13} Appellants contend that the trial court erred in not permitting
evidence of remedial measures taken by Amtex and appellee. Appellants argue that
they should have been permitted to introduce into evidence the fact that Amtex
added a guard to the machine which had caused Lester's injuries and that appellee
redesigned similar cutting presses to correct the hazard. Appellants further contend
that in applying the proscriptions set forth in Evid.R. 407, both the trial court and
the court of appeals committed error. Appellants urge that the rule is applicable
solely to actions premised on negligence or involving culpable conduct and not to
products liability claims predicated upon strict liability in tort.




                                           4
                                     January Term, 1994




         {¶ 14} We agree that Evid.R. 407 has no application here. By its very
terms, the rule excludes evidence of subsequent remedial measures only when
"negligence" or "culpable conduct"4 is alleged.
         {¶ 15} In Ohio, the contrast between negligence and strict liability in
products liability cases is distinct. See Bowling v. Heil Co. (1987), 

31 Ohio St.3d 277

, 31 OBR 559, 

511 N.E.2d 373

, and Onderko v. Richmond Mfg. Co. (1987), 

31 Ohio St.3d 296

, 31 OBR 576, 

511 N.E.2d 388

. In a products case based on strict
liability, the focus is solely on the defective condition of the product and not, as in
an action premised on negligence, on what the defendant knew or should have
known of the defect which caused the injury. Id. at 301, 31 OBR at 579-580, 511
N.E.2d at 392. One court, contrasting strict liability with negligence, has correctly
emphasized that "under the evolved doctrine of strict products liability, the scienter
that is so vital to the negligence suit need not be shown. The shift so wrought is
from fault to defect. * * *" Caprara v. Chrysler Corp. (1981), 

52 N.Y.2d 114, 123

, 

436 N.Y.S.2d 251, 255

, 

417 N.E.2d 545, 549

.
         {¶ 16} Despite the clear wording of Evid.R. 407, appellee argues that the
restrictions of the rule apply not only to actions based on negligence but to actions
pursued under the theory of strict liability. Appellee posits that support for its
position can be gleaned from the language utilized in R.C. 2307.75, and from the
history of Evid.R. 407. Appellee points out that Evid.R. 407, as originally drafted,
contained a provision that would have allowed evidence of subsequent remedial
measures in strict liability actions. Appellee stresses that this provision was
eventually deleted and, because this provision did not become part of the rule as
adopted, the drafters intended that Evid.R. 407 apply to strict liability claims. We
disagree.


4. Black's Law Dictionary (6 Ed.1990) 379, defines "culpable conduct" as "[b]lamable; censurable;
criminal; at fault; involving the breach of a legal duty or the commission of a fault. That which is
deserving of moral blame." (Emphasis added.)




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                              SUPREME COURT OF OHIO




       {¶ 17} As indicated, strict liability, in the context of a products liability suit,
denotes responsibility without regard to fault or culpability. We believe that if the
drafters of Evid.R. 407 had intended to foreclose evidence of subsequent remedial
measures with respect to strict liability cases, the rule, as adopted, would have
contained an explicit provision evidencing such an intention.
       {¶ 18} In finding that the trial court did not abuse its discretion in excluding
evidence of the corrective measures taken by Amtex and appellee, the court of
appeals relied, in part, on the stated policy reasons which underlie Evid.R. 407.
These policy reasons are extensively set forth by both parties and amici curiae for
the purpose of establishing their particular position on whether evidence of
corrective measures is admissible. The arguments on both sides of the issue are
extensive and persuasive.
       {¶ 19} Post-occurrence modifications by a manufacturer have been found
to be admissible in products liability cases grounded in strict liability by a number
of courts. See, e.g., 

Caprara, supra;

 Caldwell v. Yamaha Motor Co., Ltd. (Wyo.
1982), 

648 P.2d 519

; Matsko v. Harley Davidson Motor Co., Inc. (1984), 

325 Pa.Super. 452

, 

473 A.2d 155

; and Jeep Corp. v. Murray (1985), 

101 Nev. 640

, 

708 P.2d 297

. See, also, R.W. Murray Co. v. Shatterproof Glass Corp. (C.A.8, 1985),

758 F.2d 266

; and Herndon v. Seven Bar Flying Serv., Inc. (C.A.10, 1983), 

716 F.2d 1322

, certiorari denied sub nom. Piper Aircraft Corp. v. Seven Bar Flying
Serv., Inc. (1984), 

466 U.S. 958

, 

104 S.Ct. 2170

, 

80 L.Ed.2d 553

. Additionally,
some courts have concluded that subsequent remedial actions taken by an employer
are admissible in a strict liability suit by the plaintiff against the manufacturer.
Courts that have taken this view express the opinion that the evidence is relevant
and policy considerations behind excluding evidence of subsequent remedial
conduct is not applicable when liability is not asserted against the person taking the
remedial measure. See, e.g., Magnante v. Pettibone-Wood Mfg. Co. (1986), 183




                                           6
                                      January Term, 

1994 Cal.App.3d 764

, 

228 Cal.Rptr. 420

; and Denolf v. Frank L. Jursik Co. (1976), 

395 Mich. 661

, 

238 N.W.2d 1

.
         {¶ 20} Most courts which have determined that subsequent remedial
measures are admissible in a strict liability setting have relied upon the landmark
opinion Ault v. Internatl. Harvester Co. (1974), 

13 Cal.3d 113

, 

117 Cal.Rptr. 812

,

528 P.2d 1148

. In Ault, a passenger in a motor vehicle sued the manufacturer of
the vehicle, alleging that he sustained injuries as a result of a defect in the design
of the vehicle's gear box. The suit was grounded on strict liability, breach of
warranty and negligence. At trial, evidence was admitted showing that after the
accident the manufacturer changed the design of the gear box from aluminum to
malleable iron. On appeal, the manufacturer asserted that evidence of a design
change was barred by Cal.Evid. Code Section 1151.5
         {¶ 21} The Supreme Court of California upheld the admissibility of the
design change. The court, finding that Section 1151 did not apply to products
liability cases based on strict liability, analyzed the policy considerations behind
Section 1151 and remarked that:
         "Courts and legislatures have frequently retained the exclusionary rule in
negligence cases as a matter of 'public policy,' reasoning that the exclusion of such
evidence may be necessary to avoid deterring individuals from making
improvements or repairs after an accident has occurred.                     Section 1151 rests
explicitly on this 'public policy' rationale. In explaining the purpose of the section,
the draftsmen's comment states: 'The admission of evidence of subsequent repairs
to prove negligence would substantially discourage persons from making repairs
after the occurrence of an accident. * * * [Emphasis sic.]




5. Cal.Evid. Code Section 1151 is virtually identical to Evid.R. 407, except that Evid.R. 407 further
provides that exclusion of evidence of subsequent remedial measures is not required when the
evidence is offered for certain specific purposes.




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                              SUPREME COURT OF OHIO




        "While the provisions of section 1151 may fulfill this anti-deterrent function
in the typical negligence action, the provision plays no comparable role in the
products liability field. Historically, the common law rule codified in section 1151
was developed with reference to the usual negligence action * * *; in such
circumstances, it may be realistic to assume that a landowner or potential defendant
might be deterred from making repairs if such repairs could be used against him in
determining liability for the initial accident.
        "When the context is transformed from a typical negligence setting to the
modern products liability field, however, the 'public policy' assumptions justifying
this evidentiary rule are no longer valid.        The contemporary corporate mass
producer of goods, the normal products liability defendant, manufactures tens of
thousands of units of goods; it is manifestly unrealistic to suggest that such a
producer will forego making improvements in its product, and risk innumerable
additional lawsuits and the attendant adverse effect upon its public image, simply
because evidence of adoption of such improvement may be admitted in an action
founded on strict liability for recovery on an injury that preceded the improvement.
In the products liability area, the exclusionary rule of section 1151 does not affect
the primary conduct of the mass producer of goods, but serves merely as a shield
against potential liability. In short, the purpose of section 1151 is not applicable to
a strict liability case and hence its exclusionary rule should not be gratuitously
extended to that field." 

Id.,

13 Cal.3d at 119-120

, 

117 Cal.Rptr. at 815-816

, 

528 P.2d at 1151-1152

.
        {¶ 22} The reasoning articulated in Ault has been endorsed by numerous
courts. See, e.g., Ford Motor Co. v. Fulkerson (Ky. 1991), 

812 S.W.2d 119, 125

(Policy considerations in negligence cases for excluding evidence of subsequent
repairs have little or no application in dealing with a design change because "[t]he
issue is not whether the seller has admitted misconduct—the seller is liable even
though he has exercised all possible care"); Sanderson v. Steve Snyder Enterprises,




                                           8
                                January Term, 1994




Inc. (1985), 

196 Conn. 134, 146

, 

491 A.2d 389, 395

 ("Given the strong economic
influences on the conduct of a designer or manufacturer created by the existence of
the strict liability theory, it is unlikely that any evidentiary use of subsequent
remedial measures will discourage a designer or manufacturer from taking them");
and Chart v. Gen. Motors Corp. (1977), 

80 Wis.2d 91, 102

, 

258 N.W.2d 680, 684

("Economic realities will set the course and these realities are that the sooner
remedial measures are taken, the less costly the defect will be to the
manufacturer.").
       {¶ 23} Similarly, Professor Weissenberger, an often-cited and well-
recognized authority in this area, noted that:
       "* * * Proponents of admitting evidence of subsequent remedial measures
in products liability actions argue that it is absurd to believe that a manufacturer
would forego repairs in a product's design or manufacture in order to avoid the
admission at trial of evidence of its subsequent changes in the product. A rational
business does not risk millions of dollars in liability that may result from further
injuries in order to avoid creating evidence of subsequent remedial measures. This
argument is strengthened when one considers the additional liability in punitive
damages that may result from leaving a known dangerous condition unremedied."
Weissenberger, supra, at 46, Section 407.5.
       {¶ 24} Appellee suggests that Ault, and authorities in support of that
opinion, are not applicable here because the decision in Ault was based on the fact
that the defendant-manufacturer was a "mass producer." However, an argument
similar to that posed by appellee has been soundly rejected. We agree with the
conclusion reached by the Supreme Court of Wisconsin in Friederichs v. Huebner
(1983), 

110 Wis.2d 581

, 

329 N.W.2d 890

, wherein the court concluded that the
justification for imposing strict liability is applicable to both large and small
manufacturers and that there is no sound reason for distinguishing between classes
of manufacturers.




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                              SUPREME COURT OF OHIO




        {¶ 25} There are some courts and authorities who have opposed admission
of evidence of subsequent remedial actions in products liability suits. A number of
these courts and authorities have declined to follow 

Ault, supra,

 and its progeny.
Though different approaches have been espoused, many seem to find that there is
no practical difference between strict liability and negligence in defective design
cases and, therefore, the policy reasons behind excluding evidence of remedial
measures is equally applicable to cases based on strict liability. See, e.g., Gauthier
v. AMF, Inc. (C.A.9, 1986), 

788 F.2d 634

; Grenada Steel Industries, Inc. v.
Alabama Oxygen Co., Inc. (C.A.5, 1983), 

695 F.2d 883

.
        {¶ 26} We have thoroughly reviewed the policy reasons upon which the rule
is based, the case law from Ohio and sister jurisdictions and various treatises that
discuss the question.     After that review, we believe that the better-reasoned
decisions are those that have followed 

Ault, supra.

 Given the distinct policy and
goals for applying strict liability involving defective products, it is apparent that the
reasons for excluding evidence of remedial acts which may apply to negligence
cases do not extend to claims founded in strict liability. Thus, we hold that Evid.R.
407, which prohibits the introduction of evidence of subsequent remedial measures
to prove negligence or culpable conduct, is not applicable to products liability cases
premised upon strict liability in tort.
        {¶ 27} Finally, we are aware of the contention by some that the introduction
of evidence of subsequent remedial measures in a strict products liability case could
be highly prejudicial to a defendant-manufacturer. While this contention may have
some validity, an equally plausible assertion can be made on behalf of an injured
plaintiff if such evidence is excluded. Without question, all evidence going to the
heart of an issue is, to some extent, "prejudicial" to someone. That is the very
essence of "evidence" and our adversary system. Let the jury decide!
        {¶ 28} In the case at bar, the remedial changes implemented by Amtex and
appellee directly concern whether the machine in question was defective. Such




                                           10
                                  January Term, 1994




evidence would have been probative of the issue as to whether the machine which
caused the injury was safely designed. Proof that Amtex placed a guard on the
machine and that appellee changed the design in order to prevent further injuries
would be probative of the quality of the machine prior to the time the remedial acts
were taken. The jury did not have the benefit of this evidence.
          {¶ 29} Accordingly, based on the foregoing, the judgment of the court of
appeals is reversed, and the cause is remanded to the trial court for further
proceedings not inconsistent with this opinion.
                                                                  Judgment reversed
                                                                and cause remanded.
          MOYER, C.J., A.W. SWEENEY, RESNICK, F.E. SWEENEY AND PFEIFER, JJ.,
concur.
          WRIGHT, J., dissents.
                                  __________________
          WRIGHT, J., dissenting.
          {¶ 30} As pointed out by the majority, "[t]he arguments on both sides of the
issue [before us] are extensive and persuasive." Likewise, as the majority indicates,
there is respectable authority on both sides of this issue. The notion that evidence
of remedial measures is admissible in a strict liability setting was vigorously argued
in Ault v. Internatl. Harvester Co. (1974), 

13 Cal.3d 113

, 

117 Cal.Rptr. 812

, 

528 P.2d 1148

. Conversely, the view that there is no practical difference between strict
liability and negligence cases has equal support. Hence, the policy reasons behind
excluding evidence of remedial measures is equally applicable to both negligence
cases and strict liability. See, e.g., Gauthier v. AMF, Inc. (C.A.9, 1986), 

788 F.2d 634

, and Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc. (C.A.5, 1983),

695 F.2d 883

.
                                           I




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                              SUPREME COURT OF OHIO




        {¶ 31} Both the trial court and the court of appeals used Evid.R. 407 to find
that remedial measures were barred as evidence. I would agree with the majority
that Evid.R. 407 does not specifically deal with causes premised upon strict
liability. However, as pointed out by the majority, the original draft of Evid.R. 407
contained a provision that would have allowed evidence of subsequent remedial
measures in strict liability actions. This provision was deleted, presumably as
superfluous, suggesting, of course, that the rule should apply to causes involving
strict liability. The majority takes the view that if the drafters of Evid.R. 407 had
intended to foreclose evidence of subsequent remedial measures in strict liability
actions they would have said so. I find this portion of the majority opinion, at best,
implausible.
        {¶ 32} I am simply not persuaded that the rule against admitting subsequent
remedial efforts should not be applied to a case tried under R.C. 2307.75. I say this
because this view is consistent with the legislative history of the rule, its underlying
policy, and the basis for this form of tort.
                                           II
        {¶ 33} The rationale underlying Evid.R. 407 is twofold. The first premise
is that while evidence of subsequent remedial measures may be of some probative
value, the potential prejudicial effect of the evidence as an admission of liability is
devastating. This proposition addresses the very heart of the issue. How is such
evidence relevant to showing that the product was defective at the time it left the
manufacturer's control? And, indeed, does its relevance, if any, outweigh its
prejudicial effect?
        {¶ 34} Given that the determinative time frame for ascertaining whether a
product is defective is the time at which the product left the manufacturer's control,
R.C. 2307.75, what relevance attaches to subsequent design changes by either the
manufacturer or a non-party employer? In this case, the relevant inquiry is whether




                                           12
                                   January Term, 1994




the absence of a guard on the machine presented a foreseeable risk and whether the
press as designed was defective.
        {¶ 35} Appellants suggest that proof appellee actually changed its design in
a way to make the press safer is probative of the quality of the earlier design. In
light of its underlying considerations of public policy, this is precisely the type of
prejudice Evid.R. 407 was adopted to prevent. The use of subsequent design
changes as proof of product defect clearly deters a manufacturer from implementing
improvements. In a word, I believe that appellants have argued that this court
should apply "hindsight liability." Unhappily, the majority has bought into this
concept.
        {¶ 36} Generally "post-event" design changes are not pertinent to whether
a design posed a "foreseeable risk," and was, therefore, defective at the time the
product left the manufacturer's control. Thus, little relevance attaches to "post-
event" design changes unless, of course, the feasibility of a "post-event" design
change is controverted.
        {¶ 37} Evid.R. 407 does not and should not permit the use of subsequent
design changes when an opposing party controverts the feasibility of the subsequent
design changes. However, if feasibility is not controverted, as in this case, the fact
that the design was actually incorporated into the product is of little relevance and
is potentially very prejudicial.
        {¶ 38} Appellants were permitted to produce evidence supporting its
allegation that the press, due to the absence of a barrier guard, was defective in
design. Any benefits from admission of the subsequent remedial measure taken by
appellee would have been cumulative in character. In my view the trial court did
not abuse its discretion in permitting "arguably" relevant evidence to be excluded.
The majority's interpretation of R.C. 2307.75, a statute which interjects negligence
concepts such as "foreseeable risk" into a product liability action, greatly enhances




                                           13
                              SUPREME COURT OF OHIO




the potential for prejudice, and in the process outweighs the relevance of cumulative
evidence.
                                          III
        {¶ 39} The second premise underlying Evid.R. 407 is that an admission of
evidence of subsequent remedial measures may deter a manufacturer from making
design changes because of fear of a future lawsuit. Appellants, of course, contend
that in strict liability claims the fact that the remedial measure will be perceived as
an admission of fault is irrelevant because in strict tort liability the focus is on the
product, not on the reasonableness of the manufacturer's conduct.
        {¶ 40} The problem with this argument is that the distinction between
manufacturer and product is hypertechnical. The suit is against the manufacturer,
not the product. It is the fact that the evidence may be used against it, and that the
manufacturer will ultimately be liable, that will inhibit the manufacturer from
implementing subsequent remedial measures. I also note that the distinction
between manufacturer's fault and product defect has become even more
hypertechnical under R.C. 2307.75. As stated above, R.C. 2307.75 requires an
examination of the foreseeability of the risk at the time the product left the
manufacturer's control. The distinction between negligence and strict liability has
thus been attenuated by R.C. 2307.75 and its interpretation to such an extent that
appellee is reduced to arguing that strict product liability fits into the "culpable
conduct" limitation of Evid.R. 407. The fact that in some cases economics will
drive a manufacturer to take subsequent remedial measures regardless of their
admissibility obviously does not diminish the policy of encouraging manufacturers
to take such action. I suggest that there simply is no appreciable distinction between
negligence and strict liability cases in promoting the policy of encouraging remedial
action. This was surely the view at the dawn of the concept of strict liability. See
Prosser, The Assault Upon the Citadel (1960), 

69 Yale L.J. 1099

, 1122. It remained
the view when this socially useful tort remedy came into full flower. See Prosser,




                                          14
                              January Term, 1994




The Fall of the Citadel (1966), 50 Minn.L.Rev. 791, 816. I see no good reason for
a change today.
       {¶ 41} Accordingly, I must respectfully dissent.
                             __________________




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