
    Tirey v. Firestone Tire & Rubber Co. et al. 
    (No. 85-2110
    Decided December 5, 1986.)
    Court of Common Pleas of Montgomery County.
    
      Keith M. Karr and Michael Garth Moore, for Jeffrey A. Tirey.
    
      William Wendell, for Firestone Tire & Rubber Co.
    
      Edward J. Cass, for Kelsey-Hayes Co.
    
      Christopher F. Johnson, for Goodyear Tire & Rubber Co. and Motor Wheel Corp.
    
      Louis E. Gerber and Geoffrey Myers, for Redco Corp.
    
      Robert S. McGeough, for Ohio Fast Freight.
    
      Gordon D. Arnold, for Rubber Mfrs. Assn, and National Wheel & Rim Assn.
    
      Edward K. Halaby, for Budd Co.
    
      David L. Parham, for Alcoa.
    
      Clarence Emery, pro se.
    
    
      Leo F. Krebs, for Interpoint Corp.
    
      Jeffrey M. Brown, for National Wheel & Rim Assn.
   Meagher, J.

This matter comes before the court on motion for summary judgment filed by defendants Firestone Tire & Rubber Company, Budd Company, Kelsey-Hayes Company, Goodyear Tire & Rubber Company, Aluminum Company of America, FNY, Inc., Redco Corporation, Motor Wheel Corporation, National Wheel & Rim Association and Rubber Manufacturers Association; on motion for summary judgment filed by defendant In-terpoint Corporation; and on motion for summary judgment filed by defendant Aluminum Company of America.

The facts indicated that the plaintiff, Jeffrey A. Tirey, began his employment with Interpoint Corporation on September 16,1982. Plaintiffs deposition further indicates that he had received education relating to changing and mounting tires and that he knew the proper procedures and the risks involved in changing a split-rim tube tire.

While mounting a wheel on a truck on July 21,1983, an explosion occurred resulting in injuries to the plaintiff. After the accident, the rim parts were mounted on the truck of Clarence Emery and have been irretrievably lost.

The issues before the court in this motion are whether the court should reject plaintiffs theories of alternative liability, industry-wide liability and concert-of-action.

First, defendants move for summary judgment on plaintiffs theory of alternative liability. The Ohio Supreme Court adopts this theory of recovery when:

(1) two or more defendants have committed tortious acts and were present either in person or by the presence of their product at the occurrence;

(2) plaintiff was injured as a result of the wrongdoing of one of the defendants; and

(3) ^ there is uncertainty as to which defendant has caused the harm. Minnich v. Ashland Oil Co. (1984), 15 Ohio St. 3d 396, 15 OBR 511, 473 N.E. 2d 1199.

The Ohio Supreme Court clearly stated in Minnich that alternative liability “does not apply in cases where there is no proof that the conduct of more than one defendant has been tor-tious.” Id. at 397, 15 OBR at 512, 473 N.E. 2d at 1200. It is clear to the court that there is no proof that all the defendants acted tortiously towards the plaintiff. Thus, since plaintiff cannot establish an essential element on this theory, defendants are entitled to summary judgment on the alternative liability allegations of plaintiffs complaint.

Defendants also move for summary judgment on plaintiffs theory of market-share liability. This theory is based on the idea that if a particular industry produces similar generic products, then liability should be apportioned according to each manufacturer’s contribution to that product market. Neither the Ohio Supreme Court nor any Ohio statute has accepted the doctrine of market-share liability when a non-fungible product is involved like a multipiece wheel. Moreover, even if this doctrine is accepted in this case, one of the primary policy considerations for adopting the market-share theory, that the defect in the product was responsible for the loss of the product, is not present here. Therefore, defendants’ motion for summary judgment regarding the theory of market liability is sustained.

Defendants move for summary judgment regarding plaintiff’s theory of industry-wide liability (enterprise liability). This theory, like market-share liability, has not been adopted by the Ohio Legislature. Many jurisdictions have rejected this theory and this court will follow suit. As explained by the Superior Court of New Jersey when it rejected the theory of enterprise liability:

“Adoption of this legal theory would, of necessity, result in total abandonment of the well settled principle that manufacturers are responsible only for damages caused by a defective product upon proof that the defective product was defective and that the defect arose while the product was in the control of defendant.” Namm v. Charles E. Frosst & Co. (1981), 178 N.J. Super. 19, 35, 427 A. 2d 1121, 1129.

In this case, since the wheel parts are irretrievably lost and will never be before this court, proof that the product was defective is impossible. Absent such proof, what occurred on the day of the accident is left largely to conjecture. The court, therefore, sustains defendants’ motion for summary judgment on plaintiffs allegation of enterprise liability.

Finally, defendants move for summary judgment based on plaintiffs theory of concert-of-action. Once again, this court rejects plaintiffs theory as a viable cause of action. If this theory were accepted in this case, it would hold any one of the defendants liable for a defect of one of its competitor’s products. This court is unwilling to endorse such an aberrant result and, therefore, grants defendants’ motion on this issue.

In sum, defendants’ motion for summary judgment on the theories of alternative liability, market-share liability, industry-wide liability and concert-of-action is sustained.

Interpoint Corporation (“Inter-point”) moves for summary judgment based on plaintiff’s first cause of action regarding the allegations that Inter-point improperly trained the plaintiff. Plaintiff claims that the absence of proper warnings and lack of proper training constitute an intentional tort.

The recent workers’ compensation law, R.C. 4121.80, provides that an action may be brought by an employee for an intentional tort of his employer. This section of the law defines an “intentional tort” as “an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.” Furthermore, the section defines “substantially certain” to mean those actions taken by an employer with “deliberate intent to cause an employee to suffer injury * * R.C. 4121.80(G).

Applying the facts of this case to the law, it is clear that Interpoint did not act with any deliberate intent to injure the plaintiff. Thus, Interpoint’s motion is sustained.

Aluminum Company of America moves for summary judgment on plaintiff’s second, third, fourth, and fifth causes of action regarding the theories of strict liability, negligence, and willful, wanton and reckless misconduct.

Aluminum Company of America claims that plaintiff cannot meet his burden of proof under any of these theories, by showing that it manufactured the product which caused the injury. Aluminum Company of America correctly points out that:

“Regardless of the theory which liability is predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, 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, manufactured, sold, or was in some way responsible for the product * * Annotation (1973), 51 A.L.R. 3d 1344, 1349.

In this case, the wheel parts have been irretrievably lost and there is no way to determine who manufactured the alleged defective product. Plaintiff cannot possibly meet an essential element of his case regarding his second, third, fourth or fifth causes of action. Therefore, Aluminum Company of America’s motion for summary judgment is well-taken and is sustained.

In accordance with the foregoing, all eight causes of action on behalf of the plaintiff are hereby dismissed. Judgment is therefore entered in favor of the defendants and against the plaintiff herein.

Summary judgment for defendants.  