Court of Appeals of Ohio, First District, Hamilton County.
NADEL et al., Appellants, v. BURGER KING CORPORATION et al., Appellees.
No. C-960489.
-- May 21, 1997
Edward J. Felson and Stephen R. Felson, Cincinnati, for appellants. Jonathan P. Saxton, Cincinnati, for appellee Burger King Corporation. Droder & Miller Co., L.P.A., A. Dennis Miller and Kevin J. Ryan, Cincinnati, for appellee Emil, Inc.
I. Facts
On a morning in early December 1993, plaintiff-appellant Paul Nadel was driving his son, plaintiff-appellant Christopher, and two younger daughters, Ashley and Brittany, to school.1 Paul's mother, plaintiff-appellant Evelyn Nadel, was seated next to the passenger window. Christopher was seated in the front seat between Evelyn and Paul, with one foot on the transmission hump and one foot on the passenger side of the hump. Brittany and Ashley were in the back seat. On the way, they ordered breakfast from the drive-through window of a Burger King restaurant owned and operated by defendant-appellee Emil, Inc. (“Emil”) under a franchise agreement with defendant-appellee Burger King Corporation (“BK”). Paul's order included several breakfast sandwiches and drinks and two cups of coffee. The cups of coffee were fitted with lids and served in a cardboard container designed to hold four cups, with the two cups placed on opposite diagonal corners. Emil's employee served the coffee through the car window to Paul, who passed it to Christopher, who handed it to Evelyn. …show more content…
As no express contract is alleged between the parties, we assume that the asserted warranties are implied warranties set forth by the Ohio Uniform Commercial Code. See R.C. 1302.27 and 1302.28.3 But the Ohio Products Liability Law has preempted the Nadels' warranty claims. R.C. 2307.72; 2307.73; Saylor v. Providence Hosp. (1996), 113 Ohio App.3d 1, 680 N.E.2d 193; Raitt, The Preemption and Economic Loss Provisions of the Ohio Product Liability Code (1991), 16 U.Dayton L.Rev. 583, 586-589; O'Reilly and Cody, Ohio Products Liability Manual (1992) 57, Section 5.05. R.C. 2307.72(A) states that “[a]ny recovery of compensatory damages based on a product liability claim” is subject to the Ohio Products Liability Law. R.C. 2307.73(A) states:
“A manufacturer is subject to liability for compensatory damages based on a product liability claim only if the claimant establishes, by a preponderance of the evidence, all of the following:
“(1) Subject to division (B) of this section, the product 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
NADEL et al., Appellants, v. BURGER KING CORPORATION et al., Appellees.
No. C-960489.
-- May 21, 1997
Edward J. Felson and Stephen R. Felson, Cincinnati, for appellants. Jonathan P. Saxton, Cincinnati, for appellee Burger King Corporation. Droder & Miller Co., L.P.A., A. Dennis Miller and Kevin J. Ryan, Cincinnati, for appellee Emil, Inc.
I. Facts
On a morning in early December 1993, plaintiff-appellant Paul Nadel was driving his son, plaintiff-appellant Christopher, and two younger daughters, Ashley and Brittany, to school.1 Paul's mother, plaintiff-appellant Evelyn Nadel, was seated next to the passenger window. Christopher was seated in the front seat between Evelyn and Paul, with one foot on the transmission hump and one foot on the passenger side of the hump. Brittany and Ashley were in the back seat. On the way, they ordered breakfast from the drive-through window of a Burger King restaurant owned and operated by defendant-appellee Emil, Inc. (“Emil”) under a franchise agreement with defendant-appellee Burger King Corporation (“BK”). Paul's order included several breakfast sandwiches and drinks and two cups of coffee. The cups of coffee were fitted with lids and served in a cardboard container designed to hold four cups, with the two cups placed on opposite diagonal corners. Emil's employee served the coffee through the car window to Paul, who passed it to Christopher, who handed it to Evelyn. …show more content…
As no express contract is alleged between the parties, we assume that the asserted warranties are implied warranties set forth by the Ohio Uniform Commercial Code. See R.C. 1302.27 and 1302.28.3 But the Ohio Products Liability Law has preempted the Nadels' warranty claims. R.C. 2307.72; 2307.73; Saylor v. Providence Hosp. (1996), 113 Ohio App.3d 1, 680 N.E.2d 193; Raitt, The Preemption and Economic Loss Provisions of the Ohio Product Liability Code (1991), 16 U.Dayton L.Rev. 583, 586-589; O'Reilly and Cody, Ohio Products Liability Manual (1992) 57, Section 5.05. R.C. 2307.72(A) states that “[a]ny recovery of compensatory damages based on a product liability claim” is subject to the Ohio Products Liability Law. R.C. 2307.73(A) states:
“A manufacturer is subject to liability for compensatory damages based on a product liability claim only if the claimant establishes, by a preponderance of the evidence, all of the following:
“(1) Subject to division (B) of this section, the product 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