Bowling v. Heil Co.
31 Ohio St.3d 277, 511 N.E.2d 373 (1987)

  • Heil manufactured dump trucks. A truck owned by Rogers and driven by Brashear was delivering a load of gravel to Bowling. The dumper got stuck, so Bowling crawled underneath the truck to see what was wrong. He figured it out, got it unstuck, and it collapsed on top of him.
  • Bowling’s family sued Heil and others claiming product liability.
  • The Trial Court found for Bowling and awarded $1.75M. Heil appealed.
    • The Trial Court found that Bowling was contributorily negligent, but that he had not assumed the risk.
  • The Appellate Court affirmed, but reduced the damages by 30%
    • The Trial Court had found that Bowling was 30% negligent.
      • That’s using comparative negligence, not contributory negligence as a standard.
    • The Appellate Court found a ‘middle ground’ of negligence called ‘affirmative action’ somewhere between a plaintiff’s failure to discover or guard against a defect and his voluntary assumption of a known risk.
  • The Ohio Supreme Court reinstated the original $1.75M.
    • The Ohio Supreme Court found that there are two affirmative defenses available for strict liability:
      • A defendant has a complete defense if a plaintiff voluntarily and knowingly assumed the risk occasioned by the defect.
      • A defendant has a complete defense if a plaintiff misused the product in an unforeseeable manner.
    • The Court looked to Restatement of Torts §402A(n) and came to the conclusion that either a plaintiff’s contributory negligence amounts to a voluntary assumption of a known risk or it does not. If it does not, then contributory negligence of the plaintiff provides no defense to the defendant.
    • Basically, the Court said that comparative negligence (where you recover a percentage based on how negligent you were) is not appropriate for product liability. Instead, you should use contributory negligence (where the plaintiff gets full recovery unless they were more than 50% at fault, in which case they get nothing.)
      • Product liability is not about the plaintiff, it is about whether or not the company is producing a defective product.